Paragraph numbers below are the court’s original numbering, recovered from the source text.
25. It is interesting to note that the respondent did not raise any RAJKUMARPRASADTAMARKARv. STATE[SINHA,J.] positive defence. He in answer to all the questions merely stated that he was not aware thereof.
26. 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.
27. 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.
28. 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 th~ prosecution witnesses to show that the deceased was alone with the respondent at the material time.
29. 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 c have been the first person to point out to her in-laws as to from which side the shot was fired. E,ven he could have been the first person to offer his explanation to the investigating officer. H!! chose not to do so.
30. 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. c
31. 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.
32. 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.
33. 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.
34. 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.
35. Mr. Banerjee contended that the room was not in the exclusive -<., RAJ KUMAR PRASAD TAMARKAR v. STATE [SINHA, J.] Tl 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 w~re not cross-examined in that behalf. No suggestion even had been given to that effect.
36. 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 postponedy he might have found out an occasion to 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. c
37. 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, theiefore, not a case whwrethe 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: " …… The help of Exception 4 can be invoked ifdeath 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, c [2007] I S.C.R 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 MP., [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 degrees 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 lst 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 of Section 304." [See also Laxman v. State of MP., JT (2006) 12 SC 495]
38. 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.
39. 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 RAJKUMARPRASADTAMARKARv. STATE[SINHA,J.] '19 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 UP. v. Satish, [2005] 3 SCC 114.
40. For the reasons aforementioned, we set aside the judgment of the c 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 In.dian Penal Code. He may be taken in custody forthwith to serve out the sentence. S.K.S. Appeal allowed.