Paragraph numbers below are the court’s original numbering, recovered from the source text.
16. Proviso to Section 100 of the Code makes it clear that the powers of High Court cannot be fettered to hear a s~cond appeal on a question which was not formulated by it at the time 1-1 of admitting a second appeal, if the case involves any other YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 969 GUJARAT [ASOK KUMAR GANGULY, J.] 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.
17. 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.
18. We, howev~r. 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.
19. 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.
20. 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 A 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 B 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 c 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 0 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.
21. 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 F 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. G 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 H consciousness till she was alive. The evidence of PW 1 is that YOMESHBHAI PRANSHANKAR BHATI v. STATE OF 971 GUJARAT [ASOK KUMAR GANGULY, J.] 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.
22. This Court has held in State of UP. 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).
23. 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.
24. 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.
25. 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 im~ossible for one individual to hold in one hand, a (2011] 6 S.C.R. 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 8 show the inherent improbability in the prosecution case.
26. 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 C 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.
27. 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.
28. Learned counsel further submitted that the case falls squarely under Section 300, thirdly of IPC.
29. We have considered the relevant submission. We are of the view that in a case relating to circumstantial evidence, F 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.
30. 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 YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 973 GUJARAT [ASOK KUMAR GANGULY, J.] 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.
31. 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.
32. 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. R.P. Appeal partly allowed.