Rambir vs State Of Nct Delhi

Crl.A.@S.L.P.(Crl.)No.9781/18 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 839 OF 2019 [Arising out of S.L.P.(Crl.)No.9781 of 2018]

Rambir ...Appellant Versus State of NCT, Delhi ...Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. This criminal appeal is directed against the

judgment dated 11.10.2017 passed by the High Court of

Delhi at New Delhi in Criminal Appeal No.1316 of 2012, by

which High Court has dismissed the criminal appeal,

confirming the conviction and sentence imposed on the

appellant by the learned Additional Sessions Judge,

Karkardooma Courts, Delhi, whereby he has been convicted

Signature Not Verified for offence under Section 302 IPC and sentenced to Digitally signed by MAHABIR SINGH Date: 2019.05.06 16:30:36 IST Reason: undergo life imprisonment.

Crl.A.@S.L.P.(Crl.)No.9781/18 2

3. As per the case of the prosecution, on the

intervening night of 31.08.2010 and 01.09.2010, the

appellant strangulated his wife – Sua and caused her

death on the rooftop of the premises no.C-834, Gali

No.30/3, Jafrabad, Delhi. In connection with the said

incident, a case was registered in FIR No.205/2010

against the appellant-accused under Sections 302 and 34

IPC on 01.09.2010. The appellant-accused was tried by

the learned Additional Sessions Judge, Delhi. To prove

the guilt of the appellant-accused, prosecution examined

18 witnesses. After considering the testimony of the

prosecution witnesses and other evidence on record, the

learned trial court, i.e., learned Additional Sessions

Judge, held that appellant is guilty for offence under

Section 302 IPC, for the murder of his wife, vide

judgment dated 19.07.2012. Further, the trial court, by

order dated 23.07.2012 sentenced the appellant for life

imprisonment for the offence under Section 302 IPC.

4. The conviction recorded and sentence imposed by the

trial court was challenged before the High Court mainly

on the following grounds :

“i) The Trial Court has erred in ignoring the fact that the presence of Anurag: the child Crl.A.@S.L.P.(Crl.)No.9781/18 3 witness (PW-7) was highly doubtful on the scene of crime and his testimony could not be relied upon as the witness PW-7 was a tutored witness.

ii) PW-1 (Constable Neeraj Kumar) who was posted as Photographer in the Crime Team stated in his testimony that, ‘No eye witness came forward before the IO claiming himself to have seen any event in his presence’, whereas PW-7 has been cited as a witness of a crime.

iii) None of the witnesses had deposed about the presence of PW-7 at the scene of the crime whereas the witness PW-7 had deposed that he was also sleeping on the roof.

iv) The Trial Court failed to consider the fact that the body of the deceased was preserved for 72 hours before it was subjected to postmortem, from which it was apparent that the police had no clue about the accused. In these circumstances Anurag was introduced as a tutored witness.

Neither any inquiry or investigation was carried out as to where the child had been till then and from where he was produced and by whom, which clearly suggested that the witness had been deliberately introduced.

v) The Trial Court erred in presuming the fact relating to the presence of the Appellant at the scene of occurrence for the entire period of inquiry whereas it had come in evidence that he had been arrested through a secret informer which clearly shows about false implication of the Appellant.

vi) the weapon of the offence ‘saria’ which was allegedly got recovered by the Appellant pursuant to his disclosure, was a piece of rod bearing twist marks but the post mortem did not suggest whether the strangulation mark appearing on the neck of the deceased had those twist marks of the ‘saria’.” Crl.A.@S.L.P.(Crl.)No.9781/18 4

5. The High Court, by considering the judgment under

appeal and by re-appreciating the evidence on record, has

come to the conclusion that prosecution has proved the

case against the appellant beyond any reasonable doubt.

The reliance is placed by the trial court on the

deposition of PW-7 who is the son of the appellant and

deceased who was an eye witness to the incident of

murder. By further considering the oral evidence of PW-7

whose statement was further corroborated by PW-9 – Fayaz,

who had last seen the appellant leaving the place of

incident in the morning at 06:30 a.m. and on the

deposition of PW-17 – Kishan and PW-18 – Shahid who

confirmed the presence of the appellant, the High Court

has recorded a finding that their deposition inspired

confidence and all the aforesaid witnesses stood the test

of cross-examination and thus confirmed the finding of

the trial court that appellant has strangulated his wife

with ‘saria’ as a result of which she died.

6. Further, while considering the plea of the

appellant’s counsel who was appointed by the Delhi High

Court Legal Services Committee, that the incident

happened in the fit of anger and under influence of Crl.A.@S.L.P.(Crl.)No.9781/18 5 liquor, lost his cool, picked up quarrel with the wife

and strangulated her with the help of ‘saria’, as such

the case of the appellant falls within Exception 4 to

Section 300 IPC, the High Court has found that two

ingredients of Exception 4 are missing. High Court has

not accepted such plea and confirmed the conviction under

Section 302 IPC and sentence of life imprisonment imposed

by the trial court.

7. This Court, by order dated 13.11.2018, has issued

notice limited to the nature of the punishment and the

quantum of sentence.

8. We have heard Sri Shikhil Suri, learned counsel for

the appellant and also Ms. Pinky Anand, learned

Additional Solicitor General appearing for the

respondent-State.

9. In this appeal, mainly it is contended by learned

counsel for the appellant that having regard to facts of

the case and the evidence on record, no case is made out

for convicting the appellant under Section 302 IPC. It

is submitted that the appellant had no intention to kill

his wife and there was no pre-meditation of any kind.

According to learned counsel, it was a case of normal Crl.A.@S.L.P.(Crl.)No.9781/18 6 quarrel between the husband and wife which turned ugly

upon the wife trying to forcibly take out money from his

pocket. The submission of the appellant is that in the

fit of anger, the appellant, who was under influence of

liquor, lost his cool, picked up ‘saria’ to hit his wife.

It is submitted that he neither intended to cause her

death nor did he realise during the sudden fight that his

act of pressing her neck with ‘saria’ would cause her

death. By referring to Exception 4 to Section 300 IPC,

learned counsel has submitted that all the four

ingredients thereof apply to the facts of the case on

hand and it is submitted that the finding of the High

Court, that two of the ingredients to bring the case of

the appellant under Exception 4 are not satisfied, runs

contrary to the evidence on record.

10. On the other hand learned Additional Solicitor

General appearing for the respondent-State has submitted

that it is a clear case of murder which is proved against

the appellant by four material witnesses, viz., PW-7; PW-

9; PW-17 and PW-18. It is submitted that the appellant

has strangulated his wife with a ‘saria’ as a result of

which she died. It is submitted that the act of picking Crl.A.@S.L.P.(Crl.)No.9781/18 7 up of ‘saria’ and compressing forcefully the neck of his

wife, can by no stretch of imagination be said to be an

act committed in a fit of anger. Further it is submitted

that the strangulation with the help of ‘saria’ is an

extremely cruel act upon the appellant, as such, the plea

of Exception 4 to Section 300 IPC is negated rightly by

the High Court and there are no grounds to interfere.

11. Having heard learned counsel for the parties, we

have perused the impugned judgment and other material

placed on record.

12. As indicated above, this Court has issued notice

limited to the nature of punishment and quantum of

sentence. While it is the case of the appellant that

even by accepting the evidence on record, the case of the

prosecution falls under Exception 4 to Section 300 IPC,

as such, trial court and High Court have committed error

in convicting the appellant for offence under Section 302

IPC and sentencing him for imprisonment for life. Even

as per the case of the prosecution the incident occurred

on the intervening night of 31.08.2010 and 01.09.2010 on

the rooftop of premises no.C-834, Gali No.30/3, Jafrabad,

Delhi. The primary witness is PW-7 who is the son of the Crl.A.@S.L.P.(Crl.)No.9781/18 8 appellant and the deceased, who has stated that he had

seen the appellant strangulating his mother – the

deceased – with the ‘saria’ after she had taken out some

money from the appellant’s wallet. PW-15 – SI Dharmandra

Pratap was the first to arrive at the scene of crime and

testified as to presence of the body of the deceased on

the terrace along with, among other things, a ‘saria’, an

empty liquor bottle and a plastic glass. PW-9 – Fayaz,

who was working in the workshop in the said premises,

testified to have witnessed the appellant leaving the

premises in the morning on 01.09.2010.

13. A plain reading of Exception 4 to Section 300 IPC

shows that the following four ingredients are required :

(i) There must be a sudden fight;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion;

and

(iv) The offender had not taken any undue

advantage or acted in a cruel or unusual manner.

By applying the above tests, the High Court has found

that two of the ingredients are absent so as to bring the

case of the appellant under Exception 4 to Section 300 Crl.A.@S.L.P.(Crl.)No.9781/18 9 IPC. The High Court has found that the act of picking up

a ‘saria’ and compressing forcefully the neck of his wife

by the appellant, can, by no stretch of imagination, be

said to be an act committed in a heat of passion.

Further it is held that, the manner in which the

appellant compressed his wife’s neck also depicts an act

of extreme cruelty. From the evidence on record it is

clear that incident occurred in a sudden fight and there

was no pre-meditation. Even the primary witness PW-7,

the son of the accused and deceased, has deposed that he

had seen the appellant strangulating his mother -

deceased – with the ‘saria’ when she had taken out some

money from the appellant’s wallet. It is not as if

‘saria’ was brought in a pre-planned way to murder the

wife of the appellant. The iron rod (saria) is picked up

at the spur of the moment at the time of incident and

used to compress the neck forcefully. In that view of

the matter it is nothing but an act committed by the

appellant in a heat of passion. Further, the High Court

has not given the benefit of Exception 4 to Section 300

IPC on the ground that appellant compressed his wife’s

neck also depicts an act of extreme cruelty. Having Crl.A.@S.L.P.(Crl.)No.9781/18 10 regard to nature and manner of incident it cannot be said

that act of the appellant was extremely cruel. Unless it

is barbaric, torturous and brutal, strangulation of the

appellant’s wife cannot be said to be an act of extreme

cruelty for denying the benefit of Exception 4 to Section

300 IPC.

14. Having regard to evidence on record, we are of the

view that the case of the appellant falls within

Exception 4 to Section 300 IPC. Further, the judgment in

the case of Surinder Kumar v. Union Territory,

Chandigarh1 also supports the case of the appellant. In

the aforesaid case, the knife blows were inflicted in the

heat of the moment, one of which caused death of the

deceased, this Court has held that accused is entitled to

the benefit of Exception 4. In the aforesaid judgment,

this Court further held that in a sudden quarrel, if a

person, in the heat of the moment, picks up a weapon

which is handy and causes injuries one of which proves

fatal, accused would be entitled to the benefit of

Exception 4. We are of the view that the said judgment

supports the case of the appellant and further having

regard to evidence on record we are of the view that all 1 (1989) 2 SCC 217 Crl.A.@S.L.P.(Crl.)No.9781/18 11 the four ingredients which are required to extend the

benefit of Exception 4 to Section 300 IPC, apply to the

facts of the case on hand. Since the occurrence in

sudden quarrel and there was no premeditation, the act of

the appellant-accused would fall under Exception 4 to

Section 300 IPC. As such, the conviction recorded

against the appellant under Section 302 IPC is liable to

be set aside and is accordingly set aside and the

conviction of the appellant-accused under Section 302 IPC

is modified, as the one under Section 304 Part II, IPC

and we impose a sentence of 10 years’ simple imprisonment

on the accused.

15. The appeal is partly allowed and the conviction

recorded and sentence imposed on the appellant stands

modified as indicated above.

...................J. [R. Banumathi]

...................J. [R. Subhash Reddy]

New Delhi, May 06, 2019.