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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.