STATE OF ASSAMversusRAMEN DOWARAH

                        [2016] l S.C.R. 179



                        STATE OF ASSAM                                A
                                 v.
                      RAMEN DOWARAH
                 (Criminal Appeal No. 668 of2011)
                       JANUARY 11,2016
                                                                      B
        [KURIAN JOSEPH AND ARUN MISHRA, JJ.]
       Penal Code, 1860 - ss.30213761454 - Prosecution under -
Of respondent-accused alongwith co-accused - For the commission
of offence of rape and thereafter causing death of prosecutrix setting
her ablaze by pouring kerosene - Incident seen by brother of
prosecutrix (minor witness-PW5) - In oral Dying Declaration C
prosecutrix named the respondent-accused having committed the
acts - Trial Court convicted the respondent-accused while acquitting
the co-accused - High Court acquitted the accused u!s.376 and
altered the conviction u/s.302 to 304(Part II) holding that it was a
consensual sexual intercourse and the accused set the prosecutrix D
ablaze in the spur of moment - On appeal, held: In view of the
evidence and the circumstances of the case, it cannot be called a
case of consensual sexual intercourse - The respondent-accused
had the intention to eliminate the prosecutrix by setting her ablaze,
so that the commission of offence of rape did not see the light of the
day - No circumstances were brought on record to indicate that it E
was case of any exception to take it out from the realm of s.300 !PC
- The act amounts to murder - Therefore, the respondent-accused
is liable to be convicted u!s.302 and u/s. 376 - Order of trial court
is restored.
       Allowing the appeal, the Court                                  F
       HELD: 1.1 In view of the evidence and circumstances of
the case, what emerges is that it could not be said to be a case of
consensual sexual intercourse. The victim had made a hue and
cry on commission of rape on her and also on being threatened
that she would narrate the incident to her mother, respondent-        G
accused had set her ablaze after pouring kerosene over her body.
Thus the High Court has erred in upsetting the finding of the
trial court which was based on the circumstances of the case and
the evidence on record which clearly makes out that it was not a
case of consensual sexual intercourse. In the case of consensual
                                                                      H
                                179
180            SUPREME COURT REPORTS                   [2016] l S.C.R.


A sexual intercourse victim would not have raised a hue and cry
  and would not have immediately threatened the perpetrator of
  the crime with the disclosure of the incident to her mother. She
  was clothless when kerosene oil was poured on her as stated by
  her brother PW-5. It was in fact in order to remove the evidence
  of rape, the respondent-accused had poured kerosene on her
8
  and set her ablaze. However, the minor brother had witnessed
  the incident by peeping from the slit of door and victim also
  survived for some time to narrate the incident. The High Court
  has erred in law in acquitting the respondent-accused from
  commission of the offence under section 376 IPC.[Para 9] [184-
c 8, F-H; 185-A-8]
         1.2 The age of the victim was mentioned in the FIR as 14
  years. In the medical report, Doctor has recorded the age of the
  victim to be 14 years. In the postmortem report also age is
  mentioned as 15 years. However, radiological examination
D evidence   so as to ascertain the age of the deceased has not been
  adduced. Hence, the Court wonld not upset the finding of the
  High Court that the prosecution has not been able to establish
  the age of the deceased. However it remains that she was young
  and not well-built and could be over-powered very easily. [Para
  9] [1.84-C-DJ
E        1.3 Men may lie but the circumstances do not, is the cardinal
  principle of evalution of evidence. The circumstances, the oral
  evidence and dying declarations of the deceased unerringly
  pointed out that it was not a case of consensual sexual intercourse.
  The dying declarations read together with the immediate conduct
F of victim takes it out to be a case of consensual sexual intercourse.
  [Para 9] [185-8-CJ
         State of Punjab v. Gurmit Singh & Ors. 1996 (1) SCR
         532 : (1996) 2 sec 384. - referred to.
         2. In view of the finding that it was not a case of consensual
G sexual intercourse and the shameful method and manner in which
  the incident has taken place, leaves no room for any doubt that
  the accused wanted to eliminate the deceased for all time to come.
  He intended to cause death by setting her ablaze so that
  commission of offence of rape does not see the light of the day.
  No circumstance has been brought on record to indicate that it
H was a case of any exception, to take it out from the realm of section
            STATE OF ASSAM v. RAMEN DOWARAH                                   181


300 IPC. Thus the High Court has erred in holding that accused                A
did not intend to cause death. The act was done with the intention
of causing death. The intention to kiUis present in the case. The
act amounts to murder. The judgment and order of conviction
and sentence passed by the trial court is hereby restored. [Paras
10 and 11] [185-H; 186-A-B, D-E, G]]
                                                                              B
      Bandarupalli Venkateswarlu v. State of Andhra Pradesh
      (1975) 3 sec 492 - relied on.
                         Case Law Reference
1996 (1) SCR 532                referred to.                   Para 9
(1975) 3 SCC 492                relied on.                     Para 10        C
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 668 of2011
      From the Judgment and Order dated 12.03.2010 of the High Court
of Gauhati in Criminal Appeal No. 215 of 2005.
                                                                              D
      Avijit Roy, Vatika Sahay, Corporate Law Group for the Appellant.
     Sanjay Kumar Dubey, Rakesh Kumar Tewari, Krishna Kant
Dubey, S. S. Nehra for the Respondent.
      The Judgment of the Court was delivered by
       ARUN MISHRA, J. I. The appeal has been preferred by the                E
State against the judgment and order of the High Court thereby setting
aside the conviction of the accused under section 376 IPC and altering
the conviction under section 302 to section 304 Part II !PC, sentencing
the accused to 7 years' imprisonment while maintaining the conviction
recorded by the trial court under section 454 IPC thereby sentencing          F
him to undergo RI for one year:
       2. As per the prosecution case the incident took place on 1.5.2003
at about 5 p.m. when accused Ramen Dowarah and Janmejoy Gogoi
alias Sanju entered the house of victim and committed rape on her and
after pouring kerosene oil set her ablaze. When the victim raised hue         G
and cry, people assembled and the victim was taken to the Civil Hospital.
She sustained 55% burn injuries as her condition was serious she was
referred to AMCH, Dibrugarh where in the course of her treatment she
died after 2 months on 11.7 .2003. On the date of the incident the paternal
uncle of the victim Mr. Khirode Hazarika, PW I, lodged a First
Information Report at P.S. Tinsukia.                                          H
182               SUPREME COURT REPORTS                        [2016] I S.C.R.



A             3. The accused were chargesheeted. After committal they were
      tried for commission of offences under sections 454/376(G)/302/34 IPC.
      The prosecution examined 11 witnesses. The accused persons abjured
      the guilt and contended that they had been falsely implicated in the case.
      The trial court convicted the accused/respondent Ramen for commission
      of offence under sections 454/376/302 IPC, and sentenced him to I
B
      year, JO years and life imprisonment respectively and a fine of Rs.3,000;
      in default of payment of fine to undergo simple imprisonment for I month.
      Aggrieved thereby, accused Ramen preferred appeal before the High
      Court and the same has been partly allowed. Aggrieved thereby State
      has come up in appeal.
c            4. The High Court has found that it was a case of consensual
      sexual intercourse with the accused Ramen and when the victim
      threatened him that the incident would be disclosed by her to mother, on
      the spur of the moment he poured kerosene oil on her so as to cause
      bum injuries. It could not be said to be a case of intentionally causing
D     death falling under section 300 IPC, Hence conviction under section 302
      !PC has been set aside. Conviction has been recorded under section
      304 Part II IPC.
              5. Learned counsel appearing on behalf of the State has submitted
      that it was not a case of consensual sexual intercourse. The High Court
E     has gravely erred in law in reversing the finding of the trial court. The
      victim had raised a hue and cry and threatened the accused that she
      would disclose the incident to her mother. On that accused had poured
      kerosene oil on her and set her ablaze. It could not be said to be a case
      falling under section 304 Part II IPC. The conviction was rightly recorded
      by the trial court under sections 302 and 376 IPC.
F
             6. Learned counsel appearing on behalf of the respondent has
      strenuously argued that the victim had not resisted when the sexual
      intercourse was performed. In her dying declaration she has not stated
      that she resisted the commission of sexual intercourse. In the
      circumstances as the victim had threatened accused to disclose the
G     incident to her mother, in a fit of rage, the accused had poured kerosene
      oil over her without intending to cause death of the deceased. There
      was no pre-meditation. Thus considering the relatively young age of the
      accused the conviction under section 304 Part II !PC calls for no
      interference. Accused could not have been convicted in view of the
H     evidence adduced by the prosecution under section 376 IPC.
           STATE OF ASSAM v. RAMEN DOWARAH                                  183
                    [ARUN MISHRA, J.]

       7. We have carefully assessed the evidence adduced by the A
prosecution. When we consider the evidence of the various witnesses
examined by the prosecution, Khirode Hazarika - PWl - has stated
that the deceased had made oral dying declaration as to the complicity
of the accused. Mridula Hazarika, PW2, saw the accused Ramen and
other acquitted accused fleeing the house, in oral dying declaration victim B
had told her that Ramen had destroyed her life. She heard the shrieks of
the brother of the victim and then came to the house. Lalita Hazarika,
PW3, is another witness. Victim was her niece. In the oral dying
declaration made to her, victim had informed that Ramen and other
accused had ruined her life. Aoilabati Hazarika, PW4, is the mother of
the victim. She saw the victim lying burnt in the house. The victim told to c
her that when she stated she would disclose the incident to her, on that
accused had poured kerosene oil and set her ablaze. Manash Hazarika,
PW5, a minor aged 14 years, brother of the deceased has stated that
while grandmother Maniki Hazarika and the witness were in the kitchen,
her elder sister the victim was lying on the bed as she was not feeling
                                                                             D
well, grandmother Maniki was deaf and blind; for that very reason the
witness was with her at that time accused Ramen and Sanjay came to
the house. They had shut the rear door and committed sexual intercourse
with the deceased. It was further stated that there was a door between
kitchen and bedroom which was also closed by the accused. He
witnessed the incident through a slit in the door. When his sister the E
victim cried accused Ramen threatened to kill the witness. When the
victim told that she would narrate the incident to her mother, this prompted
the accused to pour kerosene over her and set her ablaze. Victim was
wearing a frock. Ramen had taken off the clothes of his sister and
committed the bad act. His sister had no clothes on her when the accused
                                                                             F
poured kerosene oil over her and set her ablaze. The witness raised
commotion and on that Mridula Hazarika, his elder sister, arrived on the
scene and thereafter the victim was taken to the hospital. According to
the witness both the accused persons committed rape. However, other
accused Sanjay has been accorded the benefit of doubt by the trial court
as deceased in her dying declaration did not attribute commission of G
sexual intercourse to Sanjay, the acquitted accused.
      8. Dr. B.C. Roy Medhi performed postmortem and stated that
the victim died due to bum injuries. Dr. Alaka Devi, PW9, initially
examined the victim on the date of the incident. She has stated that the
victim had stated to her that when she cried, accused poured kerosene       H
184               SUPREME COURT REPORTS                         [2016] l S.C.R.


A     oil on her and set her ablaze. PW-10, Judicial Magistrate had recorded
      the dying declaration of the deceased under section 164 Cr.P.C. in which
      she has clearly stated that accused Ramen had committed sexual
      intercourse with her and on being told that she would disclose the incident
      to her mother, after pouring kerosene oil on her, she was set ablaze.
B             9. Considering the aforestated state of evidence what emerges
      is that it could not be said to be a case of consensual sexual intercourse.
      Evidence and circumstances militate against it being consensual sexual
      intercourse. The age of the victim was mentioned in the FIR as 14 years.
      In the medical report, Doctor has recorded the age of the victim to be 14
      years. In the postmortem report also age is mentioned as 15 years.
c     However radiological examination evidence so as to ascertain the age
      of the deceased has not been adduced. Hence we refrain from upsetting
      the finding of the High Court that the prosecution has not been able to
      establish the age of the deceased. However it remains that she was
      young and not well-built and could be over-powered very easily. It has
D     come in the evidence that the evidence of PW5 namely, Manash Hazarika
      who is the brother of the victim, that when the victim had cried, the
      witness was threatened by accused Ramen and thereafter accused
      Ramen had poured kerosene oil on the victim and set her ablaze. It has
      also come in the statement of PW9 Dr. Alka Devi that when the victim
      had given history which is to be treated as dying declaration she stated
E
      to the effect that when "she cried, accused poured kerosene oil on her
      and set her ablaze". There is nothing to doubt the veracity of the statement
      recorded in the medical report which was based upon the statement
      made by the victim and has been proved by PW-9 Dr. Aiaka Devi. Thus,
      it is crystal clear that it was not a case of consensual sexual intercourse,
F     but the victim had made hue and cry on commission of rape on her and
      also on being threatened that she would narrate the incident to her mother,
      accused Ramen had set her ablaze after pouring kerosene over her
      body. Thus the High Court has erred in upsetting the finding of the trial
      court which was based on the aforesaid circumstances and the evidence
      on record which clearly makes out that it was not a case of consensual
G     sexual intercourse. In the case of consensual sexual intercourse victim
      would not have raised hue and cry and would not have immediately
      threatened the perpetrator of the crime with the disclosure of the incident
      to her mother. She was clothless when kerosene oil was poured on her
      as stated by brother PW-5. lt was in fact in order to remove the evidence
H     ofrape accused Ramen had poured kerosene on her and set her ablaze
           STATE OF ASSAM v. RAMEN DOWARAH                                185
                    [ARUN MISHRA, J.]

so that she is silenced and his sin does not see the light of the day. A
However, the minor brother had witnessed the incident by peeping from
the slit of door and victim also survived for some time to narrate the
incident. In our opinion the High Court has erred in law in acquitting the
accused Ramen from commission of the offence under section 376 IPC.
Men may lie but the circumstances do not is cardinal principle of evalution
                                                                            B
of evidence. The circumstances, the oral evidence and dying declarations
of the deceased unerringly pointed out that it was not a case of consensual
sexual intercourse. The dying declarations have to be read together
immediate conduct of victim takes it out to be a case of consensual
sexual intercourse. Accused has denied in toto the commission of offence
in the statement recorded under section 313 Cr.P.C. Thus in view of the c
aforesaid evidence we have no hesitation in setting aside the finding of
the High Court to the effect that it was a case of consensual sexual
intercourse. We restore the finding recorded by the trial court. In State
of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384, this Court has
observed:
                                                                            D
        "The courts must, while evaluating evidence, remain alive to
        the fact that in a case of rape, no self-respecting woman would
        come forward in a court just to make a humiliating statement
        against her honour such as is involved in the commission of
        rape on her. In cases involving sexual molestation, supposed
        considerations which have no material effect on the veracity E
        of the prosecution case of even discrepancies in the statement
        of the prosecutrix should not, unless the discrepancies are
        such which are of fatal nature, be allowed to throw out an
        otherwise reliable prosecution case. The inherent bashfulness
        of the females and the tendency to conceal outrage of sexual F
        aggression are factors which the courts should not
        overlook ... "
        10. Corning to the question whether it was a case under section
302 or under section 304 Part II IPC for recording the aforesaid
conclusion, the High Court has held that on the spur of the moment the
 accused had set ablaze the victim on being threatened that the incident G
of consensual sexual intercourse would be disclosed by her to mother. '
In view of our finding that it was not a case of consensual sexual
 intercourse and the shameful method and manner in which the incident
 has taken place, leaves no room for any doubt that the accused wanted
 to eliminate the deceased for all time to come. He intended to cause H
186                SUPREME COURT REPORTS                         [2016] I S.C.R.



A     death by setting her ablaze so that commission of offence of rape does
      not see the light of the day. No circumstance has been brought on record
      to indicate that it was a case of any exception, to take it out from the
      realm of section 300 IPC. Thus the High Court in our opinion has erred
      in holding that accused did not intend to cause death. The facts and
      circumstances which have been proved indicate that the accused wanted
B
      to get rid of the victim by causing her death. The doctor has also opined
      that the injuries were dangerous to life and victim was taken in a
      precarious condition to the doctor PW-9. She could survive for 2 months,
      is not the test. It is a case where accused clearly intended to kill deceased
      after committing the crime so as to silence her. The overall circumstances
c     established to the hilt that accused intended to cause death by setting
      her ablaze after committing forcible sexual intercourse. The submission
      of the counsel appearing on behalf of the accused that the accused
      poured kerosene oil on being threatened disclosure of the incident by
      victim to her mother, was the cause of setting her ablaze. The aforesaid
      conduct does not exculpate but indicates the intendment of accused to
D
      cause death and makes him liable for punishment under section 302
      IPC. The act was done with the intention of causing death. The intention
      to kill is present in the case. The act amounts to murder. In Bandarupalli
      Venkateswarlu v. State of Andhra Pradesh [(1975) 3 SCC 492], this
      Court has considered intention of pouring kerosene and causing fire and
E     observed thus :
               "Relying on the circumstance that the appellant tried to put
              out the fire, learned Counsel for the appellant urged that the
              appellant had no intention to commit the murder of the
              deceased and cannot therefore be convicted under Section
              302. It is impossible to accept this submission because if the
F
              appellant set fire to the deceased after accused No.6 had
              poured kerosene on his body, there cannot be any doubt that
              the intention of the appellant was to kill the deceased."
               11. In view of the aforesaid discussion, we are of the considered
      opinion that the judgment and order partly allowing the appeal by the
G     High Court, deserves to be and is hereby set aside. The judgment and
      order of conviction and sentence passed by the trial court is hereby
      restored. The appeal is accordingly allowed.
             12. The accused to be taken into custody forthwith to serve out
      the remaining period of sentence.
H     Kalpana K. Tripathy                                           Appeal allowed.