Delhi High Court
Anuj Kumar Tiwari vs State Of The Nct Of Delhi on 18 March, 2016
Author: G. S. Sistani
$~R-17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. 276/2013
% Judgment reserved on: 9 th March, 2016
Judgment pronounced on: 18th March, 2016
ANUJ KUMAR TIWARI ...........Appellant
Through: Mr. Chetan Anand, Advocate.
Versus
STATE OF THE NCT OF DELHI ........... Respondent
Through: Ms. Aashaa Tiwari, APP for the State.
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
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
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:
"1. On receiving information through DD no.25 dated
06.07.09 IO Inspector CK Sharma (SHO Lajpat Nagar)
reached spot i.e, O-2/II, Lajpat Nagar, 3rd Floor (Inflight
Air Hostess Training Institute) at around 9.45 pm where
he met SI Sandeep Ghai alongwith other police officials,
Pammi Talwar and four other trainees, namely Rahul,
Hemant Kothari, Ramesh Chand and Ajay Singh, and on
inquiry he was informed that a dead body of a female is
lying in a bathroom. He inspected the dead body and
thereafter, statement of Rahul was recorded by SI
Sandeep Ghai. Pursuant to which rukka was prepared
and FIR was registered.
2. In the meanwhile, crime team was called and dead
body was identified by Ms. Pammi Talwar being of one
Geeta a maid servant working in Institute for last 3 years.
During inspection of dead body she was found to be
wearing salwar, suit and one orange colour dupatta
found tied in her neck and word „Kishen‟ found tattooed
on her right forearm and a mobile number of
9915869233 was found written on the northern side of
wall of bathroom near washbasin.
3. Rahul in his statement to the police alleged that they
are studying diploma course in Aviation and Hospitality
Management in that Institute and was residing along with
Hemant Kothari and Ramesh chand for last 6-7 days in
Institute on temporary basis. And on the day of incident
at around 5.50 pm when he went on the ground floor,
found made servant Geeta then asked her to clean their
clothes as they were going to see room on rent at S. N.
Puri and had given key of their room to Geeta who after
cleaning was asked to put keys behing the poster near the
gate and thereafter they all went away and came around
8 pm, but did not find keys behind the poster. He further
alleged in his statement that when they went upstairs,
they found the gate of the IIIrd floor closed and on their
knocking nobody replied, thereafter they started knocking
the door briskly and about after 15 minutes one boy
medium height clean shaved opened the door and told
them that Geeta was washing clothes in the bathroom.
Thereafter, he went down the stairs and then they thought
Geetat was washing the clothes, but found their room
locked thereafter they went to bathroom to take keys from
Geeta and in bathroom they found Geeta was lying on
floor and her neck was found strangulated through a
chunni. Then, he called his three friends, Hemant Kothari
called owner Pammi Talwar on mobile, as well called
100 number.
4. During investigation, crime team photographer took
photographs of the spot and dead body, however, no
chance-prints were found. When crime team checked the
body, the word Hemant in Hindi and mobile no.
9915869233 was found written on her palm. Thereafter,
IO prepared site plan at the instance of Rahul at around
1.30 am Ct. Sanjiv brought the original rukka and copy of
FIR. Dead body was shifted to AIIMS mortuary at around
1.35 am. And articles lying at spot were seized and
therafter, statement of other trainees were recorded
between 3 am to 4.15 am.
5. During investigation, Ms. Pammi Talwar stated that
deceased Geeta was working with her for last 3 years and
was using mobile no. 9873231275 but the same was not
found at the spot and might have been taken away by the
murderer. CDR of same mobile number was collected
and it was found that the said mobile number was found
to be registered in the name of one Anuj Kumar, who was
her earlier driver, and was very friendly with Geeta thus
shunted out from service.
6. On inquiry of CDR of mobile number 9873231275,
CDR of mobile no. 9213909227 was obtained from Tata
tele services and it was found that last call was made
from this number is at around 7.15 pm on 06.07.09 at
mobile number 9971737785 which was found in the name
of D. Kamlesh but used by Pramod Kumar on which
accused Anuj Kumar Tiwari contacted his brother Vipin
Tiwari. During investigation, Mr. Pramod Kumar Tiwari
took the police party to house of Vipin Kumar who stated
that the mobile no. 9213909227 belongs to him however
the same is used by Anuj Tiwari and further disclosed
that Anuj on night of 06.07.09 came to his house and
went to native village in night. Thereafter, accused Anuj
Kumar Tiwari was apprehended from bus stop Shahbad
Hardoi on 09.07.09.
7. During investigation, disclosed that he had sexual
relationship with deceased Geeta for last so many years
and now-a-days her demand started increasing and she
started blackmailing him and deceased Geeta also started
developing intimacy with other persons and he lost his
job because of his relationship with deceased Geeta. He
further disclosed that on 06.07.09 after calling her, he
came to Institute and found her talking with Alok Kumar
Singh @ Dipu driver of Pammi Talwar and when he
raised objection, she started shouting and had altercation
and finally in order to get rid of her, he strangulated her
with her own dupatta. In the meanwhile, he heard the
knock at door and thereafter he placed dead body in
bathroom and went away from the institute.
8. Accused was produced in court no. 10.07.09 and an
application for judicial TIP was moved, which was fixed
for 14.07.09 but accused Anuj Kumar Tiwari refused to
participate in TIP. As per postmortem report, deceased
was found to be died of asphyxia due to ante mortem
strangulation caused by ligature. During investigation,
efforts were made to trace mobile phones but accused
destroyed all of them. Therefore, section 201 IPC was
also added. Word „Geeta Anuj‟ was found tattooed on
forearm of accused Anuj Tiwari. On completion of
investigation, chargesheet u/s 302/201 IPC was filed
against accused Anuj Kumar Tiwari."
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 PW4 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:
"300. Murder-
Exception 1. - xxxx xxxx xxxx xxxx
Exception 2. - xxxx xxxx xxxx xxxx
Exception 3. - xxxx xxxx xxxx xxxx
Exception 4. - Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offenders having taken undue advantage or acted in a cruel
or unusual manner.
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:
"16. There is no doubt that it is not a case of direct
evidence but the conviction of the accused is founded on
circumstantial evidence. It is a settled principle of law
that the prosecution has to satisfy certain conditions
before a conviction based on circumstantial evidence can
be sustained. The circumstances from which the
conclusion of guilt is to be drawn should be fully
established and should also be consistent with only one
hypothesis, i.e. the guilt of the accused. The
circumstances should be conclusive and proved by the
prosecution. There must be a chain of events so complete
so as not to leave any substantial doubt in the mind of the
Court. Irresistibly, the evidence should lead to the
conclusion inconsistent with the innocence of the accused
and the only possibility that the accused has committed
the crime. To put it simply, the circumstances forming the
chain of events should be proved and they should
cumulatively point towards the guilt of the accused alone.
In such circumstances, the inference of guilt can be
justified only when all the incriminating facts and
circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person.
Furthermore, the rule which needs to be observed by the
Court while dealing with the cases of circumstantial
evidence is that the best evidence must be adduced which
the nature of the case admits. The circumstances have to
be examined cumulatively. The Court has to examine the
complete chain of events and then see whether all the
material facts sought to be established by the prosecution
to bring home the guilt of the accused, have been proved
beyond reasonable doubt. It has to be kept in mind that
all these principles are based upon one basic cannon of
our criminal jurisprudence that the accused is innocent
till proven guilty and that the accused is entitled to a just
and fair trial.
17. It is a settled rule of law that in a case based on
circumstantial evidence, the prosecution must establish
the chain of events leading to the incident and the facts
forming part of that chain should be proved beyond
reasonable doubt. They have to be of definite character
and cannot be a mere possibility."
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 PW4 Rahul,
PW13 Ajay Singh and PW14 Ramesh Chand.
2. Relations of the appellant and Geeta (deceased)
corroborated by the testimony of PW1 Pammi
Talwar (employer of the deceased) and PW2 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 PW4, Rahul; PW13 Ajay Singh; and PW14
Ramesh Chand, the circumstance no. 1 i.e. the presence of the
appellant at the spot was proved. PW4 is the material witness in the
present case who deposed as under:
"We knocked the main door of the 3 rd 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, PW5, 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 homic ide" 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:
"19. The High Court has also found that the occurrence
had taken place upon a sudden quarrel but as the
appellant was found to have acted in a cruel and unusual
manner, he was not given, the benefit of such exception.
For holding him to have acted in a cruel and unusual
manner, the High Court relied upon the number of
injuries and their location on the body of the deceased. In
the absence of the existence of common object, the
appellant cannot be held responsible for the other
injuries caused to the person of the deceased. He is
proved to have inflicted two blows on the person of the
deceased which were sufficient in the ordinary course of
nature to cause his death. The infliction of the injuries
and their nature proves the intention of the appellant but
causing of such two injuries cannot be termed to be either
in a cruel or unusual manner. All fatal injuries resulting
in death cannot be termed as cruel or unusual for the
purposes of not availing the benefit of Exception 4 of
Section 300 IPC. After the injuries were inflicted and the
injured had fallen down, the appellant is not shown to
have inflicted any other injury upon his person when he
was in a helpless position. It is proved that in the heat of
passion upon a sudden quarrel followed by a fight, the
accused who was armed with bhala caused injuries at
random and thus did not act in a cruel or unusual
manner."
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:
"9. The Fourth Exception to Section 300 IPC covers acts
done in a sudden fight. The said Exception deals with a
case of prosecution not covered by the First Exception,
after which its place would have been more appropriate.
The Exception is founded upon the same principle, for in
both there is absence of premeditation.....
.... The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender having taken undue advantage or
acted in a cruel or unusual manner; and (d) the fight
must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the "fight" occurring
in Exception 4 to Section 300 IPC is not defined in IPC. It
takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and
in this case, the parties have worked themselves into a
fury on account of the verbal altercation in the beginning.
A fight is a combat between two or more persons whether
with or without weapons. It is not possible to enunciate
any general rule as to what shall be deemed, to be sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it
is not sufficient to show that there was a sudden quarrel
and there was no premeditation. It must further be
shown that that the offender has not taken undue
advantage or acted in cruel or unusual manner. The
expression "undue advantage" as used in the provision
means "unfair advantage."
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 :
"20. In order to hold whether an offence would fall under
Section 302 or Section 304 Part I of the Code, the courts
have to be extremely cautious in examining whether the
same falls under Section 300 of the Code which states
whether a culpable homicide is murder, or would it fall
under its five exceptions which lay down when culpable
homicide is not murder.
21. Sections 302 and 304 of the Code are primarily the
punitive provisions. They declare what punishment a
person would be liable to be awarded, if he commits
either of the offences. An analysis of these two Sections
must be done having regard to what is common to the
offences and what is special to each one of them. The
offence of culpable homicide is thus an offence which
may or may not be murder. If it is murder, then it is
culpable homicide amounting to murder, for which
punishment is prescribed in Section 302 of the Code.
Section 304 deals with cases not covered by Section 302
and it divides the offence into two distinct classes, that is
(a) those in which the death is intentionally caused; and
(b) those in which the death is caused unintentionally but
knowingly. In the former case the sentence of
imprisonment is compulsory and the maximum sentence
admissible is imprisonment for life. In the latter case,
imprisonment is only optional, and the maximum sentence
only extends to imprisonment for 10 years. The first
clause of this section includes only those cases in which
offence is really 'murder', but mitigated by the presence
of circumstances recognized in the exceptions to
Section 300 of the Code, the second clause deals only
with the cases in which the accused has no intention of
injuring anyone in particular.
25. Classification of an offence into either Part of
Section 304 is primarily a matter of fact. This would have
to be decided with reference to the nature of the offence,
intention of the offender, weapon used, the place and
nature of the injuries, existence of pre-meditated mind,
the persons participating in the commission of the crime
and to some extent the motive for commission of the
crime. The evidence led by the parties with reference to
all these circumstances greatly helps the court in coming
to a final conclusion as to under which penal provision of
the Code the accused is liable to be punished. This can
also be decided from another point of view, i.e., by
applying the 'principle of exclusion'. This principle could
be applied while taking recourse to a two-stage process
of determination. Firstly, the Court may record a
preliminary finding if the accused had committed an
offence punishable under the substantive provisions of
Section 302 of the Code, that is, 'culpable homicide
amounting to murder'. Then secondly, it may proceed to
examine if the case fell in any of the exceptions detailed
in Section 300 of the Code. This would doubly ensure that
the conclusion arrived at by the court is correct on facts
and sustainable in law. We are stating such a proposition
to indicate that such a determination would better serve
the ends of criminal justice delivery. This is more so
because presumption of innocence and right to fair trial
are the essence of our criminal jurisprudence and are
accepted as rights of the accused.
30. ...It is clear that the Appellant had not committed the
crime with any pre-meditation. There was no intention on
his part to kill. The entire incident happened within a
very short span of time. It is true that there was
knowledge on the part of the Appellant that if he used the
rifle and shot at the deceased, the possibility of the
deceased being killed could not be ruled out. He was a
person from the armed forces and was fully aware of
consequences of use of fire arms. But this is not
necessarily conclusive of the fact that there was intention
on the part of the Appellant to kill his brother, the
deceased. The intention probably was to merely cause
bodily injury. However, the Court cannot overlook the
fact that the Appellant had the knowledge that such injury
could result in death of the deceased."
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 PW2 Alok
Kumar Singh @ Dipu (driver of PW1) 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//
