Case: Raj Kumar Prasad Tamarkar Vs. State of Bihar &amp; Another

just possible that even if the revolver had been thrown, the same would have been found immediately. Mr. Banerjee contended that the room was not in the exclusive 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 were not cross-examined in that behalf. No suggestion even had been given to that effect. 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 postponed, 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. 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, therefore, not a case where the respondent can be held to be guilty for commission of an offence under Section 304 Part II of the Indian Penal Code. 30. In Sandhya Jadav (Smt.) v. State of Maharashtra [(2006) 4 SCC 653] , this Court held: "The help of Exception 4 can be invoked if death 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, 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..." 31. [See also Pappu v. State of M.P. (2006) 7 SCC 391 , para 13, Vadla Chandraiah v. State of Andhra Pradesh, 2006 (14) SCALE 108 ] 32. 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 degress 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 1st 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." 33. [See also Laxman v. State of M.P., JT 2006 (12) SC 495 ]. 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. 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. The jurisdiction of this Court in a case of this nature is also well known. 35. 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." 36. [See also Prithvi (Minor) v. Mam Raj and Others, (2004) 13 SCC 279 , State of U.P. v. Satish, (2005) 3 SCC 114 ]. 37. For the reasons aforementioned, we

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 reasonableIt 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