[Non­Reportable]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1941/2010  

NAWAZ      ...Appellant Versus

THE STATE REP. BY INSPECTOR OF POLICE  ...Respondents

WITH

Criminal Appeal No. 2153/2013

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

The appellants herein were charged, tried and convicted for

offences punishable under Section 302 read with Section 34 and

Section 201 of the Indian Penal Code (hereinafter ‘IPC’). The High

Court confirmed the judgment of conviction passed by the Trial

Court and hence they are in appeal before us.

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2. The brief facts of the case are as under:­

Accused No. 1 – Smt. Ragila had an illicit relationship with

Accused No. 2 – Shri Nawaz. The accused No. 1 is the wife of the

deceased.

3. The deceased used to suspect the fidelity of Accused No. 1

as well  as his daughter’s integrity.  He was of the opinion that

Accused No.  2 Nawaz not  only  had an  illicit relationship with

Accused No. 1 but also with the elder daughter of the deceased.

4. On the date of the incident at about 9.00 a.m., the deceased

quarrelled with Accused No.1 and called her  a  ‘prostitute’.  He

also told her that Accused No. 1 has converted the daughter into

a prostitute as well. At that point of time, Accused No. 2 came

from the first floor and asked the deceased not to quarrel with

Accused No. 1 and her daughters. Since the deceased did not

stop, Accused No. 2 slapped the face of the deceased.

Immediately, thereafter, both the accused throttled the deceased

with the help of a towel and burnt the dead body to try to conceal

the offence. Subsequently, they transported the dead body in a

Maruti Car owned by PW 15 and abandoned the body elsewhere.

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5. The dead body was found after two days following the

incident by PW 1, who lodged the First Information Report. After

about  40  days, extra­judicial confession  of  Accused  No.1  was

recorded by PW 8 (teacher of the village) and based on the same

and other material collected subsequent thereto, the charge­sheet

came to be filed.

6. The Trial Court as well as the High Court convicted both the

accused for the offences punishable under Section 302 and

Section 201 of IPC.

7. Shri  S.  Nagamuthu, learned senior  counsel  appearing  on

behalf of the appellants, taking us through the material available

on record contends that the entire case is built up on the extra­

judicial confession which is a weak piece of evidence. He further

submits that there is no reason for  Accused  No.1 to confess

before PW 8 who is a teacher of a school  and stranger to the

family and that too after 40 days. He further draws our attention

that the dead­body was not identified even after superimposition

test. The aspect of motive is deposed by PW 17, who is the maid

servant working in the house of accused. According to him, if the

extra­judicial confession is disbelieved, the accused are entitled

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to get acquitted. Alternatively, he submitted that even assuming

that extra­judicial confession is believed in its entirety, the case

may fall under Section 304 Part I of the IPC.

8. Mr.  M.  Yogesh Kanna, learned counsel  appearing for the

State argued in support of the judgments of the Trial Court and

the High Court.

9. Both the Courts below have relied upon the extra­judicial

confession which  is  said  to  have been made by Accused No.1

before PW 8 who is a teacher of the school. We have perused the

extra­judicial  confession, read over to  us  by  Shri  Nagamuthu,

learned senior counsel, and translated by him in English.

10. It is no doubt that the extra­judicial confession is recorded

by PW 8 who is a teacher after about 40 days of the incident in

question. Admittedly PW 8 is not the relative of the deceased nor

the relative of the accused. If one goes through the extra­judicial

confession, it is clear that the same is recorded  as if it is a

statement recorded under Section 161 of the Code of Criminal

Procedure, 1973.

11. Be that as it may, both the Courts below on facts have relied

upon the extra­judicial  confession and we  find that the extra­

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judicial confession  in all  probability might have been made by

Accused No. 1  implicating herself  and other accused.  In other

words, we also subscribe to the views of the Trial Court as well as

by the High Court that such a confession was made by Accused

No.1

12. Material on record also reveals that Accused No.1 tried to

hide  the offence  for  about 40 days by giving  false explanation

about the whereabouts of her husband. Be that as  it may, on

going through the extra­judicial confession carefully, we find that

the case may fall under Section 304 Part I of IPC inasmuch as

the offence may fall under explanation 1 of Section 300.

Immediately, after hearing the deceased calling the Accused No. 1

and her  daughter  as  prostitutes, the  Accused  No.  2  suddenly

slapped the cheek of the deceased. Immediately, after receipt of

said assault, the deceased fell down unconscious and thereafter

he was throttled to death. Everything has occurred in the fraction

of a minute. Since the accused, because of the aforesaid conduct

of the deceased calling accused No. 1 and her daughter as

prostitute, was deprived of the power of self­control. The sudden

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provocation by the deceased has resulted in the incident in

question.

13. The deceased provoked  the  accused No.1  by uttering the

word ‘prostitute’. In our society, no lady would like to hear such a

word from her  husband.  Most importantly, she  would  not  be

ready to hear such a word against her daughters. The incident is

a result of a sudden  and  grave  provocation  by the  deceased.

Since the body came to be transported by the accused to a

different place in order to hide the offence, the accused are

rightly convicted for offence under Section 201 of IPC.

14. Having regard to the totality of the facts and circumstances

of the case, the following orders are made:­

(A) The judgments of the Trial Court in S.C. 10/2005 and the

High Court in  Criminal  Appeal  Nos.  563/2007 and 599/2007

convicting the accused for offence punishable under Section 302

of IPC stands  modified  and  the  accused  are  hereby  convicted

under Section 304 Part I of IPC and sentenced to rigorous

imprisonment for a term of ten years. Sentence imposed on the

accused under Section 304 Part I and Section 201 IPC shall run

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concurrently. The accused will have the benefit of set off of the

period already undergone in prison.

(B) The appeals are accordingly allowed in part.  

........................J (MOHAN M. SHANTANAGOUDAR)

........................J (DINESH MAHESHWARI)

NEW DELHI; 22ND JANUARY, 2019.

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