Paragraph numbers below are the court’s original numbering, recovered from the source text.
2. On 21,09.2000 at,about 9:.11 p.m. a report Ext. D-1 was lodged by 1~~S£~spp.n~e~ttot~~ fo]lowing effecr- a~ :~r~-~ tH::To··, ·.~ '· I . Ff • IThe S:H.0, · · '· : ''"P. s·. Patan t'l.L"i ::r1~. ' …. ·: ~ ·:. ·. · ,, •.• ,<::!rr, – -. . ' …. t …… ;;, . ·~' ·-~~•-1:1• Most respectfully I submit that my wife burnt to death this evening on 5.30 p.m. I was at my shop and my brother was also there. My mother and younger brother's :wife had gone to our house in Bihar. My wife was half mad. She. was burnt to death. When the sinoke arose in the house and sounds of the crying came out of the house,the neighbour came running to my shop and informed me. I werttto the house; went up the'stairs and pushed tl'Ie'door ' open. ·I saw my wife and daughter were burnt to death. The s- above report is produced. My marriage took place some 10 years · agoon21.09.2000. Sdfc. Yours Ra~anand .Agrawal S/o Shri Visliashwar Dayal R.S. Dabla"
3. The aforesaid report was registered in the Case Diary and appropriate steps under Section 174 Cr.P.C. were taken by PW14 Tulsi Ram who at the relevant time was lncharge of Police Station Patan. On the next day at about 6: 15 a.m. a written report Ext. P-2 was received D' from PW2 Rakesh Agrawal, brother of deceased Anita that his sister and niece were burnt to death; that his sister was being harassed for dowry and that the respondent and his family members were· responsible for the deaths of his sister and niece.
4. The reportExt. P-2 was received by PWISASI Rajendra Singh, pursuant to which crime was registered and investigation was undertaken. Inquest Reports.Ex ts. P-6 and P-7 were prepared regarding the bodies of Anita and Ekta and they were sent for autopsy. Photographs of the bodies Exts. P-14 to P-19 were also taken and site pfan Ext:P-21 at tire place of occurrence was also prepared. The post-mortem on the bodies was conducted by a Board consisting of three doetors. As reg!lrdir F Anita, the report Ext. P-i'3 had follo …. illg teievaiit observations:- ' '• "'. o i. …. •' t•: '.1;1 "Fairly built & nqurished; P.M. Iividity.present.on back ofl:iody,..- R.M. ·present all over the l;Jody .. Partially burnt clothes. are prei;ent: on body .. No.smell lik:e kerosene like substance, The_whote bedy has burns (Post mortem in nature) except back of trunk and hips. Bums limited upto skin only. Hair ofhead & pubic area are partially burnt and axillary hair are totally burnt.
Face is swollen. Tongue is protruded-swollen. Eyes are partially open conjuctive having patechial hemorrhage. Both hands are clinched. Bloody froth is coming out of both nostrils and mouth." "In the opinion of the medical board the cause of death is Asphyxia due to strangulation (throatling) c . – Burns are post-mortem in nature as there is no blister formation, no line ofredness and no signs of inflammation." The.r~port Ext. P-12 regarding Ekta made following observations:- "Fairly built & nourished, P.M. lividity present on back of Body, R.M. present all over body. Partially burnt clothes are present on body. No smell like kerosene, like substance. The whole body has burns (P.M. in nature) except back of trunk and hips. Burns limited upto skin only. Hairofhead burnt partially. Face is swollen. Tongue is protruded-swollen. Eyes are partially open. Conjuctive having patechial hemorrhage.
Both hands are clinched. Bloody froth is coming out of both nostrils and mouth." "In the opinion of the Medical Board the cause of death is Asphyxia due to strangulation (throating). Burns are post mortem in nature, as there is ·no blister formation, notice ofredness and no sign of inflammation."
5. After completion of investigation, charge-sheet was filed against six persons including the present respondent. The charges were framed against the respondent, his mother Narangi Devi and brother Vinod Kumar for the offences under Sections 498A, 302/34, 20 l IPC while his other brothers Mukesh Kumar, Moolchand and Mahesh Kumar were charged for the offences under Section 201/511 IPC. They were tried in the court of Additional Sessions Judge, Neemka Thana, in Sessions Case No.62 of2000. The prosecution examined fifteen witnesses. PWs l, 2, 3,4 and 5, namely, father, brother, mother, cousin and brother-in- law respectively of deceased Anita did not support the case of prosecution as regards demands of dowry or harassment. PW7, Nandlal, neighbour also turned hostile but in cross-examination stated that when the cries were heard coming from the house, he was amongst the persons who had gone to the house and opened the door. According to him the door G was bolted from inside. PW l 0 Dr. Surendra Kumar Mecna, one of the members of the Board which conducted post-mortem proved report Ex ts. p .. 12 and P-13 and stated that the cause of death was asphyxia because of strangulation and that Anita and Ekta were done to death first and thereafter their bodies were sought to be set on fire. PW12 Mahesh H Sharma, photographer proved photos Exts.P-14 to P-19. PW 14 Sub- InspectorTulsi Ram in answer to queries in the cross-examination stated, "Before the registration ofFirst Information Report, Ramanand had given me an application. This application is attached with the case C:iary. Aforesaid application was made under Section 174 of Cr.P.C, which is . Ext.D-1 ". Similarly PW15, Sub-Inspector Rajendra Singh in his cross- examination stated; "Before going to spot report Ext. D-1 had already been received. The report was submitted before S.H.O."
6. After considering the material on record.including the medical evidence, the trial court found that both Anita and Ekta were killed by strangulation and that the case was of culpable homici.de. As regards the involvement of the accused in the crime in question, it was observed that there was nothing on record to suggest the involvement of accused Nos.2 to 6. Further, all the relations of deceased Anita having turned hostile and not supported the case of prosecution as regards demands of dowry, no offence under Section 498A was found to be have been established. The trial court further observed that motive for the crime was also not established and in any case the death of Anita had occurred D I 0 years after the marriage. While acquitting rest of the accused, the trial court convicted the respondent under Sections 302 and 20 I IPC and sentenced him to suffer life imprisonment under S.ection 302 IPC and to suffer three years imprisonment under Section 201 IPC.
7. The respondent, being aggrieved filed DB Criminal Appeal No.20 of2002 in the High Court which found that charge under Section 302 IPC was not established against the respondent. However, it was of the view that the circumstances on record clearly showed that the respondent was guilty of the offence under Section 306. Thus, while acquitting the respondent of the charges under Sections 302 and.20 I IPC it convicted him under Section 306 IPC. The respondent having remained in custody for more than five years and four months, the sentence was reduced by the High Court to the period already undergone.
8. This appeal, at the instance of State of Rajasthan challenges the correctness of the decision of the High Court. Relying on the decision of this Court in Sumer Singh v. Surajbhan Singh 1 Mr. Sushi! Kumar Jain, learned Senior Advocate appearing for the respondent contended that he was entitled to submit that the respondent ought to be acquitted of all the charges. 1 c2014) 1 sec 323
9. The medical evidence on record is very dear and precise that deaths were as a result of strangulation. H'aving gone through the post- mprtem report, the testimony of PW! 0 l)r. Surendra Kumar Meena and the photographs Exts.P l4·to·PJ 9;it is very cl-ear that the deaths of Anita and Ekta Were'n0t as a result of bum injuries. They died of strangulation and theirbodies were sought to be set.afire·in order to create an: impression as if they had died of bum injuries. The finding by the trial c,ourt was ·therefore completely correct. It is impossible to assume how Anita could have strangulated herself and then attempted to set herself afire. The . 1' •i" •'" 1 • '•.t ·- yiew taken bythe High Court is, therefore, wholly unjustified. ,¢onsequently there could 'not have be en 'conviction of the respondent C under Section 306 IPC.
10. The question then arises whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The fact that the deaths are as a result of culpable homicide is beyond any doubt but the question is whether the respondent could be said to be D author of die crime:" The entire case of the prosecution on this count rests purely on circumstantial evidence. It is true that the deaths have occurred in a room occupied by the respondent along with wife', Anita and daughter .Ekta. But no witness has been examined to suggest that the respondent was at or around his residence at the relevant time. The Rl:kr~iage \~·as 'inore than 10 years old and as such' rio" st'atiifory E presuniption cin any count could be diawn, more particularly, wh~n none bfthe·prosecution witnesses had supported the case of prosecution as regards demands of dowry and harassment. Apart from strarigulation marks nothing was foundfo the post-mortem report regarding any other ~C)pily. injury. Th~ absence of any evidence as regards dowry or related ~arass.me!lt al~o nullififs the element of presence of any motive on part ·oqhe respondent. None of the prosecution witnesses alleged anything ilgain.st the respondent Ii.or are there any other supporting circumstances sll\\h as discovery of any relevant fact. .
11. We are, th~refore, left with the only material, namely Ext.D-1 which was the reporting made by the respondent. It undoubtedly shows G that the respondent himself had opened the door and found the bodies of Anita and Ekta lying with injuries. In the face ofExt.D-1 it is not possible to accept the assertion that the door was locked from inside and was pushed open by PW7 and others. Locking of door from inside would have been consistent with the theory of suicide but that theory stood demolished as a result of medical evidence. We are, therefore, per~uaded .A to accept what emerges from Ext.D-1. tbat the respondentbifTtseff h"ad ' opened the door and found the bodies havi?P burri!. ·~ ; .~~ ·: : … ~ ',:~;:
12. Relying on.Section 162 Cr.P.C. Mr._Ja,in, learn!'..cl s~J!.i9r Advocate submitted that Ext.D-1 could not be relied upon.and read against the respondent. The terms of Section 162 are quite clear and govern . B cases where statements are made to a police,pfficer "in the cours_~ of ~' an investigation" under Chapter XII of Cr.P.C. Statement Ext.D-1 was neither given in the course of an investigation, nor could it be term-:d as a confession. Further, the cross-examination of PWsl4 and 15 w.ou,ld show that the respondent stood by and relied upon that .~t~~e~ent.,.,}ye do not see any difficulty why statement Ext.D-1.could not,,be re,afi._in evidence.
13. However, that by itself does not establish beyond any doubt that it was the respondent alone who was responsible for.having caused the deaths of Anita and Ekta. Even ifthe circumstance ~merging from Ext.D-1 is taken to be against the respondent, that by itself\'(ithout any connecting material on record, is not sufficient to bring ho.me th~ ~ase against the respondent. · .. ,. · , ·' · ,., .
14. Mr. Jain, learned Senior Adv(>cate is.right in-his .§u.broissi.on that in a case where the prosecution is coming up against the acquittal of the accused and is praying for conviction on a graver charge, the ac.cused .. . . . …. ., ,,. ' , rn ,.. i.E is entitled to'p]ead for acquittal.' While·considering'sirrtilar' ple:r'for ., ·· , _ i _, •• – •• · 1 ~.i …. , .. ~rt• ·-.. acquittal; thf?ugh this Court.negatedt~e_plea on facts~;.me }.~~~D~~~l\i~n was summed up by this Court in Cltandrakant Patil 'v. ·state ·z a~ unaer: -,., ; '. ·~, ' !"~ L., …. • .t~·nb .~1t ,~~ .. ; "7. Powers of the Supreme Court in appeal~,:\il~d under; A.rticJe L · I ~ul-< "· _ _,. ,~· •+iJ>. ,;; . 136 of the Constitu~ion, are not restri?!ed py W,e,i!ppeU,~tt.\l~T<?Xit\i,13p,s enumerated under the Code of Cr.iminal.Pro.~'~'~qre or. ap_~·R.ta,~r •IF statute. When exercising appellate jurisciiqtiop.,!h~~~\lP~~me Court has power to pass any order. The aforesaid legal position has been recognized by a Constitution Bench of this Coutt hi Durga Shankar Mehta v. Raglluraj Singlt3 and later followed in 'a series of decisions (vi de Arunachalam v. P.S.R. Sadhanantltam4, Delhi G Judicial Service Assn. v. State of Gujarat5). · "' ;._, 2 (1998) 3 sec 38 ' AIR 1954 SC 520 • (I 979) 2 sec 291 '(1991) 4 sec 406 9. It is now well nigh settled that Supreme Court's powers under Article 142 of the Constitution are vastly broad-based. That power in its exercise is circumscribed only by two conditions, first is, that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and the other is that the order which Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it. ……….. "
15. In view of medical evidence on record, the deaths could never be termed as a case of suicide and consequently the conviction of the respondent under Section 306 was wholly unjustified. At the same time C there is nothing on record to conclusively establish that the respondent was the author of the crime. The circumstances on record do not rule out every other hypothesis except the guilt of the accused. However strong the suspicion be, in our view, the respondent is entitled to benefit of doubt and cannot be convicted under Section 302 IPC.
16. Thus, while rejecting this appeal, we acquit the respondent of D the charge under Section 306 IPC. The appeal is disposed of in these terms. Kalpana K. Tripathy Appeal disposed of.