Full Judgment
$~4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: November 25, 2014 + CRL.A. 1145/2011 JAI KARAN YADAV Represented by: ..... Appellant Mr.Narinder Sharma, Advocate with Mr.J.P.Singh, Advocate versus STATE Represented by: ..... Respondent Mr.Varun Goswami, APP Insp.Satish Kumar, PS Bhalsava Dairy CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA PRADEEP NANDRAJOG, J.
(Oral) 1. Kaushalya Yadav (deceased) was the wife of the appellant. Learned counsel for the appellant does not dispute said fact. Kaushalya Yadav was injured in her matrimonial house on July 14, 2010 at 10:30 PM and appellant was present in the house is a fact not disputed by the appellant. The fact that the appellant was present in his house when his wife was injured is proved by the MLC Ex.PW-5/A of Kaushalya Yadav which records that at 12:05 i.e. soon after midnight on July 15, 2010 the appellant took his wife in an injured condition to Babu Jagjivan Ram Hospital where she was declared dead.
2. Appellant’s MLC Ex.PW-4/A records that at 2:25 PM on July 15, 2010, when appellant was examined bruises over the lower back were noted.
3. Khushi PW-3, aged 8 years when she deposed in Court on January 03, 2011 is the person on whose statement Ex.PW-3/A the FIR was registered.
4. Khushi was aged 7 years when she made her statement soon after the incident at which her mother was injured. There is no evidence that Khushi was tutored to make the statement.
5. In Ex.PW-3/A Khushi told the Investigating Officer Insp.Dharam Pal PW-23, a fact confirmed by him in his deposition in Court, that in the night of July 14, 2010 her father was being served dinner by her mother and something said by her mother infuriated her father who started beating her mother. She tried to intervene but could not do anything because her father picked up a thick stick lying in the room and started hitting her mother. She ran out crying for help. Sanjay and Sunil who resided in the neighbourhood responded to the summons of rescue.
6. Sanjay PW-6 has corroborated the testimony of Khushi.
7. Post-mortem report Ex.PW-21/A of Kaushalya records the following injuries:
“1. Rail road pattorn bruise on left forearm in the middle 3 cm x 2 cm, on top of left shoulder 6 cm x 4 cm, multiple on back of chest size varying from 7 cm x 3 cm to 4 cm x 1 cm, also on right elbow.
2. Split laceration of left pinnae.
3. Lacerated wound on right occipital region 7 cm x 1 cm x bone deep just behind right pinnae.
4. Lacerated wound on right parietal region 4 cm x 1 cm x bone deep.
5. Lacerated wound V shaped on left occipital region behind left pinnae.
6. Lacerated wound on left parietal region 5 cm x 1 cm x 0.5 cm.”
8. We have perused the testimony of Khushi and we do not find anything to discredit her testimony. As noted above, Sanjay Sharma PW-6 has corroborated the testimony of Khushi and has proved her contemporaneous utterances of crying : please come and save my mother who was being beaten by my father. Sanjay Sharma has withstood the test of cross examination.
9. But we note with pain and regret that he has unnecessarily been declared hostile on a very trivial aspect of the matter : whether Khushi told him that her father had hit her mother on the head.
10. Now, the learned Additional Public Prosecutor was oblivious to the fact that when young Khushi, aged 7 years, saw her mother being hit by her father she would not go about telling people the exact details of the assault for the reason her job was only to shout so that on hearing her shouts the neighbours would rush to the house and rescue her mother.
11. The only argument advanced by learned counsel for the appellant is that the testimony of Khushi would evidence that the assault by the appellant was preceded by a fight between the husband and the wife and thus the offence is culpable homicide not amounting to murder.
12. It is true that Khushi has said that before the assault took place, when her father was eating food something said by her mother irritated her father.
13. But that would not be a case of the accused acting upon a sudden quarrel.
14. Assaulting upon a sudden quarrel would mean that a heated dialogue preceded the assault and the cause of the heated dialogue was remonstration : something asserted forcefully by the deceased and opposed by the accused or vice-versa something forcefully asserted by the accused and denied by the deceased.
15. The benefit of lowering the gravity of a homicidal death when the accused acts upon a sudden quarrel, requires the quarrel to be of a kind where there is a temporary loss of self-control by a reasonable person. It is not intended for the hot heated who lose their cool without any rhyme or reason. It is not intended for those who are intemperate. It is not intended for the hasty, hot tampered and hyper sensitive persons.
16. We have noted the injuries on the person of the deceased which shows that the appellant mercilessly hit his wife with his fist repeatedly on her back. Injury No.1 shows repeated fist blows on the back. The same injury shows that the left forearm was virtually clamped by the other hand of the appellant i.e. with one hand the appellant held on to the left forearm of his wife so tightly that a rail road pattorn bruise resulted. He pounded her back with the wrist clinched. He then picked up a thick stick and repeatedly hit her on the head. Injuries 2 to 6 are a witness to said assault.
17. The post-mortem shows that there was a fracture of the right parietal and occipital bone. Sub-dural haematoma on front and sub-arachnoid haemorrhage all over the fractured area under the posterior cranial fossae could be seen.
18. The cause of death obviously had to be, as recorded in the post- mortem report, craneocerebral damage.
19. The act committed by the appellant is clearly resulting in the offence of murder and not culpable homicide not amounting to murder.
20. While dismissing the appeal we affirm the impugned decision dated April 19, 2014 convicting appellant for the offence of having murdered his wife. We uphold the order on conviction dated April 25, 2011 directing appellant to undergo imprisonment for life and pay fine in sum of `25,000/-, upon realization of which, `20,000/- to be invested in FDRs for the benefit of the two children of the appellant.
21. TCR be returned. (PRADEEP NANDRAJOG) JUDGE (MUKTA GUPTA) JUDGE NOVEMBER25 2014 mamta