Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 533

SUPREME COURT OF INDIA
R. Banumathi, R. Subhash Reddy, JJ.
Rambir – Appellant
Versus
State of NCT, Delhi – Respondent
CRIMINAL APPEAL NO. 839 OF 2019 [Arising out of S.L.P.(Crl.) No.9781 of 2018]
Decided On : 06-05-2019

Advocates Appeared:
For the Petitioner: Mr. Shikhil Suri, Adv (SCLSC) Mr. Shiv Kumar Suri, AOR
For the Respondent:Mr. Chirag M. Shroff, Adv. Mrs. Mahima C. Shroff, Adv. Mr. B. V. Balaram Das, Advocate

IMPORTANT POINTS
(1) Unintentional homicide is not murder.
(2) Unless it is barbaric, torturous and brutal, act of homicide cannot be said to be an act of extreme cruelty for denying benefit of Exception 4 to Section 300 IPC to accused.

Headnote:(A) Indian Penal Code, 1860 – Section 302 – Murder of wife – Life sentence – Prosecution case supported by evidence of child witness who is son of appellant and deceased – Incident occurred in a sudden fight and there was no pre-meditation – Iron rod was picked up at spur of moment at the time of incident and used to compress neck forcefully – It is nothing but an act committed by appellant in a heat of passion – High Court has not given 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 regard to nature and manner of incident it cannot be said that act of appellant was extremely cruel – Unless it is barbaric, torturous and brutal, strangulation of appellant’s wife cannot be said to be an act of extreme cruelty for denying benefit of Exception 4 to Section 300 IPC – Since occurrence in sudden quarrel and there was no premeditation, act of appellant-accused would fall under Exception 4 to Section 300 IPC – As such, conviction recorded against appellant under Section 302 IPC set aside and conviction of appellant-accused under Section 302 IPC modified as one under Section 304 Part II, IPC – Sentence of 10 years’ simple imprisonment imposed on accused – Conviction recorded and sentence imposed on appellant modified. (Paras 13, 14 and 15)
       (B) Indian Penal Code, 1860 – Section 300, Exception 4 – Murder – Exceptions – There must be a sudden fight – There was no premeditation – Act was committed in a heat of passion and offender had not taken any undue advantage or acted in a cruel or unusual manner. (Para 13)
       Facts of Case:
       Murder case. Present criminal appeal is directed against judgment dated 11.10.2017 passed by High Court of Delhi at New Delhi in Criminal Appeal No.1316 of 2012, by which High Court has dismissed criminal appeal, confirming conviction and sentence imposed on appellant by Additional Sessions Judge, Karkardooma Courts, Delhi, whereby he has been convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment.
       Findings of Court:
       It is nothing but an act committed by appellant in a heat of passion. High Court has not given 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 regard to nature and manner of incident it cannot be said that act of appellant was extremely cruel. Unless it is barbaric, torturous and brutal, strangulation of appellant’s wife cannot be said to be an act of extreme cruelty for denying benefit of Exception 4 to Section 300 IPC.
       Result : Appeal Partly allowed.

JUDGMENT

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 for offence under Section 302 IPC and sentenced to undergo life imprisonment.

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 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’.”

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 con

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2019 Supreme(SC) 533

SUPREME COURT OF INDIAR. Banumathi, R. Subhash Reddy, JJ.Rambir – AppellantVersusState of NCT, Delhi – RespondentCRIMINAL APPEAL NO. 839 OF 2019 [Arising out of S.L.P.(Crl.) No.9781 of 2018]Decided On : 06-05-2019

IMPORTANT POINTS(1) Unintentional homicide is not murder.(2) Unless it is barbaric, torturous and brutal, act of homicide cannot be said to be an act of extreme cruelty for denying benefit of Exception 4 to Section 300 IPC to accused.

Cases Referred (1)

SUPREME COURT OF INDIA
R. Banumathi, R. Subhash Reddy, JJ.
Rambir – Appellant
Versus
State of NCT, Delhi – Respondent
CRIMINAL APPEAL NO. 839 OF 2019 [Arising out of S.L.P.(Crl.) No.9781 of 2018]
Decided On : 06-05-2019

IMPORTANT POINTS
(1) Unintentional homicide is not murder.
(2) Unless it is barbaric, torturous and brutal, act of homicide cannot be said to be an act of extreme cruelty for denying benefit of Exception 4 to Section 300 IPC to accused.