Criminal Appeal No.822/2007 Page 1 of 44 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 822/2007 % Judgment Reserved on: 29th January, 2009 Judgment Pronounced on: 1st April, 2009 N. MURALIDHARAN NAIR ..... Appellant Through: Mr. Sumeet Verma, Advocate. versus STATE OF DELHI ..... Respondent Through: Ms. Richa Kapoor, APP CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes J U D G M E N T : ARUNA SURESH, J. 1. This appeal is directed against the judgment dated 18.08.2007 and the order on sentence dated 31.8.2007 passed by the learned Additional Sessions Judge (ASJ). The appellant was tried for having committed offence Criminal Appeal No.822/2007 Page 2 of 44 punishable under Sections 302/307 as well as under Section 309 Indian Penal Code (hereinafter referred to as „IPC‟) for having murdered his child Vishnu, aged about five years and for causing grevious hurt to his younger child Varun aged about three years. He was acquitted of the offence punishable under Section 309 IPC. However, he was convicted for offence punishable under Section 302/307 IPC. He was sentenced to undergo imprisonment for life and pay a fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment (RI) for one month for the offence under Section 302 IPC. He was further sentenced to undergo RI for ten years and pay a fine of Rs.1,000/- in default of payment of fine to further undergo simple imprisonment (SI) for one month for the offence punishable under Section 307 IPC. 2. An information was received by Head Const. Umed Singh at Police Station Naraina on 21.5.2001 at about 11.18 P.M. that one person had killed his son in House No.67, Kirbi Place, Double Story, Army Quarters and that the child had been removed to the hospital. Another telephone call was received by HC Umed Singh that a murder had been Criminal Appeal No.822/2007 Page 3 of 44 committed at P-76, Kirbi Place. This information as recorded in DD No.34-A (Ex.PW-1/B). PW-12 SI Pankaj Yadav along with PW-19 Ram Niwas reached the spot around 11.45 P.M. There he recorded the statement of complainant PW-6 Baby Joseph, he made his endorsement Ex.PW-12/A at 2.15 A.M. on 22.5.2001 i.e. intervening night of 21-22.5.2001 and got the FIR Ex.PW-1/A of this case registered through PW-19 Const. Ram Niwas at 2.45 A.M. Both Vishnu and Varun, the injured had already been removed to Base Hospital, Delhi Cantt. by PW-21 Major Philomina and PW-8 Major Anamma. Vishnu was declared brought dead and Varun was declared unfit for making statement by PW-20 Dr. Jasvinder Kaur. After examination of the victims, she prepared the MLC Ex.PW-20/A of deceased Vishnu and also the MLC of Varun. 3. Brief facts of the case are that the appellant was married to PW-3 Major K.G. Sridevi Amma, an Army Officer. He himself was unemployed and lived with his wife at the place of her posting along with his two sons, namely, Vishnu and Varun. PW-3 Sridevi Amma intended to visit Bangalore to see her sister. She was threatened by the Criminal Appeal No.822/2007 Page 4 of 44 appellant that if she took the children with her, he would kill them and also would kill himself. Later on, she came to know that her mother had expired and she left for Trivendram. On 20.5.2001 appellant made a telephone call to his wife PW-3 Sridevi Amma and asked her to come back immediately by flight and threatened her of the life of the children and also of himself. A bizarre incident took place on 21.5.2001 when he murdered his elder son Vishnu aged about five years and caused grevious injuries on the person of his younger son Varun, aged about three years and also made efforts to set himself of fire. 4. PW-6 Baby Joseph, the complainant in his statement Ex.PW-6/A made to the police disclosed that on the intervening night of 21-22.5.2001 at about 10.40 P.M. when he was present in his own house, he heard a sound of blast from House No.P-76-B which was in front of his house. He immediately came out of the house and saw Varun standing outside smeared with blood and was weeping. He immediately went inside and saw smoke coming out of the bed room of the said house and found the door slightly ajar. He peeped inside the bed room and Criminal Appeal No.822/2007 Page 5 of 44 found the other child, Vishnu lying on the bed smudged with blood and the appellant, Muralidharan was standing near Vishnu. He was saying that he had restrained his wife from going to Bangalore but still she went and therefore he had stabbed both of his children with a knife and had killed them. He (PW-6) also extinguished the fire by throwing out the gas cylinder lying in the room and sent both the children to the hospital in a neighbour‟s car and informed the police. He handed over appellant to PW-12 SI Pankaj Yadav. 5. As PW-6, Baby Joseph has testified that on 21.5.2001 at about 10.30 P.M. he was preparing his dinner when he heard a big sound and came out of his house. He looked around and also towards opposite House No.76 which is situated at a distance of 50 yards. He noticed people standing outside that house. He also went there and found the windows of the said house having transparent glass and saw the house lit. He saw one boy lying on the bed in a pool of blood and another injured boy standing near the bed. He also saw appellant standing nearby the boy with a gas stove pipe in his hand. Flame was coming out of one Criminal Appeal No.822/2007 Page 6 of 44 end of the pipe. Appellant was trying to put fire to the bed lying there. Appellant was also trying to burn the child standing near the bed with the gas flame. He forced open the door which was having single latch from inside and went inside. He again found door of the room where incident took place bolted from inside which was forced open by him. Sheejan (PW-10) also reached inside the room to help him. He lifted Varun and handed him over to Sheejan as he was bleeding from his neck. He also threw the gas cylinder out of the house to extinguish the fire. He lifted Vishnu lying on the bed and found that his throat was also slit and he handed him over to another person so that he could be taken to hospital. He asked appellant N. Muralidharan as to what he had done, to which he said that it was a family matter. He pulled out the appellant from his house and handed him over to the persons standing there. He informed the PCR and within ten minutes police reached and the appellant was apprehended by the police. He is a witness to the recovery of bloodstained clothes, mosquito net, weapon of offence i.e. knife Ex.P-1 which were seized vide memo Ex.PW-6/B. He identified the knife Ex.P-1 as the same which was recovered. Criminal Appeal No.822/2007 Page 7 of 44 6. Since PW-6 Baby Joseph stated that appellant had not said anything to him when he entered the room or apprehended him, he was allowed to be cross examined by learned Additional Public Prosecutor (APP) for the State. When cross examined by the learned APP, he accepted that after coming out from the house appellant had stated that his wife went to Bangalore despite his refusal to allow her to go, he (appellant) stabbed both of his children with a knife and killed them. He deposed that there was no other person in the house except the appellant and his two sons who were in an injured condition. He did not notice any injury on the person of the appellant at that time. 7. In his cross examination he deposed that it was upon enquiry from appellant Muralidharan after reaching the spot that, he came to know that, appellant had hit the gas cylinder on the wooden frame of the door which produced the sound heard by him. He denied the suggestion that doors were not bolted from inside and were open. He also denied the suggestion that appellant was trying to extinguish the fire and was not trying to set the bed on fire. Criminal Appeal No.822/2007 Page 8 of 44 8. When further cross examined, he replied that from the transparent window pane the incident was also being witnessed by him and the crowd. When asked further, he replied that he remained at the spot till 11.00 P.M. and thereafter he went to the hospital and in the hospital he remained for about an hour and then came back to his house. He deposed that recovery memos were prepared at the Police Station in his presence as he was called there on the next day at about 11.00 A.M. and he had signed every recovery memo in the Police Station. His statement was recorded at the spot in 20 minutes before his leaving for the hospital and his supplementary statement was recorded by the police in the Police Station. When further questioned, he deposed that he did not know from where knife was recovered by the police as he had seen it after it was recovered. He deposed that sketch of the knife was prepared in his presence in five minutes. When confronted with the pipe, he stated that he could not see any burn portion but, after careful examination of the pipe, he deposed that there were burnt marks at the end of the pipe which could be seen unevenly broken. To a question put to him in the cross examination regarding the burn Criminal Appeal No.822/2007 Page 9 of 44 injuries on the person of appellant, he replied that he did not notice if appellant was having any burn injuries as he was concentrating on the children. 9. PW-10 Mr. Sheejan George has deposed that on 21.5.2001 he heard a noise and saw crowd gathered in front of the house situated opposite the house of her aunt with whom he was residing. He saw Philomina, Baby Joseph, Annama O.T. present in the crowd. He also went inside the house of the appellant whom he identified in the court and found Varun crying. He along with Baby Joseph brought Varun outside the house. Varun was having injuries on his left hand and was bleeding. Therefore, Annama O.T., Philomina and other persons removed Varun to the hospital. However, he did not see Vishnu, but later came to know that he had died. 10. In his cross examination he has stated that the noise which he heard was similar to a blast in the transformer. He followed Baby Joseph inside the house. He further testified in the cross examination that he also saw appellant Muralidharan at the spot. Criminal Appeal No.822/2007 Page 10 of 44 11. PW-21 Major Philomina went to the house of the appellant on hearing the noise from the rear side of his house and he found Vishnu lying on the bed inside the house. On finding him in an injured condition, he lifted him in his arms and Varun was lifted by Major Anamma O.T. and they both took the children in a vehicle to the Base hospital where Vishnu was declared dead. 12. PW-8 Major Anamma reached the spot on hearing the noise at about 10.30 P.M. and found a crowd gathered near Sridevi‟s house. He saw Varun being taken out from Sridevi‟s house in a critical injured condition. He also saw Major Philomina had lifted Vishnu, the elder son of the appellant in his arms. Both the children were taken to the hospital. Later on he came to know that appellant had injured his own sons and his elder son Vishnu died. 13. PW-4 Mohanan Nair is the brother of PW-3 Sridevi Amma, wife of the appellant. He has testified that on coming to know on 14.5.2001 that his mother had expired at Waynad, Kerala, he went there to attend her last rites. PW-3 Sridevi Amma and PW-5 Anand Valli, his sisters had Criminal Appeal No.822/2007 Page 11 of 44 also reached there to attend the last rites of their mother on 20.5.2001. A telephone call was made by the appellant to PW-3 Sridevi Amma which was attended by PW-5 Anand Valli, as Sridevi Amma was not well and had suffered head injury. He deposed that appellant threatened her on telephone „If Sridevi did not reach Delhi next day then he will kill the children and himself’. On 21.5.2001, his cousin brother Anil Kumar informed him on telephone „accused Muralidharan has killed his elder son Vishnu while other son was admitted in hospital in a critical condition.’ PW-5 Anand Valli, has corroborated the testimony of PW-4. 14. PW-3 Major K.G. Sridevi Amma testified that she was married to the appellant in December, 1992. They had two sons out of the wedlock and at the time of the incident her husband was unemployed. On 29th December, 2000 she had received head injuries in an accident and she remained on two month‟s sick leave. Since she wanted to go to Bangalore to visit her sister to take care of her, she was threatened by the appellant that if she took the children with her then he would kill them and he would also end his life. She joined her services after availing of Criminal Appeal No.822/2007 Page 12 of 44 the sick leave. She further testified that on 14.5.2001 she came to know that her mother had died and therefore she left for Trivandrum by air to attend last rites of her mother leaving behind the appellant and her two sons in her house bearing No. P-76-B at Kirbi Place, Delhi. After reaching Trivandrum she enquired on phone at about 10.00 P.M. about the well being of her children. On 20.5.2001 she received a call from the appellant who told her that if she did not come to Delhi immediately, he would kill his sons and also himself. On 22.5.2001 she received information from her brother that her children were admitted in the hospital and were in a serious condition. She came to Delhi with her brother and two sisters, where she came to know that her elder son Vishnu had succumbed to his injures and Varun was under medical treatment. She has also deposed that Varun had told the police in Malyalam that his father had killed Vishnu with a knife. 15. PW-2, Anil Kumar had received phone call from the appellant at about 8.00 P.M. on 21.5.2001 and appellant had told him that he had killed his sons. On receipt of this information he went to the house of appellant where he Criminal Appeal No.822/2007 Page 13 of 44 found police officials present and the injured already removed to the hospital. 16. PW-12, SI Pankaj Yadav seized knife Ex.P-1 from the spot vide seizure memo Ex.PW-6/B; clothes of the appellant Ex.P-2 and P-3 having blood-stains vide seizure memo Ex.PW-12/C; a diary Ex.P-7, a pen Ex.P-8 vide seizure memo Ex.PW-6/F, a gas pipe and various other articles. He also seized one small diary having admitted hand writing of the appellant vide seizure memo Ex.PW-12/H. 17. PW-17 Dr. Chandra Kant had conducted postmortem examination on deceased Vishnu on 23.5.2001. On examination, as per his report Ex.PW-17/A, he noted following injuries:- “External injuries:- 1. One incised wound on the outer aspect of lower 1/3rd of left leg, 3 cm above from left ankle, both margins clean cut, both angles acute, size 5 cms x 1.2 cm x tissue and tendon deep/vessels severed. 2. One incised wound on the lower 1/3rd of left forearm 4 cms above from left wrist joint. Both margins clean cut, both angles acute size 5 cms x 1.8 cms x tissue and tendon deep blood vessels severed. Criminal Appeal No.822/2007 Page 14 of 44 3. One incised wound on the lower 1/3rd of interior aspect of right forearm 4 cms above from right wrist, both margins clean cut, both angles acute size 5 cms x 2 cms x tendon severed, blood vessels severed. 4. One incised wound on front of neck 5 cms away from chin and 5 cms above from supra-external notch, both margins clean cut, both angles acute size 8 cms x 2 cms x trachea deep and severed, blood vessels severed. Internal injuries:- 1. Thyroid cartilage was transversely severed. Trachea was transversely severed with both margins clean cut, both angles acute. Underneath tissues and blood vessels were transversely severed and all injuries were corresponding externally with injury No.4. 2. Both lungs were congested; clotted blood was present in the cavity and bronchioles. 3. Stomach contain undigested, liquid contents, rice pieces identified, mucosa was healthy. 4. Liver, Kidneys and spleen were all congested. 18. He appended his opinion in his report Ex.PW-17/A regarding cause of death as ‘Shock, haemorrhage, injury to trachea, injuries are ante-mortem in nature, caused by sharp edged weapon and collectively all are sufficient to Criminal Appeal No.822/2007 Page 15 of 44 cause death in ordinary course of nature.’ 19. On 23.5.2001, knife Ex.P-1 was examined by him. After examination he appended his opinion in his report Ex.PW- 17/B, „On examination of weapon in my opinion all four antemortem injuries as described in the post mortem report could be produced by the weapon examined by me.’ 20. PW-20 Dr. Jasvinder Kaur had examined Vishnu on 21.5.2001 when he was brought to Base hospital with incised injuries on his neck, both wrists and legs. She declared him dead vide MLC Ex.PW-20/A prepared by her. Weapon of offence i.e. knife Ex.P-1 was also shown to her and after examining the weapon of offence and the injuries mentioned in the MLC of Varun (not exhibited), she penned down her opinion vide her report Ex.PW-20/B „the injuries sustained by Varun, aged about 3½ years son of N. Muralidharan as reflected in MLC No.1133 dated 21 May, 2001, are in my opinion caused by a sharp weapon. The weapon which is shown to me may not be the same weapon with which the injuries were caused. However, such a weapon is capable of inflicting such injuries on the Criminal Appeal No.822/2007 Page 16 of 44 person of Varun as observed by me on 21.5.2001.’ 21. PW-22 Ms. Deepa Verma, Senior Scientific Officer (SSO) after comparing the specimen handwriting of the appellant with the admitted handwriting and disputed handwriting opined vide her report Ex.PW-16/A that ‘In my opinion the person who wrote the blue enclosed writings stamped and mark S-1 to S-8 also wrote the blue enclosed writings similarly stamped and marked Q-1.’ 22. On appreciation of the evidence available with him on record, the learned ASJ found the appellant guilty of committing murder of his son Vishnu and causing grevious injuries on the person of his younger son Varun. He accordingly convicted the appellant for offence punishable under Sections 302/307 IPC. 23. Mr. Sumeet Verma, Amicus Curiae appointed by Legal Services Committee for the appellant has urged that PW-2 Anil Kumar, PW-3 Major K.G. Sridevi Amma, PW-4 Mohanan Nair, PW-5 Mrs. Anand Valli, PW-6 Baby Joseph; the complainant, PW-8 Major Anamma, PW-10 Mr. Sheejan Criminal Appeal No.822/2007 Page 17 of 44 George and PW-21 Major Philomina are unworthy of credence being at variance with each other. He has urged that PW-6 Baby Joseph, as a prosecution witness has deposed that on hearing a big sound, he came out of his house. Whereas in his complaint Ex.PW-6/A he has stated that he heard sound of some blast. In contradiction to his statement PW-8 Major Anamma stated in his cross examination that he heard the sound just like a blast of a transformer. PW-10 Mr. Sheejan George in his cross examination also stated that the noise he heard was similar to the blast of a transformer. Learned counsel for the appellant has pointed out that PW-21 Major Philomina in his cross examination has described the noise heard by him as something had fallen. 24. He further urged that PW-6 Mr. Baby Joseph in his examination-in-chief has deposed that he forced opened the door which was bolted from inside with a single latch and entered inside the room. Whereas in his complaint Ex.PW-6/A he did not state that he entered the room after forcibly opening the door. The fact remains in the complaint Ex.Pw-6/A the witness has stated that the door Criminal Appeal No.822/2007 Page 18 of 44 was closed. 25. The contradictions as highlighted above by the learned counsel for the appellant are insignificant. The description of the sound heard by the witnesses was according to their perception. In his cross examination PW-6 has explained the cause of sound. He was told by the appellant that he had hit the gas cylinder with the wooden frame of the door while keeping it. 26. Much has been argued that the witnesses are inconsistent as to who lifted which child from the room and who took them to the hospital. PW-6 Baby Joseph in categorical terms has deposed that he lifted Varun, who was standing near the bed and handed him over to PW-10 Mr. Sheejan George and after throwing out the gas cylinder to extinguish fire, he lifted Vishnu lying on the bed. He handed over this child to someone so that he could be taken to the hospital. May be, and it is natural that, he did not remember the name of the person to whom he had handed over Vishnu to be removed to the hospital. Criminal Appeal No.822/2007 Page 19 of 44 27. PW-10 Mr. Sheejan George corroborated the testimony of PW-6 Baby Joseph when he deposed that he found Varun lying there, he along with Baby Joseph took Varun outside the house. According to him PW-8 Major Annama O.T., PW- 21 Major Philomina, and other persons removed the child to the hospital. Naturally, in the entire scenario PW-10 Sheejan George was more concerned about the welfare of Varun who was handed over to him by PW-6 Baby Joseph to be removed to the hospital immediately. PW-21 Major Philomina found Vishnu lying on the bed and he lifted him and removed him, whereas Varun was lifted by PW-8 Major Anamma. He along with Anamma had taken the children in one vehicle to the Base hospital. In tune with the other witnesses, PW-8 Major Anamma deposed that Vishnu was lifted by Major Philomina and both the children were taken to the hospital. Small variations are natural with the lapse of time. 28. PW-7 Master Varun appeared as a prosecution witness on 8.3.2004. The court observed that he was shy and abstracting himself from the witness box and was not ready to depose as seemed to be of tender age and did not Criminal Appeal No.822/2007 Page 20 of 44 appear to be a competent witness to depose and also that he was not well conversant with Hindi language. The court dropped him from the list of witnesses holding that his deposition was not required to be recorded. Therefore, non examination of Varun is not fatal to the prosecution case and no adverse inference can be raised against the prosecution that had he been examined, he would not have supported the prosecution case. 29. The credibility of testimony of PW-6 Baby Joseph that he saw the incident from outside the window, has also been questioned. It is urged that he could not have seen the incident from outside by peeping through the window as a cooler was installed in the window and nothing could be seen from the window. PW-6 in categorical terms has deposed that on hearing the sound, he went out of his house and peeped inside