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
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. 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
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
"(i) one circular lacerated wound over grabella (middle of forehead) ="
x 1/2" cranial cavity deep with inverted margin, blackening and charring
(ii) Cresentric mark over the side of the nose (left) below left eye
On further desection 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
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
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 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 appellant and the deceased were present. There was none other
(iii) Soon after the occurrence when the inmates of the house went
upstairs hearing the sound of firing, the accused 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
(v) The accused 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 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
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
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.
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 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
"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 "
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
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 the prosecution
witnesses to show that the deceased was alone with the respondent at the
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
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
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 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
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:
" The 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
[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 of Section
[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
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
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