Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
h
% Date of Decision: 19 January, 2010
+ CRL.APPEAL NO.78/2005
RADHA KRISHAN NAIR ……Appellant
Through: Mr.K.K.Rai, Sr. Advocate with
Mr.Bankey Bihari and Mr.S.K.Pandey,
Advocates
Versus
STATE ……Respondent
Through: Mr.M.N.Dudeja, Advocate
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 the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J. (Oral)
1. With reference to the eye witness account deposed
to by Sanjay Kumar PW-1, the son of the appellant and finding
corroboration to what he said and saw through the testimony of
Neetu PW-3, vide impugned judgment and order dated
CRL.A.78/2005 Page 1 of 13
16.11.2004, the appellant has been convicted for the offence of
having murdered his wife. The learned Trial Judge has also
noted that as per the report Ex.PW-19/C of the serologist, the
blood group of the deceased was „O‟ and that blood of the same
group was detected on the lungi and the underwear of the
appellant which were seized at the spot where the crime was
committed; for the reason the appellant was apprehended in
the house when he committed the crime.
2. That Sunita, the wife of the appellant died a
homicidal death is not in dispute. The post-mortem of Sunita‟s
dead body was conducted by Dr.Gaurav Vinod Jain PW-5 and as
per the post-mortem report Ex.PW-5/A as many as 7 injuries
were noted on her body. The same are as under:-
“1. A deep cut throat incised wound, 12.5 cms x 6.8
cms x 3 cms present transversely over the front of
neck, 6 cm s above the supra sterna notch. The injury
was present at the lower level of thyroid cartilage and
had cut through the under line thyroid cartilage,
trachea, esophagus and jugular vessels of both the
sides. The sternomastoid muscles on both sides also
cut partially.
2. Muscle deep incised wound, 6.3 cm x 1.5 cm
present transversely on the left side of neck 2 cm
above the left lateral part of injury No.1.
3. Incised wound 3.1 cm x .5 cm over right index
finger on the outer side near the face. The wound is
superficial.
CRL.A.78/2005 Page 2 of 13
4. Superficial incised wound 1.5 cm x .3 cm on the
palmer aspect of right ring finger, transversely over
the distal interphalyngeal joint.
5. Superficial incised wound 1.2 cm x .3 cm present
transversely over the palmer aspect of middle of left
ring finger.
6. Linear fresh abrasion 3 cm x .3 cm present
obliquely over the left side of chin.
7. Fresh abrasion 3.4 cm x 3 cm over the right
buttock.”
3. Internal examination revealed that death was a
result of haemorrhagic shock due to injury No.1. As noted
above, injury No.1 was a deep cut on the neck resulting in the
trachea, esophagus and the jugular vain of both sides of neck
being cut.
4. It may be noted that all injuries were opined to be
ante-mortem.
5. As deposed to by Sanjay Kumar PW-1 who was aged
12 years when he deposed on 7.5.2001; the date of the crime
was 3.7.2000; the place was the residential house of the
appellant and the deceased.
6. Sanjay Kumar PW-1 deposed that his mother was
dead. She died on 3.7.2000 and was killed by her father who
was present in Court. That the weapon of offence was a knife.
His father cut the throat of his mother. The incident took place
CRL.A.78/2005 Page 3 of 13
at about 10:15 PM. There used to be quarrels between his
parents; cause whereof was not known to him. His father cut
the throat of his mother. He was making his books. Next day
they were to go to Kerala. His mother had cooked noodles. His
brother Aditya was sleeping in the house. He tried to pull his
father from the back to save his mother but his father pushed
him aside. There was a lot of bleeding due to injury inflicted by
his father on the throat of his mother. His mother died in the
house itself. The house No. was O-3/2, Police Colony, Andrews
Ganj, New Delhi. On seeing the incident he shouted. Neetu,
their neighbour came to the house when he opened the door.
Khazan Singh, another neighbour came to the house.
7. On being cross examined he stated that his father
used to take him to a temple. His father had taken him to
Haridwar. On returning from Haridwar his father told him that
his mother was un-chaste. His father told him to tell his mother
that she should live properly. There used to be frequent quarrel
between his parents. He was not aware of any personal
relationship which his mother had with any person. The day
next to the incidence they were to go to Kerala but his mother
was not wanting to go to Kerala as they had recently come from
Kerala and would say as to what would people say if they
CRL.A.78/2005 Page 4 of 13
returned to Kerala. That his father made the program of going
to Kerala of his own without telling anyone. That he did not
know why his father wanted to send his mother to Kerala. His
father had purchased the ticket of Mangla Express from Delhi to
Kerala. He denied that his mother had mixed some intoxicating
things in the noodles due to which his brother became sleepy.
He volunteered further information that he ate the noodles and
did not feel sleepy. That he ate the noodles from the plate of
his father and younger brother. He admitted the suggestion that
his father refused to eat noodles but stated that he did not know
the reason why he refused to do so. He admitted having told
the police that on the night of the incident his father told him
that his mother had mixed sleeping pills in the noodle. He
admitted that his father did not take dinner. He denied that on
the night of the incident there was a quarrel, but admitted that
in his statement made to the police he had stated that there
was a quarrel between his parents in the night.
8. Neetu, the lady in the neighbourhood whose name
stands disclosed in the statement of Sanjay Kumar PW-1
deposed as PW-3.
9. As per Neetu, she was present in her house with her
children on 03.07.2000 and heard the noise of foot tapping from
CRL.A.78/2005 Page 5 of 13
neighbourhood. She thought that the noise was created by the
children of her neighbour Radha Krishan i.e. the appellant.
Thereafter she heard the voice of Sanjay Kumar PW-1 who was
saying “ Nahi Achan-Nahi Achan” . She came out and push the door
of her neighbour Radha Krishan and found the same was closed.
She peeped inside and saw Sunita wife of Radha Krishan lying in a
pool of blood. The accused Radha Krishnan was looking into the
wound at the neck of Sunita
. She cried “ bhai sahib ye aap ney
kya kar diya”. She got perplexed and ran and called Khazan
Singh. Sanjay opened the door and Sunita appeared on the
door. Sunita made a gesture asking for her younger child. Two
more neighbour came and lifted Sunita in their lap. She was
removed to the hospital but died mid way. She identified the
appellant as the accused Ram Krishnan.
10. Khazan Singh PW-4, the second person named in the
deposition of Sanjay Kumar, deposed that on 03.07.2000 he was
present in his quarter when Neetu (PW-3) came at about 10:25
PM and knocked at his door. When he came out he saw that
Sunita standing at the door of her quarter, she was bleeding
from neck. He called the PCR by dialing number 100.
11. Having perused the testimony of Sanjay Kumar,
Neetu and Khazan Singh it is apparent that Neetu has
CRL.A.78/2005 Page 6 of 13
corroborated the presence of Sanjay Kumar in his house.
Khazan Singh has corroborated the presence of Neetu in her
house.
12. That the crime took place at around 10:20 PM in
night has not been seriously disputed before us by the learned
counsel for the appellant.
13. To discredit the testimony of Sanjay Kumar, learned
counsel points out that there are improvements in the
testimony of Sanjay Kumar which are suggestive of Sanjay‟s
determination to ensure the conviction of his father. It is
highlighted that Sanjay Kumar has deposed in Court that he not
only consumed the noodles which was served to him but even
ate some noodles from the plate of his father as also the plate
of his brother. It is urged that Sanjay Kumar is intending to
prove that his mother never put any intoxicating material in the
noodles. Second contentions urged to discredit Sanjay Kumar is
by pointing out that as per Sanjay Kumar his mother had died in
the house itself and thereafter on his shouting Neetu came to
their house. Counsel points out that as per Neetu and Khazan
Singh when Sanjay opened the door they say Sunita standing on
the door and the blood was oozing from her neck.
CRL.A.78/2005 Page 7 of 13
14. Both submissions urged by learned counsel are an
attempt to clutch to straws.
15. Sanjay Kumar was aged 12 years when he deposed
and his testimony has to be read with common sense. While
deposing, with reference to the injuries inflicted upon her
mother he stated that his mother died in the house itself. After
making said statement he disclosed the house number and
went on to state that when he shouted Neetu came and he
opened the door. This does not mean that as per the witness
i.e. Sanjay, his mother had died before he had opened the door.
The young boy has given the narration of the events which he
saw and that he mother had died is merely his opinion. Sanjay
does not say that he checked the pulses of his mother.
16. The testimony of Sanjay has to be read in the light of
the fact that he was aged 12 years when he deposed and saw
the incident when he was 11 years of age; his utterance and
deposition have to be understood and appreciated as disclosed
by a child aged 12 years.
17. In his examination-in-chief, Sanjay Kumar never
introduced any version about his eating noodles from the plate
of his father and his younger brother. These statements of
Sanjay Kumar have emanated when she has been cross-
CRL.A.78/2005 Page 8 of 13
examined by the learned counsel for the appellant. Thus, we
see no scope for an argument that Sanjay Kumar has made any
intentional improvements vis-à-vis what he told to the police.
18. It need hardly be stated that the giver of a fact
discloses only such facts which he feels are relevant to be
disclosed. It depends upon the skill of the person receiving
information to extract further facts. It may happen that the
investigating officer thought it irrelevant to ask any questions
from Sanjay Kumar pertaining to Sanjay Kumar eating noodles
when the investigation officer recorded the statement of Sanjay
Kumar. That apart, the issue of Sanjay Kumar telling that he
ate noodles from three plate is absolutely irrelevant.
19. From the testimony of Neetu, an important fact has
emerged; the same is the contemporaneous utterances of
Sanjay heard by Neetu. As per Neetu she head Sanjay saying
“ Nahi Achan-Nahi Achan”
20. From the testimony of Sanjay Kumar it is apparent
that his parents and he were natives of the State of Kerala and
the word “Achan” in Malayalam means “Father”. Thus, the
contemporary utterances of Sanjay “ Nahi Achan-Nahi Achan”
mean “No Father-No Father”. This means that when the crime
was being committed or just the moment thereafter, Sanjay was
CRL.A.78/2005 Page 9 of 13
contemporaneously saying “No Father-No Father”. This also
points to the fact that Sanjay was wanting his father from
desisting to do something. Obviously, common sense tells us
that the something was the assault on Sanjay‟s mother.
21. The testimony of Neetu also establishes that the door
of the house was closed when the crime was committed. No
outsider was seen by her inside the house or running out. The
only persons inside the house were the appellant, his wife and
his two sons who were both minor.
22. What better quality of evidence can be led by the
prosecution to nail the guilt of the appellant. We think no more
was required to be proved.
23. That the appellant was apprehended in his house and
the lungi and underwear worn by him found to be stained with
human blood of the same group as that of the deceased person;
wherefrom his clothes got so stained not been explained by the
appellant, we concur with the view taken by the learned trial
Judge that the evidence on record establishes that the appellant
has committed the acts which has resulted in the death of his
wife.
24. A last argument urged by learned counsel for the
appellant may be noted. Counsel urges that from the testimony
CRL.A.78/2005 Page 10 of 13
of Sanjay it is apparent that there was a quarrel between the
parents and as a result of quarrel, on the spur of the moment
the appellant picked up the kitchen knife and stabbed his wife.
Thus, counsel urges that exception 4 to Section 300 IPC is
attracted and hence his act reveals the offence punishable
under Section 304 Part I IPC.
25. We have noted hereinabove the injuries caused by
the appellant on his wife. Indeed, the attack is savage and
brutal. That apart, „ a sudden fight in the heat of a passion upon
sudden quarrel’ , the phrase used in exception 4 to Section 300
need to be highlighted by us.
26. Exception 4 to Section 300 IPC reads as under:-
“ 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.”
27. The requirement of exception 4 is that upon a
sudden quarrel, in the heat of the passion a sudden fight takes
place. Fighting means a physical contact between two persons.
Sudden fight means where the origin of who is the initiator of
the physical contact is not ascertainable. Exception 4 does not
come into operation merely upon there being a verbal quarrel,
CRL.A.78/2005 Page 11 of 13
with the victim not making any threatening gesture or indulging
in a physical fight. Any other interpretation would make
vulnerable virtually every second housewife in India. Statistical
data show that notwithstanding advancement of education, wife
beating continuous to be a norm in India with 50% of wives
reporting violence at the hands of their husbands.
28. While looking to exception 4, the Court has to keep in
mind the difference between a quarrel and a squabble. What is
often described as a quarrel between husband and wife is no
more that a husband or wife quibbling or squabbling.
29. From the testimony of Sanjay it is clear that his
mother was not wanting to go back to Kerala as the family has
just come to Delhi from Kerala and his mother did not want to
face awkward questions from people back home who would
want to know from her as to why she had returned to Kerala
leaving the company of her husband so soon. Surely, this could
not be a provocation of a kind which would result in a quarrel as
is normally understood. At best, the non-agreement between
the husband and wife, husband requiring the wife to return to
Kerala and the wife refusing to do so, would be at best petty
squabble between the husband and the wife.
CRL.A.78/2005 Page 12 of 13
30. We see no scope to alter the conviction of the
appellant from Section 302 to Section 304 Part I IPC.
31. We find no merit in the appeal, which is dismissed.
32. The appellant is still in jail. Copy of this order be
sent to Superintendent Central Jail, Tihar to be made available
to the appellant.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
JANUARY 19, 2010
mm/mr
CRL.A.78/2005 Page 13 of 13
h
% Date of Decision: 19 January, 2010
+ CRL.APPEAL NO.78/2005
RADHA KRISHAN NAIR ……Appellant
Through: Mr.K.K.Rai, Sr. Advocate with
Mr.Bankey Bihari and Mr.S.K.Pandey,
Advocates
Versus
STATE ……Respondent
Through: Mr.M.N.Dudeja, Advocate
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 the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J. (Oral)
1. With reference to the eye witness account deposed
to by Sanjay Kumar PW-1, the son of the appellant and finding
corroboration to what he said and saw through the testimony of
Neetu PW-3, vide impugned judgment and order dated
CRL.A.78/2005 Page 1 of 13
16.11.2004, the appellant has been convicted for the offence of
having murdered his wife. The learned Trial Judge has also
noted that as per the report Ex.PW-19/C of the serologist, the
blood group of the deceased was „O‟ and that blood of the same
group was detected on the lungi and the underwear of the
appellant which were seized at the spot where the crime was
committed; for the reason the appellant was apprehended in
the house when he committed the crime.
2. That Sunita, the wife of the appellant died a
homicidal death is not in dispute. The post-mortem of Sunita‟s
dead body was conducted by Dr.Gaurav Vinod Jain PW-5 and as
per the post-mortem report Ex.PW-5/A as many as 7 injuries
were noted on her body. The same are as under:-
“1. A deep cut throat incised wound, 12.5 cms x 6.8
cms x 3 cms present transversely over the front of
neck, 6 cm s above the supra sterna notch. The injury
was present at the lower level of thyroid cartilage and
had cut through the under line thyroid cartilage,
trachea, esophagus and jugular vessels of both the
sides. The sternomastoid muscles on both sides also
cut partially.
2. Muscle deep incised wound, 6.3 cm x 1.5 cm
present transversely on the left side of neck 2 cm
above the left lateral part of injury No.1.
3. Incised wound 3.1 cm x .5 cm over right index
finger on the outer side near the face. The wound is
superficial.
CRL.A.78/2005 Page 2 of 13
4. Superficial incised wound 1.5 cm x .3 cm on the
palmer aspect of right ring finger, transversely over
the distal interphalyngeal joint.
5. Superficial incised wound 1.2 cm x .3 cm present
transversely over the palmer aspect of middle of left
ring finger.
6. Linear fresh abrasion 3 cm x .3 cm present
obliquely over the left side of chin.
7. Fresh abrasion 3.4 cm x 3 cm over the right
buttock.”
3. Internal examination revealed that death was a
result of haemorrhagic shock due to injury No.1. As noted
above, injury No.1 was a deep cut on the neck resulting in the
trachea, esophagus and the jugular vain of both sides of neck
being cut.
4. It may be noted that all injuries were opined to be
ante-mortem.
5. As deposed to by Sanjay Kumar PW-1 who was aged
12 years when he deposed on 7.5.2001; the date of the crime
was 3.7.2000; the place was the residential house of the
appellant and the deceased.
6. Sanjay Kumar PW-1 deposed that his mother was
dead. She died on 3.7.2000 and was killed by her father who
was present in Court. That the weapon of offence was a knife.
His father cut the throat of his mother. The incident took place
CRL.A.78/2005 Page 3 of 13
at about 10:15 PM. There used to be quarrels between his
parents; cause whereof was not known to him. His father cut
the throat of his mother. He was making his books. Next day
they were to go to Kerala. His mother had cooked noodles. His
brother Aditya was sleeping in the house. He tried to pull his
father from the back to save his mother but his father pushed
him aside. There was a lot of bleeding due to injury inflicted by
his father on the throat of his mother. His mother died in the
house itself. The house No. was O-3/2, Police Colony, Andrews
Ganj, New Delhi. On seeing the incident he shouted. Neetu,
their neighbour came to the house when he opened the door.
Khazan Singh, another neighbour came to the house.
7. On being cross examined he stated that his father
used to take him to a temple. His father had taken him to
Haridwar. On returning from Haridwar his father told him that
his mother was un-chaste. His father told him to tell his mother
that she should live properly. There used to be frequent quarrel
between his parents. He was not aware of any personal
relationship which his mother had with any person. The day
next to the incidence they were to go to Kerala but his mother
was not wanting to go to Kerala as they had recently come from
Kerala and would say as to what would people say if they
CRL.A.78/2005 Page 4 of 13
returned to Kerala. That his father made the program of going
to Kerala of his own without telling anyone. That he did not
know why his father wanted to send his mother to Kerala. His
father had purchased the ticket of Mangla Express from Delhi to
Kerala. He denied that his mother had mixed some intoxicating
things in the noodles due to which his brother became sleepy.
He volunteered further information that he ate the noodles and
did not feel sleepy. That he ate the noodles from the plate of
his father and younger brother. He admitted the suggestion that
his father refused to eat noodles but stated that he did not know
the reason why he refused to do so. He admitted having told
the police that on the night of the incident his father told him
that his mother had mixed sleeping pills in the noodle. He
admitted that his father did not take dinner. He denied that on
the night of the incident there was a quarrel, but admitted that
in his statement made to the police he had stated that there
was a quarrel between his parents in the night.
8. Neetu, the lady in the neighbourhood whose name
stands disclosed in the statement of Sanjay Kumar PW-1
deposed as PW-3.
9. As per Neetu, she was present in her house with her
children on 03.07.2000 and heard the noise of foot tapping from
CRL.A.78/2005 Page 5 of 13
neighbourhood. She thought that the noise was created by the
children of her neighbour Radha Krishan i.e. the appellant.
Thereafter she heard the voice of Sanjay Kumar PW-1 who was
saying “ Nahi Achan-Nahi Achan” . She came out and push the door
of her neighbour Radha Krishan and found the same was closed.
She peeped inside and saw Sunita wife of Radha Krishan lying in a
pool of blood. The accused Radha Krishnan was looking into the
wound at the neck of Sunita
. She cried “ bhai sahib ye aap ney
kya kar diya”. She got perplexed and ran and called Khazan
Singh. Sanjay opened the door and Sunita appeared on the
door. Sunita made a gesture asking for her younger child. Two
more neighbour came and lifted Sunita in their lap. She was
removed to the hospital but died mid way. She identified the
appellant as the accused Ram Krishnan.
10. Khazan Singh PW-4, the second person named in the
deposition of Sanjay Kumar, deposed that on 03.07.2000 he was
present in his quarter when Neetu (PW-3) came at about 10:25
PM and knocked at his door. When he came out he saw that
Sunita standing at the door of her quarter, she was bleeding
from neck. He called the PCR by dialing number 100.
11. Having perused the testimony of Sanjay Kumar,
Neetu and Khazan Singh it is apparent that Neetu has
CRL.A.78/2005 Page 6 of 13
corroborated the presence of Sanjay Kumar in his house.
Khazan Singh has corroborated the presence of Neetu in her
house.
12. That the crime took place at around 10:20 PM in
night has not been seriously disputed before us by the learned
counsel for the appellant.
13. To discredit the testimony of Sanjay Kumar, learned
counsel points out that there are improvements in the
testimony of Sanjay Kumar which are suggestive of Sanjay‟s
determination to ensure the conviction of his father. It is
highlighted that Sanjay Kumar has deposed in Court that he not
only consumed the noodles which was served to him but even
ate some noodles from the plate of his father as also the plate
of his brother. It is urged that Sanjay Kumar is intending to
prove that his mother never put any intoxicating material in the
noodles. Second contentions urged to discredit Sanjay Kumar is
by pointing out that as per Sanjay Kumar his mother had died in
the house itself and thereafter on his shouting Neetu came to
their house. Counsel points out that as per Neetu and Khazan
Singh when Sanjay opened the door they say Sunita standing on
the door and the blood was oozing from her neck.
CRL.A.78/2005 Page 7 of 13
14. Both submissions urged by learned counsel are an
attempt to clutch to straws.
15. Sanjay Kumar was aged 12 years when he deposed
and his testimony has to be read with common sense. While
deposing, with reference to the injuries inflicted upon her
mother he stated that his mother died in the house itself. After
making said statement he disclosed the house number and
went on to state that when he shouted Neetu came and he
opened the door. This does not mean that as per the witness
i.e. Sanjay, his mother had died before he had opened the door.
The young boy has given the narration of the events which he
saw and that he mother had died is merely his opinion. Sanjay
does not say that he checked the pulses of his mother.
16. The testimony of Sanjay has to be read in the light of
the fact that he was aged 12 years when he deposed and saw
the incident when he was 11 years of age; his utterance and
deposition have to be understood and appreciated as disclosed
by a child aged 12 years.
17. In his examination-in-chief, Sanjay Kumar never
introduced any version about his eating noodles from the plate
of his father and his younger brother. These statements of
Sanjay Kumar have emanated when she has been cross-
CRL.A.78/2005 Page 8 of 13
examined by the learned counsel for the appellant. Thus, we
see no scope for an argument that Sanjay Kumar has made any
intentional improvements vis-à-vis what he told to the police.
18. It need hardly be stated that the giver of a fact
discloses only such facts which he feels are relevant to be
disclosed. It depends upon the skill of the person receiving
information to extract further facts. It may happen that the
investigating officer thought it irrelevant to ask any questions
from Sanjay Kumar pertaining to Sanjay Kumar eating noodles
when the investigation officer recorded the statement of Sanjay
Kumar. That apart, the issue of Sanjay Kumar telling that he
ate noodles from three plate is absolutely irrelevant.
19. From the testimony of Neetu, an important fact has
emerged; the same is the contemporaneous utterances of
Sanjay heard by Neetu. As per Neetu she head Sanjay saying
“ Nahi Achan-Nahi Achan”
20. From the testimony of Sanjay Kumar it is apparent
that his parents and he were natives of the State of Kerala and
the word “Achan” in Malayalam means “Father”. Thus, the
contemporary utterances of Sanjay “ Nahi Achan-Nahi Achan”
mean “No Father-No Father”. This means that when the crime
was being committed or just the moment thereafter, Sanjay was
CRL.A.78/2005 Page 9 of 13
contemporaneously saying “No Father-No Father”. This also
points to the fact that Sanjay was wanting his father from
desisting to do something. Obviously, common sense tells us
that the something was the assault on Sanjay‟s mother.
21. The testimony of Neetu also establishes that the door
of the house was closed when the crime was committed. No
outsider was seen by her inside the house or running out. The
only persons inside the house were the appellant, his wife and
his two sons who were both minor.
22. What better quality of evidence can be led by the
prosecution to nail the guilt of the appellant. We think no more
was required to be proved.
23. That the appellant was apprehended in his house and
the lungi and underwear worn by him found to be stained with
human blood of the same group as that of the deceased person;
wherefrom his clothes got so stained not been explained by the
appellant, we concur with the view taken by the learned trial
Judge that the evidence on record establishes that the appellant
has committed the acts which has resulted in the death of his
wife.
24. A last argument urged by learned counsel for the
appellant may be noted. Counsel urges that from the testimony
CRL.A.78/2005 Page 10 of 13
of Sanjay it is apparent that there was a quarrel between the
parents and as a result of quarrel, on the spur of the moment
the appellant picked up the kitchen knife and stabbed his wife.
Thus, counsel urges that exception 4 to Section 300 IPC is
attracted and hence his act reveals the offence punishable
under Section 304 Part I IPC.
25. We have noted hereinabove the injuries caused by
the appellant on his wife. Indeed, the attack is savage and
brutal. That apart, „ a sudden fight in the heat of a passion upon
sudden quarrel’ , the phrase used in exception 4 to Section 300
need to be highlighted by us.
26. Exception 4 to Section 300 IPC reads as under:-
“ 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.”
27. The requirement of exception 4 is that upon a
sudden quarrel, in the heat of the passion a sudden fight takes
place. Fighting means a physical contact between two persons.
Sudden fight means where the origin of who is the initiator of
the physical contact is not ascertainable. Exception 4 does not
come into operation merely upon there being a verbal quarrel,
CRL.A.78/2005 Page 11 of 13
with the victim not making any threatening gesture or indulging
in a physical fight. Any other interpretation would make
vulnerable virtually every second housewife in India. Statistical
data show that notwithstanding advancement of education, wife
beating continuous to be a norm in India with 50% of wives
reporting violence at the hands of their husbands.
28. While looking to exception 4, the Court has to keep in
mind the difference between a quarrel and a squabble. What is
often described as a quarrel between husband and wife is no
more that a husband or wife quibbling or squabbling.
29. From the testimony of Sanjay it is clear that his
mother was not wanting to go back to Kerala as the family has
just come to Delhi from Kerala and his mother did not want to
face awkward questions from people back home who would
want to know from her as to why she had returned to Kerala
leaving the company of her husband so soon. Surely, this could
not be a provocation of a kind which would result in a quarrel as
is normally understood. At best, the non-agreement between
the husband and wife, husband requiring the wife to return to
Kerala and the wife refusing to do so, would be at best petty
squabble between the husband and the wife.
CRL.A.78/2005 Page 12 of 13
30. We see no scope to alter the conviction of the
appellant from Section 302 to Section 304 Part I IPC.
31. We find no merit in the appeal, which is dismissed.
32. The appellant is still in jail. Copy of this order be
sent to Superintendent Central Jail, Tihar to be made available
to the appellant.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
JANUARY 19, 2010
mm/mr
CRL.A.78/2005 Page 13 of 13