Full Judgment Text
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CASE NO.:
Appeal (crl.) 932 of 2000
PETITIONER:
Raj Kumar Prasad Tamarkar \005Appellants
RESPONDENT:
State of Bihar & Anr. \005Respondents
DATE OF JUDGMENT: 04/01/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
JUDGMENT
W I T H
CRIMINAL APPEAL No. 1103 OF 2001
S.B. SINHA, J :
Raja Ram Sao (Respondent) was prosecuted for commission of an
offence under Section 302 of the Indian Penal Code. He was a convoy
driver employed by Tata Engineering Locomotive Company (TELCO) at
Jamshedpur. He married Usha Devi (deceased) on 3.07.1995 at Calcutta at
her maternal grandfather’s place. She had all along been residing at Calcutta
with him. She, after solemnization of the marriage, went to her matrimonial
home at Jamshedpur on several occasions. She, however, stayed at
Jamshedpur only for a total number of 10 days. The deceased’s father Raj
Kumar Prasad Tamarkar (Appellant) was a resident of Giridih.
Allegedly, the respondent had an affair with a lady named Shahnaj.
The deceased allegedly raised objection in regard thereto. She, at the
material time, was staying with her parents at Giridih. At about 4.00 p.m.
on 13.07.1996, the respondent came to his in-laws place at Giridih. He
asked for ’Bidai’ of his wife. It was agreed that Bidai ceremony would be
held on 17.07.1996. He stayed at Giridh on the said date. On 14.07.1996,
allegedly, the respondent went to see a movie in a theater known as ’Jivan
Talkies’ along with the deceased and her brother Ranjit Kumar Prasad (PW-
3). The residential premises of the parents of the deceased consisted of only
two rooms, one on the second floor which was being used as a bedroom and
other on the first floor which was also used as a kitchen. There was a terrace
on the second floor just in front of the said bed room. When the dinner was
to be served the brother-in-law of the respondent was asked to have it in the
kitchen situate at the first floor, the deceased took the food for dinner of the
respondent to a room in the second floor in which he was staying.
It is not in dispute that although as a convoy driver of TELCO, the
respondent visited Calcutta on several occasions after solemnization of the
marriage, he never visited the deceased although she was staying with her
maternal grandfather at Calcutta. It is furthermore not in dispute that when
the incident took place the deceased was alone with the respondent on the
second floor of the house.
The prosecution case is when the deceased had gone upstairs with the
dinner of the respondent, a sound of a gunfire was heard by the informant at
the first floor. PW-3 rushed to the second floor immediately and found the
deceased lying in a pool of blood in the terrace having a gun shot injury.
Allegedly, he exclaimed "DIDI KO KISEE NEI GOLI MAR DIYA".
Hearing these words, the parents of the deceased also rushed to the second
floor and found her lying in the terrace in the pool of blood with a gun shot
injury on her forehead. Respondent was seen hiding something by PW-2.
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When the mother of the deceased Gouri Devi (PW-2) took the deceased’s
head on her lap, the respondent also came out. She was brought downstairs
and taken to a nursing home. Respondent was also said to have
accompanied them in a rickshaw. She was declared dead. Before the
deceased was taken to the nursing home, PW-2 had locked the room from
outside.
Information about the said incident was lodged by Raj Kumar Prasad
Tamarkar, the father of the deceased (PW-13).
The investigating officer, on opening of the lock, found a revolver
from which smoke was still coming out. It was found from the bed-stead of
the room.
Respondent was arrested. Principal witnesses examined on behalf of
the prosecution to prove the offence against the respondent before the
learned Sessions Judge were PW-2, PW-3 and PW-13, mother, brother and
informant - father of the deceased respectively. Indisputably, they were
present in the house when the occurrence had taken place. The autopsy
report was prepared by Dr. Kaushlendra Kumar (PW-1) posted at Sadar
Hospital, Giridih. He found the following injuries on the person of the
deceased:
"(i) one circular lacerated wound over grabella
(middle of forehead) =" x 1/2" cranial cavity deep
with inverted margin, blackening and charring was
present.
(ii) Cresentric mark over the side of the nose (left)
below left eye \026 nail mark.
On further desection \026 subcutaneous tissues under
the lacerated wound on the forehead in middle i.e.
Glabella region and the underlying frontal bone
consisted a circular hole =" x =" Cranial cavity
deep.
On further desection the menigges and the brain
were lacerated and terro posteriorly with extra
cranial blood clot. On bullet was taken out from
the posterior cranial fossa. The bullet was sealed
and handed over the investigating agency."
Bharti Devi (PW-4) was the aunt of the deceased, i.e., the brother’s
wife of informant (PW-13). She was staying in the same house. She
deposed that at the relevant time the respondent was staying in the house and
he had come asking for Bidai of the deceased. Suresh Kumar (PW-3) is
another brother of the informant living in the same house. He was informed
by the informant that it was the respondent who was responsible for the
death of his daughter (deceased).
Kameshwar Prasad (PW-5) is another brother of the informant who
was also living in the same house. He also supported PW-3. Bishwanath
Sharma (PW-7) was a neighbour who came to the place upon hearing
commotion. To him also the occurrence was reported by the informant.
Kali Prasad Sao (PW-8), Shambhu Prasad (PW-9), Surender Sao (PW-10)
and Ramdeo Prasad Yadav (PW-11) were witnesses of seizure of a blood-
stained revolver from the bed-stead of the room which was being occupied
by the respondent at the relevant time. Shesil David Khalkho (PW-12) is a
Sargent Major. He had examined the seized revolver and opined that the
same had been in a working condition and had been used recently. He
examined himself as PW-12.
The learned Sessions Judge on the basis of the aforementioned
evidence found the respondent guilty of commission of murder and
sentenced him to undergo rigorous imprisonment for life.
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The said judgment having been appealed against has been reversed by
the High Court by reason of the impugned judgment. The High Court was
of the opinion that the circumstances said to be obtaining in the prosecution
case could not be said to have connected all the links in the chain. The High
Court also noticed that there was no eye-witness to the occurrence.
The circumstances which have been found by the learned Sessions
Judge to prove the involvement of the respondent in the case are as under:
"(i) The marriage between the accused-appellant
and the deceased was solemnized some time prior
to the occurrence and the accused \026 appellant
although visited Calcutta in course of his duty but
he did not meet his wife Usha Devi the deceased,
in Calcutta while she was residing at her Nanihal
at Bhawanipur.
(ii) At the time of occurrence in the upstairs of
the house only the accused \026 appellant and the
deceased were present. There was none other than
them.
(iii) Soon after the occurrence when the inmates
of the house went upstairs hearing the sound of
firing, the accused \026 appellant was in the room
while the deceased, Usha Devi, was lying with gun
shot injury in pool of blood on the terrace and he
was found concealing something inside the bed-
stead.
(iv) On examination of the seized revolver it was
found to be an unable one and recently it was used
as still there was smell of firing in the barrel.
(v) The accused \026 appellant was having some
illicit relationship with one lady, namely, Sahnaj
and only with the ulterior motive of clearing his
path of illicit relationship with Sahnaj, Usha Devi
was murdered. A letter to that effect as alleged
was written by the accused \026 appellant to the
deceased had been proved in the case."
We have noticed hereinbefore certain admitted facts which we need
not advert to once over again.
No positive defence was taken by the respondent. Merely a
suggestion was given while cross-examining the prosecution witnesses that
the deceased might have been killed by an outsider.
Our attention was drawn to a letter dated 30.10.1995 (Ext. 7) written
by the respondent to the deceased. In that letter indisputably the respondent
had warned the deceased of grave consequences if she continued to accuse
him in regard to his affair with Shahnaj.
The learned Judges of the High Court opined that there was nothing to
show that the revolver belonged to the respondent, particularly, when the
same had not been sent to a ballistic expert nor the blood which was found
thereupon was sent for chemical examination.
The High Court held that the prosecution could not be said to have
proved any motive against the respondent, nor had it been able to show that
the relationship of the respondent with the deceased was abnormal as it
stood admitted that immediately after the brother-in-law of the respondent
arrived, the respondent came out from his room and helped the deceased in
being taken to the nursing home. The High Court opined that such sort of
conduct was not expected from a criminal.
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The High Court moreover opined that nobody had stated that the
revolver was kept in the jhola which was carried by the respondent. It was
furthermore observed that the room wherein the respondent was staying
cannot be said to be in his exclusive possession and, thus, if anything
incriminating had been found therein, the same could not ’finger towards the
conscious possession’ of the respondent. It was furthermore opined that the
fired bulled recovered from the body of the deceased having not been sent
for chemical examination along with the revolver to prove that the same had
been fired from the revolver seized; there remained a gap constituting a
missing link.
Ext. 7 was proved to be in the handwriting of the respondent. The
contents of the said letter are not in dispute. It contained threatenings to the
deceased. She was warned of grave consequences even to the extent of
killing her.
Mr. Ranjan Mukherjee, learned counsel appearing on behalf of the
appellant in Criminal Appeal No. 932 of 2000 and Mr. B.B. Singh, learned
counsel appearing on behalf of the State of Jharkhand would submit that the
judgment of the High Court suffers from a manifest error insofar as it failed
to take into consideration that not only the motive but also all other links in
the chain of circumstances have been proved by the prosecution.
Mr. Arup Banerjee, learned counsel appearing on behalf of the
respondent, on the other hand, supported the judgment of the High Court.
The conspectus of the events which had been noticed by the learned
Sessions Judge as also by the High Court categorically go to show that at the
time when the occurrence took place, the deceased and the respondent only
were in the bedroom and the terrace connecting the same. There was no
other person. The cause of death of the deceased Usha Devi i.e. by a gun
short injury is not disputed. The fact that the terrace and the bedroom are
adjoining each other is not in dispute.
The autopsy report shows that ’a blackening and charring’ existed so
far as Injury No. (i) is concerned. The blackening and charring keeping in
view the nature of the firearm, which is said to have been used clearly go to
show that a shot was fired from a short distance. Blackening or charring is
possible when a shot is fired from a distance of about 2 feet to 3 feet. It,
therefore, cannot be a case where the death might have been caused by
somebody by firing a shot at the deceased from a distance of more than 6
feet. The place of injury is also important. The lacerated wound was found
over grabella (middle of forehead). It goes a long way to show that the same
must have been done by a person who wanted to kill the deceased from a
short distance. There was, thus, a remote possibility of causation of such
type of injury by any other person, who was not in the terrace. Once the
prosecution has been able to show that at the relevant time, the room and
terrace were in exclusive occupation of the couple, the burden of proof lay
upon the respondent to show under what circumstances death was caused to
his wife. The onus was on him. He failed to discharge the same.
This legal position would appear from a decision of this court in Nika
Ram v. The State of Himachal Pradesh [AIR 1972 SC 2077] wherein it was
held:
"It is in the evidence of Girju PW that only the
accused and Churi deceased resided in the house of
the accused. To similar effect are the statements of
Mani Ram (PW 8), who is the uncle of the
accused, and Bhagat Ram school teacher (PW 16).
According to Bhagat Ram, he saw the accused and
the deceased together at their house on the day of
occurrence. Mani Ram (PW 8) saw the accused at
his house at 3 p.m., while Poshu Ram, (PW 7) saw
the accused and the deceased at their house on the
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evening of the day of occurrence. The accused also
does not deny that he was with the deceased at his
house on the day of occurrence. The house of the
accused, according to plan PM, consists of one
residential room one other small room and a
varandah. The correctness of that plan is proved by
A. R. Verma overseer (PW 5). The fact that the
accused alone was with Churi deceased in the
house when she was murdered there with the
Khokhri and the fact that the relations of the
accused with the deceased, as would be shown
hereafter, were strained would, in the absence of
any cogent explanation by him, point to his guilt."
In Trimukh Maroti Kirkan v. State of Maharashtra [JT 2006 (9) SC
50], the law is stated in the following terms:
"Where an accused is alleged to have committed
the murder of his wife and the prosecution
succeeds in leading evidence to show that shortly
before the commission of crime they were seen
together or the offence took place in the dwelling
home where the husband also normally resided, it
has been consistently held that if the accused does
not offer any explanation how the wife received
injuries or offers an explanation which is found to
be false, it is a strong circumstance which indicates
that he is responsible for commission of the
crime\005"
We furthermore fail to understand as to how the High Court could say
that the Exhibit 7 had not been proved. The same was proved by PW-13.
No objection in regard to its admissibility was taken. The alleged motive on
the part of the respondent in killing his wife, viz., his illicit relationship with
Shahnaj was admittedly put to him under Section 313 of the Code of
Criminal Procedure. He did not deny the same. He did not even deny that he
was the author of the letter.
It is interesting to note that the respondent did not raise any positive
defence. He in answer to all the questions merely stated that he was not
aware thereof.
If the said letter dated 30.11.1995 stands proved, the motive on the
part of the respondent to kill his wife becomes explicit. A threat to kill her
had been given. It would, thus, not be correct to say that the prosecution had
not been able to prove the motive. Another strong circumstance in regard to
motive of the respondent which is again not in doubt or dispute is the
abnormal relationship between the parties. The death of the deceased took
place within a year’s time from the date of marriage. Within a period of one
year, admittedly, the deceased stayed at Jamshedpur for a total period of ten
days although she had been visiting Jamshedpur off and on. She had been
even after marriage ordinarily living with her maternal grandfather at
Calcutta. The respondent had been frequently visiting Calcutta. It is wholly
unnatural that, despite the fact that the deceased had been visiting Calcutta,
her husband would not visit her.
For one reason or the other, Bidai ceremony had not been held.
Respondent evidently had come to her in-laws’ place at Giridih without any
prior information. He demanded Bidai ceremony to take place immediately
and it was agreed that it would be done on 17.07.1996.
Parents of a married daughter would wish her a happy married life.
The respondent had been treated by in-laws with usual courtesy. Even some
lapses on the part of the son-in-law may be ignored keeping in view the
societal condition. We do not see any reason to disbelieve the disposition of
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the prosecution witnesses to show that the deceased was alone with the
respondent at the material time.
The observation of the High Court that the deceased had not been
proved to be in possession of the revolver cannot be accepted. The
respondent at the relevant time was with the deceased. In the event, the
death has been caused by an outsider, he could have shouted. He would
have been the first person to point out to her in-laws as to from which side
the shot was fired. Even he could have been the first person to offer his
explanation to the investigating officer. He chose not to do so.
Respondent was found to be hiding something under the bed-stead by
his mother-in-law. It may be true that PW-3 brother of the deceased when
came to the room shouted that somebody had killed his elder sister but the
same would not mean that even if the circumstances are so glaring pointing
out the guilt of the accused and accused alone, the same should be ignored
only because of the said statement.
Other brothers of PW-13 including PW-4 came to the spot
immediately. PW-7 who was the neighbour also came to the spot
immediately after the incidence. To them also the respondent did not offer
any explanation. To them also he did not say as to how his wife had
suffered a gun shot injury.
The prosecution case that while taking the deceased to the nursing
home, the mother of the deceased locked the door from outside has not been
disputed. The lock of the door was indisputably opened in the presence of
the investigating officer. Recovery of the revolver being the weapon of
attack is also not in dispute. The fact that the injury could have been caused
only by the weapon in question is also not in dispute. The same was not
only found to be in working condition, it was also found by the investigating
officer as also PW-12 that the same had been used recently.
We may also notice that the defence suggested that the deceased
might have committed a suicide. It was furthermore suggested that some
family members might have committed the offence. The learned Sessions
Judge found, which finding is not questioned before us, that keeping in view
the place where the dead body was found, the suicide theory is wholly
improbable. The bangles of the deceased were found broken. If she had
committed suicide in the room, it was impossible for her to run to the
terrace. It was impossible that the pistol would be found hidden under a
bed-stead in the room which is admittedly at some distance from the place
where the deceased was found lying.
It is difficult to accept the submissions of Mr. Banerjee that had the
respondent fired the shot, he could have thrown away the revolver. Under
what circumstances the respondent did so can only be a subject matter of
surmises. It is well known that different persons behave differently in a
given situation. It is just possible that even if the revolver had been thrown,
the same would have been found immediately.
Mr. Banerjee contended that the room was not in the exclusive
possession of the respondent. It may be that the room was not in the
exclusive possession of the respondent in the sense that he had not been
living there permanently but it had not been denied or disputed that at the
relevant time the deceased and the respondent were alone in the room. No
other person was present there. Even the witnesses were not cross-examined
in that behalf. No suggestion even had been given to that effect.
It was argued that if the respondent intended to kill the deceased, he
could have done after 17.07.1996, viz., after Bidai ceremony took place.
The very fact that the respondent brought a revolver is itself a pointer to the
fact that he wanted to kill the deceased at one point of time or the other. He
might have thought that Bidai ceremony would be held on 13.07.1996 or
14.07.1996. When it was postponed, he might have found out an occasion to
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kill her. Under what circumstances, the occurrence took place is not known.
Respondent, it would bear repetition to state, did not open his mouth. He
was entitled to exercise the right of silence. That he did not offer any
explanation itself may not be sufficient to conclusively hold that he was
guilty of commission of the offence, but the legal position that the same
would be considered to be a circumstance against him is not in dispute.
It was also not a case where it can be said that the incident took place
in a heat of passion. There is no evidence that there had been a sudden
quarrel. Even the High Court said so in paragraph 11 of its judgment. It is,
therefore, not a case where the respondent can be held to be guilty for
commission of an offence under Section 304 Part II of the Indian Penal
Code.
In Sandhya Jadav (Smt.) v. State of Maharashtra [(2006) 4 SCC 653],
this Court held:
"\005The help of Exception 4 can be invoked if
death is caused (a) without premeditation, (b) in a
sudden fight; (c) without the offender having taken
undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the
person killed. To bring a case within Exception 4
all the ingredients mentioned in it must be found. It
is to be noted that the ’fight’ occurring in Exception
4 to Section 300, IPC is not defined in IPC. It takes
two to make a fight. Heat of passion requires that
there must be no time for the passions to cool
down and in this case, the parties have worked
themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat
between two or more persons whether with or
without weapons. It is not possible to enunciate
any general rule as to what shall be deemed to be a
sudden quarrel..."
[See also Pappu v. State of M.P. (2006) 7 SCC 391, para 13, Vadla
Chandraiah v. State of Andhra Pradesh, 2006 (14) SCALE 108]
In State of Andhra Pradesh v. Rayavarapu Punnayya and Another
[(1976) 4 SCC 382], this Court held:
"In the scheme of the Penal Code, ’culpable
homicide’ is genus and ’murder’ its specie. All
’murder’ is ’culpable homicide’ but not vice-versa.
Speaking generally, ’culpable homicide’ sans
’special characteristics of murder’, is ’culpable
homicide not amounting to murder’. For the
purpose of fixing punishment, proportionate to the
gravity of this generic offence, the Code
practically recognises three degress of culpable
homicide. The first is, what may be called,
culpable homicide of the first degree. This is the
greatest form of culpable homicide which is
defined in Section 300 as ’murder’. The second
may be termed as ’culpable homicide of the second
degree’. This is punishable under the 1st part of
Section 304. Then, there is ’culpable homicide of
the third degree.’ This is the lowest type of
culpable homicide and the punishment provided
for it is, also, the lowest among the punishments
provided for the three grades. Culpable homicide
of this degree is punishable under the second Part
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of Section 304."
[See also Laxman v. State of M.P., JT 2006 (12) SC 495]
It is true that neither any fingerprint expert nor any ballistic expert had
been examined. Even the blood found on the revolver had not been sent for
chemical examination, but, in our opinion, the same by itself would not
negate the circumstances which have proved the guilt of the respondent
beyond all reasonable doubt.
We are aware of the limitations of this Court. It is well settled that
ordinarily this Court would not interfere with the judgment of acquittal if
two views are possible but having regard to the fact that the High Court has
failed to take into consideration the relevant facts and misapplied the legal
principles, we think it fit to exercise our jurisdiction under Article 136 of the
Constitution of India as there has been serious miscarriage of justice.
The jurisdiction of this Court in a case of this nature is also well
known.
In State of U.P. v. Nawab Singh (Dead) and Others , [(2005) 9 SCC
84], this Court held:
"It is well-settled that when reasoning of the High
Court is perverse, this Court may set aside the
judgment of acquittal and restore the judgment of
conviction and sentence upon the accused. (See
Ramanand Yadav v. Prabhu Nath Jha). It is further
well-settled that there is no embargo on the
appellate court to review evidence upon which an
order of acquittal is based."
[See also Prithvi (Minor) v. Mam Raj and Others, (2004) 13 SCC 279,
State of U.P. v. Satish, (2005) 3 SCC 114]
For the reasons aforementioned, we set aside the judgment of the High
Court and restore that of the learned Sessions Judge. The appeals are
allowed. The respondent is sentenced to undergo rigorous imprisonment for
life under Section 302 of the Indian Penal Code. He may be taken in
custody forthwith to serve out the sentence.