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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