S. Ganesan Vs Rama
Raghuraman & Ors.
Dr. B.S. CHAUHAN, J.
appeal has been preferred by the complainant, father of the deceased, against
the judgment and order dated 13.2.2003 in Criminal Appeal No. 1088 of 2002
passed by the High Court of Andhra Pradesh at Hyderabad acquitting the
respondents of the charges under Sections 302 read with 120-B of Indian Penal
Code (here in after referred to as "IPC") for committing the murder
of G. Arulmozhi by hitting him with a hammer on his head.
and circumstances giving rise to this appeal are as under:(A) Rama Raghuraman
(Accused 1)(hereinafter referred to as `A-1') made a statement to Mr. V.
Narasaiah, Sub-Inspector of Police(PW.1) that on 29.4.1997 at about 9.00 A.M.,
when she tried to wakeup deceased, G. Arulmozhi, who was sleeping in the other
room of the flat, he misbehaved with her and thus A-1 tried to get out of his clutches
in order to save herself. As she could not succeed in her attempt, she got the
hammer lying in the room and hit him on his head. On hearing her cries, her
husband Raghuraman (A.2) came at the spot and also hit deceased several times
on his head with the same hammer and thus, the deceased suffered grievous
injuries. Immediately, Rama Raghuraman (A.1) went to the nearby hospital and
informed Dr. U. Srinivas (PW.3) that her brother was seriously injured on the
head and she brought him to examine the deceased. Dr. U. Srinivas (PW.3) came
to her flat and after examining the injured, he advised that he should be taken
to the hospital immediately.
An ambulance was
called and with the help of two attendants, Rama Raghuraman (A.1) and
Raghuraman (A.2) took the injured to the hospital. He was examined there by the
doctors. The doctor also informed the police, on which Mr. V. Narasaiah, Sub
Inspector of Police (PW.1) reached the hospital and recorded the statement of Rama
Raghuraman (A.1) and lodged a complaint to Mr. K. Chakrapani, Station House
Officer, (PW.16).(B) On receiving such information, Crime No. 235 of 1997 under
Section 307 IPC was registered against Rama Raghuraman (A.1) and Raghuraman
(A.2). However, when the police came to the hospital to record the statement of
the injured, he was found to be unconscious. Thereafter, Mr. K. Chakrapani
(PW.16) proceeded to the place of occurrence and made a rough sketch of the
site in the presence of witnesses Mr. Kamal Bukhada (PW.6) and Mr. Premchand
(PW.7) and also seized M.Os. 2 to 12 from the place of occurrence. Mr.
K.Chakrapani (PW.16) also examined PWs 2 to 5 and recorded their statements.(C)
On the next day i.e. 30.4.1997 at about 11.45 P.M., Mr. K. Chakrapani (PW.16)
received the information that G. Arulmozhi had died and, therefore, he altered
the case from Section 307 IPC to Section 302 IPC.
He conducted the
inquest over the body of the deceased in presence of two witnesses. Dr.
Ramachander Rao, the Medical Officer in NIMS Hospital (PW.9) examined the
deceased and found four injuries on the person of the deceased. After the death
of the deceased, Dr. M. Ravinder Reddy, the professor in Forensic Medicine,
Gandhi Medical College, Hyderabad (PW.18), conducted an autopsy of the dead
body of the deceased.(D) Mr. T.V. Raja Gopal, Investigating Officer, (PW.17),
took over further investigation and recorded the statements of a large number
of witnesses and submitted the charge sheet. The Magistrate committed the
matter to the Sessions Court, wherein the respondents pleaded not guilty and
claimed trial. After concluding the trial and appreciating the evidence, oral
as well as documentary, the trial court vide judgment and order dated 9.9.2002
in Sessions Case No. 40 of 1999convicted both the respondents for offences
punishable under Section302 r/w Section 120-B IPC and awarded life imprisonment
with a fine of Rs.5,000/- each and in default of payment of fine, they were directed
to undergo further three months simple imprisonment.
aggrieved, the respondents preferred Criminal Appeal No. 1088 of 2002 before
the High Court of Andhra Pradesh at Hyderabad, which has been allowed by
impugned judgment and order dated 13.2.2003. Hence, this appeal.
R. Balasubramanian, learned senior counsel, duly assisted by Shri B. Balaji,
for the appellant, has submitted that the High Court committed an error by
reversing the well reasoned judgment and order of the trial court, wherein, in
absence of any eye-witness to the incident, both the respondents had been
convicted for committing the murder of G. Arulmozhi; the chain of circumstances
was complete and each circumstance pointed out towards the guilt of the respondents.
The deceased was in the flat which has been taken by the respondents on rent.
None of them denied their presence at the relevant point of time, rather they
had taken a false plea that Mr. N. Velayudham, brother-in-law of deceased,
(PW.8), had come on the same day by air at Hyderabad and had tried to convince
the deceased not to live with the respondents, instead to get married with the
girl of the choice of his father, as his family members were under the belief that
he had developed illicit relationship with the accused Rama Raghuraman (A.1).
The defence taken by
the accused was contrary to their own case pleaded in the bail application that
the deceased tried to molest Rama Raghuraman (A.1) and, therefore, she became
wild and lost all control and picked up a hammer lying in the room and caused injuries
to the deceased. Even if the defence version is believed to be true, it was a
clear cut case of exceeding the right of self defence. The hammer which was
recovered on the disclosure of the Rama Raghuraman (A.1) from the place of
occurrence is not generally used in the household. Before calling Dr. U.
Srinivas (PW.3), the accused had cleaned the blood stained floor. Doors and
windows were found closed and there was darkness inside the flat at 9 O' Clock
in the morning. The High Court did not consider each and every circumstance
considered by the trial court pointing out to the guilt of the accused. Rather
the High Court took a sympathetic view and passed a cryptic order without
giving sufficient reasons for acquittal. Hence, the appeal deserves to be
the contrary Ms. V. Mohana, learned amicus curiae, appearing for the
respondents-accused, has submitted that accusedpersons were highly qualified as
both of them passed their engineering course from IIT, Bombay. They developed
love and affection and got married. They had two children at the time of
incident. Their son was five years old and the girl was 2-1/2 years old. The
deceased himself was a computer engineer and an MBA from Indian Institute of Management,
Ahmedabad. He had opened a company along with accused persons and had the
accused had any intention to kill the deceased, they would not have called Dr.
U. Srinivas (PW.3) and further taken him to the hospital for treatment.
The accused Rama Raghuraman
(A.1) herself had informed the father of the deceased(the present complainant)
about his health condition. There could be no motive for the respondents to
harm the deceased. Investigation has not proceeded in accordance with law. There
was nothing for them to hide. In absence of any evidence of conspiracy between
the two accused, the High Court has rightly quashed their conviction under Section
120-B IPC. In such a fact-situation, if it cannot be determined as which of the
accused had caused the injuries, conviction of either of them is not
If the prosecution
case is taken to be true, the respondents had acted in self defence and are
entitled to the benefit of the provisions of Section 100 and Exception II to
Section300 IPC. The High Court after taking into consideration all the facts and
circumstances, reached the correct conclusion of acquittal of the accused. Hence,
no interference is required with the impugned judgment and order of the High
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
facts available on the record are that Rama Raghuraman (A.1) and Raghuraman
(A.2) had passed out their engineering course from IIT, Bombay and got married
on 10.9.1989.Out of this wedlock they had two children at the time of incident.
They were not having good relations, as is evident from the averments contained
in the divorce petition filed by Rama Raghuraman (A.1)against her husband
Raghuraman (A.2) in the Family Court at Madras. The deceased had been employed
in the Indian Oil Corporation as an Executive Assistant to the Executive
Director. The deceased came in contact with Raghuraman (A.2) who had his own
organization known as Pixel Graphics Multimedia at Madras. As the business of Raghuraman
(A.2) was in trouble, the deceased helped him financially. The deceased
resigned from his job and floated a company, namely, Indian Creations dealing
in the Multimedia presentation field along with Rama Raghuraman (A.1).
The deceased shifted
his residence from the Chennai to Hyderabad and started earning by way of
contracts. In the meantime, Raghuraman (A.2) also joined Rama Raghuraman (A.1),
patching up the differences with her. Admittedly, the incident occurred at the
place of occurrence i.e. flat of the respondents and at the time alleged
herein. The defence pleaded that Mr. N. Velayudham, (PW.8), had come there and
as he quarreled with the deceased, he had hit him on the head. In fact the
accused had furnished the same explanation to the staff at the Nizam's
Institute of Medical Sciences, Hyderabad on the date of incident i.e.
29.4.1997(Ex.P-6). This theory had been rejected by the trial court giving sufficient
and cogent reasons and we do not see any reason to disturb the said finding of
fact. Had it been so, the accused could have informed the police and also tried
to save the deceased or to apprehend Mr. N. Velayudham, (PW.8)
inconsistent pleas taken by the accused are apparent from the FIR that states
that the deceased tried to molest Rama Raghuraman (A.1) when she went to wake
him up. She got wild and beat him with a hammer. After hearing the hue and cry,
Raghuraman(A.2) came there and also caused injuries to him. The same plea had been
taken by Rama Raghuraman (A.1) in her bail application dated 8.5.1997. The
contents of the bail application reveal that she was having some marital
problems with her husband Raghuraman (A.2)which was in the knowledge of the
deceased and, thus, he was hopeful of getting married to Rama Raghuraman (A.1)
as and when she got separated from her husband, as the divorce petition was
pending on the date of incident.
The deceased was not
merely the business partner but also a very close friend of Rama Raghuraman
(A.1) and had fantasies about marrying her. However, she further pleaded that after
causing injuries to the deceased, they realised what had happened and had
suffered from utter shock. She immediately went and called a doctor from the
nearby hospital and on his advice, shifted the deceased to the hospital. The
accused gave their own blood to him to save his life. Paragraph 11 of the bail
application reads as under : "The petitioner respectfully submits that
even going by the prosecution case, she comes within the scope of Sec. 100(3) IPC
wherein she exercised her right of self defence to ward off the attempts of the
deceased to sexually assault her and rape her.
submits that what happened was sad and a great tragedy and neither she nor her
husband had any idea that such a sort of thing would happen. They realised only
after the incident happened." (Emphasis added)
trial court rejected the evidence of Dr. Ramachander Rao (PW.9) for giving two
different versions with regard to the weapons. However, the court considered the
following incriminating circumstances against the accused :
deceased was with the accused in their flat on the fateful day.
deceased received fatal injuries in the same flat which ultimately led to his
Raghuraman (A.1) approached Dr. U.Srinivas (PW.3) immediately after the
incident and brought him to the flat and Dr. U. Srinivas (PW.3) deposed that
the deceased was lying in a pool of blood and the doors and windows were closed
and there was complete darkness inside at 9 O'Clock in the morning. Unless the accused
had some guilty conscience, there was no need to close all the doors and windows
at 9 A.M.
weapon i.e. MO. 1 seized at the instance of Rama Raghuraman (A.1), though such
a hammer is not generally found in the household.
seizure of MOs. 2 to 12 i.e. blood stained articles which consist of sarees,
pants of the deceased and other items which had been used for mopping/cleaning the
place of occurrence.
panchnama and the evidence of Dr. U. Srinivas(PW.3) made it clear that there
were the circumstances of cleaning of the blood of the deceased before the
arrival of Dr. U.Srinivas (PW.3) and as none other than the accused were living
in that flat and as no other person had an opportunity to clean the flat and
had the accused not had a guilty conscience, they would not have hurriedly cleaned
the floor to ensure the disappearance of the blood stains.
was fully established that the injuries suffered by the deceased could not be
caused by a fall.
the basis of the aforesaid incriminating circumstances, the trial court found
the chain of circumstances complete and the circumstances pointing out towards
the guilt of the accused and thus convicted them accordingly.
High Court dealt with the case having sympathetic attitude towards the
respondents and decided the appeal in a very cryptic manner. After making
reference to statements of some of the prosecution witnesses, the High Court
reached the conclusion that as none of the witnesses had stated anything
regarding the conspiracy being hatched between Rama Raghuraman (A.1) and
Raghuraman (A.2) to do away with the life of the deceased, the question of
their conviction under Section 120-B IPC could not arise; inconsistent pleas
taken by the accused may not come as a help of the prosecution case as the
prosecution has to prove its case beyond reasonable doubt by leading evidence
in support of its case. The High Court was swayed by the fact that after the
deceased suffered injuries, the accused had taken him to the hospital and Rama
Raghuraman (A.1) informed the father of the deceased about his health
fact, the High Court had not dealt with any of the aforementioned incriminating
circumstances pointed out by the prosecution before the trial court. The court
failed to appreciate the grievous injuries suffered by the deceased. Dr. M.
Ravinder Reddy, Professor in Forensic Medicine, Gandhi Medical College,
Hyderabad (PW.18), conducted autopsy over the dead body of the deceased. On examination,
he noticed the following ante-mortem injuries on the person of the deceased :
a. Sutured wound 3 cms
long obliquely placed over the left frontal region.
b. Sutured wound
1-1/2" cms long over right front parietal region.
c. Sutured wound 10 cms
long over the right front parietal region.
d. Sutured wound with surrounding
abraded laceration 4 x 2-1/2 cms with two sutured over left parietal region.
e. Sutured wound 4 cms
long over posterior left parietal region.
f. Sutured wound 5 cms
long over the occipital region.
g. Three sutured wounds
2 cms 8 cms and 4 cms over occipital region.
h. Abrasion 15 x <
cms over outer aspect of left upper arm.
i. Contusion scalp over
right frontal right parietal left parietal left frontal and occipital areas
with parietal hematoma. Dr. M. Ravinder Reddy (PW.18) opined that the deceased
died due to head injuries and those injuries could be caused by a weapon like
M.O.1 hammer. He has further stated that all the injuries mentioned in the
above post mortem report are sufficient in the ordinary course of nature to
cause the death of the deceased.
Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra,
JT 2010 (12) SC 287, considered various aspects of dealing with a case of
acquittal and after placing reliance upon earlier judgments of this Court
particularly in Balak Ram &Anr. v. State of U.P., AIR 1974 SC 2165; Budh
Singh & Ors. v.State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy
(D) by his LRs. & Ors., AIR 2008 SC 2066; Arulvelu & Anr.v. State,
(2009) 10 SCC 206; and Babu v. State of Kerala, (2010) 9SCC 189, held that : "
It is a
well-established principle of law, consistently re-iterated and followed by
this Court is that while dealing with a judgment of acquittal, an appellate
court must consider the entire evidence on record, so as to arrive at a finding
as to whether the views of the trial Court were perverse or otherwise
unsustainable. Even though the appellate court is entitled to consider, whether
in arriving at a finding of fact, the trial Court had placed the burden of
proof incorrectly or failed to take into consideration any admissible evidence
and/or had taken into consideration evidence brought on record contrary to law;
the appellate court should not ordinarily set aside a judgment of acquittal in
a case where two views are possible, though the view of the appellate court may
be the more probable one.
The trial court which
has the benefit of watching the demeanor of the witnesses is the best judge of
the credibility of the witnesses. 23. Every accused is presumed to be innocent unless
his guilt is proved. The presumption of innocence is a human right. Subject to
the statutory exceptions, the said principle forms the basis of criminal
jurisprudence in India. The nature of the offence, its seriousness and gravity has
to be taken into consideration. The appellate court should bear in mind the presumption
of innocence of the accused, and further, that the trial court's acquittal
bolsters the presumption of his innocence. Interference with the decision of
the Trial Court in a casual or cavalier manner where the other view is possible
should be avoided, unless there are good reasons for such interference.
In exceptional cases
where there are compelling circumstances, and the judgment under appeal is
found to be perverse, the appellate court can interfere with the order of
acquittal. The findings of fact recorded by a court can be held to be perverse
if the findings have been arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant/inadmissible material. A finding may
also be said to be perverse if it is `against the weight of evidence', or if
the finding so outrageously defies logic as to suffer from the vice of
irrationality." Thus, unless there are substantial and compelling circumstances,
the order of acquittal is not required to be reversed in appeal.
far as the issue of setting aside the conviction under Section120-B IPC against
both the respondents and not framing the charge under any other penal provision
is concerned - it has to be considered, as to whether conviction under any
other provision for which the charge has not been framed, is sustainable in
law. The issue is no longer res integra and has been considered by the Court
from time to time. The accused must be aware as to what is the case against the
mand what defence they could lead. Unless the parties satisfy the Court that
there has been a failure of justice from non framing of charge under a
particular penal provision, and some prejudice has been caused to them, conviction
under such provision of law is sustainable.(Vide: Amar Singh v. State of
Haryana, AIR 1973 SC 2221)
Court in Sanichar Sahni v. State of Bihar, AIR 2010 SC3786, while considering
the issue placed reliance upon various judgments of this Court particularly in
Topandas v. State of Bombay, AIR 1956 SC 33; Willie (William) Slaney v. State
of M.P., AIR 1956 SC 116; Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC
1326; State of A.P. v. Thakkidiram Reddy, AIR 1998SC 2702; Ramji Singh v. State
of Bihar, AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, AIR 2006 SC
191, and came to the following conclusion : "17.
Therefore,.................. unless the convict is able to establish that
defect in framing the charges has caused real prejudice to him and that he was not
informed as to what was the real case against him and that he could not defend
himself properly, no interference is required on mere technicalities. 17 Conviction
order in fact is to be tested on the touchstone of prejudice theory."
case is required to be considered in the light of the aforesaid settled legal
propositions. In the instant case, the prosecution did not establish any motive
to commit the crime. There is nothing on record to show as to whether Rama
Raghuraman (A.1) had indulged in any physical intimacy with the deceased. The
evidence of the doctor who examined the deceased, remained far from
satisfactory and as he changed his version, he has been declared hostile. If
the case of the prosecution is taken to be true, we have to examine as to
whether the case of the respondents falls within the ambit of Section 100 and Exception
II to Section 300 IPC and as to whether the High Court has dealt with the same
taking into consideration all these incriminating circumstances considered by
the trial court. Admittedly, the High Court did not deal with any of the incriminating
circumstances considered by the trial court for the purpose of conviction of
the respondent and did not address itself to the relevant issues involved in
the appeal. Therefore, the judgment and order of the High Court cannot be held
to be sustainable in law and it suffers from perversity.
Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622,
this court held : "...Thus too frequent acquittals of the guilty may lead
to a ferocious penal law, eventually eroding the judicial protection of the
guiltless. For all these reasons it is true to say, with Viscount Simon, that
"a miscarriage of justice may arise from the acquittal of the guilty no
less than from the conviction of the innocent ..." In short our jurisprudential
enthusiasm for presumed innocence must be moderated by the pragmatic need to
make criminal justice potent and realistic. A balance has to be struck between
chasing chance possibilities as good enough to set the delinquent free and
chopping the logic of preponderant probability to punish marginal innocents. We
have adopted these cautions in analysing the evidence and appraising the soundness
of the contrary conclusions reached by the courts below. Certainly, in the last
analysis reasonable doubts must operate to the advantage of the
appellant..." We are of the considered view that the High Court unnecessarily
shown misplaced sympathy in a case where conviction was eminent. In the facts
and circumstances of the case, the respondents are the only persons who could
explain as under what circumstances the deceased suffered the grievous injuries
on the vital parts of his body. The court has to draw its own inference
considering the totality of the circumstances.
State of U.P. v. Ram Swarup & Anr., AIR 1974 SC 1570,this Court held: ".......
the Civil Law rule of pleadings does not govern the rights of an accused in a
criminal trial. Unlike in a civil case, it is open to a criminal court to find
in favour of an accused on a plea not taken up by him and by so doing the Court
does not invite the charge that it has made out a new case for the accused. The
accused may not plead that he acted in self-defence and yet the Court may find
from the evidence of the witnesses examined by the prosecution and the circumstances
of the case either that what would otherwise be an offence is not one because
the accused has acted within the strict confines of his right of private
defence or that the offence is mitigated because the right of private defence
has been exceeded....."
the accused did not plead, if we go by the case of the prosecution the nature
and number of injuries found on the body of the deceased itself established
that Rama Raghuraman (A.1) and Raghuraman (A.2) had exceeded their right of
self defence. However, admitted facts remained that the respondents No.1
personally went to the nearby hospital and on the advice of Dr. U. Srinivas
(PW.3), had taken the deceased to the hospital. They not only got him admitted
in the hospital, rather donated their own blood to save his life. Respondent
No.1, Rama Raghuraman informed father of the deceased about his health
conditions. Thus, these are the mitigating circumstances in the case in favour
of the respondents to show that in spite of the fact that they had committed
the offence they did not intend to kill the deceased. Thus, they are liable to
be convicted under Section 304 Part-II IPC read with Section 34 IPC.
view of above, appeal succeeds and is allowed. Judgment and order dated
13.2.2003 passed by the High Court of Andhra Pradesh at Hyderabad in Criminal
Appeal No. 1088 of 2002 is here by set aside and the judgment and order dated
9.9.2002 in Sessions Case No. 40 of 1999 passed by the trial court is modified
to the extent that respondents are held guilty for the offence punishable under
Section304 Part-II r/w Section 34 IPC and sentenced to five years rigorous imprisonment
each. There is nothing on record to show as to whether the respondents have
served any period during the trial or during the pendency of their appeal
before the High Court. In case, they have served some period, it shall be
set-off in accordance with law. Before parting with the case, we record our appreciation
for the efforts made by Ms. V. Mohana, learned advocate, for rendering full assistance
to the Court on being appointed as amicus curiae.