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1 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.

1.    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

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2 sentenced him to undergo 5 years RI, which judgment is under challenge in

this appeal by Special Leave.

2. 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”

3. 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,

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3 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.   

4. 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:-

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4 “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

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5 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

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6 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

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7 this Court in  Sumer Singh v.  Surajbhan Singh1 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

1 (2014) 7 SCC 323

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8 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

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9 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.  

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10 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 Singh3 and later followed in a series of decisions (vide Arunachalam v. P.S.R. Sadhanantham4,  Delhi  Judicial  Service  Assn. v.  State  of Gujarat5). ….

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…………”  

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

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11 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