* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: April 06, 2011
Judgment Delivered On: April 08, 2011
+ CRL.A.53/1999
STATE ..... Appellant
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
versus
RUPINDER KUMAR ..... Respondent
Through: Mr.Ajay Verma, Advocate with
Mr.Anirudh Wadhwa, Mr.Gaurav
Bhattacharya, Ms.Swati Gupta and
Ms.Mari Reba, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated
26.08.1997, respondent Rupinder Kumar has been acquitted of
the charge of having committed an offence punishable under
Section 302 IPC.
2. He was charged of having murdered his wife Manju
Bala in their matrimonial house at around 11:30 PM on
24.5.1996.
Crl.A.No.53/1999 Page 1 of 16
3. The case of the prosecution unfolds on 24.05.1996,
when at about 11:30 PM, information was received by the
Police Control Room that in House No.RZ-66, Gali No.11 West
Sagarpuri (the admitted matrimonial house of the respondent
and his wife) a quarrel was taking place, which information
was conveyed to the local police station and recorded vide DD
No.37A.
4. HC Mahavir Singh (PW-4) and Ct.Mathew who were
in a PCR vehicle also picked up the wireless message flashed
and being nearest to the house in question proceeded to the
house. The respondent was admittedly found in the house
holding a screw driver in his hand. Broken pieces of bangles
were found scattered inside the house. Blood of the deceased
was noted on the clothes of the respondent and as per the
prosecution people outside the house were saying that the
respondent had killed his wife. SI Ganga Ram PW-12 to whom
DD 37A was assigned for investigation reached the house
accompanied by Ct.Vajinder PW-5 and he recorded
Ct.Mathew‟s statement Ex.PW-12/B as per which Ct.Mathew
stated that when he and HC Mahavir Singh received
information over the wireless they drove their PCR van to the
house and saw a scared crowd outside the house expressing
fear to enter inside as people were saying that the respondent
was armed with a screw driver and had murdered his wife.
The two police officers entered the house and disarmed the
respondent and by the time SI Ganga Ram and Ct.Vajinder
reached the house and therefore the screw driver as also the
respondent was handed over to the two police officers.
Crl.A.No.53/1999 Page 2 of 16
5. The dead body of Manju Bala was seized and sent
to the mortuary for post-mortem and as per post-mortem
report Ex.PW-6/A following injuries were detected on her
body:-
“1. One linear abrasion on back at lumber region
about 8cm X 0.5cm.
2. Bruises on left inguinal region 4cm X 2cm.
3. Bruises on left maxillary region 4cm X 2cm.
4. Multiple bruises on neck about 10 to 15 in
number varying from 4mm to 1mm.
5. Bruises on the right side of the ear.
6. One puncture mark on posterior triangle of
neck 8cm below right ear alone trapezius
border 3mm X 1mm in size. Blood was present
over it.”
6. The doctor conducting the post-mortem i.e.
Dr.Komal Singh PW-6 opined the cause of death to be
hemorrhagic shock caused due to right corotive artery cut by
punctured penetrating injury No.6 on the neck. Internal
examination reveal subscalpular clots on the left frontal,
temporal and occipital region. He was later on sent the screw
driver Ex.P-1 which was recovered from the hand of the
petitioner and upon the post-mortem report, at the point mark
„A‟, gave an opinion that the fatal injury on the person of
Manju Bala could possibly have been caused by the said screw
driver, sketch whereof he drew on the post-mortem report and
which shows that the screw driver has a handle of length 8.2
cm and the remainder having length of 15 cm.
Crl.A.No.53/1999 Page 3 of 16
7. Before noting the evidence led at the trial and the
reason given by the learned Trial Judge to acquit the
respondent, it would be useful to note the statement of the
respondent under Section 313 Cr.P.C. as to the cause of the
death of his wife. To the last question as to what did he have
to say, he replied as under:-
“On 24.05.1996 I became late in my office in
connection of some official work. The name of my
office is Nastle, D.L.F Centre, Connaught Place, New
Delhi as Security Guard. On that day I left my office
at about 10:45PM. I went at the bus stop of bus
route no. 704. I boarded in the said bus from Jantar
Mantar. At that time one Sh. Rakesh Kapur was also
sitting in that bus. Said Rakesh Kapur is known to
me as he is the resident of the same locality near
Madanpuri, West Sagarpur. The name of my colony
is Geetanjali Park, West Sagarpur, New Delhi. We
have talks with each other in the bus and we left
the bus at bus stand of Sagarpur, New Delhi. From
there I went to my house at Madanpuri, West
Sagarpur, New Delhi. It was about 11:45 PM when
we left the bus route No. 704 at bus stop Sagarpur.
At 11:45 PM I myself and above named Rakesh
kapur proceeded towards our respective houses
from the bus stop Sagarpur, New Delhi. At about 12
Midnight I reached at my house I saw some persons
collected in front of my house. When I entered my
house I saw my wife Manju Bala in an injured
condition lying in the kitchen in my house. At that
time she was crying for help being injured. I took
out the screw driver from the neck of my wife with
a view to help her. Meanwhile two police personals
came into my house and caught hold me.”
8. Relevant would it be to note that the respondent
admitted being in his house at the time when the police came
and at that point of time he had the screw driver in his hand.
He also admitted a crowd having collected outside his house.
Crl.A.No.53/1999 Page 4 of 16
But claimed that when he reached the house after parting
company with his friend Rakesh he saw his wife crying for help
and in an injured condition. He took out the screw driver from
the neck of his wife with a view to help her and claims that just
about then the police came and arrested him.
9. At the trial, Ashu Ahluwalia PW-3, the son of the
respondent turned hostile and claimed that he was sleeping in
the house with his brother Hemant from around 9:30 PM a
point of time when his father was not in the house and that his
neighbours broke his and his brother‟s slumber. He denied
having witnessed his father assault his mother or that the
relationship between the two were bad. Harinder Kumar PW-2,
the brother of the respondent who resides in a separate
portion of the same house also turned hostile and denied
having told the police that he had seen the respondent assault
his wife.
10. The two stated eye witnesses did not support the
case of the prosecution.
11. Evidence of a motive surfaced through the
testimony of Smt.Vedwati PW-8, the mother of Manju Bala who
stated that for 10 years Manju had returned to her parental
house due to being ill-treated by the respondent who she
imputed having illicit relations with another lady.
12. Rakesh Kapur, the person named by the respondent
as his friend in his statement under Section 313 Cr.P.C.
deposed as DW-1, and stated that he and the respondent had
left together from the bus stop at Connaught Place and had
Crl.A.No.53/1999 Page 5 of 16
reached together the bus stop at Madanpuri and parted
company with each other at around 11:45 midnight when they
went to their respective houses.
13. The learned Trial Judge has disbelieved the defence
witness on the ground that being a friend of the respondent he
would be an interested witness, a reasoning with which we do
not agree, but concur with the alternative reasoning of the
learned Trial Judge that the fact that Rakesh Kapur could not
even give the particulars of the house of the respondent belied
the claim of both that they were good friends. Now, Rakesh
Kapur claims to reside in the same colony i.e. claims to be a
resident of House No.RZ-22, West Sagarpuri. The respondent
resides in House No.RZ-66, West Sagarpuri and thus we find it
strange that in spite of claiming himself to be a good friend of
the respondent, Rakesh Kapur could not even give the house
number and particulars of the respondent.
14. In view of the fact that the two eye witnesses
turned hostile and in view of the fact that the witness to
sustain the plea of alibi, a plea which we find was fairly
tenuous in view of the defence which the respondent finally
took i.e. of being in the house with the screw driver which
caused the death of his wife in his hand i.e. a point of time
coinciding fairly closely to the point of time when his wife died,
the learned Trial Judge, in para 35 of the impugned order held
that, Quote: „The prosecution was bound to establish that
accused alone was present in the house and could have killed
his wife. Such evidence have not been led. The circumstance
has not been cogently confirmed.‟
Crl.A.No.53/1999 Page 6 of 16
15. Learned counsel for the State has rightly pounced
upon the said reasoning of the learned Trial Judge, stated in
imperfect language, but meaningfully read means that the
learned Trial Judge has held that when respondent‟s wife died
he was in the house but since the prosecution has not
established that he alone was in the house, the prosecution
could not succeed.
16. In the very next paragraph, i.e. paragraph 36 of the
impugned judgment, the Trial Judge has thrown further light on
the reasoning wherein he has observed as under:-
“36. The third circumstance is not much in
dispute. It is the case of the prosecution as well as
of the defence that when HC Mahavir Singh and
Constable P.M.Mathew of PCR came to the house
of accused then unconscious Manju was lying in
injured condition and the accused was holding
blood stained screw driver in his right hand. The
evidence create suspicion against the accused.
The circumstance is quite strong but still it has not
travelled beyond the stage of suspicion. It has
been held by the D.B. of our Hon‟ble High Court in
case reported in 1966 (2) Delhi Lawyers 26 that
suspicion cannot be clothed with the garments of
proof. Mere suspicion or suspicion circumstances
cannot relieve the prosecution of its primary duty
of proving the case against the accused persons
beyond reasonable doubts. If the process of
evidence on which the prosecution chooses to rest
its case are so brittle that they crumble when
subjected to close and critical examination so that
the whole super structure built on such insecure
foundation collapses, proof of some incriminating
circumstances, which might have given support to
merely defective evidence cannot avert a failure of
prosecution‟s case. In another case the Hon‟ble
Supreme Court has expressed similar views. In
case reported in AIR 1977 SC 530 Dateer Singh vs.Crl.A.No.53/1999 Page 7 of 16
State of Punjab, the Hon‟ble Apex Court has
observed that it is often difficult for courts of law
to arrive at the real truth in criminal cases. The
judicial process can only operate on the firm
foundations of actual and credible evidence on
record. Mere suspicion or suspicion circumstances
cannot relieve the prosecution of its primary duty
of proving its case against an accused persons
beyond reasonable doubts.”
17. We agree with learned counsel for the State that
having held that it stands established that the respondent was
in the house when his wife received the fatal injuries, in the
absence of any explanation from the side of the respondent to
explain the injuries on his wife and his plea that he was not in
the house and saw his wife injured when he entered the house
being not believable, the learned Trial Judge was bound to
consider the testimony of respondent‟s son as per whom only
his parents and the 2 brothers were the residents of the house
and that when their mother was assaulted, the 2 brothers were
sleeping. Had the learned Trial Judge considered said fact i.e.
the testimony of Ashu Ahluwalia PW-3, the son of the
respondent, it would have dawned on the learned Trial Judge
that there were only 4 residents of the house. The
respondent, his wife Manju Bala and their two sons; who were
minor. This would demolish the reasoning of the learned Trial
Judge that there was no evidence to the effect that there was
no evidence to rule out the presence of somebody else. That
apart, if the prosecution established that the respondent was
in the house when his wife was injured, he had to satisfactorily
explain as to how his wife received injuries. In the absence of
any satisfactory explanation, Section 106 of the Evidence Act
had to be applied and a presumption permissible to be raised
Crl.A.No.53/1999 Page 8 of 16
under Section 114 of the Evidence Act ought to have been
raised. It is apparent that the learned Trial Judge has not
posed the questions which arose to be answered.
18. Further, the learned Trial Judge did not even bother
to consider the post-mortem report Ex.PW-6/A and the injuries
noted therein which were suffered by Manju Bala. We have
noted the injuries suffered by Manju Bala in para 5 above.
There are 6 injuries suffered by the unfortunate lady. Dead
bodies tell the tale of their death. What does Manju Bala‟s
dead body have to tell? Injury No.4 i.e. multiple bruises on the
neck being 10 to 15 tell us that Manju Bala was caught by her
neck. She had struggled to free herself but the vice like
strangle-hold did not let her go free and in the struggle, which
had lasted for some time, she was continuously caught hold of
by the neck. Injury No.1 is an abrasion on the back at lumber
region which shows a hefty blow with a blunt object and
possibly the fist. The second and the third injuries, being
bruises on the left inguinal and maxillary region tell us that
when Manju Bala was held on by her neck, 2 more blows other
than the 1 at the back was struck with a fist on her upper jaw
and groin region. The fifth injury i.e. bruises on right side of
ear tell us that she was struck blows on the right side of the
ear. There then remains the sixth injury i.e. the puncture mark
on the posterior triangle of neck which shows the screw driver
in question being pierced into her neck. Internal injuries,
being clots detected in the subscalpular, frontal and temporal
areas also tell a story in tune with injury No.2, 3 and 5 that
extravasations of the arteries was the result when the face and
the ear region of Manju Bala was pounded. The 6 external
Crl.A.No.53/1999 Page 9 of 16
injuries and the internal injuries i.e. the clots due to
extravasations when the arteries ruptured tell a story which
the learned Trial Judge unfortunately could not hear.
19. The story told is that whosoever assaulted Manju
Bala did so out of anger and not for any other reason. Now, it
is either the respondent who killed Manju Bala or it was some
other outsider. If it was an outsider, the only motive could be
to seek revenge and kill Manju Bala or enter the house to
commit robbery and upon finding resistance from Manju Bala
to kill her. In said scenario, the outsider would have straight
away lodged the fatal assault to silence Manju Bala and not
pound her with a fist thereby making her cry in pain thereby
attracting rescue. Further, if the motive of the assailant was to
seek revenge and kill Manju Bala he would have entered the
house armed with a knife and not an ordinary screw driver. If
the motive was to commit robbery, the robber would have
entered the house with a knife as the time was such that a
robber would have reasonable expected the house inmates to
be awake and he certainly would have planned to silent them
into submissions by threatening them with a deadly/dangerous
weapon. The ordinary household screw driver being the
weapon of offence also tells us a part of the story which the
learned Trial Judge could not hear. It tells us that the screw
driver was lying in the house and not brought by an outsider
for if it was an outsider, on the two possible motives which we
have discussed hereinabove, the weapon with him would not
be an ordinary screw driver.
Crl.A.No.53/1999 Page 10 of 16
20. The injuries on Manju Bala are obviously the result
of somebody taking out his anger on Manju Bala; the ordinary
household screw driver used as the weapon of offence adds on
to the theory that it was an insider‟s job. We have to further
factor in the testimony of HC Mahavir Singh PW-4 which finds
corroboration from the FIR Ex.PW-9/A and suffice would it be to
state that unlike statements under Section 161 Cr.P.C.,
statements/complaints under Section 154 Cr.P.C. can be used
for corroboration, as per which testimony HC Mahavir and
Ct.Mathew proceeded to the house of the respondent and the
deceased upon hearing information that a quarrel was going
on in the house. It is true that the person who gave the
information has not been examined, but the fact that
information of a quarrel was conveyed to the police is an
important piece of evidence proved through the testimony of
HC Mahavir. This corroborates with the injuries on the
deceased which suggests that she was beaten by somebody
with that somebody clinching his hand in a fist. Broken
bangles found scattered in the house as depicted in the site
plan Ex.PW-7/A prepared by Insp.Gurudev Singh PW-7
corroborate a quarrel. Blood has been lifted from inside a
room near the kitchen and the internal courtyard of the house.
The scene of the crime, with evidence of a quarrel inside the
house and the assault on the deceased are all conclusively
indicative of an insider‟s job. The fear of the crowd outside as
deposed to by HC Mahavir also indicates that the assailant was
inside the house. If the assailant had escaped and as claimed
by the respondent he came to the house later, the crowd
would have joined in the act of rescue and not stood fearfully
Crl.A.No.53/1999 Page 11 of 16
outside. The conduct of the respondent is also important. If
he claims that he saw his wife crying and injured with a screw
driver stuck in her neck when he reached the house, his
instant reaction would be to pull out the screw driver, which he
claims he did, but then not sit around. He would have lifted
the unfortunate lady in his arms to comfort her and not only
summons a rescue for her by yelling out to the neighbours to
help him but by lifting her and carrying her outside the house,
to be transported to a hospital where medical aid could be
given to her. We note that as per the post-mortem report
Manju Bala weighed 50 kg and was a lady of thin built. The
conduct of the respondent is in conflict with that of an
innocent and a loving husband and is in consonance with the
conduct of a husband having a motive to assault his wife.
21. Conscious of the law that a verdict of acquittal
reinforces the presumption of innocence in favour of an
accused, but law being that where a Trial Judge has ignored
vital and relevant evidence or has ignored vital and relevant
circumstances, it becomes the duty of the Appellate Court to
have a re-look at the evidence. We have already highlighted
hereinabove the incorrect reasoning of the learned Trial Judge
in paragraphs 35 and 36 of the impugned decision, we have
highlighted hereinabove a non-discussion by the learned Trial
Judge with respect to the injuries on the deceased; we have
highlighted hereinabove the non-discussion by the learned
Trial Judge with respect to an ordinary household screw driver
being the weapon of offence; we have highlighted hereinabove
the non-discussion by the learned Trial Judge to the theory of
an outsider being the assassin with reference to the injuries on
Crl.A.No.53/1999 Page 12 of 16
the deceased and the weapon of offence; we have highlighted
hereinabove the non-consideration by the learned Trial Judge
to the evidence of Ashu i.e. the son of the deceased and the
respondent as to the two sons and their parents being the only
residents of the house; we have discussed hereinabove the
non-consideration by the learned Trial Judge qua the conduct
of the respondent with reference to his claim of entering the
house and seeing his wife lying injured and crying for help.
22. These are our reasons for having a re-look at the
evidence and for the re-look given by us and as discussed
hereinabove, we see no escape from the conclusion that the
evidence on record unerringly points the finger of acquisition
upon the respondent and rules out his innocence.
23. The question would then be as to what offence has
been committed by the respondent.
24. He has beaten his wife and the assault on her
clearly indicates an intention to injure the unfortunate lady and
not to kill her. As opined in the decisions reported as AIR 1990
SC 1459 Vijayee Singh Vs. State of U.P. and AIR 2001 SC 2902
Kashi Ram & Ors. Vs. State of M.P., it is the duty of a Court to
look at all the probabilities and circumstances emerging from
the evidence at a criminal trial and thereafter find out that
elusive nugget of truth which is the object of discovery at
every criminal trial.
25. The totality of the evidence probablizes that being
angry with his wife, the respondent launched a physical
assault on her. At the first instance he caught his wife by the
Crl.A.No.53/1999 Page 13 of 16
scuff of her neck and held on to the neck while pounding her
with fist blows, some of which were directed towards the face
and the occipital region. Finding an object, which
unfortunately happened to be an ordinary household screw
driver, when in a fit of rage, little realizing what would be the
consequences of his further act, respondent picked up the
screw driver and jabbed the same in the neck of his wife and
as the blade of the screw driver pierced the soft neck tissue it
cut an artery and the excessive resultant bleeding coupled
with the extravasations of the arteries in the occipital, frontal
and temporal region took their toll.
26. Now, the subscalpular clots in the occipital, frontal
and temporal area of the deceased are evidence of the ferocity
of the blows with which the respondent struck his wife and any
ordinary person can safely be fastened with the knowledge of
knowing that if he strikes fist blows on the occipital and
temporal region, extravasations of the artery may take place
and death being the likely result of the act. Further, a person
who jabs a screw driver in the neck of a person can safely be
fastened with the knowledge of knowing that he may cut
through the trachea i.e. the wind pipe, which may prove fatal
or cut any of the arteries or veins carrying blood to and from
the brain, which may prove fatal.
27. Thus, for the acts done by the respondent, while it
may not be permissible to draw an inference that he intended
to kill his wife or intended to cause any particular injury to his
wife, it can safely be said that he can be attributed knowledge
that his acts are likely to result in the death of his wife and for
Crl.A.No.53/1999 Page 14 of 16
which acts, in light of the knowledge which we can impute to
the respondent one can safely say that the respondent has
committed an offence punishable under Part II of Section 304
IPC.
28. The date of the crime is 24.5.1996. The respondent
was arrested at the spot. He was acquitted on 26.8.1997. It is
thus apparent that the respondent has remained in custody for
one year and three months.
29. It is no doubt true that we are deciding the State
appeal as a result of leave to appeal be granted in
Crl.M.No.5758/1998 after over 12 years of leave to appeal
being sought, but the nature of the brutal assault launched by
the respondent on his wife has also to be kept in mind and
thus blending the two i.e. 12 years taken for the appeal to be
decided and the act of brutality committed by the respondent,
we think that the appropriate sentence to be imposed should
be 5 years RI to be suffered by the respondent.
30. Disposing of the appeal we set aside the impugned
judgment and order dated 26.8.1997 acquitting the
respondent. We convict the respondent for the offence of
culpable homicide of his wife but not amounting to murder and
punish him for the offence punishable under Section 304 Part II
IPC and direct him to undergo rigorous imprisonment for 5
years and needless to state he would be entitled to the benefit
of Section 428 Cr.P.C. The respondent is directed to surrender
and suffer the remaining sentence.
Crl.A.No.53/1999 Page 15 of 16
31. Copy of this decision be sent to the Superintendent
Central Jail Tihar for his record and entry in the Jail Register.
TCR may be returned.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
APRIL 08, 2011
mm
Crl.A.No.53/1999 Page 16 of 16