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Thursday, April 13, 2017

However strong the suspicion be, in our view, the respondent is entitled to benefit of doubt and cannot be convicted under Section 302 IPC.= whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The fact that the deaths are as a result of culpable homicide is beyond any doubt but the question is whether the respondent could be said to be author of the crime.= In view of medical evidence on record, the deaths could never be termed as a case of suicide and consequently the conviction of the respondent under Section 306 was wholly unjustified. At the same time there is nothing on record to conclusively establish that the respondent was the author of the crime. The circumstances on record do not rule out every other hypothesis except the guilt of the accused. However strong the suspicion be, in our view, the respondent is entitled to benefit of doubt and cannot be convicted under Section 302 IPC. Thus, while rejecting this appeal, we acquit the respondent of the charge under Section 306 IPC.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.357 OF 2008


State of Rajasthan                                             ….Appellant

                                   Versus

Ramanand                                              …. Respondent



                               J U D G M E N T



Uday Umesh Lalit, J.

   The respondent was convicted by the Trial Court under  Sections  302  and
201 IPC for having committed murder of his wife Anita and daughter Ekta  and
was sentenced to undergo life imprisonment for  the  offence  under  Section
302 and 3 years RI for that under Section 201 IPC in Sessions Case No.62  of
2000.  In DB Criminal Appeal No.20 of 2002 preferred by the respondent,  the
High Court of Judicature for Rajasthan at Jaipur by its judgment  and  order
dated 07.03.2006 acquitted him of the charges under  Sections  302  and  201
IPC but convicted him under Section 306 IPC and sentenced him to  undergo  5
years RI, which judgment is  under  challenge  in  this  appeal  by  Special
Leave.





On 21.09.2000 at about 9:11 p.m.  a  report  Ext.  D-1  was  lodged  by  the
respondent to the following effect:-

“To

The S.H.O.

P.S. Patan



Sir,



Most respectfully I submit that my wife burnt to death this evening on  5.30
p.m.  I was at my shop and  my  brother  was  also  there.   My  mother  and
younger brother’s wife had gone to our house in Bihar.   My  wife  was  half
mad.  She was burnt to death.  When the smoke arose in the house and  sounds
of the crying came out of the house, the neighbour came running to  my  shop
and informed me.  I went to the house, went up the  stairs  and  pushed  the
door open.  I saw my wife and daughter  were  burnt  to  death.   The  above
report  is  produced.   My  marriage  took  place  some  10  years  ago   on
21.09.2000.





                                                                        Sd/-

                                                                       Yours

                                                            Ramanand Agrawal

                                                   S/o Shri Vishashwar Dayal

                                                                 R.S. Dabla”





The aforesaid report was registered in the Case Diary and appropriate  steps
under Section 174 Cr.P.C. were taken by PW14 Tulsi Ram who at  the  relevant
time was Incharge of Police Station Patan.  On the next day  at  about  6:15
a.m. a written report  Ext.  P-2  was  received  from  PW2  Rakesh  Agrawal,
brother of deceased Anita that his sister and niece  were  burnt  to  death;
that his sister was being harassed for dowry and  that  the  respondent  and
his family members were responsible for the deaths of his sister and  niece.






The report Ext. P-2 was received by PW15 ASI  Rajendra  Singh,  pursuant  to
which crime  was  registered  and  investigation  was  undertaken.   Inquest
Reports Exts. P-6 and P-7 were prepared regarding the bodies  of  Anita  and
Ekta and they were sent for autopsy.  Photographs of the bodies  Exts.  P-14
to P-19 were also taken and site plan Ext. P-21 at the place  of  occurrence
was also prepared.  The post-mortem on the bodies was conducted by  a  Board
consisting of three doctors.  As regards Anita, the  report  Ext.  P-13  had
following relevant observations:-

 “Fairly built & nourished, P.M. lividity present on  back  of  body.   R.M.
present all over the body.  Partially burnt clothes  are  present  on  body.
No smell like kerosene like substance.   The  whole  body  has  burns  (Post
mortem in nature) except back of trunk and hips.  Burns  limited  upto  skin
only.  Hair of head & pubic area are partially burnt and axillary  hair  are
totally burnt. Face is swollen.   Tongue  is  protruded-swollen.   Eyes  are
partially open  conjuctive  having  patechial  hemorrhage.  Both  hands  are
clinched.  Bloody froth is coming out of both nostrils and mouth.”



“In the opinion of the medical board the cause of death is Asphyxia  due  to
strangulation (throatling)

            - Burns are  post-mortem  in  nature  as  there  is  no  blister
formation, no line of redness and no signs of inflammation.”



      The report Ext. P-12 regarding Ekta made following observations:-



“Fairly built & nourished, P.M. lividity  present  on  back  of  Body,  R.M.
present all over body. Partially burnt clothes  are  present  on  body.   No
smell like kerosene, like substance.  The whole  body  has  burns  (P.M.  in
nature) except back of trunk and hips.  Burns limited upto skin  only.  Hair
of head burnt partially.  Face is  swollen.   Tongue  is  protruded-swollen.
Eyes are partially open.   Conjuctive  having  patechial  hemorrhage.   Both
hands are clinched.  Bloody  froth  is  coming  out  of  both  nostrils  and
mouth.”



“In the opinion of the Medical Board the cause of death is Asphyxia  due  to
strangulation (throating).  Burns are post mortem in nature, as there is  no
blister formation, notice of redness and no sign of inflammation.”





5.  After completion of investigation, charge-sheet was  filed  against  six
persons including the present respondent.  The charges were  framed  against
the respondent, his mother Narangi Devi and  brother  Vinod  Kumar  for  the
offences under Sections 498A, 302/34,  201  IPC  while  his  other  brothers
Mukesh Kumar, Moolchand and Mahesh  Kumar  were  charged  for  the  offences
under Section 201/511 IPC.  They were  tried  in  the  court  of  Additional
Sessions  Judge,  Neemka  Thana,  in  Sessions  Case  No.62  of  2000.   The
prosecution examined fifteen witnesses.   PWs 1, 2,  3,  4  and  5,  namely,
father, brother, mother, cousin and brother-in-law respectively of  deceased
Anita did not support the case of prosecution as regards  demands  of  dowry
or harassment. PW7, Nandlal, neighbour also turned  hostile  but  in  cross-
examination stated that when the cries were heard coming from the house,  he
was amongst the persons who had gone to  the  house  and  opened  the  door.
According to him the door was bolted from inside. PW10  Dr.  Surendra  Kumar
Meena, one of the members of the Board which  conducted  post-mortem  proved
report Exts. P-12 and P-13 and stated that the cause of death  was  asphyxia
because of strangulation and that Anita and Ekta were done  to  death  first
and thereafter their bodies were sought to be  set  on  fire.   PW12  Mahesh
Sharma, photographer proved photos Exts.P-14 to  P-19.   PW14  Sub-Inspector
Tulsi Ram in answer to queries in the cross-examination stated, “Before  the
registration  of  First  Information  Report,  Ramanand  had  given  me   an
application. This application is attached with the  case  diary.   Aforesaid
application was made  under  Section  174  of  Cr.P.C,  which  is  Ext.D-1”.
Similarly  PW15,  Sub-Inspector  Rajendra  Singh  in  his  cross-examination
stated; “Before going to spot report Ext. D-1  had  already  been  received.
The report was submitted before S.H.O.”





6.    After  considering  the  material  on  record  including  the  medical
evidence, the trial court found that both Anita  and  Ekta  were  killed  by
strangulation and that the case was of culpable homicide.   As  regards  the
involvement of the accused in the crime in question, it  was  observed  that
there  was  nothing  on  record  to  suggest  the  involvement  of   accused
Nos.2 to 6.  Further, all the relations  of  deceased  Anita  having  turned
hostile and not supported the case of  prosecution  as  regards  demands  of
dowry, no offence under Section 498A was found to be have been  established.
 The trial court further observed that motive for the  crime  was  also  not
established and in any case the death of Anita had occurred 10  years  after
the marriage.  While  acquitting  rest  of  the  accused,  the  trial  court
convicted the respondent under Sections 302 and 201 IPC  and  sentenced  him
to suffer life imprisonment under Section 302 IPC and to suffer three  years
imprisonment under Section 201 IPC.





7.    The respondent, being aggrieved filed  DB  Criminal  Appeal  No.20  of
2002 in the High Court which found that charge under  Section  302  IPC  was
not established against the respondent.  However, it was of  the  view  that
the circumstances on record clearly showed that the  respondent  was  guilty
of the offence under Section 306.  Thus, while acquitting the respondent  of
the charges under Sections 302 and 201 IPC it convicted  him  under  Section
306 IPC.  The respondent having remained  in  custody  for  more  than  five
years and four months, the sentence was reduced by the  High  Court  to  the
period already undergone.





8.    This appeal, at the instance of  State  of  Rajasthan  challenges  the
correctness of the decision of the High Court.  Relying on the  decision  of
      this Court in Sumer Singh  v.  Surajbhan  Singh[1]  Mr.  Sushil  Kumar
Jain, learned Senior Advocate appearing for the  respondent  contended  that
he was entitled to submit that the respondent ought to be acquitted  of  all
the charges.





9.    The medical evidence on record is very clear and precise  that  deaths
were as a result of strangulation.   Having  gone  through  the  post-mortem
report, the testimony of PW10 Dr. Surendra Kumar Meena and  the  photographs
Exts.P14 to P19, it is very clear that the deaths of  Anita  and  Ekta  were
not as a result of burn injuries.  They  died  of  strangulation  and  their
bodies were sought to be set afire in order to create an  impression  as  if
they had died of  burn  injuries.   The  finding  by  the  trial  court  was
therefore completely correct.  It is impossible to assume  how  Anita  could
have strangulated herself and then attempted to  set  herself  afire.    The
view  taken  by  the  High  Court   is,   therefore,   wholly   unjustified.
Consequently there could not have been conviction of  the  respondent  under
Section 306 IPC.







10.   The question then arises whether the  respondent  was  guilty  of  the
offence under Section 302 IPC read with Section 201 IPC.  The fact that  the
deaths are as a result of culpable homicide is  beyond  any  doubt  but  the
question is whether the respondent could be said to be author of the  crime.
 The  entire  case  of  the  prosecution  on  this  count  rests  purely  on
circumstantial evidence.  It is true that the  deaths  have  occurred  in  a
room occupied by the respondent along with wife, Anita  and  daughter  Ekta.
But no witness has been examined to suggest that the respondent  was  at  or
around his residence at the relevant time.  The marriage was  more  than  10
years old and as such no statutory presumption on any count could be  drawn,
more particularly, when none of the prosecution witnesses had supported  the
case of prosecution as regards demands of dowry and harassment.  Apart  from
strangulation marks nothing was found in the  post-mortem  report  regarding
any other bodily injury.  The absence of any evidence as  regards  dowry  or
related harassment also nullifies the element of presence of any  motive  on
part of the respondent. None of the prosecution witnesses  alleged  anything
against the respondent nor are  there  any  other  supporting  circumstances
such as discovery of any relevant fact.





11.   We are, therefore, left with the only material, namely  Ext.D-1  which
was the reporting made by the respondent.  It  undoubtedly  shows  that  the
respondent himself had opened the door and found the  bodies  of  Anita  and
Ekta lying with injuries.  In the face of Ext.D-1  it  is  not  possible  to
accept the assertion that the door was locked from  inside  and  was  pushed
open by PW7 and others.   Locking  of  door  from  inside  would  have  been
consistent with the theory of suicide but that theory stood demolished as  a
result of medical evidence.  We are, therefore,  persuaded  to  accept  what
emerges from Ext.D-1 that the respondent himself had  opened  the  door  and
found the bodies having burnt.





12.   Relying on Section 162  Cr.P.C.  Mr.  Jain,  learned  senior  Advocate
submitted that Ext.D-1 could  not  be  relied  upon  and  read  against  the
respondent.  The terms of Section 162  are  quite  clear  and  govern  cases
where statements are  made  to  a  police  officer  “in  the  course  of  an
investigation” under Chapter XII of Cr.P.C.  Statement Ext.D-1  was  neither
given in the course of an  investigation,  nor  could  it  be  termed  as  a
confession.  Further, the cross-examination of PWs14 and 15 would show  that
the respondent stood by and relied upon that statement.  We do not  see  any
difficulty why statement Ext.D-1 could not be read in evidence.





13.   However, that by itself does not establish beyond any  doubt  that  it
was the respondent alone who was responsible for having  caused  the  deaths
of Anita and Ekta.  Even if the circumstance emerging from Ext.D-1 is  taken
to be  against  the  respondent,  that  by  itself  without  any  connecting
material on record, is not sufficient to bring home  the  case  against  the
respondent.



14.    Mr. Jain, learned Senior Advocate is right in his submission that  in
a case where the prosecution is coming  up  against  the  acquittal  of  the
accused and is praying for conviction on a graver  charge,  the  accused  is
entitled to  plead  for  acquittal.   While  considering  similar  plea  for
acquittal, though this Court negated the plea on facts, the  legal  position
was summed up by this Court in Chandrakant Patil v. State [2] as under:

“7. Powers of the Supreme Court in appeals filed under Article  136  of  the
Constitution are not  restricted  by  the  appellate  provisions  enumerated
under the Code of Criminal Procedure or any other statute.  When  exercising
appellate jurisdiction, the Supreme Court has power to pass any  order.  The
aforesaid legal position has been recognized  by  a  Constitution  Bench  of
this Court in Durga Shankar Mehta v. Raghuraj Singh[3]  and  later  followed
in a series of decisions (vide Arunachalam v. P.S.R. Sadhanantham[4],  Delhi
Judicial Service Assn. v. State of Gujarat[5]).
….

9. It is now well nigh settled that Supreme  Court’s  powers  under  Article
142 of the Constitution are vastly broad-based. That power in  its  exercise
is circumscribed only by two conditions, first is, that it can be  exercised
only when Supreme Court otherwise exercises its jurisdiction and  the  other
is that the order which Supreme Court passes must  be  necessary  for  doing
complete justice in the cause or matter pending before it…………”


15.    In view of medical evidence on record,  the  deaths  could  never  be
termed as  a  case  of  suicide  and  consequently  the  conviction  of  the
respondent under Section 306 was wholly unjustified. At the same time  there
is nothing on record to conclusively establish that the respondent  was  the
author of the crime. The circumstances on  record  do  not  rule  out  every
other hypothesis except the  guilt  of  the  accused.   However  strong  the
suspicion be, in our view, the respondent is entitled to  benefit  of  doubt
and cannot be convicted under Section 302 IPC.





16.   Thus, while rejecting this appeal, we acquit  the  respondent  of  the
charge under Section 306 IPC.  The appeal is disposed of in these terms.



                                             ………………………J.
                                             (Adarsh Kumar Goel)



………………………J.
                                             (Uday Umesh Lalit)
      New Delhi,
      April 11, 2017
-----------------------
[1]    (2014) 7 SCC 323

[2]    (1998) 3 SCC 38
[3]    AIR 1954 SC 520
[4]    (1979) 2 SCC 297
[5]    (1991) 4 SCC 406


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