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]
State of NCT, Delhi …Respondent
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. This rapist interest is destined opposite a visualisation antiquated 11.10.2017 upheld by a High Court of Delhi during New Delhi in Criminal Appeal No.1316 of 2012, by that High Court has discharged a rapist appeal, confirming a self-assurance and visualisation imposed on a appellant by a schooled Additional Sessions Judge, Karkardooma Courts, Delhi, whereby he has been convicted for corruption underneath Section 302 IPC and condemned to bear life imprisonment.
3. As per a box of a prosecution, on a inserted night of 31.08.2010 and 01.09.2010, a appellant strangulated his mom – Sua and caused her genocide on a rooftop of a premises no.C-834, Gali No.30/3, Jafrabad, Delhi. In tie with a pronounced incident, a box was purebred in FIR No.205/2010 opposite a appellant-accused underneath Sections 302 and 34 IPC on 01.09.2010. The appellant-accused was attempted by a schooled Additional Sessions Judge, Delhi. To infer a shame of a appellant-accused, charge examined 18 witnesses. After deliberation a testimony of a charge witnesses and other justification on record, a schooled hearing court, i.e., schooled Additional Sessions Judge, hold that appellant is guilty for corruption underneath Section 302 IPC, for a murder of his wife, vide visualisation antiquated 19.07.2012. Further, a hearing court, by sequence antiquated 23.07.2012 condemned a appellant for life seizure for a corruption underneath Section 302 IPC.
4. The self-assurance available and visualisation imposed by a hearing justice was challenged before a High Court especially on a following drift :
“i) The Trial Court has erred in ignoring a fact that a participation of Anurag: a child declare (PW-7) was rarely puzzled on a stage of crime and his testimony could not be relied on as a declare PW-7 was a tutored witness.
ii) PW-1 (Constable Neeraj Kumar) who was posted as Photographer in a Crime Team settled in his testimony that, ‘No eye declare came brazen before a IO claiming himself to have seen any eventuality in his presence’, since PW-7 has been cited as a declare of a crime.
iii) None of a witnesses had deposed about a participation of PW-7 during a stage of a crime since a declare PW-7 had deposed that he was also sleeping on a roof.
iv) The Trial Court unsuccessful to cruise a fact that a physique of a defunct was available for 72 hours before it was subjected to postmortem, from that it was apparent that a military had no idea about a accused. In these resources Anurag was introduced as a tutored witness. Neither any exploration or review was carried out as to where a child had been compartment afterwards and from where he was constructed and by whom, that clearly suggested that a declare had been deliberately introduced.
v) The Trial Court erred in supposed a fact relating to a participation of a Appellant during a stage of occurrence for a whole duration of exploration since it had come in justification that he had been arrested by a tip informer that clearly shows about fake import of a Appellant.
vi) a arms of a corruption ‘saria’ that was allegedly got recovered by a Appellant pursuant to his disclosure, was a square of rod temperament turn outlines though a post mortem did not advise either a strangulation symbol appearing on a neck of a defunct had those turn outlines of a ‘saria’.”
5. The High Court, by deliberation a visualisation underneath interest and by re-appreciating a justification on record, has come to a end that charge has valid a box opposite a appellant over any reasonable doubt. The faith is placed by a hearing justice on a deposition of PW-7 who is a son of a appellant and defunct who was an eye declare to a occurrence of murder. By serve deliberation a verbal justification of PW-7 whose matter was serve advanced by PW-9 – Fayaz, who had final seen a appellant withdrawal a place of occurrence in a morning during 06:30 a.m. and on a deposition of PW-17 – Kishan and PW-18 – Shahid who reliable a participation of a appellant, a High Court has available a anticipating that their deposition desirous certainty and all a aforesaid witnesses stood a exam of interrogate and so reliable a anticipating of a hearing justice that appellant has strangulated his mom with ‘saria’ as a outcome of that she died.
6. Further, while deliberation a defence of a appellant’s warn who was allocated by a Delhi High Court Legal Services Committee, that a occurrence happened in a fit of annoy and underneath change of liquor, mislaid his cool, picked adult argue with a mom and strangulated her with a assistance of ‘saria’, as such a box of a appellant falls within Exception 4 to Section 300 IPC, a High Court has found that dual mixture of Exception 4 are missing. High Court has not supposed such defence and reliable a self-assurance underneath Section 302 IPC and visualisation of life seizure imposed by a hearing court.
7. This Court, by sequence antiquated 13.11.2018, has released notice singular to a inlet of a punishment and a quantum of sentence.
8. We have listened Sri Shikhil Suri, schooled warn for a appellant and also Ms. Pinky Anand, schooled Additional Solicitor General appearing for a respondent-State.
9. In this appeal, especially it is contended by schooled warn for a appellant that carrying courtesy to contribution of a box and a justification on record, no box is done out for convicting a appellant underneath Section 302 IPC. It is submitted that a appellant had no goal to kill his mom and there was no pre-meditation of any kind. According to schooled counsel, it was a box of normal argue between a father and mom that incited nauseous on a mom perplexing to forcibly take out income from his pocket. The acquiescence of a appellant is that in a fit of anger, a appellant, who was underneath change of liquor, mislaid his cool, picked adult ‘saria’ to strike his wife. It is submitted that he conjunction dictated to means her genocide nor did he realize during a remarkable argue that his act of dire her neck with ‘saria’ would means her death. By referring to Exception 4 to Section 300 IPC, schooled warn has submitted that all a 4 mixture thereof request to a contribution of a box on palm and it is submitted that a anticipating of a High Court, that dual of a mixture to move a box of a appellant underneath Exception 4 are not satisfied, runs discordant to a justification on record.
10. On a other palm schooled Additional Solicitor General appearing for a respondent-State has submitted that it is a transparent box of murder that is valid opposite a appellant by 4 element witnesses, viz., PW-7; PW9; PW-17 and PW-18. It is submitted that a appellant has strangulated his mom with a ‘saria’ as a outcome of that she died. It is submitted that a act of picking adult of ‘saria’ and compressing forcefully a neck of his wife, can by no widen of imagination be pronounced to be an act committed in a fit of anger. Further it is submitted that a strangulation with a assistance of ‘saria’ is an intensely vicious act on a appellant, as such, a defence of Exception 4 to Section 300 IPC is negated righteously by a High Court and there are no drift to interfere. 11. Having listened schooled warn for a parties, we have perused a impugned visualisation and other element placed on record.
12. As indicated above, this Court has released notice singular to a inlet of punishment and quantum of sentence. While it is a box of a appellant that even by usurpation a justification on record, a box of a charge falls underneath Exception 4 to Section 300 IPC, as such, hearing justice and High Court have committed blunder in convicting a appellant for corruption underneath Section 302 IPC and sentencing him for seizure for life. Even as per a box of a charge a occurrence occurred on a inserted night of 31.08.2010 and 01.09.2010 on a rooftop of premises no.C-834, Gali No.30/3, Jafrabad, Delhi. The primary declare is PW-7 who is a son of a appellant and a deceased, who has settled that he had seen a appellant strangulating his mom – a defunct – with a ‘saria’ after she had taken out some income from a appellant’s wallet. PW-15 – SI Dharmandra Pratap was a initial to arrive during a stage of crime and testified as to participation of a physique of a defunct on a patio along with, among other things, a ‘saria’, an dull wine bottle and a cosmetic glass. PW-9 – Fayaz, who was operative in a seminar in a pronounced premises, testified to have witnessed a appellant withdrawal a premises in a morning on 01.09.2010.
13. A plain reading of Exception 4 to Section 300 IPC
shows that a following 4 mixture are compulsory :
(i) There contingency be a remarkable fight;
(ii) There was no premeditation;
(iii) The act was committed in a feverishness of passion;and
(iv) The delinquent had not taken any undueadvantage or acted in a vicious or surprising manner.
By requesting a above tests, a High Court has found that dual of a mixture are absent so as to move a box of a appellant underneath Exception 4 to Section 300 IPC. The High Court has found that a act of picking adult a ‘saria’ and compressing forcefully a neck of his mom by a appellant, can, by no widen of imagination, be pronounced to be an act committed in a feverishness of passion. Further it is hold that, a demeanour in that a appellant dense his wife’s neck also depicts an act of impassioned cruelty. From a justification on record it is transparent that occurrence occurred in a remarkable argue and there was no pre-meditation. Even a primary declare PW-7, a son of a indicted and deceased, has deposed that he had seen a appellant strangulating his mom – defunct – with a ‘saria’ when she had taken out some income from a appellant’s wallet. It is not as if ‘saria’ was brought in a pre-planned approach to murder a mom of a appellant. The iron rod (saria) is picked adult during a coax of a impulse during a time of occurrence and used to restrict a neck forcefully. In that perspective of a matter it is zero though an act committed by a appellant in a feverishness of passion. Further, a High Court has not given a advantage of Exception 4 to Section 300 IPC on a belligerent that appellant dense his wife’s neck also depicts an act of impassioned cruelty. Having courtesy to inlet and demeanour of occurrence it can't be pronounced that act of a appellant was intensely cruel. Unless it is barbaric, torturous and brutal, strangulation of a appellant’s mom can't be pronounced to be an act of impassioned cruelty for denying a advantage of Exception 4 to Section 300 IPC.
14. Having courtesy to justification on record, we are of a perspective that a box of a appellant falls within Exception 4 to Section 300 IPC. Further, a visualisation in a box of Surinder Kumar v. Union Territory, Chandigarh also supports a box of a appellant. In a aforesaid case, a blade blows were inflicted in a feverishness of a moment, one of that caused genocide of a deceased, this Court has hold that indicted is entitled to a advantage of Exception 4. In a aforesaid judgment, this Court serve hold that in a remarkable quarrel, if a person, in a feverishness of a moment, picks adult a arms that is accessible and causes injuries one of that proves fatal, indicted would be entitled to a advantage of Exception 4. We are of a perspective that a pronounced visualisation supports a box of a appellant and serve carrying courtesy to justification on record we are of a perspective that all a 4 mixture that are compulsory to extend a advantage of Exception 4 to Section 300 IPC, request to a contribution of a box on hand. Since a occurrence in remarkable argue and there was no premeditation, a act of a appellant-accused would tumble underneath Exception 4 to Section 300 IPC. As such, a self-assurance available opposite a appellant underneath Section 302 IPC is probable to be set aside and is accordingly set aside and a self-assurance of a appellant-accused underneath Section 302 IPC is modified, as a one underneath Section 304 Part II, IPC and we levy a visualisation of 10 years’ elementary seizure on a accused.
15. The interest is partly authorised and a self-assurance available and visualisation imposed on a appellant stands mutated as indicated above.
[R. Subhash Reddy]
May 06, 2019.