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Date of Decision: 19th March, 2010
RAMESH KUMAR …Appellant
Through : Ms.Shraddha Bhargava, Advocate
Through : Mr.M.N.Dudeja, A.P.P.
HON'BLE MR. JUSTICE SURESH KAIT
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. (Oral)
1. As recorded in DD No.35A, Ex.PW-6/A, it has been noted at 5:30 AM on 1.4.2003, that L/Ct.Bimla has been stabbed by her husband and she has been removed to LNJP Hospital.
2. Investigation was entrusted to SI Mahender Singh PW-5 but before he could proceed another entry being DD No.36A, Ex.PW-21/C, was recorded by the Duty Officer to the effect that the Bimla had been declared ‘brought dead’ at LNJP 2010:DHC:1617-DB Hospital. SI Mahender Singh PW-5 had yet to leave the police station. Copy of DD No.36A was handed over to him. Accompanied by HC Ombir Singh PW-11, he left for LNJP Hospital. Bimla was declared dead. He took a copy of the MLC and reached the place of crime i.e. the residence of Bimla where he met Santu, the landlord of Bimla. He recorded Santu’s statement Ex.PW-4/A as per which Santu informed that Bimla and her husband were his tenants and were residing in the room immediately adjoining his room in the building and that noise from the house of the accused made him come out. He saw Bimla stabbed. She told him that her husband had stabbed him. He informed the police. Halimuddin, another tenant employed at CRPF went to the camp nearby and took Bimla to the hospital.
3. Needless to state, the appellant was found absconding and was apprehended after 25 days.
4. At the trial Santu PW-4 turned hostile and denied having heard any dying declaration made to him by Bimla. He stated that he heard some conversation of his tenants and went to the room of Bimla by which time she had already been removed to the hospital. He denied any knowledge of the incident.
5. But, on being declared hostile by the learned APP and on being cross-examined, he admitted having seen Bimla bleeding profusely and that somebody had tied a chunni over her waist.
6. From the admission made by Santu during crossexamination that he had seen Bimla bleeding profusely and a chunni tied over her waist, it is apparent that his statement in examination-in-chief that he reached the room occupied by the accused on hearing conversation from the neighbours and that he knows nothing about the reason for Bimla taken to the hospital stands contradicted.
7. Halimuddin PW-10 has fully stood by the prosecution and has deposed that he was a tenant in the same building where the appellant and his wife resided. That at 5:30 AM on 1.4.2003 he heard noise and came down. He saw Bimla lying on the ground outside her room. She told him that her husband had stabbed her. He saw the appellant near Bimla. Bimla asked him to remove her to the hospital. He went to fetch a vehicle and removed Bimla to the hospital of the battalion, where she died.
8. In view of the testimony of Halimuddin which is credible we find that it is apparent that the appellant is the culprit.
9. It assumes importance to note that the scene of the crime is the matrimonial house of the appellant and the time is 5:30 AM; a time when husbands are expected to be with their spouses.
10. The defence of the appellant that he was in Rajasthan when his wife died is rejected by us for the reason no evidence has been led to prove that the appellant was in Rajasthan. The testimony of Halimuddin shows that the appellant was in Delhi and in his matrimonial house. That the appellant absconded for 25 days is another incriminating evidence against him.
11. But, the question arises, whether the appellant intended to murder his wife or something happened i.e. a quarrel ensued between the couple and the appellant did the offending act with the intention of causing an injury on his wife.
12. No motive has surfaced. Halimuddin PW-10 also employed as a Head Constable with CRPF i.e. a colleague of Bimla, has categorically stated that he had never seen any dispute between the deceased and the accused.
13. There is a possibility that the husband and wife quarreled and in the heat of the moment appellant picked up a knife and stabbed his wife.
14. With reference to the post-mortem report of the deceased, we find four injuries, two of which are superficial incised wounds. A third is a scratch abrasion. Only one is a serious injury which is a stab wound in the abdomen. It is this injury which has proved to be fatal for the reason the intestines were damaged.
15. The trajectory of injury No.4 shoes that a knife has been pierced into the stomach cavity and pulled out the same route. No attempt has been made to turn or twist the knife inside, meaning thereby, the wound suggests a thrust into the stomach and a pull-out.
16. Under the circumstances we give benefit to the appellant with respect to his intention and hold that the evidence does not conclusively show that the appellant intended to murder his wife. The evidence shows that the appellant intended to cause an injury to his wife with a knife. Looking at the situs of the injury, it can safely be said that knowledge could be attributed to the appellant that death may be a likely result of the act. Knowledge of the degree contemplated by Section 300 Fourthly, that in all probability death would be the result may not be attributable to the appellant.
17. Accordingly, we conclude by holding that the act of the appellant establishes that he caused the homicidal death of his wife and the homicidal death does not attain the status of murder. We hold that the appellant is guilty of the offence of culpable homicide not amounting to murder and for the same we sentence the appellant to undergo rigorous imprisonment for ten years.
18. The appeal stands disposed of modifying the conviction of the appellant by setting aside the conviction of the appellant for the offence of murder. We convict the appellant for the offence of culpable homicide not amounting to murder and sentence him to undergo rigorous imprisonment for ten years.
19. Since the appellant is in jail, we direct that a copy of this order be sent to the Superintendent, Central Jail, Tihar for being supplied to the appellant.
PRADEEP NANDRAJOG, J. SURESH KAIT, J. MARCH 19, 2010 ‘dkb’