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Feroz vs State Nct Of Delhi on 8 January, 2018

$~R-1.
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Date of Decision: 08.01.2018

% CRL.A. 19/2013

FEROZ ….. Appellant
Through: Mr. K. Singhal, Advocate.

versus

STATE NCT OF DELHI ….. Respondent
Through: Mr. Rajat Katyal, APP for the State.

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE P. S. TEJI

VIPIN SANGHI, J. (ORAL)

1. The appellant has preferred the present appeal to assail the judgment
dated 06.10.2012 passed by the learned ASJ (Central), Delhi in SC
No.07/2011 arising out of FIR No.158/2010 registered at PS – Ranjeet
Nagar under Section 498A/ 302/ 34 IPC, whereby the appellant has been
convicted under Section 302 IPC for commission of murder of his wife. At
the same time, the appellant was acquitted of offence under Section 498A
IPC. By the order on sentence dated 06.10.2012, the appellant has been
sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-,
or in default of payment of fine, he is directed to undergo further Rigorous
Imprisonment for two months for the offence under Section 302 IPC.

CRL.A. 19/2013 Page 1 of 13

2. Apart from the appellant, his mother Mehrunisha had also been
similarly charged. However, she had been acquitted by the Trial Court of all
the charges.

3. The facts in brief are that on the night of 11/12.08.2010, while the
appellant and his deceased wife were, admittedly, sleeping in their room at
their jhuggi situated at E-802, Jhuggi, Shadipur Flyover, K.D. Colony,
Delhi, the deceased died an unnatural death. The medical opinion of Dr.
Komal Singh (PW-8) is that as per the post-mortem, the death appeared due
to homicidal hanging. The post-mortem report (Ex. PW-8/A) showed
several bruises and abrasions on the body of the deceased. As per the post-
mortem report (Ex. PW-8/A), inter alia, the following findings were
reported:

 Ligature mark present on the anterior aspect of the neck,
above the thyroid cartilage going obliquely on the right
side of the neck upto the posterior hair line and on left
side went horizontally upto the left mastoid process.

 Total circumference of neck is 30cm, the ligature mark of
size 23cm x 1cm in the form of groove reddish black in
colour, 5cm below from the base of chin, 13 cm above
from m. Sternii, 8cm of left, 5cm from chin, 5cm below
from right Mastoid and 8cm below from left mastoid.

EXTERNAL EXAMINATION: External Injuries

1. Bruise present over the upper left side of the arm on its
lateral aspect, size 3.2cm x 1.4cm oval in shape under
near collection of clotted blood dark reddish black in
colour.

CRL.A. 19/2013 Page 2 of 13

2. Pressure abrasion present on the right upper chest of size
2cm x 1.4cm dark reddish black in colour in reglar in
shape.

3. Bruise present on the anterior aspect of right shoulder
joint of size 2cm x 0.8cm under near collection of clotted
blood dark reddish black in colour.”

4. The Trial Court, while convicting the appellant, placed the onus upon
him – by resort to Section 106 of the Evidence Act, to explain the
circumstances in which his wife had died. The Trial Court held that the
appellant had failed to explain the circumstances in which the death of his
wife had taken place. The defence of the accused/ appellant that the death of
his wife was on account of suicidal hanging was not probablised.

5. In the aforesaid background, after some arguments, learned counsel
for the petitioner, on instructions, has restricted his submissions to submit
that even if the death of the deceased was homicidal, the case would be
covered by the fourth exception to Section 300 IPC and, consequently, the
appellant was liable to be convicted under Section 304 Part-I or Part-II, and
not under Section 302 IPC.

6. The submission of Mr. Singhal is that since the appellant stands
acquitted under Section 498A IPC, and the said finding has attained finality

– as no leave petition was preferred by the State or by any of the relatives of
the deceased, no motive has been proved against the appellant for
commission of the murder of the deceased. It was not the prosecution’s case
that the appellant had any other extra-marital affair, nor any other motive
was established before the Trial Court. He submits that, at the highest, the
evidence brought on record probablises the theory that there is a quarrel

CRL.A. 19/2013 Page 3 of 13
between the appellant and his wife, and without any pre-meditation, on
account of a sudden fight in the heat of passion, the death of the deceased
was caused.

7. Mr. Singhal submits that the prosecution has failed to bring on record
any independent evidence of the intentional killing of the deceased by the
appellant. He, therefore, submits that the present case should be treated as
one falling under Part-II of Section 304 IPC.

8. In support of his submissions, Mr. Singhal has placed reliance on K.
Ravi Kumar Vs. State of Karnataka, (2015) 2 SCC 638. This too was a
case where the wife of the accused was found dead at her matrimonial home.
The couple had been married for nine years and had two children. While
giving the benefit of Exception IV to Section 300 IPC to the appellant, the
Supreme Court observed:

“16. Keeping in view the approach of this Court for giving
benefit of Exception 4 to Section 300 IPC in cases mentioned
above and applying the same to the facts of this case, we are
inclined to give benefit of Exception 4 to Section 300 IPC to the
appellant by altering his sentence awarded to the appellant
punishable under Section 304 Part II IPC. This we say so in the
facts of this case for more than one reason. Firstly, even
according to the prosecution, there was no premeditation in
the commission of crime. Secondly, there is not even a
suggestion or we may say conclusive evidence that the
appellant had any predetermined motive or enmity to commit
the offence against the deceased leave alone a serious offence
like murder. Thirdly, incident that occurred was due to
sudden quarrel which ensued between the appellant-accused
and the deceased Padma on the issue of going to Village
Mandya to see the appellant’s ailing father. The appellant, on
receiving this news, had become upset and, therefore, his

CRL.A. 19/2013 Page 4 of 13
insistence to see his ailing father immediately was natural and
at the same time, Padma’s refusal to leave could lead to heated
exchange of words between them. True, it is that it reached to
its extreme inasmuch as the appellant in heated exchange of
words lost his mental balance and poured kerosene on Padma
setting her to burn. However, the fact remains that it was an
outcome of sudden outburst and heated exchange with no
predetermined motive per se to kill her. Fourthly, no
conclusive evidence was adduced by the prosecution to prove
any kind of constant quarrel ever ensued in the last 9 long
years between the couple and that too for a cause known to
others which could lead to killing Padma or whether any
unsuccessful attempt was ever made by the appellant to kill
her in past and lastly, we have not been able to see from the
post-mortem report that any stab injury on Padma’s body was
caused nor was prosecution able to prove that any
bloodstained knife from the place of occurrence was
recovered at the instance of the appellant or of any witness.”
(emphasis supplied)

9. In the present case, the couple had been married for three years and
they had a daughter, who was a little over a year old at the time of demise of
the deceased. She was also pregnant with a fetus of four months. No
motive for the commission of the offence of murder was proved. Apart
from the fatal homicidal hanging, no incise wound or cut was found on the
body of the deceased, and all that was found were bruises and abrasions,
which are likely to result in the eventuality of beating.

10. Reliance has also been placed on the decision of the Supreme Court in
Devendra Nath Srivastava Vs. State of U.P., Crl. Appeal No.87/2008
decided on 06.04.2017. In this case, the death of the deceased-wife took
place at the hands of the appellant-husband and the autopsy report disclosed
the following injuries on the body of the deceased:

CRL.A. 19/2013 Page 5 of 13

“(1) Lacerated wound 5 cm x 4 cm x bone deep on back of left
ear. Clotted blood seen in the wound.

(2) Multiple red contusion in area of 10 cm x 8 cm on left side
of face.

(3) Lacerated wound 3 cm x 1 cm x bone deep just below the
left mandible and 2.5 cm on left to the chin. Clotted blood seen
in the wound.

(4) Lacerated wound 1.5 cm x .5 cm x bone deep on the chin
surrounded by red contusion in the area of 4 cm x 3 cm.
(5) Lacerated wound 2 cm x 1 cm x muscle deep on right side of
forehead adjacent to the right eyebrow. Blood clots seen in the
wound.

(6) Incised wound 6 cm x 1 cm x muscle deep on left side of
neck 7 cm below the left ear.

(7) Red contusion 5 cm x 3 cm across the trachea on the front of
neck.

(8) Red contusion with abrasion in the area of 13 cm x 5 cm
along right collar bone.

(9) Red contusion with abrasion 3 cm x 2 cm on top of left
shoulder joint.”

11. The Medical Officer opined that the deceased had died of
strangulation. The couple had a strained relationship. There were also
allegations of previous cruelty upon the husband by the wife. The Supreme
Court held on the basis of the evidence on record that the appellant had
caused the homicidal death of his wife after quarrel between the two. The
Supreme Court also observed that the appellant acted in a fit of anger. There
was no evidence to show that the appellant had any extra-marital affair.
Consequently, the Supreme Court in paragraph 18 held as follows:

CRL.A. 19/2013 Page 6 of 13

“18. As to whether the act on the part of the appellant
constitutes the offence punishable under Section 302 IPC or
Section 304 Part I IPC, we are of the view that the incident has
occurred after quarrel between the appellant and the deceased
which is not a planned act. It is also established that the
appellant was a drunkard. In our opinion, in the facts and
circumstances of the case, the view taken by the High Court,
that the appellant has committed offence punishable under
Section 304 Part I IPC, requires no interference.”

12. The Supreme Court also placed reliance on its earlier decision in State
of Andhra Pradesh Vs. Rauavarapu Punnayya Another, 1977 1 SCR

601.

13. Reliance has also been placed on the decision of a Division Bench of
the Rajasthan High Court in Hari Ram Vs. State of Rajasthan, D.B. Crl.
Appeal No.491/2009 decided on 09.01.2017. This too was a case of
homicidal death of the wife at her matrimonial home at the hands of the
husband. In this case too, the appellant was given the benefit of Exception
IV of Section 304 IPC. The Division Bench, inter alia, observed:

“It is also observed that it is not a case of demand of dowry, but
it is a case in which presumption is required to be drawn
against the accused appellant under Section 106 of Evidence
Act because the case is based upon circumstantial evidence and
accused and victim only were persons present at the place of
incident. Therefore, burden lies on the accused to give
explanation in order to absolve him from suspicion. After due
consideration of entire evidence, there is no doubt in this case
that there is no direct evidence to connect the accused
appellant with the crime. The only evidence is that the
accused appellant and the deceased were residing together in
a room as husband and wife, where the dead body of Manju
was found. It also emerges from the record that a dispute was
going on in between the family of accused appellant as well as

CRL.A. 19/2013 Page 7 of 13
deceased because the marriage of sister of appellant was
solemnized with Sayara Ram (brother of deceased, with whom
Smt. Shanti was not willing to reside), and deceased was
married with accused appellant, in “Aata-Sata” and due to
said reason which is not even investigated into by the
investigating agency, that Shanti (sister of appellant) was
residing with her parents and accused appellant. Therefore,
the relation of both the families was not cordial. But upon
perusal of the statement of PW.8, Naju (mother of deceased), it
is obvious that there was no doubt expressed by PW.8 against
the accused appellant and the only statement is given by her
that Shanti, wife of his son, was residing from last two years
with her parents without any reason and behaviour of in-laws
of her daughter, was not good with her. In the cross-
examination also, it is stated by PW.8, Naju, that efforts were
made by her for taking back Shanti to her matrimonial home, to
which she was agreeable.

We have minutely considered the entire evidence coupled
with the arguments of learned counsel for the appellant with
regard to incident. Upon assessment of entire evidence, it is
obvious that there was no demand of dowry and there is no
specific allegation against the accused appellant with regard
to his behaviour with deceased, Manju, since his marriage.
The only allegation is that there was quarrel in between the
families because Shanti, sister of accused appellant was not
ready to go with Sayara Ram, brother of deceased. It is also
true that in the statements recorded under Section 313 Cr.P.C.,
the accused appellant took a plea that he was out from village
Bhanwari on the date of incident and went to Sumerpur to meet
his relative, but the learned trial court while drawing
presumption u/s 106 of the Evidence Act, held the accused
appellant guilty because the appellant as well as Smt. Manju,
were residing together in the room.

In our opinion, there is no doubt that presumption can
be drawn against the accused appellant under Section 106 of
Evidence Act if husband wife were residing in a room and
wife was found dead in the morning. Therefore, we hold that

CRL.A. 19/2013 Page 8 of 13
there is evidence on record with regard to incident occurred in
the room, where dead of Smt. Manju was found and in that
room accused appellant and deceased were residing but at the
same time, we cannot lose sight of the fact that there is no
evidence on record with regard to ill-treatment being meted
out to the deceased by the appellant since his marriage.
Furthermore, from the wedlock of accused appellant and
deceased, one son was born and they were residing happily
and there is no evidence of any motive.

The basic requirement to convict an accused for offence
u/s 302 of IPC is that there must be motive/intention to kill any
person and in absence of “motive”, obviously the case
squarely falls within the exception 4 of Section 300 of IPC.
We have considered the argument of learned counsel for the
appellant in this regard and after overall assessment, we are of
the opinion that in absence of evidence of motive, it cannot be
said the finding of learned trial court which is based upon
presumption drawn u/s 106 of the Evidence Act, for
committing offence u/s 302 of IPC by the accused appellant, is
sustainable in law.

As per verdict of Hon’ble Apex Court even if the
evidence of eye witness is on record and it is found that
incident took place in a spur of moment or without
premeditation and no conclusive evidence of pre-determined
motive or enmity, then accused cannot be convicted for
offence u/s 302 of IPC. In the case of in the case of K. Ravi
Kumar (supra), the Hon‟ble Apex Court while following
various judgments held that accused appellant is entitled for
benefit of exception 4 of Section 300 of IPC if prosecution has
failed to lead evidence to prove the motive for committing
offence of murder. The Hon‟ble Apex Court in the case of K.
Ravi Kumar (supra) held as under: –

“14. Keeping in view the approach of this Court
for giving benefit of Exception 4 to Section 300
IPC in cases mentioned above and applying the
same to the facts of this case, we are inclined to

CRL.A. 19/2013 Page 9 of 13
give benefit of Exception 4 to Section 300 IPC to
the appellant by altering his sentence awarded to
the appellant punishable under Section 304 Part II
IPC. This we say so in the facts of this case for
more than one reason. Firstly, even according to
the prosecution, there was no premeditation in the
commission of crime. Secondly, there is not even a
suggestion or we may say conclusive evidence that
the appellant had any pre-determined motive or
enmity to commit the offence against the deceased
leave alone a serious offence like murder. Thirdly,
incident that occurred was due to sudden quarrel
which ensued between the appellant-accused and
the deceased-Padma on the issue of going to
village Mandya to see the ailing appellant’s father.
The appellant, on receiving this news, had become
upset and, therefore, his insistence to see his ailing
father immediately was natural and at the same
time, Padma’s refusal to leave could lead to heated
exchange of words between them. True, it is that it
reached to its extreme inasmuch as the appellant
in heated exchange of words lost his mental
balance and poured kerosene on Padma setting
her to burn. However, the fact remains that it was
an outcome of sudden outburst and heated
exchange with no predetermined motive per se to
kill her. Fourthly, no conclusive evidence was
adduced by the prosecution to prove any kind of
constant quarrel ever ensued in the last 9 long
years between the couple and that too for a cause
known to others which could lead to killing Padma
or whether any unsuccessful attempt was ever
made by the appellant to kill her in past and lastly,
we have not been able to see from the post-mortem
report that any stab injury on Padma’s body was
caused nor prosecution was able to prove that any
blood stained knife from the place of occurrence

CRL.A. 19/2013 Page 10 of 13
was recovered at the instance of the appellant or
of any witness.

15. In the light of the aforementioned reasons,
which, in our opinion, emerge from the evidence
on record, we are of the considered view that these
reasons are sufficient to give benefit of Exception 4
to Section 300 IPC to the appellant and enables
the Court to hold that the offence in question was
not murder but it was an offence of culpable
homicide not amounting to murder as specified in
Exception 4 to Section 300 and hence punishable
under Section 304 part II IPC

16. In the result, we allow the appeal but only to
the extent that instead of Section 302 IPC, the
appellant shall stand convicted for the offence of
culpable homicide not amounting to murder
punishable under Section 304 Part II IPC and
accordingly sentenced to undergo rigorous
imprisonment for a period of 10 years. The
conviction and sentence imposed under Section
498-Aas also the fine imposed upon the appellant
and the default sentence awarded to him shall
remain unaltered which shall run concurrently.

17. The appeal is accordingly disposed of in above
terms in modification of the orders passed by the
courts below.”

Upon consideration of evidence of this case, we are of
the opinion that it is a fit case to give benefit of exception 4 of
Section 300 of IPC to the accused appellant on the ground
that even according to prosecution case, there was no pre-
meditation in commission of crime; and secondly, there is not
even a suggestion or we may say conclusive evidence that the
appellant had any predetermined motive or enmity to commit
the offence against the deceased leave alone a serious offence
like murder. Thirdly, no conclusive evidence is adduced by the

CRL.A. 19/2013 Page 11 of 13
prosecution to prove any kind of constant quarrel ever
ensured since marriage between the couple and that too for a
cause known to others, which could lead to killing Manju or
whether any unsuccessful attempt was ever made by the
appellant to kill her in past.” (emphasis supplied)

14. When the facts of the present case are appreciated in the light of the
aforesaid rulings, we find that in the present case the conviction of the
appellant under Section 302 IPC cannot be sustained. It is clearly
established that the death of the deceased was homicidal. It is evident that it
is the appellant who is responsible for the same. He has not been able to
discharge the presumption against him cast by Section 106 of the Evidence
Act. He has not probablised his defence that the hanging of the deceased
was suicidal. The death of the deceased took place in the dead of the night
when, admittedly, the appellant was with the deceased. The other injuries
found on the body of the deceased also establish that the death of the
deceased was preceeded by quarrel and violence inasmuch, as, there were
several injuries found on the body of the deceased, which were ante-mortem.

15. At the same time, since no motive has been found for the appellant to
have murdered his wife, the appellant, in our view, is entitled to the benefit
of Exception IV to Section 300 IPC. It appears to us that the appellant
caused the death of the deceased without pre-meditation in a sudden fight or
a sudden quarrel, and in the heat of passion. The death was caused by
hanging and no specific weapon was used which, if used, would have
indicated pre-meditation on the part of the appellant to commit the murder
of his wife. The prosecution has not established that the rope used in
hanging was arranged by the appellant as per plan.

CRL.A. 19/2013 Page 12 of 13

16. In these circumstances, we set aside the conviction of the appellant
under Section 302 IPC. At the same time, he is liable to be convicted under
Section 304 Part-I IPC in view of the decisions taken note of hereinabove
and the facts of the present case.

17. The nominal roll on record dated 28.09.2016 shows that the appellant
had undergone, as on 27.09.2016, a sentence of 6 years and 29 days, apart
from earning remission of 1 year, 4 months and 25 days. The record shows
that the sentence of the appellant was suspended for a period of 1 month
vide order dated 20.02.2017. It was again suspended for a period of 10 days
vide order dated 13.11.2017. Thus, the appellant would have undergone a
sentence of more than 7 years and 3 months, and have earned remission of 1
year and 7-8 months as on date.

18. The record shows that the daughter of the appellant, who is now about
9 years, is suffering from kidney stones and has to be operated upon for the
same.

19. Considering all the aforesaid circumstances, we sentence the appellant
to the period already undergone. The appellant is directed to be released
forthwith, if not required in any other case.

VIPIN SANGHI, J

P.S.TEJI, J

JANUARY 08, 2017
B.S. Rohella

CRL.A. 19/2013 Page 13 of 13

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