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

for  offence  under  Section  302  IPC  and  sentenced  to

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.