Full Text
CRL. A. 276/2013
JUDGMENT
ANUJ KUMAR TIWARI ……..…Appellant
Through: Mr. Chetan Anand, Advocate.
Through: Ms. Aashaa Tiwari, APP for the State.
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. Present appeal has been filed under Section 374 (2) of the Code of Criminal Procedure and is directed against the judgment dated 03.11.2012 and order on sentence dated 19.11.2012 passed by the Additional Sessions Judge in Sessions Case No. 152/10, by virtue of which the appellant has been convicted under Section 302/201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay Rs.1,000/- as fine and in default of payment of fine to further undergo simple imprisonment for a period of one month for the offence punishable under Section 302 of the Indian Penal Code. The appellant was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 201 of the Indian Penal Code and in default 2016:DHC:2327-DB of payment of fine to further undergo simple imprisonment for one month. Both the sentences were ordered to run concurrently.
2. The facts of the case are as under:
3. After completion of investigation, charge sheet for the offence under Section 302 of the Indian Penal Code was filed. The accused entered the plea of not guilty and claimed trial. The prosecution relied on the testimonies of 35 witnesses, besides the exhibits produced during the trial. The statement under Section 313 of the Code of Criminal Procedure was recorded wherein the appellant denied all the incriminating circumstances appearing in evidence against him and claimed to be falsely implicated.
4. Challenging the findings of the trial court, Mr. Chetan Anand, learned counsel appearing on behalf of the appellant contended that the judgment of the trial court is liable to be set aside on the ground that there is no eye witness in the present case. The counsel further contended that the circumstance of last seen is belied by the testimony of PW10 who in his cross examination categorically stated that he had not seen the appellant and only PW[4] Rahul had seen him.
5. Counsel for the appellant submitted that the prosecution has miserably failed to prove the motive behind the alleged offence and that the fact of illicit relationship between the appellant and the deceased was not proved.
6. In the alternative, the learned counsel for the appellant addressed submission on the aspect of applicability of Section 302 of the Indian Penal Code in the facts of the present case. It was fervently urged that even on a demurrer if the allegations leveled by the prosecution were accepted in its entirety, the present case would fall within the ambit of Section 304 Part II of the Indian Penal Code as the intention to kill the deceased could not be fastidiously imputed upon the appellant. The incident occurred on extreme provocation and at the spur of the moment without any premeditation. Admittedly, according to the post mortem report there were no marks of violence found upon the body of the deceased except abrasions and bruises upon the neck that were evidently suffered by the deceased during the process of strangulation. It was highlighted that the pressure exerted on the neck was not excessive, in as much as the hyoid bone or other structures underneath were not found fractured. It was submitted that the unfortunate saga transpired in a fit of rage during a sudden quarrel that erupted between the two. The appellant was not armed and used chunni of the deceased to commit the alleged offence. He did not take any undue advantage or acted in a cruel or unusual manner.
7. The counsel for the appellant has argued that the present case is squarely covered under Exception 4 of Section 300 of the Indian Penal Code, which reads as under:
Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.”
8. To substantiate his arguments learned counsel for the appellant has relied on the judgment of the Apex Court Brajendrasingh Vs. State of Madhya Pradesh reported in AIR 2012 SCC 1552, the relevant para 16 and 17 are as under:
9. Per contra, Ms. Aashaa Tiwari learned APP for the State submits that the evidence produced on record clearly establishes the guilt of the appellant and the trial court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and hence the findings warrant no interference, accordingly the appeal is liable to be dismissed.
10. The counsel for the State vehemently urged that the commission of the alleged offence is supported by the Call Detail Record (CDR) of the deceased and the appellant. The location of the mobile phones was found to be in the vicinity of the Lajpat Nagar area where the alleged offence was committed. The counsel submitted that the circumstance of last seen along with the medical and electronic evidence has proved the case beyond any shadow of doubt.
11. The counsel for the State further submitted that the non explanation of the appellant under Section 313 of the Code of Criminal Procedure, goes against the appellant which guarantees the correctness of the prosecution allegation.
12. We heard learned counsel for both the parties and considered their rival submissions. The counsel also took us through the record of the trial court and the testimonies of the witnesses.
13. In this case, on consideration of evidence and materials on record and after considering the arguments advanced, we have found that the following circumstances are relied upon by the prosecution to prove the guilt of the appellant:
1. The circumstance of last seen of the appellant corroborated by the testimonies of PW[4] Rahul, PW13 Ajay Singh and PW14 Ramesh Chand.
2. Relations of the appellant and Geeta (deceased) corroborated by the testimony of PW[1] Pammi Talwar (employer of the deceased) and PW[2] Alok Kumar Singh @ Dipu (current driver of Pammi Talwar).
3. Medical Evidence.
4. Electronic Evidence in the form of Call detail record (CDR) of the mobile phones used by the appellant and the deceased in the alleged crime.
6. Dupatta used in strangulating Smt. Geeta.
7. Motive.
14. Based on the testimony of PW[4], Rahul; PW13 Ajay Singh; and PW14 Ramesh Chand, the circumstance no. 1 i.e. the presence of the appellant at the spot was proved. PW[4] is the material witness in the present case who deposed as under: “We knocked the main door of the 3rd floor for about 10/15 minutes. After 15 minutes of our knocking, accused present in the court today (correctly identified by witness), opened the main door from inside and told us that Geeta was washing the clothes. Accused went away from there. We found our room was locked from outside. I went inside the bathroom, the door of the bathroom was closed. I pushed the door of the bathroom and found the dead body of Geeta inside the bathroom.”
15. PW13 Ajay Singh in his testimony deposed as under: “As before leaving the hostel, we had asked deceased Geeta to keep the key of our room at a particular place at the hostel after washing our clothes, so we went towards the main gate on the 3rd floor of the hostel for taking the key but the door of the hostel was found bolted from inside, so we knocked for about 15 minutes. After 15 minutes, one person came outside, who is the accused, present in the court today, correctly identified the witness. After coming out, the accused told us that Geeta was washing clothes inside and thereafter, he went away from there through stairs.Thereafter, we went inside and found that Geeta was lying in the bathroom with the knot on her neck with chunni. Geeta was dead at that time.” PW13 Ajay Singh in his cross-examination stated that when the accused opened the door, all of us viz. Rahul, Ramesh, Hemant and myself were present.
16. PW14 Ramesh Chand deposed on the similar lines and testified as under: “We knocked the door for about 10-15 minutes and after 15 minutes, the accused present in the court today, opened the door from inside and came out and he told us that Geeta was washing the clothes inside. After telling us, the accused went from there through stairs.” Based on the above mentioned testimonies, it is abundantly clear that firstly, the presence of the appellant at the spot is incontrovertible and secondly, that they were the first who found the dead body and thirdly, that they were the one who set the criminal machinery into motion.
17. Based on the police complaint, PW[5], ASI Kishan Kumar, had recorded DD No.25-A, Exhibit PW5/A. The electronic evidence, in the form of CDR details, along with the testimonies of Nodal Officer proved the presence of the appellant at the spot. The motive behind the alleged incident and the post mortem report, all of which leave no room for doubt that the appellant had strangulated the deceased.
18. Furthermore, the other incriminating circumstances that guide us to the guilt of the appellant are that there were illicit relations between the appellant and the deceased and he himself had provided a mobile phone to the deceased. Moreso, there were frequent calls between them and the last call was made by the appellant to the deceased at around 6.45 pm on the day of incident. Thus, there appears no possibility of any other person to be on that floor. All these circumstances clearly and cogently form a chain which points towards the guilt of the appellant herein.
19. The next question for consideration is whether the evidence brought on record by the prosecution, establishes against the appellant a case of “murder” or in the alternative a case of “culpable homicide not amounting to murder”?
20. Both the said offences involve killing of a person. “Murder” is an aggravated form of “culpable homicide”. Section 299 of the Indian Penal Code defines the offence of culpable homicide and Section 300 deals with murder. Section 299 explains “culpable homicide” and sets out the circumstances when culpable homicide amounts to murder and when it does not amount to murder. As per Section 300, existence of one of the four conditions, enumerated therein, which basically reflect four mental attitudes, turns “culpable homicide” into “murder”, while the three exceptions therein again reduce the offence of “murder” to “culpable homicide not amounting to murder”. The distinction between “murder” and “culpable homicide not amounting to murder” is very thin and in fact has always been a vexed question. Therefore, the question posed has to be examined carefully in the light of the broad principles laid down in the judicial pronouncements.
21. In the leading case of State of Andhra Pradesh Vs. Ravavarapu Punnayya and Anr. AIR 1977 SC 45 their Lordships of the Hon'ble Supreme Court said that in the scheme of the Penal Code, "culpable homicide" is genus and "murder" is specie. All "murders" are "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder" is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as "culpable homicide of the second degree". This is punishable under the 1st part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304 of the Indian Penal Code.
22. It was also observed that the safest way to approach the problem and appreciate the points of distinction between the two offences is to keep in focus the key words used in the various clauses of Sections 299 and 300 of the Indian Penal Code. Analysing the two Sections threadbare, their Lordships said that whenever a Court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of the case, it will be convenient to approach the problem in three stages. The first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299 of the Indian Penal Code. If the answer to this question is, prima facie, found in the affirmative, the stage for considering the operation of Section 300 of the Indian Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of definition of "murder" contained in Section 300. If the answer to this question is in the negative, the offence "would be culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending respectively, on whether the second or third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 of the Indian Penal Code. However, the Court observed that these were only broad principles and if applied, would facilitate the task of the Court but in some cases the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
23. There is no gain saying that the onus lies on the prosecution to prove the ingredients mentioned in Section 300 of the Indian Penal Code and bring the case under any one of the four clauses of the said provision, namely, 'firstly' to 'fourthly', to sustain the charge of murder. If it fails to do so, the charge of murder would not be made out and the case may be one of "culpable homicide not amounting to murder" as described under Section 299 of the Indian Penal Code.
24. Section 304 of the Indian Penal Code reads as under:
304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Section 304 consists of two parts, the first dealing with second degree culpable homicide and the second dealing with third degree culpable homicide as has been noted above.
25. In Sukhbir Singh v. State of Haryana: (2002) 1 SCR 1152, wherein two fatal blows were inflicted by the appellant therein by a bhala on the upper right portion of chest of the deceased, the Hon'ble Apex Court opined:
26. Under similar circumstances, in State of Punjab v. Joginder Singh and Another: 2003 (9) SCALE 604, the Hon’ble Supreme Court fastened the respondent-accused guilty for the offence punishable under Section 304 Part II of the Indian Penal Code and awarded a sentence of six years imprisonment. It was observed by the Apex Court that the accused was not armed with any weapon and visited the house of the deceased to recover the money lent to him. When the deceased was not in a position to pay the money, the accused flared up and caught hold of the neck of the deceased. The deceased was frail and slight pressure on his neck resulted in his death.
27. In Sandhya Jadhav v. State of Maharashtra: 2006 Cri LJ 2111, the Hon’ble Supreme Court came to the conclusion that the Courts are bound to consider a large number of factors for arriving at an opinion as to whether the fight was sudden or not and/or whether the deceased has taken undue advantage of the situation in the following words:
28. In Rampal Singh v. State of U.P. reported in (2012) 8 SCC 289, the Hon’ble Supreme Court while altering the conviction from Section 302 of the Indian Penal Code to Section 304 Part-I of the Indian Penal Code observed as follows:
29. However, upon anxious consideration of the matter we are persuaded to accept the alternative limb of submission advanced by the learned counsel for the appellant that the present case would fall within the ambit of Section 304 of the Indian Penal Code.
30. The case of the prosecution is premised on circumstantial evidence and in absence of direct evidence, we are required to reconstruct what may have transpired at the locus in quo (scene of crime), after taking valuable clues afforded from the material available on record that would throw some insight. The attending circumstances in consonance with the natural line of probabilities in as much as it is quite possible for the appellant to commit the alleged offence. We cannot also be oblivious of the fact that the circumstance projected by the prosecution was that the appellant had sexual relationship with the deceased Geeta for last so many years and now-a-days her demand started increasing and she started blackmailing him and the deceased Geeta also started developing intimacy with other persons. It was further pointed out by the prosecution that on 06.07.2009 after calling the deceased, the appellant came to the institute and found her talking with PW[2] Alok Kumar Singh @ Dipu (driver of PW[1]) and when he raised objection, the deceased started shouting and had altercation and finally in order to get rid off her, the appellant strangulated her with her own duppatta. In the meanwhile, he heard the knock at the door and thereafter he placed the dead body in the bathroom and went away from the institute. Thus, the subsequent conduct of the accused after committing such a crime cannot be tested on the lofty anvils of abstract rationality.
31. PW11 Dr. Raghvendra Kumar conducted the post mortem of the deceased on 07.07.2009 and deposed as under: “…On post mortem examination, a ligature mark was present around the neck completely encircling the middle part of neck. It was 5 cm from chin, 13 cm from supra sternal notch, 4 cm from both the mastoid process, 4 cm thickness. Total neck circumference was 30 cm. It was faintly visible. On dissection of neck extra vacation of blood was present over inner part of oropharynx and trachea. Neck lymph nodes and salivary glands were congested. Injury no. 2 One scratch abrasion of size 1 x.[1] cm was present back of upper part of right forearm, 2 cm below right olecranon process. Injury no. 3 A contusion of size 6 x 4 cm was present on left side of forehead. Injury no. 4 One contusion of size 9 x 6 cm was present over front of left elbow. Injury no. 5 Two scratch abrasions of size 1.[2] x.[1] cm and.[8] x.[1] cm were present over frontal aspect of neck. xxx There were multiple petichiae seen in brain. xxx After post mortem examination, I found the cause of death in this case was asphyxia due to ante mortem strangulation by ligature.”
32. In deaths because of ligature strangulation, petechiae are usually present. It is generally more intense than in other forms of strangulations because of the strength applied by the arms in tightening the ligature. In the majority of cases, the ligature furrow runs horizontally round the neck on its front and sides. If the ligature is a wide band of cloth with a smooth surface, the lesion of the stratum corneum may be so minimal that no mark is discernible. Non- intense ligature strangulations may simply leave a reddish hyperaemia on the skin of the neck. However, in cases of intense strangulation the larynx and hyoid bone might suffer a fracture. Occasionally, a fine white foam may adhere to the laryngeal, tracheal and bronchial walls, which may be streaked with blood The foam accumulates from bronchial secretion and tidal air during dyspnoea.
33. Perusal of the post mortem report reveals that no marks of violence were found upon the body of the deceased that she might suffer during the process of strangulation. It assumes significance that the thyroid complex or the underlying structures in the neck region such as the cartilages of the larynx and the rings of the trachea were not found fractured. At this juncture, we may profit from the luminous observations expressed by Dr. Jaising P. Modi in his authoritative treatise “Modi- A Textbook of Medical Jurisprudence and Toxicology, 24th Edition, Reprint 2012, Lexis Nexis Butterworths, Wadhwa Nagpur”. It has been stated by the eminent author that the cartilages of the larynx or the rings of trachea may be fractured when considerable force is used [Pg. 454]. The said fact evinces that excessive pressure was not exerted by the appellant and he may not have harboured the intention to kill the deceased. No other mark of external or violent injury except some bruises was found on the body of the deceased. The appellant did not take undue advantage or act in a cruel or unusual manner. The unfortunate incident seems to have erupted at the spur of the moment and stemmed from extra marital discord. There were provocative utterances exchanged between the two. In a fit of rage during the sudden quarrel the appellant grabbed the neck of the deceased that resulted in asphyxiation and snuffed her life.
34. Applying the broad guidelines laid down by the Hon’ble Supreme Court and this court in the afore-mentioned cases, we are of the considered view that the evidence adduced by the prosecution falls short of bringing the case within the ambit of Section 300 of the Indian Penal Code and the offence committed by the appellant is covered by Section 304 Part I of the Indian Penal Code. No weapon was used for committing the offence. It, thus, stands proved that unfortunate incident took place on account of sudden quarrel between the deceased and the appellant; there was no pre-mediation; no animus and motive to kill the deceased. Therefore, having regard to the totality of the evidence on record, we have no hesitation in coming to the conclusion that the present case does not fall within the ambit of Section 300 of the Indian Penal Code. The aforesaid facts when analyzed in conjunction with the attending circumstances enwombing the present incident, strongly dispels the possibility that the appellant harboured an intention to kill the deceased.
35. Keeping in view, we are of the opinion that the conviction of the appellant should be altered from Section 302 to one under Section 304 Part I of the Indian Penal Code thereof. It is stated by the learned Counsel that the appellant has continuously been in jail for more than 7 years and 5 months. The fine imposed upon the appellant Anuj Kumar Tiwari and the default sentence awarded to him shall remain unaltered. In view of the statement made by learned Counsel for the appellant, we are of the opinion that the ends of justice would be met if we modify the sentence awarded to the appellant as the period already undergone by him. The appeal is allowed to the above extent. The appellant shall be set at liberty forthwith, if not required in any other case.
36. The appeal is partly allowed and orders of conviction and sentence are modified in the above terms.
37. Trial Court Record be returned.
38. Copy of this decision be sent to the Superintendent- Central Jail, Tihar for updating the jail record.
SANGITA DHINGRA SEHGAL, J. G. S. SISTANI, J. MARCH 18, 2016 gr//