MADHU GUPTA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) Convicted for offences punishable under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC, Madhu Gupta and Virender @ Bijender challenge the impugned judgment dated 18th March, 2017 and the order on sentence dated 21st March, 2017 sentencing them to life imprisonment and to pay a fine of Rs.10,000/- each for the offence punishable under Section 302/34 IPC and rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,000/- each for offence punishable under Section 201/34 IPC.

(2.) Assailing the conviction, learned counsel for Madhu Gupta submits that even accepting the case of the prosecution having been proved beyond reasonable doubt, it can at best be held that the appellant caused an injury to the deceased in exercise of her right of private defence as laid down in clause thirdly to Section 100 IPC. It is further submitted that the appellant has discharged the burden as required under Section 105 of Evidence Act by proving the existence of circumstances bringing her case within the general exception laid down in clause thirdly to Section 100 IPC. The right of private defence of the body of a mother's daughter extends to voluntary causing of death, if the offence which occasioned the exercise of the right was an assault with intention of committing rape. The appellant in her statement under Section 313 Cr.P.C stated that only scuffle had taken place between her and the deceased. As per the post mortem report, cause of death was opined to be asphyxia due to manual pressure. Thus even as per the post- mortem report, no weapon of offence was used. The alleged offence if any occurred on the spur of the moment. Hence appellant cannot be convicted for offences punishable under Sections 302 or 201 IPC.

(3.) Learned counsel for Virender @ Bijender submits that even as per the case of prosecution, no intention to kill can be attributed to the appellants. Prior to the incident, Virender, Madhu and the deceased Satender @ Nanhe all had dinner together, there was no quarrel and no premeditation. There is no other evidence against the appellant except the sole testimony of K (PW-7) which proves that appellant committed no offence and acted in the defence of K. He further submits that in the alternative since the appellant had already undergone approximately 8 years and 5 months, he be released on the period already undergone. In order to buttress his submissions, learned counsel relies upon the decision of Division Bench of this Court reported as 2016 IV AD (DELHI) 524 Anuj Kumar Tiwari vs. State of The NCT of Delhi.