[2011] 1 S.C.R. 27

S. GANESAN .v.

RAMA RAGHURAMAN & .ORS. . . {Crimina~ Appeal No. 989 .of 2003) . ·

JANUARY 3, 2011

(P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.l

Penal Code, 1860:

s.304(Part-11)134 - Culpable homicide not amounting to c murder - A married couple beating the victim and causing . his death - Circumstantial evidence - Conviction by t(ial court uls 302 rlw s.120-B - Acquittal by High Court - HEl:.D: The High Court neither dealt with any of the incriminating circumstances pointed out by the prosecution nor did it 0 address itself to the relevant issues involved in the appeal - Therefore, judgment of the High Cowt suffers from perversity and is set aside - Victim died ofinjuries in the house of accused - Doctor opined that the injuries, whi.f; h could be caused by the weapon (hammer) found in fhe house of accused, were sufficient in the ordinary course of nature to E cause the death - The accused were the only pe'rsons who could have explained as to the circumstances and the manner in which the victim suffered the grievous injuries on vital parts of his body - Thus, the court has to draw its own inference considering the totality of the circumstances - Prosecution did- F not establish any motive to commit the crime - There are circumstances in favour of the accused to show that in spite of the fact that they had committed the offence they did not intend to kill the dec_eased, but exceeded their right of selfdefence -:- They are accordingly convicted uls 304(Part 1/)134 G !PC with. a sentence of 5 years RI - Sentence/Sentencing - Mitigating circumstances - Evidence - Circumstantial evidence - Criminal Law - Motive - Right of self defence ':'"

I' I .. :~. 27 H

.-:.··

A Appeal against acquittal- Constitution of India, 1950 - Article 136. )._ •

Criminal Law:

: 8 · Framing of cha[ge - Accused charg.ed with offences punishab/f3 u/s 302 read with s.120-B /PC - Conviction by -

Supreme Court uls 304(Part 11)134 /PC - HELD: Unless i parties satisfy the court that there has been failure of justice • from non-framing of charge under a particular provision and some prejudice has been caused to them, conviction under C such provision of law is sustainable - Penal Code, 1860 - , s.304(Part-l/)134. , ·

Respondents 1 and 2 (A-1 and A-2), the wife and the husband respectively, were prosecuted for causing the o death of one 'GA', who was known to them and was •

residing in their flat at the time of the occurrence. The . prosecution case, as revealed from the statement of A-1 made to the Sub-Inspector of Police (PW1), was that when, on the day of occurrence at about 9_.00 A M, A-1 E went to wake up 'GA', he misbehaved with her and as she

could not get her out of his clutches, she took the hammer lying in the room and hit him on his head. On hearing her cries, A-2 reached there and also hit the victim on his head several times with the same hammer.

A-1 then called the doctor (PW-3) and on his advice both F the accused took the injured to the hospital. Initially, a case for the offence punishable u/s s.307 IPC was registered against both the accused, but on the death of \the victim the following day, the case was altered from s.307 IPC to s.302 IPC. The trial court considered the G incriminating circumstances, namely, i) the deceased was with the accused in their flat on the fateful day; ii) the deceased received fatal injuries in the same flat which . ultimately led to his eath; iii) A.1 approached the doctor (PW.3), immediately after the incident and brought him to H

-S-:--OANESAN -v. RAMA RAGHURAMAN & ORS. 29

the flat and PW.3 deposed that the deceased was lying A -( in a pool of blood, the doors and windows were closed . and there was complete darkness inside at 9 O' Clock in the morning; ivl the weapon i.e., a hammer, (M.0.1 ), seized at the instance of A.1, though .such a hammer is not generally fou'ld in the household; v) the seizure of blood B ; stained articles which had been used for mopping/ . .

~ : cleaninQ the place of occurrence; vi) the panchnama., and the evidence of PW.3 made it clear that there were the circumstances of cleaning of the blood of the deceased before his arrival; that none other than the accused were c living in that flat and no other person had an opportunity to clean the flat; and vii) it was fully established that the injuries suffered by the deceased could not be caused by a fall. The trial court found the chain of circumstances complete and pointing out towards the guilt of the D accused. It rejected the defence case that P.W. 8 had come to the flat of the accused and quarrelled with the deceased, and hit him on the head. The trial court convicted both the accused u/s 302 r/w s.120-8, IPC and sentenced them to imprisonment for life, but the High E Court acquitted them. Aggrieved, the complainant, the father of the deceased, filed the appeal.

-.._ Allowing the appeal, the Court

HELD: 1.1. It is true that unless there are substantial F: and compelling circumstances, the order of acquittal is not required to be reversed In appeal. However, In the instant case, in fact, the High Court neither dealt with any of the incriminating circumstances pointed out by the

)' prosecution before the trial court, nor did it address itself. G - to Jhe relevant issues involved in the appeal. Therefore, the judgment and order of the High Court suffers from perversity and cannot be held to be sustainable in law.

The High court failed to appreciate the grievous injuries

A suffered by the deceased. PW.18 who conducted autopsy over the dead body of the deceased, noticed nine antemortem injuries on the person of the deceased. He __ ORine_d that the deceased died due to head injuries and those injuries could be caused by a weapon like hammer B (M.0.1). He further stated that the injuries were sufficient in the_ ordinary course of nature to cause the death of the deceased. [para 12,13 and 16) [43-F; 41-B-G; 42-A-B] - .

Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of , Maharashtra, JT 2010 (12) SC 287; Balak Ram & Anr .. v. " State of U.P., 1975 (1) SCR 753 =AIR 1974 SC 2165; Budh Singh & Ors. v. State of U.P., 2006 (2) Suppl. SCR 715 = .

AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (DJ , by his LRs. & Ors., 2008 (6) SCR 1236 = 2008 AIR 2066;

Arulvelu & Anr. v. State, 2009 (14) SCR 1081 = (2009) 10 SCC 206; Babu v. State of Kera/a, 2010 (9) SCR 1039 = .

(2010) 9 SCC 189; and Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, 1974 (1) SCR 489 =AIR 1973 SC 2622 ·

- relied on.

E 1.2. The High Court unnecessarily showed misplaced sympathy in a case where conviction was eminent. In the facts and circumstances of the case, the respondents ar.e the only persons who could explain as to under what circumstances the deceased suffered the grievous F injuries on the vital parts of his body. The court has to draw its own inference considering the totality of the circumstances. [para 17] [45-F-H; 46-A]

State of U.P. v. Rm Swarup & Anr., 1975 (1) SCR 409 =

I AIR 197 4 SC 1570 - relied on.

S. GANESAN v. RAMA RAGHURAMAN & ORS. 31

framed, is sustainable in law. Unless the parties satisfy A -<, the court that there has been a failure of justice from non framing of charge. under a particular penal provision, and some prejudice has been caused to them, conviction under such provision of .law is sustainable. [para 14] [43-

F-H; 44-A] B

Amar Singh v. State of Haryana AIR 1973 SC 2221;

_,, Sanichar Sahni v .. State of Bihar 2009 (10) SCR 112 =AIR

1 2010 SC 3786; Topandas v. State bfBombay 1955 SCR

881=AIR 1956 SC 33; Willie (William) Slaney v. State of M.P. c 1955 scR 1140=AIR1956 SC 116; Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326; State of A.P. v.

Thakkidiram Reddy, 1998 (3) SCR 1088 = AIR 1998 SC 2702; Ramji Singh v. State of Bihar, AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, 2005 (5) Suppl. SCR 90

D =AIR 2006 SC 191 - relied on. ~

3.1. In the instant case, the prosecution did not establish any motive to commit the crime. There is nothing on record to show as to whether A.1 had indulged in any physical intimacy with the deceased. The E evidence of the doctor who examined the deceased, . remained far from satisfactory and as he changed his ' . version, he has been declared hostile. [para 16] [44-F-G]

3.2. Though the accused did not plead, if one goes F by the case of the prosecution, the nature and number . of injuries found on the body of the deceased itself established. that A-1 and A-2 had exceeded their right of self-defence. However, the admitted facts remained that A-1 personally went to the nearby hospital and on the.

G r advice of the doctor (PW-3), took the deceased to the - hospital. They not only got him admitted in the hospital, rather donated their own blood to save his life. A-1 ..

' informed the father of the deceased about his health conditions. Thus, these are the mitigating circumstances H

- ,. .... . ... '

A in the case in favour of the respondents to show that in spite of the fact that they had committed the offence, they >- did not intend to kill the deceased. Thus, they are liable to be convicted u/s 304 (Part-11)/34 IPC. The judgment of the High Court is set aside and that of the trial court B modified to the extent that the respondents are held guilty of the offence punishable u/s. 304(Part-ll) r/W s.34 IPC and sentenced to five years rigorous imprisonment each. [para 19-20] [46-E-H; 47-A-C]

c Case Law Reference:

JT 2010 (12) SC 287 relied on para 13

1975 (1) SCR 753 relied on para 13

2006 (2) Suppl. SCR 715 relied on para 13 0

2008 (6) SCR 1236 relied on para 13

2009 (14) SCR 1081 relied on para 13

2010 (9) SCR 1039 relied on para 13

2008 (6) SCR 1236. relied on para 13

AIR 1973 SC 2221 relied on para 1.4

2009 (10) SCR 112 relied on para 15

1955 ~CR 881 relied on para 15

1955 SCR1140 relied on para 15

AIR 1967 SC 1326 relied on para 15

1998 (3) SCR 1088 relied on para 15 G

AIR 2001 SC 3853 relied on para 15

-<""(_. - . . ,, .

~005 (5) Suppl. SCR 90 relied on . para 15

H ...

. .J'.

S. GANESAN v. RAMA RAGHURAMAN & ORS. 33

1974 (1) SCR 4&9

1975 (1) SCR 409

 relied on para 17

rrelied on . para 18

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 989 of 2003. '

From the Judgment & Order dated 13.2.2003 of the High . Court of Andhr~ Pradesh at Hyderabad, in Criminal Appeal No . .. 1088 of 2002. ·

R. Balasubramanian, B. Balaji, R. Rajeswaran for the C Appellant. '~

V. Mohana for the Respondents.

The Judgment of the Court was delivereq by

DR. B.S. CHAUHAN; J. 1. This appeal has been preferred by the complainant, father of the deceased, against the judgment and order dated 13.2.2003 in Criminal Appeal No. 1088 of 2002 passed by the High Court of Andhra Pradesh at Hyderabad acquitting the respondents of the charges under Sections 302 read with 120-B of Indian Penal Code (hereinafter E referred to as "IPC") for committing the murder of G. Arulmozhi by hitting him with a hammer on his head. ..

2. Facts and circumstances giving rise to this appeal are

~ as under:

(A) Rama Raghuraman (Accused 1)(hereinafter referred to as 'A~1') made a statement to Mr. V. Narasaiah, Sub-

Inspector of Police (PW.1) that on 29.4.1997 at about 9.00 ..

A.M., whet. she tried to-wake up deceased, G. Arulmozhi, G who was sleeping in the other room of the flat, he misbehaved with her and thus A-1 tried to get out of his clutches in order to save herself. As she could not succeed in her attempt, she got the hammer lying in the room and hit him on his head. On hearing her cries, her husband H

A Raghuram&n (A.2) came at the spot arid also hit deceased several times on his head with the same hammer and thus; the deceased suffered grievous injuries.

Immediately, Rama Raghuraman (A.1) went to the nearby hospital and inf.ormed Dr. U. Srinivas (PW.3) that her B brother was seriously injured on the head and s.he brought him to examine the deceased. Dr. U. Srinivas (PW.3)

1: came to her flat and after examining the injured, he advised that he .should be taken to the hospital immediately. An ambulance was called and with the help c of two attendants, Rama Raghurama11 (A.1) and .

' Raghuraman (A.2) took the injured to the hospital. He was examined there by the doctors. The doctor also informed the police, on which Mr. V. Narasaiah, Sub Inspector of Police (PW.1) reached the hospital and recorded the

D statement of Rama Raghuraman (A.1) and lodged a complaint to Mr. K. Chakrapani, $tation House Officer, '.

(PW.16).

(8) On receiving such information, Crime No. 235 of 1997

E under Section 307 IPC was registered against Rama Raghuraman (A.1) and Raghuraman (A.2). However, when the police came to the hospital to record the statement of the injured, he was found to be unconscious. Thereafter, Mr. K. Chakrapani (PW.16) proceeded to the place of ?-'

occurrence and made a rough sketch of the site in the F presence of witnesses Mr. Kamal Bukhada (PW.6) and Mr. Premchand (PW.7) and also seized M.Os. 2 to 12 from the place of occurrence. Mr. K. Chakrapani (PW.16)

"· also examined PWs 2 tO 5 and recorded their statements. ·

, G (C) On the next day i.e. 30.4.1997 at about 11.45 P .M., ,1 Mr. K. Chakrapani (PW.16) received the information that'

-'(

G. Arulmozhi had died and, therefore, he.altered the case from Section 307 IPC. to Section 302 IPC. He conducted ' the inquest over the body of the deceased in presence of

H two witnesses. Dr. Ramachander Rao, the Medical Officer

. f.

S. GANESAN v. RAMA RAGHURAMAN & ORS. 35

[DR. S.S. CHAUHAN, J.]

in NIMS Hospital (PW.9) examined the deceased and A found four injuries on the person of the deceased. After the death of the deceased, Dr. M. Ravinder Reddy, the professor in Forensic Medicine, Gandhi Medical College,

Hyderabad (PW.18), conducted an autopsy of the de.ad body of the deceased. s

(D) Mr. T.V. Raja Gopal, Investigating Officer, (PW.17), took over further investigation and recorded the statements of a large number of witnesses and submitted the . chargesheet. The Magistrate committed the matter to the Sessions Court, wherein the respondents pleaded not

C guilty and claimed frial. After concluding the trial and appreciating the evidence, oral as well as documentary, the trial court vide judgment and order dated 9.9.2002 in Sessions Case No. 40 of 1999 convicted both the respondents for offences punishable under Section 302 r/ D w Section 120-B IPC and awarded life imprisonment with a fine of Rs.5,000/- each and in default of payment of fine, they were directed to undergo further three months simple imprisonment.

3. Being aggrieved, the respondents preferred Criminal Appeal No. 1 OS~ of 2002 before the High Court of Andhra

..-..

Pradesh at Hyderabad, which has been allowed by impugned judgment and order dated 13.2.2003. Hence, this appeal.

4. Shri R. Balasubramanian, learned senior counsel, duly F assisted by Shri B. Balaji, for the appellant, has submitted that the High Court committed an error by reversing the well . reasoned judgment and order of the trial court, wherein, in ,. absence of any eye-witness to the incident, both the >- respondents had been convicted for committing the murder of G G. Arulmozhi; the chain of circumstances was complete and each circumstance pointed out towards the guilt of the respondents. The deceased was in the flat which has been taken by the respondents on rent. None of them denied their H

A presence at the relevant point of time, rather they had taken a

false plea that Mr. N. Velayudham, brother-in-law of deceased, (PW.8), had come on the same day by air at Hyderabad and had tried to convince the deceased not to live with the ' respondents, instead to get married with the girl of the choice B of his father, as his family members were under the belief that he had developed illicit relationship with the accused Rama Raghuraman (A.1 ). The defence taken by the accused was contrary to their own case pleaded in the bail application that the deceased tried to molest Rama Raghuraman (A.1) and, C therefore, she became wild and lost all control and picked up a hammer lying in the room and caused injuries to the deceased. Even if the defence version is believed to be true, it was a clear cut case of exceeding the right of self defence.

The hammer which was recovered on the disclosure of the Rama Raghuraman (A.1) from the place of occurrence is not D generally used in the household. Before calling Dr .. U. Srinivas

(PW.3), the accused had cleaned the blood stained floor. Doors and .windows. were found closed and there was darkness inside the flat at 9 O'Clock in the morning. The High Court did not consider each and every circumstance considered by the trial court pointing out to the guilt of the accused. Rather the High , Court took a sympathetic view and passed a cryptic order without giving sufficient reasons for acquittal. Hence, the appeal deserves to be allowed.

5. On the contrary Ms. V. Mohana, learned amicus curiae, appearing for the respondents-accused, has submitted that accused persons were highly qualified as both of them passed their engineering course from llT, Bombay. They developed love and affection and got married. They had two children at the time of incident. Their son was five years old and the girl was 2-1/2 years old. The deceased himself was a computer engineer and an MBA from Indian Institute of Management, Ahmadabad. He had opened a company alongwith accused persons and had the accused had any intention to kill the deceased, they would not have called Dr. U. Srinivas (PW.3) ,

S. GANESAN v. RAMA RAGHURAMAN & ORS. 37

[DR. B.S. CHAUHAN, J.]

: . and further taken him to the hospital for treatment. The accused A . Rama Raghuraman (A.1) herself had informed the father of the

 deceased (the present complainant) about his health condition.

There could be no motive for the respondents to harm the deceased. Investigation has not proceeded in accordance with law. There was nothing for them to hide. In absence of any B evidence of conspiracy between the two accused, the High Court has rightly quashed their-conviction under Section 120 B IPC. In such a fact-situation, if it cannot be determined as which of the accused had caused the injuries, conviction of either of them is not sustainable. If the prosecution case is taken c to be true, the respondents had acted in self defence and are entitled to the benefit of the provisions of Section 100 and Exception II to Section 300 IPC. The High Court after taking into consideration all the facts and circumstances, reached the correct conclusion of acquittal of the accused. Hence, no D interference is required with the impugned judgment and order of the High Court.

6. We have considered the rival submissions made by the learned counsel for the parties and perused the rt:.::ord.

7. Admitted facts available on the record are that Rama Raghuraman (A.1 and Raghuraman (A.2) had passed out their engineering course from llT, Bombay and got married nn

10.9.1989. Out of this wedlock they had two children at the time of incident. They were not having good relations, as is evident F from the averments contained in the divorce petition filed by Rama Raghuraman (A.1) against her husband Raghuraman (A.2) in the Family Court at Madras. The deceased had been employed in the Indian Oil Corporation as an Executive Assistant to the Executive Director. The deceased came in G 1 contact w, ith Raghuraman (A.2) who had his own organization j known as Pixel Graphics Multimedia at Madras. As the business of Raghuraman (A.2) was in trouble, the deceased helped him financialiy. The deceased resigned from his job and floated a company, namely, Indian Creations dealing in the H

A Multimedia presentation field alongwith Rama Raghuraan (A.1 ). The deceased shifted his residence from the Chennai to Hyderabad and started earning by way of contracts. In the meantime, Raghuraman (A.2) also joined Rama Raghuraman (A.1), patching up the differences with her. Admittedly, the :s incident occurred at the place of occurrence i.e. flat of the respondents and at the time alleged herein. The defence pleaded that Mr. N. Velayudham, (PVV.8), had come there and. as he quarreled with the deceased, he had hjt him on the head. )-- In fact the accused had furnished the same explanation to the c staff at the Nizam's Institute of Medical Sciences, Hyderabad on the date of incident i.e. 29.4.1997 (Ex.P-6). This theory had been rejected by the trial court giving sufficient and cogent reasons and we do not see any reason to disturb the said finding of fact. Had it been so, the accused could have informed

D the police and also tried to save the deceased or to apprehend Mr. N. Velayudham, (PW.8) \ >

8. The inconsistent pleas taken by the accused are apparent from the FIR that states that the deceased tried to molest Rama Raghuraman (A.1) when she went to wake him E up. She got wild and beat him with a hammer. After hearing the hue and cry, Raghuraman (A.2) came there and also caused injuries to him. The same plea had been taken by Rama Raghuraman (A.1) in her bail application dated 8.5.1997. The contents of the bail application reveal that she was having some F marital problems with her husband Raghuraman (A.2) which )Nas in the knowledge of the deceased and, thus, he was hopeful of getting married to Rama Raghuraman (A.1) as and when she got separated from her husband, as the divorce petition was pending on the date of incident. The deceased

' G was not merely the business partner but also a very close friend --.,_ of Rama Raghuraman (A.1) and had fantasies about marrying her. However, she further pleaded that after causing injuries to the deceased, they realised wtiaf had happened and had suffered from utter shock. She immediately went and called a

H doctor frpm the nearby hospital and on his advice, shifted the

.,,/

··}

S. GANESAN v. RAMA RAGHURAMAN & ORS .. 39

[DR. B.S. CHAUHAN, J.]

~ dece,.ased to the hospital. The accused gave their own blood to him to save his life. Paragraph 11 of the bail application reads as under :

"The petitioner respectfully submits that even going by the prosecution case, she comes within the scope of Sec. 100(3) IPC wherein she exercised her right of self defence to ward off the attempts of the deceased to sexually assault her and rape her. The petitioner submits that what happened was sad and a great tragedy and neither she nor her husband had any idea that such a sort of thing would happen. They realised only after the incident happened."

(Emphasis added)

9. The trial court rejected the evidence of Dr.

Ramachander Rao (PW.9) for giving two different versions with regard to the weapons. However, the court considered the following incriminating circumstances against the accused :

(I) The deceased was with the accused in their flat on the fateful day.

(II) The deceased received fatal injuries in the same flat which ultimately led to his death.

(Ill) Rama Raghuraman (A.1) approc>ched Dr. U.Srinivas (PW.3) immediately after the incident and brought him to the flat and Dr. U.Srinivas (PW.3) deposed that the deceased was lying in a pool of blood and the doors and windows were closed and there was complete darkness inside at 9 O'Clock in the morning. Unless the accused 1 .. -.d '.some guilty conscience, there was no need to close all tt10 doors and windows at 9 A.M.

(IV) The weapon i.e. MO. 1 seized at the instance of Rama Raghurarrian (A.1 ), though such a hammer is not generally found in the household. .,,

(V) The seizure of MOs. 2 to 12 i.e. blood stained articles which consist of sarees, pants of the deceased and other items which had been used for mopping/cleaning the place of occurrence.

(VI) The panchnama and the evidence of Dr. U.Srinivas (PW.3) made it clear that there were the circumstances of . cleaning of the blood of the deceased before the arrival of Dr. U.Srinivas (PW.3) and as none other than the accused were living in that flat and as no other person had an opportunity to clean the flat and had the accused not had a guilty conscience, they would not have hurriedly cleaned the floor to ensure the disappearance of the blood stains.

(VII) It was fully established that the injuries suffere-.i '.ii the deceased could not be caused by a fall.

10. On the basis of the aforesaid incriminating circumstances, the trial court found the chain of circumstances complete and the circumstances pointing out towards the guilt E of the accused and thus convicted them accordingly.

11. The High Court dealt with the case having sympathetic attitude towards the respondents and decided the appeal in a very cryptic manner. After making reference to statements of some of the prosecution witnesses, the High Court reached the F conclusion that as none of the witnesses had stated anything regarding the conspiracy being hatched between Rama Raghuraman (A.1) and Raghuraman (A.2) to do away with the life of the deceased, the question of their conviction under Section 120-B IPC ce>uld not arise; inconsistent pleas taken by G the accused may not come as a help of the prosecution case as the prosecution has to prove its case beyond reasonable doubt by leading evidence in support of its case. The High Court was swayed by the fact that_fter the deceased suffered injuries, the accused had taken him to the hospital and Rama H

S. GANESAN v. RAMA RAGHIJRAMAN & ORS. 41

[DR. B.S. CHAUHAN, J.]

Raghuraman (A.1) informed the father of the deceased about A his health condition.

12. In fact, the High Court had not dealt with any of the \ aforementioned incriminating circumstances pointed out by the

1 prosecution before the trial court. The court failed to appreciate 8

1 the grievous injuries suffered by the deceased. Dr. M. Ravinder Reddy, Professor in Forensic Medicine, Gandhi Medical . College, Hyderabad (PW.18), conducted autopsy over the dead body of the deceased. On examination, he noticed the following ante-mortem injuries on the person of the deceased C

(1) Sutured wound 3 ems long obliquely placed over the left frontal region.

(2) Sutured wound 1-1/2" ems long over right front parietal region.

(3) Sutured wound 10 ems long over the right front parietal . region.

(4) Sutured.wound with surrounding abraded laceration 4 x 2-1/2 ems with two sutured over left parietal region.

(5) Sutured wound 4 ems long over posterior left parietal region.

(6) Sutured wound 5 ems long over the occipital region.

(7) Three sutured wounds 2 ems 8 ems and 4 ems over occipital region.

~8) Abrasion 15 x Y-i ems over outer aspect of left upper an1:.

(9) Contusion scalp over right frontal right parietal left parietal left frontal and occipital areas with parietal haemotoma.

A Dr. M. Ravinder Reddy (PW.18) opined that the deceased died due to head injuries and those injuries could be caused by a weapon like M.0.1 hammer. He has further stated that all the injuries mentioned in the above post mortem report are sufficient in the ordinary course of nature to cause the death of B the deceased.

13. This Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287, considered various aspects of dealing with a case of acquittal C and after placing reliance upon earlier judgments of this Court particularly in Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Budh Singh & Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. &

Ors., AIR 2008 SC 2066; Arulve/u & Anr. v. State, (2009) 10 SCC 206; and Babu v. State of Kera/a, (2010) 9 SCC H:s9, D held that:

"22. It is a well-established principle of law, consistently reiterated and followed by this Court is that while dealing with a judgment of acquital, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor ·" of the witnesses is the best judge of the credibility of the witnesses.

23. Eyery accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human

S. GANESAN v. RAMA RAGHURAMAN & ORS. 43

[DR. B.S. CHAUHAN, J.]

right. Subject to the statutory exceptions, the said principle A forms the basis of criminal jurisprudence in India. The na, ture of the offence, its seriousness and gravity has to be taken into consideration.

The ppellate court should bear in mind the B presumption of innocence of the accused, and further, that the trial court's acquittal bo!st.ers the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good c reasons for such interference.

24. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court D

- -.\:. can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material.

A finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously E defies logic as to suffer from the vice of irrationality."

Thus, unless there are substantial and compelling circumstances, the order of acquittal is not required .to be reversed in appeal.

14. So far as the issue of setting aside the conviction under ; Section 120-B IPC against both the respondents and not framing the charge under any other penal provision is concerned

- it has to be considered, as to whether conviction under any x other provision for which the charge has not been framed, is G sustainable in law. The issue is no longer res integra and has been considered by the Court from time to time. The accused must be aware as to what is the case against them and what defence they could lead. Unless the parties satisfy the Court that there has been a failure of justice from non framing of H

A charge under a particular penal provision, and some prejudice has been caused to them, conviction under such provision of law is sustainable. (Vide: Amar Singh v. State of Haryana, AIR

1973 SC 2221)

15. This Court in Sanichar Sahni v. State of Bihar, AIR 201 O SC 3786, while considering the Issue placed reliance upon various judgments of this Court particularly in Topandas

v. State of Bombay, AIR 1956 SC 33; Willie (William) Slaney

v. State of M.P., AIR 1956 SC 116; Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326; State of A.P. v.

C Thakkidiram Reddy, AIR 1998 SC 2702; Ramji Singh v. State of Bihar, AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, AIR 2006 SC 191, and came to the following conclusion :

"17. Therefore, .................. unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory."

16. The case is required to be considered in the light of the aforesaid settled legal propositions.

In the instant case, the prosecution did not establish any motive to commit the crime. There is nothing on record to show as to whether Rama Raghuraman (A.1) had indulged in any physical intimacy with the deceased. The evidence of the doctor who examined the deceased, remained far from G satisfactory and as he changed his version, he has been

declared hostile. If the case of the prosecution is taken to be true, we have to examine as to whether the case of the respondents falls within the ambit of Section 100 and Exception II to Section 300 IPC and as to whether the High Court has dealt H

- S. GANESAN v. RAMA RAGHURAMAN & ORS.

[DR. B.S. CHAUHAN, J.] 45

with the same taking into consideration all these incriminating A circumstances considered by the trial court.

Admittedly, the High Court did not deal with any of the incriminating circumstances considered by the trial courtJor the purpose of corwiction of the respondent and did not address 8 Itself to the relevant issues Involved In the appeal. Therefore, the judgment and order of the High Court cannot be held to bti .. sustainable In law and it suffers from perversity. "

17. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622, this court held : C

" ... Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to s.ay, with Viscount Simon, that "a miscarriage of justice D may arise from the acquittal of the gui!ty no less than from the conviction of the innocent ... " In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. .. "

We are of the considered view that the High Court unnecessarily shown misplaced sympathy in a case where

; x conviction was eminent.

In the facts and circumstances of the case, the respondents are the only persons who could explain as under what circumstances the deceased suffered the grievous injuries

 A on the vital parts of his body. The court has to draw its own

inference considering the totality of the circumstances. r-

18. In State of U.P. v. Ram Swarup & Anr., AIR 1974 SC 1570, this Court held:

" ....... the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the Court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the tight of private defence has been exceeded .. ... "

19. Though the accused did not plead, if we go by the case of the prosecution the nature and number of injuries found on the body of the deceased itself established that Rama Raghuraman (A.1) and Raghuraman (A.2) had exceeded their right of self defence. However, admitted facts remained that the F respondents No.1 personally went to the nearby hospital and on the advice of Dr. U. Srinivas (PW.3), had taken the deceased to the hospital. They not only got him admitted in the hospital, rather donated their own blood to save his life.

Respondent No.1, Rama Raghuraman informed father of the deceased about his health conditions. Thus, these are the G mitigating circumstances in the case in favour of the

rpondents to show that in spite of the fact that they had committed the offence they did not intend to kill the deceased.

Thus, they are liable to be convicted under Section 304 Part-II IPC read with Section 34 IPC.

...

S. GANESAN v.: RAMA RAGHURAMAN & ORS. 4 7

[DR. B.S. CHAUHAN, J.]

20. In view of above, appeal succeeds and is allowed. A Judgment and order dated 13 .. 2.2003 passed by the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1088 of 2002 is hereby set aside and the judgment and order dated 9.9.2002 in Sessions Case No. 40 of 1999 passed by the trial court is modified to the extent that respondents are held guilty s for the offence punishable under Section 304 Part-II r/w Section 34 IPC and sentenced to five years rigorous imprisonment each. There is nothing on record to show as to whether the respondents have served any period during the trial or during the pendency of their appeal before the High Court. In case, C they have served some period, it shall be set-off in accordance with law.

Before parting with the case, we record our appreciation for the efforts made by Ms. V. Mohana, learned advocate, for rendering full assistance to the Court on being appointed as D amicus curiae.

R.P.

Appeal allowed.