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)
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)
