Yomeshbhai Pranshankar Bhatt vs State Of Gujarat

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

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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., v. 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,

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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;

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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

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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

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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."

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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

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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.

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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

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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

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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

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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.

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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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