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State Of Rajasthan vs Ramanand on 11 April, 2017

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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