YOMESHBHAI PRANSHANKAR BHATT Vs STATE OF GUJARAT
Bench: ASOK KUMAR GANGULY,DEEPAK VERMA, , ,
Case number: Crl.A. No.-002109-002109 / 2009
Diary number: 20646 / 2009
Advocates: SUMITA RAY Vs
HEMANTIKA WAHI
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2109 OF 2009
YOMESHBHAI PRANSHANKAR BHATT Appellant (s)
VERSUS
STATE OF GUJARAT Respondent(s)
J U D G M E N T
GANGULY, J.
Heard learned counsel for the parties.
Some important questions have come up for consideration
in this case.
This appeal is against the concurrent finding of both the
courts convicting the appellant under Section 302 IPC and
sentencing him to suffer imprisonment for life. The judgment of
the Trial Court was rendered by the Additional Sessions Judge at
Vadodara in Sessions Case No. 275 of 2001 by judgment and order
dated 16.8.2001. The High Court by judgment and order dated
17.3.2009 in Criminal Appeal No. 815 of 2001 affirmed the same.
At the stage of SLP, this Court by an order dated
27.7.2009 issued notice only confined to the question as to
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whether the petitioner is guilty for commission of an offence
under any of the parts of Section 304 of the Indian Penal Code
and not under Section 302 thereof.
Learned counsel for the appellant urged that though at
the time of issuing notice, this Court limited its rights to
raise points only within the confines of Section 304 of Indian
Penal Code, the Court is not bound at the time of final hearing
with that direction given while issuing notice and the appellant
is entitled to urge all questions including his right to urge
that he should have been acquitted in the facts and circumstances
of the case. Before examining the correctness of the aforesaid
submission, we are inclined to look into the rules of this Court.
The Supreme Court Rules, 1966 (hereinafter referred to as “the
rules”) which have been framed under Article 145 of the
Constitution are relevant in connection with this inquiry. It has
been held by this Court that the power of Supreme Court to make
Rules to regulate its own procedure is only subject to two
limitations:
(i)These rules are subject to laws made by Parliament.
[See Rodemadan India Ltd., v. International Trade
Expo Centre Ltd., (2006) 11 SCC 651.]
(ii)These rules, being in the nature of subordinate
legislation, cannot override the Constitutional
provision. [See Prem Chand Garg and another v. Excise
Commissioner, U.P. and others, AIR 1963 SC 996]
However, these rules are intended to govern the practice
and procedure of this Court.
Article 145 of the Constitution provides that subject to
the provisions of any law made by Parliament, the Supreme Court,
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may from time to time, with the approval of the President, make
rules for regulating the general practice and procedures of the
court including the matters which are enumerated as follows:-
(a) rules as to the persons practising before
the Court;
(b) rules as to the procedure for hearing
appeals and other matters pertaining to appeals
including the time within which appeals to the
Court are to be entered;
(c ) rules as to the proceedings in the Court
for the enforcement of any of the rights conferred
by Part III;
(cc)[rules as to the proceedings in the Court under
[article 139A];
(d) rules as to the entertainment of appeals
under sub-clause (c ) of clause (1) of article 134;
(e) rules as to the conditions subject to which
any judgment pronounced or order made by the Court
may be reviewed and the procedure for such review
including the time within which applications to the
Court for such review are to be entered;
(f) rules as to the costs of and incidental to
any proceedings in the Court and as to the fees to be
charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination
of any appeal which appears to the Court to be
frivolous or vexatious or brought for the purpose of
delay;
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We are not concerned here with other sub-articles of
Article 145. The rules which have been thus framed by this Court
under the constitutional provision must be read in understanding
the scope of its power under Article 142 of the Constitution.
Article 142 of the Constitution provides as follows:-
142. Enforcement of decrees and orders of
Supreme Court and orders as to discovery, etc. (1)
The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order
as is necessary for doing complete justice in any
cause or matter pending before it, and any decree so
passed or order so made shall be enforceable
throughout the territory of India in such manner as
may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so
made, in such manner as the President may by order
prescribed.
2. Subject to the provisions of any law made in
this behalf by Parliament, the Supreme Court
shall, as respects the whole of the territory of
India, have all and every power to make any
order for the purpose of securing the attendance
of any person, the discovery or production of
any documents, or the investigation or
punishment of any contempt of itself.
The provision of Article 142 of the Constitution have
been construed by this Court in several judgments. However, one
thing is clear that under Article 142 of the Constitution, this
Court in exercise of its jurisdiction may pass such decrees and
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may make such orders as is necessary for doing complete justice
in any case or matters pending before it. It is, therefore, clear
that the court while hearing the matter finally and considering
the justice of the case may pass such orders which the justice of
the case demands and in doing so, no fetter is imposed on the
court's jurisdiction except of course any express provision of
the law to the contrary, and normally this Court cannot ignore
the same while exercising its power under Article 142.
An order which was passed by the court at the time of
admitting a petition does not have the status of an express
provision of law. Any observation which is made by the court at
the time of entertaining a petition by way of issuing notice are
tentative observations. Those observations or orders cannot limit
this court's jurisdiction under Article 142.
If we look at the rules, it is also clear from the Order
XLVII Rule 6, that the inherent powers of the Court are saved
under the Rules. The provision of Order XLVII Rule 6 are set out
to demonstrate the same.
“Nothing in these rules shall be deemed to
limit or otherwise affect the inherent powers of the
Court to make such orders as may be necessary for
the ends of justice or to prevent abuse of the
process of the Court.”
Order XLVII Rule 1 is almost to the same effect and is
set out below:-
“The Court may, for sufficient cause shown,
excuse the parties from compliance with any of the
requirements of these rules, and may give such
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directions in matters of practice and procedure as it
may consider just and expedient.”
In view of this position under the rules and having
regard to the constitutional provision under Article 142, we do
not think that this Court at the time of final hearing is
precluded from considering the controversy in its entire
perspective and in doing so, this Court is not inhibited by any
observation in an order made at the time of issuing the notice.
Observation to that effect has been made in a judgment of
this Court in the case of State of Uttaranchal vs. Alok Sharma
and others reported in 2009(7) SCC 647. In paragraph 31 at page
658, this Court, after making an express provision to Article 142
held as follows:-
“So far as civil appeal arising out of SLP(C)
No. 6451 of 2005 and civil appeal arising out of
SLP(C) no. 8239 of 2005 are concerned, although
limited notice having been issued confining the case
to back wages, but keeping in view the order passed
in the other cases, we are of the opinion that the
said order shall be recalled and leave on all points
should be granted. The respondents being placed
similarly should not, in our opinion, be treated
differently. This order is being passed in exercise
of our jurisdiction under Article 142 of the
Constitution of India. However, we make it clear
that if any amount has been paid to the said
respondents, the same should not be recovered. The
appeals are allowed with the aforementioned
directions. No costs.”
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By way of analogy we may refer to the provision of
Section 100 of Civil Procedure Code. Section 100 runs as
follows:-
100. Second Appeal. (1) Save as otherwise
expressly provided in the body of this Code or by any
other law for the time being in force, an appeal
shall lie to the High Court from every decree passed
in appeal by any Court subordinate to the High Court,
if the High Court is satisfied that the case involves
a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex-parte.
(3)In an appeal under this Section, the memorandum
of appeal shall precisely state the substantial
question of law involved in the appeal.
(4)Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(5)The appeal shall be heard on the question so
formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that
the case does not involve such question:
Provided that nothing in this sub-section shall be deemed
to take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that
the case involves such question.
Proviso to Section 100 of the Code makes it clear that
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the powers of High Court cannot be fettered to hear a second
appeal on a question which was not formulated by it at the time
of admitting a second appeal, if the case involves any other
question. So far as the High Court is concerned, the same has
been statutorily recognised under Section 100 in the case of
Second Appeal. In the case of this Court, the same has been
constitutionally provided in Article 142.
We are, therefore, entitled to consider the plea of the
appellant for acquittal despite the fact that at the time of
issuing notice, it was limited in terms of the order dated
27.7.2009.
We, however, make it clear that this cannot be a
universal practice in all cases. The question whether the Court
will enlarge the scope of its inquiry at the time of final
hearing depends on the facts and circumstances of the case.
Since in the facts of this case, we find that the appellant
should be heard on all points, we have come to the aforesaid
conclusion.
Now, coming to the facts of the case, we find that
broadly in the case against the appellant, there is no eye-
witness. The facts are that the deceased was working in the
house of the appellant as a maid. She was absent from her duties
and the appellant went to her house, which is at a nearby area
from the house of the appellant, to call her to join her duties
as a maid. It is nobody's case that the appellant went to the
house of the deceased, being armed with any weapon or he was
carrying any inflammable substance. Therefore, any pre-meditation
on the part of the appellant in causing any bodily harm or injury
to the deceased is admittedly ruled out.
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The appellant went to the house of the deceased being
accompanied by one Alpesh. In the house of the deceased, an
altercation ensued between the appellant and the deceased as the
deceased was refusing to come and join her work as a maid
presumably on the ground that the amount of Rs. 375/- per month
which was paid by the appellant to the deceased by way of
remuneration was very low. The appellant had stated by way of
defence that the deceased had taken a loan of Rs. 10,000 from the
appellant and the appellant wanted the deceased to return the
same. However, this defence has not been accepted either by the
trial court or the High Court. Admittedly, an altercation
followed and it is alleged that the appellant on the spur of the
moment, went to the deceased and gagged her mouth. The further
prosecution case is that the deceased was cooking at the time
when the appellant went to her house. A can of kerosene was lying
nearby and the appellant almost emptied the can of kerosene on
the deceased and lit the match stick. Surprisingly, Alpesh who
accompanied the appellant to the house of the deceased ran away
before the incident of burning had taken place and he was not
examined by the prosecution at all. The only two other witnesses
in this case are PW 1 husband of the deceased and PW 2 the elder
sister-in-law of the deceased. PW 2 came to the place of
occurrence after hearing the shouts of the deceased and made
arrangements for taking the deceased to the doctor for treatment.
Both PW 1 husband of the deceased and PW 2 Kanta Ben, who made
arrangements for taking the deceased for medical treatment were
declared hostile. PW 1, the husband of the deceased, in his
evidence submitted that the deceased had suicidal tendencies in
the past.
The case is, therefore, entirely based on circumstantial
evidence and the statement of the deceased in more than one dying
declarations. The first dying declaration appears to have been
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recorded when PW 2 Kanta Ben took the deceased to hospital at
0330 hours wherein the doctor said that the deceased was fully
conscious and had informed the doctor that the appellant had
sprinkled kerosene on her at 0200 hours at her residence when she
was doing her work and set her on fire with a match stick. The
second was recorded by PSI which is Exh. 27 and the third one was
by the Executive Magistrate (Exh. 31). Virtually, there is no
inconsistency between these dying declarations of the deceased
recorded at the interval of few hours on the day of the incident.
The prosecution evidence is that the deceased survived for six
days after the date of the incident and lost her consciousness
and did not regain her consciousness till she was alive. The
evidence of PW 1 is that he was informed of the incident and he
came to see the deceased on the date of the incident and found
her unconscious. The learned counsel for the appellant further
submitted the doctor had not given his written opinion that the
deceased was fit enough to give her statement. Though orally,
the doctor said so. Relying on this part of the evidence
especially the evidence of the husband of the deceased, the
learned counsel for the appellant submitted that even though the
husband may have been declared hostile, the law relating to
appreciation of evidence of hostile witnesses is not to
completely discard the evidence given by them. This Court has
held that even the evidence given by hostile witness may contain
elements of truth.
This Court has held in State of U.P. vs. Chetram and
others, AIR 1989 SC 1543, that merely because the witnesses have
been declared hostile the entire evidence should not be brushed
aside. [See para 13 at page 1548].
Similar view has been expressed by three-judge Bench of
this Court in Khujji alias Surendra Tiwari vs. State of Madhya
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Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report
this Court speaking through Justice Ahmadi, as His Lordship then
was, after referring to various judgments of this Court laid down
that just because the witness turned hostile his entire evidence
should not be washed out.
Apart from that, the learned counsel submitted that the
statement of the appellant under Section 313 was accompanied by
written document. There the appellant had taken a defence plea
that he wanted to save the deceased and in the process got his
right hand burnt.
However, neither the Trial Court nor the High Court had
considered this aspect of the case. The learned counsel for the
appellant has further submitted that the case of the prosecution
as presented is totally improbable. He had strenuously urged
that it was impossible for one individual to hold in one hand, a
woman, who was struggling desparately to free herself from his
grasp and to pour by the other hand three litres kerosene on her
from a can with a small opening and then lit the matchstick,
which requires the involvement by both the hands. The courts
should have considered this aspect of the matter which would show
the inherent improbability in the prosecution case.
It cannot be denied, as it has come on evidence, that as
the deceased was wearing a polyster saree, the burn injuries were
aggravated which could not have been so if she would have been
wearing a cotton dress. The fact that she was wearing a polyster
saree is not disputed by the prosecution. The learned counsel
submitted that considering the aforesaid facts into consideration
by this Court, the case cannot come under Section 302 IPC.
The learned counsel appearing for the State submitted
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that the case of the appellant was twice considered by the Trial
Court and also by the High Court and both the courts have found
concurrently against him and overruled the aforesaid contentions.
Learned counsel further submitted that the case falls
squarely under Section 300, thirdly of IPC.
We have considered the relevant submission. We are of
the view that in a case relating to circumstantial evidence, the
Court should see the circumstances very carefully before arriving
at a finding of guilt of the person concerned and yet if there is
any doubt which is inconsistent with the innocence of the
accused, the benefit should go to the accused.
In the instant case, it is clear that the appellant had
no pre-meditation to kill the deceased or cause any bodily harm
or injury to the deceased. Everything has happened on the spur
of the moment. The appellant must have lost self-control on some
provocative utterances of the deceased. These possibilities
cannot be ruled out, having regard to the evidence of PW.1.
However, the fact that kerosene was sprinkled on the deceased by
the appellant possibly cannot be disputed, in view of concurrent
finding by both the courts and having regard to the materials on
record.
But whether the case falls under Section 300, thirdly of
IPC, is very doubtful. Having regard to the facts and
circumstances of the case and in the light of defence of the
deceased, this Court holds that the case falls under Section 304
Part II and the appellant has already suffered imprisonment for
11 years 2 months. In that view of the matter, this Court holds
that the sentence which has already been undergone by the
appellant is more than sufficient under Section 304 Part II.
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However, the sentence of fine is set aside.
Having regard to our finding, that the case falls under
Section 304 Part II, the appeal is allowed to the extent
indicated above. The appellant should be released forthwith, if
not required in any other case.
...................J. (ASOK KUMAR GANGULY)
...................J. (DEEPAK VERMA)
NEW DELHI
MAY 19, 2011.
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