Yomeshbhai
Pranshankar Bhatt Vs. State of Gujarat
J U D G M E N T
GANGULY, J.
Heard learned counsel
for the parties. Some important questions have come up for consideration in
this case. This appeal is against the concurrent finding of both the courts convicting
the appellant under Section 302 IPC and sentencing him to suffer imprisonment
for life. The judgment of the Trial Court was rendered by the Additional
Sessions Judge at Vadodara in Sessions Case No. 275 of 2001 by judgment and
order dated 16.8.2001. The High Court by judgment and order dated 17.3.2009 in
Criminal Appeal No. 815 of 2001 affirmed the same. At the stage of SLP, this Court
by an order dated 27.7.2009 issued notice only confined to the question as to whether
the petitioner is guilty for commission of an offence under any of the parts of
Section 304 of the Indian Penal Code and not under Section 302 thereof.
Learned counsel for the
appellant urged that though at the time of issuing notice, this Court limited its
rights to raise points only within the confines of Section 304 of Indian Penal
Code, the Court is not bound at the time of final hearing with that direction
given while issuing notice and the appellant is entitled to urge all questions including
his right to urge that he should have been acquitted in the facts and
circumstances of the case. Before examining the correctness of the aforesaid submission,
we are inclined to look into the rules of this Court. The Supreme Court Rules, 1966
(hereinafter referred to as "the rules") which have been framed under
Article 145 of the Constitution are relevant in connection with this inquiry.
It has been held by
this Court that the power of Supreme Court to make Rules to regulate its own procedure
is only subject to two limitations: (i) These rules are subject to laws made by
Parliament. [See Rodemadan India Ltd., vs. International Trade Expo Centre Ltd,
(2006) 11 SCC 651.] (ii)These rules, being in the nature of subordinate legislation,
cannot override the Constitutional provision. [See Prem Chand Garg and another
v. Excise Commissioner, U.P. and others, AIR 1963 SC 996]
However, these rules
are intended to govern the practice and procedure of this Court. Article 145 of
the Constitution provides that subject to the provisions of any law made by
Parliament, the Supreme Court, may from time to time, with the approval of the
President, make rules for regulating the general practice and procedures of the
court including the matters which are enumerated as follows:-
a.
rules
as to the persons practising before the Court;
b.
rules
as to the procedure for hearing appeals and other matters pertaining to appeals
including the time within which appeals to the Court are to be entered;
c.
rules
as to the proceedings in the Court for the enforcement of any of the rights
conferred by Part III; (cc)[rules as to the proceedings in the Court under [article
139A];
d.
rules
as to the entertainment of appeals under sub-clause (c ) of clause (1) of
article 134;
e.
rules
as to the conditions subject to which any judgment pronounced or order made by the
Court may be reviewed and the procedure for such review including the time within
which applications to the Court for such review are to be entered;
f.
rules
as to the costs of and incidental to any proceedings in the Court and as to the
fees to be charged in respect of proceedings therein;
g.
rules
as to the granting of bail;
h.
rules
as to stay of proceedings;
i.
rules
providing for the summary determination of any appeal which appears to the Court
to be frivolous or vexatious or brought for the purpose of delay;
We are not concerned here
with other sub-articles of Article 145. The rules which have been thus framed
by this Court under the constitutional provision must be read in understanding the
scope of its power under Article 142 of the Constitution. Article 142 of the
Constitution provides as follows:- 142. Enforcement of decrees and orders of Supreme
Court and orders as to discovery, etc. (1) The Supreme Court in the exercise of
its jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it, and any decree so passed
or order so made shall be enforceable throughout the territory of India in such
manner as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by order
prescribed. 2. Subject to the provisions of any law made in this behalf by Parliament,
the Supreme Court shall, as respects the whole of the territory of India, have all
and every power to make any order for the purpose of securing the attendance of
any person, the discovery or production of any documents, or the investigation or
punishment of any contempt of itself.
The provision of Article
142 of the Constitution have been construed by this Court in several judgments.
However, one thing is clear that under Article 142 of the Constitution, this Court
in exercise of its jurisdiction may pass such decrees and may make such orders
as is necessary for doing complete justice in any case or matters pending
before it.
It is, therefore,
clear that the court while hearing the matter finally and considering the
justice of the case may pass such orders which the justice of the case demands and
in doing so, no fetter is imposed on the court's jurisdiction except of course any
express provision of the law to the contrary, and normally this Court cannot
ignore the same while exercising its power under Article 142. An order which was
passed by the court at the time of admitting a petition does not have the status
of an express provision of law.
Any observation
which is made by the court at the time of entertaining a petition by way of
issuing notice are tentative observations. Those observations or orders cannot
limit this court's jurisdiction under Article 142. If we look at the rules, it
is also clear from the Order XLVII Rule 6, that the inherent powers of the Court
are saved under the Rules.
The provision of
Order XLVII Rule 6 are set out to demonstrate the same. "Nothing in these rules
shall be deemed to limit or otherwise affect the inherent powers of the Court to
make such orders as may be necessary for the ends of justice or to prevent abuse
of the process of the Court." Order XLVII Rule 1 is almost to the same effect
and is set out below:- "The Court may, for sufficient cause shown, excuse the
parties from compliance with any of the requirements of these rules, and may give
such directions in matters of practice and procedure as it may consider just
and expedient."
In view of this position
under the rules and having regard to the constitutional provision under Article
142, we do not think that this Court at the time of final hearing is precluded from
considering the controversy in its entire perspective and in doing so, this Court
is not inhibited by any observation in an order made at the time of issuing the
notice. Observation to that effect has been made in a judgment of this Court in
the case of State of Uttaranchal vs. Alok Sharma and others reported in 2009(7)
SCC 647. In paragraph 31 at page 658, this Court, after making an express
provision to Article 142 held as follows:- "So far as civil appeal arising
out of SLP(C) No. 6451 of 2005 and civil appeal arising out of SLP(C) no. 8239 of
2005 are concerned, although limited notice having been issued confining the
case to back wages, but keeping in view the order passed in the other cases, we
are of the opinion that the said order shall be recalled and leave on all
points should be granted. The respondents being placed similarly should not, in
our opinion, be treated differently.
This order is being
passed in exercise of our jurisdiction under Article 142 of the Constitution of
India. However, we make it clear that if any amount has been paid to the said respondents,
the same should not be recovered. The appeals are allowed with the aforementioned
directions. No costs." By way of analogy we may refer to the provision of Section
100 of Civil Procedure Code. Section 100 runs as follows:- 100. Second Appeal.
1.
Save
as otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial question of law.
2.
An
appeal may lie under this section from an appellate decree passed ex-parte.
3.
In
an appeal under this Section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
4.
Where
the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
5.
The
appeal shall be heard on the question so formulated and the respondent shall, at
the hearing of the appeal, be allowed to argue that the case does not involve
such question: Provided that nothing in this sub-section shall be deemed to take
away or abridge the power of the Court to hear, for reasons to be recorded, the
appeal on any other substantial question of law, not formulated by it, if it is
satisfied that the case involves such question.
Proviso to Section 100
of the Code makes it clear that the powers of High Court cannot be fettered to hear
a second appeal on a question which was not formulated by it at the time of admitting
a second appeal, if the case involves any other question. So far as the High Court
is concerned, the same has been statutorily recognised under Section 100 in the
case of Second Appeal. In the case of this Court, the same has been constitutionally
provided in Article 142. We are, therefore, entitled to consider the plea of
the appellant for acquittal despite the fact that at the time of issuing notice,
it was limited in terms of the order dated 27.7.2009.
We, however, make it clear
that this cannot be a universal practice in all cases. The question whether the
Court will enlarge the scope of its inquiry at the time of final hearing depends
on the facts and circumstances of the case. Since in the facts of this case, we
find that the appellant should be heard on all points, we have come to the aforesaid
conclusion. Now, coming to the facts of the case, we find that broadly in the case
against the appellant, there is no eye- witness.
The facts are that the
deceased was working in the house of the appellant as a maid. She was absent
from her duties and the appellant went to her house, which is at a nearby area from
the house of the appellant, to call her to join her duties as a maid. It is
nobody's case that the appellant went to the house of the deceased, being armed
with any weapon or he was carrying any inflammable substance. Therefore, any
pre-meditation on the part of the appellant in causing any bodily harm or
injury to the deceased is admittedly ruled out.
The appellant went to
the house of the deceased being accompanied by one Alpesh. In the house of the deceased,
an altercation ensued between the appellant and the deceased as the deceased was
refusing to come and join her work as a maid presumably on the ground that the
amount of Rs. 375/- per month which was paid by the appellant to the deceased by
way of remuneration was very low. The appellant had stated by way of defence
that the deceased had taken a loan of Rs. 10,000 from the appellant and the appellant
wanted the deceased to return the same.
However, this defence
has not been accepted either by the trial court or the High Court. Admittedly, an
altercation followed and it is alleged that the appellant on the spur of the moment,
went to the deceased and gagged her mouth. The further prosecution case is that
the deceased was cooking at the time when the appellant went to her house. A
can of kerosene was lying nearby and the appellant almost emptied the can of
kerosene on the deceased and lit the match stick. Surprisingly, Alpesh who accompanied
the appellant to the house of the deceased ran away before the incident of burning
had taken place and he was not examined by the prosecution at all.
The only two other
witnesses in this case are PW 1 husband of the deceased and PW 2 the elder sister-in-law
of the deceased. PW 2 came to the place of occurrence after hearing the shouts of
the deceased and made arrangements for taking the deceased to the doctor for
treatment. Both PW 1 husband of the deceased and PW 2 Kanta Ben, who made arrangements
for taking the deceased for medical treatment were declared hostile. PW 1, the husband
of the deceased, in his evidence submitted that the deceased had suicidal
tendencies in the past. The case is, therefore, entirely based on
circumstantial evidence and the statement of the deceased in more than one
dying declarations.
The first dying declaration
appears to have been recorded when PW 2 Kanta Ben took the deceased to hospital
at 0330 hours wherein the doctor said that the deceased was fully conscious and
had informed the doctor that the appellant had sprinkled kerosene on her at
0200 hours at her residence when she was doing her work and set her on fire
with a match stick. The second was recorded by PSI which is Exh. 27 and the
third one was by the Executive Magistrate (Exh. 31). Virtually, there is no inconsistency
between these dying declarations of the deceased recorded at the interval of
few hours on the day of the incident. The prosecution evidence is that the deceased
survived for six days after the date of the incident and lost her consciousness
and did not regain her consciousness till she was alive.
The evidence of PW 1
is that he was informed of the incident and he came to see the deceased on the
date of the incident and found her unconscious. The learned counsel for the
appellant further submitted the doctor had not given his written opinion that
the deceased was fit enough to give her statement. Though orally, the doctor said
so. Relying on this part of the evidence especially the evidence of the husband
of the deceased, the learned counsel for the appellant submitted that even
though the husband may have been declared hostile, the law relating to appreciation
of evidence of hostile witnesses is not to completely discard the evidence
given by them.
This Court has held
that even the evidence given by hostile witness may contain elements of truth. This
Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543, that
merely because the witnesses have been declared hostile the entire evidence
should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed
by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of
Madhya Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report this
Court speaking through Justice Ahmadi, as His Lordship then was, after
referring to various judgments of this Court laid down that just because the
witness turned hostile his entire evidence should not be washed out. Apart from
that, the learned counsel submitted that the statement of the appellant under
Section 313 was accompanied by written document. There the appellant had taken
a defence plea that he wanted to save the deceased and in the process got his right
hand burnt. However, neither the Trial Court nor the High Court had considered
this aspect of the case.
The learned counsel
for the appellant has further submitted that the case of the prosecution as presented
is totally improbable. He had strenuously urged that it was impossible for one
individual to hold in one hand, a woman, who was struggling desparately to free
herself from his grasp and to pour by the other hand three litres kerosene on
her from a can with a small opening and then lit the matchstick, which requires
the involvement by both the hands. The courts should have considered this
aspect of the matter which would show the inherent improbability in the
prosecution case. It cannot be denied, as it has come on evidence, that as the
deceased was wearing a polyster saree, the burn injuries were aggravated which
could not have been so if she would have been wearing a cotton dress.
The fact that she was
wearing a polyster saree is not disputed by the prosecution. The learned
counsel submitted that considering the aforesaid facts into consideration by
this Court, the case cannot come under Section 302 IPC. The learned counsel appearing
for the State submitted that the case of the appellant was twice considered by
the Trial Court and also by the High Court and both the courts have found concurrently
against him and overruled the aforesaid contentions. Learned counsel further submitted
that the case falls squarely under Section 300, thirdly of IPC. We have considered
the relevant submission. We are of the view that in a case relating to
circumstantial evidence, the Court should see the circumstances very carefully
before arriving at a finding of guilt of the person concerned and yet if there
is any doubt which is inconsistent with the innocence of the accused, the
benefit should go to the accused. In the instant case,
it is clear that the
appellant had no pre-meditation to kill the deceased or cause any bodily harm or
injury to the deceased. Everything has happened on the spur of the moment. The
appellant must have lost self-control on some provocative utterances of the deceased.
These possibilities cannot be ruled out, having regard to the evidence of PW.1.
However, the fact that kerosene was sprinkled on the deceased by the appellant
possibly cannot be disputed, in view of concurrent finding by both the courts
and having regard to the materials on record. But whether the case falls under
Section 300, thirdly of IPC, is very doubtful. Having regard to the facts and circumstances
of the case and in the light of defence of the deceased, this Court holds that
the case falls under Section 304 Part II and the appellant has already suffered
imprisonment for 11 years 2 months. In that view of the matter, this Court
holds that the sentence which has already been undergone by the appellant is more
than sufficient under Section 304 Part II.
However, the sentence
of fine is set aside. Having regard to our finding, that the case falls under Section
304 Part II, the appeal is allowed to the extent indicated above. The appellant
should be released forthwith, if not required in any other case.
...................J.
(ASOK KUMAR GANGULY)
...................J.
(DEEPAK VERMA)
NEW
DELHI
MAY
19, 2011.
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