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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.

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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

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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.

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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

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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

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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.

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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

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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

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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…”       

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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

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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.”

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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)