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Sunday, February 7, 2016

High Court thereby setting aside the conviction of the accused under section 376 IPC and altering the conviction under section 302 to section 304 Part II IPC, sentencing the accused to 7 years’ imprisonment while maintaining the conviction recorded by the trial court under section 454 IPC thereby sentencing him to undergo RI for one year- not correct .=In State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384, this Court has observed :The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case of even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook…”= It is impossible to accept this submission because if the appellant set fire to the deceased after accused No.6 had poured kerosene on his body, there cannot be any doubt that the intention of the appellant was to kill the deceased.” = In view of the aforesaid discussion, we are of the considered opinion that the judgment and order partly allowing the appeal by the High Court, deserves to be and is hereby set aside. The judgment and order of conviction and sentence passed by the trial court is hereby restored. The appeal is accordingly allowed.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.668 OF 2011



State of Assam                               … Appellant

Vs.

Ramen Dowarah                                … Respondent



                               J U D G M E N T



ARUN MISHRA, J.



1.    The appeal has been preferred by the State against  the  judgment  and
order of the High Court thereby setting aside the conviction of the  accused
under section 376 IPC and altering  the  conviction  under  section  302  to
section 304 Part II IPC, sentencing the accused  to  7  years’  imprisonment
while maintaining the conviction recorded by the trial court  under  section
454 IPC thereby sentencing him to undergo RI for one year.

2.    As per the prosecution case the incident took  place  on  1.5.2003  at
about 5 p.m. when accused Ramen  Dowarah  and  Janmejoy  Gogoi  alias  Sanju
entered the house of victim and committed rape  on  her  and  after  pouring
kerosene oil set her ablaze. When the victim  raised  hue  and  cry,  people
assembled and the victim was taken to the Civil Hospital. She sustained  55%
burn injuries as her  condition  was  serious  she  was  referred  to  AMCH,
Dibrugarh where in the course of her treatment she died after  2  months  on
11.7.2003. On the date of the incident the paternal uncle of the victim  Mr.
Khirode Hazarika, PW 1, lodged a First Information Report at P.S. Tinsukia.

3.    The accused were chargesheeted. After committal they  were  tried  for
commission  of  offences   under   sections   454/376(G)/302/34   IPC.   The
prosecution examined 11 witnesses. The accused  persons  abjured  the  guilt
and contended that they had been falsely implicated in the case.  The  trial
court convicted the  accused/respondent  Ramen  for  commission  of  offence
under sections 454/376/302 IPC, and  sentenced him to 1 year, 10  years  and
life imprisonment respectively  and  a  fine  of  Rs.3,000;  in  default  of
payment of fine to  undergo  simple  imprisonment  for  1  month.  Aggrieved
thereby, accused Ramen preferred appeal before the High Court and  the  same
has been partly allowed. Aggrieved thereby State has come up in appeal.

4.    The High Court has found that it  was  a  case  of  consensual  sexual
intercourse with the accused Ramen and when the victim threatened  him  that
the incident would be disclosed by her to mother, on the spur of the  moment
he poured kerosene oil on her so as to cause burn injuries. It could not  be
said to be a case of intentionally causing death falling under  section  300
IPC, Hence conviction under section 302 IPC has been set  aside.  Conviction
has been recorded under section 304 Part II IPC.

5.    Learned counsel appearing on behalf of the State  has  submitted  that
it was not a case of consensual  sexual  intercourse.  The  High  Court  has
gravely erred in law in reversing  the  finding  of  the  trial  court.  The
victim had raised a hue and cry and threatened the accused  that  she  would
disclose the incident to her mother. On that  accused  had  poured  kerosene
oil on her and set her ablaze. It could not be said to  be  a  case  falling
under section 304 Part II IPC. The conviction was rightly  recorded  by  the
trial court under sections 302 and 376 IPC.

6.    Learned counsel appearing on behalf of the respondent has  strenuously
argued that the victim had not resisted  when  the  sexual  intercourse  was
performed. In her dying declaration she has not  stated  that  she  resisted
the commission of sexual intercourse. In the  circumstances  as  the  victim
had threatened accused to disclose the incident to her mother, in a  fit  of
rage, the accused had poured kerosene oil  over  her  without  intending  to
cause death of the deceased. There was no pre-meditation.  Thus  considering
the relatively young age of the accused the  conviction  under  section  304
Part II  IPC  calls  for  no  interference.  Accused  could  not  have  been
convicted in view of the evidence adduced by the prosecution  under  section
376 IPC.

7.    We have carefully assessed the evidence adduced  by  the  prosecution.
When we consider the evidence of  the  various  witnesses  examined  by  the
prosecution, Khirode Hazarika – PW1 – has stated that the deceased had  made
oral dying  declaration  as  to  the  complicity  of  the  accused.  Mridula
Hazarika, PW2, saw the accused Ramen and  other  acquitted  accused  fleeing
the house, in oral dying declaration victim had  told  her  that  Ramen  had
destroyed her life. She heard the shrieks of the brother of the  victim  and
then came to the house. Lalita Hazarika, PW3,  is  another  witness.  Victim
was her niece. In the  oral  dying  declaration  made  to  her,  victim  had
informed that Ramen  and  other  accused  had  ruined  her  life.  Aoilabati
Hazarika, PW4, is the mother of the victim. She saw the victim  lying  burnt
in the house. The victim  told  to  her  that  when  she  stated  she  would
disclose the incident to her, on that accused had poured  kerosene  oil  and
set her ablaze. Manash Hazarika, PW5, a minor aged 14 years, brother of  the
deceased has stated that while grandmother Maniki Hazarika and  the  witness
were in the kitchen, her elder sister the victim was lying  on  the  bed  as
she was not feeling well, grandmother Maniki was deaf and  blind;  for  that
very reason the witness was with her at that time accused Ramen  and  Sanjay
came to the house.  They  had  shut  the  rear  door  and  committed  sexual
intercourse with the deceased. It was further stated that there was  a  door
between kitchen and bedroom  which  was  also  closed  by  the  accused.  He
witnessed the incident through a slit in  the  door.  When  his  sister  the
victim cried accused Ramen threatened to kill the witness. When  the  victim
told that she would narrate the incident to her mother,  this  prompted  the
accused to pour kerosene over her and set her ablaze. Victim was  wearing  a
frock. Ramen had taken off the clothes of his sister and committed  the  bad
act. His sister had no clothes on her when the accused poured  kerosene  oil
over her and set her ablaze.  The  witness  raised  commotion  and  on  that
Mridula Hazarika, his elder sister, arrived on the scene and thereafter  the
victim was taken to the hospital. According to the witness both the  accused
persons committed rape. However, other accused Sanjay has been accorded  the
benefit of doubt by the trial court as deceased  in  her  dying  declaration
did not attribute commission of sexual intercourse to Sanjay, the  acquitted
accused.

8.    Dr. B.C. Roy Medhi performed postmortem and  stated  that  the  victim
died due to burn injuries. Dr.  Alaka  Devi,  PW9,  initially  examined  the
victim on the date of the incident. She  has  stated  that  the  victim  had
stated to her that when she cried, accused poured kerosene oil  on  her  and
set  her  ablaze.  PW-10,  Judicial  Magistrate  had  recorded   the   dying
declaration of the deceased under section  164  Cr.P.C.  in  which  she  has
clearly stated that accused Ramen had committed sexual intercourse with  her
and on being told that she would disclose the incident to her mother,  after
pouring kerosene oil on her, she was set ablaze.

9.    Considering the aforestated state of evidence what emerges is that  it
could not be said to be a case of consensual  sexual  intercourse.  Evidence
and circumstances militate against it being consensual  sexual  intercourse.
The age of the victim was mentioned in the FIR as 14 years. In  the  medical
report, Doctor has recorded the age of the victim to be  14  years.  In  the
postmortem report also age is mentioned as 15  years.  However  radiological
examination evidence so as to ascertain the age  of  the  deceased  has  not
been adduced. Hence we refrain from upsetting the finding of the High  Court
that the prosecution  has  not  been  able  to  establish  the  age  of  the
deceased. However it remains that she  was  young  and  not  well-built  and
could be over-powered very easily. It has come  in  the  evidence  that  the
evidence of PW5 namely, Manash Hazarika who is the brother  of  the  victim,
that when the victim had cried, the witness was threatened by accused  Ramen
and thereafter accused Ramen had poured kerosene oil on the victim  and  set
her ablaze. It has also come in the statement of  PW9  Dr.  Alka  Devi  that
when the  victim  had  given  history  which  is  to  be  treated  as  dying
declaration she stated to the effect that when “she  cried,  accused  poured
kerosene oil on her and set her ablaze”.  There  is  nothing  to  doubt  the
veracity of the statement recorded in the medical  report  which  was  based
upon the statement made by the victim and has been proved by PW-9 Dr.  Alaka
Devi. Thus, it is crystal clear that it was not a case of consensual  sexual
intercourse, but the victim had made hue and cry on commission  of  rape  on
her and also on being threatened that she would narrate the incident to  her
mother, accused Ramen had set her ablaze after  pouring  kerosene  over  her
body. Thus the High Court has erred in upsetting the finding  of  the  trial
court which was based on the aforesaid circumstances  and  the  evidence  on
record which clearly makes out that it was not a case of  consensual  sexual
intercourse. In the case of consensual sexual intercourse victim  would  not
have raised hue and cry  and  would  not  have  immediately  threatened  the
perpetrator of the crime with the disclosure of the incident to her  mother.
She was clothless when kerosene oil was poured on her as stated  by  brother
PW-5. It was in fact in order to remove the evidence of rape  accused  Ramen
had poured kerosene on her and set her ablaze so that she  is  silenced  and
his sin does not see the light of  the day. However, the minor  brother  had
witnessed the incident by peeping from the slit  of  door  and  victim  also
survived for some time to narrate the incident.  In  our  opinion  the  High
Court has erred in law in acquitting the accused Ramen  from  commission  of
the offence under section 376 IPC. Men may lie but the circumstances do  not
is cardinal principle of evalution of evidence. The circumstances, the  oral
evidence and dying declarations of the deceased unerringly pointed out  that
it was not a case of consensual sexual intercourse. The  dying  declarations
have to be read together immediate conduct of victim takes it out  to  be  a
case of consensual sexual  intercourse.  Accused  has  denied  in  toto  the
commission of offence in the statement recorded under  section  313  Cr.P.C.
Thus in view of the aforesaid evidence we  have  no  hesitation  in  setting
aside the finding of the High Court to the effect that  it  was  a  case  of
consensual sexual intercourse. We restore the finding recorded by the  trial
court.    In State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC  384,  this
Court has observed :

“The courts must, while evaluating evidence, remain alive to the  fact  that
in a case of rape, no self-respecting woman would come forward  in  a  court
just to make a humiliating statement against her honour such as is  involved
in the commission of rape on her. In  cases  involving  sexual  molestation,
supposed considerations which have no material effect  on  the  veracity  of
the  prosecution  case  of  even  discrepancies  in  the  statement  of  the
prosecutrix should not, unless the  discrepancies  are  such  which  are  of
fatal nature, be allowed to throw  out  an  otherwise  reliable  prosecution
case. The inherent bashfulness of the females and the  tendency  to  conceal
outrage of sexual  aggression  are  factors  which  the  courts  should  not
overlook…”



10.   Coming to the question whether it was a  case  under  section  302  or
under section 304 Part II IPC for recording the  aforesaid  conclusion,  the
High Court has held that on the spur of  the  moment  the  accused  had  set
ablaze the victim on  being  threatened  that  the  incident  of  consensual
sexual intercourse would be disclosed by her  to  mother.  In  view  of  our
finding that it was not a case of  consensual  sexual  intercourse  and  the
shameful method and manner in which the incident has taken place, leaves  no
room for any doubt that the accused wanted to  eliminate  the  deceased  for
all time to come. He intended to cause death by setting her ablaze  so  that
commission of offence of rape  does  not  see  the  light  of  the  day.  No
circumstance has been brought on record to indicate that it was  a  case  of
any exception, to take it out from the realm of section 300  IPC.  Thus  the
High Court in our opinion has erred in holding that accused did  not  intend
to cause death. The facts and circumstances which have been proved  indicate
that the accused wanted to get rid of the victim by causing her  death.  The
doctor has also opined that the injuries were dangerous to life  and  victim
was taken in a precarious condition to the doctor PW-9.  She  could  survive
for 2 months, is not the test. It is a case where accused  clearly  intended
to kill deceased after committing the  crime  so  as  to  silence  her.  The
overall circumstances established to  the  hilt  that  accused  intended  to
cause  death  by  setting  her  ablaze  after  committing  forcible   sexual
intercourse.   The submission of the counsel  appearing  on  behalf  of  the
accused  that  the   accused  poured  kerosene  oil  on   being   threatened
disclosure of the incident by  victim  to  her  mother,  was  the  cause  of
setting her ablaze. The aforesaid conduct does not exculpate  but  indicates
the  intendment  of  accused  to  cause  death  and  makes  him  liable  for
punishment under section 302 IPC. The act was done  with  the  intention  of
causing death. The intention to  kill  is  present  in  the  case.  The  act
amounts to murder. In Bandarupalli Venkateswarlu v. State of Andhra  Pradesh
[(1975) 3 SCC 492], this Court has considered intention of pouring  kerosene
and causing fire and observed thus :



“Relying on the circumstance that the appellant tried to put out  the  fire,
learned Counsel for the appellant urged that the appellant had no  intention
to commit the murder of the  deceased  and  cannot  therefore  be  convicted
under Section 302. It is impossible to accept  this  submission  because  if
the appellant set fire  to  the  deceased  after  accused  No.6  had  poured
kerosene on his body, there cannot be any doubt that the  intention  of  the
appellant was to kill the deceased.”



11.   In view of the aforesaid discussion, we are of the considered  opinion
that the judgment and order partly allowing the appeal by  the  High  Court,
deserves to  be  and  is  hereby  set  aside.  The  judgment  and  order  of
conviction and sentence passed by the trial court is  hereby  restored.  The
appeal is accordingly allowed.

12.   The accused to be taken  into  custody  forthwith  to  serve  out  the
remaining period of sentence.



…………………………J.
(Kurian Joseph)



New Delhi;                        .………………………..J.
January 11, 2016.                       (Arun Mishra)











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