RAMBIR versus STATE OF NCT, DELHI on 6 May 2019

[2019] 7 S.C.R. 163

RAMBIR

v.

STATE OF NCT, DELHI

(Criminal Appeal No. 839 of 2019)

MAY 06, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Penal Code, 1860: ss. 300 exception 4, 302 – Murder –Husband-appellant strangulated his wife with saria and caused herdeath – Testimony of the eye witness-son of the victim, oral evidenceof prosecution witness whose statement was further corroborated,prosecution witness who had last seen the appellant leaving theplace of incident and two more prosecution witness who confirmedthe presence of the appellant – Conviction of the appellant foroffence u/s. 302 and sentenced to life imprisonment by the courtsbelow – On appeal, held: Since the incident occurred in suddenquarrel and there was no premeditation, the act was committed in aheat of passion, and having regard to nature and manner of incident,the act of the victim was not of extreme cruelty, thus, the act of theappellant would fall under Exception 4 to Section 300 – Convictionof the appellant modified to one u/s.304 Part II and sentence of 10years’ simple imprisonment imposed.

Partly allowing the appeal, the Court

HELD: 1.1 A plain reading of Exception 4 to Section 300IPC shows that the following four ingredients are required :theremust be a sudden fight; there was no premeditation; the act wascommitted in a heat of passion; and the offender had not takenany undue advantage or acted in a cruel or unusual manner. Byapplying the above tests, the High Court found that two of theingredients were absent so as to bring the case of the appellantunder Exception 4 to Section 300 IPC. The High Court foundthat the act of picking up a ‘saria’ and compressing forcefully theneck 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 isheld that, the manner in which the appellant compressed his wife’sneck also depicts an act of extreme cruelty. From the evidence

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164SUPREME COURT REPORTS

Aon record it is clear that incident occurred in a sudden fight andthere was no pre-meditation. Even the primary witness PW-7,the son of the accused and deceased, deposed that he had seenthe appellant strangulating his mother with the ‘saria’ when shehad taken out some money from the appellant’s wallet. It is notas if ‘saria’ was brought in a pre-planned way to murder the wifeBof the appellant. The iron rod (saria) was picked up at the spur ofthe moment at the time of incident and used to compress theneck forcefully. In that view of the matter it was nothing but anact committed by the appellant in a heat of passion. Having regardto nature and manner of incident, it cannot be said that act of theCappellant was extremely cruel. Unless it is barbaric, torturousand brutal, strangulation of the appellant’s wife cannot be said tobe an act of extreme cruelty for denying the benefit of Exception4 to Section 300 IPC. [Para 13] [168-F-H; 169-A-D]

1.2 The case of the appellant falls within Exception 4 toDSection 300. Having regard to evidence on record, all the fouringredients which are required to extend the benefit of Exception4 to Section 300, apply to the facts of the case on hand. Since theoccurrence in sudden quarrel and there was no premeditation,the act of the appellant-accused would fall under Exception 4 toSection 300. As such, the conviction recorded against theEappellant u/s 302 is set aside and the conviction of the appellant-accused u/s. 302 IPC is modified, as the one u/s. 304 Part IIand a sentence of 10 years’ simple imprisonment is imposed.[Para 14] [169-E-H; 170-A]

Surinder Kumar v. Union Territory, Chandigarh (1989)F2 SCC 217 : [1989] 1 SCR 941 - relied on.

Case Law Reference

[1989] 1 SCR 941relied on.Para 14

CRIMINAL APPELLATE JURISDICTION : Criminal AppealGNo. 839 of 2019.

From the Judgment and Order dated 11.10.2017 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 1316 of 2012.

Shikhil Suri, Shiv Kumar Suri, Advs. for the Appellant.

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Ms. Pinky Anand, ASG, Ashok Panigrahi, P. S. Sudheer, Ms. KirtiDua, B.V. Balaram Das, Advs. for the Respondent.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J. 1. Leave granted.

2. This criminal appeal is directed against the judgment dated11.10.2017 passed by the High Court of Delhi at New Delhi in CriminalAppeal No.1316 of 2012, by which High Court has dismissed the criminalappeal, confirming the conviction and sentence imposed on the appellantby the learned Additional Sessions Judge, Karkardooma Courts, Delhi,whereby he has been convicted for offence under Section 302 IPC andsentenced to undergo life imprisonment.

3. As per the case of the prosecution, on the intervening night of31.08.2010 and 01.09.2010, the appellant strangulated his wife – Suaand caused her death on the rooftop of the premises no.C-834, GaliNo.30/3, Jafrabad, Delhi. In connection with the said incident, a casewas registered in FIR No.205/2010 against the appellant-accused underSections 302 and 34 IPC on 01.09.2010. The appellant-accused wastried by the learned Additional Sessions Judge, Delhi. To prove the guiltof the appellant-accused, prosecution examined 18 witnesses. Afterconsidering the testimony of the prosecution witnesses and other evidenceon record, the learned trial court, i.e., learned Additional Sessions Judge,held that appellant is guilty for offence under Section 302 IPC, for themurder of his wife, vide judgment dated 19.07.2012. Further, the trialcourt, by order dated 23.07.2012 sentenced the appellant for lifeimprisonment for the offence under Section 302 IPC.

4. The conviction recorded and sentence imposed by the trial courtwas challenged before the High Court mainly on the following grounds :

“i) The Trial Court has erred in ignoring the fact that the presenceof Anurag: the child witness (PW-7) was highly doubtful on thescene of crime and his testimony could not be relied upon as thewitness PW-7 was a tutored witness.

ii) PW-1 (Constable Neeraj Kumar) who was posted asPhotographer in the Crime Team stated in his testimony that, ‘Noeye witness came forward before the IO claiming himself to haveseen any event in his presence’, whereas PW-7 has been cited asa witness of a crime.

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

iv) The Trial Court failed to consider the fact that the body of thedeceased was preserved for 72 hours before it was subjected toBpostmortem, from which it was apparent that the police had noclue about the accused. In these circumstances Anurag wasintroduced as a tutored witness. Neither any inquiry or investigationwas carried out as to where the child had been till then and fromwhere he was produced and by whom, which clearly suggestedthat the witness had been deliberately introduced.

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v) The Trial Court erred in presuming the fact relating to thepresence of the Appellant at the scene of occurrence for the entireperiod of inquiry whereas it had come in evidence that he hadbeen arrested through a secret informer which clearly shows aboutfalse implication of the Appellant.

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vi) the weapon of the offence ‘saria’ which was allegedly gotrecovered by the Appellant pursuant to his disclosure, was a pieceof rod bearing twist marks but the post mortem did not suggestwhether the strangulation mark appearing on the neck of thedeceased had those twist marks of the ‘saria’.”

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5. The High Court, by considering the judgment under appeal andby re-appreciating the evidence on record, has come to the conclusionthat prosecution has proved the case against the appellant beyond anyreasonable doubt. The reliance is placed by the trial court on the depositionof PW-7 who is the son of the appellant and deceased who was an eyeFwitness to the incident of murder. By further considering the oral evidenceof PW-7 whose statement was further corroborated by PW-9 – Fayaz,who had last seen the appellant leaving the place of incident in the morningat 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 hasGrecorded a finding that their deposition inspired confidence and all theaforesaid witnesses stood the test of cross-examination and thusconfirmed the finding of the trial court that appellant has strangulated hiswife with ‘saria’ as a result of which she died.

6. Further, while considering the plea of the appellant’s counselwho was appointed by the Delhi High Court Legal Services Committee,H

that the incident happened in the fit of anger and under influence ofliquor, lost his cool, picked up quarrel with the wife and strangulated herwith the help of ‘saria’, as such the case of the appellant falls withinException 4 to Section 300 IPC, the High Court has found that twoingredients of Exception 4 are missing. High Court has not acceptedsuch plea and confirmed the conviction under Section 302 IPC andsentence of life imprisonment imposed by the trial court.

7. This Court, by order dated 13.11.2018, has issued notice limitedto the nature of the punishment and the quantum of sentence.

8. We have heard Sri Shikhil Suri, learned counsel for the appellantand also Ms. Pinky Anand, learned Additional Solicitor General appearingfor the respondent-State.

9. In this appeal, mainly it is contended by learned counsel for theappellant that having regard to facts of the case and the evidence onrecord, no case is made out for convicting the appellant under Section302 IPC. It is submitted that the appellant had no intention to kill hiswife and there was no pre-meditation of any kind. According to learnedcounsel, it was a case of normal quarrel between the husband and wifewhich turned ugly upon the wife trying to forcibly take out money fromhis pocket. The submission of the appellant is that in the fit of anger, theappellant, who was under influence of liquor, lost his cool, picked up‘saria’ to hit his wife. It is submitted that he neither intended to causeher death nor did he realise during the sudden fight that his act of pressingher neck with ‘saria’ would cause her death. By referring to Exception4 to Section 300 IPC, learned counsel has submitted that all the fouringredients thereof apply to the facts of the case on hand and it is submittedthat the finding of the High Court, that two of the ingredients to bring thecase of the appellant under Exception 4 are not satisfied, runs contraryto the evidence on record.

10. On the other hand learned Additional Solicitor General appearingfor the respondent-State has submitted that it is a clear case of murderwhich 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 hasstrangulated his wife with a ‘saria’ as a result of which she died. It issubmitted that the act of picking up of ‘saria’ and compressing forcefullythe neck of his wife, can by no stretch of imagination be said to be an actcommitted in a fit of anger. Further it is submitted that the strangulation AB

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Awith the help of ‘saria’ is an extremely cruel act upon the appellant, assuch, the plea of Exception 4 to Section 300 IPC is negated rightly bythe High Court and there are no grounds to interfere.

11. Having heard learned counsel for the parties, we have perusedthe impugned judgment and other material placed on record.B

12. As indicated above, this Court has issued notice limited to thenature of punishment and quantum of sentence. While it is the case ofthe appellant that even by accepting the evidence on record, the case ofthe prosecution falls under Exception 4 to Section 300 IPC, as such, trialcourt and High Court have committed error in convicting the appellantCfor offence under Section 302 IPC and sentencing him for imprisonmentfor life. Even as per the case of the prosecution the incident occurredon the intervening night of 31.08.2010 and 01.09.2010 on the rooftop ofpremises no.C-834, Gali No.30/3, Jafrabad, Delhi. The primary witnessis PW-7 who is the son of the appellant and the deceased, who hasstated that he had seen the appellant strangulating his mother – theDdeceased – with the ‘saria’ after she had taken out some money fromthe appellant’s wallet. PW-15 – SI Dharmandra Pratap was the first toarrive at the scene of crime and testified as to presence of the body ofthe deceased on the terrace along with, among other things, a ‘saria’, anempty liquor bottle and a plastic glass. PW-9 – Fayaz, who was workingEin the workshop in the said premises, testified to have witnessed theappellant leaving the premises in the morning on 01.09.2010.13. A plain reading of Exception 4 to Section 300 IPC shows thatthe following four ingredients are required :

(i) There must be a sudden fight;F

(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 ina cruel or unusual manner.G

By applying the above tests, the High Court has found that two ofthe ingredients are absent so as to bring the case of the appellant underException 4 to Section 300 IPC. The High Court has found that the actof picking up a ‘saria’ and compressing forcefully the neck of his wifeby the appellant, can, by no stretch of imagination, be said to be an act H

committed in a heat of passion. Further it is held that, the manner inwhich the appellant compressed his wife’s neck also depicts an act ofextreme cruelty. From the evidence on record it is clear that incidentoccurred in a sudden fight and there was no pre-meditation. Even theprimary witness PW-7, the son of the accused and deceased, has deposedthat he had seen the appellant strangulating his mother - deceased –with the ‘saria’ when she had taken out some money from the appellant’swallet. It is not as if ‘saria’ was brought in a pre-planned way to murderthe wife of the appellant. The iron rod (saria) is picked up at the spur ofthe moment at the time of incident and used to compress the neckforcefully. In that view of the matter it is nothing but an act committedby the appellant in a heat of passion. Further, the High Court has notgiven the benefit of Exception 4 to Section 300 IPC on the ground thatappellant compressed his wife’s neck also depicts an act of extremecruelty. Having regard to nature and manner of incident it cannot besaid that act of the appellant was extremely cruel. Unless it is barbaric,torturous and brutal, strangulation of the appellant’s wife cannot be saidto be an act of extreme cruelty for denying the benefit of Exception 4 toSection 300 IPC.

14. Having regard to evidence on record, we are of the view thatthe case of the appellant falls within Exception 4 to Section 300 IPC.Further, the judgment in the case of Surinder Kumar v. Union Territory,Chandigarh[1] also supports the case of the appellant. In the aforesaidcase, the knife blows were inflicted in the heat of the moment, one ofwhich caused death of the deceased, this Court has held that accused isentitled to the benefit of Exception 4. In the aforesaid judgment, thisCourt further held that in a sudden quarrel, if a person, in the heat of themoment, picks up a weapon which is handy and causes injuries one ofwhich proves fatal, accused would be entitled to the benefit of Exception4. We are of the view that the said judgment supports the case of theappellant and further having regard to evidence on record we are of theview that all the four ingredients which are required to extend the benefitof Exception 4 to Section 300 IPC, apply to the facts of the case onhand. Since the occurrence in sudden quarrel and there was nopremeditation, the act of the appellant-accused would fall under Exception4 to Section 300 IPC. As such, the conviction recorded against theappellant under Section 302 IPC is liable to be set aside and is accordingly AB

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Aset aside and the conviction of the appellant-accused under Section 302IPC is modified, as the one under Section 304 Part II, IPC and weimpose a sentence of 10 years’ simple imprisonment on the accused.

15. The appeal is partly allowed and the conviction recorded andsentence imposed on the appellant stands modified as indicated above.

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Nidhi Jain

Appeal partly allowed.

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