Harihar Vs. Govt. of Nct of Delhi (State) - Court Judgment

SooperKanoon Citationsooperkanoon.com/680503
SubjectCriminal
CourtDelhi High Court
Decided OnDec-16-2005
Case NumberCRLA 244/1997
Judge Manmohan Sarin and; Manju Goel, JJ.
Reported in126(2006)DLT566; I(2006)DMC242; 2006(86)DRJ438
ActsIndian Penal Code (IPC) - Sections 300, 302 and 304
AppellantHarihar
RespondentGovt. of Nct of Delhi (State)
Appellant Advocate V.K. Raina, Adv
Respondent Advocate Ravinder Chadha and ; Jagdish Prasad, Advs.
DispositionAppeal dismissed
Cases ReferredRawel Singh v. State
Excerpt:
criminal - murder - conviction - section 302 of the indian penal code 1860 (ipc) -appellant convicted for murder of deceased - conviction based on testimony of witnesses and dying declarations - present appeal - held, version of witnesses was corroborated by medico-legal case (mlc) - veracity of mlc fully established - prosecution proved guilt of appellant beyond reasonable doubt - conviction upheld - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - the trial court has further taken note of other lapses on the part of investigation and prosecution like failure to cite witnesses who were present near the hutment of the deceased and the failure of the investigating officer to seize the chappals of the accused on his earlier visit when he seized other articles like the plastic can with kerosene residue and certain other articles. he like pw-3 geeta deposes that the appellant had been visiting his mother, the deceased, and had also started staying in the jhuggi with the deceased. ) 1344 as well as in the case of jhabbar singh v. he is satisfied only by merely saying that he never knew the deceased and so had not committed any offence.manju goel, j.1. the appellant was convicted under section 302 ipc for committing murder of one urmila, a woman he lived with. urmila was admitted to lnjp hospital with 95% burns on 12.10.1994 at 4.45 a.m. she died in the wee hours of 14.10.1994. the fir ex.pw 1/a (bearing no.549/94 of p.s. janakpuri) was registered on the basis of the mlc, ex.pw6/a.2. the appellant was arrested on the basis of the statements of som nath, the son of urmila, the deceased and geeta, the sister of the deceased. the appellant was challaned and eventually convicted vide the impugned judgment.3. the conviction is based primarily on the testimony of som nath pw-2, geeta pw-3 and the dying declarations made to the dr. rakesh dogra pw-6 of the lnjp hospital. the presence of the accused is proved by the chappals he left behind while running away after committing the crime. the defense has tried to pick holes in the prosecution case by challenging the veracity of the mlc as the memo of brief facts prepared soon after the death of urmila has not mentioned the dying declaration in the mlc. the possibility of the deceased being capable of making a statement at that time is also disputed as she came to the hospital with 95% burns and must have been in utter pain. the testimony of pw-2 is assailed as a version of a tutored witness. geeta's testimony is also challenged as she stated that the accused was arrested at that very time, even before the deceased was taken to the hospital, which is quite different from the prosecution story and the version of other witnesses. the trial court has taken note of all the above arguments of the defense. the trial court has further taken note of other lapses on the part of investigation and prosecution like failure to cite witnesses who were present near the hutment of the deceased and the failure of the investigating officer to seize the chappals of the accused on his earlier visit when he seized other articles like the plastic can with kerosene residue and certain other articles. yet the trial court found the evidence so sufficient as to complete the chain without break and to leave no doubt about the guilt of the accused. with this background we can proceed to examine the evidence in the case.4. asi sadanand, the investigating officer received dd no. 41 to the effect that a woman had been burnt in the jhuggis of sahyog vihar and he visited the spot and then came to the ddu hospital and then to the jpn hospital where the deceased had actually been taken before he collected the mlc. he deposes that the deceased was unfit for statement and there was no eye witness present in the hospital. he came back to the spot and seized a plastic can with half a litre of kerosene oil, a burnt bidi and a match box and some burnt clothes. on his second visit to the hospital he met geeta and took her statement. the appellant was arrested thereafter. the chappals of the appellant were recovered on the disclosure of the appellant from the place of occurrence.5. the appellant says that the chappals do not belong to him. pw-3 geeta, however, proved that the chappals belonged to the appellant. the appellant was made to wear the chappals in court and they corresponded to the size of the appellant. thus despite the denial of the appellant, the chappals have been proved to have belonged to the appellant. this also establishes the presence of the appellant at the spot at the time of the incident of fire.6. in this light we can now look at the evidence of pw-2 and pw-3. pw-2 is som nath, the son of the deceased. he was in the same jhuggi almost minutes before the incident. he like pw-3 geeta deposes that the appellant had been visiting his mother, the deceased, and had also started staying in the jhuggi with the deceased. he further deposes that on that day she had returned from ramlila with the appellant. he woke up in the night hearing the two quarreling. as he objected to the quarrel, he was sent out of the jhuggi and soon thereafter he saw his mother coming out of the jhuggi in flames. he says that his mother was saying that the appellant had set her on fire after pouring kerosene oil on her. his testimony could not be shaken in any way in his cross- examination. his presence there was natural. no motive to falsely implicate the appellant in a case for murder or attempt to murder has been imputed to this witness. we do not see any reason to disbelieve the witness.7. pw-3 geeta was living in another jhuggi close by. she corroborates pw- 2 in that the deceased was saying that the appellant had burnt her. her presence was also equally natural. she had come out of her jhuggi on hearing the noise. her version differs with that of the prosecution in that she says that the appellant was apprehended and arrested even before the deceased was taken to the hospital, but since she is a natural witness, the contradiction between her version and that of the investigating officer, regarding the arrest of the appellant, has to be explained as loss of memory or confusion.8. but even if we ignore the testimony of geeta, we find corroboration of the version of pw-2 in the mlc. as per the mlc ex. pw6/a , proved by the pw- 6, the doctor who recorded the mlc, the deceased herself gave the history of having been set on fire by one hariya, a man known to her son. the mlc also mentions that the patient was conscious and oriented. in the witness box the doctor has reiterated that she was fit to make a statement at that time.9. the veracity of the mlc is fully established by the examination of the doctor. the mere fact that in the brief facts the investigating officer has made a default in recording such a dying declaration given to the doctor or to people present outside her jhuggi cannot destroy the evidentiary value of the mlc. mr. raina, counsel for the appellant submitted that the mlc is a fabricated document. but during trial no such point had been raised. nor was the doctor at all cross examined on this aspect. the doctor has categorically stated that the patient at that time was fully oriented. so the plea that the deceased could not have been in a fit state to make the declaration cannot be accepted.10. the counsel for the appellant even disputes the presence of pw-2 by pointing out that he did not accompany the deceased to hospital. pw-2 was merely a boy of twelve at that time. it was only natural that he was left behind. his statement was recorded on that very day without any occasion of tutoring him. as pointed out earlier his version is natural and has no symptom of falsehood. we find no force in the submissions that the pw-2 was not present at that time outside the jhuggi in which the offence took place.11. a faint attempt was made to argue that the case falls only under section 304 and not under section 302 ipc. we cannot agree. the defense version is not one of an attack in a fit of passion. it is one of complete denial. the appellant has even denied any acquaintance with the deceased. there is no evidence of the nature of the quarrel.12. a faint attempt was made by the defense to bring the offence within exception 4 of section 300 of the ipc. exception 4 reads as under:exception 4.-culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.13. the evidence in the present case shows that there was a quarrel. pw-2 son of the victim has stated that he woke up on account of a quarrel and when he wanted to intervene he was beaten by his mother and was turned out of the jhuggi. apart from this there is no evidence as to what the quarrel was over. nor is there evidence that the quarrel became a fight. there is no evidence about the nature of insinuation if any. nor is there any evidence that the deceased had said something so provocative as to give rise to a heat of passion. it is to be noted that this exception has used both the words fight and quarrel. a sudden quarrel is not the same thing as sudden fight. fight would normally mean a combat, that is, exchange of blows. reference can be made to the judgment of the supreme court in the case of ravinder kumar v. state 1980 rajdhani law reporter 120, thannoo v. state : air1959all131 , jaswant singh v. state of u.p. 1998 scc (cri.) 1344 as well as in the case of jhabbar singh v. the state 1981 a l j 54. it is further to be seen that in this case it cannot be said that the accused had not taken undue advantage of his situation. the deceased was unarmed and was alone in the jhuggi. she was of the weaker sex. the accused poured kerosene oil on her and set her ablaze. it is clear that the accused took advantage of his superior physical position and availability of kerosene in the jhuggi. his act was also cruel. in the case decided by this court in rawel singh v. state : 65(1997)dlt503 it was held that when the accused had poured kerosene on his wife and set her ablaze he had acted in a cruel manner.14. at the cost of repetition, we are constrained to say that the accused himself has not made out any such defense as none of the witnesses has been questioned about the nature of quarrel or about there being any fight. his simple case is of denial. he is satisfied only by merely saying that he never knew the deceased and so had not committed any offence. the prosecution, however, has proved the case to the hilt. 15. in view of the above analysis, we find that the trial court has not erred in convicting the appellant under section 302 of the ipc. the order of sentence being of life, that is, minimum for the offence, calls for no interference. the appeal is accordingly dismissed.
Judgment:

Manju Goel, J.

1. The appellant was convicted under Section 302 IPC for committing murder of one Urmila, a woman he lived with. Urmila was admitted to LNJP Hospital with 95% burns on 12.10.1994 at 4.45 a.m. She died in the wee hours of 14.10.1994. The FIR Ex.PW 1/A (bearing no.549/94 of P.S. Janakpuri) was registered on the basis of the MLC, Ex.PW6/A.

2. The appellant was arrested on the basis of the statements of Som Nath, the son of Urmila, the deceased and Geeta, the sister of the deceased. The appellant was challaned and eventually convicted vide the impugned judgment.

3. The conviction is based primarily on the testimony of Som Nath PW-2, Geeta PW-3 and the dying declarations made to the Dr. Rakesh Dogra PW-6 of the LNJP hospital. The presence of the accused is proved by the chappals he left behind while running away after committing the crime. The defense has tried to pick holes in the prosecution case by challenging the veracity of the MLC as the memo of brief facts prepared soon after the death of Urmila has not mentioned the dying declaration in the MLC. The possibility of the deceased being capable of making a statement at that time is also disputed as she came to the hospital with 95% burns and must have been in utter pain. The testimony of PW-2 is assailed as a version of a tutored witness. Geeta's testimony is also challenged as she stated that the accused was arrested at that very time, even before the deceased was taken to the hospital, which is quite different from the prosecution story and the version of other witnesses. The trial court has taken note of all the above arguments of the defense. The trial court has further taken note of other lapses on the part of investigation and prosecution like failure to cite witnesses who were present near the hutment of the deceased and the failure of the investigating officer to seize the chappals of the accused on his earlier visit when he seized other articles like the plastic can with kerosene residue and certain other articles. Yet the trial Court found the evidence so sufficient as to complete the chain without break and to leave no doubt about the guilt of the accused. With this background we can proceed to examine the evidence in the case.

4. ASI Sadanand, the investigating officer received DD No. 41 to the effect that a woman had been burnt in the jhuggis of Sahyog Vihar and he visited the spot and then came to the DDU hospital and then to the JPN Hospital where the deceased had actually been taken before he collected the MLC. He deposes that the deceased was unfit for statement and there was no eye witness present in the hospital. He came back to the spot and seized a plastic can with half a litre of kerosene oil, a burnt bidi and a match box and some burnt clothes. On his second visit to the hospital he met Geeta and took her statement. The appellant was arrested thereafter. The chappals of the appellant were recovered on the disclosure of the appellant from the place of occurrence.

5. The appellant says that the chappals do not belong to him. PW-3 Geeta, however, proved that the chappals belonged to the appellant. The appellant was made to wear the chappals in court and they corresponded to the size of the appellant. Thus despite the denial of the appellant, the chappals have been proved to have belonged to the appellant. This also establishes the presence of the appellant at the spot at the time of the incident of fire.

6. In this light we can now look at the evidence of PW-2 and PW-3. PW-2 is Som Nath, the son of the deceased. He was in the same jhuggi almost minutes before the incident. He like PW-3 Geeta deposes that the appellant had been visiting his mother, the deceased, and had also started staying in the jhuggi with the deceased. He further deposes that on that day she had returned from Ramlila with the appellant. He woke up in the night hearing the two quarreling. As he objected to the quarrel, he was sent out of the jhuggi and soon thereafter he saw his mother coming out of the jhuggi in flames. He says that his mother was saying that the appellant had set her on fire after pouring kerosene oil on her. His testimony could not be shaken in any way in his cross- examination. His presence there was natural. No motive to falsely implicate the appellant in a case for murder or attempt to murder has been imputed to this witness. We do not see any reason to disbelieve the witness.

7. PW-3 Geeta was living in another jhuggi close by. She corroborates PW- 2 in that the deceased was saying that the appellant had burnt her. Her presence was also equally natural. She had come out of her jhuggi on hearing the noise. Her version differs with that of the prosecution in that she says that the appellant was apprehended and arrested even before the deceased was taken to the hospital, but since she is a natural witness, the contradiction between her version and that of the investigating officer, regarding the arrest of the appellant, has to be explained as loss of memory or confusion.

8. But even if we ignore the testimony of Geeta, we find corroboration of the version of PW-2 in the MLC. As per the MLC Ex. PW6/A , proved by the PW- 6, the doctor who recorded the MLC, the deceased herself gave the history of having been set on fire by one Hariya, a man known to her son. The MLC also mentions that the patient was conscious and oriented. In the witness box the doctor has reiterated that she was fit to make a statement at that time.

9. The veracity of the MLC is fully established by the examination of the doctor. The mere fact that in the brief facts the investigating officer has made a default in recording such a dying declaration given to the doctor or to people present outside her jhuggi cannot destroy the evidentiary value of the MLC. Mr. Raina, counsel for the appellant submitted that the MLC is a fabricated document. But during trial no such point had been raised. Nor was the doctor at all cross examined on this aspect. The doctor has categorically stated that the patient at that time was fully oriented. So the plea that the deceased could not have been in a fit state to make the declaration cannot be accepted.

10. The Counsel for the appellant even disputes the presence of PW-2 by pointing out that he did not accompany the deceased to hospital. PW-2 was merely a boy of twelve at that time. It was only natural that he was left behind. His statement was recorded on that very day without any occasion of tutoring him. As pointed out earlier his version is natural and has no symptom of falsehood. We find no force in the submissions that the PW-2 was not present at that time outside the jhuggi in which the offence took place.

11. A faint attempt was made to argue that the case falls only under Section 304 and not under Section 302 IPC. We cannot agree. The defense version is not one of an attack in a fit of passion. It is one of complete denial. The appellant has even denied any acquaintance with the deceased. There is no evidence of the nature of the quarrel.

12. A faint attempt was made by the defense to bring the offence within Exception 4 of Section 300 of the IPC. Exception 4 reads as under:

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

13. The evidence in the present case shows that there was a quarrel. PW-2 son of the victim has stated that he woke up on account of a quarrel and when he wanted to intervene he was beaten by his mother and was turned out of the jhuggi. Apart from this there is no evidence as to what the quarrel was over. Nor is there evidence that the quarrel became a fight. There is no evidence about the nature of insinuation if any. Nor is there any evidence that the deceased had said something so provocative as to give rise to a heat of passion. It is to be noted that this Exception has used both the words fight and quarrel. A sudden quarrel is not the same thing as sudden fight. Fight would normally mean a combat, that is, exchange of blows. Reference can be made to the judgment of the Supreme court in the case of Ravinder Kumar v. State 1980 Rajdhani Law Reporter 120, Thannoo v. State : AIR1959All131 , Jaswant Singh v. State of U.P. 1998 SCC (Cri.) 1344 as well as in the case of Jhabbar Singh v. The State 1981 A L J 54. It is further to be seen that in this case it cannot be said that the accused had not taken undue advantage of his situation. The deceased was unarmed and was alone in the jhuggi. She was of the weaker sex. The accused poured kerosene oil on her and set her ablaze. It is clear that the accused took advantage of his superior physical position and availability of kerosene in the jhuggi. His act was also cruel. In the case decided by this Court in Rawel Singh v. State : 65(1997)DLT503 it was held that when the accused had poured kerosene on his wife and set her ablaze he had acted in a cruel manner.

14. At the cost of repetition, we are constrained to say that the accused himself has not made out any such defense as none of the witnesses has been questioned about the nature of quarrel or about there being any fight. His simple case is of denial. He is satisfied only by merely saying that he never knew the deceased and so had not committed any offence. The prosecution, however, has proved the case to the hilt.

15. In view of the above analysis, we find that the trial court has not erred in convicting the appellant under Section 302 of the IPC. The order of sentence being of life, that is, minimum for the offence, calls for no interference. The appeal is accordingly dismissed.