2007 Supreme(SC) 9

2007(1) Supreme 43
SUPREME COURT OF INDIA
(From Patna High Court)
S.B. Sinha and Markandey Katju, JJ.
Raj Kumar Prasad Tamarkar—Appellant
versus
State of Bihar & Anr.—Respondents
Criminal Appeal No. 932 of 2000
With
Criminal Appeal No. 1103 of 2001
Decided on 4-1-2007
Counsel for the Parties :
For the Appellant : Ranjan Mukherjee and Ashok Mathur, Advocate.
For the Respondents : Arup Banerjee, Samir Ali Khan and Deba Prasad Mukherjee, Advocates.
For the State of Jharkhand : B.B. Singh and Gopal Singh, Advocates.

IMPORTANT POINT
Once the prosecution was able to show that at relevant time the room was in exclusive occupation of couple when wife received gun shot injury, burden of proof would lay upon accused to show under what circumstances death was caused to his wife.

Headnote:Indian Penal Code, 1860—Section 302—Respondent was convicted for murder of his wife by gun shot injury by trial Court—High Court set aside conviction opining that circumstances in the case could not be said to have connected all links in the claim—State appeal—Deceased took food for dinner to respondent in the room on second floor and gun shot sound was heard by PW3, brother of deceased present in room on first floor who went upstairs immediately and found deceased lying on pool of blood—When the incident occurred, deceased was alone with respondent on second floor of house—Autopsy report showed that a blackening and charring existed which reflected that shot was fired from a short distance—Place of injury was middle of forehead—Once prosecution was able to show that at relevant time room in question was in exclusive occupation of couple, burden lay upon respondent to show under what circumstances death was caused to his wife—Respondent did not raise any positive defence—Respondent had written a letter to deceased some time before incident wherein she was warned of serious consequences in case she raised objection to respondent and extra relation—Said letter provided a motive for crime—Weapon revolver being the weapon of attack was recovered from the room—Theory of suicide was ruled out by circumstances—When High Court failed to take into consideration relevant facts and misapplied legal principles, it was fit case for exercise of jurisdiction under Article 136 of Constitution to prevent serious miscarriage of justice—Conviction and sentence of life imprisonment was liable to be restored.

       Held : 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. (Paras 22 and 23)

       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.(Paras 26 to 28)

       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.(Para 31)

       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.(Para 34)

       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. (Para 43)

       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. (Para 47)