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Sh. Satish Mehra vs Delhi Administration & Anr on 31 July, 1996


Author: Thomas
Bench: M.M.Punchhi, K.T. Thomas
PETITIONER:
SH. SATISH MEHRA
Vs.
RESPONDENT:
DELHI ADMINISTRATION & ANR.
DATE OF JUDGMENT:

31/07/1996

BENCH:
M.M.PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:

THE 31 DAY OF JULY, 1996 Present:


Hon'ble Mr. Justice M.M. Punchhi Hon'ble Mr. Justice K.T. Thomas In-personofor appellant
S.N. Sikka Adv. for S.N. Terdol, Adv. for the Respondent No.1 N.B.Joshi, Adv. for the

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Respondent No.2 J U D G M E N T The following Judgment of the Court was delivered: Shri
Satish Mehra V.
Delhi administration and another J U D G M E N T THOMAS,J.
Some eerie accusations have been made by a wife against her husband. Incestous sexual abuse,
incredulous ex facie, is being attributed to the husband. Police on her complaint conducted
investigation and laid charge sheet against the appellant, who has filed this Criminal Appeal
special leave as he did not succeed in his approach to the High court at the F.I.R. stage itself.
More details of the case are these:
Appellant (Satish Mehra) and his wife (Anita Mehra) were living in New York ever since their
marriage. They have three children among whom the eldest daughter (Nikita) was born of 2nd
April, 1988. Before and after the birth of the children relationship between husband and wife
was far from cordial. Husband alleged that his wife, in conspiracy with her father, had siphoned
off a whopping sum from his bank deposits in India by forging his signature. He also alleged that
his wife is suffering from some peculiar psychiatric condition. He approached a court at New
York for securing custody of his children. On 31.10.1992 his wife left his house with the children
and then filed a complaint with Saffolk County Police Station (United States) alleging that her
husband had sexually abused Nikita who was then aged four. United States police at the local
level moved into action. But after conducting detailed investigation concluded that the
allegations of incestuous abuse are untrue.
On 7.3.1993, appellant's wife (Anita) returned to India with her children. In the meanwhile
Family Court at New York has ordered that custody of the children be given to the husband and
a warrant of arrest was issued against Anita for implementation of the said order.
The battle field between the parties was thereafter shifted to India as she came back home. On
19.3.1993, Anita filed a complaint to the "Crime Against Women Cell" (CAW Cell for short) New
Delhi in which she stated that her husband committed sex abuses with Nikita while they were in
United States and further alleged that appellant committed certain matrimonial misdemeanour
on his wife. But the complain was close but want of jurisdiction for the CAW Cell to investigate
into what happened in United States. Appellant returned to India on 127.1993 and thereafter
filed a petition for a writ of Habeas Corpus for securing the custody of the children.

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The present case is based on a complaint filed by Anita before Greater Kailash Police station on
14.8.1993. FIR was prepared and a case was registered as Crime No. 197/93 for offences under
Sections 354 and 498-A of Indian Penal Code. On 25.8.1993, the investigating officer moved the
Sessions Court for adding Section 376 of the IPC also. The case was charge sheeted by the police
and it was committed to the Court of Sessions.
As committal proceedings took place during the pendency of the Special Leave Petition, this
Court directed the Sections judge on 22.2.1996 "to apply its mind to the case committed and see
whether a case for framing charge/charges has been made out or no". Learned Session judge, by
a detailed order, found that no charge under Section 498-A IPC could be framed against the
appellant, but charge for offences under Sections 354 and 376 read with Section 511 of IPC
should be framed against him. Accordingly, the charge has been framed with the said two
counts.
First count in the charge is that appellant had outraged the modesty of his minor daughter aged
about 3 years during some time between March and July, 1991 at D- 108, East of Kailash, New
Delhi by fondling with her vagina and also by inserting bottle into it and thereby committed the
offence under Section 354 of the IPC. Second count in the charge is that he made an attempt to
commit rape on the said infant child (time and place are the same) and thereby committed the
offence under Section 376 read with Section 511 of the IPC.
At this stage it is superfluous to consider whether the FIR is liable to be quashed as both sides
argued on the sustainability of the charge framed by the Sessions Judge. We are, therefore,
considering the main question whether the Sessions Court should have framed the charge
against the appellant as it did now.
Considerations which should weigh with the Sessions Court at this state have been well designed
by the Parliament through Section 227 of the Code of Criminal Procedure (for short 'the Code')
which reads thus:
"227. Discharge. - If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution there is not
sufficient ground for proceeding accused and record his reasons for so doing."

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Section 228 contemplates the stage after the case survives the stage envisaged in the former
section. When the Court is of opinion that there is ground to presume that the accused has
committed and offence the procedure laid down therein has to be adopted. When those two
section are put juxtaposition with each other the test to be adopted becomes discernible: Is there
sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof
normally adhered to at the final stage is not to be applied at the stage where the scope of
consideration is where there is "sufficient ground for proceeding". (Vide State of Bihar v.
Ramesh Singh, AIR 1977 SO 2018, and Supdt, & Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52).
In Alamohan Das v. State of West Bengal (AIR 1970 SC
863) Shah, j. (as he then was) has observed in the context of considering the scope of committal
proceedings under Section 209 of the old Code of Criminal Procedure (1898) that a Judge can
sift and weight the materials on record by seeing whether there is sufficient evidence for
commitment. It is open to the Court to weight the total effect of the evidence and the documents
produced to check whether there is any basic infirmity. Of course the exercise is to find out
whether a prima facie case against the accused has been made out.
In Union of India v. Profullakumar- 1979 Cr.L.J. 154, this Court has observed that the Judge
while considering the question of framing the charge has "the undoubted power to sift and wight
the evidence for the limited purpose of finding out whether a prima facie case against the
accused has been made out". However, there Lordships pointed out that the test to determine a
prima facie case would naturally dependent upon the facts of each case and it is difficult to lay
down a rule of universal application. "By and large, however, if who view are equally possible
and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but
not grave suspension, the Judge would be fully within his right to discharge the accused". At the
same time the Court cautioned that a roving enquiry into the pros and cons of the case by
weighing the evidence as if he was conducting the trial is not expected or even warranted at this
stage.
An incidental question which emerges in this context is whether the Session Judge can look into
any material other than those produced by the prosecution. Section 226 of the Code obliges the
prosecution to describe the charge brought against the accused and to state by what evidence the

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guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to
decide whether there is sufficient ground to proceed against the accused. In so deciding the
Judge has to consider (1) the record of the case and (2) the documents produced therewith. He
has then to hear the submissions of the accused as well as the prosecution on the limited
question whether there is sufficient ground to proceed. What is the scope of hearing the
submissions? Should it be confined to hearing oral arguments alone?
Similar situation arise under Section 239 of the Code (which deals with trial of warrant cases on
police report). In that situation the Magistrate has to afford the prosecution and the accused an
opportunity of being heard besides considering the police report and the documents sent
therewith. At these two State the Code enjoins on the Court to give audience to the accused for
deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial
mind. There is nothing in the code which shrinks the scope of such audience to oral arguments.
If the accused succeeds in producing any reliable material at that stage which might fatally affect
even the very sustainability of the case, it is unjust to suggest that no such material shall be
looked into by the Court at that stage. Here the "ground" may be any valid ground including
insufficiency of evidence to prove charge.
The object of providing such an opportunity as is envisaged in Section 227 of the code is to
enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case
ends there it gains a lot of time of the Court and saves much human efforts and cost. If the
materials produced by the accused even at that early stage would clinch the issue, why should
the Court shut it out saying that such documents need be produced only after wasting a lot more
time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be
within his powers to consider even material which the accused may produce at the stage
contemplated in Section 227 of the Code.
But when the Judge is fairly certain that there is no prospect of the case ending in conviction the
valuable time of the Court should not be wasted for holding a trial only for the purpose of
formally completing the procedure to pronounce the conclusion on a future date. We are under
heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be
an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings
at the stage of Section 227 of the Code itself.

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In the present case learned Session Judge has missed certain germane aspects. Apart form the
seemingly incredulous nature of the accusations against a father that he molested his infant
child (who would have just passed her suckling stage the) the Sessions Judge out not to have
overlooked the following telling circumstances.
The complaint made by her with the New York police that her husband committed sexual
offences against her 18 months old female child was investigated by the New York police and
found the complaint bereft of truth hook, line and sinker. The present charge is that the
appellant committed such offences against the same child at East Kailash, New Delhi some time
during March to July, 1991. There is now no case of what happened in United States. There is
now no case of what happened in United States. The Sessions Judge should have noted that
appellant's wife has not even remotely alleged in the complaint filed by her on 19.3.1993 before
CAW Cell , New Delhi that appellant has done anything like that while he was in India. Even the
other complaint. petition (on which basis the FIR was prepared) is totally silent about a case
that appellant did anything against his daughter anywhere in India. when we perused the
statement of Anita Mehra (second respondent) we felt no doubt that the has been brimming
with acerbity towards the petitioner on account of other causes. She describes her marital life
with petitioner as 'extremely painful and unhappy from the very inception". She complains that
petitioner has "a history of irrational outbursts of temper and violence". She accused him of
being alcoholic and prone to inflicting server physical violence on her form 1980 onwards.
Thus her attitude to the petitioner, even de hors the allegation involving the child, was vengeful.
We take into account the assertion of the of the petitioner that the present story involving Nikita
was concocted by the second respondent to wreak her vengeance by embroiling him in serious
criminal cases in India so that the could be nailed down here and prevent him from going back
to U.S.A.
While hearing the arguments we ascertained whether the spouses could settle their differences.
Second respondent, who to was present in court, made an offer through her counsel that she
could agree for annulling the criminal proceedings against the petitioner on the condition that
he should withdraw his claims on the bank deposits and would also relinquish his claim for
custody of the children, and further he should concede for a divorce. In response to the said
conditional offer, petitioner agreed to give up all his claims on the large amounts in bank
deposits, and further agreed to have the divorce. But he stood firm that on no account custody of

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the children could go to the second respondent but if made to, subject to his rights of visitation.
This, he said, is because he is convinced that second respondent is unsuitable to be entrusted
with the care of the children.
In the above context petitioner drew our special notice to a medical report issued by Dr. Prabha
Kapoor (Children Medical Centre, Jorbagh, New Delhi) On 26.7.1992. It is stated in report, that
Nikita was brought to the doctor by the second respondent and on examination of the genetals
of the child the doctor noticed " a wide vaginal opening -wider than would be expected of her age
group." On the strength of the aforesaid medical report, petitioner made a frontal attack on
second respondent, alleging that in order concoct medical evidence against him the little child's
genitals would have been badly manipulated by its mother. To substantiate this allegation he
drew our attention to the U.S. police report, in which there is mention of a medical examination
conducted on Nikita by a U.S. doctor (Dr. Gordon) on 24.11.92. That doctor pointed out that
there was absolutely no indication of any sexual abuse when the child was physically examined.
If the medical examination done on the child in November, 1992 showed such normal condition,
petitioner posed the question -who would have meddled with the child's genitals before 26.7.93,
to case such a widening of the vaginal office? (We now remember again that, as per present case,
the last occasion when the petitioner should have abused the child was in July, 1991). The
aforesaid question, posed by the petitioner in the context of expressing grave concern over what
the mother might do with the little female child for creating evidence of sex abuse, cannot be
sideline by us in considering whether the case should proceed to the trial stage.
Petitioner invited out attention to the answers which Mrs. Veena Sharma (of CAWC) has elicited
from Nikita, a verbatim reproduction of which is given in the counter affidavit filed by the
second respondent. The said interrogation record reveals that Mrs. Veena Sharma has
practically put on the tongue of the little girl that her father had molested her. The following
questions and answers can bring the point home the questions. The questioner asked the child
"what your dady did with you" and the child answered that he put his finger (and showed her
private part). Not being satisfied with the answer the next question put to the child was "Dady
puts what else". Then Nikita answers "Dady puts his bottle". We noticed with disquiet that the
questioner drew the picture of the petitioner -face body and then asked certain questions such as
"where is papa's bottle? Is it on the cupboard?" The child kept looking at the drawn sketch and
pointed to the part between legs. Questioner then asked if anything was missing in the picture,
to which Nikita Answered "glesses". After the child again pointed to the private parts between

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the legs, the questioner wanted the child to draw "papa's bottle". But then the child told her "you
do it." The questioner at the stage had the temerity to draw the picture of the private parts of
child's father. We are much disturbed at the manner in which the little child was interrogated by
the said officer of CAW Cell. At any rate we have no doubt that the purpose of such questions
was to lead the child unmistakably to the tutored answers.
Even overlooking all the inherent infirmities shrouding the testimony of a tiny tot speaking
about what her further did when she was aged 3 and even ignoring the appellant's persistent
submission that the little child was briskly tutored by her mother to speak to the present
version, There is no reasonable prospect of the sessions court relaying on such a testimony to
reach the conclusion that the prosecution succeeded in proving the offence charged beyond all
reasonable doubt.
Over and above that, what would be the consequence if this nebulous allegation is allowed to
proceed to the trial stage. We foresee that Nikita, the child witness, now eight years and four
month old, mus necessarily be subjected to cross-questions involving sex and sex organs. The
traumatic impact on the child when she would be confronted by volley of questions dealing with
such a subject is a matter of concerned to us. We cannot brush aside the submission of the
appellant that such an ordeal would inflict the appellant that such an ordeal would inflict
devastating impairment on the development of child's personality. Of course, if such a course is
of any use to the cause of justice, we may have to bear with it as an inevitable course of action to
be resorted to. But in this case, when the trial is going to be nothing but a farce, such a course of
action should not be allowed to take place on account of the impeding consequences befalling an
innocent child.
After adverting to the above aspects and bestowing our anxious consideration we unhesitatingly
reach the conclusion that there is no sufficient ground to proceed to the trial in this case.
We, therefore, quash the proceedings and the charge framed by the Sessions Judgement and
discharge the appellant. The appeal would stand allowed.

State Of Orissa vs Debendra Nath Padhi on 29 November, 2004


Author: Y.K.Sabharwal
Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee

CASE NO.:
Appeal (crl.)

497 of 2001

PETITIONER:
State of Orissa
RESPONDENT:
Debendra Nath Padhi
DATE OF JUDGMENT: 29/11/2004
BENCH:
Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee
JUDGMENT:

J U D G M E N T [With SLP (Crl.) No.1912 of 2003 and Crl.A.No.46 of 2004] Y.K.Sabharwal, J.


Can the trial court at the time of framing of charge consider material filed by the accused, is the
point for determination in these matters. In Satish Mehra v. Delhi Administration and
Another[(1996) 9 SCC 766], a two judge Bench judgment, it was observed that if the accused
succeeds in producing any reliable material at the stage of taking cognizance or framing of
charge which might fatally affect even the very sustainability of the case, it is unjust to suggest
that no such material should be looked into by the court at that stage. It was held that the object
of providing an opportunity to the accused of making submissions as envisaged in Section 227 of
the Code of Criminal Procedure, 1973 (for short, 'the Code') is to enable the court to decide
whether it is necessary to proceed to conduct the trial. If the materials produced by the accused
even at that early stage would clinch the issue, why should the court shut it out saying that such
documents need be produced only after wasting a lot more time in the name of trial proceedings.
It was further observed that there is nothing in the Code which shrinks the scope of such
audience to oral arguments and, therefore, the trial court would be within its power to consider
even material which the accused may produce at the stage contemplated in Section 227 of the
Code.

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When the arguments in the present case were heard by a two-judge Bench, considering various
decisions including three-judge Bench decisions in Superindent and Remembrancer of
legal Affairs, West Bengal v. Anil Kumar Bhunja and Others [ (1979) 4 SCC 274 ] and State of
Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] it was observed that at the time of framing a charge
the trial court can consider only the material placed before it by the investigating agency, there
being no requirement in law for the court to grant at that stage either an opportunity to the
accused to produce evidence in defence or consider such evidence the defence may produce at
that stage. But having regard to the views expressed in Satish Mehra's case (supra) it was
directed that the matter should be referred to a larger Bench. The order referring the matter to
larger Bench is reported in State of Orissa v. Debendra Nath Padhi [(2003) 2 SCC 711].
Accordingly, these matters have been placed before us to determine the question above-noticed.
The views expressed in Satish Mehra's case (supra) have been strongly supported by learned
counsel for the accused on the ground of justice, equity and fairness and also on the touchstone
of Article 21 of the Constitution of India contending that reversal of that view would lead to
unnecessary harassment to the accused by having to face the trial for years, waste of valuable
time of the court, heavy cost, despite the fact that even at the early stage of framing of charge or
taking cognizance the accused is in a position to produce unimpeachable material of sterling
quality to clinchingly show that there is no prospect of conviction at the conclusion of the trial.
Satish Mehra's case was further supported on interpretation of Sections 227 and 239 of the
Code. On the other hand, it was contended on behalf of the State that the observations made in
Satish Mehra's case run counter to the views expressed by this court in large number of
decisions, it amounts to upsetting well settled legal propositions and making nugatory
amendments made in Code of Criminal Procedure from time to time and would result in
conducting a mini trial at the stage of framing of charge or taking cognizance. Such a course
would not only be contrary to the object and the scheme of the Code but would also result in
total wastage of the court time because of conducting of two trials, one at the stage of framing
charge and the other after the charge is framed. It was contended that on true construction of
Section 227 of the Code only the material sent by prosecution along with the record of the case
and the documents sent along with it can be considered by the trial court at the time of framing
of the charge. The accused at that stage has no right to place before the court any material.
At the stage of framing charge, the trial court is required to consider whether there are sufficient
grounds to proceed against the accused. Section 227 of the Code provides for the eventuality

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when the accused shall be discharged. If not discharged, the charge against the accused is
required to be framed under Section 228. These two sections read as under:
"Section 227 of Cr.PC.
DischargeIf, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for the proceeding against the accused, he
shall discharge the accused and record his reasons for so doing.
Section 228 of Cr.PC Framing of charge (1) If, after such consideration and hearing as aforesaid,
the Judge is of opinion that there is ground for presuming that the accused has committed an
offence which
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the
Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of
warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be
read and explained to the accused and the accused shall be asked whether he pleads guilty of the
offence or claims to be tried."
Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report,
Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the
Magistrate to consider 'the police report and the documents sent with it under Section 173' and,
if necessary, examine the accused and after giving accused an opportunity of being heard, if the
Magistrate considers the charge against the accused to be groundless, the accused is liable to be
discharged by recording reasons thereof.
What is to the meaning of the expression 'the record of the case' as used in Section 227 of the
Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the
interpretation to be placed on the said word. Section 209 which deals with the commitment of

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case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it
appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall
commit 'the case' to the Court of Session and send to that court 'the record of the case' and the
document and articles, if any, which are to be produced in evidence and notify the Public
Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of
the case and documents submitted therewith as postulated in Section 227 relate to the case and
the documents referred in Section 209. That is the plain meaning of Section 227 read with
Section 209 of the Code. No provision in the Code grants to the accused any right to file any
material or document at the stage of framing of charge. That right is granted only at the stage of
the trial. Further, the scheme of the Code when examined in the light of the provisions of the old
code of 1898, makes the position more clear. In the old code, there was no provision similar to
Section 227. Section 227 was incorporated in the Code with a view to save the accused from
prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is
calculated to eliminate harassment to accused persons when the evidential materials gathered
after investigation fall short of minimum legal requirements. If the evidence even if fully
accepted cannot show that the accused committed the offence, the accused deserves to be
discharged. In the old Code, the procedure as contained in Sections 207 and 207 (A) was fairly
lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively
triable by a Court of Session in any proceedings instituted on a police report, shall follow the
procedure specified in Sectioin 207 (A). Under Section 207 (A) in any proceeding instituted on a
police report the Magistrate was required to hold inquiry in terms provided under sub-section
(1), to take evidence as provided in sub- section (4), the accused could cross-examine and the
prosecution could re-examine the witnesses as provided in sub-section (5), discharge the
accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for
committing him for trial, as provided in sub- section (6) and to commit the accused for trial after
framing of charge as provided in sub-section (7), summon the witnesses of the accused to appear
before the court to which he has been committed as provided in sub-section (11) and send the
record of the inquiry and any weapon or other thing which is to be produced in evidence, to the
Court of Session as provided in sub-section (14). The aforesaid Sections 207 and 207(A) have
been omitted from the Code and a new Section 209 enacted on the recommendation of the Law
Commission contained in its 41st Report. It was realised that the commitment inquiry under the
old Code was resulting in inordinate delay and served no useful purpose. That inquiry has,
therefore, been dispensed with in the Code with the object of expeditious disposal of cases.
Instead of committal Magistrate framing the charge, it is now to be framed by Court of Session

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under Section 228 in case the accused is not discharged under Section 227. This change brought
out in the code is also required to be kept in view while determining the question. Under the
Code, the evidence can be taken only after framing of charge. Now, let us examine the decisions
which have a bearing on the point in issue.
In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] considering the scope of Sections 227 and
228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the
Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the accused or not. At that stage, the court is not to
see whether there is sufficient ground for conviction of the accused or whether the trial is sure to
end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to
frame the charge and in that event it is not open to say that there is no sufficient ground for
proceeding against the accused. In Superintendant and Remembrancer of legal Affairs, West
Bengal v. Anil Kumar Bhunja and Others [(1980) 1 SCR 323] a three- judge Bench held that the
Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be
proved by the prosecution prima facie disclose the commission of offence on general
consideration of the materials placed before him by the investigating police officer (emphasis
supplied). Though in this case the specific question whether an accused at the stage of framing
of charge has a right to produce any material was not considered as such, but that seems implicit
when it was held that the Magistrate had to consider material placed before it by the
investigating police officer.
In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239] this Court reiterated that at the
stage of framing of charge the trial court is not to examine and assess in detail the materials
placed on record by the proseuction nor is it for the court to consider the sufficiency of the
materials to establish the offence alleged against the accused persons. In State of Madhya
Pradesh v. S.B.Johari and Others [(2000) 2 SCC 57] it was held that the charge can be quashed
if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if
fully accepted, cannot show that the accused committed the particular offence. In that case,
there would be no sufficient ground for proceeding with the trial.
In State of Maharashtra v. Priya Sharan Maharaj and Others [(1997) 4 SCC 393] it was held that
at Sections 227 and 228 stage the court is required to evaluate the material and documents on
record with a view to finding out if the facts emerging therefrom taken at their face value

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disclose the existence of all the ingredients constituting the alleged offence. The court may, for
this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept
all that the prosecution states as gospel truth even if it is opposed to common sense or the broad
probabilities of the case.
All the decisions, when they hold that there can only be limited evaluation of materials and
documents on record and sifting of evidence to prima facie find out whether sufficient ground
exists or not for the purpose of proceeding further with the trial, have so held with reference to
materials and documents produced by the prosecution and not the accused. The decisions
proceed on the basis of settled legal position that the material as produced by the prosecution
alone is to be considered and not the one produced by the accused. The latter aspect relating to
the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to
have not been specifically so stated as it was taken to be well settled proposition. This aspect,
however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P.
Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of
the Code it was held that at the time of framing of charge, what the trial court is required to, and
can consider are only the police report referred to under Section 173 of the Code and the
documents sent with it. The only right the accused has at that stage is of being heard and
nothing beyond that (emphasis supplied). The judgment of the High Court quashing the
proceedings by looking into the documents filed by the accused in support of his claim that no
case was made out against him even before the trial had commenced was reversed by this Court.
It may be noticed here that learned counsel for the parties addressed the arguments on the basis
that the principles applicable would be same whether the case be under Sections 227 and 228 or
under Sections 239 and 240 of the Code.
As opposed to the aforesaid legal position, the learned counsel appearing for the accused
contended that the procedure which deprives the accused to seek discharge at the initial stage by
filing unimpeachable and unassailable material of sterling quality would be illegal and violative
of Article 21 of the Constitution since that would result in the accused having to face the trial for
long number of years despite the fact that he is liable to be discharged if granted an opportunity
to produce the material and on perusal thereof by the court. The contention is that such an
interpretation of Sections 227 and 239 of the Code would run the risk of those provisions being
declared ultra vires of Articles 14 and 21 of the Constitution and to save the said provisions from
being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which

15
gives a right, howsoever, limited that right may be, to the accused to produce unimpeachable
and unassailable material to show his innocence at the stage of framing charge.
We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is
misplaced. The scheme of the Code and object with which Section 227 was incorporated and
Sections 207 and 207 (A) omitted have already been noticed. Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted,
there would be a mini trial at the stage of framing of charge. That would defeat the object of the
Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be
put forth. The acceptance of the contention of the learned counsel for the accused would mean
permitting the accused to adduce his defence at the stage of framing of charge and for
examination thereof at that stage which is against the criminal jurisprudence. By way of
illustration, it may be noted that the plea of alibi taken by the accused may have to be examined
at the stage of framing of charge if the contention of the accused is accepted despite the well
settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea.
The accused would be entitled to produce materials and documents in proof of such a plea at the
stage of framing of the charge, in case we accept the contention put forth on behalf of the
accused. That has never been the intention of the law well settled for over one hundred years
now. It is in this light that the provision about hearing the submssions of the accused as
postulated by Section 227 is to be understood. It only means hearing the submissions of the
accused on the record of the case as filed by the prosecution and documents submitted therewith
and nothing more. The expression 'hearing the submissions of the accused' cannot mean
opportunity to file material to be granted to the accused and thereby changing the settled law. At
the state of framing of charge hearing the submissions of the accused has to be confined to the
material produced by the police.
It may also be noted that, in fact, in one of the cases under consideration (SLP No.1912) the plea
of alibi has been taken by the accused in a case under Section 302 read with other provisions of
the Indian Penal Code. We may also note that the decisions cited by learned counsel for the
accused where the prosecutions under the Income Tax Act have been quashed as a result of
findings in the departmental appeals have no relevance for considering the question involved in
these matters. Reliance placed on behalf of the accused on some observations made in Minakshi
Bala v. Sudhir Kumar and Others [(1994) 4 SCC 142] to the effect that in exceptional cases the
High Court can look into only those documents which are unimpeachable and can be legally

16
translated into relevant evidence is misplaced for the purpose of considering the point in issue
in these matters. If para 7 of the judgment where these observations have been made is read as a
whole, it would be clear that the judgment instead of supporting the contention sought to be put
forth on behalf of the accused, in fact, supports the prosecution. Para 7 of the aforesaid case
reads as under:"If charges are framed in accordance with Section 240 CrPC on a finding that a prima case has
been made out - as has been done in the instant case - the persons arraigned may, if he feels
aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend
that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not
disclose any ground to presume that he had committed any offence for which he is charged and
the revisional court if so satisfied can quash the charges framed against him. To put it
differently, once charges are framed under Sections 240 CrPC the High Court in its revisional
jurisdiction would not be justified in relying upon documents other than those referred to in
Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under
section 482 CrPC to quash the same except in those rare cases where forensic exigencies and
formidable compulsions justify such a course. We hasten to add even in such exceptional cases
the High Court can look into only those documents which are unimpeachable and can be legally
translated into relevant evidence."
It is evident from the above that this Court was considering the rare and exceptional cases where
the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing
under Section 482 of the Code. In the present case, however, the question involved is not about
the exercise of jurisdiction under Section 482 of the Code where along with the petition the
accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but
is about the right claimed by the accused to produce material at the stage of framing of charge.
Reliance has also been placed on decision in the case of P.S.Rajya v. State of Bihar [(1996) 9 SCC
1] where this court rejected the contention urged on behalf of the State that the points on which
the accused was seeking quashing of criminal proceedings could be established by giving
evidence at appropriate time and no case had been made out for quashing the charge itself. The
charge was quashed by this Court. In this case too only on peculiar facts of the case, this Court
came to the conclusion that the criminal proceedings initiated against the appellant-accused
could not be pursued. Those peculiar facts have been noticed in paragraphs 14, 17, 18 and 19 of
the decision. The contention of the accused based on those peculiar facts has been noticed in

17
para 15 and that of respondent that the CBI was entitled to proceed on the basis of the material
available and the mere allegations made by the accused cannot take the place of proof and that
had to be gone into and established in the final hearing, has been noticed in para 16. After
noticing those contentions and the decision in the case ofState of Haryana v. Bhajan Lal [1992
(Suppl.1) 335] laying down the guidelines relating to the exercise of extraordinary power under
Article 226 or the inherent power under Section 482 of the Code for quashing an FIR or a
complaint, this Court, on the peculiar facts, came to the conclusion that the case of the appellant
could be brought under more than one head given in Bhajan Lal's case (supra) without any
difficulty so as to quash the proceedings. In this background, observations were made in para 23
on which reliance has been placed on behalf of the accused whereby rejecting the contention of
the State as noticed in para 16, the Court came to the conclusion that the criminal proceedings
deserve to be quashed. In this case too the question was not about the right of the accused to file
material at the stage of framing charge but was about quashing of proceedings in exercise of
power under Section 482 of the Code. The decision in the case of State of Madhya Pradesh v.
MohanLal Soni [(2000) 6 SCC 338] sought to be relied upon on behalf of the accused is also of
no assistance because in that case an earlier order of the High Court wherein trial court was
directed to take into consideration the documents made available by the accused during
investigation while framing charge had attained finality since that order was not challenged and
in that view this Court came to the conclusion that the trial court was bound and governed by
the said direction of the High Court which had not been followed. As a result of aforesaid
discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance
the accused has no right to produce any material. Satish Mehra's case holding that the trial court
has powers to consider even materials which accused may produce at the stage of Section 227 of
the Code has not been correctly decided. On behalf of the accused a contention about production
of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code
reads as under:
"Summons to produce document or other thing.(1) Whenever any Court or any officer in charge
of a police station considers that the production of any document or other thing is necessary or
desirable for the purposes of any investigation, inquiry, trial or other proceeding under this
Code by or before such Court or officer, such Court may issue a summons, or such officer a
written order, to the person in whose possession or power such document or thing is believed to
be, requiring him to attend and produce it, or to produce it, at the time and place stated in the
summons or order.

18
(2)...........................................................................
(3)..........................................................................."
Any document or other thing envisaged under the aforesaid provision can be ordered to be
produced on finding that the same is 'necessary or desirable for the purpose of investigation,
inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the
section is about the document being necessary or desirable. The necessity or desirability would
have to be seen with reference to the stage when a prayer is made for the production. If any
document is necessary or desirable for the defence of the accused, the question of invoking
Section 91 at the initial stage of framing of a charge would not arise since defence of the accused
is not relevant at that stage. When the section refers to investigation, inquiry, trial or other
proceedings, it is to be borne in mind that under the section a police officer may move the Court
for summoning and production of a document as may be necessary at any of the stages
mentioned in the section. In so far as the accused is concerned, his entitlement to seek order
under Section 91 would ordinarily not come till the stage of defence. When the section talks of
the document being necessary and desirable, it is implicit that necessity and desirability is to be
examined considering the stage when such a prayer for summoning and production is made and
the party who makes it whether police or accused. If under Section 227 what is necessary and
relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at
that stage invoke Section 91 to seek production of any document to show his innocence. Under
Section 91 summons for production of document can be issued by Court and under a written
order an officer in charge of police station can also direct production thereof. Section 91 does not
confer any right on the accused to produce document in his possession to prove his defence.
Section 91 presupposes that when the document is not produced process may be initiated to
compel production thereof. Reliance on behalf of the accused was placed on some observations
made in the case of Om Parkash Sharma v. CBI, Delhi [(2000) 5 SCC 679]. In that case the
application filed by the accused for summoning and production of documents was rejected by
the Special Judge and that order was affirmed by the High Court. Challenging those orders
before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra).
The contentions based on Satish Mehra's case have been noticed in para 4 as under:
"The learned counsel for the appellant reiterated the stand taken before the courts below with
great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra
v.

19
Delhi Admn. ((1996) 9 SCC 766) laying emphasis on the fact the very learned Judge in the High
Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v.
State ((1999) 49 DRJ 202). Mr Altaf Ahmed, the learned ASG for the respondents not only
contended that the decisions relied upon for the appellants would not justify the claim of the
appellant in this case, at this stage, but also invited, extensively our attention to the exercise
undertaken by the courts below to find out the relevance, desirability and necessity of those
documents as well as the need for issuing any such directions as claimed at that stage and
consequently there was no justification whatsoever, to intervene by an interference at the
present stage of the proceedings.
In so far as Section 91 is concerned, it was rightly held that the width of the powers of that
section was unlimited but there were inbuilt inherent limitations as to the stage or point of time
of its exercise, commensurately with the nature of proceedings as also the compulsions of
necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage
was to find out whether there was sufficient ground for proceeding to the next stage against the
accused. The application filed by the accused under Section 91 of the Code for summoning and
production of document was dismissed and order was upheld by High Court and this Court. But
observations were made in para 6 to the effect that if the accused could produce any reliable
material even at that stage which might totally affect even the very sustainability of the case, a
refusal to look into the material so produced may result in injustice, apart from averting an
exercise in futility at the expense of valuable judicial/public time, these observations are clearly
obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore.
Further, the observations cannot be understood to mean that the accused has a right to produce
any document at stage of framing of charge having regard to the clear mandate of Sections 227
and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.
We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the
necessity and desirability would have to be seen by the Court in the context of the purpose
investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne
in mind that law does not permit a roving or fishing inquiry. Regarding the argument of accused
having to face the trial despite being in a position to produce material of unimpeachable
character of sterling quality, the width of the powers of the High Court under Section 482 of the
Code and Article 226 of Constitution of India is unlimited where under in the interests of justice
the High Court can make such orders as may be necessary to prevent abuse of the process of any

20
Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's
case.
The result of the aforesaid discussion is that Criminal Appeal No.497 of 2001 is allowed, the
impugned judgment of the High Court is set aside. The trial court is directed to proceed from the
stage of framing of charge. Having regard to the fact that the charges were framed about 11 years
ago we direct the trial court to expeditiously conclude the trial and as far as possible it shall be
held from day-to-day.
Special Leave Petition (Crl.) No.1912 of 2003 and Criminal Appeal No.46 of 2004 are dismissed.
Since Special Leave Petition relates to an occurrence which took about 3 years back and the
offence is under Section 302 Indian Penal Code and in Criminal Appeal No.46 of 2004 charges
were framed about 2 years ago, we direct that the trial in these cases shall also be concluded
expeditiously. All the appeals are disposed of accordingly.

Rajinder Kumar And Another vs The State Of Punjab on 4 May, 1962


Equivalent citations: 1966 AIR 1322, 1963 SCR (3) 281
Author: K D Gupta
Bench: Gupta, K.C. Das
PETITIONER:
RAJINDER KUMAR AND ANOTHER
Vs.

21

RESPONDENT:
THE STATE OF PUNJAB
DATE OF JUDGMENT:
04/05/1962
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
KAPUR, J.L.
DAYAL, RAGHUBAR
CITATION:
1966 AIR 1322

1963 SCR

(3) 281

ACT:
Murder--Motive note established--Want of proof
not

of

a reason for doubling evidence ofcrime--Indian

motive,

Penal

Code (Act 45 of 1860), ss. 201, 802.

HEADNOTE:
The first appellant was convicted under s. 302 of the Indian
Penal

Code

for the murder of a three and a half

yea.

old

boy, T, and sentenced to death, while his father, the second


appellant,

was convicted under s. 201 for having

concealed

T's dead body. The prosecution case was that on January


1961,
of

between 3-30 p.m. and 4 p.m. when T was at the

the appellants and the other inmates of the

away,

the

first appellant killed T by stuffing

5,

house
house were

his

mouth

22

with

a cloth and kept the dead body in the garage in

house; and that on that very night he and his father

their

the

dead body in the compound after putting it in

buried

bag.

gunny

The evidence showed that a few days before January

1961,

5,

father

become strained because the first appellant had

talked

had

relations between the first appellant and T's

to T ' Is mother in a way which her husband did not like and
the

latter asked the first appellant to stop his visits

to

their house; and T who used to be a frequent visitor to

the

first appellant stopped his visits for some days, but resume
them

three or four days before January 5; and that on

day

T was last seen alive at about 3-30 p m. in

appellant' house playing with him.


the

High

by the

the

first

Both the trial court and

Court found that the prosecution case

established

that

evidence. It was contended

was

fully

for the

appellants

that the findings of the lower courts

were

not

justified,

and that no reasonable motive for the crime

had

been proved.
Held,

that the appellants had been rightly convicted;

though the motive for the murder does not appear


evidence. that can be no reason for doubting the
which

flows,

clear

from the circumstances.

The

that

from
conclusion
motive

behind a crime is a relevant fact of which evidence can


given; absence of motive is also a
That
It

relevant

has to be considered along with


often

other

happens that only the culprit

the

be

circumstance.
circumstances.

knows

the

motive

behind his action.


282

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 182 of 1961.

23
Appeal by special leave from the judgment and order dated September 7, 1961, of the Punjab
High Court, Chandigarh in Criminal Appeal No. 595 of 1961 and Murder Reference No. 56 of
1961.
A. S. B. Chari, Om Prakash Passey and K. R. Chaudhri, for the appellants.
Gopal Singh and P. D. Menon, for the respondent. 1962. May 4. The Judgment of the Court was
delivered by DAS GUPTA, J.-Three and a half year old Tonny, son of Ravindernath Goyal was
last seen alive on January 5, 1961. A month later on February 5, 1961, his dead body was
discovered, buried in the compound of the house of Goyal's next door neighbour Jagdish
Chander and Rajinder Kumar. These two, Jagdish Chander and Rajinder Kumar are father and
son. Tonny's body was found in a gunny bag with a blood- stained piece of cloth stuffed in the
mouth; a blood-stained towel was also found in the bag. When the cloth stuffing the mouth was
removed the tongue was found pushed to the left side backward looking the throat. ,The Civil
Surgeon, Bhatinda, who held the postmortem examination has given his opinion that the death
of the child was due to asphyxia resulting from suffocation caused by packing the mouth with
the cloth.
Rajinder Kumar ;has been convicted under s. 302 of the Indian Penal Code for the murder of
Tonny and sentenced to death. The father Jagdish Chander has been convicted under a. 201 of
the Indian Penal Code for having concealed the dead body of Tonny.
The prosecution case is that on January 5, 1961, between 3-30 p. m. and 4 p. m. when Tonny was
at the house of Jagdish and, Rajinder and the other inmates of the house were away Rajinder
killed Tonny by stuffing his mouth with a cloth and, kept the dead body in the Garage in their
house- and that that very night he and his father buried the dead body in the compound after
putting: it in a gunny bag. For the entire month after the, child was found missing and before his
body was discovered frantic efforts had been made by the distracted parents and grandfather of
Tonny to trace him but in vain,. Indeed, according to the prosecution, the two accused made a
show of taking part in the search for the boy.
The details, of the prosecution story are beat told by enumerating the circumstances on which
the prosecution relied to prove its case that Rajinder killed Tonny. (1) A few days before January
5, 1961 relations between Rajinder Kumar on the one hand and Tonny's father Ravinder Kumar
on the other had become strained because Rajinder had talked to Tonny's mother in a way

24
which her husband did not like and Ravinder asked Rajinder to stop his visits to their house.
After this Tonny who used to be a frequent visitor to Rajinder, whom he called "'uncle" also
stopped his visits for some days; but then three or four days before January 5, he resumed his
visits to Rajinder as Rajinder had been giving him sugar drops. (2) Tonny was last seen alive at
about 3-30. p. in. in Rajinder's house playing with Rajinder. (3) At that time Rajinder's wife, his
father, his sister and his servant Bhagat Ram were away from the house, Bhagat Ram having
been actually sent out by Rajinder at about 2-30 p. in. (4) At about 4 p. M. Tonny's mother
Sudha called out to Tonny after preparing the tea but not getting any response asked Rajinder
Kumar, whom she saw coming from the direction of the Garage as to where Tonny was. (5)
Rajinder Kumar said that Tonny had gone with his wife to the house of Jagdish Goyal.
Rajinder's wife came back to the house just at that time and in reply to Sudha said that Tonny
had not gone with her but had been playing about with her husband. Sudha then enquired again
from Rajinder about Tonny and he said Tonny might have gone to the shop of Baba to fetch a
toast. (6) At the same time Bhagat Ram returned with his cycle and wanted to keep it into the
Garage but finding that Rajinder had looked the Garage he asked him to open the lock but
Rajinder asked him to put the cycle in the house saying that he had put some important articles
in the Garage and so would not open the lock. (7) That night Bhagat Rain slept in the kitchen
and Rajinder Kumar who Lad gone out of the house after 4 O' clock pretending to take part in
the search for Tonny returned home at 12 midnight and put on the light in the kitchen where
Bhagat Ram had laid himself down and asked him why he had not gone to sleep. (8) At about 2
O' clock when Bhagat Ram came out to answer a call of nature he saw Rajinder and his father in
front of the Garage talking to each other but they kept quiet when he drew near. (9) Rajinder
remained outside the house for about another two hours during which Bhagat Ram was awake.
(10) On January 9, Rajinder met Raj Kumar a teacher in a primary school on the bridge in
Mohalla Jori Bhatia and asked for his assistance in removing the dead body of the child after
confessing to him that he had murdered him. (11) Rajinder was interrogated by the police on the
3rd and 4th February, and ultimately on the 5th February when he was taken by the Police to his
own house he made a statement that he had buried the dead body of the child at a distance of 6
to 7 ft. from the main gate towards the right, wrapped in a gunny bag close to the Gul Mohar
tree. (12) Then Rajinder Kumar pointed out a place, dug there about 4 ft. deep and Tonny's body
was found there in a gunny bag with his own garments on and with a banian thrust in his mouth.
(13) There was also a towel which has been identified by Bhagat Ram as belonging to the
accused Rajinder Kumar, inside the bag. (14) Human blood was detected on the banian towel
and the bag as also on the garments on the body of the child.

25
Both the accused pleaded not guilty and urged that they had been implicated falsely on
unjustified suspicion. The Trial Court as also the High Court found all the 14 circumstances
mentioned above fully established by evidence. Mr. Chari, who appeared before us, on behalf of
both the appellants, does not contest that if these circumstances have been proved they fully
justify the conclusion reached by the courts below. He, however, tried to persuade us that the
High Court, was wrong in finding some of the circumstances, at least, to have been proved. It
appears to us that if no other circumstances than the second, fifth and twelfth circumstances
mentioned above have been proved they are by themselves sufficient, without anything more, to
justify the conclusion that Rejinder Kumar murdered Tonny. If Tonny was last seen with him at
3. 30 p. m. on the 5th and the dead body is discovered in his own house buried under the earth
and this fact is known to him and it is further found that about 4 p. m., on the 5th he made
contradictory statements as to where Tonny had gone, these three circumstances are incapable
of explanation on any other reasonable hypothesis than that he killed the boy between 3.30 and
4 p.m. on that day and some time later buried, the body. Mr. Mari suggested that it might be
that Tonny was killed somewhere else by some unknown person and then that killer found some
opportunity of bringing the dead body into the appellant's house and buried it there. This
appears to us as an absurd suggestion hardly worth serious consideration. If somebody else
killed Tonny elsewhere, what could be the reason for. his taking the trouble of carrying the body
to the appellant's house and burying it there at the risk of being surprised by somebody before
he had finished the job ? Apart from that the fact remains, as proved beyond shadow of doubt,
that the place where the body had been buried was known to Rajinder and it was Rajinder
himself who dug the ground. at the right place for the recovery of the body. Mr.Chari drew our
attention to the statement of prosecution witness. No.. 5 Mrs. Gurdeep Kaur Girin that the
police came to the house of the accused two days before the recovery; of the child's deadbody
and that some pits were dug by the police on that day and. that Rajinder was with them. All the
police officers have denied that any digging was done before the 5th. It seems to us clear that
Mrs. Gurdeep Kaur while giving evidence in June 1961 has made a mistake about the date on
which she saw the digging being done. But even assuming that what she says was correct it
would, not show that Rajinder did not know the' place where the body had been kept;: it would;
merely show that. even then he was keeping quiet about it.
Some comment has been made by the learned Counsel on the failure of the- police to discover by
themselves during their numerous visits to the appellant's house that the ground was disturbed.
We find nothing surprising in this. Few people Dot even the police officers who had some suspi-

26
cion against the accused from the very commencement of the investigation would expect the
accused to be so daring as to bury the dead body in the compound of his own house. The fact
that any disturbed condition of the ground was not discovered by the police before the 5th
February can be therefore no ground for thinking, as the learned Counsel suggests, that the body
had been brought there from somewhere else shortly before the 5th. While we think the few
circumstances mentioned above are by themselves sufficient to justify the conviction of Rajinder
Kumar under s. 302 of the Indian Penal Code, we think it proper to add that nothing has been
shown to us that would justify us in interfering with the conclusion of the courts below that the
6th, 7th, 8th and the 9th circumstances mentioned above have also been proved. Mr. Chari
wanted us to believe that Bhagat Ram was taken into police custody on the 31st January and it is
strange that his statement was not recorded by the police before the 5th February. The High
Court has believed the evidence of the Inspector of Police, Ram Nath Paras, that Bhagat Ram
was not available at Patiala for recording of his statement till the 7th February, 1961 and we
cannot see anything that calls for our reappraisal of the evidence on this question. The criticism
levelled by Mr. Chari against the evidence of prosecution witnesses Raj Kumar and Mahabir
Dayal for proving the 10th circumstance mentioned above about Rajinder's extra-judicial
confession is more plausible. These two witnesses are on their own showing persons of shady
character and they would not, be above giving false evidence to oblige the police, if the police
wanted it. But, it is difficult to see why the police should think it necessary to secure the services
of these persons for giving false evidence when the practically conclusive evidence afforded by
the discovery of the dead body in the appellant's compound was already there. The story of the
extra-judicial confession of Rajinder Kumar, as given by Raj Kumar and supported by Mahabir
Dayal is therefore likely to, be true. But it is really unnecessary for the purpose of the present
case to examine the question further. For, any support from this 10th circumstance regarding
the extra-judicial confession is not needed by the prosecution.
What moved Rajinder Kumar to commit this dastardly deed is not clear. The strained relations
between Tonny's father Ravinder on the one hand and Rajinder on the 'Other because the
former had asked Rajinder to stop his visits as mentioned in the first circumstance specified
above does not explain his action. Let us assume, however, that even this evidence of strained
relations had not been given. That can be no reason for doubting the evidence, as regards the
other circumstances that has been adduced or for hesitating to draw the inescapable conclusion
from them. The motive behind a crime is a relevant fact of which evidence can be given. The
absence of a motive is a also a circumstance which is relevant for assessing the evidence. The

27
circumstances which have been mentioned above as proving the guilt of the accused Rajinder
are however not weakened at all by this fact that the motive has not been established. It often
happens that only the culprit himself knows what moved him to a certain course of action. This
case appears to be one like that.
We are satisfied that Rajinder Kumar has rightly been convicted under s. 302 of the Indian
Penal Code and sentenced to death.
The case against Jagdish Chander rests on Bhagat Ram's evidence. This witness, a youth of
seventeen, joined the service of the accused about 5 or 6 months before January 1961. He was a
servant in the house on the 5th January. He has given evidence that when on that day at about 9
or 10 p. m. he asked for the key of the Garage to bring out his bedding which was there the
appellant Jagdish said that he would do it himself and actually brought out the bedding. He has
further said that when at about 2 O'clock he got up to make water he saw Rajinder and his
father, walking about in front of the Garage, that they were talking to each other but kept quiet
when he went out; and also that he could not sleep for about a couple of hours after that and that
during all this time both the father and son-Rajinder and Jagdish--remained outside the house.
We have already stated above that there is no reason for us to interfere with the view taken by
the courts below that Bhagat Ram's evidence should be believed. Once that is believed the
conduct of Jagdish as proved by it becomes incapable' of explanation on any other reasonable
hypothesis than that after coming to know that Rajinder had murdered Tonny he helped
Rajinder in concealing the dead body by burying it underground. Mr. Chari suggested that
Rajinder might have told his father that the boy bad died accidentally on receiving an electric
shock and the learned Counsel drew our attention in this connection to the fact that an electric
wire made into a ring was found on the thumb of the dead body. The medical examination
shows however that this wire had nothing to (lo with the boy's death. Mr. Chari accepts that
position, but argues that still Rajinder might have falsely told his father that the death was due
to electrocution. There might have been some force in this argument were it not for the fact that
a blood-stained banian was found stuffed in the mouth of the boy and a blood-stained towel was
also found in the gunny bag. There is therefore no scope for the argument that Jagdish was
misinformed by his son Rajinder about how Tonny had met his death.
e circumstances that have been proved clearly establish the prosecution case that Jagdish after
knowing-on the January 5, 1961, that an offence had been committed by the murder of Tonny

28
caused some evidence of the commission of that offence to disappear with the intention of
screening the offender from legal punishment. He has therefore been rightly convicted under s.
204 of the Indian Penal Code and the sentence passed on him is proper.
The appeal is accordingly dismissed.
Appeal dismissed.

Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984


Equivalent citations: 1984 AIR 1622, 1985 SCR (1) 88
Author: S M Fazalali
Bench: Fazalali, Syed Murtaza
PETITIONER:
SHARAD BIRDHI CHAND SARDA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA

29

DATE OF JUDGMENT17/07/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1984 AIR 1622

1985 SCR

1984 SCC

1984 SCALE

(4) 116

(1) 88
(2)445

CITATOR INFO :
D

1988 SC1101 (22)

1990 SC

1991 SC 917 (37,42,50)

1991 SC1842 (6)

79 (21)

ACT:
Constitution of

India, 1950,

Article 136-Interference

by the Supreme Court with the concurrent findings of fact of


the

courts

circumstance

below,
like

normally
errors

not

of

permissible-Special
law, violation

of well

established principles of criminal jurisprudence etc. would


be necessary for interference.
Evidence-Circumstantial evidence,nature and proof ofConditions precedent

for conviction-Evidence

Act Section 3

(Act 1 of 1972).
Evidence-Circumstantial
Prosecution must

evidence-Onus

of

proof-

prove every link of the chain and complete

chain-Infirmity or lacuna in the prosecution cannot be cured


by false
pure moral

defence or

plea-A person

conviction-False

cannot be

explanation

can

convicted on
be

used

as

30

additional link to fortify the prosecution case, subject to


satisfaction of certain conditions.
Doctrine of

Proximity, concept

of, nature

and limits

explained-Admissibility of statements and dying declarations


under sections 8, 32 of the Evidence Act.
Murder by administration of
should be

looked into before a

poison-Circumstances that
conviction-Penal Code (Act

XLV of 1860) Section 300.


Evidence, appreciation
witnesses,

especially

deceased-Duty of

of-Evidence

that

of

close

the Court-Evidence

of

interested

relatives

Act (Act

of

the

of

1872)

Section 3.
Benefit of doubt-When

two

views

are

possible, one

leading to the guilt of the accused and the other leading to


his innocence, the benefit of doubt should go to the accused
entitling

his

acquittal-Evidence

Act

(Act I

of

1872)

Sections 101-104.
Examination of

the accused

under Section

313 of Crl.

P.C.-Circumstances not put to the accused to explain, cannot


be considered

for conviction-Code

ofCriminal

Procedure,

1973 (Act II of 1974) Section 313.

HEADNOTE:
The appellant,

Rameshwar, Birdhichand

Rambagas Sarda, were accused


Sessions Case

1, 2

and 3

Sarda, Ramvilas
respectively

in

No. 203 of 1982 on the file of the Additional

Sessions Judge, Pune. The


are the sons of

appellant and the second accused

one Birdhichand of Pune whose family has a

cloth business. In addition,

the appellant,

a graduate in

Chemical Engineering had


89
started a chemical factory at Bhosari, a suburb of Pune. The

31

third accused
accused. The

is uncle

of the appellant

appellant is

Manju while

the husband

the second

and the

second

of Manjushree alias

accused is

the husband of Anuradha

(P.W. 35). Birdhichand's family has its residential house at


Ravivar Peth

in Pune and owns a flat in a building known as

Takshasheela Apartments

in Mukund

the three

accused were

charged for

murder by

poisoning on

the night

the

newly

married

appellant herein
120B. Accused

wife

of

the

the alleged offence of


of 11/12.6.1982 of Manju

first

accused

and

the

under section 302 I.P.C. read with section

No, 3 was also charged under section 201 read

with Section

120B I.P.C.

The whole

circumstantial evidence
have been

Nagar area of Pune. All

case

vested

on

the

written by

based on certain letters alleged to


the deceased to some of the witnesses

and other statements of the deceased to them and the medical


report. On
found all

an appreciation
the three

them accordingly
s.302

I.P.C.

accused guilty

as charged,

convicted

and sentenced the appellant to death under

and

imprisonment for
under s.120B

of the evidence the trial court

all

the three

two years

I.P.C. but

and a

accused to

did not

fine of
award any

rigorous

Rs. 2,000

each

sentence under

s.201 read with s.120B.


The appellant

and the

other two accused file Criminal

Appeal No. 265/83 against their conviction and the sentences


awarded to

them.

The State filed

application for enhancement


accused 2

and 3.

The appeal

of

the

Criminal

sentence

Revision
awarded

as wellas Criminal Revision

application was heard along with confirmation case No. 3 of


1983 together by the Division Bench of the Bombay High Court
which allowed

the appellants

appeal in

part regarding his

conviction and sentence under s.120B I.P.C.


his conviction and sentence
302 I.P.C.,
and acquitted

allowed the
them

and

but confirmed

of death awarded under section

appeal of

accused 2 and 3 in full

dismissed

the

Criminal

Revision

to

32

Application. Hence

the appellant

alone has

come up before

the Supreme Court after obtaining Special Leave.


Allowing the appeal, the Court
^
HELD: (Per Fazal Ali, J.).
1:1. Normally,

the Supreme

Court does

not

interfere

with the concurrent findings of the fact of the courts below


in the absence of very special circumstances or gross errors
of law committed by
Court ignores

or

proved facts,

the High Court. But,

overlooks

or

the

violates

and

crying

where the High


circumstance

misapplies

the

and

well

established principles of criminal jurisprudence or decision


rendered by

this Court

on appreciation

of

circumstantial

evidence and refuses to give benefit of doubt to the accused


despite facts
own finding

apparent on
or tries

the face of the record or on its

to gloss over them without giving any

reasonable explanation or commits errors of law apparent on


the

face

of

the

record

which

results

in

serious and

substantial miscarriage of justice to the accused, it is the


duty of this Court

to step

in

and

correctthe

legally

erroneous decision of the High Court. [174E-G]


1:2. Suspicion,

however, great

it may be, cannot take

the place of legal proof. A moral conviction however, strong


or genuine

cannot amount

to a legal conviction supportable

in law. [174H]
1:3. The
'fouler the

well established
crime higher

rule of criminal justice is

the proof'.In the instant case,

the life and liberty of a subject was at


90
stake. As

the accused was given

careful cautious

a capital sentence a very

and meticulous approach necessarily had to

be made by the Court. [175A]


2:1. The
scope of

Indian law

dying declaration

on the question of the nature and


has made

a distinct

departure

33

from the English law where only the statement which directly
relate to the cause of death are admissible. The second part
of

cl.(1)

of s.32,

transaction which

viz,

"the

circumstances

of

the

resulted in his death, in cases in which

the cause of that person's death comes into question" is not


to be found in the English Law. [107F-G]
2:2. From a review
Courts and

the clear

of the

various authorities of the

language of

s.32(1) of Evidence Act,

the following propositions emerge: [108F]


(1) Section
and makes

32 is

an exception to the rule of hearsay

admissible the

whether the

death is

statement relates

a person

who dies.

a homicide or a suicide, provided the

to the

circumstances leading
Evidence Act,

statement of
cause of

death,

or

relates

to

to the death. In this respect, Indian

in view of the peculiar conditions

of

our

society and

the diverse nature and character of our people,

has thought

it necessary

to widen

the sphere

of s.32

to

avoid injustice. [108G-H]


(2) The

test of

proximity

cannot

be

too

literally

construed and practically reduced to a cut-and-dried formula


of

universal

application

so as

to be

confined

in

straitjacket. Distance of time would depend or very with the


circumstances of

each case.

logical clumination

of a

For instance, where death is a

continuous drama

and is, as it were, a finale of


regarding each step directly

long in process

the story, the statement

connected with the end of the

drama would be admissible because the entire statement would


have to be read

as on organic whole and not torn from the

context. Sometimes
immediate motive

statements relevant
may also

be admissible as being a part of

the transaction of death.

It is

statements come to

only

light

deceased who

speaks from

death takes

place within

to or furnishing an

manifest that
after

death. For

all

the
instance,

these

death

of the

where

a very short time of the marriage

the

34

or the distance of

time is

not spread

over more than 3-4

months the statements may be admissible under s.32. [109B-D]


(3) The

second part

of cl.1

of s.32

is yet

another

exception to the rule that in criminal law the evidence of a


person who

was

not

being subjected

to

or

given

an

opportunity of being cross-examined by the accused, would be


valueless because the place of cross-examination is taken by
the solemnity

and sanctity

of oath

for the

simple reason

that a person on the verge of death is not likely to make a


false statement unless there is strong evidence to show that
the statement

was secured

either by prompting or tutoring.

[109E-F]
(4) Section
includes suicide
be relevant

32 does

not speak

of homicide

alone but

also, hence all the circumstance which may

to prove

a case

of homicide

would be equally

relevant to prove a case of suicide. [109-G]


(5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and
91
which reveal

a tell-tale

story, the

said statement

would

clearly fell within the four corners of s.32 and, therefore,


admissible. The distance of

time alone in such cases would

not make the statement irrelevant. [109H]


Hanumant v. State of Madhya Pradesh [1952] S.C.R. 1091;
Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of
1958 decided
State of

on 4.11.58 =AIR 1958 SC 152; Ratan Gond v. The

Bihar [1959] SCR 1336;

Emperor AIR

1939 PC

Pakala Narayana

Swami v.

47; Shiv Kumar & Ors v. The State of

Uttar Pradesh

Crl. Appeal No. 55 of 1966 decided on 29.7.66

=(1966) Crl.

Appeal SC 281; and Protima Dutta & Anr. v. The

State, C.W.N. 713 referred to.


Manohar Lal
1373; Onkar

& Ors.

v. State

v. State

of Madhya

of Punjab [1981] Cr.L.J,


Pradesh [1974]

Crl.

L.J.

35

1200; Allijan

Munshi

Chinnavalayan

v.

v.

The State

State

AIR

1960

Bom. 290;

of Madras [1959] M.L.J. 246;

Rajindera Kumar v. The State AIR 1960 Punjab 310; and State
v. Kanchan Singh & Anr. AIR 1954 All. 153. approved.
Gokul Chandra

Chatterjee v.

The State,

AIR 1950 Cal.

306, overruled.
3:1. It is well settled that the prosecution must stand
or fall on its own legs
from the

weakness

and it cannot derive any strength

of the

defence.

However, where various links

in a

This

is

trite law.

chain are in themselves

complete, then a false plea or a false defence may be called


into aid only to lend assurance to the Court. In other words
before using
the links

the additional link it must be proved that all

in the

chain are complete and do not suffer from

any infirmity. It is
infirmity or
be cured

not the law that

lacuna in

or supplied

where there is any

the prosecution case the same could


by a false defence or a plea which is

not accepted by a Court. [162C-E]


3:2.

Before

additional link,

false

explanation

can

be

used

as

the following essential conditions must be

satisfied: [165E]
1. Various links in

the chain

of evidence led by the

prosecution have been satisfactorily proved; [165E]


2. The

said circumstance point to

the guilt

of

the

accused with reasonable definiteness and; [165G]


3. The

circumstances is

in proximity

to the time and

situation.[165H]
If these conditions are fulfilled only then a Court can
use a

false explanation or a false defence as an additional

link to lend as assurance to the Court and not otherwise. On


the facts
not appear
between an

and circumstances
to be

such a

incomplete

circumstance, which,

of the

present case this does

case. There is a vital difference


chain

after the

of

circumstances

and

chain is complete, is added

36

to it merely to reinforce the conclusion of the court. Where


the prosecution is enable
principles laid down in

to prove
Hanumant's

any of
case

the

essential

the

High

Court

cannot supply the weakness or the lacuna by taking aid of or


recourse to a false defence or a false plea. [166A; 166D-E]
92
3:3. Before

case

against

circumstantial evidence
the following

anaccused vesting

on

can be said to be fully established

conditions must be fulfilled as laid down in

Hanumat's v. State of M.P. [1953] SCR 1091. [163C]


1. The circumstances from which the conclusion of guilt
is to be drawn should be fully established; [163D]
2. The

facts so

established should be consistent with

the hypothesis of guilt


they should

not be

and the

explainable

accused, that
on

any

other

is to say,
hypothesis

except that the accused is guilty; [163G]


3. The

circumstances should

be of a conclusive nature

and tendency;[163G]
4. They should exclude every possible hypothesis except
the one to be proved; and [163H]
5. There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the

innocence of the accused and must show that in all

human probability

the act

must

have been

done

by the

accused. [164B]
These five golden principles constitute the panchsheel
of the proof of a case based on circumstantial evidence and
in the absence of a corpus deliciti. [164B]
Hanumant v.
1091; Tufail

The State

of Madhya Pradesh [1952] SCR

(Alias) Simmi v. State of Uttar Pradesh [1969]

3 SCC 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656;


and Shivaji

Sahabrao Babode

& Anr. v. State of Maharashtra

[1973] 2 SCC 793 referred to.


3:4. The

cardinal principle

of criminal jurisprudence

37

is that a case can be said to be proved only when there is


certain and

explicit evidence and no pure moral conviction.

[164F]
The King

v. Horry

[1952] N.Z.L.R.

III quoted with

approval.
Hanumant v. State of M.P. [1952] S.C.R. 1091; Dharambir
Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958
decided on 4.11.58); Chandrakant Nyslchand Seth v. The State
of Bombay

(Criminal Appeal

No.

120

of

19.2.58) Tufail (alias) Simmi v. State


S.C.C. 198;

Ramgopal v.

656; Naseem

Ahmed v.

694/696 Mohan

Delhi

of U.P.

decided
[1969]

Maharashtra AIR

Administration

Lal Pangasa

1144/46; Shankarlal
[1981] 2

State of

1957

v. State

[1974]

on

1972 SC
2

SCR

of U.P. A.I.R. 1974 SC

Gyarasilal Dixit v State of Maharashtra

SCR 384/390;

and M.C.

Agarwal

v.

State

of

Maharashtra [1963] 2 SCR 405/419 referred to.


Denonandan Mishra v The

State of Bihar [1955]

2 SCR

570/582 distinguished.
Some of
with the

the statements

which have a causal connection

death of Manju or the circumstances leading to her

death are undoubtedly admissible


93
under section
which do

32 of

the Evidence

Act but other statements

not bear any proximity with the death or if at all

very remotely

and indirectly connected with the death would

not be admissible. [121H]


3.5. In
any person

view of
in the

stated to

them at

unconsciously

deceased would create a


supposed murderer,

the witness would naturally

exaggerate or

and no one can help it.


but even

relationship and affection

position of

have a tendency to
have been

the close

add facts

which may not

all. This is human phychology

Not that this is done consciously


the

love

and affection

for the

phychological hatred against the

the court has to examine the evidence of

38

interested witnesses

with very great care and caution. Even

if the witnesses were speaking a


perhaps the

part

of

the

truth

or

whole of it they would be guided by a spirit of

revenge or

nemesis against

the accused

process certain facts which


stated may

person and in this

may not or could not have been

be imagined to have been stated unconsciously by

the witnesses in order to see that the offender is punished.


[122C-D]
3.6. A

close and careful scrutiny

the witness

(PWs 2,

deceased and

of the evidence of

3, 4 and 5) who are close relatives or

conspicuously reveals

a story

which is quite

different from the one spelt out from the letters (Exhs. 30,
32 and 33). In fact, the
tell particularly

letters have a different tale to

in respect

of certain matters. They are:

[138D]
(i) There is absolutely

no reference to suicidal pact

or the circumstances leading

to the same; (ii) There is no

reference even to Ujvala


appellant; (iii)
deceased was
was sent

There is

and her illcit relations with the

not at

no mentionof the fact that the

all willing to go to Pune and that she

by force;

(iv) The complaints made in the letters

are confined to ill-treatment, loneliness, neglect and anger


of the husband but no apprehension has been expressed in any
of the letters that the deceased expected imminent danger to
her life

from her

husband; (v) In fact, in the letters she

had asked

her sister

plight to

her parents but while narrating the facts to her

parents, she

and friend

not to

herself violated the said

disclose her

emotional

and

promise

which appears to be too good to be true and an after thought


added to

strengthen the prosecution case; and (vi) If there

is anything
her miserable

inherent in
existence

husband, Manju might have


rather than

bother her

the letters
and

gross

it is that because of
ill-treatment

by

her

herself decided to end her life,


parents. Therefore, these witnesses

39

are not totally dependable so as to exclude the possibility


of suicide and to come to an irresistible inference, that it
was the appellant who had murdered
good part

of the

the deceased. Though a

evidence is undoubtedly admissible,

probative value is precious

little in

its

view of the several

improbabilities, [138E-H; 139A-B]


4.1. It

is well-settled that where on the evidence two

possibilities are available or open one which goes in favour


of the prosecution and the other which benefits an accused,
the accused is undoubtedly entitled to the benefit of doubt.
[166H]
94
In the

the evidence

are possible-one

pointing to

two views

instant case,

accused and

the other leading to

very likely

that the

poison (potassium

clearly shows that


the guilt

of

the

his innocence. It may be

appellant may

have administered

the

fair possibility

cyanide) to Manju but at the same time a


that she

herself committed suicide cannot

be safely

excluded or eliminated. Hence,

alone the

appellant is

entitled to

on this

ground

the benefit

of

doubt

resulting in his acquittal. [168B]


4.2. In

the cases

of murder

by administering poison,

the Court must carefully scan the evidence and determine the
four important circumstances which
conviction: (1) There is
administer poison

to the

died of poison said


the accused

a clear

alone can justify the


motive for an accused to

deceased; (ii)

to have

that the deceased

been administered; (iii) that

had the poison in his possession; and (iv) that

he had an opportunity to

administer the

poison

to the

accused. [167F-H]
4.3. In the instant case, taking an over all picture on
this part

of the

prosecution case the position seems to be

as follows: [150D]
1. If the accused wanted to give poison while Manju was

40

wide

awake,

she

resistance as
done. Dr.
any

would

have

any other

put

person in

up

stiffest

possible

her position would have

Banerjee in his postmortem report has not found

mark

of violence

or

resistance

overpowered by the appellant

she would

cried and

from

attracted persons

even if

she was

have shouted and

the

neighbouring

flats

which would have been a great risk having regard to the fact
that some of the inmates of the house had come only a shortwhile before the appellant. [150E-F]
2. Another possibility which
that potassium cyanide may
glass of

water if

a chemist

suspected some foul play


would be

ruled out

have been given to

she happened

was so, she being


arisen it

cannot be

is

Manju in a

to ask for it. But if this

herself would

have

at

once

and once her suspicion would have

very difficult

for

the

appellant

to

murder her. [150G]


3. The

third possibility is that as Manju had returned

pretty late

to the

flat and

the arrival

of the

appellant and

forcibly

to

administer

have been

but this

opinion of

High

Court,

discussion

after
of the

proved or

died by
at any

in a

in which

the process

of

the deceased

position to offer any resistance

doctor, has
a

not been

very

accepted by the

elaborate

consideration

circumstances

found that

the opinion

mechanical
rate it

must have tried

case alone

evidence, the

medical authorities,
that Manju

then he

the poison by

mechanical suffociation,
could not

she went to sleep even before

safe

to

the

of the doctor

suffocation

is not

and

rely

had

not been

on

such

evidence. [150H; 151A-C]


4. The other possibility that may be thought of is that
Manju died

a natural death. This also is eliminated in view

of the report of

the Chemical Examiner as confirmed by the

postmortem

the deceased

that

died as

administration of potassium cyanide. [152B]

and

a result

of

41

95
5. The

only other

reasonable possibility that remains

is that as the deceased was fed up with the maltreatment by


her husband,

in a

combined spirit of revenge and hostility

after entering the flat


and lay limp and

she herself took potassium cyanide

lifeless. When

the appellant entered the

room he must have thought that as she was sleeping she need
not be disturbed but
movement in

when

he

found that

there

was

no

the body after an hour his suspicion was roused

and therefore

he called

his brother from the adjacent flat

to send for Dr. Lodha. [152C-D]


In these

circumstances,

reasonable possibility of

it

cannot

the deceased

be

said

having

that

committed

suicide as alleged by the defence cannot be safely ruled out


or eliminated. It is
appellant having

clear that

been last

the circumstances

of the

seen withthe deceased and has

administered the opinion has not been proved conclusively so


as to raise an irresistible inference that Manju's death was
a case of blatant homicide. [152E-F]
Further, in
quite natural

a matter

of this

for the members of

their own

family doctor

with the

ailment of

every member

his brother

was nothing

went to

would

be

the appellants family to

send for

circumstances there

magnitude it

who was fully conversant


of the

family. In these

wrong if the appellant and

a distance of one and a half kilometer

to get. Dr. Lodha. Secondly, Dr. Shrikant Kelkar was a skin


specialist

whereas

Paediatrician and

Dr.

(Mrs,)

Anjali

Kelkar

was

the appellant may have genuinely believed

that as they belonged to different branches, they were not


at all suitable to

deal with such a serious case. The High

Court was,

therefore, wrong

namely not

calling the

in treating
two Doctors

this circumstance
in

the

flat,

incriminating conduct of the appellant. [157B-D]


The circumstances which were

not put to the appellant

as

an

42

in his examination under


Code must

S. 313

of the Criminal Procedure

be completely excluded from considerating because

the appellant did not have any chance to explain them. Apart
from the

aforesaid comments

some of the circumstances


namely circumstances

there isone vital

relied upon

Nos. 4,

defect in

by the High

Court

5, 6, 8, 9, 11, 12,13, 16 and

17. [160B; 159B-C]


Fateh Singh
AIR

1953

Bhagat Singh v. State

SCR 468

Maharashtra 1976

; Shamu Balu

of Madhaya Pradesh

Chagule

v.

State

of

1 SCC 438 and; Harijan Meha Jesha v. State

of Gujarat AIR 1979 SC 1566 referred to.


6. Viewing the entire evidence, the circumstance of the
case and

the interpretation of the decisions of the Supreme

Court the

legal and

golden principles

factual position are (i) that the five

Hanumant v.

enunciated

by

the

Supreme

Court

in

The State of M.P. [1952] SCR 1091 have not been

satisfied in

the instant

follows that

cannot be

case. As

a logical corollary, it

held that

the act

of the

accused

cannot be explained on any other hypothesis except the guilt


of the appellant nor

can it

be said that

in

all

human

probability, the

accused had committed the murder of Manju.

In other

the

words,

prosecution

has

not

fulfilled the

essential requirements of a criminal case which rests purely


on circumstantial

evidence; (ii)

From the

recital in

the

letters Ex. P30, Ex-P32 and Ex-P33 it can be safely held


96
that there
part

of

was a
the

clear possibility

deceased

Manju to

desperation and frustration. She


married life,

husband bring

unfortunately

tendency on the

commit

seems to

suicide

due

to

be tried of her

but she still hoped against hope that things

might improve. She solemnly


with her

and a

it

seems

believed that
health and

to

have

ended

her holy

union

happiness to
in

her but

melancholy

marriage which left her so lonely and frustrated so much of

43

emotional disorder
that she

resulting from frustration and pessimism

was forced

that Manju

to end her life. There can be no doubt

was not

was extremely

only a

sensitive and sentimental women

impressionate and

the letters

show

that

constant conflict between her mind and body was going on and
unfortunately the

circumstances whichcame into

existence

hastened her end. People with such a psychotic philosophy or


bent of mind always dream of an ideal and if the said ideals
fails, the
feel that

failure drives
no

charm

is

them to end their life, for they


left in

prosecution has miserably failed


essential

ingredients

administration of
(either by

of

their

to prove

case

(iii)

the

prosecution must

appreciating

the

evidence,

The

one of the most

death

caused

by

possession with the accused

circumstantial evidence)

ground alone

misdirected itself

of

poison i.e..

direct or

life;

the

fails.

(iv)

High

and on this
That

is

Court has

clearly

on many points, and has thus committed a

gross error of law; (iv) That the High Court has relied upon
decisions of

this Court

which are

either in applicable or

which, on closer examination, do not support the view of the


High Court being clearly distinguishable; (vi) That the High
Court has

taken a

completely wrong

that even

though the

view of law in holding

prosecution maysuffer from

serious

infirmities it could be reinforced by additional link in the


nature of

false defence

in order

to supply the lacuna and

has thus

committed a

fundamental error

or law; (vii) That

the High

Court has not only misappreciated the evidence but

has completely overlooked the well established principles of


law and has merely

tried to

accept the

prosecution

case

based on tenterhooks and slender tits and bits; (viii) It is


wholly unsafe
Banerjee (PW

to rely on that part of the evidence of Dr.


33)

which

shows

that

poison

was

forcibly

administered by the process of mechanical suffociation; (ix)


There is no manifest defect in the investigation made by the

44

police which
positive

appears to

of

Birdichand

this
and

be honest

fact

is

other members

had to

even

though

Rameshwar

his

family

who

of

practically no role to play had


but they

careful.

that

and

proof
had

been arraigned as accused

be acquitted by the High Court for lack of

legal evidence; (x) That

in view of the findings two views

are clearly

the present

possible in

case, the question of

defence being false does not arise. [172E-H; 173A-H; 174A-D]


Per Varadarajan, J.
(Per contra on facts.)
1:1. The

three letters Exh. P 30, Exh. P 32 and Exh. P

33 and the oral

evidence of

PWs. 2, 3, 5,

6, and 20 are

inadmissible in evidence under section 32(1) of the Evidence


Act. There

is no acceptable evidence on record to show that

either the

appellant or

desceased Manju and that


intimacy with

PW 37

his

parents

the appellant

Ujvala. The

ill-treated
had any

the

illicit

alleged oral statement of

Manju and what she has stated in her letters Exh. 30, 32 and
33 may relate to
bearing on

matters

the cause

perhaps

or the

having

avery

circumstances of

remote
her

death.

Those circumstances do not have any proximate


97
relation to the actual occurrence resulting in her death due
to potassium
of

cyanide poison though for instance in the case

prolonged

poisoning

they

may

relates

to

dates

considerably distant from the date of the actual fatal dose.


They are

general impressions

suspicion, whether

of a

of Manju

indicating fear

particular individual or otherwise

and not directly related to the occasion or her death. It is


not the case of the prosecution either that the present case
is one of porlonged poisoning. [187B; 190D-F]
1: 2.

The fact

that the High court

case of the prosecution


evidence that

it was

has rejected the

based on Dr. Banerjee's report and

also a case of mechanical suffocation

or

45

is not one that

could be

taken into consideration

as

mitigating circumstance in judging the conduct of the doctor


who had conducted the autopsy in a case of suspicious death.
The

conduct

of

the

interpolations in
appellant has
below

doctor in

tempered with

certain

later

the case of suspicious death in which the

been sentenced

deserves

making

serious

to death

by the two

condemnations.

material evidence

in

the

courts

The

doctor has

case

of

alleged

murder may be at the instance of somebody else, ignoring the


probable consequences of his act. In these circumstances Dr.
Banerjee PW

33 is

any serious

and responsible work such as conducting autopsy

in public

person who should not be entrusted with

interest. In

this case

the appellant would have

gone to gallows on the basis of the evidence of PW 33 as he


would have

the Court to believe it, and the other evidence,

if they had been accepted. [193D-H]


1: 3.

Section 313

Criminal Procedure

Code lays down

that in every inquiry or trial for the purpose of enabling


the accused personally to explain any circumstance appearing
in the evidence against
without previously

him, the

court may

warning the

at any

stage

accused, put such questions

to him as the court considers necessary and shall, after the


witnesses for
he is

the prosecution have been examined and before

called for his defence, question him generally on the

case. Hence the evidence on the basis on which question Nos.


25, 30, 32, and

115 have

wholly irrelevant

as these

been put

to the

questions do

circumstance appearing in the against the


learned Additional

Sessions Judge

appellant

are

not relate to any


appellant.

was

bound to

The
exercise

control over the evidence being tendered in his court and to


know the

scope of

the examination

of

the

accused

Section 313 Criminal Procedure Code [195A-C]


Per Sabyasachi Mukharji, J. (Concurring)
Though the test of

proximity cannot and should not be

under

46

two literally construed and be reduced practically to a cutand-dried formula

of

emphasised

wherever

that

universal

application,

it

is

it

extended

must

be

beyond the

immediate, it should be explained and must be done with very


great caution

and care.

be laid down for

As a general proposition it cannot

all purposes

death takes

place within

distance of

time is

that for instance where the

a short

not spread

the statement

would be

evidence Act.

This is always not

very

exceptional

time of marriage and the


over three or four months,

admissible under

circumstances

admissible and that too

so and

Section 32 of the

cannot be so. In

such

statements

may

be

namely raising some doubt

not for proving the positive fact,


about the

guilt of

the accused

[197D-F]
98

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 745 of 1983 From the Judgment
and Order dated the 20th, 21st, 22nd, 23rd September 1983 of the Bombay High Court in
Criminal Appeal No. 265 of 1983 with confirmation case No. 3/83.
Ram Jethmalani, M.S. Ganesh, F. N. Ranka and Ms. Rani Jethmalani for the Appellant.
K.G. Bhagat, Addl. Solicitor General, M.N. Shroff and U.A. Jadhavrao for the Respondent.
The following Judgments were delivered FAZAL ALI, J. This is rather an unfortunate case where
a marriage arranged and brought about through the intervention of common friends of the
families of the bride and bridegroom though made a good start but ran into rough weather soon
thereafter. The bride, Manju, entertained high hopes and aspirations and was not only hoping
but was anxiously looking forward to a life full of mirth and merriment, mutual love and
devotion between the two spouses. She appears to be an extremely emotional and sensitive girl

47
at the very behest cherished ideal dreams to be achieved after her marriage, which was
solemnised on February 11, 1982 between her and the appellant, Sharad Birdhichand Sarda.
Soon after the marriage, Manju left for her new marital home and started residing with the
appellant in Takshila apartments at Pune. Unfortunately, however, to her utter dismay and
disappointment she found that the treatment of her husband and his parents towards her was
cruel and harsh and her cherished dreams seem to have been shattered to pieces. Despite this
shocking state of affairs she did not give in and kept hoping against hope and being of a very
noble and magnanimous nature she was always willing to forgive and forget. As days passed by,
despite her most laudable attitude she found that "things were not what they seem" and to quote
her own words "she was treated in her husbands house as a labourer or as an unpaid maidservant". She was made to do all sorts of odd jobs and despite her protests to her husband
nothing seems to have happened. Even so, Manju had such a soft and gentle frame of mind as
never to complain to her parents-in-law, not even to her husband except sometimes. On finding
things unbearable, she did protest, and ex pressed her feelings in clearest possible terms, in a fit
of utter desperation and frustration, that he hated her. Not only this, when she narrated her
woeful tale to her sister Anju in the letters written to her (which would be dealt with in a later
part of the judgment), she took the abundant care and caution of requesting Anju not to reveal
her sad plight to her parents lest they may get extremely upset, worried and distressed.
Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and
she thought that a point of no-return had reached. At last, on the fateful morning of June
12,1982, i.e., nearly four months after her marriage, she was found dead in her bed.
As to the cause of death, there appears to be a very serious divergence between the prosecution
version and the defence case. The positive case of the prosecution was that as the appellant was
not at all interested in her and had illicit intimacy with another girl, Ujvala, he practically
discarded his wife and when he found things to be unbearable he murdered her between the
night of June 11 and 12, 1982, and made a futile attempt to cremate the dead body. Ultimately,
the matter was reported to the police. On the other hand, the plea of the defence was that while
there was a strong possibility of Manju having been ill-treated and uncared for by her husband
or her in-laws, being a highly sensitive and impressionate woman she committed suicide out of
sheer depression and frustration arising from an emotional upsurge. This is the dominant issue
which falls for decision by this Court.

48
Both the High Court and the trial court rejected the theory of suicide and found that Manju was
murdered by her husband by administering her a strong dose of potassium cyanide and relied
on the Medical evidence as also that of the chemical examiner to show that it was a case of pure
and simple homicide rather than that of suicide as alleged by the defence. The High Court while
confirming the judgment of the trial court affirmed the death sentence and hence this appeal by
special leave.
Before discussing the facts of the case, it may be mentioned that although the High Court and
the trial court have gone into meticulous and minutest matters pertaining to the circumstances
leading to the alleged murder of Manju, yet after going through the judgments we feel that the
facts of the case lie within a very narrow compass.
The story of this unfortunate girl starts on 11.2.1982 when her marriage was solemnised with the
appellant preceded by a formal betrothal ceremony on 2.8.8. after the marriage, Manju, for the
first time, went to her parents' house on 22.2.82 for a very short period and returned to Pune on
26.2.82. It is the prosecution case that on 17.3.82 the appellant had called Manju at Pearl Hotel
where he introduced her to Ujvala and told her that she must act according to the dictates and
orders of Ujvala if she wanted to lead a comfortable life with her husband. In other words, the
suggestion was that the appellant made it clear to his wife that Ujvala was the real mistress of
the house and Manju was there only to obey her orders. After this incident, Manju went to her
parents' house on 2.4.82 and returned to Pune on 12.4.82. This was her second visit. The third
and perhaps the last visit of Manju to her parents' house was on 25.5.82. from where she
returned to Pune on 3.6.82, never to return again. The reason for her return to Pune was that
her father-in-law insisted that she should return to Pune because the betrothal ceremony of
Shobha (sister of the appellant) was going to be held on 13.6.82.
The last step in this unfortunate drama was that Manju, accompanied by Anuradha (wife of A-2)
and her children, returned to the flat on 11.6.82 near about 11.00 p.m. Her husband was not in
the apartment at that time but it is alleged by the prosecution that he returned soon after and
administered potassium cyanide to Manju. Thereafter, the appellant went to his brother,
Rameshwar who was also living in the same flat and brought Dr. Lodha (PW 24) who was living
at a distance of 11/2 Kms from Takshila Apartments. At the suggestion of Dr. Lodha Dr. Gandhi
(PW 25) was also called both and of them found that Manju was dead and her death was an
unnatural one and advised the body to be sent for postmortem in order to determine the cause

49
of death. Ultimately, Mohan Asava (PW 30) was approached on telephone and was informed
that Manju had died at 5.30 a.m. Subsequently, the usual investigation and the postmortem
followed which are not very germane for our purpose at present and would be considered at the
appropriate stage.
The plea of the appellant was that Manju was not administered potassium cyanide by him but
she appears to have committed suicide out of sheer frustration. In order to prove his bona fide
the accused relied on the circumstances that as soon as he came to know about the death of his
wife he called two Doctors (PWs 24 & 25) and when they declared that Manju had died an
unnatural death, as the cause of death was not known, and therefore the body had to be sent for
postmortem, he immediately took steps to inform the police. He flatly denied the allegation of
the prosecution that there was any attempt on his part to persuade Mohan Asava (PW 30) to
allow the body of the deceased to be cremated.
We might state that the High Court has mentioned as many as 17 circumstances in order to
prove that the circumstantial evidence produced by the prosecution was complete and
conclusive, Some of 13 these circumstances overlap, some are irrelevant and some cannot be
taken into consideration because they were not put to the appellant in his statement under s. 313
of the Code of Criminal Procedure in order to explain the effect of the Code of Criminal
Procedure in order to explain the effect of the same as we shall presently show.
The law regarding the nature and character of proof of circumstantial evidence has been settled
by several authorities of this Court as also of the High Courts, The locus classicus of the decision
of this Court is the one rendered in the case of Hanumant v. The State of Madhya Pradesh where
Mahajan, J. clearly expounded the various concomitants of the proof of a case based purely on
circumstantial evidence, and pointed out thus:
"The circumstances should be of a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved..... it must be such as to show that
within all human probability the act must have been done by the accused."
This decision was followed and endorsed by this Court in the case of Dharambir Singh v. The
State of Punjab. We shall however discuss Hanumant's case fully in a later part of our judgment.
Coming now to the question of interpretation of sec. 32(1) of The Evidence Act, this Court in the
case of Ratan Gond v. State of Bihar S.K. Das, J. made the following observations:

50
"The only relevant clause of s. 32 which may be said to have any bearing is cl.(1) which relates to
statements made by a person as to the cause of his death or as to any of the circumstances of the
transaction which resulted in his death. In the case before us, the statements made by Aghani do
not relate to the cause of her death or to any of the circumstances relating to her death; on the
contrary, the statements relate to the death of her sister." In the 'Law of Evidence' by Woodroffe
& Ameer Ali (Vol. II) the authors have collected all the cases at one place and indicated their
conclusions thus: "To sum up, the test of the relevancy of a statement under Section 32(1), is not
what the final finding in the case is but whether the final finding in the case is but whether the
cause of the death of the person making the statement comes into question in the case. The
expression 'any of the Circumstances of the transaction which resulted in his death'; is wider in
scope than the expression 'the cause of his death'; in other words, Clause (1) of Section 32 refers
to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2)
the statement made by a person as to any of the circumstances of the transaction which resulted
in his death. The words, 'resulted in his death' do not mean 'caused his death', Thus it is well
settled that declarations are admissible only in so far as they point directly to the fact
constituting the res gestae of the homicide; that is to say, to the act of killing and to the
circumstances immediately attendant thereon, like threats and difficulties acts, declarations and
incidents, which constitute or accompany and explain the fact or transaction in issue.
They are admissible for or against either party, as forming parts of the res gestae."
(P. 952) It would appear that the solid foundation and the pivotal pillar on which rests the
edifice of the prosecution may be indicated as follows:(1) Written dying declaration by the deceased in her letters, two of which were addressed to her
sister Anju and one her friend Vahini, (2) The oral statements made by the deceased to her
father (PW 2), mother (PW 20), Sister (PW 6) and her friend (PW 3) and also to PWs 4 and 5
showing her state of mind shortly before her death and the complaints which she made
regarding the ill- treatment by her husband, (3) evidence showing that the appellant was last
seen with the deceased in the room until the matter was reported to the police.
(4) the unnatural and incriminating conduct of the appellant, (5) the medical evidence taken
alongwith the Report of the chemical examiner which demonstrably proves that it was a case of
homicide, completely rules out the theory of suicide as alleged by the appellant.

51
Mr. Jethmalani, learned counsel for the appellant, has vehemently argued that there was a very
strong possibility of the deceased having committed suicide due to the circumstances mentioned
in her own letters. He has also questioned the legal admissibility of the statements contained in
the written and oral dying declarations. He has submitted that the so-called dying declarations
are admissible neither under s. 32 nor under s.8 of the Evidence Act it was submitted by the
appellant that the present case is not at all covered by cl.(1) of s. 32 of the Evidence Acts.
The leading decision on this question, which has been endorsed by this Court, is the case of
Pakala Narayana Swami v. Emperor where Lord Atkin has laid down the following tests:
"It has been suggested that the statement must be made after the transaction has taken place,
that the person making it must be at any rate near death, that the "circumstances" can only
include the acts done when and where the death was caused. Their Lordships are of opinion that
the natural meaning of the words used does not convey any of these limitations. The statement
may be made before the cause of death has arisen, or before the deceased has any reason to
anticipate being killed. The circumstances must be circumstances of the transaction: general
expressions indicating fear or suspicion whether of a particular individual or otherwise and not
directly related to the occasion of the death will not be admissible----------- Circumstances of the
transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the
analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on
the other hand narrower than "res gestae". Circumstances must have some proximate relation to
the actual occurrence. ----------It will be observed that "the circumstances are of the transaction
which resulted in the death of the declarant."
These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar &
Ors v. The State of Uttar Pradesh where the following observations were made:
"It is clear that if the statement of the deceased is to be admissible under this section it must be a
statement relating to the circumstances of the transaction resulting in his death. The statement
may be made before the cause of death has arisen, or before the deceased has any reason to
anticipate being killed,---------A necessary condition of admissibility under the section is that
the circumstance must have some proximate relation to the actual occurrence---------- The phrase "circumstances of the transaction" is a phrase that no doubt conveys some
limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes

52
evidence of all relevant facts. It is on the other hand narrower than "res gestae" (See Pakala
Narayana Swami v. The King Emperor AIR 1939 PC 47).
The aforesaid principles have been followed by a long catena of authorities of almost all the
courts which have been noticed in this case. To mention only a few important once, in Manoher
Lal & ors. v. The State of Punjab, the Division Bench of the Punjab & Haryana High Court
observed thus:
The torture administered sometimes manifests itself in various forms. To begin with, it might be
mental torture and then it may assume the form of physical torture. The physical harm done to
the victim might be increased from stage to stage to have the desired effect. The fatal assault
might be made after a considerable interval of time, but if the circumstances of the torture
appearing in the writings of the deceased come into existence after the initiation of the torture
the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act."
We fully agree with the above observations made by the learned Judges. In Protima Dutta &
Anr. v. The State while relying on Hanumant's case (supra) the Calcutta High Court has clearly
pointed out the nature and limits of the doctrine of proximity and has observed that in some
cases where there is a sustained cruelty, the proximity may extend even to a period of three
years. In this connection, the High Court observed thus:
"The 'transaction' in this case is systematic ill treatment for years since the marriage of Sumana
with incitement to end her life. Circumstances of the transaction include evidence of cruelty
which produces a state of mind favourable to suicide. Although that would not by itself be
sufficient unless there was evidence of incitement to end her life it would be relevant as
evidence.
This observation taken as a whole would, in my view, imply that the time factor is not always a
criterion in determining whether the piece of evidence is properly included within
"circumstances of transaction. "--------"In that case the allegation was that there was sustained
cruelty extending over a period of three years interspersed with exhortation to the victim to end
her life." His Lordship further observed and held that the evidence of cruelty was one
continuous chain, several links of which were touched up by the exhortations to die. "Thus
evidence of cruelty, ill treatment and exhortation to end her life adduced in the case must be

53
held admissible, together with the statement of Nilima (who committed suicide) in that regard
which related to the circumstances terminating in suicide."
Similarly, in Onkar v. State of Madhya Pradesh while following the decision of the Privy Council
in Pakala Narayana Swami's case (supra), the Madhya Pradesh High Court has explained the
nature of the circumstances contemplated by s. 32 of the Evidence Act thus:
"The circumstances must have some proximate relation to the Actual occurrence and they can
only include the acts done when and where the death was caused.------- Thus a statement merely
suggesting motive for a crime cannot be admitted in evidence unless it is so intimately
connected with the transaction itself as to be a circumstance of the transaction. In the instant
case evidence has been led about statements made by the deceased long before this incident
which may suggest motive for the crime."
In Allijan Munshi v. State, the Bombay High Court has taken a similar view.
In Chinnavalayan v. State of Mad ras two eminent Judges of the Madras High Court while
dealing with the connotation of the word 'circumstances' observed thus:
"The special circumstance permitted to transgress the time factor is, for example, a case of
prolonged poisoning, while the special circumstance permitted to transgress the distance factor
is, for example, a case of decoying with intent to murder. This is because the natural meaning of
the words, according to their Lordships, do not convey any of the limitations such as that the
statement must be made after the transaction has taken place, that the person making it must be
at any rate near death, that the circumstances can only include acts done when and where the
death was caused. But the circumstances must be circumstances of the transaction and they
must have some proximate relation to the actual occurrence."
In Gokul Chandra Chatterjee v. The State the Calcutta High Court has somewhat diluted the real
concept of proximity and observed thus:
'In the present case, it cannot be said that statements in the letters have no relation to the cause
of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the
statements in my view have not that proximate relation to the actual occurrence as to make

54
them admissible under s. 32(1), Evidence Act. They cannot be said to be circumstances of the
transaction which resulted in death."
We, however, do not approve of the observations made by the High Court in view of the clear
decision of this Court and that of the privy Council. With due respect, the High Court has not
properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are,
therefore, of the opinion that this case does not lay down the correct law on the subject.
Before closing this chapter we might state that the Indian law on the question of the nature and
scope of dying declaration has made a distinct departure from the English law where only the
statements which directly relate to the cause of death are admissible. The second part of cl.(1) of
32, viz. "the circumstances of the transaction which resulted in his death, in cases in which the
cause of that person's death comes into question" is not be found in the English law. This
distinction has been clearly pointed out in the case of Rajindera Kumar v. The State where the
following observations were made:
"Clause (1) of s. 32 of the Indian Evidence Act provides that statements, written or verbal, of
relevant facts made by a person who is dead,--------are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in case, in which the cause of that
person's death comes into question.---------- It is well settled by now that there is difference
between the Indian Rule and the English Rule with regard to the necessity of the declaration
having been made under expectation of death.
In the English Law the declaration should have been made under the sense of impending death
whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that
the deceased at the time of making it should have been under the expectation of death.
And in the case of State v. Kanchan Singh & Anr. it was observed thus:
"The law in India does not make the admissibility of a dying declaration dependent upon the
person's having a consciousness of the approach of death. Even if the person did not apprehend
that he would die, a statement made by him about the circumstances of his death would be
admissible under s. 32. Evidence Act.

55
In these circumstances, therefore, it is futile to refer to English cases on the subject.
Thus, from a review of the authorities mentioned above and the clear language of s.32(1) of the
Evidence Act, the following propositions emerge:(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a
person who dies, whether the death is a homicide or a suicide, provided the statement relates to
the cause of death, or exhibits circumstances leading to death. In this respect, as indicated
above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse
nature and character of our people, has thought it necessary to widen the sphere of s.32 to avoid
injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a
cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of
time would depend or vary with the circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process and is, as it were, a finale of the story,
the statement regarding each step directly connected with the end of the drama would be
admissible because the entire statement would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or furnishing an immediate motive may also
be admissible as being a part of the transaction of death. It is manifest that all these statements
come to light only after the death of the deceased who speaks from death. For instance, where
the death takes place within a very short time of the marriage or the distance of time is not
spread over more than 3-4 months the statement may be admissible under s.32.
(3) The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or given an opportunity of being crossexamined by the accused, would be valueless because the place of cross- examination is taken by
the solemnity and sanctity of oath for the simple reason that a person on the verge of death is
not likely to make a false statement unless there is strong evidence to show that the statement
was secured either by prompting or tutoring. (4) It may be important to note that s.32 does not
speak of homicide alone but includes suicide also, hence all the circumstances which may be
relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which
are directly connected with or related to her death and which reveal a tell-tale story, the said
statement would clearly fall within the four corners of s.32 and, therefore, admissible. The
distance of time alone in such cases would not make the statement irrelevant.

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This now brings us to a close consideration of the contents of the letters (Exhs. 30, 32 and 33)
written by Manju to her sister and friend. We propose to examine the contents of the letters for
four purposes:
1) in order to find out the state of mind and psychological attitude of Manju,
2) the nature of Manju's attitude towards her husband and in-laws,
3) the amount of tension and frustration which seems to be clearly expressed in the letters and
4) to determine Manju's personal traits and psychological approach to life to determine if she
was ever capable of or prone to committing suicide.
We start with the letter dated 8.5.82 (Ex. 30) which was addressed to her sister Anju and is
printed at page 191 of Part I of the printed Paperbook. The learned counsel for the appellant in
order to make our task easy has supplied the English translation as also the Roman script of the
original letter. On a comparison of the two versions, we are of the opinion that by and large the
English translation printed in the Paperbook is a true and faithful rendering of the contents of
the original letter. It is not necessary for us to extract the entire letter but we propose to extract
only the relevant portions which seek to explain and illustrate the four purposes mentioned
above.
"All read the letter with curiosity, or it may go to anybody's hand. I do not want to take any risk.
So I have taken up today for writing, the second letter to you." The Roman scripy runs thus:(P.191) "Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin
aai. Isliye maine tumhe aaj doosra khat likhneko liya."
(P.17) An analysis of the above clearly shows that Manju was a highly secretive woman and
wanted to keep her personal matters or secrets to herself except giving a rough idea or a passing
glimpse of her feelings only to those who were very close to her as friends or near relations. The
extract shows that perhaps in a spell of heavy emotions she had written a very long letter to her
sister whom she regarded as her best friend but on second thought she tore it off lest it may fall
in anybody's hands and she was not prepared to take such a risk. This mentality and noble
nature would be of great assistance to us in assessing the probative value of the statements made
by her to her parents, sister and friend during her last visit to Beed. The second paragraph,

57
which is extracted below, reflects her state of mind and the tension and torture which she was
undergoing:
"Now in this letter, when (Out of) the things coming to my mind which cannot be written, I do
not understand what is to be written, The State of mind now is very much the same. Enough.
You understand (me). I am undergoing a very difficult test. I am unable to achieve it. Till I could
control (myself), well and good. When it becomes impossible, some other way will have to be
evolved. Let us see what happens. All right."
(P.191) She has hinted that hinted that she was passing through difficult times but was trying to
control herself as much as she could. She has further indicated that if things did not improve
then she may have to evolve some other method. The exact words used in the Roman script runs
thus:
"Jab tak sambhal sakti hoon theek hai jab assambhab ho jayega to phir rasta nikalna padega,
dekhenge kya kya hota hai,"
The words "some other way will have to be evolved"
clearly gives a clue to her psychotic state of mind and seem to suggest that the other method to
get rid of all her troubles was to commit suicide. It is pertinent to note that in the first two
paragraphs of her letter extracted above there is no indication nor any hint about the conduct of
her husband.
In the third para of her letter she states her feelings thus: "I thought much that since the house
of my husband's parents is at Pune, I would do this and that or the peoplefrom the house of my
husband's parents are free. However, I have gradually come to know that in that house, the
worth of a daughter-in-law is no more than that of a laborer."
(P.191) The relevant portion in the Roman script reads thus: "Is ghar mein bahu ki keemat
majdoor se jyada nahin hai."
(P. 18) At the end or the third paragraph she repeats her sad plight thus:
"My state here however is like an unclaimed person. Let it be gone. I do not like to weep (over
it). When we will meet, we will talk all the things."

58
In the middle of the 4th paragraph she comes out with an emotional outburst by indicating that
all her hopes had been shattered and because of being neglected by her husband her health was
adversely affected. In the Roman script she used the following words:
"Sachmuch kya kya sapne rahte hain kuarepanmein, magar toote huye dekhkar dilpar kya
gujarti hai. Vaise tu maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati
mujhse bahut pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi.
Tabiyat par uska asar dikh raha hai."
(P. 19-20) In the latter part of the 8th paragraph while giving vent to her feelings she states thus:
"Now Manju is moving, it is necessary to tell that she is alive. You don't tell anybody about this
letter. I felt like telling all this to Bhausab. What, however, is the use of making him sorry. One
should test one's fate, whatever may be the result. I want to tell you all. But I cannot tell."
The words used by her show her affectionate and secretive nature and the precaution taken by
her not to tell any thing to her father, who is addressed as 'Bhausab'. The Roman script of the
relevant portion runs thus:
"Dil tu karta tha Bai Bhau Sahab ko sab bataon, magar unko dukh dekar kya phaida. Apne apne
naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai magar bata nahin
sakti."
(P.22) These extracts throw a flood of light on the nature, character, mental attitude, suffering
and shock of the deceased. One thing which may be conspicuously noticed is that she was
prepared to take all the blame on her rather than incriminate her husband or her inlaws. The
other portions of the letter (Ex.30) are not at all germane for the purpose of this case.
Summarising the main contents of the letter, the following conclusions or inferences follow:
(a) Manju was a highly emotional and sensitive woman,
(b) She got the shock of her life when due to ill- treatment by her husband and in-laws she found
that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed
and disappointed woman,
(c) she had been constantly ill-treated by her in-laws and her position in the house was nothing
but that of an unpaid maid-servant or a labourer,

59
(d) she wanted to keep all her worries and troubles to herself and on no account was she
prepared to disclose them to her parents or even to her sister, lest they also get depressed and
distressed.
(e) no serious allegation of cruelty had been made against the husband personally by her and
she thought that she herself should suffer out of sheer frustration.
Now we shall examine Ex.32 which is a letter dated 8.6.82 written by Manju to her sister Anju.
This was perhaps her last letter to Anju and is very important and relevant for decision of the
case. The letter begins with the words "I am happy here." In the second paragraph she expresses
her feelings as follows:
"Shobhabai's 'Sadi' programme is fixed on 13th I do not know why there is such a dirty
atmosphere in the house ? It is felt every moment that something will happen.
Everybody is in tension. No work has been started in the house. Let it go. I am out of mind. Still
I am used not to pay need to it. Ala what about your law."
(P.195) So far as the first part is concerned, the 'dirty atmosphere' about which she speaks is
totally unrelated to anything done by the husband or of any cruel treatment by him; it merely
refers to the tension prevailing in the family as the 'Sadi' (Kohl) was fixed on 13.6.82. Her anger
is not so much towards her husband or herself as for the manner in which things were being
done. She complained that no work had been started and being the eldest daughter in law of the
family she felt it her duty to see that all arrangements were complete. It was conceded by the
Additional Solicitor-General that this portion of the letter does not refer to any ill-treatment by
the husband or his parents but relates only to the defective and unsatisfactory arrangements for
such an important function. The relevant portion of the 3rd paragraph is also more or less
innocuous but in between the lines it contains a tale of woe, a spirit of desperation and
frustration and a wave of pessimism. the actual vernacular words are"Mera to aane ka kya hota hai dekna hai Buajike yahan se khat aur aaya to shahid chance mil
sakta hai. Magar meri mangal ke dulhan ke roop mein dekhne ki bahut ichha hai. Dekhenge."
She was naturally apprehending some thing and was not very hopeful of going to her father's
place. This being her last letter, and that too a short one, it gives a clear inkling of the manner of
how her mind was working. She did not lay any blame on her husband or anybody else but still
she was afraid that something was going to happen and that she may not be able to go to her
father and see the marriage of her sister-in-law for which preparations were being made.

60
In our opinion, these words are extremely prophetic and seem to indicate that by that time she
had almost made up her mind to end her life instead of carrying on her miserable existence. As
brevity is the soul of wit, she directly hinted that she may not be able to meet her father or any
body naturally because when a life comes to an end there can be no such question. Exh. 32,
though a short letter, depicts her real feeling and perhaps a tentative decision which she may
have already taken but did not want to disclose for obvious reasons.
Then we come to Exh.33 which is a letter dated 23.4.82 written by the deceased to her close
friend, Vahini and which shows her exact feelings, changing, mood and emotions. This is the
only letter where she had made clear complaints against her husband and the relevant portions
may be extracted thus:
"Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should
have been near with me.
All persons here are very good. Everybody is loving. Still I feel lonely. One reason is that, in the
house there are many persons and they are elder to me and such I do not dare to do any work
independently. Every time some fear is in mind which leads to confusion.
God knows when I can come there ? The point on which we had discussion is as it was. Vahini. I
swear you if you talk to anyone. I am much in pains. But what else can I do ? No other go than
that, and the same mistake is done again and again by me. It is that I go ahead and talk for ten
times, then I become angry if he does not speak. Vahini, there is nothing in my hands except to
weep profusely. At least till now this man has no time to mind his wife, let it be, but Vahini, what
shall I do?" (P.196) "Who knows what hardships be-fall on me, so long I am alive. Why the god
has become (unkind) towards me." (P. 197) "Since yesterday I have made up my mind not to
speak a word even, till he speaks (to me). Let me see to what extent I control my feelings. Vahini,
you also pray to god for me whether a girl like me should be put to such a difficult test. Vahini, I
am so much afraid of him that the romantic enchantment during first 10-15 days after marriage
has become like a dream." "I cannot dare to ask him whether his clothes be taken for wash. At
present my status is only that of a maid servant without pay as of right.
Why so much indifference towards me only ? Vahini, I, feel to weep in your arms. Vahini come
to Pune early.

61
On getting up every morning I feel he will speak today but every day I am hoping against hope.
Vahini, what will happen ? Now there is no ray of hope. Day before yesterday I became excited
and uttered in rage. "You hate me, was I unable to get food in my parent's house ?
He was irritated due to word 'hate'. He said. if you talk more like this, I will be very bad man. If
this goes on, I will not come to sleep. That means not permitted (to cry) also. How he says to me,
are you tired of me so early ? What shall I say to such a man. Once I feel that he does not count
me. On second thought, I feel he cares me much. But due to moody nature, it will take time to
pacify the same. On the day on which self-pride is lessened, no other person will be more
fortunate than me But till that day it is not certain that I will be alive."
(P. 197) In the second paragraph she starts by giving an indication that she was feeling uneasy
and would have very much liked to have Vahini with her. In the third paragraph she clearly
states that all persons in her father-in-laws' place were very good and loving but due to a
number of persons in the house she did not get a chance to work independently. The last line
"every time some fear is in mind which leads to confusion" is the starting point of the first
symptom of her invisible fear which she was unable to locate. The fourth paragraph is rather
important which shows that whatever her feelings may have been she sought an oath from
Vahini not to talk to anyone regarding the matters which she proposed to write in the said letter.
She says that she was much in pains and hints that she weeps profusely and the reason given by
her for this is that she went on committing mistakes and talked to her husband many times but
his silence was extremely painful which made her angry. In the last portion, for the first time,
she makes a direct complaint against her husband to the effect that he had no time to look after
her (Manju). In the same paragraph she describes her hardships and complains why God was
unkind to her. She further expresses her sentiments that the romantic enchantment which she
experienced during the first few days of her marriage had completely disappeared and looks like
a lost dream or a "Paradise lost". Then she describes her plight as being a maid-servant without
pay. She again complains of indifference towards her. Ultimately, she hopes against hope that
some day he will speak to her and discuss the problems but there is no response. Later, she
refers to a particular incident and goes to the extent of telling him that he hates her. This seems
to have irritated the husband who resented this remark very much. Again in the same breath
towards the end of the paragraph, while she says that her husband does not care for her yet she
at once changes her mind and says that he cares for her much but due to his moody nature it will
take time to pacify him. Her feelings again take a sudden turn when she says that when her

62
husband's self-pride is lessened none would be more fortunate than her. The next line is rather
important because she hints that till the said heyday comes perhaps she might not be alive.
A careful perusal of this letter reveals the following features(1) after going to her marital home she felt completely lost and took even minor things to her
heart and on the slightest provocation she became extremely sentimental and sensitive. (2) She
exhibited mixed feelings of optimism and pessimism at the same time.
(3) it can easily be inferred that she did not have any serious complaint against her husband but
she became sad and morose because she was not getting the proper attention which she thought
she would get.
(4) There is no indication that she expected any danger from her husband nor is there anything
to show that things had come to such a pass that a catastrophe may have resulted. There may be
certain concealed and hidden hints which she was not prepared to reveal in writing : what they
were is not clear.
(5) A close reading and analysis of the letter clearly shows at least two things(a) that she felt extremely depressed,
(b) that there was a clear tendency resulting from her psychotic nature to end her life or commit
suicide.
This possibility is spelt out from the various letters which we have extracted. Indeed, if this was
not so how could it be possible that while not complaining against her husband she gives a hint
not only to Vahini but also to Anju that she might not live. She mentions of no such threat
having been given to her by husband at any time or anywhere.
(6) The contents of the letter lead us to the irresistible conclusion that Manju felt herself lonely
and desolate and was treated as nothing but a chattel or a necessary evil ever since she entered
her marital home.
Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a
tendency on her part to commit suicide due to desperation and frustration. She seems to be tired
of her married life, but she still hoped against hope that things might improve. At any rate, the
fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that

63
her husband may have murdered her but when two views are reasonably possible the benefit
must go to the accused. In order to buttress our opinion, we would like to cite some passages of
an eminent psychiatrist, Robert J. Kastenbaum where in his book 'Death, Society and Human
Experience' he analyses the causes, the circumstances, the moods and emotions which may drive
a person to commit suicide. The learned author has written that a person who is psychotic in
nature and suffers from depression and frustration is more prone to commit suicide than any
other person. In support of our view, we extract certain passages from his book :
"The fact is that some people who commit suicide can be classified as psychotic or severely
disturbed.
(P.242) If we are concerned with the probability of suicide in very large populations, then
mental and emotional disorder is a relevant variable to consider.
(P.243) And it is only through a gross distortion of the actual circumstances that one could claim
all suicides are enacted in a spell of madness.
(P.243) "Seen in these terms, suicide is simply one of the ways in which a relatively weak
member of society loses out in the jungle like struggle.
(P.243) The individual does not destroy himself in hope of thereby achieving a noble
postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract
himself from a life whose quality seems a worse evil than death.
(P.245) The newly awakened spirit of hope and progress soon became shadowed by a sense of
disappointment and resignation that, it sometimes seemed, only death could swallow.
(P.245) Revenge fantasies and their association with suicide are well known to people who give
ear to those in emotional distress."
(P.251) "People who attempt suicide for reasons other than revenge may also act on the
assumption that, in a sense, they will survive the death to benefit by its effect.
xx xx xx The victim of suicide may also be the victim of self-expectations that have not been
fulfilled. The sense of disappointment and frustration may have much in common with that
experienced by the person who seeks revenge though suicide-However, for some people a
critical moment arrives when the discrepancy is experienced as too glaring and painful to be
tolerated. If something has to go it may be the person himself, not the perhaps excessively high
standards by which the judgment has been made-Warren Breed and his colleagues found that a
sense of failure is prominent among many people who take their own lives."

64
(P.252) The above observations are fully applicable to the case of Manju. She solemnly believed
that her holy union with her husband would bring health and happiness to her but unfortunately
it seems to have ended in a melancholy marriage which in view of the circumstances detailed
above, left her so lonely and created so much of emotional disorder resulting from frustration
and pessimism that she was forced to end her life. There can be no doubt that Manju was not
only a sensitive and sentimental woman but was extremely impressionate and the letters show
that a constant conflict between her mind and body was going on and unfortunately the
circumstances which came into existence hastened her end.
People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said
ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life.
Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book 'The Melancholy
Marriage' observe that"Studies of attempted suicides cases have also revealed the high incidence of marital problems
which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969),
we found that most of them could be understood if the patients interactions with others in their
environment were considered."
(P.5) Such persons possess a peculiar psychology which instils extreme love and devotion but
when they are faced with disappointment or find their environment so unhealthy of unhappy,
they seem to loose all the charms of life. The authors while describing these sentiments observe
thus :
"Hopelessness', 'despair', 'lousy, and 'miserable' draw attention to the relationship of the
depressed person to his environment. The articulate depressed person will often also struggle to
put into words the fact that not only does there appear to be no way forward and thus no point
to life-but that the world actually looks different."
(P.7) Coleridge in `Ode to Dejection' in his usual ironical manner has very beautifully explained
the sentiments of such persons thus :
"I see them all so excellently fairI see, not feel, how beautiful they are ;"

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At another place the author (Hinchliffe, Hooper & John) come to the final conclusion that
ruptured personal relationship play a major part in the clinical picture and in this connection
observed thus :
"Initially we applied these ideas to study of cases of attempted suicide (Roberts and Hooper
1969) and although we did not assume that they were all necessarily depressed, we looked for
distal and proximal causes for their behaviour and found that ruptured personal relationships
played a major part in the clinical picture."
(P.50) The observations of the authors aptly and directly apply to the nature, mood and the
circumstances of the unfortunate life of Manju which came to an end within four months of
marriage.
We have pointed out these circumstances because the High Court has laid very great stress on
the fact that the evidence led by the prosecution wholly and completely excludes the possibility
of suicides and the death of Manju was nothing but a dastardly murder.
We shall now deal with the next limb of the oral dying declaration said to have been made by the
deceased to her parents and friends. Some of the statements which have a causal connection
with the death of Manju or the circumstances leading to her death are undoubtedly admissible
under s.32 of the Evidence Act as held by us but other statements which do not bear any
proximity with the death or if at all very remotely and indirectly connected with the death would
not be admissible. Unfortunately, however, the two kinds of statements are so inextricably
mixed up that it would take a great effort in locating the part which is admissible and the one
which is not.
Before discussing the evidence of the witnesses we might mention a few preliminary remarks
against the background of which the oral statements are to be considered. All persons to whom
the oral statements are said to have been made by Manju when she visited Beed for the last time,
are close relatives and friends of the deceased. In view of the close relationship and affection any
person in the position of the witness would naturally have a tendency to exaggerate or add facts
which may not have been stated to them at all. Not that is done consciously but even
unconsciously the love and affection for the deceased would create a psychological hatred
against the supposed murderer and, therefore, the court has to examine such evidence with very
great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the
whole of it, they would be guided by a spirit of revenge or nemesis against the accused person

66
and in this process certain facts which may not or could not have been stated may be imagined
to have been stated unconsciously by the witnesses in order to see that the offender is punished.
This is human psychology and no one can help it.
This now takes us to a consideration of the evidence of the witnesses concerned which read
together with the letters form a composite chain of evidence regarding the causes or the
circumstance relating to the death of the deceased. According to the prosecution, the last visit of
Manju to Beed was on 25.5.82 where she stayed till 3rd of June 1982 when she was brought back
by the father of the appellant. In other words, the narration of the troubles and tribulations of
Manju was made only during her last visit and not earlier. These statements are alleged to have
been made to Rameshwar Chitlange (PW 2), Manju's father, Rekha (PW 3), who was Manju's
friend and referred to as `Vahini' in the letter Ex.33, Anju (PW 6), Manju's sister to whom
letters (Exhs. 30 and 32) were written, and PW-20, Bai, the mother of Manju. Meena Mahajan
(PW 5) was also examined but we are not in a position to rely on the evidence of this witness for
two reasons -(1) she does not figure anywhere in any of the letters written by Manju, and (2)
nothing was told to her by Manju directly but she was merely informed regarding the incidents
mentioned by PW-2. This sort of indirect evidence is not worthy of any credence.
We would first deal with the evidence of PW-2, Rameshwar Chitlange (Manju's father). We shall
give a summary of the relevant part of his evidence because the other parts relate to how the
marriage was performed and the spouses had gone for honeymoon which are not germane for
our purpose. The witness states that when Manju came to Beed with her maternal uncle he
found her somewhat uneasy and on making enquiries whether she was happy at her husband's
house she told him that she was not very happy with her husband since she noticed that her
husband was not very much pleased with her and in fact hated her. These facts are the result of
the usual domestic quarrels between a husband and a wife, hence this statement cannot be said
to be so directly or proximately related to the death of Manju so as to be admissible under s.32
of the Evidence Act.
It appears from his evidence that even after hearing the narration from his daughter he advised
her to get herself adjusted to the situation and to the atmosphere of her new marital home.
Apart from being inadmissible this does not appear to be of any assistance to the prosecution in
proving the case of murder alleged against the appellant. The witness goes on to state that as the
grandfather of the accused had died he visited Pune, accompanied by his wife and Manju. Since

67
this was more or less a formal visit for expressing his condolences to the bereaved family, he left
Manju at the house of the accused. The only part of his evidence on which reliance was placed by
the prosecution is that he had noticed Manju very much disturbed and uneasy and requested
Birdichand (father of the accused) to allow him to take Manju to the house of Dhanraj, which he
did. On reaching the house of Dhanraj, the witness states that Manju completely broke down
and started weeping and fell in the grip of her mother. This state of Manju, which the witness
saw with his own eyes, would undoubtedly be primary evidence of what he saw and felt though
not in any way connected with s. 32 of the Evidence Act. But from this circumstance alone it
cannot be safely inferred that Manju apprehended any serious danger to her life from her
husband.
The witness further states that he informed Birdichand about the grievances made to him by
Manju. The appellant, Sharad, was sent for and he quietly listened to his father but the witness
felt that whatever Birdichand may have told to his son that does not appear to have made any
serious impact on him (appellant) and he left the room. This is purely an opinion evidence and
therefore not admissible. Even so, the accused perhaps did not think it necessary to enter into
arguments with his father-in-law in the presence of his father and that is why he may have kept
quiet. From this no inference can be drawn that he was in any way inimically disposed towards
Manju or was animated by a desire to take her life.
The witness further stated that he found that Manju was weeping every now and then during the
night at Dhanraj's place. Later, in the morning the witness took Manju back to her in-laws house
but his grievance was that Sharad did not care to meet or talk to them. These are however small
circumstances which are incidents of any married life and from this no adverse inference can be
drawn against the appellant.
Another complaint made in the statement was that when he made a voluntary offer to solve the
difficulties of Sharad, the appellant curtly told him that he did not want to get his difficulties
solved by other persons and at this attitude of Sharad the witness was naturally very much
disappointed. This conduct of the accused also is not of such an importance as to lead to any
adverse inference. Some persons who have a keen sense of pride and self-respect do not like
anyone else not even their father or father-in-law to interfere in their personal matters. Perhaps
this may be the reason for the somewhat cool and curt attitude of Sharad but that proves
nothing. In fact, experience shows that where elders try to intermeddle in the affairs of a

68
husband and his wife, this creates a serious obstruction in the relations of the married couple.
Nothing therefore, turns upon this statement of PW 2.
Again, the witness repeats that when Manju came down to see him off he noticed her weeping all
the time. To cut a long story short, the witness came back to Beed and sent his son Pradeep to
bring Manju from Pune to Beed. On reaching there he was informed that Manju and Sharad had
gone on a holiday trip to Mysore, Triupati, etc. After the return of Pradeep to Beed, Dhanraj
informed the witness that Sharad and Manju had returned to Pune and therefore, he sent his
son, Deepak to Pune to bring back Manju. When Manju arrived at Beed, the witness found her
totally disturbed and frightened. This statement would be admissible as primary evidence. What
probative value should be attached to this small matter is a different issue.
Thereafter, the witness was told the incidents by his wife (PW 20) which had been narrated to
her by Manju but that is of no value so far as this witness is concerned as the main evidence
would be that of PW 20. However, in order to save the marriage from a a total break-down the
witness was extremely worried and therefore, he called one Hira Sarda, a close acquaintance of
the family of accused, who told him (witness) that he was going to Hyderabad and after 4th-5th
June some solution would be found out. At the same time, he advised the witness not to make
any haste in sending back Manju to Pune.
On the 2nd June 1982, Birdichand arrived at Beed and requested the witness to send Manju to
Pune because the marriage of Birdichand's daughter was fixed for 30th June 1982 and the Kohl
(betrothal) ceremony was to be held on the 13th of June so that Manju may be present at the
ceremony and look after the arrangements. The witness says that after hearing this he apprised
Birdichand that Manju was extremely frightened and that she was not ready to go back to her
husband's house nor was he (witness) willing to send her back so soon. He suggested to
Birdichand that as the marriage of his nephew was to be celebrated at Beed on 25th June,
Sharad would come to attend the marriage and at that time he can take Manju with him.
Birdichand, however, persuaded the witness to send back Manju and assured him that no harm
of any kind would come to her and he also promised that Manju would be sent back to Beed, The
most important statement in the evidence of this witness may be extracted thus :
"I was having this talk with Birdichand on the first floor of my house. Manju heard this from the
staircase, called me out in the ground portion of the house and told me that she was not in a

69
position to go to the house of the accused. Since she was in a state of fear or extreme fear in her
mind and she also told me that she was not prepared to go to the house of the accused.
** ** ** Therefore, after the meals I sent Manju with Birdichand. Birdichand, Manju and Kavita
then left Beed by about 12.30 p.m. by bus on 3rd of June, 82. At that time Manju was constantly
weeping right from inside my house till the bus left. She was also in a state of extreme fear."
(P. 197) The witness has said many times in his statement that Manju was always weeping and
crying and the final crisis came when on hearing the talks between him and Birdichand she
called him from the staircase and told him that she was not prepared to go to her husband's
house as she was in a state of extreme fear. It is difficult to believe this part of the evidence of the
witness for two reasons(1) When the talks were going on between two elders would Manju be sitting near the staircase
to listen their talks and call her father and give vent to her feelings and her decision not to go
back to Pune at any cost. This conduct appears to be directly opposed not only to the tenor and
spirit of the letters (Exhs. 30, 32 and 33) which we have discussed but also against her mental
attitude and noble nature.
(2) As indicated by us while discussing the letters- could a woman who was so affectionate and
reserved in nature and who would not like the contents of her letters to Anju and Vahini to be
disclosed to her parents lest they feel worried, disturbed and distressed-suddenly turn turtle,
forgetting her sentiments not to worry them and come out in the open to declare before all by
weeping and crying that she was in a state of extreme fear, seem to us to be inherently
improbable. Once a mature woman develops a particular nature or habit or a special bent of
mind she is not likely to forgo her entire nature-in this case, her affection and love for her
parents and the feeling of not doing anything which may cause distress or worry to them, and
start telling her woeful story to everyone whom she met.
Manju must have known fully that her husband's sister's betrothal ceremony was to be held on
13th June and if her father-in-law was making request after request to take her to Pune to attend
the said ceremony, and had given all sorts of assurances that no harm would come to her, would
she still call her father and express her state of fear and go on repeating what she had already
said. This seems to us to be an afterthought or an embellishment introduced in the evidence of
the witness so as to add credence to the prosecution story and provide an imaginary motive for
the murder of the deceased. Indeed, if she was bent on resisting all attempts of her father-in-law
to take her to Pune she would not have gone at all. On the other hand, her subsequent conduct

70
of ultimately going to Pune and making arrangements for the Kohl ceremony belies the story put
forward by the witness. It is extremely difficult for a person to change a particular bent of mind
or a trait of human nature unless there are substantial and compelling circumstances to do so.
In the instant case, we find no such compelling circumstance even taking the statement of the
witness at its face value.
To take the other side of the picture, the witness says that when he reached Pune on 12.6.82 and
visited the place where Manju had died, he found Sharad sleeping or lying on the cot and on
seeing him he immediately started crying vigorously and making a show of the grief and shock
they had received. The exact statement of the witness may be extracted thus :
"I could notice that Sharad who was sleeping or lying on the cot in the said room on seeing me
entering the room immediately started crying vigorously giving jerks to his body and making
show of the grief and the shock he had received. Ultimately I asked him as to what had
happened to Manju when he told me that since 11th it was the day of his marriage with Manju,
he and Manju were in joyest mood. According to him they went to bed by about 12 midnight and
he had a sexual act with Manju in such a manner which they never had enjoyed before.
Ultimately according to him when they completely felt tired and exhausted both of them fell
asleep. According to him by about 5.30 a.m. when he got up and after visiting the urinal, when
returned to the room he found that Manju had not got up as usual since according to him, she
used to wake up at the same time he used to wake up and so he went near Manju and called her
out when he found her dead."
It is rather strange that while the witness took whatever his daughter told him at its face value
without making any further enquiry, he immediately jumped to the conclusion that the grief and
tears in the eyes of his son- in-law were fake and that he was merely shedding crocodile tears.
There is nothing on the record nor in the evidence to show any circumstance which may have led
the witness to arrive at this conclusion. On the other hand, if the conduct of the appellant, as
described by the witness, is seen from a dispassionate angle, it was quite spontaneous and
natural because by the time the witness reached Pune the postmortem had been done and the
death of Manju had come to light long before his arrival. There was no reason for the witness to
have presumed at that time that Sharad must have committed the murder of the deceased.
There were no materials or data before him which could have led him to this inference. This
clearly shows one important fact, viz., that the witness was extremely prejudiced against Sharad

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and if one sees anything-even the truth-with a pale glass everything would appear to him to be
pale.
The second part of the statement made by the witness regarding having sexual intercourse near
about midnight seems to us to be inherently improbable. However, educated or advanced one
may be, it is against our precious cultural heritage for a person to utter such things in a most
frank and rudimentary fashion to his father-in-law. We are clearly of the opinion that the story
of having a sexual act, etc., was a pure figment of the imagination of the witness and this,
therefore, goes a long way off to detract from the truth of the testimony of this witness.
Furthermore, at page 175 the witness admits that during the life time of Manju, Anju and Rekha
told him about the receipt of the letters from Manju but they never referred to the nature or the
contents of the letters. This is a correct statement because both Anju and Vahini had been
requested by Manju not to disclose to her parents the state of affairs or the tortures which she
was suffering and perhaps they kept the sanctity of oath given to them by the deceased. This is
an additional circumstance to show that even when Manju visited Beed for the last time she
might tell something to her own sister Anju or to Vahini but she would never dare to disclose all
the details and put all the cards on the table before her parents-a step which she deliberately
desisted from coming into existence. We can understand the evidence of the witness that Manju
was worried, distressed and depressed. Sometimes out of natural love and affection parents
make a mountain of a mole hill and this is what seems to have happened in this case.
Great reliance was placed by the Additional Solicitor General, on behalf of the respondent, on
the relevance of the statements of PWs 2, 3, 6, and 20. He attempted to use their statements for
twin purposes-firstly, as primary evidence of what the witnesses saw with their own eyes and felt
the mental agony and the distress through which the deceased was passing. Secondly, he relied
on the statements made by the deceased (Manju) to these witnesses about the treatment meted
out to her by her husband during her stay at Pune and furnishes a clear motive for the accused
to murder her.
As regards the first circumstance, there can be no doubt that the said evidence of the witnesses
would undoubtedly be admissible as revealing the state of mind of the deceased. This would be
primary evidence in the case and, therefore, there cannot be any doubt about the relevancy of
the statement of the witnesses in regard to this aspect of the matter. As to what probative value

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we should attach to such statements would depend on a proper application of the context and
evidence of each of the witnesses, As regards the second aspect-which is in respect of what the
deceased told the witnesses-it would only be admissible under s. 32 of the Evidence Act as
relating to the circumstances that led to the death of the deceased. In view of the law discussed
above and the propositions and the conclusions we have reached, there cannot be any doubt that
these statements would fall in the second part of s.32 of the Evidence Act relating directly to the
transaction resulting in the death of Manju, and would be admissible. Before, however,
examining this aspect of the question we might at the outset state that the character, conduct
and the temperament of Manju, as disclosed or evinced by the admitted letters (Exhs. 30,32 and
33), which demonstrate that it is most unlikely, if not impossible, for Manju to have related in
detail the facts which the aforesaid witnesses deposed. If this conclusion is correct, then no
reliance can be placed on this part of the statement of the aforesaid witnesses.
We now proceed to discuss the evidence of PWs 3,4, 5, 6 and
20. As we have discussed the evidence of PW 2, father of Manju, it will be more appropriate to
discuss now the evidence of PW-20 (Manju's mother) from whom most of the matters spoken to
by PW-2 were derived. Her evidence appears at page 305 of part I of the Paper Book. It is not
necessary for us to go into those details which have already been deposed to by PW-2. The most
relevant part of her evidence is about the visit of Manju to Beed on 2.4.82. She states that during
this visit she found Manju cheerful and happy and she did not complain of anything during her
stay for 8- 10 days. In answer to a question-whether she enquired from Manju or had any talk
with her during that period-she stated Manju told her that her husband was not taking any
interest in her and used to leave the house early in the morning and return late at night on the
excuse that he was busy with his factory work. It may be stated here that the accused had a
chemical factory where he used to work from morning till late at night. The witness further
deposed that Manju informed her that there was no charm left for her at the house of her
husband. These facts however run counter to her first statement where she stated that Manju
was quite happy and cheerful as expected of a newly married girl. Even so, whatever Manju had
said does not appear to be of any consequence because she (the witness) herself admits that she
did not take it seriously and told Manju that since she had entered a new family it might take
some time for her to acclimatise herself with the new surroundings. She also warned Manju
against attaching much importance to such matters.

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Thereafter she goes on to state that near about the 11th or 12th of April 1982 she (PW 20)
alongwith her husband left for Pune to offer condolences on the death of the grand-father of the
appellant. She then proceeds to state that during their second visit to Pune on the 11th or 12th of
May 1982 she stayed with her brother, Dhanraj and that while she was there Manju hugged at
her neck and having lost her control, started weeping profusely. She further states that Manju
requested her to take her to Beed as it was not possible for her to stay in her marital house
where she was not only bored but was extremely afraid and scared.
On the next day she (PW 20) met the mother of the appellant and told her plainly that she found
Manju extremely perturbed, uneasy and scared and that she was experiencing tremendous
pressure and restrictions from her husband. But the mother of the appellant convinced her that
there was nothing to worry about, and everything will be alright. The witness then narrated the
fact to her husband and requested him to take Manju with them to Beed. PW 2 then sought the
permission of Birdichand to take Manju to. Beed but he told him that as some guests were to
visit him, he (PW 2) can send somebody after 4-5 days to take Manju to Beed. It may be
mentioned here that the details about the sufferings and the mental condition of Manju was not
mentioned by this witness even to her husband (PW 2) as he does not say anything about this
matter. Further, her statement is frightfully vague.
As already indicated that the letters (Ex. 30, 32, 33) clearly show that Manju never wanted to
worry or bother her parents about her disturbed condition, it appears to be most unlikely that
on the occasion of the death of her grandfather-in-law she would choose that opportunity to
narrate her tale of woe to her mother. This appears to us to be a clear embellishment introduced
by the prosecution to give a sentimental colour to the evidence of this witness. Ultimately, on
May 25, 1982 Deepak brought Manju to Beed and this time she was accompanied by her cousin,
Kavita. Here again, she states that on her arrival she found Manju extremely disturbed and
under tension of fear and Manju was prepared to make a clean breast of all her troubles.
However, as Kavita was there and did not give any opportunity to Manju to meet her mother
alone, she (Kavita) was sent out on some pretext or the other. Thereafter, Manju told her mother
that she was receiving a very shabby treatment from her husband and while narrating her
miserable plight she told her about two important incidents which had greatly upset her-(1) that
she happened to come across a love letter written by PW 37, Ujwala Kothari to her husband
which showed that the appellant was carrying on illicit relations with PW 37, (2) that on one
occasion the appellant told Manju that he was tired of his life and did not want to live any more

74
and, therefore-wanted to commit suicide. Despite Manju's enquiries as to why he wanted to
commit suicide, he did not give any reason. She then informed her mother when this talk was
going on, she (Manju) herself volunteered to commit suicide. Thereafter, Sharad put forth a
proposal under which both of them were to commit suicide and they decided to write notes
showing that they were committing suicide. On hearing this plan from Sharad, Manju told him
that she was not inclined to commit suicide as she had not lost all hope of life and that she had
expressed her desire to commit suicide only because he had said that he would do so. PW 20
would have us believe that while in one breath she agreed to the suicide pact yet the next
moment she made a complete volte face. This is hard to believe having regard to the nature of
the temperament of Manju.
The two statements said have been made by Manju to her mother appear to be contradictory
and irreconcilable and smack of concoction. According to Manju, Sharad then prepared two
notes one addressed to his father and another to his father-in-law and asked Manju to do the
same but she refused to do anything of the sort. The witness admitted that she was not told as to
what had happened to the notes written by the appellant.
All this story of a suicidal pact seems to us nothing but a fairy tale. There is no mention nor even
a hint in the letters (Exhs. 30, 32, 33) written by Manju about the aforesaid suicidal pact and the
story narrated by the witness before the trial court, nor was the note produced in the court. This
appears to us to be a make-believe story and was introduced to castigate the appellant for his
shabby treatment towards Manju.
Another intrinsic circumstance to show the untruth of this statement is that although PW 2 was
apprised of these facts yet he never mentioned them to Birdichand particularly when he was
insisting that Manju should be sent back to Pune for attending the betrothal ceremony of his
daughter Shobha. Indeed, if this fact, which is of very great importance so far as the lives of both
the husband and the wife are concerned, would have been there, the first thing which PW 2
would have done is to tell Birdihand that matters had reached such a stage as to leave no doubt
that her daughter was in an instant fear of death and it was impossible for him to allow his
daughter to go to Pune where Sharad was bent on forcing her to commit suicide or even murder
her, more particularly because PW 20 admits in her evidence that as all the things she had learnt
from Manju were serious, she had informed her husband about the same who agreed with her.

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Apart from this grave incident, the witness deposed to another equally important matter, viz.,
that on the Shila Septami day, the appellant rang up his mother to send Manju alongwith
Shobha to a hotel (Pearl Hotel), as has been deposed to by other witnesses) because he wanted
to give a party to his friends. As Shoba was not present in the house, Manju's mother-in-law sent
her alone, in a rickshaw to the hotel. On reaching the hotel she did not find any other person
except a girl who was introduced by her husband as Ujavla Kothari. The most critical part of the
incident is that the appellant is alleged to have informed Manju that she should take lessons
from Ujvala as to how she should behave with him and also told her that Ujvala knew everything
about him and he was completely in her hands. Subsequently the appellant went away and
Ujvala told her that the appellant was a short-tempered man and she should talk to him only if
and when he wanted to talk to her. She (Ujvala) also told Manju that the appellant was
completely under her command and she was getting every bit of information about the incidents
happening between the husband and the wife. Finally, she was apprised of the fact by Ujvala
that she and Sharad were in love with each other. Manju is said to have retorted and protested to
Ujvala by saying that she was not prepared to take any lessons from her regarding her behaviour
towards her husband as she (Manju) was his wedded wife while Ujvala was only a friend. Manju
also told her mother that these facts were narrated by her to the appellant and accused No. 2. As
a result of this incident, Manju became a little erratic which attracted double cruelty towards her
by her husband and made her extremely scared of her life and in view of this development she
requested her mother not to send her back to the house of the accused.
One point of importance which might be noticed here and which shows that whatever be the
relations with her husband and Ujvala, the picture presented by the witness is not totally correct
because if such a point of no return had already been reached, there was absolutely no question
of Birdichand and sending for the appellant and arranging a trip to Ooty, Mysore and other
place nor would have Manju agreed to go to these places. The witness further stated that as soon
as Manju came to know that Birdichand had come to take her away she was shocked and
continuously kept saying that she was extremely afraid of going to her husband's house and that
she should not be sent back.
The behavioral attitude of Manju depicted by the witness seems to us to be absolutely
contradictory to and not at all in consonance with her temperament, frame of mind,
psychological approach to things and innate habits. That is why no reference had been made
even directly or indirectly in any of the letters written by Manju, and she had expressly

76
requested both Anju and Vahini not to disclose anything to her parents lest they may get worried
and. distressed on her account. In other words, Manju was a woman who despite her troubles
and tribulations, sufferings and travails, anxiety and anguish would never have thought of
narrating her woeful story to her parents and thereby give an unexpected shock to them. This
feeling is mentioned in the clearest possible terms in the letters (Exhs. 30, 32, 33) which we have
already discussed. There is no reference at all in any of the letters regarding suicidal pact or the
illicit relationship of her husband with Ujvala.
Another important fact which the High Court has missed is that even according to the statement
of this witness, the appellant had asked his mother to send Shobha along with Manju to the
hotel and at that time he could not have been aware that Shobha would not be available. Indeed,
if he had an evil intention of insulting or injuring the feelings of Manju by keeping Ujvala there
he would never have asked his mother to send Shobha also because then the matter was likely to
be made public. This is another inherent improbability which makes the whole story difficult to
believe.
Despite these serious developments both PW 2 and 20 tried to convince Manju to accept the
assurances given by Birdichand that no harm would come to her and if anything might happen
they will take proper care. We find if impossible to believe that the parents who had so much
love and affection for their daughter would, after knowing the circumstances, still try to take the
side of Birdichand and persuade her daughter to go to Pune. Rameshwar (PW 2) should have
told Birdichand point-blank that he would not send Manju in view of the serious incidents that
had happened, viz., the suicidal pact, the cruel treatment of the appellant towards Manju, the
constant fear of death which Manju was apprehending, the illicit relationship between the
appellant and Ujvala, and the strong resistance of his daughter who was not prepared to go Pune
at any cost and was weeping and wailing all the time. On the other hand, knowingly and
deliberately they seem to have thrown their beloved daughter into a well of death. The fact that
Manju's parents tried to console her and believed the assurance of Birdichand knowing full well
the history of the case shows that any statement made by Manju to her parents was not of such
great consequence as to harden their attitude. This is yet another intrinsic circumstance Manju
to which negatives the story of suicidal pact and the invitation to come to the Pearl Hotel and the
manner in which she was insulted in the presence of Ujvala. There is no doubt that relations
between the appellant and Manju were extremely strained, may-be due to his friendship with
Ujvala, she may not have felt happy in her marital home as she has clearly expressed in her

77
letters but she did not disclose anything of such great consequence which would have shocked
the parents and led them to resist her going to Pune at any cost. This makes the version given by
PWs 2 and 20 unworthy of credence.
We now proceed to take up the evidence of PW-6, Anju, the sister of Manju. The statement of
this witness is more or less a carbon copy of the evidence of PW-20 which has been discussed
above and, therefore, it is not necessary to consider her evidence in all its details. So far as the
first visit is concerned, she fully supports her mother that Manju was very happy as was
expected of a newly married girl. When Manju came to Beed around 2nd April 1982 she stayed
there for 8-10 days and during that period the witness noticed that she was somewhat
dissatisfied and complained that her husband used to return late at night. She also complained
against the callous attitude of the other members of her husband's family. She also introduced
the story of Ujvala Kothari and corroborated what PW 20 had said which we have discussed
above. She also refers to the said suicidal pact and then to the fact that Birdichand had come to
take away Manju to Pune so that she may be able to attend the betrothal ceremony of Shobha.
Then she deposes to an incident which appears to be wholly improbable. According to her, on
the 3rd of June, 1982, PW 2 invited his two friends, Raju and Rath, for lunch at which
Birdichandi was also present, and told them that Manju was not prepared to go to Pune as she
was afraid to go there but Birdichand, alongwith his two friends, assured him that nothing
would happen. We do not think that in the course of things P-2 would be so foolish as to let the
secret matters of the house known to others than the parties concerned. Thereafter the witness
proves the letters (Exhs. 30 and 32).
She stated one important statement to the effect that on some occasions Manju had a talk with
her mother in her presence. Although Manju had requested Anju not to disclose anything to her
parents yet everything was made known to them, During cross-examination the witness was
asked-how as it that Manju was narrating these talks when the witness had been asked not to
disclose the same to her parents, which she explained away by saying that she did not ask Manju
why she was disclosing these things to her mother. No satisfactory answer to this question
seems to have been given by her. At another place, the witness states thus :
"I did not tell all these informations I received from Manju to any body. Nor anybody enquired
from me till my statement was recorded by the Police."

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Her evidence, therefore, taken as a whole is subject to the same infirmity as that of PW 20 and
must suffer the same fate.
PW-3, Rekha (who was addressed as `Vahini' in Maju's letter (Ex. 33), states that on the first
occasion when Manju came home she was quite happy but during her second visit to Beed in the
month of April, 1982 she did not find her so and Manju complained that her husband was
avoiding her to have a talk with her on one excuse or another. Manju also informed the witness
that the appellant had a girl- friend by name Ujvala and the witness says that she tried to
console Manju by saying that since her husband was a Chemical Engineer he may have lot of
friends. While referring to Exh. 33 (letter written to her by Manju) she stated that the only
complaint made in that letter was that her husband was not talking to her properly. She then
deposed to an incident which happened when on her way to Bombay when the witness stayed at
Pune for some time. She states that she had a talk with Manju for about half-an-hour when she
narrated the story of the suicidal pact. She also stated that she was extremely afraid of the
situation and almost broke down in tears and wept.
The most important fact which may be noted in her evidence is a clear pointer to the frame of
mind and the psychotic nature of Manju. At page 212 of Part I of the Paperbook while narrating
the relationship of her husband with Ujvala she says that the appellant lost his temper and
thereupon she spoke the following words to him :
,`I am not going to spare this, I will not allow this, his bad relations even though a blot may
come to our family and I have decided likewise."
These significant and pregnant words clearly show that Manju was so much bored and disgusted
with her life that she entertained a spirit of revenge and told the witness that she was not going
totolerate this even though a blot may come to the family and that she had decided likewise. This
statement undoubtedly contains a clear hint that she had almost made up her mind to end her
life, come what may and thereby put to trouble her husband and his family members as being
suspect after her death. This appears to be a culmination of a feeling which she had expressed in
one of her letters to Anju in the following words:
"Till I could control (myself), well and good. When it becomes impossible, some other way will
have to be evolved. Let us see what happens. All right."

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Similarly, in her letter (Ex. 33) to this witness she gives a concealed hint "But till that day it is
not certain that I will be alive."
Thus the feelings of death and despair which she orally expressed to the witness at Pune seems
to have been fulfilled when on the morning of 12th June 1982 she was found dead.
The evidence of PW 4, Hiralal Ramlal Sarda, is not that important. He merely states that in the
last week of May 1982, PW 2 had called him and told him that Manju was being ill-treated by
her husband and therefore she was not prepared to go to her marital home. PW 2 also informed
him about the suicidal pact affair. As the witness was in a hurry to go to Hyderabad he
counselled PW 2 not to take any final decision in a hurry and that Manju should not be sent to
Pune with Birdichand until his return when a decision may be taken. On return from Hyderabed
he learnt that Birdichand had already taken Manju to Pune and thereafter he left for Pune.
Indeed, if the matter was so grave and serious that a person like PW 4, who was a relation of the
appellant rather than that of PW 2, had advised him not to make haste and take a final decision
but wait until his return yet PW 2 seems to have spurned his advice and sent Manju to Pune.
This shows that the matter was not really of such great importance or urgency as to take the
drastic step of making a blunt refusal to Birdihchand about Manju's not going to Pune. This also
shows that the story of suicidal pact and other things had been introduced in order to give a
colour or orientation to the prosecution story.
Another fact to which this witness deposes in the narration by the appellant about his having
sexual act with his wife. We have already disbelieved this story as being hopelessly improbable
and against the cultural heritage of our country or of our nature and habits. This is the only
purpose for which this witness was examined and his evidence does not advance the matter any
further.
PW-5, Meena Mahajan, has also been examined to boost up the story narrated by PW 2 and
other witnesses. She was not at all connected with the family of PW 2 but is alleged to be a friend
of Manju and she says that she found Manju completely disheartened and morose and she
started weeping and crying while narrating her said story. The witness goes on to state that
Manju was so much terrified of the appellant that she was afraid of her life at his hands. No.
witness has gone to the extent of saying that there was any immediate danger to Manju's life nor
did Manju say so to PWs 2, 6 and 20. This witness appears to us to be more loyal than the king.

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Even assuming that Manju was a friend of PW 6 but she never wrote to her any letter indicating
anything of the sort. For these reasons we are not satisfied that this witness is worthy of
credence.
A close and careful scrutiny of the evidence of the aforesaid witnesses clearly and conspicuously
reveals a story which is quite, different from the one spelt out from the letters (Exhs. 30, 32 and
33). In fact, the letters have a different tale to tell particularly in respect of the following
matters:(1) There is absolutely no reference to suicidal pact or the circumstances leading to the same, (2)
there is no reference even to Ujvala and her illicit relations with the appellant, (3) there is no
mention of the fact that the deceased was not at all willing to go to Pune and that she was sent by
force, (4) the complaints made in the letters are confined to ill-treatment, loneliness, neglect and
anger of the husband but no apprehension has been expressed in any of the letters that the
deceased expected imminent danger to her life from her husband. (5) In fact, in the letters she
had asked her sister and friend not to disclose her sad plight to her parents but while narrating
the facts to her parents she herself violated the said emotional promise which appears to us to be
too good to be true and an after thought added to strengthen the prosecution case.
(6) If there is anything inherent in the letters it is that because of her miserable existence and
gross ill-treatment by her husband, Manju might have herself decided to end her life rather than
bother her parents.
We are therefore unable to agree with the High Court and the trial court that the witnesses
discussed above are totally dependable so as to exclude the possibility of suicide and that the
only irresistible inference that can be drawn from their evidence is that it was the appellant who
had murdered the deceased.
Putting all these pieces together a general picture of the whole episode that emerges is that there
is a reasonable possibility of Manju having made up her mind to end her life, either due to
frustration or desperation or to take a revenge on her husband for shattering her dream and illtreating her day-to-day.
Apart from the spirit of revenge which may have been working in the mind of Manju, it seems to
us that what may have happened is that the sum total and the cumulative effect of the

81
circumstances may have instilled in her an aggressive impulse endangered by frustration of
which there is ample evidence both in her letters and her subsequent conduct. In Encyclopedia
of Crime and Justice (Vol. 4) by Sanford H. Kadish the author mentions thus :
"Other psychologically oriented theories ave viewed suicide as a means of handling aggressive
impulses engendered by frustration."
Another inference that follows from the evidence of the witness discussed is that the constant
fact of wailing and weeping is one of the important symptoms of an intention to commit suicide
as mentioned by George W. Brown and Tirril Harris in their book "Social Origins of Depression"
thus:"1. Symptom data Depressed mood1. Crying
2. feeling miserable/looking miserable, unable to smile or laugh
3. feelings of hopelessness about the future
4. suicidal thoughts
5. suicidal attempts Fears/anxiety/worry
15. psychosomatic accompaniments
16. tenseness/anxiety
17. specific worry
18. panic attacks
19. phobias Thinking
20. feelings of self-depreciation/nihilistic delusions
21. delusions or ideas of reference
22. delusions of persecution/jealousy
23. delusions of grandeur
24. delusions of control/influence
25. other delusions e. g. hypochondriacal worry

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26. auditory hallucinations
27. visual hallucinations."
Most of these symptoms appear to have been proved as existing in Manju both from her letters
(Exhs. 30, 32 and
33) and from the evidence discussed.
We might hasten to observe here that in cases of women of a sensitive and sentimental nature it
has usually been observed that if they are tired of their life due to the action of their kith and kin,
they become so desperate that they develop a spirit of revenge and try to destroy those who had
made their lives worthless and under this strong spell of revenge sometimes they can go to the
extreme limit of committing suicide with a feeling that the subject who is the root cause of their
malady is also destroyed. This is what may have happened in this case. Having found her
dreams shattered to pieces Manju tried first to do her best for a compromise but the constant illtreatment and callous attitude of her husband may have driven her to take revenge by killing
herself so that she brings ruination and destruction to the family which was responsible for
bringing about her death. We might extract what Robert J. Kastenbaum in his book 'Death,
Society, and Human Experience' has to say:
"Revenge fantasies and their association with suicide are well known to people who give ear to
those in emotional distress."
After a careful consideration and discussion of the evidence we reach the following conclusions
on point No. 1:
1) that soon after the marriage the relations between Manju and her husband became extremely
strained and went to the extent that no point of return had been almost reached,
2) that it has been proved to some extent that the appellant had some sort of intimacy with
Ujvala which embittered the relationship between Manju and him,
3) That the story given out by PW 2 and supported by PW 20 that when they reached Pune after
the death of Manju they found appellant's weeping and wailing out of grief as this was merely a
pretext for shedding of crocodile tears, cannot be believed,

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4) that the story of suicidal pact and the allegation that appellant's illicit relations with Ujvala
developed to such an extreme that he was so much infatuated with Ujvala as to form the bedrock
of the motive of the murder of Manju, has not been clearly proved,
5) the statement of PW 2 that the appellant had told him that during the night on 11th June 1982
he had sexual act with the deceased is too good to be true and is not believable as it is inherently
improbable,
6) that despite the evidence of PWs 2, 3, 6 and 20 if has not been proved to our satisfaction that
the matter had assumed such extreme proportions that Manju refused to go to Pune with her
father-in-law (Birdichand) at any cost and yet she was driven by use of compulsion and
persuasion to accompany him,
7) that the combined reading and effect of the letters (Exhs. 30, 32 and 33) and the evidence of
PWs 2, 3, 4, 6 and 20 clearly reveal that the signs and symptoms resulting from the dirty
atmosphere and the hostile surroundings in which Manju was placed is a pointer to the fact that
there was a reasonable possibility of her having committed suicide and the prosecution has not
been able to exclude or eliminate this possibility beyond reasonable doubt.
We must hasten to add that we do not suggest that this was not a case of murder at all but would
only go to the extent of holding that at least the possibility of suicide as alleged by the defence
may be there and cannot be said to be illusory.
8) That a good part of the evidence discussed above, is undoubtedly admissible as held by us but
its probative value seems to be precious little in view of the several improbabilities pointed out
by us while discussing the evidence.
We might mention here that we had to reappreciate the evidence of the witnesses and the
circumstances taking into account the psychological aspect of suicide as found in the psychotic
nature and character of Manju because these are important facts which the High Court
completely overlocked. It seems to us that the High Court while appreciating the evidence was
greatly influenced by the fact that the evidence furnished by the contents of the letters were not
admissible in evidence which, as we have shown, is a wrong view of law, We now come to the
second limb- perhaps one of the most important limbs of the prosecution case viz., the
circumstance that the appellant was last seen with the deceased before her death. Apparently, if
proved, this appears to be a conclusive evidence against the appellant but here also the High

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Court has completely ignored certain essential details which cast considerable doubt on the
evidence led by the prosecution on this point.
The question of the appellant having been last seen with the deceased may be divided into three
different stages:
1) The arrival of Anuradha and her children alongwith Manju at Takshila apartments, followed
by the arrival of the appellant and his entry into his bedroom where Anuradha was talking to
Manju,
2) the calling of PW 29 by A-2 followed by the appellant and his brother's going out on a scooter
to get Dr. Lodha and thereafter Dr. Gandhi.
3) Sending for Mohan Asava (PW 30) and the conversation between the appellant, Birdichand
and others as a result of which the matter was reported to the police.
Although the aforesaid three stages of this circumstance cannot technically be called to mean
that the accused was last seen with the deceased but the three parts combined with the first
circumstance might constitute a motive for the murder attributed to the appellant.
From a perusal of the judgment of the High Court on these points, it appears that the High
Court has made a computerise and mathematical approach to the problem in fixing the exact
time of the various events which cannot be correct as would appear from the evidence of the
witnesses, including Dr Banerjee (PW 33) .
The evidence of PW 7, the motor rickshaw driver shows that on the night of the 11th of June he
had brought the deceased alongwith Anuradha and others and dropped them near the Takshila
apartments at about 11.00 p.m. The witness was cross-examined on several points but we shall
accept finding of the High Court on the fact that on the 11th of June 1982 the witness had
dropped the persons, mentioned above, at about 11.00 p.m. The rest of the evidence is not
germane for the purpose of this case. It may, however, be mentioned that one should always give
some room for a difference of a few minutes in the time that a layman-like PW 7 would say. We
cannot assume that when the witness stated that he had dropped Manju and others at 11.00
p.m., it was exactly 11.00 p.m.--it would have been 10-15 minutes this way or that way. His
evidence is only material to show the approximate time when Manju returned to the
apartments.

85
The next witness on this point is PW-28, K.N. Kadu. This witness corroborates PW-7 and stated
he had heard the sound of a rickshaw near the apartments when the wife of A- 2, Manju and 3
children entered the apartments and went to their rooms. He further says that after about 15
minutes he saw the appellant coming on a scooter and while he was parking his scooter the
witness asked him why did he come so late to which he replied that he was busy in some
meeting. This would show that the appellant must have arrived at the apartments near about
11.30 or 11.45 p.m. It is very difficult to fix the exact time because the witness himself says that
he had given the timings approximately. The High Court was, therefore, not justified in fixing
the time of arrival of Manju and party or the appellant with almost mathematical precision for
that would be a most unrealistic approach. The High Court seems to have speculated that Manju
must have died at 12.00 a.m., that is to say, within 15-20 minutes of the arrival of the appellant.
It is, however, impossible for us to determine the exact time as to when Manju died because
even Dr. Banerjee says in his evidence that the time of death of the deceased was between 18 to
36 hours which takes us to even beyond past 12 in the night. At any rate, this much is certain
that Manju must have died round about to 2.00 a.m. because when Dr. Lodha arrived at 2.45
a.m. he found her dead and he had also stated that rigor mortis had started setting in, It is.
therefore, difficult to fix the exact time as if every witness had a watch which gave correct and
exact time. Such an inference is not at all called for.
The third stage of this matter is that while the witness was sleeping he heared the sound of the
starting of a scooter and got up from his bed and saw appellant and A-2 going away. Therefore,
he found 7-8 persons coming and going on their scooters. The High Court seems to suggest that
this must have happened by about 1.30 p.m. Even so, this does not prove that Manju have died
at midnight. As the witness had been sleeping and was only aroused by the sound of scooters, it
would be difficult to fix the exact time when he saw the appellant and A-2 going out on their
scooters. His evidence, therefore, was rightly relied upon by the High Court in proving the facts
stated by him.
PW-29, B.K. Kadu, who was serving as a watchman at the Takshila apartments says that near
about the midnight he was called by Rameshwar, A-2 and on hearing the shouts he went to flat
No. 5. He further says that A-2 directed him to unbolt or unchain the door but the door was not
found closed from inside and hence A-2 went out and returned after some time. While the
witness wasstanding at the door A-2 returned and after his return the witness also came back to
his house and went to sleep. Perhaps the witness was referring to the incident when A-1 and A-2

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had gone on scooter to fetch Dr. Lodha. During cross-examination the witness admitted that he
did not possess any watch and gave the timings only approximately. We shall accept his
evidence in toto but that leads us nowhere.
This is all the evidence so far as the first stage of the case is concerned and, in all probability, it
does not at all prove that A-1 had murdered the deceased. On the other hand, the circumstances
proved by the three witness are not inconsistent with the defence plea that soon after entering
the room Manju may have committed suicide.
Part II of this circumstance relates to the coming of Dr. Lodha and then Dr. Gandhi on the scene
of occurrence and we accept their evidence in toto. Dr. Lodha was a family doctor of the
appellant's family and it was quite natural to send for him when the appellant suspected that his
wife was dead. Although Dr. Lodha (PW 24) was a family doctor of the appellant's family yet he
did not try to support the defence case and was frank enough to tell the accused and those who
were present there that it was not possible for him to ascertain the cause of death which could
only be done by a postmortem. In other words, he indirectly suggested that Manju's death was
an unnatural one, and in order to get a second opinion he advised that Dr. Gandhi (PW 25) may
also be summoned. Accordingly, Dr. Gandhi was called and he endorsed the opinion of Dr.
Lodha. Such a conduct on the part of the appellant or the persons belonging to his family is
wholly inconsistent with the allegation of the prosecution that the appellant had murdered the
deceased.
The High Court seems to have made one important comment in that why Dr. Lodha and Dr.
Gandhi were called from some distance when Dr. Kelkar, who was a skin specialist and another
Doctor who was a child expert, were living in the same building. This comment is neither here
nor there. It is manifest that Birdichand was a respectable person of the town and when he
found that his daughter-in-law had died he would naturally send for his family doctor rather
then those who were not known to him.
It appears that PW 30 Mohan Asava was also summoned on telephone and when he came at the
scene of occurrence he found A-2, Birdichand sitting on the floor of the room and Bridichand
hugged him out of grief, and told him that Manju had died of shock and the Doctors were not
prepared to give a death certificate.

87
In order to understand the evidence of this witness it may be necessary to determine the
sequence of events so for as PW 30 is concerned. The witness has stated that while he was
sleeping he was aroused from his sleep by a knock at the door by Ram Vilas Sharda (brother of
appellant) at about 4.00 or 4.15 a.m. Ram Vilas told him that Manju had died and the doctors
were not prepared to give any death certificate. After having these talks the witness, alongwith
Ram Vilas, proceeded to the apartments and remained there till 5.15. a.m. Then he returned to
his house, took bath and at about 6.30 a.m. he received a telephone call from Ram Vilas for
lodging a report with the police with the request that the time of death should be given as 5.30
a.m. Consequently, he reached the police station near about 7.00 or 7.15 a.m. and lodged a
report stating that Manju had died at 5.30 a.m. This witness appears to be of doubtful
antecedents and, therefore, his evidence has to be taken with a grain of salt. He admitted in his
statement at p. 387 that some proceedings about evasion of octroi duty were pending against
him in the Court. He also admitted that he was convicted and sentenced to 9 months R.I under
the Food Adulteration Act in the year 1973.
Apart from this it appears that most of the statements which he made in the Court against
Birdichand and the other accused, were not made by him before the police. These statements
were put to him and he denied the same but they have been proved by the Investigation Officer,
PW 40 whose evidence appears at p. 521 of Part II of the printed paperbook. These belated
statements made in the Court may be summarised thus:
While in his statement before the court the witness at p. 386 (para 19) states that the death of
Manju was suspicious yet he made no such statement before the police on being confronted by
the statement of PW 40. Another important point on which his statement does not appear to be
true is that the dominent fact mentioned to him by Birdichahd and others was that the doctors
were not prepared to issue death certificate but he did not say so before the police. Similarly, he
deposed in the court about the statement made to him by Birdichand that he would lose his
prestige and therefore the body should be cremated before 7.00 a.m, but he advised him not to
do so unless he has informed the police otherwise his whole family would be in trouble. Almost
the entire part of his evidence in para 5 at p. 381 appears to be an afterthought, as PW 40 stated
thus:
"I recorded the statement of PW 30 Mohan Asava. He did not state before me that death of
Manju was suspicious. He did not state before me that Accused No. 3 informed him that the

88
Doctors were not prepared to issue the death certificate. He did not state before me that the
demand was made of the death certificate from the Doctors or the Doctors refused to give the
same. During his statement this witness did not make the statements as per para No. 5
excluding the portions from A to F of his examination-in-chief."
The portions referred to as 'A to F' in para No. 5 of examination-in-chief of PW 30 may be
extracted thus:
"Birdichand then started telling me that Manju had died on account of shock and that-----he
said that she died of heart attack------under any circumstance he wanted to cremate Manju
before 7.O' clock------when he said that he would spend any amount but wanted to cremate her
before 7.00 a.m."
This statement does not appear to be true for the following reasons.
(a) Birdichand knew full well that PW 30 was a police contact constable and as he was not
prepared to persuade the doctors to give a death certificate, his attitude was hardly friendly as
he was insisting that the matter should be reported to the police.
It is, therefore, difficult to believe that Birdichand would take such a great risk in laying all his
cards on the table knowing full well that the witness was not so friendly as he thought and
therefore he might inform the police; thereby he would be in a way digging his own grave.
(b) On a parity of reasoning it would have been most improbable on the part of the appellant,
after having decided to report the matter to the police, to ask PW 30 to report the time of death
as 5.30 a.m. knowing full well his attitude when he came to the apartments.
It is not at all understandable how the witness could have mentioned the time of Manju's death
as 5.30 a.m. or, at any rate, when her death was known to her husband and when he himself
having gone to the apartments near about 4.15 a.m. knew full well that Manju had died earlier
and that Dr. Lodha and Dr. Gandhi had certified the same and advised Birdichand to report the
matter to the police. In the original Ex-120 (in Marathi language), it appears that the time of
death given by the witness is 'Pahate' which, according to Molesworth's Marathi-English
Dictionary at p. 497, means 'The period of six ghatika before unrise, the dawn' i. e., about 2
hours 24 minutes before sunrise (one ghatika is equal to 24 minutes). This would take us to near

89
about 3.00 a.m. Either there is some confusion in the translation of the word 'Pahate' or in the
words '5.30 a.m.', as mentioned in the original Ex. 120. However, nothing much turns on this
except that according to the witness Manju must have died around 3.00 a.m. which is consistent
with the evidence of Dr. Lodha that when he examined Manju at about 2.30 a.m. he found her
dead and rigor mortis had already started setting in.
We are not concerned here with the controversy whether the report was admissible under s. 154
or s. 174 of the Code of Criminal Procedure but the fact remains that the policd did receive the
information that the death took place at 5.30 a.m. The High Court seems to have made a capital
out of this small incident and has not made a realistic approach to the problem faced by
Birdichand and his family. Being a respectable man of the town, Birdichand did not want to act
in a hurry lest his reputation may suffer and naturally required some time to reflect and consult
his friends before taking any action. The allegation that A-3 told him to report the time of death
as 5.30 a.m. is not at all proved but is based on the statement of PW 30, before the police. Thus,
the approach made by the High Court to this aspect of the matter appears to be artificial and
unrealistic as it failed to realise that the question of the time of death of the deceased as 5.30
a.m. could never have been given by the appellant or any other accused because they knew full
well that the two doctors had examined the whole matter and given the time of death as being
round about 1.30 a.m. Having known all these facts how could anyone ask PW 30 to give the
time of death at the police station as 5.30 a.m. Thus, it will be difficult for us to rely on the
evidence of such a witness who had gone to the extent of making wrong statements and trying to
appease both Birdichand and the prosecution, and, therefore, his evidence does not inspire any
confidence.
The last part of the case on this point is the evidence of PWs 2 and 4, where the appellant is said
to have told them that he had sexual intercourse with his wife near about 5.00 a.m. on the 12th
June 1982. Apart from the inherent improbability in the statement of the appellant, there is one
other circumstance which almost clinches the issue. It appears that Kalghatgi (PW 20),
Inspector-in-charge of the police station made a query from Dr. Banerjee which is extracted
below:
Whether it can be said definitely or not as to whether sexual intercourse might have taken just
prior to death ?"

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The above query was made in Ex. 129 and the answer of the Doctor appears in Ex. 187 which is
extracted below:
"From clinical examination there was no positive evidence of having any recent sexual,
intercourse just prior to death."
This positive finding of the Doctor therefore knocks the bottom out of the case made out by the
prosecution tion that the appellant had told PWs 2 and 4 about having sexual intercourse with
his wife. Unfortunately, however, the High Court instead of giving the benefit of this important
circumstance to the accused has given the benefit to the prosecution which is yet another error
in the approach made by the Eight Court while assessing the prosecution evidence. Having
regard to the very short margin of time between the arrival of the appellant in his bed-room and
the death of Manju, it seems to be well-nigh impossible to believe that he would try to have
sexual intercourse with her. This circumstance, therefore, falsifies the evidence of PWs 2 and 4
on this point and shows the extent to which the witnesses could go to implicate the appellant.
Finally, in view of the disturbed nature of the state of mind of Birdichand and the catastrophe
faced by him and his family, it is difficult to believe that the grief expressed and the tears shed by
the appellant when PW 2 met him could be characterised as fake. If it is assumed that the
accused did not commit the murder of the deceased then the weeping and wailing and
expressing his grief to PW 2 would be quite natural and not fake.
There are other minor details which have been considered by the High Court but they do not
appear to us to be very material.
Taking an overall picture on this part of the prosecution case the position seems to be as follows:
(1) if the accused wanted to give poison while Manju was wide awake, she would have put up
stiffest possible resistance as any other person in her position would have done. Dr. Banerjee in
his postmortem report has not found any mark of violence or resistance. Even if she was
overpowered by the appellant she would have shouted and cried and attracted persons from the
neighbouring flats which would have been a great risk having regard to the fact that some of the
inmates of the house had come only a short-while before the appellant.

91
(2) Another possibility which cannot be ruled out is that potassium cyanide may have been given
to Manju in a glass of water, if she happened to ask for it. But if this was so, she being a chemist
herself would have at once suspected some foul play and once her suspicion would have arisen it
would be very difficult for the appellant to murder her.
(3) The third possibility is that as Manju had returned pretty late to the flat she went to sleep
even before the arrival of the appellant and then he must have tried to forcibly administer the
poison by the process of mechanical suffocation, in which case alone the deceased could not
have been in a position to offer any resistance. But this opinion of the Doctor has not been
accepted by the High Court which, after a very elaborate consideration and discussion of the
evidence, the circumstances and the medical authorities, found that the opinion of the Doctor
that Manju died by mechanical suffocation has not been proved or, at any rate, it is not safe to
rely on such evidence. In this connection, we might refer to the finding of fact arrived at by the
High Court on this point: "In view of the above position as is available from the evidence of Dr.
Banerjee and from the observations made by the medical authorities it will not be possible to say
that the existence of the dark red blood in the right ventricle exclusively points out the
mechanical suffocation particularly when such phenomenon is available in cases of poisoning by
potassium cyanide." (PB p. 147-48) "In view of this answer it will not be possible to say
conclusively that this particular symptom of observation is exclusively available in case of
mechanical suffocation.
Thus we have discussed all the seven items on which Dr. Banerjee has relied for the purpose of
giving an opinion that there was mechanical suffocation. In our view, therefore, those 7 findings
would not constitute conclusive date for the purpose of holding that there was mechanical
suffocation. As the 7 findings mentioned above can be available even in the case of cyanide
poisoning we think that it would not be safe to rely upon these circumstances for recording an
affirmative finding that there was mechanical suffocation. As the 7 findings mentioned above
can be available even in the case of cyanide poisoning we think that it would not be safe to rely
upon these circumstances for recording an affirmative finding that there was mechanical
suffocation."
(P.150-151) It is not necessary for us to repeat the circumstances relied upon by the High Court
because the finding of fact speaks for itself.
This being the position, the possibility of mechanical suffocation is completely excluded.

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(4) The other possibility that may be thought of is that Manju died a natural death. This also is
eliminated in view of the report of the Chemical Examiner as confirmed by the postmortem that
the deceased had died as a result of administration of potassium cyanide.
(5) The only other reasonable possibility that remains is that as the deceased was fed up with the
maltreatment by her husband, in a combined spirit of revenge and hostility after entering the
flat she herself took potassium cyanide and lay limp and lifeless. When the appellant entered the
room he must have thought that as she was sleeping she need not be disturbed but when he
found that there was no movement in the body after an hour so, his suspicion was roused and
therefore he called his brother from adjacent flat to send for Dr. Lodha. In these circumstances,
it cannot be said that a reasonable possibility of the deceased having committed suicide, as
alleged by the defence, can be safely ruled out or eliminated.
From a review of the circumstances mentioned above, we are of the opinion that the
circumstance of the appellant having been last seen with the deceased has not been proved
conclusively so as to raise an irresistible inference that Manju's death was a case of blatant
homicide.
This now brings us to an important chapter of the case on which great reliance appears to have
been placed by Mr. Jethmalani on behalf of the appellant. Unfortunately, however, the aspect
relating to interpolations in the postmortem report has been completely glossed over by the
High Court which has not attached any importance to the infirmity appearing in the medical
evidence in support of the said interpolations. Although the learned counsel for the appellant
drew our attention to a number of interpolations in the postmortem report as also the report
sent to the Chemical Examiner, we are impressed only with two infirmities which merit serious
consideration. To begin with, it has been pointed out that in the original postmortem notes
which were sent to Dr. Banerjee (PW 33) for his opinion, there is a clear interpolation by which
the words `can be a case of suicidal death' appear to have been scored out and Dr. Banerjee
explained that since he had written the words `time since death' twice, therefore, the
subsequent writing had been scored out by him. In other words, the Doctor clearly admitted the
scoring out of the subsequent portion and we have to examine whether the explanation given by
him is correct. In order to decide this issue we have examined for ourselves the original
postmortem notes (Ex. 128) where the writing has been admittedly scored out by Dr. Banerjee.
The relevant column against which the scoring has been done is column. No. 5 which runs thus:

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"5. Substance of accompanying Report from Police officer or Magistrate, together with the date
of death, if known. Supposed cause of death, or reason for examination."
The last line indicates that the Doctor was to note two things-(1) the date of death, if known, and
(2) the supposed cause of death. This document appears to have been written by PW 33 on
12.6.82 at 4.30 p.m. The relevant portion of the words written by the Doctor are `time since
dealt' which were repeated as he states in his statement. After these words some other words
have been admittedly scored out and his (PW 33) explanation was that since he had written
`time since death' twice, the second line being a repetition was scored out. A bare look at Ex. 128
does not show that the explanation given by the Doctor is correct. We have ourselves examined
the said words with the help of a magnifying glass and find that the scored words could not have
been `time since death'. The only word common between the line scored out and the line left
intact is `death'. To us, the scored out words seem to be `can be a case of suicidal death'. Dr
Banerjee however stuck to his original stand which is not supported by his own writing in the
document itself. It seems' to us that at the first flush when he wrote the postmortem notes it
appeared to him that no abnormality was detected and that it appears to be a case of suicide
rather than that of homicide. This, therefore, if the strongest possible circumstance to make the
defence highly probable, if not certain. Furthermore, the Doctors's explanation that the scored
words were "time since death", according to the said explanation, the scored words ore only
three whereas the portion scored out contains as many as seven words. Hence the explanation of
the Doctor is not borne out from the document.
It is true that the Doctor reserved his opinion until the chemical examiner's report but that does
not answer the question because in column No.5 of postmortem note Dr. Banerjee has clearly
written "can be a case of suicidal death" which indicates a that in the absence of the report of the
chemical examiner, he was of the opinion that it could have been a case of suicide. In his
evidence, PW 33 stated that in Exh. 128 in column No. 5 the contents scored out read `time
since death' and since it was repeated in the next line, he scored the words in the second line.
Despite persistent cross-examination the Doctor appears to have stuck to his stand. It cannot,
therefore, be gainsaid that this matter was of vital importance and we expected the High Court
to have given serious attention to this aspect which goes in favour of the accused.
Another interpolation pointed out by the learned counsel is regarding position of tongue as
mentioned in Exh.

94
134. In the original while filling up the said column the Doctor appears to have scored out
something; the filled up entry appears thus-`mouth is closed with tip (something scored out)
seen caught between the teeth'. But in the carbon copy of the report which was sent to the
Chemical Examiner (Exh. 132) he has added `caught between the teeth' in ink but in the original
there is something else. This is fortified by the fact that the copy of the report actually sent to the
chemical examiner does not contain any interpolation against the said column where the filled
up entry reads `Inside mouth'.
The combined effect of these circumstances show that Dr. Banerjee (PW33) tried to introduce
some additional facts regarding the position of the tongue. Perhaps this may be due to his final
opinion that the deceased died due to mechanical suffocation which might lead to the tongue
being pressed between the teeth. This, however, throws a cloud of doubt on the correctness or
otherwise of the actual reports written by him and the one that was sent to the Chemical
Examiner. It is obvious that in the carbon copy which was retained by the Doctor, the entries
must have been made after the copy was sent to the Chemical Examiner. However, this
circumstance is not of much consequence because the opinion of the Doctor that Manju died by
forcible administration of potassium cyanide or by the process of mechanical suffocation has not
been proved.
This aspect need not detain us any further because the High Court has not accepted the case of
mechanical suffocation.
So far as the other findings of Dr. Banerjee are concerned we fully agree with the same. A
number of comments were made on behalf of the appellant about Dr. Banerjee's integrity and
incorrect reports but subject to what we said, we do not find any substance in those contentions.
In para 90 of its judgment the High Court has given a number of circumstances which according
to it, go to prove the prosecution case showing that the appellant had administered the poison
during the night of 11th June, 1982. These circumstances may be extracted thus:
(1) In the bed-room Manju died of poisoning between 11.30 p.m. and 1. a.m. in the night
between 11/12th June, 1982.
(2) Accused No. 1 was present in that bed room since before the death of Manju i.e. since about
11.15 p.m.

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(3) Accused No, 1 did not return to the flat at 1.30 a.m or 1.45 a.m. as alleged.
(4) The conduct of accused No. 1 in not calling for the immediate help of Dr. Shrikant Kelkar
and/or Mrs. Anjali Kelkar is inconsistent with his defence that he felt suspicious of the health of
Manju when he allegedly returned to the flat at 1.30 a.m. (5) In different conduct of accused No.
1 when Dr. Lodha and Dr. Gandhi went to the flat in Takshila apartment, Accused No. 1 did not
show any anxiety which one normally finds when the doctor comes to examine the patient.
Accused No. 1 should have accompanied the doctors when they examined Manju and should
have expressly or by his behaviour disclosed his feelings about the well being of his wife. It was
also necessary for him to disclose the alleged fact that he saw Manju in a suspicious condition
when he returned at about 1.30 a.m. Or so.
(6) An attempt of Birdichand to get the cremation of Manju done before 7 a. m. On 12. 6 82 even
by spending any amount for that purpose. This conduct though of Birdichand shows the conduct
of a person to whom Accused No. 1 had gone and informed as to what had happened.
(7) Delay and false information to police at the hands of Mohan Asava. Though the information
is given by Mohan as per the phone instructions of accused No. 3 it is, presumed that accused
No. 1 must have told accused No. 3 about the incident and on that basis accused No.3 gave
instructions to Mohan Asava.
(8) Accused No. 1 himself does not take any action either personally or through somebody else
to give correct information to police.
(9) Arrangement of the dead body to make show that Manju died a peaceful and natural death.
(10) Accused No. 1 has a motive to kill Manju as he wanted to get rid of her to continue relations
with Ujvala.
(11) Absence of an anklet on left ankle of Manju is inconsistent with the defence that Manju
committed suicide.
(12) The conduct of the accused in concealing the anklet in the fold of the Chaddar is a Conduct
of a guilty man.
(13) The door of the bedroom was not found bolted from inside. This would have been normally
done by Manju if she had committed suicide.
(14) Potassium cyanide must not have been available to Manju.
(15) Manju was 4 to 6 weeks pregnant. This is a circumstance which would normally dissuade
her from committing suicide.

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(16) Denial of the part of accused No. 1 of admitted or proved facts.
(17) Raising a false plea of absence from the bedroom at the relevant time. (PP. 152-155) We
have already discussed most of the circumstances extracted above and given our opinion, and
have also fully explained the effect of circumstances Nos. 1,2,3,4,5 and 6. We might again even at
the risk of repetition say that too much reliance seems to have been placed by the High Court on
circumstance No. 4 as the appellant did not immediately call for Dr. Shrikant Kelkar (PW 26)
and Dr. (Mrs.) Anjali Kelkar (PW 27). In a matter of this magnitude it would be quite natural for
the members of the appellant's family to send for their own family doctor who was fully
conversant with the ailment of every member of the family. In these circumstances there was
nothing wrong if the appellant and his brother went to a distance of 11/2 Km. to get Dr. Lodha.
Secondly, Dr. Shrikant Kelkar was skin specialist whereas Dr. (Mrs) Anjali Kelkar was a
Paediatrician and the appellant may have genuinely believed that as they belonged to different
branches, they were not all suitable to deal with such a serious case. The High Court was,
therefore, wrong in treating this circumstance as an incriminating conduct of the appellant.
Circumstance No. 5 is purely conjectural because as soon as Dr. Lodha came he examined Manju
and advised that Dr. Gandhi be called. We fail to understand what was the indifferent conduct of
the appellant when he had sent for the two Doctors who examined the deceased. The appellant
was in the same room or rather in an adjacent room when the deceased was being examined.
From this no inference can be drawn that the appellant was indifferent to the state in which
Manju was found.
As regards circumstance No. 6 we have already explained this while dealing with the evidence of
Mohan Asava, PW 30. As regards circumstance No. 7, the High Court has presumed that there
being no dependable evidence that the information given to the police by PW 30 was false and
that the appellant must have told A-3 about the incident on the basis of which he gave
instructions to PW 30. This is also far from the truth as has been pointed out by us while dealing
with the evidence of PW 30.
Circumstance No. 8 is that PW 30 was asked to report the matter to the police. When the dead
body was lying in the flat what action could the appellant have taken except reporting the matter
to the police through one of his known persons. So far as circumstances Nos. 9 and 10 are
concerned, they do not appear to us to be of any consequence because, as shown by us, from a

97
reading of the letters (Exhs. 30,32 and 33) and the conduct of the appellant, we do not find any
evidence of a clear motive on the part of the appellant to kill Manju.
Circumstances Nos. 11 and 12 are also of no assistance to the prosecution because whether the
anklet was in the chaddar or elsewhere is wholly insignificant and does not affect the issue in
question at all. Circumstance No. 13 is also speculative because if the bedroom was not found
bolted from inside that would it self not show that Manju could not have committed suicide.
Various persons may react to circumstances in different ways. When Manju entered her
bedroom her husband had not come and since she went to sleep she may not have bolted the
door from inside to enable her husband to enter the room. As regards circumstance No. 14, the
High Court has overlooked a very important part of the evidence of PW 2 who has stated at page
178 of part I of the printed paperbook thus:
"The plastic factory at Beed is a partnership concern in which two sons of Dhanraj, my wife and
sister-in-law, i.e., brother's wife are partners."
Dr. Modi's Medical Jurisprudence and Texicology (19th Edn.) at page 747 shows that `Cyanide
is also used for making basic chemicals for plastics'. Apart from the fact that the High Court in
relying on this circumstance has committed a clear error of record, it is an additional factor to
show that cyanide could have been available to Manju when she visited Beed for the last time
and had stayed there for more than a week.
Circumstance No.15-the fact that Manju was 4 to 6 weeks pregnant would dissuade Manju from
committing suicide is also purely speculative. A pregnancy of 4 to 6 weeks is not very serious
and can easily be washed out. Moreover, when a person has decided to end one's life these are
matters which do not count at all. On the other hand, this circumstance may have prompted her
to commit suicide for a child was born to her, in view of her ill-treatment by her husband and
her in-laws, the child may not get proper upbringing. Any way, we do not want to land ourselves
in the field of surmises and conjectures as the High Court has done.
Circumstance No. 17 is wholly irrelevant because the prosecution cannot derive any strength
from a false plea unless it has proved its case with absolute certainty. Circumstance No.17 also is
not relevant because there is no question of taking a false plea of absence from the bedroom at
the relevant time as there is no clear evidence on this point.

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Apart from the aforesaid comments there is one vital defect in some of the circumstances
mentioned above and relied upon by the High Court, viz., circumstances Nos.
4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his
statement under s.313 of the Criminal Procedure Code they must be completely excluded from
consideration because the appellant did not have any chance to explain them. This has been
consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat Singh
v. State of Madhya Pradesh(1) this Court held that any circumstance in respect of which an
accused was not examined under s. 342 of the Criminal procedure code cannot be used against
him ever since this decision. there is a catena of authorities of this Court uniformly taking the
view that unless the circumstance appearing against an accused is put to him in his examination
under s.342 of the or s.313 of the Criminal Procedure Code, the same cannot be used against
him. In Shamu Balu Chaugule v. State of Maharashtra(2) this Court held thus:
"The fact that the appellant was said to be absconding not having been put to him under section
342, Criminal Procedure Code, could not be used against him."
To the same effect is another decision of this Court in Harijan Megha Jesha v. State of
Gujarat (3) where the following observation were made:
"In the first place, he stated that on the personal search of the appellant, a chadi was found
which was blood stained and according to the report of the serologist, it contained human blood.
Unfortunately, however, as this circumstance was not put to the accused in his statement under
section 342, the prosecution cannot be permitted to rely on this statement in order to convict
the appellant.':
It is not necessary for us to multiply authorities on this point as this question now stands
concluded by several decision of this Court. In this view of the matter, the circumstances which
were not put to the appellant in his examination under s.313 of the Criminal Procedure Code
have to be completely excluded from consideration.
We might mention here an important argument advance by counsel for the appellant and
countered by the Additional Solicitor General. It was argued before the High Court that it was
highly improbable that if the betrothal ceremony of appellant's sister, which was as important as
the marriage itself, was going to be performed on the 13th of June, would the appellant clouse a
day before that for murdering his wife and thereby bring disgrace and destruction not only to his

99
family but also to her sister. We have already adverted to this aspect of the matter but it is rather
interesting to note how the High Court has tried to rebut this inherent improbability, on the
ground that in a case of administration of poison the culprit would just wait for an opportunity
to administer the same and once he gets the opportunity he is not expected to think rationally
but would commit the murder at once. With due respect to the Judges of the High Court, we are
not able to agree with the somewhat complex line of reasoning which is not supported by the
evidence on record. There is clear evidence, led by the prosecution that except for a week or few
days of intervals, Manju always used to live with her husband and she had herself complained
that he used to come late at night. Hence, as both were living alone in the same room for the last
four months there could be no dearth of any opportunity on the part of the appellant to
administer poison if he really wanted to do so. We are unable to follow the logic of the High
Court's reasoning that once the appellant got an opportunity he must have clung to it. The
evidence further shows that both Manju and appellant had gone for a honeymoon outside Pune
and even at that time he could have murdered her and allowed the case to pass for a natural
death. However, these are matters of conjectures.
The Additional Solicitor-General realising the hollowness of the High Court's argument put it in
a different way. He submitted that as the deceased was 4-6 weeks pregnant the appellant
realisedthat unless the deceased was murdered at the behest it would become very difficult for
him to murder her, even if he had got an opportunity, if a child was born and then he would
have to maintain the child also which would have affected his illicit connections with Ujvala.
This appears to be an attractive argument but on close scrutiny it is untenable. If it was only a
question of Manju's being 4-6 weeks pregnant before her death, the appellant could just as well
have waited just for another fortnight till the marriage of his sister was over which was fixed for
30th June, 1982 and then either have the pregnancy terminated or killed her. Moreover, it
would appear from the evidence of PW 2 (P.176) that in his community the Kohl ceremony is not
merely a formal betrothal but a very important ceremony in which all the near relations are
called and invited to attend the function and a dinner is hosted. We might extract what PW 2
says about this:
"At the time of Kohl celebration of Manju, on 2.8.1981 my relatives i.e. my sister from outside
had attended this function and many people were invited for this function. A dinner was also
hosted by me. In that function the father of the bridegroom is required to spend for the dinner
while the presentations made to the bride are required to be given or donned at the expenses of

100
the side of bridegroom This programme is not attended by the bridegroom." (P.176) As
Birdichand and others were made co-accused in the case they were unable to give evidence on
this point but it is the admitted case of both the parties that the accused belonged to the same
community as PW 2. In these circumstances, it is difficult to accept the argument that the
appellant would commit the murder of his wife just on the eve of Kohl ceremony, which he could
have done the same long before that ceremony or after the marriage as there was no hurry nor
any such impediment which would deny him any opportunity of murdering his wife.
We now come to the nature and character of the circumstantial evidence. The law on the subject
is well settled for the last 6-7 decades and there have been so many decisions on this point that
the principles laid down by courts have become more or less axiomatic.
The High Court has referred to some decisions of this Court and tried to apply the ratio of those
cases to the present case which, as we shall show, are clearly distinguishable. The High Court
was greatly impressed by the view taken by some courts, including this Court, that a false
defence or a false plea taken by an accused would be an additional link in the various chain of
circumstantial evidence and seems to suggest that since the appellant had taken a false plea that
would be conclusive, taken along with other circumstances, to prove the case. We might,
however, mention at the outset that this is not what this Court has said. We shall elaborate this
aspect of the matter a little later It is well settled that the prosecution must stand or fall on its
own legs and it cannot derive any strength from the weakness of the defence. This is trite law
and no decision has taken a contrary view. What some cases have held is only this: where
various links in a chain are in themselves complete than a false plea or a false defence may be
called into aid only to lend assurance to the Court. In other words, before using the additional
link it must be proved that all the links in the chain are complete and do not suffer from any
infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same
could be cured or supplied by a false defence or a plea which is not accepted by a Court.
Before discussing the cases relied upon by the High Court we would like to cite a few decisions
on the nature, character and essential proof required in a criminal case which rests on
circumstantial evidence alone. The most fundamental and basic decision of this Court
is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and
applied by this Court in a large number of later decisions uptodate, for instance, the cases of

101
Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It
may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the first instance be
fully established and all the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as not to leave any reasonable
ground far a conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the accused."
A close analysis of this decision would show that the following conditions must be fulfilled
before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should'
and not 'may be' established. There is not only a grammatical but a legal distinction between
'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao
Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty
before a court can convict and the mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say. they should not be explainable on any other hypothesis except that the
accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there
must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.

102
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
It may be interesting to note that as regards the mode of proof in a criminal case depending on
circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of
the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry,
(l) thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render
the commission of the crime morally certain and leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and compelling as to convince a jury that up on no
rational hypothesis other than murder can the facts be accounted for."
Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render
the commission of the crime certain'.
This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be
proved only when there is certain and explicit evidence and no person can be convicted on pure
moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v.
The State of Bombay(2) Lagu's case as also the principles enunciated by this Court in
Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of
this Court without any single exception. To quote a few cases Tufail's case (supra), Ramgopals
case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of
1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of
1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case
has not been expressly noticed but the same principles have been expounded and reiterated, as
in Naseem Ahmed v. Delhi Administration(l). Mohan Lal Pangasa v. State of U.P.,(2) Shankarlal
Gyarasilal Dixit v. State of Maharashtra(3) and M.C. Agarwal v. State of Maharashtra(4)-a fiveJudge Bench decision.
It may be necessary here to notice a very forceful argument submitted by the Additional
Solicitor-General relying on a decision of this Court in Deonandan Mishra v. The State of
Bihar(5), to supplement this argument that if the defence case is false it would constitute an
additional link so as to fortify the prosecution case. With due respect to the learned Additional

103
Solicitor General we are unable to agree with the interpretation given by him of the aforesaid
case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as started above have been satisfactorily made out
and the circumstances point to the appellant as the probable assailant, with reasonable
definiteness and in proximity to the deceased as regards time and situation-such absence of
explanation of false explanation would itself be an additional link which completes the chain."
It will be seen that this Court while taking into account the absence of explanation or a false
explanation did hold that it will amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said earlier, viz., before a false
explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3)
the circumstance is in proximity to the time and situation.
If these conditions are fulfilled only then a court can use a false explanation or a false defence as
an additional link to lend an assurance to the court and not otherwise. On the facts and
circumstances of the present case, this does not appear to be such a case. This aspect of the
matter was examined in Shankarlal's case (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to
establish in order to succeed. A false plea can at best be considered as an additional
circumstance, if other circumstances point unfailingly to the guilt of the accused."
This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's
case (supra). Unfortunately, however, the High Court also seems to have misconstrued this
decision and used the so-called false defence put up by the appellant as one of the additional
circumstances connected with the chain. There is a vital difference between an incomplete chain
of circumstances and a circumstance which, after the chain is complete, is added to it merely to
reinforce the conclusion of the court. Where the prosecution is unable to prove any of the
essential principles laid down in Hanumant's case, the High Court cannot supply the weakness
or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore,
unable to accept the argument of the Additional Solicitor-General Moreover, in M.G. Agarwal's

104
case (supra) this Court while reiterating the principles enunciated in Hanumant's case observed
thus:
"If the circumstances proved in the case are consistent either with the innocence of the accused
or with his guilt, then the accused is entitled to the benefit of doubt."
In Shankarlal's (supra) this Court reiterated the same view thus:
"Legal principles are not magic incantations and their importance lies more in their application
to a given set of facts than in their recital in the judgment".
We then pass on to another important point which seems to have been completely missed by the
High Court. It is well settled that where on the evidence two possibilities are available or
open, one which goes in favour of the prosecution and the other which benefits an accused, the
accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal
Pradesh,(l) this Court made the following observations:
"Another golden thread which runs through the web of the administration of justice in criminal
cases is that if two views are possible on the evidence adduced in the case one pointing to the
guilt of the accused and the other to his innocence, the view which is favourable to the accused
should be adopted This principle has a special relevance in cases where in the guilt of the
accused is sought to be established by circumstantial evidence."
We now come to the mode and manner of proof of cases of murder by administration of poison.
In Ramgopal's case (supra) this Court held thus:
"Three questions arise in such cases, namely (firstly), did the deceased die of the poison in
question ? (secondly), had the accused the poison in his possession ? and (thirdly), had the
accused an opportunity to administer the poison in question to the deceased ? It is only when
the motive is there and these facts are all proved that the court may be able to draw the
inference, that the poison was administered by the accused to the deceased resulting in his
death."
So far as this matter is concerned, in such cases the court must carefully scan the evidence and
determine the four important circumstances which alone can justify a conviction:

105
(1) there is a clear motive for an accused to administer poison to the deceased, (2) that the
deceased died of poison said to have been administered, (3) that the accused had the poison in
his possession, (4) that he had an opportunity to administer the poison to the deceased.
In the instant case, while two ingredients have been proved but two have not. In the first place,
it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been
proved that there was an opportunity to administer the poison. It has, however, not been proved
by any evidence that the appellant had the poison in his possession. On the other hand, as
indicated above, there is clear evidence of PW 2 that potassium cyanide could have been
available to Manju from the plastic factory of her mother, but there is no evidence to show that
the accused could have procured potassium cyanide from any available source. We might here
extract a most unintelligible and extra-ordinary finding of the High Court"It is true that there is no direct evidence on these two points, because the prosecution is not
able to lead evidence that the accused had secured potassium cyanide poison from a particular
source. Similarly there is no direct evidence to prove that he had administered poison to Manju.
However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial
evidence can be a basis for proving this fact."
(P.160) The comment by the High Court appears to be frightfully vague and absolutely
unintelligible. While holding in the clearest possible terms that there is no evidence in this case
to show that the appellant was in possession or poison, the High Court observes that this fact
may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the
nature of the circumstantial or indirect evidence to show that the appellant was in possession of
poison. If the court seems to suggest that merely because the appellant had the opportunity to
administer poison and the same was found in the body of the deceased, it should be presumed
that the appellant was in possession of poison, than it has committed a serious and gross error
of law and has blatantly violated the principles laid down by this Court. The High Court has not
indicated as to what was the basis for coming to a finding that the accused could have procured
the cyanide. On the other hand, in view of the decision in Ramgopal's case (supra) failure to
prove possession of the cyanide poison with the accused by itself would result in failure of the
prosecution to prove its case. We are constrained to observe that the High Court has completely
misread and misconstru-

106
ed the decision in Ramgopal's case. Even prior to Ramgopol's case there are two decisions of this
Court which have taken the same view. In Chandrakant Nyalchand Seth's case (Criminal Appeal
No. 120 of 1957 decided on 19.2.58) this Court observed thus:
"Before a person can be convicted of murder by poisoning, it is necessary to prove that the death
of the deceased was caused by poison, that the poison in question was in possession of the
accused and that poison was administered by the accused to the deceased. There is no direct
evidence in this case that the accused was in possession of Potassium Cyanide or that he
administered the same to the deceased."
The facts of the case cited above were very much similar to the present appeal. Here also, the
Court found that circumstances afforded a greater motive to the deceased to commit suicide
than for the accused to commit murder. This view was reiterated in Dharambir Singh's case
(Criminal Appeal No. 98 of 1958 decided on 4.11.1958) where the court observed as follows:
"Therefore, along with the motive, the prosecution has also to establish that the deceased died of
a particular poison said to have been administered, that the accused was in possession of that
poison and that he had the opportunity to administer the same to the deceased: (see Mt. Gujrani
and another v. Emperor('). It is only when the motive is there and these facts are all proved that
the court may be able to draw the inference, in a case of circumstantial evidence, that the poison
was administered by the accused to the deceased resulting in his death.
We feel that it was not right for the High Court to say, when this link in the chain had failed, that
it could not be very difficult for anybody to procure potassium cyanide and therefore the absence
of proof of possession of potassium cyanide by the accused was practically of no effect. On the
facts as found by the High Court it must be held that the second of the three facts which have to
be proved, in case of poisoning based on circumstantial evidence has not been proved, namely
that the accused was in possession of the poison that had been found in the body-Can it be said
in these circumstances when the proof of a very vital fact namely, that the accused was in
possession of potassium cyanide, has failed that the chain of circumstantial evidence, is so far
complete as not to leave any reasonable ground for a conclusion consistent with the innocence of
the accused and that the evidence which remains after the rejection of this fact is such as to
show that within all human probability the act must have been done by the accused."

107
We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the
ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence
in this case two possibilities are clearly open(1) that it may be a case of suicide, or (2) that it may be a case of murder and both are equally
probable, hence the prosecution case stands disproved.
We now proceed to deal with some of the judgments of this Court on which great reliance has
been placed by the High Court. In the first place, the High Court relied on the case of Pershadi v.
State of Uttar Pradesh('). This case appears to be clearly distinguishable because no point of law
was involved therein and on the facts proved and the very extraordinary conduct of the accused,
the court held that the circumstantial evidence was consistent only with the guilt of the accused
and inconsistent with any other rational explanation. Indeed, if this would have been our finding
in this particular case, there could be no question that the conviction of the accused would have
been upheld.
The next on which the High Court placed great reliance is case Lagu's case (supra). This case
also does not appear to be of any assistance to the prosecution. In the first place, the case was
decided on the peculiar facts of that case. Secondly, even though the corpus deliciti was not held
to be proved yet the medical evidence and the conduct of the accused unerringly pointed to the
inescapable conclusion that the death of the deceased was as a result of administration of poison
and that the accused was the person who administered the same. This. however, is not the case here. On the other hand, we have held that the
conduct of the appellant has not been proved to be inconsistent with his guilt and on this ground
alone the present case can be easily distinguished. If at all it is an authority it is on the point that
this Court is not required to enter into an elaborate examination of the evidence unless there are
very special circumstances to justify the same. At this Court in that case was clearly of the view
that the High Court had fully considered the facts and a multitude of circumstances against the
accused remained unexplained, the presumption of innocence was destroyed and the High
Court was therefore right in affirming the conviction. Of course, Sarkar, J. gave a dissenting
judgment. From a detailed scrutiny of the decision cited above (Lagu's Case) we find that there
is nothing in common between the peculiar facts of that case and the present one. Hence, this
authority is also of no assistance to the prosecution.

108
Reliance was then placed on the case of Ram Dass v. State of Maharashtra(l) but we are unable
to see how this decision helps the prosecution. The High Court relied on the fact that as the
accused had taken the deceased immediately to the Civil Hospital in order to stop the poison
from spreading, this particular fact was eloquent enough to speak for the innocence of the
accused. A careful perusal of that decision shows that this Court did not accept the prosecution
case despite circumstances appearing in that case which are almost similar to those found in the
present one. Moreover, here also the accused had immediately sent for their family Doctor after
they had detected that Manju was dead. The reason for a little delay in lodging the FIR has
already been explained by us while dealing with the facts. In the decision cited above, it was
clearly held that the case against the accused was not proved conclusively and unerringly and
that two reasonable views were possible, the relevant portion of which may be extracted thus:
"On a consideration of the evidence and the circumstances referred to above, we are satisfied
that this is a case in which the circumstantial evidence did not prove the case against the
accused conclusively and unerringly, and at any rate two reasonable views were possible."
We have already found in the instant case that taking the prosecution at the highest the utmost
that can be said is that two views-one in favour of the accused and the other against him-were
possible. Ram Dass's case also therefore supports the appellant rather than the prosecution.
The last case relied upon by the High Court is Shankarlal's case (supra) but we are unable to see
how this case helps the prosecution. The observations on which the High Court has relied upon
appears to have been torn from the context. On the other hand, this decision fully supports the
case of the appellant that falsity of defence cannot take the place of proof of facts which the
prosecution has to establish in order to succeed. This decision has already been dealt with by us
while considering the merits of the present case and it is not necessary to repeat the same.
These are the only important cases of this Court on which the High Court seeks to rely and
which, on a close examination, do not appear to be either relevant or helpful to the prosecution
case in any way. On the other hand, some of the observations made in these cases support the
accused rather than the prosecution.
This now brings us to the fag end of our judgment. After a detailed discussion of the evidence,
the circumstances of the case and interpretation of the decisions of this Court the legal and
factual position may be summarised thus:

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(1) That the five golden principles enunciated by this Court in Hanumant's decision (supra) have
not been satisfied in the instant case. As a logical corollary, it follows that it cannot be held that
the act of the accused cannot be explained on any other hypothesis except the guilt of the
appellant nor can it be said that in all human probability, the accused had committed the
murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of
a criminal case which rests purely on circumstantial evidence. (2) That, at any rate, the evidence
clearly shows that two views are possible-one pointing to the guilt of the accused and the other
leading to his innocence. It may be very likely that the appellant may have administered the
poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself
committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the
appellant is entitled to the benefit of doubt resulting in his acquittal.
(3) The prosecution has miserably failed to prove one of the most essential ingredients of a case
of death caused by administration of poison, i.e., possession of poison with the accused (either
by direct of circumstantial evidence) and on this ground alone the prosecution must fail. (4)
That in appreciating the evidence, the High Court has clearly misdirected itself on many points,
as pointed out by us, and has thus committed a gross error of law:
(5) That the High Court has relied upon decisions of this Court which are either inapplicable or
which, on closer examination, do not support the view of the High Court being clearly
distinguishable. (6) That the High Court has taken a completely wrong view of law in holding
that even though the prosecution may suffer from serious infirmities it could be reinforced by
additional link in the nature of false defence in order to supply the lacuna and has thus
committed a fundamental error of law.
(7) That the High Court has not only misappreciated the evidence but has completely overlooked
the well established principles of law and in view of our finding it is absolutely clear that the
High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits
and bits.
(8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the
evidence of Dr. Banerjee (PW 33) which shows that poison was forcibly administered by the
process of mechanical suffocation.
(9) We also agree with the High Court that there is no manifest defect in the investigation made
by the police which appears to be honest and careful. A proof positive of this fact is that even
though Rameshwar Birdichand and other members of his family who had practically no role to

110
play had been arrayed as accused but they had to be acquitted by the High Court for lack of legal
evidence.
(10) That in view of our finding that two views are clearly possible in the present case, the
question of defence being false dose not arise and the argument of the High Court that the
defence is false does not survive.
This was a fit case in which the High Court should have given at least the benefit of doubt to the
appellant.
Normally, this Court does not interfere with the concurrent findings of fact of the courts below,
in the absence of very special circumstances or gross errors of law committed by the High Court.
But where the High Court ignores or overlocks the crying circumstances and proved facts,
violates and misapplies the well established principles of criminal jurisprudence or decisions
rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of
doubt to the accused despite facts apparent on the face of the record or on its own findings or
tries to gloss over them without giving any reasonable explanation or commits errors of law
apparent on the face of the record which results in serious and substantial miscarriage of justice
to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of
the High Court.
We can fully understand that though the case superficially viewed bears an ugly look so as to
prima facie shock the conscience of any Court yet suspicion, however great it may be, cannot
take the place of legal proof. A moral conviction however strong or genuine cannot amount to a
legal conviction supportable in law.
It must be recalled that the well established rule of criminal justice is that 'fouler the crime
higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused
was given a capital sentence, a very careful, cautious and meticulous approach was necessary to
be made.
Manju (from the evidence on the record) appears to be not only a highly sensitive woman who
expected whole-hearted love and affection from her husband but having been thoroughly
disappointed out of sheer disgust, frustration and depression she may have chosen to end her
life-at least this possibility is clearly gleaned from her letters and mental attitude. She may have

111
been fully justified in entertaining an expectation that after marriage her husband would look
after her with affection and regard. This is clearly spelt out in the letters where she hinted that
her husband a was so busy that he found no time for her. A hard fact of life, which cannot be
denied, is that some people in view of their occupation or profession fined very little time to
devote to their family. Speaking in a light vein, lawyers, professors, Doctors and perhaps Judges
fall within this category and to them Manju's case should be an eye- opener.
For the reasons given above we hold that the prosecution has failed to prove its case against
appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the judgments of
the courts below and acquit the appellant, Sharad Bridichand Sarda, of the charges framed
against him and direct him to be released and set at liberty forthwith.
VARADARAJAN, J. This appeal by special leave is directed against the judgment of a Division
Bench of the Bombay High Court in Criminal Appeal No. 265 of 1983 and Confirmation Case
No. 3 of 1983, dismissing the appeal and confirming the sentence of death awarded to the first
accused Sharad Birdhichand Sarda (hereinafter referred to as the 'appellant') by the Additional
Sessions Judge, Pune in Sessions Case No. 203 of 1982. The appellant, Rameshwar Birdhichand
Sarda and Ramvilas Rambagas Sarda were accused 1, 2 and 3 respectively in the Sessions Case.
The appellant and the second accused are the sons of one Birdhichand of Pune whose family has
a cloth business. In addition the appellant who is said to be a graduate in Chemical Engineering
had started a chemical factory at Bhosari, a suburb of Pune. The third accused is uncle of the
appellant and the second accused. The appellant is the husband of Manjushree alias Manju
while the second accused is the husband of Anuradha (P.W.35). Birdhichand's family has its
residential house at Ravivar Peth in Pune and owns a flat in a building known as Takshasheela
Apartments in Mukund Nagar area of Pune.
Manju, the alleged victim in this case, was the eldest amongst the five children of Rameshwar
(P.W 2) and Parwati (P.W.20). Anju (P.W.6) is the second daughter of P.W.2 who is a
Commercial Tax and Income Tax Consultant since 1960. P.W.2 is living in his own house situate
in Subash Road in Beed city since 1973, prior to which he was living in a rented house in
Karimpura Peth in that city. Meena (P.W.5) is a school and college mate and friend of Manju
who passed the B.Sc. examination in Chemistry in the First Class in 1980 while P.W.5 who had
passed the 10th standard examination together with Manju was still studying in college. Rekha

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(P.W.3) whom Manju used to call as Vahini is another friend of Manju. She is living with her
husband Dr. Dilip Dalvi in a portion of P.W.2's house in Subash Road, Pune as his tenant.
P.W.20's elder brother Dhanraj Rathi (P.W.22) is a resident of Pune where he is doing business
in the sale of plastic bags for the manufacture of which he has a plastic factory called Deepak
Plastics at Beed. It is a partnership concern of P.W.20 and some others including P.W.22's third
son Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20.
After Manju passed her B.Sc. degree examination in 1980 her marriage with the appellant was
settled by a formal betrothal ceremony which took place in June 1981. The marriage of the
appellant and Manju was performed at the expense of P.W.2 at Beed on 11.2.1982. The appellant
and Manju left for Pune on 12.2.1982 after the marriage. Subsequently, P.W.2 sent his elder son
Deepak for fetching Manju from the appellant's house at Pune and they accordingly came back
to Beed on 22.2.1982. The appellant went to Beed four or five days later and took Manju back to
Pune on the next day after pleading his inability to stay in P.W.2's house for some more days.
This was Manju's first visit to her parents' house after her marriage with the appellant. She is
said to have been very happy during that visit. Thereafter Manju came to her parents' house
alongwith her maternal uncle Dhanraj Rathi (P.W.22) on or about 2.4.1982. It is the case of the
prosecution that during that visit Manju was uneasy and had generally complained against the
appellant to P.Ws.3 and 6. P.W.2 planned to keep Manju in his house for about three weeks on
that occasion. But news of the death of the appellant's grand father was received in P.W.2's
house in Beed and, therefore, P.Ws. 2 and 20 and Manju went to Pune for condolences on
11.4.1982. After meeting the appellant's father and others at Pune, P.Ws. 2 and 20 returned to
Beed leaving Manju in the appellant's house in Pune. That was the second visit of Manju to her
parents' house after marriage with the appellant. P.Ws.2 and 20 came to Pune again on or about
13.5.1982. After staying for some time as usual in the house of P.W. 22, P.Ws. 2 and 20 visited
the house of Birdhichand on that occasion. It is the case of the prosecution that P.Ws. 2 and 20
found Manju disturbed and uneasy and that they, therefore, took her to the house of P.W. 22
with the permission of Birdhichand. It is also the case of the prosecution that on reaching P.W.
22's house Manju completely broke down and started weeping in the arms of P.W.20. P.Ws. 2
and 20 returned to Beed from Pune and sent their second son Pardeep four or five days later to
fetch Manju, who had, however, by then gone with the appellant to Tirupati in Andhra Pradesh.
After learning that the appellant and Manju had returned to Pune, P.W.2 sent his son Deepak to
fetch Manju to Beed. Accordingly Deepak brought Manju to Beed accompanied by the third
accused daughter Kavita on 25.5.1982. This was Manju's third and last visit to her parents'

113
house after her marriage with the appellant. It is the case of the prosecution that Manju was
totally disturbed and frightened during that visit and that she complained to her mother P.W.20
against the appellant and she in turn conveyed to P.W.20 what she heard from Manju.
Birdhichand went to Beed on 2.6.1982 without any prior intimation for taking Manju to Pune on
the ground that Manju's presence in his family house at pune was necessary for the betrothal
ceremony of his daughter Shobha fixed for 13.6.1982 as well as for her marriage fixed for
30.6.1982. It is the case of the prosecution that when Manju came to know that her father in-law
Birdhichand had come for taking her to Pune she was wept and expressed her unwillingness to
go to Pune and that, however, on the assurance of Birdhichand that he would see to it that
nothing happened to the life of Manju, P.W.2 permitted Manju to go to Pune alongwith
Birdhichand and she accordingly went to Pune on 3.6.1982 alongwith Kavita and Birdhichand.
The family of Birdhichand and his sons including the appellant is joint. As stated earlier they
have their family's residential house at Ravivar Peth, Pune besides the flat which they owned in
the Takshasheela Apartments situate at some distance from their family house. Their flat has
two bed-rooms besides a hall and other portions. Birdhichand's two married sons, the appellant
and the second accused used to go to the family's flat in the Takshasheela Apartments for
sleeping during the nights. The appellant and Manju used to sleep in one of the two bed-rooms
while the second accused and his wife Anuradha (P.W.35) and their children used to sleep in the
other bed-room.
Manju had written amongst others, three letters, Ex.33 dated 25.4.1982 to her friend vahini
(P.W.3) and Ex. p. 30 dated 8.2.1982 and p. 32 dated 8.6.1982 to her younger sister Anju
(P.W.6). In Ex. 33 Manju has stated inter alia that she was feeling lonely though all persons in
pune were very good and everybody was loving and that one reason is that there are many
elderly persons in the house and, therefore, she does not dare to do any work independently and
the fear which is in her mind every time leads to confusion. She has also stated in that letter
though all person in Pune were very good that she becomes angry if he (appellant) does not
speak to her when she goes and talks to him even ten times and that till now this man
(appellant) had no time to mind his wife. She has stated in that letter that she dare not ask him
(appellant) whether his clothes be taken for washing and that at present her status is only that of
an unpaid maid-servant. She has finally stated in that letter that on the day on which self-pride
in the appellant is reduced no other person will be more fortunate than her but it is not certain
whether she will be alive until that date. In Ex. 30 she has stated inter alia that she was

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undergoing a very difficult test and was unable to achieve her object, that it would be well and
good only if she controls herself and that some other way will have to be evolved when' that
becomes impossible. In Ex. 32 she has stated that though she was happy at Pune she does not
know why there is such a dirty atmosphere in the house and it is felt every moment that
something will happen. She has also stated in that letter that no work had been started in the
house though Shobha's 'sari' function is fixed for 13.6.1982 and, therefore, she is out of her
mind.
The case of the prosecution as regards the alleged occurrence during the night of 11/12.6.1982 is
thus: on 11- 6-1982 at about 10.30 p.m. Manju accompanied by Anuradha, (P.W. 35) and three
children of the latter came to the Taksheela Apartments by an auto-rickshaw. The nightwatchman of the Takshasheela Apartments, kerba (P.W. 28) has deposed about this fact. Syed
Mohideen, (P.W. 7) an auto-rickshaw driver residing in the border of Ganesh Peth and Ravivar
Peth in Pune claims to have taken two ladies, three children and a baby by his auto-rickshaw at
about 11 p.m. on that day to Mukund Nagar. He has identified the photo of Manju published in a
newspaper two or three days later as that of one of the two ladies who travelled by his autorickshaw as aforesaid. The second accused had already gone to the flat in the Takshasheela
Apartments. The appellant reached the flat about 15 minutes later by a scooter, whom the night
watchman (P.W. 28) remarked that he was coming rather late he told P.W. 28 that it was
because he had a meeting. After the appellant reached the flat he and Manju retired to their bedroom while the second accused and P.W. 35 retired to their's. Thereafter the appellant came out
of his bed-room at about 2 a.m. on 12.6.1982 and went to the second accused and both of them
went out of that flat by scooters soon afterwards. The appellant proceeded to Ravivar Peth and
called his father while the second accused went to call Dr. Uttam chand Lodha. (P.W. 24) who
lives about one and a half kilo metres away from the Takshasheela Apartments without seeking
the help of Dr. Anjali Kelkar,(P.W. 26) and her husband Dr. Shrikant Kelkar (P.W. 27) who lived
close by in the same Takshasheela Apartments. P.W. 24 reached the appellant's flat at about
2.30 a.m. and found Manju dead, with rigor motis having already set in and no external mark
showing the cause of death. He, however, opined that it may be a case of unnatural death and
suggested that the police may be informed. When Birdhichand who had arrived at the flat by
then advised that some other doctor may be called as he was not satisfied with the opinion of
P.W- 24 suggested that Dr. Anil Gandhi, P.W 25 may be called if so desired. Thereafter, P.W. 24
and the third concerned who had come with Birdhichand went to call P.W. 25 who lives about 7
kilo metres away from the Takshasheela Apartments. On their way they contacted P.W. 25 over

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the phone and took him to the appellant's flat where he examined Manju at about 4 a.m. and
pronounced that she was dead. He opined that she might have died three or four hours earlier
and stated that there was no external evidence showing the cause of death. He too suggested
that the police should be informed to avoid any trouble.
The third accused went to Mohan Asava, (P.W. 30) at about 4.30 a.m. on 12.6.1982 and called
him to the appellant's flat after informing him that Manju was dead. P.W. 30, who accompanied
the third accused, saw the body of Manju in the flat and left the place after suggesting that the
police should be informed. The third accused contacted P.W. 30 over the phone at about 6.30
a.m. and asked him to go and inform the police that Manju had died at 5.30 a.m. P.W. 30
accordingly went to Maharishi Nagar Police Station at about 7 or 7.15 a.m. and informed the
Head Constable, (P.W. 31) who thereupon made the entry Ex. 120 to the effect that Manju was
found to be dead when the appellant tried to wake her a up at 5.30 a.m- on 12.6.1982. P.W. 31
proceeded to the appellant's flat at about 8 a.m. after informing the Inspector of Police, P.W. 40
telephonically about the suspicious death of Manju.
On receipt of information from P.W. 22 by a lightning telephone call at about 6 a.m. on
12.6.1982 that Manju was extremely serious P.W. 2 went from Beed to Pune alongwith his wife
P.W. 20 and his son Pradeep and Hiralal Sarda (P.W.
4) by jeep at about 1 P.m. on 12.6.1982. and learnt that Manju was dead. Thereafter P.W.2 went
alongwith Hiralal Sarda to the Sasson Hospital where Manju's body had been sent by the police
for autopsy.
Dr. Kalikrishnan Banerji, P.W. 33 who conducted autopsy on the body of Manju did not find any
external or internal injury. He preserved the viscera, small intestines etc. of Manju and reserved
his opinion about the cause of her death. On receipt of the Chemical Examiner's report Ex. 130
to the effect that Manju's viscera contained potassium cyanide poison P.W. 33 finally opined
that Manju had died due to potassium cyanide poisoning and simultaneous mechanical
suffocation. After completing the investigation P. W.40 filed the charge-sheet against the
appellant and the other two accused on 13.9.1982.
The Additional Sessions Judge, Pune tried the appellant for offence under Sec. 302 IPC of
murder of Manju by administering potassium cyanide poison or by suffocating her or by both,
all the three accused for the offence under Sec. 120 B IPC of conspiring to destroy the evidence

116
of the murder of Manju by giving a false report to the police about the time of her death and the
third accused for the offence under Sec. 109 read with Sec. 201 IPC and Sec. 201 IPC for
intsigating P.W.30 to give false information to the police and giving false information to P.W. 22
regarding the murder of Manju.
The appellant and the other two accused denied the charges framed against them. The appellant
denied that he had anything to do with Ujvala (P.W. 37) with whom is alleged to have been in
love at the relevant time. He admitted that Manju and P.W. 35 accompanied by some children
went to their flat in the Takshasheela Apartments at about 10.30 p.m. on 11.6.1982 but denied
that they travelled by any auto-rickshaw and stated that they went there by their family's car
driven by the second accused. He denied that he went to the flat about 15 minutes later and
stated that he returned to the fiat only at 1.30 or 1.45 a.m. on 12.6 1982 after attending a meeting
in the Rajasthan Youth Club. He stated that after changing his clothes he looked at Manju and
found something abnormal and became suspicious and then went to the second accused and
that there after he went to call his father and uncle while the second accused went to call Dr.
Lodha, P.W. 24.
The Trial Court found all the three accused guilty as charged and convicted them accordingly
and sentenced the appellant to death under s.302 IPC and all the three accused to rigorous
imprisonment for two years and a fine of Rs. 2,000 each under s.120 B IPC but did not award
any sentence under s.201 read with s.120B The appellant and the other two accused filed
appeals against their conviction and the sentences awarded to them. The State filed a criminal
revision application for enhancement of the sentence awarded to accused 2 and 3. These
appeals, confirmation case and criminal revision application were heard together by the Division
Bench of the Bombay High Court, which in a lengthy judgment. (195 pages of our paper book)
allowed the appellant's appeal in part regarding his conviction and sentence under s.120 B IPC
but confirmed his conviction and sentence of death awarded under s 302 IPC and allowed the
appeal of accused 2 and 3 in full and acquitted them and dismissed the criminal revision
application. Hence, the appellant alone has come up before this Court on special leave against
his conviction and the sentence of death.
I had the benefit of reading the judgment of my learned brother Fazal Ali, J. I agree with his
final conclusion that the appeal should succeed. The learned Judges of the High Court have
relied upon 17 circumstances for confirming the conviction and sentence of death awarded to

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the appellant. My learned brother Fazal Ali, J. has rightly rejected every one of those
circumstances as not conclusively pointing to the guilt of the appellant, including
the circumstance that the appellant was last seen with Manju before her death on the ground
that the case of the prosecution based on evidence of Dr. Banerji (P.W. 33) that there was any
mechanical suffocation of Manju has been disbelieved by the High Court itself and that some
entries in the carbon copy Ex. 134 of P.W. 33's report sent to the Chemical Examiner had been
scored and interpolated after his report Ex. 132 to the Chemical Examiner had left his hands,
that the original entry in the postmortem certificate Ex. 134 contained the words 'can be a case
of suicidal death' and, that the explanation of P.W.33. that he wrote the words 'time of death'
twice and not the words 'can be a case of suicidal death' and, therefore, he scored off one of them
is not acceptable at all. Doctors P.W.24 and 25 did not find any external injury on the body of
Manju which they saw at about 2.30 and 4.30 a.m. on 12.6.1982. Even P.W.33. did not find any
external or internal injury on the body of Manju. In these circumstances, unless the prosecution
excludes the possibility of Manju having committed suicide by consuming potassium cyanide
poison, as rightly pointed out by my learned brother Fazal Ali, J., (no adverse inference of guilt
can be drawn against the appellant from the fact that he was last seen with Manju, he being no
other than her own husband who is naturally expected to be with her during nights.) Some of
these 17 circumstances cannot, by any stretch of imagination, be held to point to the quilt of the
appellant. Circumstance No. 6 is an attempt of the appellant's father Birdhichand to get the
body of Manju cremated before 7 a.m. On 12.6.1982 by expressing such a desire to P.W.30.
Circumstance No.9 is arrangement of the dead body of Manju to make it appear that she died a
peaceful and natural death. Circumstance No. 11 is absence of an anklet of Manju from her leg.
Circumstance No. 12 is the conduct of the appellant in allegedly concealing the anklet in the fold
of the chaddar. Circumstance No. 15 is the fact that according to the medical evidence Manju
was pregnant by four to six weeks and it would normally dissuade her from committing suicide.
With respect to the learned judges of the High Court, in my view, by no stretch of imagination,
can any of these circumstances be considered to point to nothing but the guilt of the appellant in
a case resting purely on circumstantial evidence.
However, since I am unable to persuade myself to agree with my learned brother Fazal Ali, J. on
four points, I am writing this separate but concurring judgment, giving my view on those points,
namely, (1) ill-treatment of Manju by the appellant, (2) intimacy of the appellant with Ujvala
(P.W.37), (3) admissibility of Manju's letters Exs. 30,32 and 33 and the oral evidence of P.Ws.
2,3,5,6 and 20 about the alleged complaints made by Manju against the appellant under s. 32 (1)

118
of the Evidence Act and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the
body of Manju.
My learned brother Fazal Ali, J. has observed as follows at pages 3 and 96 of his judgment:
"On the other hand the plea of the defence was that while there was a strong possibility of Manju
having been ill-treated and uncared for by her husband and her in-laws, being a highly sensitive
and impressionate woman, she committed suicide out of sheer depression and frustration
arising from an emotional upsurge." (P-3) "On the other hand this circumstance may have
prompted her to commit suicide, for if a child was born to her, in view of her ill-treatment by her
husband and her in laws the child may not get proper upbringing".
(P.96) I do not recollect any admission by Mr. Ram Jethmalani, learned counsel for the
appellant in the course of his arguments about any cruelty or ill-treatment to Manju the part of
the appellant or his parents. The evidence of P.W.3 is that during Manju's second visit to Beed
after her marriage with the appellant she found Manju not quite happy and very much afraid of
the appellant. The evidence of P.W.5 is that during Manju's second visit to Beed, Manju
complained to her about the appellant returning home late in the night and avoiding to have a
talk with her and that Manju told her that she was afraid of the appellant and apprehended
danger to her life at his hands. The further evidence of the P.W.5 is that during her third visit to
Beed she inferred from Manju's face a spell of fear. The evidence of P.W.6 is that during Manju's
second visit to Beed, Manju told her that the appellant used to leave the house early in the
morning and return late at night under the pretext of work in his factory and that he was even
reluctant to talk with her. P.W.6 has stated that during Manju's third visit to Beed she was
extremely uneasy. disturbed and under a spell of fear, that Manju told her the appellant did not
relish even her question as to why he was not prepared to have a simple talk with her, and
that during her third visit to Beed, Manju expressed her unwillingness to go to Pune when
Birdhichand went to Beed on 2.6.1982 for taking her to Pune. To the same effect is the evidence
of P.W s. 2 and 20 about how Manju looked in spirit and what she stated during her last two
visits. My learned brother Fazal Ali, J. has rightly rejected the oral evidence of P.Ws. 2, 3, 5, 6
and 20. He has extracted the relevant portions of the letters Exs. 30, 32 and 33 in his judgment
and has observed at page 23 that one thing which may be conspicuously noticed in Ex. 30 is that
Manju was prepared to take all the blame on herself rather than incriminating her husband or
his rents at page 24 that it was conceded by the learned Additional Solicitor General that the

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relevant portion of Ex.32 does not refer to any ill treatment of Manju by the appellant or his
parents; and at page 30 that it can be easily inferred from Ex. 33 that Manju did not have any
serious complaint against the appellant except that she was not getting proper attention which
she deserved from him. These three letters do not establish that Manju made any complaint of
any ill-treatment by the appellant or his parents. In my view, these three letters and the
aforesaid oral evidence of P.Ws. 2, 3 5 6 and 20 are inadmissible in evidence under s. 32(1) of
the Evidence Act for reasons to be given elsewhere in my judgment. Thus there is no acceptable
evidence on record to show that either the appellant or his parents ill-treat Manju. The High
Court also has not found any such ill treatment in its judgment. On the other hand, what has
been found by the High Court in para 104 of its judgment is that the appellant treated Manju
contemptuously. Even while setting out the case of the prosecution the High Court has stated in
para 7 of its judgment that it is alleged that the appellant started giving contemptuous treatment
to Manju and in para 20 that the appellant has denied in his statement recorded under s.313
Cr.P.C. that Manju was being treated contemptuously. No question has been put to the appellant
in the course of his examination under s.313 Cr.P.C. about any ill treatment of Manju by the
appellant or his parents. My learned brother Fazal Ali, J. has referred in pages 97 and 98 of his
judgment to this Court's decisions in Fateh Singh Bhagat Singh v. State of Madhya Pradesh,
Shamu Babu Chaugale v. State of Mahararstra and Harijan Megha Jesha v. State of Gujarat(3)
and has observed at page 98 of his judgment that circumstance not put to the appellant in his
examination under s. 313 Cr.PC. have to be completely excluded from consideration in view of
those decisions. Therefore, since no question has been put to the appellant in this regard in the
course of his examination under s 313 Cr.P.C.. even if there is any evidence about any illtreatment of Manju by the appellant or his parents it has to be completely excluded from
consideration. I felt it necessary to say this in my judgment since I think that in fairness to the
appellant it has to be done.
My learned brother Fazal Ali, J. has set out the case of the prosecution in so far as it connects
P,W. 37 with the appellant at page 3 of his judgment where he has stated that the positive case of
the prosecution is that the appellant was not at all interested in Manju and had illicit intimacy
with P.W.37. On this point there is the evidence of P.Ws. 3, 5 and 6. The evidence of P.W.3 is
that during her second visit to Beed, Manju informed her that the appellant had a girl-friend by
name Ujwala Kothari and that he introduced her (Ujvala Kothari) to her and told her that she
should learn from Ujvala Kothari about how she should behave with him. The evidence of P.W.5.
is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl

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by name Ujvala Kothari and that she had seen Ujvala's latter addressed to the appellant and an
incomplete letter of the appellant addressed to that girl. No such letters have been produced in
evidence. The evidence of P.W.6 is that during her second visit to Beed, Manju told her that the
appellant had an affair with a girl by name Ujvala Kothari and also introduced that girl to her in
the Pearl Hotel saying that she has complete command over him and that she (Manju) should
take lessons from her (Ujvala Kothari) about how she should behave with him. There is no other
evidence regarding this alleged illicit intimacy between the appellant and P.W.37. This alleged
illicit intimacy is totally denied not only by the appellant but also by P,W.37. The alleged
incident in the Pearl Hotel, according to the case of the prosecution took place on 17.3.1982. But
there is no reference whatever to any such incident in any of the subsequent three letters of
Manju, Exs. 30, 32 and 33, dated 25.4.1982, 8.5.1982 and 8.6.1982 respectively. My learned
brother Fazal Ali, J. has rightly rejected the oral evidence not only of P.Ws. 3, 5 and 6 but also of
P.Ws.2 and 20 as untrustworthy at page 65 of his judgment. However, at page 68 he has stated
that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala
Kothari and it had embittered the relationship between the appellant and Manju. In my view, as
already stated, the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have
told them against the appellant and or his family, and even her letters Exs. 30, 32 and 33 are
inadmissible in evidence under s.32(1) of the Evidence Act. Thus, there is absolutely no reliable
or admissible evidence on record to show that the appellant had any intimacy with Ujwala
(P.W.37). I am, therefore, unable to share the view of my learned brother Fazal Ali, J. that the
prosecution has proved to some extent that the appellant had some sort of intimacy with P.W.37
and it had embittered the relationship between the appellant and Manju. I think that I am
bound to say this in fairness to not only the appellant but also P.W.37 who, on the date of her
examination in the Court, was a 19 years old student and has stated in her evidence that she had
known the appellant only as the President of the Rajasthan Youth Club in the year 1979 when
she was a member of that Club for about 5 or 6 months in that year.
My learned brother Fazal Ali, J. has referred to the oral evidence of P.Ws.2, 3, 5, 6 and 20 about
Manju's alleged complaint against the appellant and or his parents and also to the contents of
Manju letters, Exs. 30, 32 and
33. I have mentioned above the gist of that oral evidence and those three letters. My learned
brother has held the said oral evidence and those three latters to be. admissible under s.32(1) of
the Evidence Act while rejecting the oral evidence to those five witnesses as untrustworthy at

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pages 64 and 65 of his judgment, mainly on the ground that the oral evidence is quite
inconsistent with the spirit and contents of those letters. He appears of have relied upon those
three letters for two purposes, namely, rejecting the oral evidence of those five witnesses as
untrustworthy and supporting the defence version that it may be a case of suicidal death. In my
opinion the oral evidence of those five witnesses about what Manju is alleged to have told them
against the appellant and or his parents and the three letters, are inadmissible under s. 32(1) of
the Evidence Act, which reads thus:
"32. Statements, written or verbal, of relevant facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence, or whose attendance cannot
be procured without an amount of delay or expense which, under the circumstances of the case,
appears to the Court unreasonable, are themselves relevant facts in the following cases:(1) When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that
person's death comes into question".
The alleged oral statements of Manju to P,Ws. 2, 3, 5, 6 and 20 are said to have been made
during her second and third visits to Beed in the end of February 1982 and end of May 1982
respectively before her death during the night of 11/12.6.1982. She had written the letters, Exs.
33, 30 and 32 on 25.4.1982, 8.5.1982 and 8.6.1982 as stated earlier. The oral evidence of these
witnesses and these three letters are not as to the cause of Manju's death or as to any of the
circumstances of the transaction which resulted in her death during that night. The position of
law relating to the admissibility of evidence under s. 32(1) is well settled. It is, therefore, not
necessary to refer in detail to the decisions of this Court or of the Privy Council or our High
Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated
in their Law of Evidence, fourteenth edition and Ratanlal and Dhirajlal in their Law of Evidence
(1982) reprint). Those propositions are based mostly on decisions of courts for which reference
has been given at the end. They are these:
Woodroffe & Amir Ali's Law of Evidence, fourteenth edition. Page- 937 'Hearsay is excluded
because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of
the test applied to admissible evidence, namely, the oath and cross-examination. But where
there are special circumstances which give a guarantee of trustworthiness to the testimony, it is
admitted even though it comes from a second-hand source".

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Page-941 "What is relevant and admissible under clause (1) of this section (Section-32) is the
statements actually made by the deceased as to the cause of his death or of the circumstances of
the transaction which resulted in his death".
Page-945-946 "A statement must be as to the cause of the declarant's death or as to any of the
circumstances of the transaction which resulted in his death i.e. the cause and circumstances of
the death and not previous or subsequent transaction, such independent transactions being
excluded as not falling within the principle of necessary on which such evidence is received.
When a person is not proved to have died as a result of injuries received in the incident in
question, his statement cannot be said to be a statement as to the cause of his death or as to any
of the circumstances which resulted in his death. (AIR 1964 SC 900). Where there is nothing to
show that the injury to which a statement in the dying declaration relates was the cause of the
injured person's death or that the circumstances under which it was received resulted in his
death, the statement is not admissible under this clause". (AIR 25 Bombay 45).
Page-947 "Circumstances of the transaction resulting in his death; This clause refers to two
kinds of statements:
(i) when the statement is made by a person as to the cause of his death or (ii) when the
statement is made by a person as to any of the circumstances of the transaction which resulted
in his death. The words 'resulted in his death' do not mean 'caused his death'. The expression
'any of the circumstances of the transaction which resulted in his death' is wider in scope than
the expression 'the cause of his death. The declarant need not actually have been apprehending
death." (AIR 1964 M.P. 30).
Page-947 "The expression 'circumstances of the transaction' . occurring in s.32, clause (1) has
been a source of perplexity to Courts faced with the question as to what matters are admissible
within the meaning of the expression. The decision of their Lordships of the Privy Council in
Pukala Narayanaswanmi v. Emperor (LR 66 IA 66) sets the limits of the matters that could
legitimately be brought within the purview of that expression. Lord Atkin, who delivered the
judgment of the Board, has, however, made it abundantly clear that, except in special
circumstances no circumstance could be a circumstance of the transaction if it is not confined to
either the time actually occupied by the transaction resulting in death or the sense in which the
actual transaction resulting in death took place. The special circumstance permitted to

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transgress the time factor is, for example, a case of prolonged poisoning, while the special
circumstance permitted to transgress the distance factor is, for example, a case of decoying with
intent to murder. But the circumstances must be circumstances of the transaction and they must
have some proximate relation to the actual occurrence."
Page-948 "Circumstances of the transaction' is a phrase no doubt that conveys some limitations.
It is not as broad as the analogous use in 'circumstantial evidence' which includes the evidence
of all relevant factors. It is on the other hand narrower than 'res gestae'. Circumstances must
have some proximate relation to the actual occurrence, though, as for instance, in the case of
prolonged poisoning they may be related to dates at a considerable distance from the date of
actual fatal dose".
Page-948 "The Supreme Court in the case of Shiv Kumar v. State of U.P. (1966 Criminal Appeal
R. (SC) 281) has made similar observations that the circumstances must have some proximate,
relation to the actual occurrence. and that general expressions indicating fear or suspicion,
whether of a particular individual or otherwise and not directly to the occasion of death will not
be admissible".
Page -949 "The clause does not permit the reception in evidence of all such statement of a dead
person as may relate to matters having a bearing howsoever remote on the cause or the
circumstances of his death. It is confined to only such statements as relate to matters so closely
connected with the events which resulted in his death that may be said to relate to
circumstances of the transaction which resulted in his death. (LR 66 IA 66). 'Circumstances of
the transaction which resulted in his death' means only such facts or series or facts which have a
direct or organic relation to death. Hence statement made by the deceased long before the
incident of murder is not admissible". (1974 CLJ (MP) 1200).
Law of Evidence by Ratanlal & Dhirajlal (1982 Reprint) Page 94 "Circumstances of the
transaction; General expressions indicating fear or suspicion whether of a particular individual
or otherwise and not directly related to the occasion of the death are not admissible" (LR 66 IA
66)(18 Part 234).
Page 95 "Circumstances must have some proximate relation to the actual occurrence and must
be of the transaction which resulted in the death of the declarant. The condition of the
admissibility of the evidence is that the cause of the declarant's death comes into question. It is

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not necessary that statement must be made after the transaction has taken place or that the
person making it must be near death or that the 'circumstance' can only include the acts done
when and where the death was caused. -Dying declarations are admissible under this clause".
The alleged oral statements of Manju and what she has stated in her letters, Exs 30, 32 and 33
may relate to matters perhaps having a very remote bearing on the cause or the circumstances of
her death. Those circumstances do not have any proximate relation to the actual occurrence
resulting in her death due to potassium cyanide poison, though, as for instance in the case of
prolonged poisoning they may relate to dates considerably distant from the date of the actual
fatal dose. They are general impressions of Manju indicating fear or suspicion. whether of a
particular individual or otherwise and not directly related to the occasion of her death. It is not
the case of the prosecution that the present case is one of prolonged poisoning. Since it is stated
by the learned authors woodroffe and Amir Ali in their tratise at page 947 that the decision of
their Lordships of the Privy Council in Pakala Narayanaswami v. Emperor (1) sets the limit of
the matters that could legitimately be brought within the purview of the expression
'circumstances of the transaction and that decision is referred to in several other decisions of our
courts, it would be necessary to extract the relevant passage in this judgment. The learned Lords
have observed at pages 75 and 76 thus:
"A variety of questions has been mooted in the Indian courts as to the effect of this section. It
has been suggested that the statement must be made after the transaction has taken place, that
the person making it must be at any rate near death, that the "circumstances" can only include
the acts done when and where the death was caused. Their Lordships are of opinion that the
natural meaning of the words used does not convey any of these limitations. The statement may
be made before the cause of death has arisen, or before the deceased has any reason to
anticipate being killed. The circumstances must be circumstances of the transaction: general
expression indicating fear of suspicion whether of a particular individual or otherwise and not
directly related to the occasion of the death will not be admissible. But statements made by the
deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for
so proceeding, or that he was going to meet a particular person, or that he had been invited by
such person to meet him would each of them be circumstances of the transaction, and would be
so whether the person was unknown, or was not the person accused. Such a statement might
indeed be exculapatory of the person accused. "Circumstances of the transaction" is a phrase no
doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial

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evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "re
gestae" Circumstances most have some proximate relation to the actual occurrence: though, as
for instance in a case of prolonged poisoning, they may be related to dates at a considerable
distance from the date of the actual fatal dose."
I am, therefore of the opinion that the oral evidence of these witnesses, P.Ws. 2, 3, 5, 6 and 20
about what Manju is alleged to have told them against the appellant and or his parents and what
the has stated in her letters, Exs. 30 32 and 33, are inadmissible in evidence under s.32(1) of the
Evidence Act and cannot be looked into for any purpose. At this stage. it may be stated that Mr.
Ram Jethmalani, learned counsel for the appellant submitted that the said oral evidence of
those five witnesses is inadmissible under s. 32(1) though at first he sought to rely upon the
letters, Exs 30, 32 and 33 which seem to lend support to the defence theory that it may be a case
of suicide, he ultimately conceded that what applies to the relative oral evidence of P.Ws. 2, 3, 5,
6 and 20 would equally apply to the letters, Exs. 30, 32 and 33 and that they too would be
inadmissible in evidence. The Additional Solicitor General who had strongly relied upon the said
oral evidence of these five witnesses and the letters, Exs. 30, 32 and 33 at first proceeded in the
end of his arguments on the basis that they are inadmissible in evidence. In these circumstances,
I am firmly of the opinion that the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is
alleged to have told them against the appellant and or his parents as well as the letters, Exs. 32,
32 and 33 are inadmissible in evidence under s. 32(1) of the Evidence Act.
About Dr. Banerji (P.W. 33) who conducted autopsy on the body of Manju what my learned
brother Fazal Ali, J. has said in his judgment is this:
"In column 5 of postmortem notes Dr. Banerjee has clearly written 'can be a case of suicidal
death' which indicates that in the absence of the report of the Chemical Examiner he was of the
opinion that it could have been a case of suicide. In his evidence P.W 33 has stated that in Ex.
128 in column No. 5 the contents scored out read 'time since the death' and since it was repeated
in the next line he scored out the words in the second line. Despite persistent cross-examination
the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter
was of vital importance and expected the High Court to have given serious attention to this
aspect which goes in favour of the accused.... In the original while filling up the said column the
Doctor appears to have scored out something. The filled up entry appears thus:-'mouth is closed
with tip (something scored out) seen caught between the teeth. But in the carbon copy of the

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report which was sent to the Chemical Examiner (Ex. 132 he has written 'caught between the
teeth' in ink; but in the original there is something else. This is fortified by the fact that the copy
of the report actually sent to the Chemical Examiner does not contain any interpolation against
the 'said column where the filled up entry reads 'inside mouth'.. These circumstances show that
Dr. Banerjee (P.W.33) tried to introduce some additional facts regarding the position of the
tongue . . . This, however, throws a cloud of doubt on the correctness or otherwise of the actual
reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in
the carbon copy which was retained by the Doctor the entries must have been made after the
copy was sent to the Chemical Examiner".
I entirely agree with these findings of my learned brother Fazal Ali, J. But I am unable to share
his view that these "circumstances are not of much consequence the opinion of the Doctor was
that Manju died by forcible administration of potassium cyanide or by the process of mechanical
suffocation and that this aspect need not detain the Court any further because the High Court
has not accepted the case of mechanical suffocation" and that though a number of comments
were made on behalf of the appellant about Dr. Banerji's integrity and incorrect report he does
not find any substance in those contentions subject to what he has stated about him.
The fact that the High Court has rejected the case of the prosecution based on Dr. Banerji's
report and evidence that it was also a case of mechanical suffocation is not one that could be
taken into consideration as a mitigating circumstance in judging the conduct of the Doctor who
had conducted the autopsy in a case of suspicious death. The fact that he had reserved his
opinion about the cause of death and had then noted in his report that the tongue was inside the
mouth but has interpolated the words 'mouth is closed with tip (something scored out) seen
caught between the teeth' and 'caught between the teeth' only after receipt of the Chemical
Examiner's report to support the view that it was also a case of mechanial suffocation, is not a
mitigating circumstance in favour of P: W. 33 The Doctor had scored out the words 'can be a
case of suicidal death' and has persisted in his reply that he had scored out only the words 'time
since the death' which he claims to have written twice, which explanation has been rightly
rejected by my learned brother Fazal Ali. J. The conduct of the Doctor in making these later
inter polations and alterations in the records of the postmortem examination in the case of
suspicious death in which the appellant has been sentenced to death by the two courts below,
deserves serious condemnation. The Doctor has tampered with material evidence in the case of
alleged murder, may be at the instance of somebody else, ignoring the probable consequences of

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his act. In these circumstances, I am of the opinion that Dr. Banerji (P.W.33) is a person who
should not be entrusted with any serious and responsible work such as conducting autopsy in
the public interest. In this case the appellant would have gone to gallows on the basis of the
evidence of P.W.33 as he would have the court to believe it, and theo ther evidence, if they had
been accepted, but they have been rightly discarded by my learned brother Fazal Ali, J. as
unworthy of acceptance against the appellant.
I agree with my learned brother Fazal Ali, J. that the High Court has clearly misdirected itself on
many points in appreciating the evidence and has thus committed a gross error of law.
I feel that something has to be stated in the judgment in this case about the way the
Investigating officer and the learned Additional Sessions Judge, Pune who had tried the case
had gone about a their business. Charge No. 3 is against the third accused for instigating Mohan
Asava (P.W.
30) to give false information to the police regarding the offence of murder namely, that the
appellant found Manju dead when he tried to wake her up at 5.30 a.m. on 12.6.1982. It is the
case of the prosecution itself that P.W.30 informed the police accordingly at 7 or 7.15 a.m. on
that day after receipt of telephonic instructions from the third accused at 6.30 a.m. though he
had himself seen the dead body of Manju earlier in the appellant's flat where he was taken by the
third accused who had gone to his flat at about 4 or 4.15 a.m. and informed him that Manju was
dead, and he (P.W.30) left the appellant's flat a little later at about 5 or 5.15 a. m. after telling Dr.
Lodha (P.W. 34) that he was going to report to the police. Thus, it would appear that the case of
the prosecution itself is that P.W. 30 is the principal offender as regards giving false information
to the police about the death of Manju. Yet the Investigating officer had not filed any chargesheet against P.W. 30 but has conveniently treated him as a prosecution witness. The Additional
Sessions Judge, Pune appears to have exercised no control over the evidence that was tendered
in this case and to have been oblivious of the scope of the examination of the accused under. s.
313 Cr. P.C. This is reflected by some of the questions put to the appellant. Question No. 24
relates to P.W. 20 not maintaining good health and falling ill now and then. Question No. 25
relates to P.W. 22 being a patient of high blood pressure and having suffered a stroke of
paralysis 7 years earlier. Question No. 30 relates to a reception held at Pune on 13.2.1982 in
connection with the appellant's marriage with Manju. Question No. 32 relates to P.W. 6 asking
the appellant's father Birdhichand for permission to take Manju to Beed with her when the party

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from P.W.2's side started from Pune for Beed on 14.2.1982. Question No. 115 relates to P.W.30
indulging in criminal acts of rowdyism, tax evasion etc, and being known as a contact-man of the
police. S. 313 Cr. P. C.
lays down that in every inquiry or trial for the purpose of enabling the accused personally to
explain any circumstance appearing in the evidence against him the Court may at any stage,
without previously warning the accused, put such questions to him as the court considers
necessary and shall, after the witnesses for the prosecution have been examined and before he is
called for his defence, question him generally on the case. It is clear that the evidence on the
basis of which the above questions have been put to the appellant is wholly irrelevant and that
those questions do not relate to any circumstance appearing in the evidence against the
appellant. The learned Additional Sessions Judge was bound to exercise control over the
evidence being tendered in his court and to know the scope of the examination of the accused
under s. 313 Cr. P. C.
In the end, as I said earlier, I agree with my learned brother Fazal Ali, J. that the appeal has to
be allowed. Accordingly I allow the appeal and set aside the conviction and sentence awarded to
the appellant and direct him to be set at liberty forthwith.
SABYASACHI MUKHARJI, J. I have the advantage of having read the judgments prepared by
my learned brothers Fazal Ali, J. and Varadarajan, J. I agree with the order proposed that the
appeal should be allowed and the judgments of the courts below should be set aside and the
appellant Sharad Birdhichand Sarda be acquitted of the charges framed against him and he
should be released forth with. I do so with some hesitation and good deal of anxiety, because
that would be interfering with the concurrent findings by two courts below on a pure
appreciation of facts. The facts and circumstances have been exhaustively and very minutely
detailed in the judgment of my learned Brother Fazal Ali, J. Those have also been set out to
certain extent by my Brother Varadarajan, J. It will therefore serve no useful purpose to repeat
these here. It is necessary, however, for me to make the following observations.
It is a case of circumstantial evidence. It is also undisputed that the deceased died of potassium
cyanide on the night of 11th and 12th June. 13th June was the date fixed for the betrothal of the
sister of the accused. There is no evidence that the accused was in any way hostile or inamicable
towards his sister. The deceased had a very sensitive mind and occasionally had suffered from

129
mental depression partly due to the fact of adjusting in a new family and partly due to her
peculiar mental make up but mainly perhaps due to the family set up of the accused husband.
There is no direct evidence of administering poison. There is no evidence either way that either
the deceased or the accused had in her or his possession any potassium cyanide. In these
circumstances my learned brothers, in view of the entire evidence and the letters and other
circumstances, have come to the conclusion that the guilt of the accused has not proved beyond
all reasonable doubt.
As I have mentioned before, I have read the two judgments by my two learned brothers and on
some points namely, four points mentioned in the judgment prepared by my Brother
Varadarajan. J., he has expressed views different from those expressed by Fazal Ali, J. and these
are:(1) ill-treatment of Manju by the appellant; (2) intimacy of the appellant with Ujwala (P.W.37);
(3) admissibility of Manju's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6
and 20 about the alleged complaints made by Manju against the appellant under s.32(1) of the
Evidence Act; and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body
of Manju.
On the three points, namely ill-treatment of Manju by the appellant, intimacy of the appellant
with Ujwala (P.W.37) and the conduct of Dr. Banerji (P.W.33) who had conducted autopsy on
the body of Manju, I would prefer the views expressed by my learned brother Fazal Ali, J. On the
question of admissibility of Manju's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2,
3, 5, 6 and 20 about the alleged complaints made by Manju against the accused under section
32(1) of the Evidence Act, my learned brother Fazal Ali, J. has observed about section 32(1) as
follows:"The test of proximity cannot be too literally construed and practically reduced to a cut-enddried formula of universal application so as to be confined in a straitjacket. Distance of time
would depend or vary with the circumstances of each case. For instance, where death is a logical
culmination of a continuous drama long in process and is, as it were, a finale of the story, the
statement regarding each step directly connected with the end of the drama would be admissible
because the entire statement would have to be read as an organic whole and not torn from the
context. Sometimes statements relevant to or furnishing an immediate motive may also be

130
admissible as being a part of the transaction of death. It is manifest that all these statements
come to light only after the death of the deceased who speaks from death. For instance, where
the death takes place within a very short time of the marriage or the distance of time is not
spread over more than 3-4 months the statement may be admissible under s.32." (Emphasis by
me).
I would, however, like to state here that this approach should be taken with great deal of caution
and care and though I respectfully agree with Fazal Ali, J. that the test of proximity cannot and
should not be too literally construed and be reduced practically to a cut-and-dried formula of
universal application but it must be emphasised that whenever it is extended beyond the
immediate, it should be the exception and must be done with very great caution and care. As a
general proposition, it cannot be laid down for all purposes that for instance where a death takes
place within a short time of marriage and the distance of time is not spread over three or four
months, the statement would be admissible under section 32 of the Evidence Act. This is always
not so and cannot be so. In very exceptional circumstances like the circumstances in the present
case such statements my be admissible and that too not for proving the positive fact but as an
indication of a negative fact, namely raising some doubt about the guilt of the accused as in this
case.
For the purpose of expressing my respectful concurrence with the views of Justice Fazal Ali, it is
not necessary for me to agree and I do not do so with all the detailed inferences that my learned
brother has chosen to draw in respect of the several matters from the exhibits in this case. I am
also with respect not prepared to draw all the inferences that my learned brother has chosen to
draw in the paragraph beginning with the expression "the careful perusal of this letter revealed
the following features". This my learned brother was speaking in respect of Ex. 33. I however,
respectfully agree with my learned brother when he says that a close analysis and ading of the
letter namely Ex. 33 clearly indicates:
(a) that the deceased was extremely depressed.
(b) that there was a clear tendency resulting from her psychotic nature to end her life or commit
suicide.
Similarly I have some hesitation about the English rendering of Ex. 32 which is letter dated 8th
June, 1982 which has been set out by my learned brother and which has been set out in his

131
judgment which contains the expression "I do not know why there is such a dirty atmosphere in
the house?" As the original letter was read out in Court and we had the advantage of that, I am
inclined to take the view that the correct and the more expressive expression would be "I do not
know why there is such a foul atmosphere in the house?" Read in that light and in the context of
other factors, this letter causes some anxiety. It the deceased was sensing foul atmosphere, why
was it? But this again is only a doubt. It does not prove the guilt of the accused.
In view of the fact that this is a case of circumstantial evidence and further in view of the fact
that two views are possible on the evidence on record, one pointing to the guilt of the accused
and the other his innocence, the accused is entitled to have the benefit of one which is
favourable to him. In that view of the matter I agree with my learned brothers that the guilt of
the accused has not been proved beyond all reasonable doubt.
In the premises as indicated before, I agree with the order proposed.
S.R.

Appeal allowed.

132

Rajendra Pralhadrao Wasnik vs The State Of Mahrashtra on 29


February, 2012
Author: S Kumar
Bench: A.K. Patnaik, Swatanter Kumar
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.145-146 OF 2011

Rajendra Pralhadrao Wasnik

... Appellant

Versus

The
...

Respondent

State

of

Maharashtra

133

J U D G M E N T

Swatanter Kumar, J.

134

1. The present appeals are directed against the judgment dated 26th March, 2009 passed by the
High Court of Bombay, Nagpur Bench affirming the conviction of the accused under Sections
376(2)(f), 377 and 302 of the Indian Penal Code, 1860 (hereafter `IPC') and the sentence of
death awarded to the accused-appellant herein vide judgment of the First Additional Sessions
Judge, Amrawati, dated 10th September, 2008.
2. The facts giving rise to the present appeal fall within a narrow compass and are as follows :
Mahendra Namdeorao Wasnik, PW12, was living with his wife, three children and parents in
Village Asra. He used to go to Village Tarkheda for earning his livelihood at the thresher of one
Zafarbhai.
Normally, he used to return to his village at about 10.00 p.m. after doing his day's work. On 2nd
March, 2007, he left his house at 7.00 a.m. and returned from his work at about 9.00 p.m. Upon
his arrival, he was informed by his wife Kantabai Wasnik that at about 4.00 p.m. one person,
whose name she did not know, had come to the house and after taking tea, he left. The said
person had again come at about 6.30 p.m. On his second visit, he told that he would take out
their daughter, namely Vandana, to get her biscuits. After talking to the mother of Vandana, the
accused had taken Vandana for purchasing biscuits but never brought her back to her house.

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Having learnt this, PW12 started searching for his daughter Vandana along with others, but they
were unable to find her. On 3rd March, 2007 at about 8.00 a.m. when he was going to the
Police Station for lodging the report, he saw that some persons had gathered in the fields of
Pramod Vitthalrao Mohod. He went there and saw the dead body of his daughter in that field.
The dead body of Vandana was lying in a nude condition and there were injuries on her person.
It has come in evidence that the accused had visited the house of PW12, Mahendra Namdeorao
Wasnik to see his ailing father. He left after a cup of tea. It was on this information received
from his wife that PW12 suspected that the accused was the person who was a resident of Village
Parlam and had taken away his daughter. Consequently, PW12 lodged the report with the Police,
Exhibit 71 in respect of the incident. As the body of the deceased minor girl, Vandana, had been
recovered, an FIR was registered being Crime Case No.23/2007 under Sections 376(2)(f), 377
and 302 IPC. The Investigating Officer started the investigation, prepared the inquest
panchnama in respect of the dead body of the deceased Vandana vide Exhibit 11. Sample of soil,
soil mixed with urine and clothes of the deceased Vandana were seized from the spot under
Panchanama Exhibit 12. The Investigating Officer had also drawn a sketch map of the spot of the
incident on 16th June, 2007 vide Exhibit 64. At the request of the Police, the Judicial
Magistrate recorded statement of the witnesses, namely, Bhimrao Gulhane, Nilesh Gedam,
Ravindra Borkar and Sumit Ramteke under Section 164 of the Code of Criminal Procedure, 1973
(hereafter `Cr.P.C.') The accused was arrested on 10th April, 2007 his clothes were seized vide
Exhibit 14. He was subjected to medical examination. The doctor had taken blood and semen
sample of the accused. These samples and the viscera were sent for medical examination vide
Exhibits 21 and 22. The reports thereof are Exhibits 76 to 79.
3. The accused was produced before the Court and was committed to the Court of Sessions
where he was charged with the offences punishable under Sections 376(2)(f), 377 and 320 IPC.
He was tried for these offences. Learned Trial Court found him guilty of all the offences and
awarded him punishments as follows :
Offences Punishment/Sentence 302 IPC Sentenced to death and he shall be hanged by neck till
he is dead subject to confirmation by the Hon'ble High Court, Bombay, Bench at Nagpur as per
the provisions of Section 366 of Cr.P.C.

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376(2)(f) IPC Sentenced to imprisonment for life and to pay fine of Rs.1,000 (one thousand), in
default to suffer rigorous imprisonment for six months.
377 IPC Sentenced to rigorous imprisonment for 10 (ten) years and to pay fine of Rs.1,000 (one
thousand) in default to suffer further rigorous imprisonment for six months.
4. Aggrieved by the said judgment, the accused preferred an appeal before the High Court
which, as already noticed, came to be dismissed. The High Court upheld the conviction and
sentence of the accused giving rise to the filing of the present appeals.
5. Learned counsel appearing for the appellant-accused contended that the complete chain of
events leading to the involvement of the appellant in the crime, in question, have not been
established by the prosecution. According to him, the prosecution has failed to prove its case
beyond reasonable doubt.

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The case is one of circumstantial evidence and the onus to prove the case by leading cogent,
appropriate and linking evidence is on the prosecution. The prosecution has failed to establish
the charge against the appellant. All witnesses are interested witnesses as they are the relatives
of the informant or the deceased and as such cannot be safely relied upon by the Court to hold
the appellant guilty of the alleged offences. Lastly, it is also contended that it was not a case
which fell in the category of `rarest of rare' cases where the Court would find that any other
sentence except death penalty would be inadequate and unjustifiable. Thus, the imposition of
penalty of death imposed by the High Court calls for interference by this Court. Though the
accused, in his statement under Section 313 Cr.P.C., while replying to question No.9 about the
death of Vandana and injuries on her body, had stated that it was false but from the evidence led
by the prosecution, it is clear that the death of the deceased Vandana was homicidal. One can get
the idea of the torture and brutality that the minor girl suffered at the hands of the accused from
the injuries found on her person in the postmortem report. They have been described by the doctor as follows:
"External Vaginal Swelling present Vaginal wall lacerated, wound extending from labia mejora
to inside vaginal canal in lower 1/3rd on both side 1=" x <" x muscle deep Stains of semen
present on inner side of thigh.
Hymen absent, one finger easily pass.
Swelling present on anal region.
Multiple abrasions with Contusions present on body on face, chest back & both shoulders and
knees Interiorly.
Bite mark on chest (L) side around Nipple elliptical with diameters 1=" x 1<".
Right Lung collapsed, 150 gm, Congested on section collapsed.
Left Lung Collapsed, 100 gm, Congested on section collapsed.
Large vessels - contained blood."
6. Exhibit 11, the inquest panchnama is admitted while the post mortem report Exhibit 71 has
been proved in accordance with law.

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Both these documents demonstrate, beyond reasonable doubt, that it was a case of homicidal
death and as per the post mortem report, the cause of death was rape and asphyxia.

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7. There is no doubt that it is not a case of direct evidence but the conviction of the accused is
founded on circumstantial evidence. It is a settled principle of law that the prosecution has to
satisfy certain conditions before a conviction based on circumstantial evidence can be sustained.
The circumstances from which the conclusion of guilt is to be drawn should be fully established
and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The
circumstances should be conclusive and proved by the prosecution. There must be a chain of
events so complete as not to leave any substantial doubt in the mind of the Court. Irresistibly,
the evidence should lead to the conclusion which is inconsistent with the innocence of the
accused and the only possibility is that the accused has committed the crime. To put it simply,
the circumstances forming the chain of events should be proved and they should cumulatively
point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to be incompatible
with the innocence of the accused or the guilt of any other person.
Furthermore, the rule which needs to be observed by the Court while dealing with cases of
circumstantial evidence is that the best evidence must be adduced which the nature of the case
admits.

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The circumstances have to be examined cumulatively. The Court has to examine the complete
chain of events and then see whether all the material facts sought to be established by the
prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt
or not. It has to be kept in mind that all these principles are based upon one basic cannon of our
criminal jurisprudence that the accused is innocent until proven guilty and that the accused is
entitled to a just and fair trial. [Ref.
Dhananajoy Chatterjee alias Dhana vs. State of W.B. [JT 1994 (1) SC 33]; Shivu & Anr. v. R.G.
High Court of Karnataka & Anr. [(2007) 4 SCC 713]; and Shivaji @ Dadya Shankar Alhat v. State
of Maharashtra [(AIR 2009 SC 56].
8. Now, we will revert to the facts of the present case in light of the above-stated principles. We
must spell out the circumstances which would show that for the undisputable rape and murder
of the deceased minor girl, the accused is not only the suspect but is also the person who has
committed the crime. These circumstances are:
1. The accused had taken Vandana from her home on the pretext of purchasing her biscuits.
2. Neither Vandana nor the accused returned to the house.
3. Accused was seen with the deceased Vandana on 2nd March, 2007 at about 6.00 p.m. at the
bus stand where, in the normal course of life, such shops are situated.
4. Thereafter, the nude body of Vandana was found in the field of Pramod Vitthalrao Mohod on
3rd March, 2007.
5. Exhibit 11 and 71, show beyond reasonable doubt that the three year old girl was subjected to
rape, injuries and then murdered.
9. The above circumstances and the chain of events is complete with regard to the commission
of crime and undoubtedly points towards the accused. Now, we have to examine whether the
prosecution has provided these facts as required in law.

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10. PW2, Kanta, is the mother of the deceased Vandana. In her statement she has stated that she
was living along with her husband, one daughter and two sons. According to her, her in-laws
were residing in the same house, though separately. Vandana was three years old at the time of
her death. According to her, the occurrence took place on the day of Holi festival. She identified
the accused, who was present in the court and stated that he had come to their house earlier
and then on the date of the incident as well.

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Supporting the case of the prosecution, she stated that he had come to the house at about 3.00
p.m. and then left after having tea by saying that he wanted to meet his friends and thereafter,
he again came back at 6.00 p.m. Vandana was playing in front of the house at that time. The
accused told her that he would purchase biscuits for the child and took Vandana with him. They
had gone towards the bus-stand and thereafter, neither Vandana nor the accused returned
home. She had told her husband, PW1, about the incident on his return from work. PW2 also
stated that on the next day body of deceased was found in the fields. There was blood in her
nostrils and mouth. Marks of bites were found on her breast. There was swelling in the private
parts of her body. She came to know the name of the accused subsequently. Her statement
remained uncontroverted or nothing material came in her cross-examination. The accused was
also seen in the house of PW12 by PW3, Preeti, who is the niece of PW12. She also corroborated
the statements of PW12 and PW2. PW4, is the other material witness, Ravindra, who stated that
on the day of the incident, i.e. 2nd March, 2007, he was present at the S.T. Bus stand of Asra
and he had seen the accused along with Vandana in hotel Rajendra Bhojane. She was on the
waist of the accused and they had purchased a packet of biscuits. Thereafter, he saw the accused
going on the road which goes to Amrawati. Thereafter, he even searched for Vandana along with
Vikram Meshram. PW5, Bhimrao Pundlik Gulhane is a witness who owns 13 acres of
agricultural land at Village Khargodi in Village Nagthana. For the purposes of cultivating his
land, he used to engage labourers, and the accused was engaged by him for doing the work on
his agricultural field and he disclosed the name of accused as Sanjay Manohar Wankhede.

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According to this witness, he maintained a regular register for marking `presence' and
`payment of wages' to the labourers he engaged. The said witness deposed that on the date of
occurrence, i.e. 2nd March, 2007, the accused did not come for duty. However, on that day in
the morning, the accused came to him and demanded Rs. 500/- saying that he wanted to go to
Asra and thereafter, he did not come back. He produced the register which had been seized by
the police earlier and had the signatures and it was exhibited as Ex.36. PW7, is another witness,
who had seen the accused holding Vandana when he was going back to his house from the S.T.
bus stand Asra.
11. The accused was subjected to medical examination and was examined by Dr. Ravindra
Ruprao Sirsat, PW9 and he noticed no injuries on his person. Father of the deceased minor girl
was examined as PW12 and he provided the complete chain of events, right from the time he got
the information that his daughter had been taken away till the time when her dead body was
recovered from the fields. Dr. K.V. Wathodkar, Dr. (Mrs.) V.K. Wathodkar and Dr. Varsha S.
Bhade had prepared the postmortem report, Ex.17, which clearly shows that the cause of death of the three-year old girl was rape and asphyxia.
All these factors have been proved by the prosecution both by documentary as well as oral
evidence.
The accused admitted the documents i.e. the sketch map, Ex.64, spot panchnama, Ex.10,
inquest panchnama, Ex.11, seizure panchnamas Exihibits 12, 13 and 14 in respect of the seizure
of clothes of the accused and in respect of blood sample, public hair sample, semen sample of
the accused, arrest panchnama, Ex.16, postmortem report Ex.17 and letters Ex.19 to 27.
12. Once these crucial pieces of documentary evidence have been admitted by the accused and
other factual links in the story of the prosecution have been duly proved by the witnesses by
circumstantial or direct evidence, there is no occasion for this Court to doubt that the
prosecution has not been able to prove its case beyond reasonable doubt.

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13. It has been vehemently argued on behalf of the appellant that the report of the FSL does not
connect the accused to the commission of the crime. This, being a very material piece of
evidence which the prosecution has failed to establish, the accused would be entitled to the
benefit of doubt. There were two kinds of Exhibits which were sent by the Police to the Forensic
Science Laboratory for examination - one, the blood-stained clothes of the deceased and second,
the sample of blood, semen and pubic hair sample of the accused which were sent vide Exhibit
57. The reports of the laboratory are Exhibits 76, 77, 78 and 79. As far as the reports in respect of
the appellant's sample of semen and blood are concerned, they were inconclusive as was stated
by the FSL in Exhibit 76. His clothes which were seized by the Police did not bear any blood or
semen stains and that was duly recorded in Exhibit

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78. Exhibit 77 were the clothes of the deceased which were blood stained. The clothes contained
blood group `O' which was the blood group of the deceased girl. From the report of the experts,
it is clear that there is no direct evidence connecting the appellant to the commission of the
crime but it is not the case of the defence that the FSL report was in the negative. Merely
because the report was inconclusive, it is not necessary that the irresistible conclusion is only
one that the accused is not guilty, particularly where the prosecution has been able to establish
its case on circumstantial evidence as also by direct oral evidence. It is a settled principle of law
that the evidence has to be read in its entirety. If, upon reading the evidence as such, there are
serious loopholes or lacking in the case of the prosecution and they do not prove that the
accused is guilty, then the Court would be justified in giving the benefit of doubt to the accused
on the strength of a weak FSL report. The FSL report Exhibit P77 had clearly established that
the blood of group `O' was found on the clothes of the deceased and that was her blood group.
The prosecution has been able to establish not only by substantial evidence but clearly by
medical evidence as well, that the minor girl had suffered serious injuries on her private parts
and there were bite marks on her chest.
14. An attempt was also made to cast certain doubts as to the very identity of the accused but we
find this submission without any substance. The accused has been identified by PW2, PW3 and
PW4. Besides them, even PW7 Sumeet Ramteke had also stated that he had seen the victim
minor girl with the appellant in the house of PW2, Kantabai and then again seen him with the
victim going towards the ST bus stand. Statement of these four witnesses successfully stood the
lengthy cross-examination conducted on behalf of the defence. There cannot be any doubt in
these circumstances that the accused had taken away the victim from the house of PW2 and was
seen at the ST stand.

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15. In our considered opinion, the tests laid down by this Court in Baldev Singh v. State of
Haryana, AIR 2009 SC 963 in relation to cases of circumstantial evidence are completely
satisfied in the present case. The circumstances and the chain of events proved by the
prosecution is fully established and the circumstances which were required to be proven by the
prosecution, have been proved by them successfully. The cumulative effect of the entire
prosecution evidence is that it points unmistakably towards the guilt of the accused. It is not
only a case of circumstantial evidence simpliciter but also the `last seen together' principle.
There are witnesses who had seen the accused at the house of PW2 with the deceased minor girl.
Thereafter, he was again seen with the child at the ST bus stand, Asra and lastly while going
away from the ST bus stand with the minor child. Thus, once the evidence had successfully
shown that the accused was last seen with the minor girl, it was for the accused to explain the
circumstances. The accused in his statement under Section 313 Cr.P.C., in response to all the 68
questions put to him, answered only one simple answer - `it is false'. He also stated that the
Police had registered a false case against him and that he did not want to lead any defence. It is
very difficult to assume that as many as 13 witnesses from the same village, the Police and
doctors would falsely implicate the accused.
There are no circumstances which can even remotely suggest that this plea taken by the accused
even deserves consideration. Ex facie this is an incorrect stand.
16. Having dealt with the contentions of the learned counsel appearing for the appellant on the
merits of the case, now we would proceed to discuss the last contention raised on behalf of the
appellant that this is not one of the rarest of rare cases where awarding death sentence is
justified. We have already held that the prosecution has been able to bring home the guilt of the
accused for the offences under Sections 376(2)(f), 377 and 302 of the IPC. In order to deal with
this contention raised on behalf of the appellant, we may, at the very outset, refer to the basic
principles that are to be kept in mind by the Court while considering the award of death
sentence to an accused. This very Bench in a recent judgment, considered various judgments of
this Court by different Benches right from Bachan Singh's case, in relation to the canons
governing the imposition of death penalty and illustratively stated the aggravating
circumstances, mitigating circumstances and the principles that would be applied by the Courts
in determining such a question. It will be useful to refer to the judgment of this Bench in the

147
case of Ramnaresh vs. State of Chattisgarh, Crl. Appeal No. 166-167/2010 decided on February
28, 2012 wherein it was held as under: "The above judgments provide us with the dicta of the Court relating to imposition of death
penalty. Merely because a crime is heinous per se may not be a sufficient reason for the
imposition of death penalty without reference to the other factors and attendant circumstances.
Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment.
That by itself does not suggest that in all such offences, penalty of death should be awarded. We
must notice, even at the cost of repetition, that in such cases awarding of life imprisonment
would be a rule, while `death' would be the exception. The term `rarest of rare case' which is the
consistent determinative rule declared by this Court, itself suggests that it has to be an
exceptional case. The life of a particular individual cannot be taken away except according to the
procedure established by law and that is the constitutional mandate. The law contemplates
recording of special reasons and, therefore, the expression `special' has to be given a definite
meaning and connotation.
`Special reasons' in contra-distinction to `reasons' simplicitor conveys the legislative mandate
of putting a restriction on exercise of judicial discretion by placing the requirement of special
reasons.
Since, the later judgments of this Court have added to the principles stated by this Court in the
case of Bachan Singh (supra) and Machhi Singh (supra), it will be useful to restate the stated principles while also bringing them in consonance, with the recent judgments.
The law enunciated by this Court in its recent judgments, as already noticed, adds and
elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in
the case of Machhi Singh (supra).
The aforesaid judgments, primarily dissect these principles into two different compartments one being the `aggravating circumstances' while the other being the `mitigating circumstance'.
The Court would consider the cumulative effect of both these aspects and normally, it may not
be very appropriate for the Court to decide the most significant aspect of sentencing policy with
reference to one of the classes under any of the following heads while completely ignoring other

148
classes under other heads. To balance the two is the primary duty of the Court. It will be
appropriate for the Court to come to a final conclusion upon balancing the exercise that would
help to administer the criminal justice system better and provide an effective and meaningful
reasoning by the Court as contemplated under Section 354(3) Cr.P.C.
Aggravating Circumstances :
1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity,
kidnapping etc. by the accused with a prior record of conviction for capital felony or offences
committed by the person having a substantial history of serious assaults and criminal
convictions.
2. The offence was committed while the offender was engaged in the commission of another
serious offence.
3. The offence was committed with the intention to create a fear psychosis in the public at large
and was committed in a public place by a weapon or device which clearly could be hazardous to
the life of more than one person.
4. The offence of murder was committed for ransom or like offences to receive money or
monetary benefits.
5. Hired killings.
6. The offence was committed outrageously for want only while involving inhumane treatment
and torture to the victim.
7. The offence was committed by a person while in lawful custody.
8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty
like arrest or custody in a place of lawful confinement of himself or another. For instance,
murder is of a person who had acted in lawful discharge of his duty under Section 43 Cr.P.C.
9. When the crime is enormous in proportion like making an attempt of murder of the entire
family or members of a particular community.

149
10. When the victim is innocent, helpless or a person relies upon the trust of relationship and
social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and
is inflicted with the crime by such a trusted person.
11. When murder is committed for a motive which evidences total depravity and meanness.
12. When there is a cold blooded murder without provocation.
13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience
but even the conscience of the society.
Mitigating Circumstances :
1. The manner and circumstances in and under which the offence was committed, for example,
extreme mental or emotional disturbance or extreme provocation in contradistinction to all
these situations in normal course.
2. The age of the accused is a relevant consideration but not a determinative factor by itself.
3. The chances of the accused of not indulging in commission of the crime again and the
probability of the accused being reformed and rehabilitated.

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4. The condition of the accused shows that he was mentally defective and the defect impaired
his capacity to appreciate the circumstances of his criminal conduct.
5. The circumstances which, in normal course of life, would render such a behavior possible and
could have the effect of giving rise to mental imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of human behavior that, in the facts and
circumstances of the case, the accused believed that he was morally justified in committing the
offence.
6. Where the Court upon proper appreciation of evidence is of the view that the crime was not
committed in a pre-ordained manner and that the death resulted in the course of commission of
another crime and that there was a possibility of it being construed as consequences to the
commission of the primary crime.
7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though
prosecution has brought home the guilt of the accused.
While determining the questions relateable to sentencing policy, the Court has to follow certain
principles and those principles are the loadstar besides the above considerations in imposition
or otherwise of the death sentence.
Principles :
1. The Court has to apply the test to determine, if it was the `rarest of rare' case for imposition of
a death sentence.
2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would
be completely inadequate and would not meet the ends of justice.
3. Life imprisonment is the rule and death sentence is an exception.
4. The option to impose sentence of imprisonment for life cannot be cautiously exercised having
regard to the nature and circumstances of the crime and all relevant circumstances.

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5. The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.)
in which the crime was committed and the circumstances leading to commission of such
heinous crime.
Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is
always preferred not to fetter the judicial discretion by attempting to make the excessive
enumeration, in one way or another.
In other words, these are the considerations which may collectively or otherwise weigh in the
mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule.
Every case has to be decided on its own merits. The judicial pronouncements, can only state the
precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be
done on the facts of each case. These are the factors which the Court may consider in its
endeavour to do complete justice between the parties.
The Court then would draw a balancesheet of aggravating and mitigating circumstances. Both aspects have to be given their
respective weightage. The Court has to strike a balance between the two and see towards which
side the scale/balance of justice tilts. The principle of proportion between the crime and the
punishment is the principle of `just deserts' that serves as the foundation of every criminal
sentence that is justifiable. In other words, the `doctrine of proportionality' has a valuable
application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court
will not only have to examine what is just but also as to what the accused deserves keeping in
view the impact on the society at large.
Every punishment imposed is bound to have its effect not only on the accused alone, but also on
the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of
punishment while imposing the extreme punishment of death.
Wherever, the offence which is committed, manner in which it is committed, its attendant
circumstances and the motive and status of the victim, undoubtedly brings the case within the
ambit of `rarest of rare' cases and the Court finds that the imposition of life imprisonment
would be inflicting of inadequate punishment, the Court may award death penalty. Wherever,

152
the case falls in any of the exceptions to the `rarest of rare' cases, the Court may exercise its
judicial discretion while imposing life imprisonment in place of death sentence."

153

17. We shall tentatively examine the facts of the present case in light of the above principles.
First and foremost is that the crime committed by the accused is heinous. In fact, it is not
heinous simplicitor, but is a brutal and inhuman crime where a married person, aged 31 years,
chooses to lure a three year old minor girl child on the pretext of buying her biscuits and then
commits rape on her. Further, obviously intending to destroy the entire evidence and the
possibility of being identified, he kills the minor child. On the basis of the `last seen together'
theory and other direct and circumstantial evidence, the prosecution has been able to establish
its case beyond any reasonable doubt. It can hardly be even imagined that what torture and
brutality the minor child must have faced during the course of commission of this crime. All her
private parts were swollen and bleeding. She was bleeding through her nose and mouth. The
injuries, as described in EX.P17 (the post mortem report) shows the extent of brutal sexual urge
of the accused, which targeted a minor child, who still had to see the world. He went to the
extent of giving bites on her chest. The pain and agony that he must have caused to the deceased
minor girl is beyond imagination and is the limit of viciousness. This Court has to examine the
conduct of the accused prior to, at the time as well as after the commission of the crime. Prior
thereto, the accused had been serving with PW5 and PW6 under a false name and took
advantage of his familiarity with the family of the deceased. He committed the crime in the most
brutal manner and, thereafter, he opted not to explain any circumstances and just took up the
plea of false implication, which is unbelievable and unsustainable. When the Court draws a
balance-sheet of the aggravating and mitigating circumstances, for the purposes of determining
whether the extreme sentence of death should be imposed upon the accused or not, the scale of
justice only tilts against the accused as there is nothing but aggravating circumstances evident
from the record of the Court. In fact, one has to really struggle to find out if there were any
mitigating circumstances favouring the accused. Another aspect of the matter is that the minor
child was helpless in the cruel hands of the accused. The accused was holding the child in a
relationship of `trust-belief' and `confidence', in which capacity he took the child from the
house of PW2. In other words, the accused, by his conduct, has belied the human relationship of
trust and worthiness.
18. The accused left the deceased in a badly injured condition in the open fields without even
clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the
accused has to blame no one else than his own self.

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19. Thus, for the reasons afore-recorded, we find that the learned trial court was fully justified in
law and on the facts of the present case, in awarding the extreme penalty of death for an offence
under Section 302 IPC along with other punishments for other offences.
We find no justifiable reason to interfere with the judgment of conviction and order of sentence
under the impugned judgment.
The appeals are dismissed.
...................................,J.
[A.K. Patnaik] ...................................,J.
[Swatanter Kumar] New Delhi;
February 29, 2012

155

Brijendra Singh vs State Of M.P. & Anr on 11 January, 2008


Author: . A Pasayat
Bench: Dr. Arijit Pasayat, P. Sathasivam
CASE NO.:
Appeal (civil)

7764 of 2001

PETITIONER:
Brijendra Singh
RESPONDENT:
State of M.P. & Anr.
DATE OF JUDGMENT: 11/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:

J U D G M E N T Dr. ARIJIT PASAYAT, J.


The present appeal involves a very simple issue but when the background facts are considered it
projects some highly emotional and sensitive aspects of human life.
Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at Jabalpur in a
Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the C.P.C.).
Background facts sans unnecessary details are as follows:
Sometime in 1948, one Mishri Bai, a crippled lady having practically no legs was given in
marriage to one Padam Singh. The aforesaid marriage appears to have been solemnized because
under the village custom, it was imperative for a virgin girl to get married. Evidence on record
shows that Padam Singh had left Mishri Bai soon after the marriage and since then she was
living with her parents at Village Kolinja. Seeing her plight, her parents had given her a piece of

156
land measuring 32 acres out of their agricultural holdings for her maintenance. In 1970, Mishri
Bai claims to have adopted appellant Brajendra Singh. Padam Singh died in the year 1974. The
Sub-Divisional Officer, Vidisha served a notice on Mishri Bai under Section 10 of the M.P.
Ceiling on Agricultural Holdings Act, 1960 (in short the Ceiling Act) indicating that her holding
of agricultural land was more than the prescribed limit. Mishri Bai filed a reply contended that
Brajendra Singh is her adopted son and both of them constituted a Joint family and therefore
are entitled to retain 54 acres of land. On 28.12.1981, the Sub Divisional officer by order dated
27.12.1981 disbelieved the claim of adoption on the ground inter alia that in the entries in
educational institutions adoptive fathers name was not recorded. On 10.1.1982, Mishri Bai filed
Civil Suit No. SA/82 seeking a declaration that Brajendra Singh is her adopted son. On
19.7.1989, she executed a registered will bequeathing all her properties in favour of Brajendra
Singh. Shortly thereafter, she breathed her last on 8.11.1989. The trial court by judgment and
order dated 3.9.1993 decreed the suit of Mishri Bai. The same was challenged by the State. The
first appellate court dismissed the appeal and affirmed the judgment and decree of the trial
court. It was held concurring with the view of the trial court that Mishri Bai had taken Brajendra
Singh in adoption and in the will executed by Mishri Bai the factum of adoption has been
mentioned. Respondents filed Second Appeal No. 482 of 1996 before the High Court. A point
was raised that the adoption was not valid in the absence of the consent of Mishri Bais husband.
The High Court allowed the appeal holding that in view of Section 8(c) of Hindu Adoption and
Maintenance Act, 1956 (in short the Act) stipulated that so far as a female Hindu is concerned,
only those falling within the enumerated categories can adopt a son.
The High Court noted that there was a great deal of difference between a female Hindu who is
divorced and who is leading life like a divorced woman. Accordingly the High Court held that the
claimed adoption is not an adoption and had no sanctity in law. The suit filed by Mishri Bai was
to be dismissed.
In support of the appeal learned counsel for the appellant submitted that as the factual position
which is almost undisputed goes to show, there was in fact no consummation of marriage as the
parties were living separately for a very long period practically from the date of marriage. That
being so, an inference that Mishri Bai ceased to be a married woman, has been rightly recorded
by the trial court and the first appellate court. It was also pointed out that the question of law
framed proceeded on a wrong footing as if the consent of husband was necessary. There was no
such stipulation in law. It is contented that the question as was considered by the High Court

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was not specifically dealt with by the trial court or the first appellate court. Strong reliance has
been placed on a decision of this Court in Jolly Das (Smt.) Alias Moulick v. Tapan Ranjan
Das [1994(4) SCC 363] to highlight the concept of Sham Marriage.
It was also submitted that the case of invalid adoption was specifically urged and taken note of
by the trial court. Nevertheless the trial court analysed the material and evidence on record and
came to the conclusion that Mishri Bai was living like a divorced woman.
Learned counsel for the respondents on the other hand submitted that admittedly Mishri Bai
did not fall into any of the enumerated categories contained in Section 8 of the Act and
therefore, she could not have validly taken Brajendra Singh in adoption.
It is to be noted that in the suit there was no declaration sought for by Mishri Bai either to the
effect that she was not married or that the marriage was sham or that there was any divorce. The
stand was that Mishri Bai and her husband were living separately for very long period.
Section 8 of the Act reads as follows:
8. Capacity of a female Hindu to take in adoption Any female Hindu
(a) who is of sound mind,
(b) who is not minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is
dead or has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind, has capacity to take a son
or daughter in adoption. We are concerned in the present case with clause (c) of Section 8. The
Section brings about a very important and far reaching change in the law of adoption as used to
apply earlier in case of Hindus. It is now permissible for a female Hindu who is of sound mind
and has completed the age of 18 years to take a son or daughter in adoption to herself in her own
right provided that (a) she is not married; (b) or is a widow; (c) or is a divorcee or after marriage
her husband has finally renounced the world or is ceased to be a Hindu or has been declared to
be of unsound mind by a court having jurisdiction to pass a declaratory decree to that effect. It
follows from Clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself

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even with the consent of her husband because the Section expressly provides for cases in which
she can adopt a son or daughter to herself during the life time of the husband. She can only
make an adoption in the cases indicated in clause (c). It is important to note that Section 6(1) of
the Act requires that the person who wants to adopt a son or a daughter must have the capacity
and also the right to take in adoption. Section 8 speaks of what is described as capacity. Section
11 which lays down the condition for a valid adoption requires that in case of adoption of a son,
the mother by whom the adoption is made must not have a Hindu son or sons son or grand son
by legitimate blood relationship or by adoption living at the time of adoption. It follows from the
language of Section 8 read with Clauses (i)& (ii) of Section 11 that the female Hindu has the
capacity and right to have both adopted son and adopted daughter provided there is compliance
of the requirements and conditions of such adoption laid down in the Act. Any adoption made
by a female Hindu who does not have requisite capacity to take in adoption or the right to take
in adoption is null and void. It is clear that only a female Hindu who is married and whose
marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the
instant case there is no dissolution of the marriage. All that the evidence led points out is that
the husband and wife were staying separately for a very long period and Mishri Bai was living a
life like a divorced woman. There is conceptual and contextual difference between a divorced
woman and one who is leading life like a divorced woman. Both cannot be equated. Therefore in
law Mishri Bai was not entitled to the declaration sought for. Here comes the social issue. A lady
because of her physical deformity lived separately from her husband and that too for a very long
period right from the date of marriage. But in the eye of law they continued to be husband and
wife because there was no dissolution of marriage or a divorce in the eye of law. Brajendra Singh
was adopted by Mishri Bai so that he can look after her. There is no dispute that Brajendra
Singh was in fact doing so. There is no dispute that the property given to him by the will
executed by Mishri Bai is to be retained by him. It is only the other portion of the land originally
held by Mishri Bai which is the bone of contention.
Section 5 provides that adoptions are to be regulated in terms of the provisions contained in
Chapter II. Section 6 deals with the requisites of a valid adoption. Section 11 prohibits adoption;
in case it is of a son, where the adoptive father or mother by whom the adoption is made has a
Hindu son, sons son, or sons sons son, whether by legitimate blood relationship or by adoption,
living at the time of adoption. Prior to the Act under the old Hindu law, Article 3 provided as
follows:

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3. (1) A male Hindu, who has attained the age of discretion and is of sound mind, may adopt a
son to himself provided he has no male issue in existence at the date of the adoption.
(2) A Hindu who is competent to adopt may authorize either his ( i ) wife, or ( ii ) widow (except
in Mithila) to adopt a son to himself. Therefore, prior to the enactment of the Act also adoption
of a son during the lifetime of a male issue was prohibited and the position continues to be so
after the enactment of the Act. Where a son became an outcast or renounced the Hindu religion,
his father became entitled to adopt another. The position has not changed after the enactment of
the Caste Disabilities Removal Act (21 of 1850), as the outcast son does not retain the religious
capacity to perform the obsequial rites. In case parties are governed by Mitakshara law,
additionally adoption can be made if the natural son is a congenital lunatic or an idiot.
The origin of custom of adoption is lost in antiquity. The ancient Hindu law recognized twelve
kinds of sons of whom five were adopted. The five kinds of adopted sons in early times must
have been of very secondary importance, for, on the whole, they were relegated to an inferior
rank in the order of sons. Out of the five kinds of adopted sons, only two survive today, namely,
the dattaka form prevalent throughout India and the kritrima form confined to Mithila and the
adjoining districts. The primary object of adoption was to gratify the means of the ancestors by
annual offerings and, therefore, it was considered necessary that the offerer should be as much
as possible a reflection of a real descendant and had to look as much like a real son as possible
and certainly not be one who would never have been a son. Therefore, the body of rules was
evolved out of a phrase of Saunaka that he must be the reflection of a son. The restrictions
flowing from this maxim had the effect of eliminating most of the forms of adoption. (See Hindu
Law by S.V. Gupte, 3rd Edn., at pp. 899-900.) The whole law of dattaka adoption is evolved
from two important texts and a metaphor. The texts are of Manu and Vasistha, and the
metaphor that of Saunaka. Manu provided for the identity of an adopted son with the family into
which he was adopted. (See Manu, Chapter IX, pp. 141-42, as translated by Sir W. Jones.) The
object of an adoption is mixed, being religious and secular. According to Mayne, the recognition
of the institution of adoption in the early times had been more due to secular reasons than to
any religious necessity, and the religious motive was only secondary; but although the secular
motive was dominant, the religious motive was undeniable. The religious motive for adoption
never altogether excluded the secular motive. (See Maynes Hindu Law and Usage, 12th Edn., p.
329.) As held by this Court in V.T.S. Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar
(AIR 1963 SC 185) substitution of a son for spiritual reasons is the essence of adoption, and

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consequent devolution of property is mere accessory to it; the validity of an adoption has to be
judged by spiritual rather than temporal considerations and devolution of property is only of
secondary importance.
In Hem Singh v. Harnam Singh (AIR 1954 SC 581) it was observed by this Court that under the
Hindu law adoption is primarily a religious act intended to confer spiritual benefit on the
adopter and some of the rituals have, therefore, been held to be mandatory, and compliance
with them regarded as a condition of the validity of the adoption. The first important case on the
question of adoption was decided by the Privy Council in the case of Amarendra Man Singh
Bhramarbar v. Sanatan Singh (AIR 1933 PC 155). The Privy Council said: Among the Hindus, a
peculiar religious significance has attached to the son, through Brahminical influence, although
in its origin the custom of adoption was perhaps purely secular. The texts of the Hindus are
themselves instinct with this doctrine of religious significance. The foundation of the
Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide
for the continuance of the line and the solemnization of the necessary rites.
With these observations it decided the question before it viz. that of setting the limits to the
exercise of the power of a widow to adopt, having regard to the well-established doctrine as to
the religious efficacy of sonship. In fact, the Privy Council in that case regarded the religious
motive as dominant and the secular motive as only secondary.
The object is further amplified by certain observations of this Court. It has been held that an
adoption results in changing the course of succession, depriving wife and daughters of their
rights, and transferring the properties to comparative strangers or more remote relations.
[See: Kishori Lal v. Chaltibai (AIR 1959 SC 504)]. Though undeniably in most of the cases,
motive is religious, the secular motive is also dominantly present. We are not concerned much
with this controversy, and as observed by Mayne, it is unsafe to embark upon an enquiry in each
case as to whether the motives for a particular adoption were religious or secular and an
intermediate view is possible that while an adoption may be a proper act, inspired in many cases
by religious motives, courts are concerned with an adoption, only as the exercise of a legal right
by certain persons. The Privy Councils decision in Amarendra Man Singhs case (supra) has
reiterated the well- established doctrine as to the religious efficacy of sonship as the foundation
of adoption. The emphasis has been on the absence of a male issue. An adoption may either be
made by a man himself or by his widow on his behalf with his authority conveyed therefor. The

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adoption is to the male and it is obvious that an unmarried woman cannot adopt, for the
purpose of adoption is to ensure spiritual benefit for a man after his death and to his ancestors
by offering of oblations of rice and libations of water to them periodically. A woman having no
spiritual needs to be satisfied, was not allowed to adopt for herself. But in either case it is a
condition precedent for a valid adoption that he should be without any male issue living at the
time of adoption.
A married woman cannot adopt at all during the subsistence of the marriage except when the
husband has completely and finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not
under such disqualification, the wife cannot adopt even with the consent of the husband
whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the
Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of
the wife, unless the wife has completely and finally renounced the world or has ceased to be a
Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. It is
relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the
other contingency exists. Though Section 8 is almost identical, the consent of the husband is not
provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take in
adoption. In this respect the Act radically depicts from the old law where no such bar was laid
down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossess the
requisite capacity. As per the proviso to Section 7 the wifes consent must be obtained prior to
adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a
condition precedent to an adoption which is mandatory and adoption without wifes consent
would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have
effect on the capacity to make an adoption.
At this juncture it would be relevant to take note of Jolly Dass case (supra). The decision in that
case related to an entirely different factual scenario. There was no principle of law enunciated.
That decision was rendered on the peculiar factual background. That decision has therefore no
relevance to the present case.
Learned counsel for the appellant submitted that in any event, the land which is declared to be
in excess of the prescribed limit vests in the Government to be allotted to persons selected by the
Government. It was submitted that in view of the peculiar background, the Government may be

162
directed to consider the appellants case for allotment of the land from the surplus land so that
the purpose for which adoption was made and the fact that the appellant nourished a crippled
lady treating her to be his own mother would set a healthy tradition and example. We express no
opinion in that regard. It is for the State Government to take a decision in the matter in
accordance with law. But while dismissing the appeal, we permit the appellant to be in
possession of land for a period of six months by which time the Government may be moved for
an appropriate decision in the matter. We make it clear that by giving this protection we have
not expressed any opinion on the acceptability or otherwise of the appellants request to the State
Government to allot the land to him.
The appeal is dismissed subject to the aforesaid observations.

163

Dhananjay Chatterjee Alias Dhana vs State Of W.B. on 11 January,


1994
Equivalent citations: 1994 (1) ALT Cri 388, 1994 (2) BLJR 1231, (1994) 1 CALLT 28
SC, JT 1994 (1) SC 33, 1994 (1) SCALE 48, (1994) 2 SCC 220, 1994 1 SCR 37, 1994 (2)
UJ 106 SC
Author: A Anand
Bench: A Anand, N Singh
JUDGMENT A.S. Anand, J.
1. Hetal Parekh a young 18 years old school-going girl was raped and murdered on 5.3.1990
between 5.30 and 5.45 p.m. in her flat No. 3-A, on the third floor of 'Anand Apartment'. The
appellant was challenged and tried for rape and murder and also for an offence under Section
380 IPC, for committing theft of a wrist watch from the said flat. The learned Additional
Sessions Judge found him guilty and convicted the appellant, (i) for an offence under Section
302 IPC and sentenced him to death, (ii) for an offence under Section 376 IPC and sentenced
him to imprisonment for life, and (iii) for the offence under Section 380 IPC, he was sentenced
to undergo rigorous imprisonment for five years. The substantive sentences under Sections 376
and 380 IPC were ordered to run concurrently but were to cease to have any effect, in case the
sentence of death for conviction of the appellant under Section 302 IPC was confirmed by the
High Court and the appellant was executed. Reference for confirmation of the death sentence
was accordingly made to the High Court. The appellant also preferred an appeal against his
conviction and sentence in the High Court. The criminal appeal filed by the appellant was
dismissed and the sentence of death was confirmed by the High Court. On special leave being
granted, the appellant, Dhananjay Chatterjee @ Dhana, has filed this appeal.
2. According to the prosecution case, the appellant Dhananjay was one of the security guards
deputed to guard the building 'Anand Apartment' by M/s. Security and Investigating Bureau of
which Mr. Shyam Karmakar PW 21 was the proprietor. On 2.3.1990, Hetal deceased complained
to her mother Yashmoti Parekh PW 3 that the appellant had been teasing her on her way to and
back from the school and had proposed to her on that day to accompany him to cinema hall to
watch a movie. She had made complaints about the teasing by the appellant to her mother
previously also. Yashmoti PW 3 told her husband Nagardas Parekh PW 4 on 3.3.1990 about the
behaviour of the appellant towards their daughter, who in turn complained to Shyam Karmakar
PW 21 and requested him to replace the appellant. At the asking of Shyam Karmakar PW 21,

164
who came to meet Nagardas PW 4 in his flat in that connection, PW 4 gave a written complaint
also and the appellant was transferred and a transfer order posting the appellant at 'Paras
Apartment' was issued by PW 21. Bijoy Thapa, a security guard at Paras Apartment was posted
in his place, at Anand Apartment. The transfer was to take effect from 5.3.1990.
3. As per their normal routine, Nagardas Parekh PW 4 and his son Bhawesh Parekh PW 5, father
and brother of the deceased respectively, left for their place of business and college in the
morning on 5.3.1990. Bhawesh PW 5 returned to the Oat at about 11.30 a.m. and after taking his
meals, left for his father's place of business as was his routine. The deceased returned to her flat
after taking her examination at at about 1 p.m. Yashmoti PW 3, the mother of the deceased used
to visit Laxmi Narayan Mandir between 5 and 5.30 p.m daily. As usual, on the date of the
occurrence also she left for the Temple at about 5.20 p.m. Hetal, deceased was all alone in the
flat at that time. The appellant, inspite of the order of transfer, did not report at Paras
Apartment and instead performed his duties, as a security guard, at Anand Apartment between
6 a.m and 2 p.m on 5.3.1990. Shortly after Yashmoti PW 3, the mother of the deceased left for
the Temple, the appellant met Dasarath Murmu PW 7, another security guard who was at the
time on duty at the building and told him that he was going to flat 3-A for contacting his office
over the telephone. The appellant used the lift to go to the said flat. At about 5.45 p.m., Pratap
Chandra Pali PW 6, supervisor of the Security and Investigating Bureau, visited Anand
Apartment and enquired from PW 7 whether Bijoy Thapa had performed his duty in place of the
appellant in the morning but was told by Dasarath PW 7, that Bijoy Thapa had not come to that
building and that the duties had been performed by the appellant between 6 a.m and 2 p.m. on
that day. On enquiry by the supervisor as to where the appellant was, PW 7 told the supervisor
that at that particular time, the appellant had gone to flat No. 3-A with a view to contact his
office over the telephone. The supervisor Pratap Chandra PW 6 asked Dasarath PW 7 to call the
appellant and since, he was not able to contact him through the intercom, there being no
response from flat No. 3-A, he called out the name of the appellant, who appeared at the balcony
of flat No. 3-A and on being told that PW 6, the supervisor had come and wanted to see him, told
him that he would come down. The appellant after a little while came down by the stairs and
even though the supervisor PW 6 and Dasarath PW 7 were waiting for him, he hurriedly went
passed them and on being asked by PW 6 that he wanted to talk to him, told him to come
outside the gate and speak to him. The appellant on inquiry by PW 6 as to why he had not
obeyed the transfer order told him that due to some personal difficulty he could not report for

165
duty at Paras Apartment. He was advised to take charge at Paras Apartment without fail the next
day. The appellant thereafter left.
4. At about 6.05 p.m. Yashmoti PW 3 returned from the Temple. While going to her flat in the
lift, she was told by Ramdhan Yadav PW 8, the lift operator, that the appellant had gone to her
flat in her absence to make a telephone call to his office. She was annoyed on getting this
information because of the complaint which the deceased had made to her earlier. On reaching
her flat she rang the bell repeatedly but there was no response and no-body opened the door,
She raised alarm which attracted several of her neighbours. They also rang the bell and knocked
at the door but there was no response. Eventually the lock of the door was broken open by the
neighbours, their servant and the liftman, and as she entered the flat along with some of her
neighbours, she found the door of her bed room open. Hetal deceased was lying on the floor.
Her skirt and blouse had been pulled up and her private parts and breasts were visible. There
were patches of blood near her head as well as on the floor. There were blood stains on her
hands and vagina also. Her wearing apparel was blood stained. There were some marks of
violence and blood was found on her face as well. There were blood marks on the 'Jhoola' lying
in the room. Her torn panty was found lying near the entrance of the door and the deceased
appeared to be unconscious at that time. Her mother, PW 3, lifted the deceased in her arms and
rushed down through the lift with a view to take her to the doctor. In the meantime, a doctor
had been summoned by the neighbours who arrived and on examining the deceased in the lift
itself, where she was lying in the lap of her mother, pronounced her dead. Information of the
occurrence, was sent to the father of the deceased and at about 7 p.m. Bhawesh PW5 returned.
In the meantime, another doctor, who had also been called, arrived and after examining the
deceased certified her as dead. The dead body of Hetal was taken back to the flat and laid on her
bed in her room and was covered by a sheet. At about 8.30 p.m. father of the deceased,
Nagardas PW 4 returned to the flat and on being told of the murder of Hetal, he informed the
Bhawanipore Police Station at about 9.15 p.m on the telephone. On receipt of the telephonic
message, sub-inspector Gurupada Som PW 28, the acting duty officer, rushed to the place of
occurrence along with some other police personnel and recorded the FIR on the statement of
Yashmoti Parekh PW 3, the mother of the deceased and commenced investigation. During the
search of the room where the deceased had been allegedly raped and murdered, blood stained
earth, a broken chain, a cream colour button, the torn panty of the deceased and some other
articles were seized and sealed into a parcel after preparing seizure memos. Statements of some
witnesses were also recorded.

166
5. Search was made for the appellant by the police at different places during the night
intervening 5th and 6th march 1990 but in vain. The appellant did not even visit his employers
to collect his wages for the past 5 days. He did not report at 'Paras Apartment' either. Though he
was also doing night duty at another place, he did not report for duty at another place, he did
not report for duty there and did not collect his wages for four days service rendered with the
other employer either. He was not traceable. Some raids were conducted in the village of the
appellant at Kuludihi, within the jurisdiction of Chatna Police Station on different dates but
ultimately it was only on 12.5.1990 that the appellant came to be arrested. Pursuant to a
disclosure statement made by him under Section 27 of the Evidence Act, a 'Richo' wrist watch
was recovered. Appellant also led to the recovery of his shirt and trouser wrapped in a
newspaper from his house pursuant to a disclosure statement. At the trial the appellant pleaded
innocence and alleged false implication 'due to quarrel with PW 4 over his transfer'. In his
statement made at the trial under Section 313 Cr.P.C., the appellant stated that after his duty
hours as the security guard at Anand Apartment on the date of the occurrence he had gone to a
cinema and then purchased some fruits in connection with the sacred thread ceremony of his
younger brother and left for his native place with the fruits to participate in the said ceremony.
He denied the recoveries allegedly made from him. He, however led no defence evidence.
6. There is no eye-witness of this occurrence. The entire case rests on circumstantial evidence.
Hetal Pareku, the unfortunate young school-going girl of about 18 years of age, had been
subjected to rape before her death and that the death was homicidal in nature stands amply
established by the testimony of Dr. Dipankar Guha PW 20, who conducted the post-mortem
examination on the dead body. As many as 21 injuries were noticed by Dr. Dipankar Guha on
the deceased and since both the trial court and the High Court have reproduced the injuries in
extenso, we need not repeat the same. The medical witness found that the hymen of the
deceased showed fresh tear at 4,5, and 7 O'clock position with evidence of fresh blood in the
margins. He also found presence of blood stains on the vagina and matter pubic hair of the
deceased. Blood was also noticed at nostril and face of the deceased. The hair from the scalp
were also found matted with blood. There was "fracture and dislocation of hyoid bone on its
greater corn of left side" (Injury No. 21). In the opinion of the doctor, the deceased had been
subjected to rape before murder and that the death was due to the fact of smothering with
strangulation and injuries were anti-mortem and homicidal. Injury No. 21, as noticed above, was
found sufficient to cause the death of the victim in the ordinary course of nature. According to
the report of the Senior Scientific Officer-cum-Assistant Chemical Examiner, Forensic Science

167
Laboratory, Government of West Bengal, Ex. 36 semen was detected on the panty (under
garment) and the pubic hair of the deceased. The presence of blood stains, marks of violence on
the face of the deceased and the state of her clothes indicated that the victim had offered
resistance but was helpless. There thus, remains no doubt that the deceased had been subjected
to rape before her murder. Medical evidence is clear and cogent and Mr. Ganguli, the learned
Senior Advocate, appearing for the appellant, did not question the same either. We therefore,
have to address ourselves to determine whether or not the appellant was the assailant who had
raped and murdered the defenceless young girl.
7. It is settled law that in a case based on circumstantial evidence, the circumstances from which
the conclusion of guilt is to be drawn have not only to be fully established but also that all the
circumstances so established should be of a conclusive nature and consistent only with the
hypothesis of the guilt of the accused. Those circumstances should not be capable of being
explained by any other hypothesis, except the guilt of the accused and the chain of the evidence
must be so complete as not to leave any reasonable ground for the belief consistent with the
innocence of the accused. It needs no reminder that legally established circumstances and not
merely indignation of the court can form the basis of conviction and the more serious the crime,
the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of
proof. Since, the instant case Ls based on circumstantial evidence and the sentence awarded by
the trial court and confirmed by the High Court is that of death, we have no consider the
circumstances carefully bearing the principles noticed above in mind.
8. Before, we proceed to consider various circumstances, we would like to deal with one finding
of the High Court relating to the first information report. The High Court found that after the
telephonic message had been sent to the Police Station, and the investigating officer after
making an entry in the G.D. rushed to the scene of occurrence to record the statement of
Yashmoti PW 3, that statement of PW 3 could not be treated as a first information report and
that the "telephonic message as recorded in the G.D" was the first information report and the
statement of PW 3 was only a statement recorded during the investigation of the case and not
the FIR. In the words of the High Court:
We are therefore, of the opinion that the statement of PW 3 recorded by the Police after the
investigation had already commenced could not be treated as the first information report.

168
9. We are unable to agree with the opinion of the High Court. The cryptic telephonic message
received at the Police Station from Nagardas PW 4 had only made the police agency to rush to
the place of occurrence and record the statement of Yashmoti PW 3 and thereafter commence
the investigation as was admitted by the investigating officer in his testimony which testimony
was not challenged during the cross-examination of the investigating officer. The High Court
failed to notice that the vague and indefinite information given on the telephone which made the
investigating agency only to rush to the scene of occurrence could not be treated as a first
information report under Section 154 of the Cr.P.C. The unchallenged statement of the
investigating officer that he commenced the investigation only after recording the statement of
PW 3 Yashmoti unmistakably shows that it was that statement which alone could be treated as
the first information report. The High Court fell in error in observing that the statement of PW 3
Yashmoti was recorded "after the investigation had already commenced". There is no material
on the record for the above opinion of the High Court. The cryptic telephonic message given to
the police by Nagardas PW 4 was only with the object of informing the police so that it could
reach the spot. The investigation in the case only started after the statement of PW 3 Yashmoti
was recorded. Though initially Mr. Ganguli did try to support the finding of the High Court but
in the face of the evidence on the record and more particularly in the absence of any challenge to
the testimony of the investigating officer, in fairness to Mr. Ganguli, we just record that he
rightly did not pursue that argument any further. We, therefore, find ourselves, unable to agree
with the opinion of the High Court and hold that the statement of Yashmoti PW 3, recorded by
the investigating officer PW 28, was rightly treated as FIR in this case by the prosecution and
the trial court.
10. We shall now deal with and consider various circumstances relied upon by the prosecution
which have been accepted as conclusively established both by the trial court and the High Court
to connect the appellant with the crime.
1. Motive: In a case based on circumstantial evidence, the existence of motive assumes
significance though the absence of motive does not necessarily discredit the prosecution case, if
the case stands otherwise established by other conclusive circumstances and the chain of
circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of
the accused and inconsistent with the hypothesis of his innocence. In this case, there is ample
evidence on the record to show that the appellant had a motive to commit the alleged crime and

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we are unable to agree with Mr. Ganguli that the motive for the appellant to commit the murder
of the deceased has not been established.
The deceased was being teased by the appellant when she used to go to or came back from the
school. She had brought it to the notice of her mother PW 3 on a number of occasions, the latest
in the series being on 2.3.1990. Yashmoti PW 3 informed her husband Nagardas PW 4 about the
complaints. From the testimony of Nagardas PW 4, it transpires that after he came to know
about the misbehaviour of the appellant from his wife PW 3 on 2.3.1990, he called some other
dwellers of the Apartment to apprise them of the same. Mahendra Chauhatia PW 13 and Harish
Vakharia PW 14 have deposed that they had been called by Nagardas PW 4 who reported to
them that the appellant had been teasing his daughter and that PW 4 had suggested that the
appellant should be replaced by another security guard. They (PW 13 and PW 14) both agreed.
The testimony of PW 13 and PW 14 has remained totally unchallenged in cross-examination.
After consulting PW 13 and PW 14, Nagardas PW 4 asked Shyamal Karmakar PW 21, the
employer of the appellant, to meet him and according to the statement of PW 21 Karmakar he
came to the flat of Nagardas PW 4 on 3.3.1990, where he was informed about the teasing of the
daughter of PW 4 by the appellant, PW 21 deposed that Nagardas PW 4 told him to replace the
appellant by another security guard and even handed over a written complaint Ex.4 to him. The
defence has not challenged this part of the testimony of PW 21 during his cross-examination at
all. PW 21 after receiving the complaint Ex.4 against the appellant from PW 4, made an order of
transfer of the appellant from 'Anand Apartment' to 'Paras Apartment' and deputed Bijoy Thapa
another security guard in place of the appellant with effect from 5.3.1990. The order of transfer
was handed over to Riazul Haq PW 9, who delivered it to the appellant. The copy of the transfer
order Ex.23 was handed over by Riazul Haq PW 9 to the appellant on 4.3.1990 while the
appellant was on duty at the 'Anand Apartment'. This part of the testimony of PW 9 has not been
assailed during his cross-examination. From the prosecution evidence, the teasing of the
deceased by the appellant, his invitation to her to accompany him to watch a movie on 2.3.1990
and the order of his transfer from 'Anand Apartment' made by PW 21 on the complaint of the
deceased, through her father PW4, stand amply established on the record. It is pertinent to note
that there has been no challenge worth the name to this part of the case of the prosecution
during the cross-examination of various witnesses produced by the prosecution in its support.
Mr. Ganguli however, submitted before as that the delay in the seizure of complaint Ex.4 and the
transfer order, on 29.6.1990 were indicative of the fact that both the documents had come into
existence subsequently as an after thought. We do not find any force in this submission. PW 4

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who gave a written complaint to PW 21 and PW 9 who delivered the transfer order issued by PW
21 to the appellant were not challenged in the cross-examination about the same. Even the
investigating officer was not asked for an explanation as to why the documents had been seized
so late. In any event the seizure of the documents on 29.6.1990, after the appellant had been
arrested only a couple of weeks earlier, would not go to show that the documents were either
fabricated or were an after thought. In this connection, it is also relevant to notice that a positive
suggestion was made by the defence to PW 4 during his cross-examination that the appellant
had quarreled with him 'over his transfer from Anand Apartment' and on account of that
quarrel, the appellant had been "falsely implicated". Of course, PW 4 denied the suggestion but
defence suggestion does not militate against the prosecution case regarding the annoyance of
the appellant on that score. We also find corroboration available from the statement of Pratap
Chandra Pali PW 6 the supervisor of Security and Investigating Bureau, who had visited 'Anand
Apartment' at about 5.45 p.m. on 5.3.1990 and enquired from the guard on duty as to how the
appellant had reported for duty at Anand Apartment, when he stood transferred to Paras
Apartment. Moreover, when PW 6 demanded an explanation from the appellant on 5.3.1990 as
to why he had not reported for duty at Paras Apartment, the appellant is alleged to have told
him that it was on account of 'certain personal inconvenience' that he could not so join on that
date. PW 6 was not challenged with regard to his testimony as regards the transfer of the
appellant. We also find no substance in the submission of Mr. Ganguli that in a private
organisation, written transfer orders are not given and that the written transfer order in this
case is a created piece of evidence. There is no hard and fast rule regarding giving of oral or
written transfer orders in private organisations and in any event neither PW 21 nor PW 9 or PW
6 were questioned on this aspect. Once service of the transfer order by PW 9 is not assailed
during the cross-examination of the witness, the above argument of Mr. Ganguli hardly deserves
any serious consideration. The evidence on the record has, thus, clearly and cogently established
the improper attitude of the appellant towards the young girl, Hetal, and his teasing her often
and seeking her company to go to a movie. The appellant, therefore, had certainly improper
designs so far as the deceased is concerned. His transfer from 'Anand Apartment' on the
allegation that he had teased the deceased, therefore, provided sufficient motive for him not
only to satisfy his lust and teach a lesson to the deceased girl for spurning his offer but also as a
measure of retaliation for being reported to his employer and being transferred from Anand
Apartment to paras Apartment on the basis of the said complaint. The transfer of the appellant
on grounds of his improper behaviour with the deceased was an aspersion on his character and
that appears to have provided him the immediate motive for committing the crime in retaliation

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and even may be to remove the evidence of committing rape on the deceased. We are, therefore,
of the opinion that the prosecution has successfully established the existence of motive on the
part of the appellant to commit the crime.
2. Evidence relating to the appellant's visit to Flat 3-A: According to the prosecution case PW 3
Yashmoti, the mother of the unfortunate deceased, left for the Temple on 5.3.1990 at about 5.20
p.m. This was her daily routine and the appellant, who was a security guard at the apartment
must be deemed to be aware of this routine practice of the mother and since the deceased had
returned to her flat at about 1.00 p.m. after taking the examination, when the appellant on his
own admission, besides the testimony of PW 7, was on duty, he knew that after the departure of
PW 3, the deceased would he alone in her flat, her father and brother having left earlier. He,
therefore, utilised that opportunity to go to Flat No. 3-A, during the absence of PW 3 to commit
the crime. The liftman Ramdhan Yadav PW 8 and Dasarath PW 7, the other security guard on
duty have testified about Yashmoti PW 3 leaving the apartment at about 5.20 p.m. on 5.3.1990
for the Temple. Further, according to the testimony of PW 7, after the departure of PW 3, the
appellant went to Flat No. 3 A and had told Dasarath PW 7 that he was going to the said flat for
contacting his office over the telephone and thereafter the appellant went upstairs by the lift. At
about 5.45 p.m., PW 6 the supervisor on reaching 'Anand Apartment' was told by PW 7, on his
enquiry, that the appellant had gone to Flat No. 3-A to contact the office over the telephone and
that he had not obeyed the transfer order. At the direction of PW 6, the guard, on duty PW 7
tried to contact the appellant through the intercom but since there was no response from Flat 3A, he called out the name of the appellant, who appeared at the balcony in front of Flat 3-A and
on being informed that PW 6 wanted to meet him, told PW 7 that he was coming down. He then
came down through the stairs. On reaching the ground floor he attempted to side track both PW
6 and PW 7 and hurriedly went past them. When PW 6, the supervisor, demanded an
explanation from the appellant as to why he had not joined duty at Paras Apartment and why he
was still at Anand Apartment, the appellant told him that on account of some personal
inconvenience he had not been able to comply with the transfer order. Though Ramdhan PW 8
who took the appellant to the third floor by the lilt, turned hostile at the trial, we find that he did
not go back on the entire version as earlier given by him. The testimony of PW 8 need not,
therefore, be ignored totally and the court can scrutinise his testimony and accept that portion
of the same which receives corroboration from other evidence on record. The testimony of a
hostile witness is not liable to be rejected without even scrutinising it, although great care and
caution is required to analyse the same before accepting any part of it as is otherwise found

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reliable and consistent with the prosecution case. We have carefully considered the statement of
PW 8 and find that he does afford corroboration regarding the presence of the appellant at the
time of visit of PW 6 to Anand Apartment and his coming down the stairs from the third floor on
being called by PW 7, the security guard on duty. On the return of Yashmoti PW 3, from the
Temple, PW 8 the liftman told her that the appellant had gone to her flat to make a telephone
call. Despite lengthy cross-examination, the testimony of PW 6 the supervisor and PW 7 on this
aspect of the case has remained uashetlered. Their credibility has not been impeached at all. The
submission of Mr. Ganguli that there was no need for the appellant to have disclosed to PW 7
that he was going to flat 3-A, if the appellant was going to commit a crime, has not impressed us
because in the face of the order of transfer of the appellant from Anand Apartment to Paras
Apartment, he had to given some explanation to the guard on duty for going to the third floor of
the building. He could not have gone to the third floor unnoticed. Even if it be assumed that PW
7 was not aware of the transfer order, the appellant's duty was already over and without giving
some explanation to PW 7, the guard on duty, he could not have gone to Hat 3-A of Anand
Apartment. There was, therefore, nothing improbable for the appellant to have told the guard on
duty that he was going to flat 3-A and to have coined a false excuse that he was going to do so
with a view to contact the office on telephone. Moreover, we cannot lose sight of the fact that
human conduct varies from person to person and different people may react to a situation
differently. Mr. Ganguli also argued that since there were no visible sign of perturbedness on the
appellant when he came down from the third floor and met PW 6, it would show that in all
probabilities that appellant had nothing to do with the crime. The argument is a mere surmise.
Not only no question was asked of any witness as to what was the state of mind or facial
expression or behaviour of the appellant when he came down from the third floor, the appellant
would have in any case taken pains to conceal his real expressions, lest any suspicion should
arise that the appellant had done something wrong, because none, at that point of time, had the
knowledge about the commission of crime. The behaviour of the appellant on coming down
from the third floor was not normal because when PW 6, the supervisor wanted to talk to the
appellant, he side-tracked him and hurriedly went out of the main gate of the apartment asking
the supervisor to come outside to talk to him. This behaviour to say the least, is not normal
because a supervisor would not normally be treated in this manner by a subordinate security
guard. The testimony of the PW 6 and PW 7 on this aspect of the case has again not been
discredited in any way and both of them are independent witnesses, who had no reason to
falsely depose against the appellant and we find it safe to rely upon their testimony. The
prosecution has, thus, conclusively established that at the crucial time, the appellant had gone to

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flat 3-A, where the deceased was all alone, her mother PW3 having left the flat for the Temple
earlier and that the deceased was found raped and murdered shortly thereafter. 3. Recovery of a
cream colour button and chain from flat 3-A on 5.3.1990 and shirt and pant of the appellant
from his house on 12.5.1990: From the prosecution evidence it stands established that during
the investigation of the case, when the police searched the room where the dead body of Hetal
was lying, they recovered a broken chain and a shirt button of cream colour with four holes from
the bed room of PW3 and PW 4 besides the panty of the deceased from the living room which
was torn and had blood stains. PW2S the investigating officer besides Bhawesh Parekh PW5 and
Rajiv Bokharia PW10 have deposed to the seizure of these articles from the place of occurrence
on 5.3.1990. All the Articles were secured in a parcel and sealed. According to PW7, the
appellant was wearing a cream coloured shirt and gray trousers when he went to flat No. 3 A on
the date of occurrence. The appellant, as already noticed, was arrested on 12.5.1950 Pursuant to
a disclosure statement made by him, he brought out a packet, wrapped in a newspaper,
containing one shirt and a pant which were seized vide seizure list Ex.16. The recovery of the
wearing apparel on the disclosure statement of the appellant has been established by the
testimony of Pranab Chatterjee and Debilal Mukherjee, who have corroborated the evidence of
the investigating officer fully. Though, the entire statement made by the appellant before the
police is inadmissible in evidence being hit by Sections 25 and 26 of the Evidence Act but that
part of his statement which led to the discovery of the shirt and the pant is clearly admissible
under Section 27 of the Evidence Act. We disregard the inadmissible part of the statement and
take note only of that part of his statement which distinctly relates to the discovery of the articles
pursuant to the disclosure statement made by the appellant as it is only so much of the
statement made by a person accused of an offence while in custody of a police officer, whether it
is confessional or not, as relates distinctly to the fact discovered which is capable of being proved
and admitted into evidence. The discovery of the fact in this connection includes the discovery of
an object found, the place from which it is produced and the knowledge of the accused as to its
existence.
The cream colour button recovered from the place of occurrence along with the shirt seized on
the disclosure statement of the appellant and seized from his house on 12.5.1990 alongwith the
other seized articles were sent by the investigating agency to the Forensic Science Laboratory.
From the testimony of Pratha Sinha PW27, the senior Scientific Officer, attached to the Physics
Division of the Forensic Science Laboratory, Government of West Bengal, it transpires that the
cream colour button, recovered from the place of occurrence was from the shirt which had been

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recovered at the instance of the appellant from his house after his arrest. PW27 deposed that all
the buttons stitched on the shirt, except the third button from the top of the front vertical plate,
were of light cream colour and stitched in the similar pattern with off-white thread of three ply
and Z type twist, whereas the third button was of white colour and stitched in a different pattern
with milky while thread of two ply and X type twist. The appellant appears to have stitched the
third button in lieu of the one which had fallen off probably during scuffle at the site of
occurrence. From the unchallenged testimony of PW27, it is crystal clear that the third button
stitched on the shirt examined by him was different, distinct and separate from the other three
buttons found on the shirt and that the third button had been replaced and stitched in a
different manner. His examination also established that the button, recovered from the place of
occurrence and sent to him for examination tallied with and was identical to the remaining three
buttons on the shirt of the appellant. The evidence of the expert witness, therefore, clearly points
out to the conclusion that the button found from the place of occurrence was the third button of
too shirt of the appellant, which had fallen of and was found on the scene of crime. This piece of
circumstantial evidence is quite specific and is of a crucial nature and undoubtedly connects the
appellant with the crime.
The discovery of the broken chain from the place of occurrence also connects the appellant with
the crime. From the testimony of Gauranga Chandra PW11, it appears that the broken chain,
recovered from the place of occurrence, had been given by the witness to the appellant about a
month prior to the date of the incident. There was no cross-examination of this witness to
challenge this part of his testimony. Of course, the defence did suggest during the crossexamination that such like chains are available in the market but that suggestion cannot detract
from the reliability of the prosecution evidence. We agree with the finding of the High Court that
the prosecution has successfully established that Gauranga PW11 had given the neck chain,
recovered from the place of occurrence on 5.3.1990 to the appellant about a month before the
occurrence. This piece of evidence establishes the presence of the appellant in flat 3-A on
5.3.1990. 4. Absconding: We are conscious of the fact that abscondence by itself is not a
circumstance which may lead to the only conclusion consistent with the guilt of the accused
because it is not unknown that innocent persons, on being falsely implicated, may abscond to
save themselves but abscondence of an accused after the occurrence is certainly a circumstance
which warrants consideration and careful scrutiny. The evidence of PW6, the supervisor, and of
the security guard PW7 establishes beyond a reasonable doubt that the appellant had left Anand
Apartment at about 6 p.m. and was not seen thereafter. The evidence on the record shows (see

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the evidence of PWs 3,4,6 and 7) that the appellant used to live in the generator room at 'Anand
Apartment'. In the transfer order he had been asked to remove his belongings from the
generator room. The investigation officer PW 28 has clearly deposed that he searched for the
appellant but could not trace him during the night of 5.3.1990 and 6.3.1990. From the testimony
of PW21, the employer of the appellant it transpires that the appellant did not report for duty at
'Paras Apartment' or at 'Anand Apartment' after he left the 'Anand Apartment' at about 6 p.m.
on 5.3.1990. The appellant did not apply for any leave nor did he send any letter of resignation.
Anil Kumar sub-inspector PW25, had made search for the appellant under orders of the
Assistant Commissioner of the Detective Department but could not trace him. Raids were even
made in the village of the appellant to apprehend the appellant but in vain till 12.5.1990. The
evidence of PW25,PW28 and PW29 has not been assailed during the cross-examination. Their
testimony is corroborated by documentary evidence including Ex-29 and we have no hesitation
in relying upon their testimony. The appellant absconded soon after the occurrence. No body
had admittedly by named him as an accused at 6 p.m. on 5.3.90, because even the FIR came to
be recorded much later at about 9.15 p.m. Why did the appellant disappear? The appellant has
offered no explanation. No challenge has been made to the testimony of the investigating
officers either when they testified that they unsuccessfully searched for the appellant from 5th to
8th March 1990 at different places or conducted raids at his village to apprehend him. The
circumstance of absconding was put to the appellant in his statement under Section 313 Cr. P.C,
but instead of giving a satisfactory explanation, he came forward with a plea of alibi. He stated
that he left Anand Apartment to see a picture in a cinema hall after 2 p.m. and then returned to
Manorma School and after collecting his belongings and purchasing some fruits left for his
native place to participate in the sacred thread ceremony of his brother. No evidence was
produced by the appellant in support of this belated plea of alibi. There is no material on the
record to show that he went to any cinema or participated in any sacred thread ceremony of his
brother or that even such a ceremony at all took place at his native village. Though it is not
necessary for an accused to render an explanation to prove his innocence and even if he renders
a false explanation, it cannot be used to support the prosecution case against him and that the
entire case mast be proved by the prosecution itself but it is well settled that a plea of alibi, if
raised, by an accused is required to be proved by him by cogent and satisfactory evidence so as
to completely exclude the possibility of the presence of the accused at the place of occurrence at
the relevant time. The belated and vague plea of alibi of which we find no whisper during the
cross-examination of any of the prosecution witnesses, and which has not been sought to be
established by leading any evidence either is only an after thought and a plea of despair. The

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accordance of the appellant is thus a material circumstance which has been satisfactorily and
conclusively established by the prosecution against the appellant.
5. Recovery of the wrist watch EX.18 from the house of the appellant: According to the
prosecution case, the appellant led to the recovery of a 'Richo' wrist watch pursuant to a
disclosure statement made by him under Section 27 of the Evidence Act soon after he was
arrested on 12.5.1990 during his interrogation in presence of the witnesses. Wrist watch
recovered from the house of the appellant pursuant to his disclosure statement, according to the
prosecution, had been stolen from flat 3-A on the date of the occurrence and belonged to PW3
the mother of the deceased. The recovery of the wrist watch, has-been established by the
prosecution, through the evidence of PW29, PW24 and PW19. They have given a consistent
version and have deposed that after the appellant was found hiding behind a stock of straw in
his uncle's house and was arrested, he made a disclosure statement, during interrogation, and
led to the recovery of a ladies 'Richo' wrist watch, with a golden metal hand from a rack in his
house. The said watch, marked material Ex.18, was seized by the police vide seizure memo Ex.16
in presence of the witnesses who have testified to the seizure and the sealing of the wrist watch
after its recovery at the spot. The prosecution has led evidence to show that the recovered watch
Ex. 18 had been sold to PW3 by HMT watch Company on 21.2.1990 for Rs. 350/-. Mohd.
Fakruddin PW18, the sales man of the watch company proved the guarantee card Ex.15 relating
to the said wrist watch and stated that the wrist watch Ex. 18 had been sold from their shop. The
factum of the theft of the watch from the almirah had come to the notice of PW3 during search
on 6.3.1990 after the occurrence and the police was immediately apprised of the same in
writing. Even though the communication to the police may be inadmissible in evidence, being
hit by Section 162 Cr. P.C., there was no challenge to the testimony of PW3 that her 'Richo' wrist
watch had been stolen on the date of. the occurrence and that material object Ex.18 was the
same stolen wrist watch which had been recovered at the instance of the appellant from his
house. We do not find any substance in the criticism levelled by Mr. Ganguli, to the effect that
the absence of a cash memo or the cash register rendered the evidence of Fakruddin PW18 or
PW3 doubtful. We have carefully perused the testimony of PW18 and do not find any blemish in
the same. The non-seizure of the cash memo by the investigating agency cannot discredit the
testimony of PW18 or PW3 and nothing has been brought to our notice from which any doubt
can be cast on the testimony of PW18 regarding the sale of the watch to PW3. The testimony of
the prosecution witnesses relating to the disclosure statement of the appellant and the seizure of
the wrist watch pursuant thereto from the house coupled with the testimony of PW18 Fakruddin

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and the identification of the watch by PW3 conclusively connects the appellant with the theft of
the watch on the date of occurrence from the flat where the ghastly occurrence took place. The
absence of any explanation, for possession of the wrist watch belonging to PW3, by the appellant
is a circumstance which goes against the appellant.
11. All the circumstances referred to above and relied upon by the prosecution have been
conclusively established by the prosecution. They arc specific and of clinching nature and all of
them irresistibly lead to the conclusion that the appellant alone was guilty of committing rape of
Hetal and subsequently murdering her. All the circumstances which have been conclusively
established are consistent only with the hypothesis of the guilt of the appellant and are totally
inconsistent with his innocence. Not only in the cross-examination of various prosecution
witnesses, but even during the arguments, nothing has been pointed out as to why any of the
witness for the prosecution should have falsely implicated the appellant in such a heinous crime.
None of the witnesses had any motive to falsely implicate him. None had any enmity with him.
The witnesses produced by the prosecution have withstood the test of cross-examination well
and their creditworthiness and reliability has not been demolished in any manner. All the
circumstances established by the prosecution, as discussed above, are conclusive in nature and
specific in details. They are consistent only with the hypothesis of the guilt of the appellant and
totally inconsistent with his innocence. We are, therefore, in complete agreement with the trial
court and the High Court that the prosecution has established the guilt of the appellant beyond a
reasonable doubt and we, therefore, uphold his conviction for the offences under Sections 302,
376 and 380 IPC.
12. This how brings us to the question of sentence. The trial court awarded the sentence of death
and the High Court confirmed the imposition of capital punishment for the offence under
Section 302 IPC for the murder of Hetal Parekh. Learned Counsel submitted that appellant was
a married man of 27 years of age and there were no special reasons to award the sentence of
death on him. Learned Counsel submitted that keeping in view the legislative policy discernable
from Section 235(2) read with Section 354(3) Cr. P.C., the Court may make the choice of not
imposing the extreme penalty of death on the appellant and give him chance to become a
reformed member of the society in keeping with the concern for the dignity of human life.
Learned Counsel for the State has on the other hand canvassed for confirmation of the sentence
of death so that it serves as a deterrent to similar depraved minds. According to the learned

178
State counsel, there were no mitigating circumstances, and the case was undoubtedly 'rarest of
the rare' cases where the sentence of death alone would meet the ends of justice.
13. We have given our anxious consideration to the question of sentence. Keeping in view the
changed legislative policy which is patient from Section 354(3) Cr. P.C. We have also considered
the observations of this Court in Bachan Singh's case, 1980 Crl. Law Journal 636.
14. In recent years, the rising crime rate-particularly violent crime against women has made the
criminal sentencing by the courts a subject of concern. Today there are admitted disparities.
Some criminals get very harsh sentences while many receive grossly different sentence for an
essentially equivalent crime and a shockingly large number even go unpunished, thereby
encouraging the criminal and in the ultimate making justice suffer by weakening the system's
credibility. Of course, it is not possible to lay down any cut and dry formula relating to
imposition of sentence but the object of sentencing should be to see that the crime does not go
unpunished and the victim of crime as also the society has the satisfaction that justice has been
done to it. In imposing sentences, in the absence of specific legislation, Judges must consider
variety of factors and after considering all those factors and taking an over-all view of the
situation, impose sentence which they consider to be an appropriate one. Aggravating factors
cannot be ignored and similarly mitigating circumstances have also to be taken into
consideration.
15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of
the crime; the conduct of the criminal and the defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in which the courts respond to the society's
cry for justice against the criminals. Justice demands that courts should impose punishment
fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not
only keep in view the rights of the criminal but also the rights of the victim of crime and the
society at large while considering imposition of appropriate punishment.
16. The sordid episode of the security guard, whose sacred duty was to ensure the protection and
welfare of the inhabitants of the flats in the apartments, should have subjected the deceased, a
resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her
complaint, makes the crime even more heinous. Keeping in view the medical evidence and the
state in which the body of the deceased was found, it is obvious that a most heinous type of

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barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18
years. If the security guards behave in this manner, who will guard the guards? The faith of the
society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes
loud and clear. The offence was not only inhuman, and barbaric but it was a totally ruthless
crime of rape followed by cold blooded murder and an affront to the human dignity of the
society. The savage nature of the crime has shocked our judicial conscious. There are no
extenuating or mitigating circumstances whatsoever in the case. We agree that a real and
abiding concern for the dignity of human life is required to be kept in mind by the courts while
considering the confirmation of the sentence of death but a cold blooded pre-planned brutal
murder, without any provocation, after committing rape on an innocent and defenceless young
girl of 18 years, by the security guard certainly makes this case a 'rare of the rarest' cases which
calls for no punishment other than the capital punishment and we accordingly confirm the
sentence of death imposed upon the appellant for the offence under Section 302 IPC, The order
of sentence imposed on the appellant by the courts below for offences under Section 376 and
380 IPC are also confirmed alongwith the directions relating thereto as in the event of the
execution of the appellant, those sentences would only remain of academic interest. This appeal
fails and is hereby dismissed.

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Shivu And Anr vs R.G. High Court Of Karnataka And ... on 13


February, 2007
Author: . A Pasayat
Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta
CASE NO.:
Appeal (crl.)

202 of 2007

PETITIONER:
Shivu and Anr
RESPONDENT:
R.G. High Court of Karnataka and Anr.
DATE OF JUDGMENT: 13/02/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.) No.1762 of 2006) Dr. ARIJIT PASAYAT, J.


Leave granted.
Challenge in this appeal is to the judgment rendered by a Division Bench of the Karnataka High
Court accepting the reference made under Section 366 of the Code of Criminal Procedure, 1973
(in short the 'Cr.P.C.') and confirming death sentence awarded to the appellants in respect of
offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in
short 'IPC') and sentence of 10 years and fine of Rs.25,000/- with default stipulation for the
offence punishable under Section 376 read with Section 34 IPC awarded by the learned District
and Sessions Judge, Chamarajanagara.
Background facts which led to the trial of the accused persons are essentially as follows:

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Jayamma, (PW.1) is the resident of Badrenahalli village in Kollegal Taluk. She resided with her
husband, and children Raju (PW.2), Nagarajamma (PW.10) and Shivamma (hereinafter referred
to as the 'deceased'). Both the accused are residents of the same village. The accused-aged about
20 and 22 years respectively were sexually obsessed youngsters. Few months prior to the
incident, relating to the present appeal they attempted to commit rape on Lakkamma [daughter
of Puttegowda (PW.7)], but were unsuccessful. For that act, they were admonished. Later, they
attempted to commit rape on PW.10 (daughter of PW.1). PW.10 was also successful in escaping
from their clutches. Though in both the incidents, the aggrieved persons wanted to lodge police
complaints, against the accused, at the instance of village elders and family members of these
accused, instead of lodging criminal cases, only Panchayath of village elders was called on each
occasion and the accused were directed to mend their ways. But this warning had no effect on
them. Emboldened by escape from punishment in those two incidents, they committed rape on
the deceased a young girl of hardly 18 years and to avoid detection, committed heinous and
brutal act of her murder. On the morning of 15.10.2001, deceased Shivamma went to the family
land situated near her house to dump manure. As she did not return, PW.1 went in search of her
after some time. When Shivamma was not seen in the land, PW.1 began to call her by name.
Suspecting some untoward incident, when PW.1 went near the spot, she saw the body of the
deceased lying on the ground with clothes disarrayed. Noticing that Shivamma was dead, PW.1
raised hue and cry and went towards the village calling people for help. Attracted by her cries,
her son PW.2 and other villagers including Chikkiregowda (PW.3) came to the spot and on
learning about the incident, especially the fact that the accused had been seen earlier at the spot
where the dead body was found and had on detection run away, they went in search of the
accused. In the meantime, Narayana Gowda (PW.5) the brother of PW.1 (maternal uncle of the
deceased) who also resides in the same village came to the house of PW.1 and on suspecting the
role of the accused in the rape and murder of Shivamma, wrote down the statement of PW.1 and
after taking her L.T.I., took the same to the jurisdictional police at Rampur police station. M.K.
AIi, the S.H.O. of Rampur police station (PW.20) on receipt of the information of the crime,
after accepting the written complaint as per Ex.P.1, registered a case in Crime No.86/01 for the
offences punishable u/s 376, 302 both read with Section 34 of the IPC against these two accused
and took up investigation.
After registering the case, preparing the F.I.R., sending the same, the superior officers and the
Court, the Investigating officer along with staff, went to the place of the incident and held the
necessary mahazars like spot mahazar, seizure of certain articles found near the scene of

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offence. After inquest proceedings, the body of the deceased was taken for autopsy. In the
meantime, on learning about the culpability of the accused in the crime, several villagers went in
search of the accused. Accused No.1 was found at the bus stand while attempting to board a bus.
He was brought and was interrogated. His disclosure confirmed the involvement of accused
No.2 as the co-participant in the crime. People went in search of the second accused who was
found hiding in the house. Both of them were brought and kept in confinement in the house of
one Shivamma near the spot. They admitted to their guilt. On arrival of the investigating officer,
after the preliminary investigation as already noted, the accused were taken into custody and
they were sent for medical examination. The post-mortem examination on the dead body of
Shivamma was carried out by Dr. Pushpalatha, PW.11 along with Dr.Basavaraju PW.12. It
confirmed rape on the deceased and that she had been killed by strangulation. The accused were
examined by the doctor PW.12 who noted nail scratch marks on their bodies. Syed Ameer Pasha,
(PW.13) a photographer was summoned and he took photographs of the scene of offence as well
as the dead body. Similarly Siddappa (PW.15), Junior Engineer prepared the sketch of the scene
of offence as per Ex.P.15. After recording the statements of material witnesses including the
relatives and the other villagers who could throw light on the incident and after receipt of all
material reports, charge sheet was filed against these two accused for offences punishable under
Sections 376 read with 34 and 302 read with 34 of the IPC.
Twenty witnesses were examined to further the prosecution version. In their examination under
Section 313 Cr.P.C. the accused persons except denying their involvement did not offer
explanation of particular defence. The trial Court after considering the evidence on record
recorded conviction and awarded sentence as aforenoted. Since the death sentence had been
awarded by the trial Court reference was made to the High Court in terms of Section 366 Cr.P.C.
for confirmation of the death sentence. The accused-appellants also preferred appeal in terms of
section 374 (2) Cr.P.C. The circumstances on which the trial Court placed reliance for recording
conviction are as follows:
a. Accused and deceased were last seen together near scene of offence.
b. The movements of the accused.
c. The rape and murder of the victim.

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d. The immediate apprehension of the accused by the villagers and their extra judicial
confession. e. Medical evidence in respect of accused indicating resistance put forth by the
victim and lastly; f. The conduct of the accused prior to and after the crime.
Considering the heinous nature of the crime, the trial court held it to be falling in the rarest of
the rare category and awarded death sentence.
The High Court as noted above confirmed the conviction and the sentence imposed.
In support of the appeal learned counsel for the appellants submitted that the case is based on
circumstantial evidence and the circumstances highlighted do not present a complete chain to
warrant any inference about the guilt of the accused. Alternatively, it is submitted that the death
sentence is not warranted.
Learned counsel for the appellant-State on the other hand submitted that the circumstances
highlighted clearly establish the guilt of the accused and no exceptions can be taken to the
reasons indicated by the Trial Court in the well- reasoned judgment. The evidence has also been
analysed in great detail by the High Court and, therefore, no question of any interference is
called for with the conviction recorded. So far as the sentence is concerned it is pointed out that
the accused persons are hardened criminals. They had made earlier attempts of rape of two
different girls i.e. daughter of PW.7 and PW.1.
PWs. 11 and 12 are the doctors who conducted the autopsy and it is PW.12 who has also
medically examined the accused and given the wound certificates. PW.13 is the photographer
who took the photograph of scene of offence and the dead body. PW.15 is the Junior Engineer
who has prepared the sketch of the scene of offence as per Ex.P.15 and PW.14 is the Village
Accountant who has furnished the R.T.C. of the lands in question. PWs. 18 and 19 have been
examined by the prosecution to show the earlier attempts of the accused to molest other girls
(Lakkamma and Nagarajamma) and their participation in the panchayath held by the village
elders in that regard. However, it is to be noted that as they did not support the prosecution,
they have been treated as hostile witnesses and in spite of searching cross-examination by the
prosecution they have stuck to their contrary version. The remaining witnesses are mahazar
witnesses and the members of the investigation team.

184
To show the presence of the accused at the time and place almost near the victim, the
prosecution has relied upon the evidence of Puttegowda, PW.6, Jayamma (PW.1) and two
independent witnesses, Kalamma (PW8) and Rudramma (PW.9). Puttegowda (PW.6) states that
on the date of the incident while he was taking tea in the morning, he saw the deceased going
towards her family land carrying basket of manure. He also saw that these two accused were
following her from a little distance. He states that after some time he also saw Jayamma (PW.1)
the mother of the deceased going towards the land and coming back raising hue and cry over the
murder of her daughter Shivamma by the accused and her seeing them running away from the
spot. The evidence of this witness, so far as this aspect is concerned, except the futile suggestion
that this witness is speaking falsehood as he belongs to the group of Narayana Gowda and
opposed to the accused has remained unshaken.
It has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v.
State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka (AIR 1983 SC
446), State of U.P. v. Sukhbasi (AIR 1985 SC 1224), Balwinder Singh v. State of Punjab (AIR
1987 SC 350) and Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The
circumstances from which an inference as to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC
621) it was laid down that where the case depends upon the conclusion drawn from
circumstances, the cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring home the offences beyond any reasonable doubt.
We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P.
(1996 (10) SCC 193), wherein it has been observed thus:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be complete and there should be

185
no gap left in the chain of evidence. Further, the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79) it was laid down that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed by the
accused and none else; and (4) the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis than that of guilt of the
accused and such evidence should not only be consistent with the guilt of the accused but should
be inconsistent with his innocence."
In State of U.P. v. Ashok Kumar Srivastava (1992 Crl. LJ 1104) it was pointed out that great care
must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be accepted. It was also pointed
out that the circumstances relied upon must be found to have been fully established and the
cumulative effect of all the facts so established must be consistent only with the hypothesis of
guilt.
Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence' (Chapter VI) lays down
the following rules specially to be observed in the case of circumstantial evidence: (1) the facts
alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt
connected with the factum probandum; (2) the burden of proof is always on the party who
asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of
direct or circumstantial evidence the best evidence must be adduced which the nature of the
case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt

186
of the accused, he is entitled as of right to be acquitted. There is no doubt that conviction can be
based solely on circumstantial evidence but it should be tested by the touchstone of law relating
to circumstantial evidence laid down by this Court as far back as in 1952. In Hanumant Govind
Nargundkar v. State of M.P. (AIR 1952 SC 343) it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in the first instance
be fully established, and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature
and tendency and they should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has
been held that the onus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions
precedent in the words of this Court, before conviction could be based on circumstantial
evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
When the evidence on record is analysed in the background of principles highlighted above, the
inevitable conclusion is that the prosecution has established its accusations.

187
The residual question relates to sentence. In Bachan Singh v. State of Punjab (1980 (2) SCC 684)
and Machhi Singh and Ors. v. State of Punjab (1983 (3) SCC 470) the guidelines which are to be
kept in view when considering the question whether the case belongs to the rarest of the rare
category for awarding death sentence were indicated.
In Machhi Singh's case (supra) it was observed:
"The following questions may be asked and answered as a test to determine the "rarest of the
rare" case in which death sentence can be inflicted:(a) Is there something uncommon about the crime which renders sentence of imprisonment for
life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances which speak
in favour of the offender?
The following guidelines which emerge from Bachan Singh case (supra) will have to be applied
to the facts of each individual case where the question of imposition of death sentence arises:
(SCC p. 489, para 38):(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be
imposed only when life imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just balance has

188
to be struck between the aggravating and the mitigating circumstances before the option is
exercised.
In rarest of rare cases when collective conscience of the community is so shocked that it will
expect the holders of the judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining death penalty, death sentence
can be awarded. The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness;
e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a
person vis-`-vis whom the murderer is in a dominating position or in a position of trust, or
murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed
not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride
burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all
or almost all the members of a family or a large number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person
or a person vis-`-vis whom the murderer is in a dominating position or a public figure generally
loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid
propositions and taking into account the answers to the questions posed by way of the test for
the rarest of rare cases, the circumstances of the case are such that death sentence is warranted,
the court would proceed to do so."

189
A convict hovers between life and death when the question of gravity of the offence and award of
adequate sentence comes up for consideration. Mankind has shifted from the state of nature
towards a civilized society and it is no longer the physical opinion of the majority that takes
away the liberty of a citizen by convicting him and making him suffer a sentence of
imprisonment. Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the court room after adequate hearing is
afforded to the parties, accusations are brought against the accused, the prosecuted is given an
opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the informed man i.e. the Judge that leads to
determination of the lis.
The principle of proportion between crime and punishment is a principle of just desert that
serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal
justice it is hardly less familiar or less important than the principle that only the guilty ought to
be punished. Indeed, the requirement that punishment not be disproportionately great, which is
a corollary of just desert, is dictated by the same principle that does not allow punishment of the
innocent, for any punishment in excess of what is deserved for the criminal conduct is
punishment without guilt.
The criminal law adheres in general to the principle of proportionality in prescribing liability
according to the culpability of each kind of criminal conduct. It ordinarily allows some
significant discretion to the Judge in arriving at a sentence in each case, presumably to permit
sentences that reflect more subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in
practice sentences are determined largely by other considerations. Sometimes it is the
correctional needs of the perpetrator that are offered to justify a sentence, sometimes the
desirability of keeping him out of circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just desert as the basis of punishment
and create cases of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal respected in principle, and in spite of errant
notions, it remains a strong influence in the determination of sentences. Anything less than a
penalty of greatest severity for any serious crime is thought to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from those considerations that make

190
punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate
punishment has some very undesirable practical consequences.
Considering the view expressed by this Court in Bachan Singh's case (supra) and Machhi Singh's
case (supra) we have no hesitation in holding that the case at hand falls in rarest of rare category
and death sentence awarded by the trial Court and confirmed by the High Court was
appropriate.
The appeal is dismissed.

191

Shivaji @ Dadya Shankar Alhat vs State Of Maharashtra on 5


September, 2008
Author: . A Pasayat
Bench: Arijit Pasayat, Mukundakam Sharma
REPORTABLE

IN THE SUPREME COURT OF INDIA


CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1409

OF 2008

(Arising out of Special Leave Petition (Crl.) No.57 of 2007)

Shivaji @ Dadya Shankar Alhat

..

Appellant
versus
The State of Maharashtra

..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.


1. Leave granted.

192

A large number of cases in recent times coming before this Court involving rape and murder of
young girls, is a matter of concern. In the instant case victim was about nine years of age who
was the victim of sexual assault and animal lust of the accused-appellant; she was not only raped
but was murdered by the accused appellant.
2. Learned Second Additional Judge, Pune in Sessions Case No.209 of 2002 tried the appellant
for offences punishable under Sections 302 and Section 376 (2)(f) of the Indian Penal Code,
1860 ( in short the `IPC'). By judgment and order dated 27th June, 2004, the trial court found
the appellant guilty for the aforesaid offences and he was sentenced to death for the offence of
murder and in respect of the other offence sentence to suffer rigorous imprisonment for ten
years and to pay fine with default stipulation. Appellant questioned the judgment in Criminal
Appeal No.574 of 2004 before the Bombay High Court which heard the same alongwith
Confirmation Case No.1 of 2003 which was referred to the High Court as required under Section
366 of the Code of Criminal Procedure, 1973 (in short the `Code'), for confirmation of death
sentence. The appeals were heard together, the reference was accepted but the appeal filed by
the accused was dismissed.

193

3. Prosecution version as unfolded during trial is as follows:


Shivaji-appellant (hereinafter referred to as the `accused') is an educated person i.e. B.A. BEd.
and was serving as teacher at Pune in the year 1986. He was staying with his mother and sister
near the house of Hemlata (hereinafter referred to as the `deceased'), a tiny girl who had not
seen ten summers in life. The accused is a married man and has three children. His wife and
children were not residing with him.
The accused was known to the deceased and her family. The deceased and her family used to
sometime give him bread. The deceased was studying in 5th standard. She has two sisters,
namely, Bhagyashree and Jayshree (PW 8). Her mother Sushilabai (PW 2) was working as a
maid. All of them were staying with their grandmother Yashodabai (PW 7). The father of the
deceased was not staying with them on account of strained relationship between him and
Sushila, the mother of deceased.

194

The incident in question occurred on 14th January, 2002. On that day there was festival of
Makarsankranti. Sushilabai had gone to the house of one Tirandaz for work. The deceased and
her two sisters and their grandmother Yashodabai were present in the house. At about 11.30
a.m., the deceased and her sister Jayshree had gone to the borewell of one Sangale to fetch
water. The accused was sitting on the slab, where construction work of one Mr. Gaikar was going
on. The accused told the deceased that he would give her fuel wood from the hill. Thereafter they
came to deceased's house. The deceased kept the pitcher in the house and she went alongwith
the accused towards the hill called Manmodya Dongar. Thereafter the deceased did not return
home.

195

Sushilabai came home at about 4.30 P.M. She was told that her daughter Hemlata had gone with
the accused and had not returned. They started searching for the deceased but could not find
her. On the same day i.e. on 14th January, 2002,Yashodabai, the grandmother of the deceased
gave a missing complaint to the police in which she stated that the deceased had left the house
with the accused and had not come back. Search was going on to find out the deceased. It
appears that Sushilabai got to know from one Sakinabai that dead body of Hemlata was lying on
Manmodya hill. She also gave information to the police on 15th January, 2002 regarding
missing of Hemlata which is at Exhibit 12. In this complaint she also stated that the deceased
had left the house alongwith the accused.

196

After seeing the dead body of Hemlata at Junnar Hospital, Sushilabai reported the matter to the
police. Her complaint came to be recorded in which she stated that her daughter had left with
the accused on 14.1.2002. She specifically stated that she was convinced that, it is the accused
who had raped her daughter and assaulted her on her abdomen with a sharp edged weapon,
strangulated her with a rope and murdered her. On the basis of this FIR investigation started.
The accused was not traceable. He could be arrested only on 16th January, 2002. He was found
hiding in the sugarcane crop of one Gaikwad. After completion of the investigation the accused
came to be charged as aforesaid.
Since the accused abjured guilt trial was held. Seventeen witnesses were examined to further the
prosecution version.

197

Prosecution examined Sushilabai (PW 2), the mother of the deceased and Yashodhabai (PW 7),
grandmother of the deceased. Jayshree (PW 8) the sister of the deceased, Shantabai (PW 9) and
Khanwar Hussein (PW 6) were examined to establish the prosecution case that the accused and
the deceased were last seen together on 14th January, 2002 at about 11.30 a.m. going towards
Manmodya Hill. Suresh B. Visave (PW 3) is a Pancha to the Panchnama of recovery of penknife
at the instance of the accused. Dr. Suresh R. Shahane (PW 15) had examined the accused. Dr.
Suresh B. Patankar (PW 17) had examined the accused to find out whether he was capable of
sexual intercourse. The prosecution also examined Dr. Nana N. Sonawane (PW 5), who proved
the postmortem notes. Investigation was conducted by PSI Ramesh R. Bhosale (PW 14) and PSI
Dilip D. Jagdale (PW
16).
The accused pleaded innocence and false implication. His case was that in fact at the relevant
point of time he was not present in the village and has gone to his daughter's house, then to his
sister's house.
Learned trial court found the evidence cogent and found the accused guilty and imposed the
sentence. The appeal before the High Court was dismissed and the reference made under
Section 366 IPC was confirmed.

198

4. In support of the appeal learned counsel for the appellant submitted that the case at hand is
based on circumstantial evidence and the circumstances do not warrant conclusion of guilt of
the accused. Since the conviction was based on circumstantial evidence, no death sentence
should have been awarded and in any event this is not a case where death sentence should have
been imposed.

199

5. Learned counsel for the respondent-State on the other hand submitted that trial court and the
High Court have analysed the evidence in great detail to show the horrendous manner in which
a tiny girl was gone to death after ravishing her. The circumstances which have highlighted by
the prosecution relate to the fact that the accused was last seen in the company of the deceased
and injury on the abdomen and the rope by which the deceased was strangulated were recovered
at the instance of the accused and the fact that the accused had absconded and was arrested
from a place where he was hiding and the presence of blood on his cloth is a relevant factor. The
plea of alibi set up has not been established.
6. From the evidence of Sushila (PW 1), Yashodabai (PW 7) and Jayashree (PW 8) it appears
that they are a poor family. Sushila (PW l) is lame and at the relevant time was deserted by her
husband. Sushila and her daughters used to stay with her mother Yashodabai who was about 69
Years old. Sushila used to work as a maid and used to be away from the house for long hours in
connection with work leaving in the house her mother and three daughters. The daughters used
to do household work like filling water and used to go to school. The deceased was thus a
helpless poor girl of tender age. She had no protection of the father. She was, therefore, a
vulnerable girl.

200

7. Yashodabai (PW 7) has stated that the accused was residing near their house. He was not
doing any work. His wife and children were not residing with him. Sushila (PW 1) has stated that
since the accused used to stay in hilly area the deceased used to sometimes give him bread.
Khanwar Husssein (PW 6) and Shantabai (PW 9) stay in village Barav Junnar where the
deceased was staying. They have also confirmed that the accused used to stay in the same
village. Therefore, that the accused was staying near the house of the deceased and was known
to her has been established.

201

8. Sushila (PW1), the mother of the deceased has stated that on 14th January, 2002, she had
gone to the house of one Tirandaz for work. At that time her three daughters and mother were
present in the house. She left the house at about 11-15 a.m. and came back at about 4.30 p.m.
When she came back, her mother told her that the deceased had gone to bring fuel wood along
with the accused. Since the deceased did not come back they started searching for her.
Yashodabai, the grandmother of the deceased gave a missing complaint to the Junnar police on
14.1.2002. On 15th January, 2002 at about 8.30 to 9.00 a.m. one Sakinabai who was residing
near their house, came and informed that the dead body of the deceased was found on the hill.
Sushila then gave a complaint to the police on 15.1.2002 that her daughter had left with the
accused on 14.1.2002 at about 11 O' clock in the morning; that she had not returned home; that
they had searched for her; that her neighbour Sakina Shaikh had told her that the dead body of
her daughter was lying on the hill and that out of fear she had not gone to see the dead body.

202

9. Jayashree (PW 8) is the minor daughter of Sushila (PW1). Her evidence in our opinion is
crucial to the prosecution case and it also inspires confidence. She has stated that on 14th
January, 2002, she had gone with her sister deceased Hemlata, towards the borewell of one
Sangale in order to fetch water, at about 11.30 a.m. The construction work of one Gaikar was
going on and the accused was sitting on the slab there. The accused met them and told the
deceased that he would give her fuel wood from the hill. Thereafter they came home. The
deceased kept her pitcher in the house. She took a towel and a sickle and went alongwith the
accused towards Manmodya hill. She has further stated that as her mother was not present she
told her grandmother that the deceased had gone along with the accused to bring fuel wood.
When her mother came back at 4.30 p.m. she told her mother that the deceased had gone along
with the accused. Since the deceased did not come back they started searching for her. The body
of the deceased was found on the next day on the hill. This witness has stood the test of cross
examination very well. She has stuck to her version in the examination-in- chief. There is not a
single discrepancy in her evidence. The trial Court and the High Court rightly placed reliance on
the evidence of this witness.

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10. The evidence of Jayshree (PW 8) is corroborated by evidence of Shantabai (PW 9).
According to her on the day of the incident she was collecting cow dung near Manmodya hill at
about 11 a.m. She saw the accused and the deceased going towards the hill. In the cross
examination an attempt was made to suggest to her that her financial position was sound and,
therefore, there was no reason for her to collect cow dung on Makarsankrati day. There is no
substance in this submission. Shantabai (PW 9) has stated that she was being maintained out of
the amount of pension which her husband was getting. This does not mean that Shantabai came
from an affluent family. There is nothing abnormal in finding a village woman collecting cow
dung in the morning. She knew both, the accused and the deceased. Her evidence to the effect
that she saw the accused and the deceased going towards Manmodya hill on 14th January, 2002
at about 11 O'clock in the morning is credible.

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11. The third witness who had seen the accused and the deceased is Khanwar Hussain (PW 6).
He is also a resident of Barav. He has stated that on 14th January, 2002 at 11 to 11.15 a.m. he was
offering water to his cattle from the cistern of one Sangale. At that time he saw the accused and
thedeceased proceeding towards the hill. The evidence of this witness is reliable. It is significant
to note that he has stated that he was offering water to his cattle from the cistern of Sangale.
Jayshree (PW 8) has also stated that she and the deceased were going towards the borewell of
Sangale and that accused met them when they were proceeding towards their house after
collecting water. Therefore, the claim of Khanwar Hussein that he had seen the accused and the
deceased cannot be disbelieved. The statement of this witness is recorded on 15th January, 2002
i.e. immediately after the incident.
12. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this
court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:

205
"22. The last seen theory comes into play where the time-gap between the point of time when
the accused and the deceased were seen last alive and when the deceased is found dead is so
small that possibility of any person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and possibility of other persons coming
in between exists. In the absence of any other positive evidence to conclude that the accused and
the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that the deceased and the accused were seen
together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
13. In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as
follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of
time when the accused and the deceased were last seen alive and the deceased is found dead is
so small that possibility of any person other than the accused being the author of the crime
becomes impossible. Even in such a case the courts should look for some corroboration".
(See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"

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14. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438], Kusuma
Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of Tamil
Nadu ( 2008(5) Supreme 577).
15. Before analyzing factual aspects it may be stated that for a crime to be proved it is not
necessary that the crime must be seen to have been committed and must, in all circumstances be
proved by direct ocular evidence by examining before the Court those persons who had seen its
commission. The offence can be proved by circumstantial evidence also. The principal fact or
factum probandum may be proved indirectly by means of certain inferences drawn from factum
probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct
to the point in issue but consists of evidence of various other facts which are so closely
associated with the fact in issue that taken together they form a chain of circumstances from
which the existence of the principal fact can be legally inferred or presumed.

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16. It has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu
and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR
1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State
of Punjab (AIR 1987 SC

208

350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from
which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down
that where the case depends upon the conclusion drawn from circumstances the cumulative
effect of the circumstances must be such as to negative the innocence of the accused and bring
the offences home beyond any reasonable doubt.
17. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which
the conclusion of guilt is drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
18. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when
a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

209

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed by the
accused and none else; and (4) the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent with the guilt of the accused but should
be inconsistent with his innocence."

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19. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great
care must be taken in evaluating circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in favour of the accused must be accepted. It was
also pointed out that the circumstances relied upon must be found to have been fully established
and the cumulative effect of all the facts so established must be consistent only with the
hypothesis of guilt.

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20. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays
down the following rules specially to be observed in the case of circumstantial evidence: (1) the
facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable
doubt connected with the factum probandum; (2) the burden of proof is always on the party who
asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of
direct or circumstantial evidence the best evidence must be adduced which the nature of the
case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of
the accused, he is entitled as of right to be acquitted".
18. There is no doubt that conviction can be based solely on circumstantial evidence but it
should be tested by the touch- stone of law relating to circumstantial evidence laid down by this
Court as far back as in 1952.
21. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343),
wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in the first instance
be fully established and all the facts so established should be consistent only with the hypothesis
of the guilt of the accused.

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Again, the circumstances should be of a conclusive nature and tendency and they should be such
as to exclude every hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused."
22. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has
been held that onus was on the prosecution to prove that the chain is complete and the infirmity
of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in
the words of this Court, before conviction could be based on circumstantial evidence, must be
fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty;

213
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability the
act must have been done by the accused.
23. In Joseph and Poulo v. State of Kerala [2000(5) SCC 197] it was, inter alia, held as follows:
"The formidable incriminating circumstances against the appellant, as far as we could see, are
that the deceased was taken away from the convent by the appellant under a false pretext and
she was last seen alive only in his company and that it is on the information furnished by the
appellant in the course of investigation that jewels of the deceased which were sold to PW 11 by
the appellant, were seized."

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"The incriminating circumstances enumerated above unmistakably and inevitably lead to


the guilt of the appellant and nothing has been highlighted or brought on record to make the
facts proved or the circumstances established to be in any manner in consonance with the
innocence at any rate of the appellant. During the time of questioning under Section 313 Cr.P.C.
the appellant instead of making at least an attempt to explain or clarity the incriminating
circumstances inculpating him, and connecting him with the crime by his adamant attitude of
total denial of everything when those circumstances were brought to his notice by the Court not
only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at
all, have been only explained by the appellant, and by nobody else, they being personally and
exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and
false answers given to court, when questioned, found the missing links to be supplied by such
answers for completing the chain of incriminating circumstances necessary to connect the
person concerned with the crime committed.(See: State of Maharashtra v. Suresh). That missing
link to connect the accused appellant, we find in this case provided by the blunt and outright
denial of every one and all that incriminating circumstances pointed out which, in our view, with
sufficient and reasonable certainty on the facts proved, connect the accused with the death and
the cause of the death of Gracy and for robbing her of her jewellery worn by her -- MOs 1 to 3,
under Section 392. The deceased meekly went with the accused from the Convent on account of
the misrepresentation made that her mother was seriously ill and hospitalised apparently
reposing faith and confidence in him in view of his close relationship -- being the husband of her
own sister, but the appellant seems to have not only betrayed the confidence reposed in him but
also took advantage of the loneliness of the hapless woman. The quantum of punishment
imposed is commensurate with the gravity of the charges held proved and calls for no
interference in our hands, despite the fact that we are not agreeing with the High Court in
respect of the findings relating to the charge under Section 376.
24. In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed as follows:
"From the evidence of PWs. 1,6,7 & 8 the prosection has satisfactorily established that the
appellant was last seen with the deceased on 30.4.91. The appellant either in his Section 313
Cr.P.C. statement or by any other evidence has not established when and where he and the
deceased parted company after being last seen."

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25. The law regulates social interests, arbitrates conflicting claims and demands. Security of
persons and property of the people is an essential function of the State. It could be achieved
through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where
living law must find answer to the new challenges and the courts are required to mould the
sentencing system to meet the challenges. The contagion of lawlessness would undermine social
order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the
object of law which must be achieved by imposing appropriate sentence. Therefore, law as a
corner-stone of the edifice of "order" should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be - a decisive reflection of social consciousness of society". Therefore, in operating
the sentencing system, law should adopt the corrective machinery or the deterrence based on
factual matrix. By deft modulation sentencing process be stern where it should be, and tempered
with mercy where it warrants to be. The facts and given circumstances in each case, the nature
of the crime, the manner in which it was planned and committed, the motive for commission of
the crime, the conduct of the accused, the nature of weapons used and all other attending
circumstances are relevant facts which would enter into the area of consideration. For instance a
murder committed due to deep- seated mutual and personal rivalry may not call for penalty of
death. But an organised crime or mass murders of innocent people would call for imposition of
death sentence as deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710), this Court while
refusing to reduce the death sentence observed thus:
"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when
faced with such evidence and such cruel acts. To give the lesser punishment for the accused
would be to render the justicing system of the country suspect. The common man will lose faith
in courts. In such cases, he understands and appreciates the language of deterrence more than
the reformative jargon."

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26. Therefore, undue sympathy to impose inadequate sentence would do more harm to the
justice system to undermine the public confidence in the efficacy of law and society could not
long endure under such serious threats. It is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and the manner in which it was executed or
committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v.
State of Tamil Naidu (AIR 1991 SC 1463).

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27. The criminal law adheres in general to the principle of proportionality in prescribing liability
according to the culpability of each kind of criminal conduct. It ordinarily allows some
significant discretion to the Judge in arriving at a sentence in each case, presumably to permit
sentences that reflect more subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in
practice sentences are determined largely by other considerations. Sometimes it is the
correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just desert as the basis of punishment
and create cases of apparent injustice that are serious and widespread.

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28. Proportion between crime and punishment is a goal respected in principle, and in spite of
errant notions, it remains a strong influence in the determination of sentences. The practice of
punishing all serious crimes with equal severity is now unknown in civilized societies, but such a
radical departure from the principle of proportionality has disappeared from the law only in
recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less
than a penalty of greatest severity for any serious crime is thought then to be a measure of
toleration that is unwarranted and unwise. But in fact, quite apart from those considerations
that make punishment unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very undesirable practical consequences.

219

29. After giving due consideration to the facts and circumstances of each case, for deciding just
and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors
and circumstances in which a crime has been committed are to be delicately balanced on the
basis of really relevant circumstances in a dispassionate manner by the Court. Such act of
balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG
Dautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a foolproof nature
is possible that would provide a reasonable criterion in determining a just and appropriate
punishment in the infinite variety of circumstances that may affect the gravity of the crime. In
the absence of any foolproof formula which may provide any basis for reasonable criteria to
correctly assess various circumstances germane to the consideration of gravity of crime, the
discretionary judgment in the facts of each case, is the only way in which such judgment may be
equitably distinguished.
30. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held by this
Court that in the matter of death sentence, the Courts are required to answer new challenges
and mould the sentencing system to meet these challenges. The object should be to protect the
society and to deter the criminal in achieving the avowed object to law by imposing appropriate
sentence. It is expected that the Courts would operate the sentencing system so as to impose
such sentence which reflects the conscience of the society and the sentencing process has to be
stern where it should be. Even though the principles were indicated in the background of death
sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.

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31. Imposition of sentence without considering its effect on the social order in many cases may
be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences
against women, dacoity, kidnapping, misappropriation of public money, treason and other
offences involving moral turpitude or moral delinquency which have great impact on social
order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any
liberal attitude by imposing meager sentences or taking too sympathetic view merely on account
of lapse of time in respect of such offences will be result-wise counter productive in the long run
and against societal interest which needs to be cared for and strengthened by string of
deterrence inbuilt in the sentencing system.
32. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC

221

220), this Court has observed that shockingly large number of criminals go unpunished thereby
increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening
the system's creditability. The imposition of appropriate punishment is the manner in which the
Court responds to the society's cry for justice against the criminal. Justice demands that Courts
should impose punishment befitting the crime so that the Courts reflect public abhorrence of the
crime. The Court must not only keep in view the rights of the criminal but also the rights of the
victim of the crime and the society at large while considering the imposition of appropriate
punishment.

222

33. Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has
been held in the said case that it is the nature and gravity of the crime but not the criminal,
which are germane for consideration of appropriate punishment in a criminal trial. The Court
will be failing in its duty if appropriate punishment is not awarded for a crime which has been
committed not only against the individual victim but also against the society to which the
criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant
but it should conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public abhorrence and it
should "respond to the society's cry for justice against the criminal". If for extremely heinous
crime of murder perpetrated in a very brutal manner without any provocation, most deterrent
punishment is not given, the case of deterrent punishment will lose its relevance.
34. These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC 712].

223

35. In Bachan Singh v. State of Punjab [1980 (2) SCC 684] a Constitution Bench of this Court at
para 132 summed up the position as follows: (SCC p.729) "132. To sum up, the question whether
or not death penalty serves any penological purpose is a difficult, complex and intractable issue.
It has evoked strong, divergent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 302, Penal Code on the ground of
reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to
express any categorical opinion, one way or the other, as to which of these two antithetical
views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very
fact that persons of reason, learning and light are rationally and deeply divided in their opinion
on this issue, is a ground among others, for rejecting the petitioners' argument that retention of
death penalty in the impugned provision, is totally devoid of reason and purpose. If,
notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the
world over, including sociologists, legislators, jurists, judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary public opinion channelised
through the people's representatives in Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently, to abolish or specifically restrict the area
of death penalty, if death penalty is still a recognised legal sanction for murder or some types of
murder in most of the civilised countries in the world, if the framers of the Indian Constitution
were fully aware -- as we shall presently show they were -- of the existence of death penalty as
punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent
reports of the Law Commission suggesting retention of death penalty, and recommending
revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3)
in that Code providing for pre-sentence hearing and sentencing procedure on conviction for
murder and other capital offences were before Parliament and presumably considered by it
when in 1972-73 it took up revision of the Code of 1898 and replaced it by the Code of Criminal
Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative
punishment for murder, in Section 302, Penal Code is unreasonable and not in the public
interest. We would, therefore, conclude that the impugned provision in Section 302, violates
neither the letter nor the ethos of Article 19."
36. Similarly, in Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was
summed up as follows: (SCC p. 489) "38. In this background the guidelines indicated in Bachan

224
Singh's case (surpa) will have to be culled out and applied to the facts of each individual case
where the question of imposing of death sentence arises. The following propositions emerge
from Bachan Singh's case (supra):
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme
culpability.

225

(ii) Before opting for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death
sentence must be imposed only when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just balance has
to be struck between the aggravating and the mitigating circumstances before the option is
exercised."
37. The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi [2002
(5)SCC 234 ] : (SCC p. 271, para

226

58) "58. From Bachan Singh 's case (supra) and Machhi Singh's case (supra) the principle culled
out is that when the collective conscience of the community is so shocked, that it will expect the
holders of the judicial power centre to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was
observed:
The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness;
e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person
vis-`-vis whom the murderer is in a dominating position or in a position of trust; or murder is
committed in the course for betrayal of the motherland. (3) When murder of a member of a
Scheduled Caste or minority community, etc. is committed not for personal reasons but in
circumstances which arouse social wrath; or in cases of `bride burning' or `dowry deaths' or
when murder is committed in order to remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.

227
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all
or almost all the members of a family or a large number of persons of a particular caste,
community, or locality, are committed. (5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a
dominating position, or a public figure generally loved and respected by the community."
38. If upon taking an overall global view of all the circumstances in the light of the aforesaid
propositions and taking into account the answers to the questions posed by way of the test for
the rarest of rare cases, the circumstances of the case are such that death sentence is warranted,
the court would proceed to do so.

228

39. What is culled out from the decisions noted above is that while deciding the question as to
whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating
and mitigating circumstances has to be drawn up.

229

40. The plea that in a case of circumstantial evidence death should not be awarded is without
any logic. If the circumstantial evidence is found to be of unimpeachable character in
establishing the guilt of the accused, that forms the foundation for conviction. That has nothing
to do with the question of sentence as has been observed by this Court in various cases while
awarding death sentence. The mitigating circumstances and the aggravating circumstances have
to be balanced. In the balance sheet of such circumstances, the fact that the case rests on
circumstantial evidence has no role to play. In fact in most of the cases where death sentence are
awarded for rape and murder and the like, there is practically no scope for having an eye
witness. They are not committed in the public view. But very nature of things in such cases, the
available evidence is circumstantial evidence. If the said evidence has been found to be credible,
cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a
mitigating circumstance, would amount to consideration of an irrelevant aspect. The plea of
learned Amicus Curiae that the conviction is based on circumstantial evidence and, therefore,
the death sentence should not be awarded is clearly unsustainable.
41. The case at hand falls in the rarest of rare category. The circumstances highlighted above,
establish the depraved acts of the accused, and they call for only one sentence, that is death
sentence.
42. Looked at from any angle the judgment of the High Court, confirming the conviction and
sentence imposed by the trial Court, do not warrant any interference.
43. We record our appreciation for the able assistance rendered by learned amicus curiae in the
true spirit of friend and officer of the Court.

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44. Appeal fails and is dismissed.


...........................................J. (Dr. ARIJIT PASAYAT) ...........
................................J.
(Dr. MUKUNDAKAM SHARMA) New Delhi, September 5, 2008

231

State Of Goa vs Sanjay Thakran And Anr on 2 March, 2007


Author: P Naolekar
Bench: B.N. Agrawal, P.P. Naolekar
CASE NO.:
Appeal (crl.)

873 of 2004

PETITIONER:
STATE OF GOA
RESPONDENT:
SANJAY THAKRAN AND ANR
DATE OF JUDGMENT: 02/03/2007
BENCH:
B.N. AGRAWAL & P.P. NAOLEKAR
JUDGMENT:

JUDGMENT WITH CRIMINAL APPEAL NO. 874 OF 2004 SUBHASH CHANDRA NANDA ..
APPELLANT(S) VERSUS SANJAY THAKRAN AND ANR. ....RESPONDENT(S) P.P.
NAOLEKAR, J.
Aggrieved by the judgment and final order dated 30-09-2003 of the High Court of Bombay at
Goa whereby the accused persons/respondents, namely, Sanjay Thakran (respondent no. 1/A1) and his wife Anjali Thakran (respondent no. 2/A-2) were acquitted of the offences charged
under Sections 120-B, 364, 302 and 392 read with Section 34 of the Indian Penal Code, 1860,
these criminal appeals have been preferred by the State of Goa and father of one of the deceased
persons. Earlier, by the judgment delivered on 09-01- 2002, the Court of IInd Additional
Sessions Judge, Panaji has acquitted both the accused persons of all the abovementioned
charges levelled against them.

232
The relevant facts, as per the evidence adduced and the First Information Report, are that on
26-02-1999, the deceased couple, namely, Vikas Nanda (D-1, age 26 years) and Kavita Nanda @
Priya Nanda (D-2, age 23 years), arrived in Goa from Mumbai for their honeymoon and stayed
in Hotel Seema at Ribandar. On 27-02-1999, the deceased couple went for sight-seeing at Ozran,
Vagator with P.W.13-Vincent, who was the car driver and had also taken them for the sightseeing trip a day earlier as well. At about 2.30 p.m., D-1 told P.W.-13 that they had met some
friends from Delhi and hence P.W.-13 returned from there. P.W.30-Suhasini Govekar, who
operated a shack at Anjuna beach with her husband, mentioned that on 27-02-1999, the accused
couple and their children came to her place in between 1.00-2.00 p.m. and then went to take
bath. When they returned back, the deceased couple accompanied them. The accused couple
was running a bar and the restaurant Iguana Miraj and hotel Lalita Beach Resort in Goa.
P.W.11-Dinesh Adhikari, who was servant of the respondents, saw the deceased couple at
respondents' hotel 2 or 3 days preceding the festival of Holi in the year 1999 at approximately
6.00-7.00 p.m. According to this prosecution witness, A-1-Sanjay Thakran, D-1-Vikas Nanda
and P.W.14-Calvert were sitting outside the hotel and A-2-Anjali Thakran was sitting with D-2Priya Nanda inside a room in the hotel. He saw A-1-Sanjay Thakran and D-1-Vikas Nanda
walking towards the beach sometime after 9.00-9.30 p.m. and that was the last time when D-1
was seen alive. After sometime P.W.11 saw A-1-Sanjay Thakran, A-2-Anjali Thakran and D-2Priya Nanda as they were walking away from Iguana Miraj. Another prosecution witness,
P.W.14-Calvert Gonsalves also saw the deceased couple at the hotel of the accused couple. As per
P.W.6-Amit Banerjee, who was working as a receptionist at Hotel Seema, D-2-Priya Nanda
returned to Hotel Seema without D-1 and along with A-1-Sanjay Thakran at about 11.30 p.m.
She asked for the key of their room from P.W. 6. A-1- Sanjay Thakran helped her to carry the
luggage from the Hotel room as she checked out about 11.40 p.m. A-2 did not come to the hotel
and remained seated in the white colour Maruti Car that had a Delhi registration number on it.
D-2-Priya Nanda, A-1-Sanjay Thakran and A-2-Anjali Thakran went away in that car and thus,
D-2 was also last seen alive in the company of the accused couple.
On 28-02-1999, P.W.2-Charles Mills lodged a report at Anjuna Police Station that a dead body
of unknown female foreigner (later identified as D-2) was found at the Vagator Beach. According
to this witness, who was staying near the beach, at around 7.30 a.m., he was told by someone
that a female body was floating in the seawater. The deceased was wearing a blue skirt and a top.
On the same day, P.W.17-Fausto Afonso lodged report with Colva Police Station that a dead
body of unknown male foreigner (later identified as D-1) was found at about 00.30 hours at the

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Benaulim Beach. The distance between the Vagator Beach and Benaulim Beach is around 60
kilometers.
As the deceased couple neither returned to Delhi as expected by 01-03-1999 nor contacted
P.W.33-Subhash Nanda i.e., father of D-1, he called up P.W.4-A.C. Duggal to inquire about
them. Accordingly, P.W. 4-A.C. Duggal, who was uncle of D-1 and lived in Mumbai, called up N.
Murari, who was posted in Goa and worked in the Union Bank of India with P.W.-4, to know
about their whereabouts on 01-03-1999. N. Murari told P.W.-4 that they had already checked
out of the Hotel Seema. Since the deceased couple did not reach Mumbai as stipulated by P.W.-4
on 02-03-1999, he again called up N. Murari. On 03-03-1999 at about 7.15 p.m., N. Murari
informed P.W.-4 that a dead body of male person with similar description to that of Vikas had
been found and asked him to come to Goa. P.W.-4 rushed to Goa and identified the dead body of
D-1-Vikas Nanda on 04-03-1999. On the same day, N. Murari lodged a missing report [Exhibit
No. 20] at Old Goa Police Station. After identifying the body of D-1-Vikas Nanda at morgue,
P.W.-4 went to Seema Guest House and made inquiries about the couple. The dead body of D-2
was also identified on 05-03-1999. P.W.-4 lodged a complaint [Exhibit No.21] on 05-03-1999 at
Anjuna Police Station with P.W. 38- Sub-Inspector Sandesh Chodankar. According to this
complaint, on 04-03-1999, P.W.-4 was informed by Hotel Manager that D-2 checked out from
hotel on 27-03-1999 at about 11.40 p.m. and another person having short built, bald from front
and having fair complexion accompanied her. The complainant believed that since the dead
bodies of the couple had been found at places nearly 60 kilometers away from each other, the
newly married couple must have been lured by some disgruntled mischievous element, who had
killed them for their ornaments, as all the gold ornaments of the deceased couple were found
missing.
P.W.26-Dr. Silvano Dias Sapeco, who conducted the postmortem [Exhibit No. 80] on the body
of D-2 on 01-03-1999, found the following ante-mortem injuries:
1. Red bruise 20 cms. Diameter on left mid upper arm.
2. Red bruise 1.5 cms. Diameter on right inner aspect of upper third region of thigh.
3. Red bruise 1.5 cms diameter on left mid thigh in inner aspect.
4. Red bruise 1.25 cms. Diameter on right mid lower leg at calf region.

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5. Red bruise 1.25 cms. Diameter on left mid lower leg at calf region.
and it was opined that these were caused by blunt weapons. Due to the fact that the doctor, who
initially conducted postmortem on body of D-1-Vikas Nanda on 01-03-1999, had not preserved
any viscera or material, on 05-03-1999 a second postmortem [Exhibit No. 95] was conducted by
P.W.32-Dr. E.J. Rodrigues, which exposed the following ante-mortem injuries:
1. Abrasion reddish and fresh of 6 x 4.5 cms. Present on upper outer part on right side face
between outer orbital margin, 2 cms. in front of right tragus of ear and extending on outer part
of right cheek bone. No bruising underneath.
2. Abrasion reddish and fresh of 2.5 x 1 cms. Placed vertically on the ridge of nose. No bruising
underneath. No injuries to alae of nose.
3. Abrasion reddish and fresh of 5 x 3 cms. on left side upper part of face 2 cms. in front of left
tragus of ear extending upto outer orbital margin and also on outer part of left cheek bone. No
bruising underneath.
4. Abrasion reddish and fresh of 0.5 x 0.5 cms., 1 cm. above outer end of right eyebrow.
5. Abrasion reddish and fresh of 0.5 x 0.5 cms., 1.5 cms. above outer end of left eyebrow.
6. Abrasion reddish and fresh of 3 x 2 cms., upper middle back of right shoulder.
7. Abrasion reddish and fresh of 2 x 1.5 cms., upper back of left shoulder at acromial process
region.
and it was opined that they were caused with blunt surface. The postmortem reports of both the
deceased persons have concluded that death had occurred as a result of asphyxia due to
drowning in shallow beach water.
From their initial investigation, the Goa police found out about the description of the accused
couple and their children. The flat belonging to the accused persons was sealed under the orders
of a Civil Court. P.W.-38, therefore, applied to the Judicial Magistrate, Ist Class, Margoa for
issuance of search warrant. The Judicial Magistrate, Ist Class, Margoa directed that the bailiff of

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the Court would accompany P.W.-38 and in the presence of two respectable panchas from the
locality, the seal of the court would be opened and inventory of the movable articles and fixtures
found in the flat should be made. After the search, the flat should be resealed/locked and the
bailiff would file a report to the Court. Accordingly on 17-12-1999, the police conducted search of
the flat of accused, which was located at Sapna Residency, Colva. During this search, P.W.-38
attached the passports of the accused-respondents and their two children, two visiting cards of
P.W. 19-Subrato Padhi, a visiting card of Iguana Restaurant and one laminated photograph.
[House Search Panchnama as Exhibit No. 13 and Report regarding Search Warrant which was
submitted to Judicial Magistrate, Ist Class, Margoa as Exhibit No. 108]. The Court bailiff, who
accompanied with P.W.-38 and other panch witnesses, prepared a list of movable articles of the
flat [Exhibit No. 112]. The flat was resealed after the search was over.
On 30-01-2000, the accused persons were arrested in Agra by P.W. 15- Police Inspector
Navrang Singh, who was posted at police station of Sadar Bazar, Agra. P.W.-38 accompanied
with Dy. Superintendent of Police P.W.29-Arvind Gawas, arrived at Agra on the same day. P.W.15 informed them that A-1-Sanjay Thakran handed over a double barrel gun and A-2-Anjali
Thakran took out and handed over a single barrel 12-bore gun from the cupboard. During the
house search of the accused persons, police recovered a churidhar set, a ladies purse and some
newspapers containing reports that were connected with investigation of the present case.
According to the prosecution story, the recovered materials were identified by P.W.33-Subhash
Nanda, father of Vikas and P.W.5- Kishen Valecha, brother of Priya as belonging to the deceased
couple. P.W.38-Sandesh Chodankar, Sub-Inspector interrogated the accused persons and
satisfied himself of their complicity in the crime. On 31-01-2000, he further obtained transit
remand and custody of the accused couple. The accused were brought back to Goa on 01-022000 and formally arrested in connection with the present case. On 08-02-2000, as alleged by
prosecution, during the interrogation A-1-Sanjay Thakran disclosed to P.W. 38Sandesh
Chodankar about the fact that murder of the deceased couple was committed by his wife and
him and that the belongings of the deceased couple were present in his flat. On 11-02-2000, in
presence of Court bailiff-Peter Fernandes and other panch witnesses, A-1 handed over jewellery
from his flat B-2 F-3 at Sapna Residency, Colva. The jewellery, which was handed over to police,
consisted of eight yellow metal bangles, one pair of ear-rings and one finger ring. As has been
alleged by the prosecution side, he also produced clothes such as a white full-sleeves shirt, a
saffron-coloured women's kameez with a cream-coloured salwar, a green-coloured saree with
blouse, a light cream-coloured silken kurta pyjama and a designer black full-sleeves shirt, which

236
belonged to the deceased couple. During interrogation, on 13-02-2000, A-2-Anjali Thakran
allegedly disclosed [Exhibit No. 77] that she would point out the goldsmith to whom she had
sold the gold ornaments. As per the directions of A-2-Anjali Thakran, a police party and panch
witnesses reached the jewellery shop of P.W. 12-Ulhas Lotlikar at Khareband Margao. P.W.12Ulhas Lotlikar produced two bangles bearing the identification mark 'RK 22 KL', weighing 23.5
grams. According to the prosecution case, the said bangles bearing the identification mark 'RK
22 KL' were gifted to the newly wed couple on their marriage by P.W.-33. The prosecution has
alleged that A-2-Anjali Thakran sold these bangles along with a necklace and a ring to the
jewellery shop run by P.W.-12. It has also been alleged by the prosecution that A-2- Anjali
Thakran sold these jewellery on the pretext that as their restaurant was not running well, they
were in urgent need of money. The learned Sessions Judge, Panaji, as well as the High Court on
evaluation of the circumstantial evidence, came to the conclusion that the prosecution has failed
to prove involvement of accused respondents in commission of the crime and acquitted them of
all charges.
Admittedly, the case of the prosecution is based on circumstantial evidence as there is no
evidence on record that any of the witnesses, examined by the prosecution, have seen actual
commission of the crime. Mr. Mahendra Anand, the learned senior counsel for the appellant(s),
to prove the case against A-1-Sanjay Thakran, has placed reliance on the following
circumstances: the recovery of ladies purse and salwar suit by police at Agra on 30.01.2000 and
the recovery of jewellery and clothes made from the flat of the accused persons in Goa on
11.02.2000 and the evidence of seen together with the deceased couple before the actual
incident by P.W.30-Suhasini Govekar and evidence of P.W.11-Dinesh Adhikari, P.W.14-Calvert
Gonsalves and P.W.6-Amit Banerjee to the effect that A-1 was accompanied with the deceased
couple on 27.02.1999 and that the deceased couple was last seen alive in his company. As far as
the evidence against the respondent A-2-Anjali Thakran is concerned, the learned senior
counsel for the appellant(s) has relied upon the aspect of recovery of ladies purse and salwar
suit; the recovery of two bangles bearing the identification mark 'RK 22 KL' at her instance from
the jewellery shop of P.W.12-Ulhas Lotlikar; and the evidence of P.W.11- Dinesh Adhikari,
P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee, that Anjali was last seen in the company of
her husband with the deceased couple before the commission of the crime. The learned senior
counsel for the appellant(s) has further submitted that no explanation is forthcoming from the
accused respondents in the statement recorded under Section 313 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) as to what has happened after they were seen in the company of the

237
deceased couple, would indicate involvement of accused respondents in commission of the
crime. The learned senior counsel for the appellant(s) has then pointed out that the chain of
circumstances highlighted in the present case clearly establishes the fact that the accused couple
did not only meet the deceased couple in Goa but they were the ones with whom the deceased
persons were last seen alive. It has also been contended that the recovery of ladies purse and
salwar suit from the house of accused couple at the time of their arrest in Agra on 30.01.2000;
recovery of jewellery and clothes at the instance of A-1- Sanjay Thakran from the flat of accused
persons in Goa on 11-02- 2000 and recovery of two bangles belonging to D-2-Priya Nanda
bearing the identification mark 'RK 22 KL' at the instance of A-2-Anjali Thakran from the
jewellery shop of P.W.12-Ulhas Lotlikar on 13-02- 2000, further substantiate that the accused
couple, in order to carve away the belongings of the newly married couple, committed the
offence of murder. It has also been pointed out that the High Court and the lower court have
erred in (i) rejecting the evidence regarding the recovery of incriminating materials and (ii) not
appreciating the key prosecution witnesses.
On the other hand, late Shri R.K. Jain, the learned senior counsel for the respondents, urged
that the present matter before us, is an appeal arising out of special leave petition under Article
136 of the Constitution against concurrent orders of acquittal by the Sessions Court and the
High Court and, thus, merely because on reappraisal of the evidence, the other view of the
matter than taken by the courts can be legitimately arrived at, would not be a sufficient ground
to interfere with an order of acquittal, unless this Court reaches the conclusion that the entire
approach of the courts below in appreciating the evidence was patently illegal, erroneous or
unsustainable and that if, on reappraisal of the evidence, only one view is possible, then alone
the Court will exercise the jurisdiction in appeal and will convict the acquitted accused persons.
It is submitted that on consideration of the evidence on record, the courts below have rightly
reached the conclusion that the prosecution has failed to prove the case beyond reasonable
doubt of involvement of accused respondents in commission of the crime of murder of the
deceased couple.
The prosecution case is based on the circumstantial evidence and it is a well-settled proposition
of law that when the case rests upon circumstantial evidence, such evidence must satisfy the
following tests:

238
(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there
is no escape from the conclusion that within all human probability the crime was committed by
the accused and none else; and (4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other hypothesis than that of guilt of the
accused and such evidence should not only be consistent with the guilt of the accused but should
be inconsistent with his innocence.
[See : State of U.P. v. Satish, (2005) 3 SCC 114, Padala Veera Reddy v. State of Andhra Pradesh
and Others, 1989 Supp. (2) SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra, (1984)
4 SCC 116, Gambhir v. State of Maharashtra, (1982) 2 SCC 351 and Hanumant Govind
Nargundkar and Another v. State of Madhya Pradesh, AIR 1952 SC 343].
By a series of decisions, this Court has laid down the parameters of appreciation of evidence on
record and jurisdiction and limitations of the appellate court, and while dealing with appeal
against order of acquittal this Court observed in Tota Singh and Another v. State of Punjab,
(1987) 2 SCC 529 as under : "6. The jurisdiction of the appellate court in dealing with an appeal
against an order of acquittal is circumscribed by the limitation that no interference is to be made
with the order of acquittal unless the approach made by the lower court to the consideration of
the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the
court below is such which could not have been possibly arrived at by any court acting reasonably
and judiciously and is, therefore, liable to be characterised as perverse. Where two views are
possible on an appraisal of the evidence adduced in the case and the court below has taken a
view which is a plausible one, the appellate court cannot legally interfere with an order of
acquittal even if it is of the opinion that the view taken by the court below on its consideration of
the evidence is erroneous."
Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225:
"7. This Court has repeatedly laid down that the mere fact that a view other than the one taken
by the trial court can be legitimately arrived at by the appellate court on reappraisal of the
evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal

239
unless it comes to the conclusion that the entire approach of the trial court in dealing with the
evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While
sitting in judgment over an acquittal the appellate court is first required to seek an answer to the
question whether the findings of the trial court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court answers the above question in the negative
the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons
to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above
infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions.
"
and in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180:
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal shall not be interfered with because the
presumption of innocence of the accused is further strengthened by acquittal. The golden thread
which runs through the web of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to the accused should be adopted. The
paramount consideration of the court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the
appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for
the purpose of ascertaining as to whether any of the accused committed any offence or not. {See
Bhagwan Singh v. State of M.P., (2002) 4 SCC 85}. The principle to be followed by appellate
court considering the appeal against the judgment of acquittal is to interfere only when there are
compelling and substantial reasons for doing so. If the impugned judgment is clearly
unreasonable, it is a compelling reason for interference. These aspects were highlighted by this
Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal
Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4
SCC 484."
From the aforesaid decisions, it is apparent that while exercising the powers in appeal against
the order of acquittal the court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower court is vitiated by some manifest illegality and the

240
conclusion arrived at would not be arrived at by any reasonable person and, therefore, the
decision is to be characterized as perverse. Merely because two views are possible, the court of
appeal would not take the view which would upset the judgment delivered by the court below.
However, the appellate court has a power to review the evidence if it is of the view that the view
arrived at by the court below is perverse and the court has committed a manifest error of law
and ignored the material evidence on record. A duty is cast upon the appellate court, in such
circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material
placed on record to find out whether any of the accused is connected with commission of the
crime he is charged with. In the light of the aforesaid principles laid down, we shall consider the
evidence placed on record to find out whether the courts below have committed any error in
dealing with the evidence, which can be said to be patently illegal, or that the conclusion arrived
at is wholly untenable, calling for interference by us. Even before the arrest of the accused
couple, the flat of the accused persons situated at Goa was searched on 17.12.1999 in the
presence of P.W.39-Mariono Pereiera, who was the court bailiff. The court bailiff accompanied
this search party as the flat was sealed under the orders of the civil court. The Judicial
Magistrate, Ist Class, Margao, had passed an order that the bailiff of the court would accompany
P.W.-38, police officer, and in the presence of two panch witnesses, the seal of the court on the
lock of the flat would be opened and inventory of movable articles and fixtures found in the flat
should be made. The Judicial Magistrate, Margao also directed that after the search, the flat
should be re-sealed/locked and the bailiff would file a report in the court. In his crossexamination, P.W.-39 admitted that the court had asked to prepare a list of all movable items of
the flat and not only valuables, and he committed a mistake as he did not mention all articles
found in the flat in the inventory and, therefore, there was no mention of any jewellery in the list
prepared by him. As per this witness, when the search was made on 17.12.1999, there were no
gold ornaments in the said flat and that there were various articles, which appeared like that of
gold. A box full of such articles was kept in the suitcase. According to P.W.1- Erecko Fernandez,
a panch witness, the door of the flat was locked with three locks and there was also a metal chain
around the lock. The locks were required to be cut with the help of a hacksaw blade. But since
the door also was latched from inside, it could not be opened. They noticed a small window with
a broken glass pane and one of the police personnel who accompanied them, with the help of a
screw driver, removed the screws of the grill of the window. One of the police personnel went
inside the flat and opened the latch and thereafter all of them entered into the flat. They noticed
some suitcases in the flat and on opening the same some clothes were found and jewellery was
found inside the cupboard. In his cross- examination, this witness very specifically stated that

241
the said window was wide enough to allow a person to gain entry in the flat. P.W.38- Sandesh
Chodankar, who led the police party for the search conducted on 17.12.1999, had found lot of
clothes and jewellery of yellow metal, lot of belongings of shack, electronic items and household
items in the flat. He has explained that he did not attach any valuable or other articles as he was
not sure to whom those things belonged and also as there was a civil dispute pending in the
court.
The panchnama of the search made on 17.12.1999 (Exhibit No.13) mentioned that after
conducting the search, the door was closed and one old and two new locks were put on the door
and they were sealed by a one-rupee coin as the court seal was not available. The court bailiff
mentioned that he sealed three locks after the search was conducted by P.W.-38 on 17.12.1999.
After the arrest of A-1, this flat was once again searched on 11.2.2000 in the presence of another
court bailiff Peter Fernandez and other panch witnesses as A1 allegedly confessed about the
crime on 08.02.2000. According to the prosecution version, he agreed to handover the
incriminating articles to the police. P.W.8- Sanjay Naik, a witness to the confession of A-1, was
also present as panch witness when A-1 had allegedly handed over jewellery items, i.e., eight
yellow metal bangles, one pair of ear-rings and one finger ring and clothes such as a white fullsleeves shirt, a saffron-coloured women's kameez with cream-coloured salwar, a green-coloured
saree with blouses, a light cream-coloured silken kurta pyjama and a designer black full-sleeves
shirt, on the search of the flat of the accused persons in Goa on 11.02.2000. This witness further
said that the flat was locked and when the bailiff of the court tried to open the lock after
breaking the seal it did not open and the key got damaged in the process of opening of the lock
and the lock was opened by using a wire. P.W.-38 mentioned that on 11.02.2000 the flat was
found sealed and was opened in the presence of the bailiff and panch witnesses. The panchnama
of recovery made on 11.02.2000 (Exhibit No.34) mentioned that the bailiff of the court removed
the seals and tried to open the locks with keys. According to this panchnama, one iron rod was
used to open up the locks but instead of the locks, the latch of the door got broken. When the
chain of latch was removed, it was found that the door was locked due to body lock. Since the
door was locked, the grills of the window were removed and after removing the broken glasses,
one person was lowered and finally entry was made in the flat. The courts below have rejected
the evidence of recovery made on 11.02.2000 and they have found that the first list of the
articles found in the flat as prepared on 17.12.1999 did not mention any box or gold-like
materials/artificial jewellery or any other gold article or any clothes in the list of movable

242
articles of the flat (Exhibit No.112). How is it that the articles were found in the subsequent
search from the same flat which was locked and sealed? The panchnama of the flat searched on
17.12.1999 though mentioned about three big suitcases full of clothes and artificial jewellery, no
details, whatsoever, regarding those articles were made and without any reference as to the
quality of golden colour ornaments, P.W.-38 considered them as artificial jewellery. On both
occasions when the search was made in the flat, it was not sealed properly with the court seal
and, instead thereof, one- rupee and five-rupee coins were used. The entry in the flat on both
occasions, i.e. on 17.12.1999 and 11.02.2000, was made through the window which shows that
this flat was easily accessible although the seal of the court was put on it, without interfering
with the seal after removing the grill of the window. There was material contradiction in the
panchnama of flat search made on 11.02.2000 and evidence of P.W.-8 and P.W.-38 with respect
to the way in which the entry was made to the flat of the accused persons on 11.02.2000. When
at the first instance no jewellery was found inside the flat, how it was recovered on the
subsequent search? The search and recovery of articles by the police on 11.02.2000 does not
inspire confidence as the flat was easily accessible, without disturbing the lock and planting of
the articles by the police cannot totally be ruled out. We have carefully gone through the
evidence of the witnesses and the panchnamas and list of seized articles and have found that
reasoning adopted by the courts below in discarding the evidence of seizure of articles from the
flat of the accused persons cannot be said to be without any basis.
On the information received by the police, the accused persons were arrested at Agra and at the
time of arrest on 30.01.2000, as per the prosecution, certain incriminating articles were seized
from the accused couple at Agra. The police recovered the ladies purse and salwar suit from A-2Anjali Thakran. These articles were put for Test Identification which was conducted in the
presence of P.W.24- Vinayak S.N. Alornekar, Special Judicial Magistrate on 10.02.2000. During
this T.I. Parade, P.W.5-Kishen Valecha, brother of deceased Priya Nanda, was unable to identify
the salwar suit, but he had identified the ladies purse belonged to his sister and the reason given
for identifying it was that she was carrying the same purse while leaving for Vaishnodevi after
marriage. Another witness P.W.33- Subhash Nanda, identified both purse and salwar kameez as
belonging to his daughter-in-law, Priya Nanda. In his cross- examination, P.W.-33 has
mentioned that he identified the salwar kameez only from the colour and design and not from
any other identification mark. He has admitted that same salwar suit and purse are available in
the market. P.W.-5 has also admitted in his cross- examination that there was no distinctive
mark on the purse. Identification of these articles have been disbelieved by the courts below

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and, in our opinion, rightly so. When the persons identified it, they did not have sufficient
opportunity to see these articles used by the deceased for a long duration, and when the articles
do not carry any distinctive marks, on the basis of which the articles can be distinguished from
the similar articles which are easily accessible and available in the market, identification of the
articles by the witnesses would be difficult to be believed. The recovery of these articles from the
accused in the absence of their identification as belonging to the deceased, does not take the
prosecution case any further. The learned senior counsel for the appellant(s) Mr. Mahendra
Anand has placed reliance on the recovery of two bangles which had the identification mark 'RK
22 KL', weighing approximately 23.5. grams, from the shop of P.W.12-Ulhas Lotlikar at the
instance of A-2. On 13.02.2000, during interrogation she disclosed that she would point out the
goldsmith to whom the gold ornaments were sold. Accordingly, as per her directions, police
party and panch witnesses approached the jewellery shop of P.W.-12 at Khareband, Margao. In
presence of panchas, P.W.-12 produced the two bangles bearing identification mark 'RK 22 KL' ,
weighing 23.5. grams, before the police party. As per this witness, the accused came to his shop
and sold two bangles, a necklace and a gold finger ring. When he asked for the reason as to why
she was selling these ornaments, A-2 told him that their restaurant was not running well and
hence, they were in urgent need of money. He paid Rs.12,400/-, Rs. 3,200/- and Rs.1,200/respectively, for two bangles, a necklace and a gold finger ring. He did not melt the bangles since
they were in good condition. As per the prosecution, these gold ornaments belonged to deceased
Priya Nanda. During cross-examination, P.W.-12 volunteered to produce the book where he
maintained the record of sale of these ornaments. However, inspite of ample opportunity given
to him to produce the book, he did not do so. In his cross-examination, he admitted that a day
before recovery, A-2 was shown to him in the office of Dy. Superintendent of Police, Mapusa.
That apart, the police had not recovered the other ornaments alleged to have been sold by the
accused to P.W.-12 as it is said that he had melted those ornaments. It is highly improbable that
P.W.-12 would have retained the bangles, which have the distinctive mark over them and would
have melted other ornaments with no distinctive marks on them. The whole purpose and
authenticity of the recovery of these ornaments have been lost when the witness has admitted
that a day ahead of the recovery the accused was shown to him in the police station. Another
piece of evidence, on which the prosecution strongly relied, is of identification of the accused
persons in the Test Identification parade on 07.02.2000. P.W.24-VSN Alornekar, Special
Judicial Magistrate, Tiswadi and Bardez Talukas, conducted Test Identification parade, wherein
P.W.6-Amit Banerjee, P.W.30-Suhasini Govekar and P.W.7- Ganpat , were the identifying
witnesses. P.W.- 6 had identified both the accused persons as the persons who came with D-2

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Priya Nanda to Hotel Seema on the night of 27.02.1999. The trial court as well as the High Court
have found certain irregularities in the manner of conducting the identification parade. A- 1 and
A-2 were placed in the same identification parade with 6 dummies each, which was contrary to
Paragraph 16(2)(h) of the Criminal Manual issued by the High Court of Bombay, which
mentioned that :
"if two suspects were not similar in appearance or where there were more than two suspects,
separate parade should be held using different person on each parade."
We have gone through the original record of the memorandum of identification parade (Exhibit
No.70) and have found that P.W.-24 has mentioned as follows in this memorandum :
"The dummy accused who are put in the parade I.e., 6 ladies and 6 gents are more or less of the
same features and age groups as that of the accused couple to be put in the parade. They are also
more or less the same height and status in appearance as that of the accused."
As far as case of A-1 is concerned, who was around 38 years old at that time, 5 of the dummy
persons belonged to age-group of 23-27 and another dummy was of 40 years old. Hence, there is
a serious doubt regarding the fairness of the test identification. We have now to consider the
veracity and authenticity of the evidence led by the prosecution to show that the accused persons
were seen with the deceased couple in Goa moving around together and that they were the same
persons who had been last seen together by the witnesses with the deceased couple, and if so,
what shall be the resultant inference which can be drawn from the facts proved in the
surrounding circumstances.
P.W.-30 was examined to prove the acquaintance of the accused persons with the deceased
couple prior to the date of incident. As per P.W.-30, on 26.02.1999 the accused couple and their
children came to her shack which was located at Anjuna Beach. A-1 approached P.W.-30 and
told her that she was looking pretty and that he would give her work and would take her on ship
and would give her whatever she wanted. He had also made enquiries whether the ornaments
which she was wearing were real or artificial and that what was her bank balance. On
27.02.1999, the accused couple and their children came to her shack between 1 and 2 p.m. and
went to take bath on the beach. When they returned from the beach, they were accompanied by
a newly married couple. P.W.-30 had a talk with D-2-Priya Nanda, who was wearing the
reddish-coloured bangles and, accordingly, she assumed that they were newly married couple.

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The newly married lady, who had come with the accused lady, changed her clothes and wore a
blue-coloured skirt and blouse. After having lunch at her shack, the two couples and the children
went away. About a month later, the police showed her two or three photographs and asked her
to identify the persons in the photographs. She identified D-1-Vikas Nanda and D-2-Priya
Nanda, as the newly married couple, who had come to her shack on 27.02.1999 along with the
accused couple. She also identified articles, blue skirt and blouse, to be belongings of deceased
Priya Nanda. The evidence of this witness of remembering the persons after a month when no
particular incident was mentioned by her for remembering them, after a lapse of time, appears
to be unnatural, particularly so, when she was running a shack at a beach where hundreds of
persons were visiting. The evidence of this witness of the accused approaching her and making
enquiries about the value of the ornaments and her bank balance in the first meeting, does not
inspire confidence. Apart from this, the witness has failed to identify any of the accused persons
in the identification parade conducted on 07.02.2000. That apart, in the cross-examination, this
witness said that the children accompanying the accused were in the age group of 20-21 years
whereas it has come in evidence that children of the accused couple were a boy and a girl, aged
about 12 years and 6 years respectively.
The prosecution examined P.W.14-Calvert Gonsalves to prove that he had seen the deceased
couple and accused couple at Iguana Miraj Restaurant. As per this witness, he used to meet the
accused persons at Iguana Restaurant as also at Lalita Beach Resort. The accused's children
were a boy and a girl. The boy was about 12 years of age and the girl was about 6 years of age. He
was introduced by A-1 to one Vikas Nanda (D-1) on the evening of 27.02.1999, while D-1 was
sitting beside A-1 outside Iguana Restaurant. He was also told by A-1 that D-1 was his friend
from Delhi and had come to Goa for his honeymoon. It was also informed to him by A-1 that the
wife of D-1 was inside Iguana Restaurant. The witness deposed that there was one AC room in
the Restaurant containing bedroom, TV, etc. which was used by A-1. D-1 told him that his wife
was in the AC room alongwith A-2. The name of the wife of D-1 was told to him as Priya. D-1 told
him that his wife was in the company of A-2. D-1, A-1 and he talked for about one-and-a-half
hours. After that, A-1 told him that he and D-1 were going to disco and he left for his home. The
time was at about 9.30 p.m. From the statement of this witness, it is apparent that at the night of
27.02.1999, he himself had not seen A-2 and D-2 sitting in the room at Iguana Restaurant. This
witness further proved the fact that till 9.30 p.m. on 27.02.1999, A-1 was seen in the company of
D-1 when he left them at Iguana Restaurant.

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P.W.11-Dinesh Adhikari, who was working as a domestic help in the bar and restaurant of
Iguana Miraj and Lalita Beach Resort, deposed that the accused were running a hotel at
Sernabhati Colva known as Iguana Miraj which was a bar and restaurant and they were also
running a hotel besides the said restaurant and the name of that hotel was Lalita Beach Resort.
He knew the accused persons right from the days he used to work for them in Haryana
(Gurgaon) and thereafter he joined them in Goa. Some time in June 1999, the police had shown
the photograph of a lady and a gent and asked him whether he could identify anyone of them.
He told the police that he could identify the persons in the photograph. He identified the
persons from the photographs and said that he had seen those persons 2 to 3 days prior to Holi
of the year 1999 in the hotel of the accused. They came to the hotel at about 6.00 to 7.00 p.m. He
saw that A-1, the gentleman in the photograph, and one person named Calvert were sitting
outside the hotel while A-2 and the lady in the photograph were sitting inside the hotel. He was
asked to bring a bag from a white colour Maruti car when they had come to the hotel in the
evening. After some time, A-1 and the man from the photograph started walking in the direction
of the beach and after about 30 to 45 minutes he saw A-1 alone while A-2 was sitting with the
lady in the photograph. He further deposed that although he did not enter the room but he saw
A-2 and D-2 sitting in the bedroom through the glass fixed to the bedroom door. In his crossexamination, this witness deposed that the beach is at a distance of about 200 to 300 metres
from Iguana Miraj Hotel. A-1 and D-1 went to the beach at around 9.30 to 10.00 p.m. and
thereafter he went to his living quarter. When he came back, he saw only A-1 in the hotel. He
was not sure at what time the accused couple left with the lady in the photograph from Iquana
Miraj Hotel. From the statement of this witness, it is apparent that A-2 and D-2 were sitting in
the hotel room and it was only A-1 and D-1 who left towards the beach and after 30 to 45
minutes only A-1 returned and thereafter A-1 and A-2 along with D-2 left the hotel.
P.W.6-Amit Banerjee, who was working as the Receptionist of Hotel Seema where the deceased
couple stayed when they came to Goa, deposed that on 26.02.1999, D-1 and his wife D-2 had
come to the hotel. They were provided a room which was reserved for the Union Bank of India
as its holiday home. Mr. A.C. Duggal, General Manager of the Union Bank of India had informed
him on phone that these guests were coming to the hotel and he should take care of them. On
27.02.1999 at about 2330 hours, D-2 came alone and asked for the room key and told him that
she was checking out of the hotel. D-1-Vikas Nanda, the husband of D-2-Priya Nanda, was not
along with her. He asked her why she was checking out at that odd time. At that, she informed
that she had met some friends from Delhi and that she was going to join them. D-2 went to her

247
room and he went to the reception area where the security guard was on duty. He asked the
security guard as to how she had come to the hotel. The guard informed him that the guest had
come in a car along with a man who had followed her to the room. He had noticed a white colour
800CC Maruti car parked outside the gate of the hotel and one lady with short hair was sitting
on the rear seat. He noticed her for a minute or two. D-2 returned to the reception from her
room within 15 minutes and A-1 was carrying the luggage. She settled the bill and thereafter left
the hotel. In his cross-examination, this witness mentioned that when at reception counter D-2
was making the payment, he saw A-1 who passed along with the luggage putting his head down.
In the Test Identification Parade on 07.02.2000, this witness identified A-1 as the person who
came along with D-2 on 27.02.1999 when she checked out of the hotel and identified A-2 as the
same lady who was sitting in the Maruti car on 27.02.1999. He stated that he did not find
anything abnormal about the departure of D-2 and behaviour of D-2 at that time was normal.
From the statement of this witness, it appears that he had merely a fleeting glance of A-2 sitting
in the parked car and thus he had described her as the lady with a short hair. Although in the
test identification parade conducted after more than 11 months he identified both the accused,
but when the police recorded his statement on 07.03.1999 in Hotel Seema he had not given the
description of the accused persons to the police to be the persons who came to his hotel along
with D-2. The witness admitted that in the hotel register the check-out timing column was
blank. Therefore, the record produced does not indicate the timing of departure of D-2 from
Hotel Seema. The prosecution has also not examined the guard of the hotel to identify A-2 to be
the person who was sitting in the car.
Before we analyse the evidence of P.W.11-Dinesh Adhikari, who was working as a domestic help
in the bar and restaurant Iguana Miraj, P.W.14-Calvert Gonsalves, who was said to be in the
company of A-1 and D-1 on the evening of 27.02.1999 outside the lounge of the restaurant and
P.W.6-Amit Banerjee, who was working as Receptionist of Hotel Seema, we would refer to
certain decisions of this Court on the point of `last seen together'. It is a settled rule of criminal
jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts
shall take utmost precaution in finding an accused guilty only on the basis of circumstantial
evidence. This Court has applied the above-mentioned general principle with reference to the
principle of last seen together in Bodh Raj alias Bodha & Ors. v. State of Jammu and
Kashmir, (2002) 8 SCC 45 as under:

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"31. The last-seen theory comes into play where the time-gap between the point of time when
the accused and the deceased were seen last alive and when the deceased is found dead is so
small that possibility of any person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and possibility of other persons coming
in between exists. In the absence of any other positive evidence to conclude that the accused and
the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in
those cases. .."
[See also : State of U.P. v. Satish, JT 2005(2) SC 153 = (2005) 3 SCC 114 (para 22)
and Ramreddy Rajeshkhanna Reddy & Anr. v. State of Andhra Pradesh, JT 2006 (4) SC 16 (para
29)]. In Ramreddy Rajeshkhanna Reddy (supra), this Court further opined that even in the cases
where time gap between the point of time when the accused and the deceased were last seen
alive and when the deceased was found dead is too small that possibility of any person other
than the accused being the author of the crime becomes impossible, the courts should look for
some corroboration.
In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, it was observed that:
"5. In the absence of any other links in the chain of circumstantial evidence, it is not possible to
convict the appellant solely on the basis of the 'last-seen' evidence, even if the version of PW 14
in this regard is believed. .."
From the principle laid down by this Court, the circumstance of last-seen together would
normally be taken into consideration for finding the accused guilty of the offence charged with
when it is established by the prosecution that the time gap between the point of time when the
accused and the deceased were found together alive and when the deceased was found dead is so
small that possibility of any other person being with the deceased could completely be ruled out.
The time gap between the accused persons seen in the company of the deceased and the
detection of the crime would be a material consideration for appreciation of the evidence and
placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said
that the evidence of last seen together is to be rejected merely because the time gap between the
accused persons and the deceased last seen together and the crime coming to light is after a
considerable long duration. There can be no fixed or straight jacket formula for the duration of

249
time gap in this regard and it would depend upon the evidence led by the prosecution to remove
the possibility of any other person meeting the deceased in the intervening period, that is to say,
if the prosecution is able to lead such an evidence that likelihood of any person other than the
accused, being the author the crime, becomes impossible, then the evidence of circumstance of
last seen together, although there is long duration of time, can be considered as one of the
circumstances in the chain of circumstances to prove the guilt against such accused persons.
Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there
was no possibility of any other person meeting or approaching the deceased at the place of
incident or before the commission of the crime, in the intervening period, the proof of last seen
together would be relevant evidence. For instance, if it can be demonstrated by showing that the
accused persons were in exclusive possession of the place where the incident occurred or where
they were last seen together with the deceased, and there was no possibility of any intrusion to
that place by any third party, then a relatively wider time gap would not affect the prosecution
case.
We will first consider the applicability of the last seen together doctrine with respect to the
murder of D-1-Vikas Nanda. According to P.W.14-Calvert Gonsalves, A-1 and D-1 were present
outside the Hotel Iguana Miraj at around 9.30 p.m. and as told to him by D-1, A-2 and D-2 were
sitting inside one of the rooms of the hotel. P.W.11- Dinesh Adhikari has also stated that after
serving drinks to A-1, P.W.- 14 and D-1, he went away. He returned to the hotel at around 9.009.30 p.m. and found that only A-1 and D-1 were sitting outside the hotel and P.W.-14 had gone
away. He has also mentioned that A-2 and D-2 were sitting inside a room of the hotel. According
to P.W.- 11, A-1 and D-1 started walking towards the beach after some time when he saw them
sitting together at around 9.00-9.30 p.m. After about 30 to 45 minutes, he saw A-1 alone in the
hotel. According to the prosecution version, A-1 murdered D-1 by drowning him in the shallow
beach water. However, it is highly improbable that A-1, who at the relevant time was in his late
30s, was able to overpower D-1 who was not only well-built but also about 10 years younger and
taller than him. We have also noticed that when the dead body of D-1 was recovered, it had no
clothes except an undergarment. It is highly unlikely that a single person not only forcefully
drowned the deceased D-1 in the shallow beach water but also forced him to take out all the
clothes and ornaments which he was wearing at that time. The post- mortem report also does
not mention any serious injury on any of the vital parts of D-1 to support the prosecution
version. It is clear from the deposition of P.W.-11 that A-1 went along with D-1. P.W.-14 has also
stated that A-2 and D-2 were sitting inside a room of the hotel. From this evidence, it is clear

250
that A-2 had no role whatsoever to play with reference to the murder of D-1-Vikas Nanda,
especially when the prosecution has not been able to produce any material or evidence to
establish the fact that they either pre-planned a plot or conspired with each other to murder the
deceased couple to carve away their valuable materials. We have also not found any other link in
the chain of circumstances to conclusively establish that A-1 murdered D-1 or A-2 played any
role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in
the company of A- 1 walking towards the beach and thereafter saw A-1 returning alone after 30
to 45 minutes, there has been a time gap of about 2 < hours when A-1 and D-1 were last seen
together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach.
No evidence was led by the prosecution to prove the fact that there was no possibility of any
other person approaching D-1 on the beach which is a public place, during the intervening
period when A-1 was last seen with the deceased and when the crime was detected.
We shall now weigh the last seen doctrine with respect to D-2- Priya Nanda. According to P.W.11, after about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had
seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused
persons and D-2 walking away from Iguana Miraj Hotel. We can safely assume that P.W.-11 saw
both the accused persons along with D-2 latest by around 10.30 -11.00 p.m. P.W.-6 Amit
Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the
prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1.
P.W.-6 has mentioned that the guard of the hotel had an opportunity to see the persons who
came along with D-2. However, the prosecution chose not to examine the guard to identify
either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he
had got an opportunity to look at her for merely one to two minutes. In his statement, he has
described her as a lady with short hair. He has not given any description indicating that he had
seen somebody sitting in the car whose face was visible from one side. Even when he was
examined by the police, he had not described the features of A-2. In the absence of any other
supporting material on record, it will not be possible to believe the statement of P.W.-6 that he
had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left
the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to
see A-1 for the first time for a very short duration to recognize him to be a person who
accompanied D-2 to Hotel Seema on the night of 27.2.1999, he had only a fleeting glance of male
person who came with D-2 as he was busy in settling the account with her. That apart, the dead
body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms.

251
from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel
Seema. Hence, there has been a considerable time gap of approximately 8 = hours when D-2
was last seen alive with the accused couple. There being a considerable time gap between the
persons seen together and the proximate time of crime, the circumstance of last seen together,
even if proved, cannot clinchingly fasten the guilt on the accused. It is urged by Mr. Mahendra
Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to
in what circumstances the victims suffered the death in their statements under Section 313
Cr.P.C. and thus would be held to be liable for homicide. The learned senior counsel for the
appellant(s) placed reliance on the following observations of this Court made in Amit
aliasAmmu v. State of Maharashtra (2003) 8 SCC 93 : "9. The learned counsel for the appellant
has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh
Kumar) was a member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 for the
proposition that the circumstance of last seen does not by itself necessarily lead to the inference
that it was the accused who committed the crime. It depends upon the facts of each case. In the
decision relied upon it has been observed that there may be cases where, on account of close
proximity of place and time the factum of death, a rational mind may be persuaded to reach an
irresistible conclusion that either the accused should explain how and in what circumstances the
victim suffered the death or should own the liability for the homicide. The present is a case to
which the observation as aforesaid and the principle laid squarely applies and the circumstances
of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer
the conviction. Those circumstances have already been noticed, in which case such an
irresistible conclusion can be reached will depend on the facts of each case. Here it has been
established that the death took place on 28th March between 3 and 4 p.m. It is just about that
much time that the appellant and the deceased were last seen by PW 1 and PW 11. No
explanation has been offered in the statement by the appellant recorded under Section 313
Cr.PC. His defence is of complete denial. In our view, the conviction for offence under Sections
302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court."
We have noticed the decision. However, the circumstances in the present case are not similar to
the case where the event of the last seen together has very close proximity with the time and
place of the commission of the crime and other circumstances also favour the hypothesis of guilt
and consequently the fact that no explanation or false explanation offered by the accused was
taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC
212; Raju v. State of Haryana, (2001) 9 SCC 50; and Babu S/o Raveendran v. Babu S/o

252
Bahuleyan and Another(2003) 7 SCC 37]. Thus, in the circumstances of the case, the accused
persons not giving any explanation in their examination under Section 313, Cr.P.C. could not be
taken to be a circumstance pointing towards irresistible conclusion that they are involved in the
commission of the crime.
In the light of the factors that evidence regarding the recovery of the incriminating materials
from the accused persons has been discarded; that there has been sufficient time gap between
the instances when the accused persons were last seen together with the deceased persons; and
in the absence of any other corroborative piece of evidence to complete the chain of
circumstances to fasten the guilt on the accused couple, we are of the opinion that the accused
have been rightly given the benefit of doubt by the courts below. We have found that the finding
of the High Court that the chain of circumstances is not complete to conclusively establish that
either A-1 or A-2 alone or with the common intention of each other have committed the dreadful
crime of murder of newly married couple, is correct and merely suspicion, however grave,
cannot replace the weight attached to the evidence. Accordingly, we order for dismissal of the
appeals.

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State Of U.P vs Satish on 8 February, 2005


Author: A Pasayat
Bench: Arijit Pasayat, S.H. Kapadia
CASE NO.:
Appeal (crl.)

256-257 of 2005

PETITIONER:
State of U.P.
RESPONDENT:
Satish
DATE OF JUDGMENT: 08/02/2005
BENCH:
Arijit Pasayat & S.H. Kapadia
JUDGMENT:

JUDGMENT ARIJIT PASAYAT, J.


Leave granted.
One Vishakha @ Akansha (hereinafter referred to as the `victim') who had not even seen six
summers in her life lost her life on account of bestial acts of the respondent Satish (hereinafter
referred to as the `accused') who allegedly raped her and thereafter murdered her. When the
victim went out to school on 16.8.2001, her parents would have never thought in their widest
dreams that she would not come back home and would fall victim to the barbaric and inhuman
acts of the respondent. Rape is one of the most depraved acts. The iniquitous flagitious act
becomes abonimal when the victim is a child. The diabolic act reaches the lowest level of
humanity when the rape is followed by brutal murder.
In a nutshell the accused faced trial in the following backdrop.

254
On 16.8.2001 the victim who was studying in Sarvodya Public School had gone to school and did
not return at the usual time. On the next day morning her dead body was found in the Sugarcane
field of one Moolchand around 6.00 a.m. She was lying in a dead condition and blood was
oozing from her private parts and there were marks of pressing on her neck. Report was lodged
at the nearly Police Station and the dead body was sent for post mortem examination Dr. R.K.
Gupta (PW-7) conducted the post mortem around 2.00 p.m. on 17.8.2001 and opined that death
was within the preceding 24 hours.
Three persons claimed to have seen the accused nearby the place of occurrence between 1.00
p.m. to 2.00 p.m. on the date of occurrence. Two of them, namely, Sanjeev Kumar Tyagi (PW-3)
and Kulbhushan (PW-5) claimed to have seen the deceased being carried on a bicycle by the
accused who was taking the bicycle with the deceased sitting on the handle thereof. Anil (PW-2)
stated that he had seen the accused in perplexed state around 2.00 p.m. near the place from
where the dead body of deceased was found. Investigation was undertaken. During such
investigation, there was recovery of accused's underwear as also the undergarment the deceased
was wearing. This recovery was treated to be under Section 27 of the Indian Evidence Act, 1872
(in short the `Evidence Act').
The trial Court found that the circumstances highlighted by the prosecution were sufficient to
fasten guilt on the accused. She, therefore, convicted him under Section 363, 366, 376(2), 302
and 201 of the Indian Penal Code, 1860 (in short the `IPC'). The crime was held to be one falling
under rareset of rare category. Death sentence was imposed for the offence under Section 302
IPC. Various custodial sentences and fines were imposed for other offences. Since a death
sentence was awarded the matter was referred to the High Court for confirmation in terms of
Section 366 of Code of Criminal Procedure, 1973 (in short the `Code'). The accused preferred an
appeal before the High Court. Both the capital sentence reference and the criminal appeal were
heard together. By the impugned judgment the High Court set aside the judgment of conviction.
It was held that the case rested on circumstantial evidence and the circumstances highlighted by
the prosecution did not inspire confidence. Three circumstances were highlighted by the High
Court to arrive at the aforesaid conclusions. Firstly, was held that examination of PWs. 3 and 5
after long passage of time rendered their version unacceptable and improbable. The prosecution
did not offer any explanation for such delayed examination. Secondly, in the FIR name of the
accused was not indicated. Thirdly, presence of the accused nearby the place from where the

255
dead body was recovered, as deposed by PW-2, may be a suspicious circumstance but was not
determinative. Accordingly, it was held that prosecution had failed to prove its accusations.
In support of the appeals, learned counsel for the State submitted that the approach of the High
Court is clearly erroneous both on legal and factual aspects. No question was put to the
Investigating Officer (PW-8) regarding alleged delayed examination. Further the evidence of
PWs 2, 3 and 5 clearly established the circumstances which unerringly point the accusing finger
at the accused. Additionally, explanation was given for non inclusion of the name of the accused
in the FIR by PW-1 and without indicating any reason the High Court had treated the same to be
unacceptable.
It is relevant to point out that during trial no question was raised about the delayed examination
and not even a plea was raised before the trial Court that the delayed examination of PWs 3 and
5 affected credibility of the prosecution version.
In response, learned counsel for the accused-respondent submitted that the High Court by a
well reasoned judgment has found the prosecution version to be unreliable. That being so, this
Court should not interfere with the order of acquittal. Further, the evidence tendered by the
prosecution is not sufficient to prove unerringly that the accused was responsible for the crime.
The case being one which rests on circumstantial evidence, the view taken by the High Court is a
possible view and, therefore, this Court should not interfere.
It has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063, Eradu v.
State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC
446, State of U.P. v. Sukhbasi, AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR
(1987) SC 350 andAshok Kumar Chatterjee v. State of M.P., AIR (1989) SC 1890). The
circumstances from which an inference as to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954)
SC 621 it was laid down that where the case depends upon the conclusion drawn from

256
circumstances the cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring home the offences beyond any reasonable doubt.
We may also make reference to a decision of this Court in C. Chenga Reddy v. State of A.P.,
[1996] 10 SCC 193, wherein it has been observed thus:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further, the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In Padala Veera Reddy v. State of A.P., AIR (1990) SC 79 it was laid down that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of
the accused;
(3) The circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed by the
accused and none else; and (4) The circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis than that of guilt of the
accused and such evidence should not only be consistent with the guilty of the accused but
should be inconsistent with his innocence.
In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl LJ 1104 it was pointed out that great care
must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be accepted. It was also pointed
out that the circumstances relied upon must be found to have been fully established and the
cumulative effect of all the facts so established must be consistent only with the hypothesis of
guilt.

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Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence' (Chapter VI) lays down
the following rules specially to be observed in the case of circumstantial evidence: (1) the facts
alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt
connected with the factum probandum; (2) the burden of proof is always on the party who
asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of
direct of circumstantial evidence the best evidence must be adduced which the nature of the case
admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible
with the innocence of the accused and incapable of explanation, upon any other reasonable
hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted.
There is no doubt that conviction can be based solely on circumstantial evidence but it should be
tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far
back in 1952.
In Hanumant Govind Nargundkar v. State of M.P., AIR (1952) SC 343 it was observed thus;
"It is well to remember that in case where the evidence is of a circumstantial nautre, the
circumstances from which the conclusion of guilt is to be drawn should be in the first instance
be fully established, and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature
and tendency and they should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra, AIR (1994) SC 1622. Therein, while dealing with circumstantial evidence, it has
been held that the onus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions
precedent in the words of this Court, before conviction could be based on circumstantial
evidence must be fully established. They are:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be established;

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(2) The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There
must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the-innocence of the accused and must show that in all human
probability the act must have been done by the accused.
When the evidence on record is analysed in the background of principles highlighted above, the
inevitable conclusion is that the prosecution has established its accusations.
As regards delayed examination of certain witnesses, this Court in several decisions has held
that unless the Investigating officer is categorcially asked as to why there was delay in
examination for the witnesses the defence cannot gain any advantage therefrom. It cannot be
laid down as a rule of universal application that it there is any delay in examination of a
particular witness the prosecution version become suspect. It would depend upon several
factors. If the explanation offered for the delayed examination is plausible and acceptable and
the court accepts the same as plausible, there is no reason to interfere with the conclusion [See
Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409, Bodhraj @ Rodha and Ors. v. State of
Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu v. State of M.P., [2004] 1 SCC 414.]
The High Court has placed reliance on a decision of this Court in Ganesh Bhayan Patel and Anr.
v. State of Maharashtra, [1978] 4 SCC 371. A bare reading of the fact situation of that case shows
that the delayed examination by I.O. was not the only factor which was considered to be
determinative. On the contrary it was held that there were catena of factors which when taken
together with the delayed examination provided basis for acquittal.
It is to be noted that the explanation when offered by I.O. on being questioned on the aspect of
delayed examination, by the accused has to be tested by the Court on the touchstone of
credibility. If the explanation is plausible then no adverse inference can be drawn. On the other
hand, if the explanation is found to be implausible, certainly the Court can consider it to be one
of the factors to affect credibility of the witnesses who were examined belatedly. It may not have
any effect on the credibility of prosecution's evidence tendered by the other witnesses.

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One significant factor which seems to have missed by the High Court is that there was no
suggestion to either PW-3 or PW-5 that in fact they had not seen the accused and deceased
together. Even no question was asked about that aspect in cross-examination. On the contrary,
an irrelevant suggestion was given that though the witness and seen them together, the witness
had not asked the accused as to why he was walking while carrying the deceased on the bicycle.
That being so, the High Court could not have come to the conclusion that there was no credible
evidence of the accused and the deceased being seen together by PWs 3 and 5. As noted above,
the I.O. (PW-8) was never asked the reason for delayed examination of PWs 3 and 5. The cross
examination was only on the aspect of the recovery of the underwear and undergarment of the
accused and the deceased respectively.
The last seen theory comes into play where the time-gap between the point of time when the
accused and the deceased were seen last alive and when the deceased is found dead is so small
that possibility of any person other than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively establish that the deceased was last
seen with the accused when there is a long gap and possibility of other persons coming in
between exists. In the absence of any other positive evidence to conclude that the accused and
the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that the deceased and the accused were seen
together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.
The reason as to why accused's name did not find place in the FIR was explained by the
informant when he was recalled. The High Court drew an adverse inference without indicating
any reason therefore. Looked at from above angle, the High Court's order is clearly untenable
and unsustainable and deserves to be set aside, which we direct.
There is no embargo on the appellate Court reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal shall not be interfered with because the
presumption of innocence of the accused is further strengthened by acquittal. The golden thread
which runs through the web of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to the accused should be adopted. The
paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is no less than from the

260
conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the
appellate Court to re- appreciate the evidence where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused really committed any offence or not.
[See Bhagwan Singh and Ors. v. State of Madhya Pradesh, (2002) 2 Supreme 567]. The principle
to be followed by appellate Court considering the appeal against the judgment of acquittal is to
interfere only when there are compelling and substantial reasons for doing so. If the impugned
judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for interference. These aspects were
highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra,
AIR (1973) SC 2622, Ramesh Babulal Doshi v. State of Gujarat, (1996) 4 Supreme 167, Jaswant
Singh v. State of Haryana, (2000) 3 Supreme 320, Raj Kishore Jha v. State of Bihar and Ors.,
(2003) 7 Supreme 152. State of Punjab v. Karnail Singh, (2003) 5 Supreme 508 and State of
Punjab v. Pohla Singh and Anr., (2003) 7 Supreme 17.
In Bachan Singh v. State of Punjab, [1980] 3 SCC 684 and Machhi Singh and Ors. v. State of
Punjab,[1983] 3 SCC 470 the guidelines which are to be kept in view when considering the
question whether the case belongs to the rarest of the rare category for awarding death sentence
were indicated.
In Machhi Singh's case supra it was observed:
"The following questions may be asked and answered as a test to determine the "rarest of the
rare" case in which death sentence can be inflicted:(a) Is there something uncommon about the crime which renders sentence of imprisonment for
life inadequate and calls for a death sentences?
(b) Are the circumstance of the crime such that there is no alternative but to impose death
sentence even after according maximum, weightage to the mitigating circumstances which speak
in favour of the offender?
The following guidelines which emerge from Bachan Singh case (supra) will have to be applied
to the facts of each individual case where the question of imposition of death sentence arises:
(SCC p. 489, para 38):-

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(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be
imposed only when life imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstance of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just balance has
to be struck between the aggravating and the mitigating circumstances before the option is
exercised.
In rarest of rare cases when collective conscience of the community is so shocked that it will
expect the holders of the judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining death penalty, death sentence
can be awarded. The community may entertain such sentiment in the following circumstances :
(1) When the murder is committed in an extremely brutal, grotesque, disbolical, revolting or
dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness;
e.g. murder by hired assassin for money or reward or a cold- blooded murder for gains of a
person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or
murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed
not for personal reasons but in circumstances which arouse social wrath, or in cases of `bride
burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman on account of infatuation.

262
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all
or almost all the members of a family or a large number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person
or a person vis-a-vis whom the murderer is in dominating position or a public figure generally
loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid
proposition and taking into account the answers to the questions posed by way of the test for the
rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the
court would proceed to do so."
A convict hovers between life and death when the question of gravity of the offence and award of
adequate sentence comes up for consideration. Mankind has shifted from the state of nature
towards a civilized society and it is no longer the physical opinion of the majority that takes
away the liberty of a citizen by convicting him and making him suffer a sentence of
imprisonment. Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the court room after adequate hearing is
afforded to the parties, accusations are brought against the accused, the prosecuted is given an
opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the informed man i.e. the judge that leads to
determination of the lis.
The principle of proportion between crime and punishment is a principle of just desert that
servers as the foundation of every criminal sentence that is justifiable. As a principle of criminal
justice it is hardly less familiar or less important than the principle that only the guilty ought to
be punished. Indeed, the requirement that punishment not be disproportionately great, which is
a corollary of just desert, is dictated by the same principle that does not allow punishment of the
innocent, for any punishment in excess of what is deserved for the criminal conduct is
punishment without guilt.
The criminal law adheres in general to the principle of proportionality in prescribing liability
according to the culpability of each kind of criminal conduct. It ordinarily allows some
significant discretion to the judge in arriving at a sentence in each cases, presumably to permit

263
sentences that reflect more subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in
practice sentences are determined largely by other considerations. Sometimes it is the
correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just desert as the basis of punishment
and create cases of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal respected in principle, and in spite of errant
notions, it remains a strong influence in the determination of sentences. Anything less than a
penalty of greatest severity for any serious crime is thought to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from those considerations that make
punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate
punishment has some very undesirable practical consequences.
Considering the view expressed by this Court in Bachan Singh's case (supra) and Machhi Singh's
case (supra) we have no hesitation in holding that the case at hand falls in rarest of rare category
and death sentence awarded by the trial Court was appropriate. The acquittal of the respondentaccused is clearly unsustainable and is set aside. In the ultimate result, the judgment of the High
Court is set aside and that of the trial Court is restored. The appeals are allowed.

264

Surender Prashad vs State on 17 January, 2014


Author: Kailash Gambhir
*

IN THE HIGH COURT OF DELHI AT NEW DELHI


Judgment delivered on: January 17, 2014

CRL.A. 245/2002
SURENDER PRASHAD

..... Appellant
Through:

Mr. Sumeet Verma, Advocate

versus
STATE

..... Respondent
Through:

Mr. Sunil Sharma, Additional


Public Prosecutor for the State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT

KAILASH GAMBHIR, J.
1. By this appeal filed under Section 374 Criminal Procedure Code, 1973 (hereinafter referred to
as "CrP.C"), the appellant seeks to challenge the judgment dated 12.04.2001 whereby the
appellant has been convicted for committing an offence punishable under Sections
302/363/364/201 Indian Penal Code Code, 1860 (hereinafter referred to as "IPC") and vide
order on sentence dated 16.04.2001, he has been sentenced to undergo imprisonment for life
and payment of fine of Rs. 1000/- and in default thereof to further undergo rigorous
imprisonment of three months under section 302 IPC; imprisonment for life and payment of
fine of Rs. 1000/- and in default thereof to further undergo rigorous imprisonment of
three months under section 364 IPC; rigorous imprisonment to 7 years and to payment of fine of
Rs. 1000/- and in default thereof to further undergo rigorous imprisonment of three months
under section 363 IPC and rigorous imprisonment of 3 years and payment of fine of Rs. 1000/and in default thereof to further undergo rigorous imprisonment of three months under section
201 IPC.

265
2. The case of the prosecution as set out in the charge sheet can be summarised as under:"On 19.01.1999, at about 8 p.m. Rahul, son of PW-3 went to neighbourhood to watch Jagran. He
did not return. PW-3 tried to search his son but he could not trace him out. Ultimately, PW-3
lodged a report with the police on 20.01.1999 at about 12:45 p.m. was lying behind the bushes
near railway line and Mahamai Mandir. PW-3 went there and found the dead body of his child
lying there."
3. To prove its case, prosecution had in all examined 20 witnesses. After evidence of
prosecution, the accused was examined under Section 313 Cr. P.C., wherein he denied the
prosecution case and pleaded innocence. He specifically denied that Suresh Yadav (PW-3),
father of the deceased owed any money to him. He also denied that he stopped going to the
factory of Pankaj Jain since 19th January, 1999. In fact, he explained in his statement under
Section 313 Cr. P.C., that he attended the factory till the evening of 12th January, 1999. No
witness was however examined by the accused in his defence.
4. The charges were also framed against the other co-accused, Vijay Yadav, for the same offence,
however, the learned Trial Court found the evidence against him to be of frail character, not
inspiring any confidence and thus acquitted him after giving him benefit of doubt. As against the
present appellant, Surender Prashad, the learned Trial Court found the evidence of the
prosecution cogent and clinching, clearly manifesting his guilt in the commission of offences
punishable under Sections 363/364/302/201 of IPC.
5. Representing the case of the appellant, Mr. Sumeet Verma, Advocate laid challenge to the
finding arrived at by the learned Trial Court which as per the counsel, were totally perverse and
against the well settled principles of law.
6. Refuting the arguments of counsel for appellant, Mr. Sunil Sharma, Additional Public
Prosecutor for state, advanced his argument in support of the findings arrived at by the learned
Trial Court.
7. We have heard learned counsel for the parties at considerable length and given our thoughtful
consideration to the arguments advanced by them. We have also perused the record of this case
and closely scrutinised the evidence led by both the parties.

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8. In the present case a boy of 6 years of age had gone to participate in a jagran being held in the
neighbourhood on 19.01.1999 at 8:00 p.m. Suresh Yadav, PW-3, is the father of the deceased.
PW-3 returned back to his home at about 8:30 p.m. and when his son did not return back till
10:00 p.m., he came out of his house to search his son. However, after failing to find any clue
about the whereabouts of his child, he went to police station and lodged a complaint on the
following day, i.e., on 20th January 1999 at about 12.45 p.m. After two days of lodging the
complaint i.e. on 22nd January, 1999 he learnt about the death of his son from Mr. Raju (PW16), however by that time he had no clue as to who was behind the murder of his son. On
23.1.1999, it is Ajay (PW-1) who disclosed him and the police that before leaving for Ludhiana,
he had personally seen the accused holding the hand of deceased, Rahul and taking him away
from a shop, near the place of jagran. This information of PW-1 led to arrest of appellant,
Surender Prashad. The name of the other accused Vijay Yadav was disclosed by appellant in his
disclosure statement and on identification of PW-3 only, co-accused Vijay Yadav, was
apprehended by the police on 1st February 1999. One maroon color jersey belonging to the
deceased was recovered from the co-accused Vijay Yadav and this jersey was duly identified by
PW-3, to be the Jersey, which was worn by the deceased when he left for attending the jagran.
9. To drive home the guilt of the accused, the learned Trial Court gave due credence to the
testimony of Ajay (PW-1) who was an independent witness and has no grouse to falsely
implicate the present appellant. Learned Trial Court also found that his visit to Ludhiana and his
allegation that he saw the accused in the company of the deceased could not be shattered by the
defence during his cross-examination. Learned Trial Court further held that the mere fact that
Ajay (PW-1) was an employee of Suresh Yadav was not enough to discard the testimony of this
witness. Learned Trial Court further took a view that the accused, Surender Prashad had been
given ample opportunity to explain his position of being lastly seen in the company of the
deceased, but instead of giving any explanation, he took refuge under simplicitor denials.
Learned Trial Court thus held that silence on the part of the accused was pernicious and had
deleterious effect on his case. Learned Trial Court also found that the evidence of PW-7, had an
aura of dependability, as he was the employer of accused, Surender Prashad. There was no
reason for him to give any false evidence against the accused by deposing that accused never
attended his duties from 22nd January 1999. Learned Trial Court also found that the
prosecution succeeded in sufficiently proving the motive on the part of Surender Prashad to kill
the deceased, Rahul. The father of the deceased, PW-3 owed an amount of Rs. 2000/- to the

267
accused, Surender Prasad, which he was not returning and therefore the accused had a grouse
against PW-3 and in order to take revenge, he murdered the son of PW-3, Rahul.
10. It would be thus seen that the conviction of the appellant was based mainly on the last seen
evidence of Ajay (PW-1) supported by the absenteeism of the accused, Surender Prashad, from
his duty since 22nd January, 1999 and his motive to kill the child of PW-3 because of the
reluctance on the part of PW-3 to return back his money.
11. On the last seen evidence, the submission of Mr.Sumeet Verma, counsel for the appellant,
was that the evidence of last seen only, by itself is a weak piece of evidence and therefore it may
not be safe for the court to base the conviction of the accused on such an evidence solitarily,
unsupported by any other circumstantial evidence, unerringly pointing out to the guilt of the
accused totally inconsistent with his innocence. Counsel for the appellant further argued that
the last seen evidence must qualify two primary tests being test of proximity of time and test of
proximity of distance and in the present case, the prosecution blatantly failed on both the
counts. Contention raised by counsel for the appellant was that as per Ajay (PW-1) the accused
was seen in the company of thedeceased at 8.30 p.m. on 19th January, 1999 and as per the post
mortem report, which was conducted on 22.1.1999 at 1:15 p.m., the time of the death opined by
the doctor, PW-21, was 37 hours back which would mean that the death of the child, Rahul
might have taken place on 22.01.1999 at around 12:05 a.m.. Thus, there was a clear gap of
around 51 hours 45 minutes since the time when the deceased and the accused were last seen in
the company of each other by PW-1 and the time when the deceased was murdered by some
person. Similarly, the counsel for the appellant also pointed out that even the place of death was
far away from the place where the jagran was taking place, although this distance was not
proved by the prosecution on record. Learned counsel for the appellant also argued that the time
gap between the alleged incident and the last seen evidence was so wide that the possibility
cannot be ruled out that in between anybody could meet the deceased to accomplish his plans
and simply because the accused was seen in the company of the deceased, that too at a place
near jagran, where the deceased could have been seen in company of many other persons, it will
be hazardous to convict the accused on the basis of such a week piece of evidence.
12. Counsel for the appellant also laid strong attack on the version of Ajay (PW-1). The counsel
for the appellant contended that PW-1 left for Ludhiana on the evening of 20th January, 1999
and returned back on 23rd January, 1999. Contention raised by the counsel for the appellant

268
was that in his cross-examination, Ajay (PW-1) deposed that he left Ludhiana at about 3.30 a.m.
on 23rd January, 1999 and reached Delhi at 4.30 p.m., which would mean that it took him
nearly 13 hours from Ludhiana to reach Delhi, while distance from Ludhiana to Delhi can be
easily covered within maximum six hours.
13. Other contention raised by counsel for the appellant was that Ajay (PW-1) in his crossexamination, showed his ignorance with regard to the address of his brother with whom he
resides in Ludhiana. Counsel for the appellant also argued that the appellant had attended his
duty on 20 th and 21st January, 1999 as per the deposition of PW-7 and this testimony of PW-7
also goes in favour of the appellant as had the deceased been in the company of the appellant or
he would have been murdered at the hands of the appellant on 22.1.1999 at 12:05 a.m., then the
appellant would not have attended his duties on 20th and 21st January, 1999. Counsel for the
appellant also argued that 19th January, 1999 was a holiday and therefore the appellant did not
attend his duty that day and thus his absence on 19th January, 1999 cannot be taken as adverse
against him.
14. Counsel for the appellant also argued that it is a blind murder case and the appellant had
been unnecessarily roped in merely because of the failure of the police to solve the case. Counsel
for the appellant also argued that the appellant was arrested on 24th January, 1999 as per the
deposition of PW-3 but his arrest has been shown by the police on 30th January, 1999 so as to
make full proof case against the appellant in the meanwhile. Counsel for the appellant also
invited attention of this court to the statement made by PW-3 at three places where he referred
to the arrest of the appellant by the police on 24th January, 1999 at about 12.00 noon. Counsel
for the appellant also argued that the police did not prove the arrest memo of the accused,
Surender Prashad and this fact further substantiates the argument, that the accused was not
arrested on 30th January, 1999.
15. Counsel for the appellant also argued that there was no recovery of any kind effected at the
instance of the appellant. Counsel for the appellant also argued on motive, that the case of the
prosecution had no legs to stand, as for mere non return of such a paltry amount of Rs. 2000/-,
nobody can be expected to carry out the murder of child of the borrower.
16. Last seen evidence is one of the species of circumstantial evidence. Last seen evidence as per
Part III, Section 7 of the Indian Evidence Act, 1872, is relevant evidence against the accused. For

269
proving this evidence it is essential for the prosecution to prove two things, being that the
accused was seen alone in the company of the deceased and at a place where no other person is
expected to interfere. Once this is proved the burden of proof under section 106, Indian
Evidence Act, 1872, falls upon the accused to prove his innocence. It is pertinent to mention that
the first burden of proof is on the prosecution to prove the above said elements and it is only
after the prosecution successfully proves them that the burden shifts on the accused to prove his
defence.
17. Last seen evidence does not by itself necessarily leads to an inference that the accused
committed the crime unless the same is duly supported by other links in the chain of
circumstantial evidence unerringly pointing out the guilt of the accused. The theory of last seen
together evidence is thus held to be not of universal application based on which the conviction of
accused can be sustained. It shall also be noted that the last seen evidence is only a relevant
evidence to complete the chain of circumstantial evidence; however the conviction cannot be
solely based on this piece of evidence. Dealing with the principle of last seen evidence, the
Hon'ble Apex Court in very recent case of Rishi Pal V. State of Uttarakhand,reported in 2013 (2)
ACR 147, held as under:
"16. In Mohibur Rahman and Anr. v. State of Assam, (2002) 6 SCC 715, this Court held that the
circumstance of last seen does not by itself necessarily lead to the inference that it was the
accused who committed the crime. It depends upon the facts of each case. There may however
be cases where, on account of close proximity of place and time between the event of the accused
having been last seen with the deceased and the factum of death, a rational mind may be
persuaded to reach an irresistible conclusion that either the accused should explain how and in
what circumstances the victim suffered the death or should own the liability for the homicide.
Similarly in Arjun Marik and Ors. v. State of Bihar: 1994 Supp (2) SCC 372, this Court reiterated
that the solitary circumstance of the accused and victim being last seen will not complete the
chain of circumstances for the Court to record a finding that it is consistent only with the
hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be
founded. So also in Godabarish Mishra v. Kuntala Mishra and Anr. : (1996) 11 SCC 264, this
Court declared that the theory of last seen together is not of universal application and may not
always be sufficient to sustain a conviction unless supported by other links in the chain of
circumstances. In Bharat v. State of M.P. : (2003) 3 SCC 106; two circumstances on the basis
whereof the Appellant had been convicted were (i) the Appellant having been last seen with the

270
deceased and (ii) Recovery of ornaments made at his instance. This Court held: ... Mere nonexplanation cannot lead to the proof of guilt against the Appellant. The prosecution has to prove
its case against the Appellant beyond reasonable doubt The chain of circumstances, in our
opinion, is not complete so as to sustain the conviction of the Appellant....
20. Suffice it to say that even if we take the most charitable liberal view in favour of the
prosecution, all that we get is a suspicion against the Appellant and no more. The High Court
was in that view justified in setting aside the order passed by the trial Court and acquitting the
Appellant of the offence of murder under Section 302 Indian Penal Code. The order passed by
the High Court deserves to be affirmed giving to the Appellant the benefit of doubt. We
accordingly dismiss the appeal filed by the Appellant and discharge the notice of show-cause
issued to him."
18. It is also a settled legal position that where the time gap between the point of time when the
accused and deceased were last seen together and when the deceased was found dead is so small
that there can be no possibility of any person other than the accused, becomes impossible, the
court should look for some other corroboration taking such last seen evidence as an important
evidence in the whole chain of circumstantial evidence. However, where in a case there is a long
gap and possibility of any other person coming in between exists, the reliability itself on this
piece of evidence becomes difficult and before placing any reliance the court must satisfy itself
by other positive evidence to conclude that there was no possibility of any other person entering
into such a gap.
19. Applying the aforesaid legal principles to the facts of the present case, the position which
emerges is that the deceased child had gone to attend the jagran on 19.01.1997 at 8:00 p.m. and
at about 8.30 p.m. he was seen in the company of the accused, when the accused was holding his
hand near a shop, at the place of jagran. As per the post mortem report, death of the child had
taken place at 12:05 a.m. on 22.01.1999 and therefore, there was a clear gap of 51 hours and 45
minutes between the time when he was last seen in the company of the accused and the time of
his death. This time gap is too wide and therefore we are not persuaded to place much reliance
on this piece of evidence for conviction of the appellant.
20. We also cannot be oblivious to the fact that at the place where the jagran was taking place,
the presence of many people is quite usual and as per the prosecution case, the accused knew the
family of the deceased; and therefore it was not unusual for the accused to be seen in

271
the company of the child. There being a wide gap in the last seen evidence and the time of death
of the child, we need not attach much importance to the aspect whether Ajay (PW-1) had gone to
Ludhiana on 20th January, 1999 and returned back on 23rd January, 1999 or not. Although we
are surprised that the person who had gone to Ludhiana to reside with his brother would not
even know the address of his brother. The testimony of PW-7 employer of the appellant, rather
supported the case of the defence when he said that the appellant attended his duties on 20th
and 21st January, 1999. Certainly the absenteeism of the appellant on 20 th and 21st January,
1999 in the absence of any explanation could have gone against him.
21. On the aspect of motive also, we find no merit in the reasoning given by the learned Trial
Court that the appellant had carried out murder of the child of Suresh Yadav (PW-3) as he owed
a large amount to the accused and not returning of the same led to murder of his child. As per
his own deposition, PW-3 deposed that only an amount of Rs. 2,000/- was deposited by the
appellant with him and out of which he had returned Rs.800/- to him and the remaining
amount to his father. It is highly improbable, in the absence of any other strong reasons, to
believe that merely not retuning a paltry amount of Rs. 2000/- would result in the murder of
child of the borrower. There is no history of any quarrel between the accused and Suresh Yadav
or any police complaint with regard to not returning the money by Suresh Yadav or of any kind
of threats extended by the accused to Suresh Yadav or of demanding the said money, which
could have provoked the accused to commit such a criminal act. It is also not fathomable that
the accused instead of causing harm to the borrower would carry out murder of child of the
borrower. It is not the case of the prosecution that any ransom demand was raised by somebody
before carrying out murder of the child. The story of the prosecution is totally uninspiring and
not credible.
22. The present case is based on circumstantial evidence and as per the settled legal position in a
case based on circumstantial evidence, all the incriminating circumstances must be supported
by reliable and clinching evidence and the circumstances proved must form a chain of events so
complete as would permit no conclusion other than one of guilt of the accused.
23. The tests applicable to cases based on circumstantial evidence are fairly well-known. The
decisions of the Apex Court and various other High Courts recognizing and applying those tests
to varied fact situation are a legion. In the landmark judgment of Sharad Birdhichand Sarda

272
v. State of Maharashtra reported in 1984 (4) SCC 116, the Apex Court declared that a case based
on circumstantial evidence must satisfy, the following tests:
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully
established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They
should exclude every possible hypothesis except the one to be proved, and (5) There must be a
chain of evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability the
act must have been done by the accused."
24. In the present case, we find that the prosecution has blatantly failed to prove the offence
against the accused beyond reasonable doubt. Only on the basis of last seen evidence the
accused cannot be convicted for the offence of murder.
25. After taking all the facts and circumstances in consideration we donot find ourselves in
conformity with the findings arrived at by the Learned trial court. Accordingly, the appeal filed
by the appellant is allowed and the judgment dated 12.04.2001 convicting the appellant for
committing an offence punishable under Sections 302/363/364/201 Indian Penal Code Code,
1860 and and order on sentence dated 16.04.2001 are set aside. The appellant is on bail. His bail
bond is discharged.
26. Copy of this order be sent to the Jail Superintendent for information and necessary
compliance.
KAILASH GAMBHIR, J.
SUNITA GUPTA, J.
JANUARY 17, 2014 Pkb/v

273

Meenakshiammal (Dead) Through ... vs Chandrasekaran & Another


on 3 November, 2004
Author: Kapadia
Bench: Ashok Bhan, S.H. Kapadia
CASE NO.:
Appeal (civil)

1387 of 1999

PETITIONER:
Meenakshiammal (Dead) through LRs & Others

RESPONDENT:
Chandrasekaran & Another

DATE OF JUDGMENT: 03/11/2004

BENCH:
ASHOK BHAN & S.H. KAPADIA

JUDGMENT:

J U D G M E N T KAPADIA, J.
This civil appeal, by grant of special leave, is directed against a judgment and order
dated 20.11.1997 of a Single Judge of the Madras High Court allowing Second Appeal
No.1996 of 1982.
For the sake of convenience, the parties herein are referred to as they are arrayed in the
trial Court.
The brief facts giving rise to this appeal are as follows: One Velu Pillai had two wives.
The said Velu Pillai by his first wife had a daughter by name Kamakshi and a son by

274

name Sivaperumal (hereinafter referred to as "Siva"). The said Velu Pillai by his second
wife had a son by name Sadasivam and two daughters, Kaveri (spinster) and
Gnanambal. That, Kamakshi, the real sister of Siva, had three children, namely,
Meenakshi Ammal (plaintiff no.1), Arunachalam Pillai (plaintiff no.2) and Palani Velu
Pillai (plaintiff no.3). Appellants herein are the legal representatives of the said
plaintiffs.
Defendant no.1, Chandrasekaran (respondent no.1) is the son of Sadasivam whereas
defendant no.2, Vadivelu (respondent no.2) is the son of Gnanambal. They are the
children of the step brother and the step sister of Siva.
Siva died as bachelor on 6.11.1978. Siva and his step brother Sadasivam had jointly
executed a deed of settlement on 10.6.1956. Under the said settlement, the two brothers
settled some of their properties in favour of Kaveri and divided the rest of their
properties amongst themselves.
In the present matter, we are concerned with the separate properties of Siva (since
deceased).
Meenakshi, Arunachalam Pillai and Palani Velu Pillai, children of Kamakshi, instituted
title suit bearing O.S. No.247 of 1981 in the Court of District Munsif of Thiruthuraipundi
(hereinafter for the sake of brevity referred to as "the trial Court) for a declaration and
for recovery of possession of the suit properties of Siva alleging that they were the
children of his real sister and, consequently, were entitled to succeed to his properties;
that defendant nos.1 and 2 were the children of the step brother and the step sister of
the deceased and in the circumstances they, the plaintiffs, were entitled to succeed to
the properties of Siva, in preference to the defendants. According to the plaintiffs,
neither Sadasivam nor Gnanambal, much less than their children, were entitled to
succeed to the properties of late Siva.
In the written statement, the aforestated defendants denied that Siva died intestate.
That, Siva died on 6.11.1978 leaving behind the will dated 19.10.1978 (Ex.B/8). In the

275

written statement, it was submitted that at the time of his death, Siva was in sound
disposing state of mind. It was further alleged that Siva had devised all his properties
under the said will to be taken in equal share by the said two defendants. That, the said
defendants were put in possession and that they were cultivating the said lands since
then. It was alleged that the said Kamakshi and Siva were not on cordial terms; that she
never looked after her brother, Siva, who resided all along with his step sister Kaveri.
That, Palani Velu, plaintiff no.3 herein, had sued Siva, during his life time. In the
circumstances, it was urged that Siva disinherited the plaintiffs vide the aforestated will
(Ex.B/8), which was duly executed and attested in accordance with the provisions of
section 63 of the Succession Act, 1925.
On the above pleadings, five issues were framed by the trial Court. We are mainly
concerned with first two issues, namely, (1) Whether the will Ex.B/8 was true and
valid?; and (2) whether the will Ex.B/8 was acted upon?
In proof of the aforestated will, Ex.B/8, the defendants examined five witnesses
including the 2nd defendant (DW1) who deposed that the deceased, Siva, had asked the
defendants to fetch a scribe and the attesting witnesses as he wanted to execute the will
in their favour. Accordingly, they went and fetched the attesting witnesses and the
scribe. DW1 further deposed that Siva was 85 to 90 years old when he died on 6.11.1978
and that he died after 15 days from the date of execution of the said will. DW1 further
deposed that Siva was unable to walk freely as he had a fracture in his thigh and that he
was bed-ridden for a period of six months before his death. However, DW1 further
stated that Siva was hale and hearty in other respects and he was in sound disposing
state of mind. DW1 further deposed that he was attending on the deceased during his
treatment. DW1 further deposed that the plaintiffs resided in the village, Vettaikaran,
about 15 miles away from the suit village where Siva was living. DW1 further deposed
that Siva was looked after by Kaveri and Sadasivam and, therefore, the will, Ex.B/8, was
duly executed by Siva in favour of the defendants. DW1 denied that the deceased Siva
had become senile and that he was incapable of judging things for himself. DW1 denied
that Ex.B/8 was executed at the instance of the defendants and without the knowledge

276

of the deceased

testator who allegedly had lost all his mental faculties. DW2,

Vaithinathan, the scribe deposed that as requested by Siva, he was taken by DW1 to
Siva's residence, where in the presence of Siva and under his instructions, the will was
written and that too in the presence of the attesting witnesses. That in the presence of
DW2, Siva, had read the contents of the will before subscribing his signature thereon.
Further, in the present case, the defendants also examined the attesting witnesses, who
have deposed in proof of the execution of the said will. They have deposed that the
deceased Siva was in a sound disposing state of mind and he had executed the will on
his own.
In the light of the above evidence, vide judgment and decree dated 30.9.1981, passed by
the trial Court, it was held, that, the said will, Ex.B/8, was really and voluntarily
executed by Siva in favour of the defendants. The trial Court also found that the
defendants had taken possession of the properties bequeathed to them under Ex.B/8 in
pursuance of the said will. That the defendants were in possession and enjoyment of the
suit lands in their own right in pursuance of the said will. That the will was proved and
acted upon by the defendants and consequently, the plaintiffs were not entitled to the
relief of declaration and for recovery of possession. In view of the said findings, the suit
was dismissed.
Being aggrieved, the plaintiffs preferred an appeal bearing A.S. No.48 of 1982 in the
Sub-Court, Nagapattinam (hereinafter for the sake of brevity referred to as "the lower
appellate Court) which came to the conclusion, that, the defendants were instrumental
in execution of the will (Ex.B/8) inasmuch as DW1 had brought the attesting witnesses
to the house of Siva. That, although the will was dated 19.10.1978 and though Siva was
hale and hearty as alleged, no steps were taken to get the will registered till 6.11.1978
when the testator died. That, no cogent reason had been given for non- registration of
the will during the said period. That, no reason had been given as to why Siva had
excluded the children of his own sister, Kamakshi. That, the will is written by DW2 in
black ink whereas the signature of the testator is in a different ink and consequently
Ex.B/8 was forged. That, although Siva was undergoing treatment in the hospital,

277

Ex.B/8 was executed at his residence. That, there were contradictions in the evidence of
the witnesses. In the circumstances, it was held, that the will dated 19.10.1978 executed
by Siva was not proved. In the result, the appeal was allowed and the judgment and
decree of the trial Court was set aside.
Aggrieved, the respondents herein preferred Second Appeal No.1996/82 in the High
Court. In the said appeal, the High Court formulated the following substantial question
of law:
"Whether the Lower Appellate Court is right in law in holding that suit "Will" was
procured and forged one in spite of the fact that there was no pleading and no evidence
to that effect?"
Answering the above question, it was held by the High Court that in the plaint, there was
no challenge to the validity or genuineness of the will despite the fact that full
particulars of the will were supplied to the plaintiffs by the reply dated 26.1.1979. That,
the will was produced in the suit by the defendants who had proved the same. It has
been further held that the plaintiffs had not alleged forgery or undue influence in the
plaint and in the absence of such pleas, it was not open to the lower appellate Court to
hold that the will was procured or forged. The High Court examined the evidence and
came to the conclusion that the execution of the will by Siva was proved; that Siva was at
the time of execution of the will having sound disposing mind and in the circumstances,
the findings recorded by the lower appellate Court were perverse and not proper. In the
result, the appeal was allowed and the judgment and decree of the trial Court,
dismissing the suit, was restored. Hence, this civil appeal.
Mr. K.B. Sounder Rajan, learned advocate appearing on behalf of the appellants
submitted that the plaintiffs had instituted the suit for declaration and for recovery of
possession in which the defendants set up Ex.B/8. He submitted that although in the
plaint, forgery was not alleged, the lower appellate Court was right in returning the
finding of forgery as the defendants who relied on the will had failed to remove the
suspicious circumstances surrounding the will, including use of different ink between

278

the signature of Siva in Ex.B/8 and the contents thereof. In this connection, learned
advocate for the appellants submitted that the attesting witnesses were brought to the
house of Siva by the defendants. That, the defendants, who were the sole beneficiaries,
were instrumental in procuring the will. That, there was no reason for Siva to exclude
the plaintiffs. That, no reason has been given for not getting the will registered till
23.4.1980. That, Siva had become senile and was ailing at the time of the will. That, the
will was got made under undue influence. In the circumstances, it was urged, that, the
will is not proved to be genuine. It was urged that the High Court had erred in
interfering with the well reasoned judgment of the lower appellate Court.
We do not find any merit in this civil appeal. The onus of proving the will is on the
propounder and in the absence of suspicious circumstances surrounding the execution
of the will, proof of testamentary capacity and proof of the signature of the testator, as
required by law, is sufficient to discharge the onus. Where, however, there are
suspicious circumstances, the onus is on the propounder to explain them to the
satisfaction of the Court before it accepts the will as genuine. Even where the
circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the
Court. The suspicious circumstances may be regarding the genuineness of the signature
of the testator, the condition of the testator's mind, the disposition made in the will
being unnatural, improbable or unfair in the light of relevant circumstances, or there
might be other indications in the will to show that the testator's mind was not free. In
such a case, the Court would normally expect that all legitimate suspicions should be
completely removed before the document is accepted as the last will of the testator.
In the present case, the evidence on record indicates that Siva was a bachelor. His
relationship with his real sister Kamakshi was not cordial. The deceased used to live
with his step sister Kaveri. At the time of the execution of the will, Siva was 85 years old
and had suffered fracture. He was mentally alert. He was looked after by the defendants.
The plaintiffs were nowhere in sight during his hospitalization or his treatment. In the
circumstances, the defendants have proved the reason for exclusion of the plaintiffs
from the benefits under the will.

279

In the matter of execution of the will, the evidence of DW2 shows that DW1 had come to
fetch him at the behest of Siva. DW2 wrote the will under the instructions of Siva. Before
signing, Siva had read the will. The will was signed in the presence of the attesting
witnesses. The said witnesses had attested in presence of Siva. There is no evidence on
record to indicate that Siva had become senile. In this connection, it may be pointed out
that in October, 1978, Siva had alienated one of his several properties for consideration
which circumstance shows that he had a sound disposing mind and that there was no
substance in the allegation of the plaintiffs that the testator had become senile. As
rightly pointed out by the trial Court, it was the plaintiff's own case, while crossexamining DW1, that Siva was a prudent and wise man. Further, we are in agreement
with the view expressed by the trial Court that even in the cross- examination, there was
no suggestion put to DW1 that the signature on Ex.B/8 was not that of Siva. That, in the
cross-examination, no motive was suggested against DW2 to DW5 for supporting the
case of the defendants. Further, the evidence indicates that Siva was hale and hearty and
he was advised to get the will registered, which he refused, saying that he was in good
health and expected to live long.
In the case of Sm. Chinmoyee Saha v. Debendra Lal Saha & others reported in [AIR 1985
Calcutta 349], it has been held that if the propounder takes a prominent part in the
execution of the will, which confers a substantial benefit on him, the propounder is
required to remove the doubts by clear and satisfactory evidence. Once the propounder
proves that the will was signed by the testator, that he was at the relevant time in a
sound disposing state of mind, that he understood the nature and effect of the
disposition and put his signature out of his own free will, and that he signed it in
presence of the witnesses who attested it in his presence, the onus, which rests on the
propounder, is discharged and when allegation of undue influence, fraud or coercion is
made by the caveator, the onus is on the caveator to prove the same.
In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao & others reported in
[AIR 1962 AP 178] this Court while discussing the provisions of section 63 of the
Succession Act, 1925, has held that the suspicion alleged must be one inherent in the

280

transaction itself and not the doubt that may arise from conflict of testimony which
becomes apparent on an investigation of the transaction. That suspicious circumstances
cannot be defined precisely. They cannot be enumerated exhaustively. They must
depend upon the facts of each case. When a question arises as to whether a will is
genuine or forged, normally the fact that nothing can be said against the reasonable
nature of its provisions will be a strong and material element in favour of the
probabilities of the will. Whether a will has been executed by the testator in a sound and
disposing state of mind is purely a question of fact, which will have to be decided in each
case on the circumstances disclosed and the nature and quality of the evidence adduced.
When the will is alleged to have been executed under undue influence, the onus of
proving undue influence is upon the person making such allegation and mere presence
of motive and opportunity are not enough.
In the case of Madhukar D. Shende v. Tarabai Aba Shedage reported in [AIR 2002 SC
637], it has been held as follows: "8. The requirement of proof of a Will is the same as
any other document excepting that the evidence tendered in proof of a Will should
additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it,
that is, the facts and circumstances as emanating from the material available on record
of a given case, the Court either believes that the Will was duly executed by the testator
or considers the existence of such fact so probable that any prudent person ought, under
the circumstances of that particular case, to act upon the supposition that the Will was
duly executed by the testator, then the factum of execution of Will shall be said to have
been proved. The delicate structure of proof framed by a judicially trained mind cannot
stand on weak foundation nor survive any inherent defects therein but at the same time
ought not to be permitted to be demolished by wayward pelting of stones of suspicion
and supposition by wayfarers and waylayers. What was told by Baron Alderson to the
Jury in R v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent "The mind
was apt to take a pleasure in adapting circumstances to one another and even in
straining them a little, if need be, to force them to form parts of one connected hole; and
the more ingenuous the mind of the individual, the more likely was it, considering such

281

matters, to overreach and mislead itself, to supply some little link that is wanting, to
take for granted some fact consistent with its previous theories and necessary to render
them complete." The conscience of the Court has to be satisfied by the propounder of
Will adducing evidence so as to dispel any suspicions or unnatural circumstances
attaching to a Will provided that there is something unnatural or suspicious about the
Will. The law of evidence does not permit conjecture or suspicion having the place of
legal proof nor permit them to demolish a fact otherwise proved by legal and convincing
evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but
suspicion alone cannot form the foundation of a judicial verdict positive or negative.
9. It is well-settled that one who propounds a Will must establish the competence of the
testator to make the Will at the time when it was executed. The onus is discharged by
the propounder adducing prima facie evidence proving the competence of the testator
and execution of the Will in the manner contemplated by law. The contestant opposing
the Will may bring material on record meeting such prima facie case in which event the
onus would shift back on the propounder to satisfy the Court affirmatively that the
testator did know well the contents of the Will and in sound disposing capacity executed
the same. The factors, such as the will being a natural one or being registered or
executed in such circumstances and ambience, as would leave no room for suspicion,
assume significance. If there is nothing unnatural about the transaction and the
evidence adduced satisfies the requirement of proving a will, the court would not return
a finding of 'not proved' merely on account of certain assumed suspicion or supposition.
Who are the persons propounding and supporting a will as against the person disputing
the will and the pleadings of the parties would be relevant and of significance."
In the present case, the propounders of the will have proved that the will was signed by
Siva; that at the time of execution of the will, he had a sound disposing state of mind;
and that he had reasons to exclude the plaintiffs who did not care for him in his old age.
Lastly, as stated above, the onus to prove forgery, undue influence or collusion was on
the plaintiffs who have alleged that Ex.B/8 was forged. In the absence of such a plea, the
lower appellate Court had erred in holding that the will was forged. We are satisfied on

282

examination of the evidence that execution, attestation and genuineness of the will has
been proved as held by the impugned judgment and in the circumstances, we find no
merit in this appeal.
In the result, the appeal fails and is dismissed, with no order as to costs.

283

Daniel Hailey Walcott And Anr. vs State on 2 August, 1967


Equivalent citations: AIR 1968 Mad 349, 1968 CriLJ 1282, (1968) 1 MLJ 229
Bench: K Reddy
JUDGMENT (1) The appellants in both these appeals, Daniel Hailey Walcott and Jean
Claude Donze were separately tried on various charges by the Sessions Judge, Madras. I
propose to deal with these appeals in this judgment; but separately, as the points raised
in both the appeals are the same though the facts are slightly different.
(2) C. A. 810 of 1966. The appellant Daniel Hailey Walcott was charged under ten
counts, of which he was convicted on counts Nos. 1 and 3 to 10 and was sentenced to
various terms of imprisonment, the maximum being R. I., for five years, the sentence to
run concurrently by Sessions Judge, Madras.
(3) The facts of the case which are almost admitted are briefly as follows; the appellant
is a national of the United States of America. He landed at Meenambakkam Aerodrome,
Madras, at about 6-30 P. M. on 31-12-1965 from Air Ceylon Flight A. E. 207 from
Colombo with the British passport in the name of one B. P. C. Comyn, a British subject.
It appears that he had visited this country on prior occasions. A brief history of those
visits may be necessary to be noted for appreciating one of the charges under which he
had been convicted.
(4) On 15-1-1962, the appellant landed at Santa Cruz Aerodrome, Bombay, with a
passport describing himself as Daniel Bailey Walcott a United States National. On 23-11962, he left for London. It appears, during that visit, before he left the country he
represented to the officials of Air India, New Delhi, that he was the President of the
Trans Atlantic Airlines Ltd. and in that capacity negotiated with them in respect of
charter flights for transport of goods between India and Afghanistan, and subsequently
an agreement was entered into between the appellant describing himself as Daniel
Hailey Walcott and Air India in relation to charter flights. In pursuance of the
agreement the appellant employed on Shri Nurcharan (P. W. 10) as an aircraft mechanic
between February and September 1962.

284

(5) The appellant came back to India and landed at Palam Airport, New Delhi, on 8-31962, describing himself as Daniel Hailey Walcott, Jr. with a residential permit valid till
25-4-1962. From 13-4-1962, for about 5 or 6 months, the appellant stayed with his wife
in the Ashoka Hotal, New Delhi, registering himself as Daniel Hailey Walcott, a United
States National. While he was staying in Ashoka Hotal, the Delhi Police registered a case
against him under the Indian Arms Act and filed charge-sheet before the Sub Divisional
Magistrate, New Delhi, In connection with that case, the appellant was detained in the
Central Jail, New Delhi, from 25-9-1962 to 1-12-1962. He was subsequently released on
bail and he left India. The Assistant Collector of Customs, New Delhi, filed a complaint
on 22-2-1963 against the appellant under the Sea Customs Act, and the Import and
Export Control Act of 1947. On 24-2-1963, the appellant landed at the Palam Airport
and left India on 2-3-1963 and he returned in April to New Delhi. The appellant was
convicted by the Sub Divisional Magistrate, New Delhi, on the complaint given by the
Assistant Collector of Customs and sentenced to R. I., for six months and to pay a fine of
Rs. 2000. He was detained in the Central Jail from 23-8-1963 till 11-9-1963 when he
was released by the order of the appellate Court which reduced the sentence to the
period already undergone and increased the fine amount. On 23-9-1963, he left New
Delhi. After he left, it appears that the Delhi Police registered another complaint against
him and obtained a non-bailable warrant to arrest the appellant. As the appellant
absconded from this country, a proclamation was issued on 20-10-1964 declaring the
appellant as a proclaimed offender. Another case was subsequently registered under the
provision of the Foreigner's Registration Act and the Defence of India Act suspecting the
appellant as one of the aliens who entered this country by using a forged passport. A
warrant was issued by the Additional Chief Presidency Magistrate, Bombay on 19-31965 to arrest the appellant in England and produce him before the Sub Divisional
Magistrate, New Delhi. Of course, the appellant denied knowledge of the two cases
registered against him.
(6) In this state of affairs, the appellant landed at Meenambakkam Air port on 31-121965 with the British passport in the name of Barry Philip Charles Comyn as already
noted. After landing, the appellant produced at the Health counter a declaration form of

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origin and health standing in the name of one B.P.C. Comyn, a British subject. At the
Passport Security counter, the appellant producer before P. W. 23, the Sub Inspector of
Police, attached to the Port Registration office, a British passport, Ex. P-40, and a
disembarkation card Ex. P-56, both standing in the name of B. P. C. Comyn. After
passing the passport security counter, the appellant proceeded to the Customs counter
and produced before the Customs officer the passport and represented that he was a
tourist. The officials passed him out as they believed that he was a tourist holding a
British passport.
(7) The appellant went to Oceanic Hotal, Madras, with another foreigner at about 8-45
P. M. the same day and obtained accommodation describing himself as B. P. C. Comyn,
a British National, Engineer by profession, permanently residing at No. 14-A
Malborough Place, London, and having a passport bearing No. 991143. This description
was given in Ex. P-77, the Arrival register by the appellant in his own handwriting. On
the next day, the appellant and his companion left the hotel for Bombay. Whilst he was
staying in the West End Hotel, Bombay, along with his companion, he was arrested by
D.H. Crawford, Deputy Superintendent of Police, Central Bureau of Investigation on
suspicion that he might be Walcott, wanted in two cases. His finger prints were taken
and they were compared with the finger printslip of Daniel Hailey Walcott which was
taken by the Delhi police in connection with the earlier conviction and kept at the police
office in Delhi. On a comparison of the finger printslip and the finger prints taken from
the appellant in Bombay by the Finger Print Expert, it was found that they tallied. The
passport Ex. P-40 was seized from the appellant at Bombay. As it was found that he was
in possession of passport in the name of B. P. C. Comyn, the police suspected that he
had come to this country with a forged passport in order to avoid the detection of his
identity as Daniel Hailey Welcott. What happened subsequently in the course of the
investigation is not material for the purpose of this case excepting that he made a
judicial confession in the course of the investigation before the Presidency Magistrate of
Greater Bombay which would be adverted to later in dealing with his confession.

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(8) The prosecution claimed that the British passport Ex. P-40 produced by the
appellant was a forged one, that the appellant was not a British subject and his name
was not B. P. C. Comyn, and that he used the forged passport fraudulently knowing that
it was a forged document.
(9) I propose to deal with charge No. 10 first which is the main charge, the other charges
being either allied or subsidiary. This charge deals with the appellant having used forged
document, a valuable security fraudulently knowing it to be false to gain entry to this
country. In respect of this charge, the following facts were proved.
(10) On 19-11-1965, an application dated 17-11-1965 with a passport photograph of the
appellant annexed thereto was received at the passport office, London, praying for the
issue of a passport to Barry Philip Charles Comyn, an Engineer born in England on 286-1934. It was attested by Harry F Johnson 14 John Street, London W. C. 1. In
pursuance of that, a British passport Ex. P-40 was issued to the said Comyn on 22-111965. It was found that a man bearing the name Barry Philip Charles Comyn. an
Engineer, was not residing in the address given in the application but a man bearing
that name who was born in London on 28-6-1934 died in 1940 when he was six years
old, during war operations. It was also found that no solicitor by name Harry F. Johnson
lives in the address given in the application.
(11) The appellant admitted that his name is Daniel Haily Walcott and that he is a
national of United States of America. He landed in India in January 1962, as an America
national under the name of Daniel Hailey Walcott and even during his subsequent visits
to India. he came in the name Daniel Hailey Walcott. He also admitted that he landed at
Meenambakkam Airport on 31-12-1965 with the British passport Ex. P-40 and produced
it before the officials and that he entered his name in the register maintained in the
Oceanic Hotel as B. P. C. Comyn, a British subject. He added that the passport was
arranged through a professional expert forger in London. The appellant contacted the
forger who suggested that a passport could be had in the name of Barry Philips Charles
Comyn and on his advice a paper containing the signature of Barry Philips Charles

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Comyn written by the appellant in his own handwriting was given and the forger
subsequently obtained the passport and gave it to him. That the appellant obtained the
British passport in the name of B. P. C. Comyn is not disputed and that he used the
passport for entering into this country is also not disputed. In the context, it is necessary
to consider the judicial confession made by the appellant, the relevant portion of which
is as follows:-"I am Daniel Hailey Walcott American National aged 38. I was born at Dalhart, Texas,
U. S. A., on 26-11-1927. I was educated in the University of Virginia in U.S.A., from
which I hold Bachelor of Science degree. I believe it is necessary for me to make a
statement at this time of the events leading to the commission of the following acts. We
flew to Colombo, Ceylon from Paris and took the Ceylon Airways to Madras arriving on
31-12-1965 evening. I was using a false British passport under the name of Barry Philip
Charles Comyn and Mr. Donze was using false British passport udner the name of
Stephen Thomas Lamb. These passports were obtained from the Foreign Office,
London, by making an application with the birth certificate of a deceased person, using
our photographs. We flew immediately to Bombay after spending the night in Madras
and......" The appellant had retracted from the judicial confession and stated that he
gave the confession under threat, pressure and coercion. The learned counsel appearing
for the appellant contended that he was kept for a long time in the custody of the police
and that in those circumstances, it should be presumed that the confession must have
been give only under pressure. I do not think there is substance in this contention. The
appellant appears to be an intelligent and experienced man. He must have known the
consequences of giving a judicial confession even under threat. Sufficient warnings were
given by the magistrate, who recorded the confession that if the appellant chose to give
the confession that if the appellant chose to give the confession, it would be used against
him. The appellant has given a lengthy confessional statement in respect of matters not
relevant to this case. A perusal of the confessional statement gives an impression that it
is not only true but also voluntary. Besides this, it is very significant to note that in an
affidavit filed by the appellant for a writ of habeas corpus he stated that he might be
permitted to make a confessional statement in the presence of a Magistrate. In the

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committal Court he admitted that he made the judicial confession. It was only in the
Sessions Court he retracted. For all the reasons mentioned above. I am convinced that
the judicial confession made by the appellant was voluntary and true.
(12) From the facts stated above, it is clear that the appellant landed at Meenambakkam
aerodrome on 31-12-1965 with the British passport in the name of B. P. C. Comyn, that
he obtained a passport in the name of Comyn with the help of a forger, that the
signature of Comyn in the application attached to the passport was in the handwriting of
the appellant, that the passport used by him in gaining entry into this country is a false
document and that the appellant was known at all material times as Daniel Hailey
Walcott.
(13) The learned counsel appearing for the appellant contended that even assuming the
facts to be true, it is not proved by the prosecution that the passport is a forged
document as defined in Section 463, I. P. C., and that the appellant used the document
fraudulently knowing it to be forged. To appreciate the contentions of the learned
counsel in respect of this charge, it may be necessary to note the relevant sections of the
Indian Penal Code "Forgery" as defined in Sec. 463, I.P.C., is as follows:-"Whoever makes any false document or part of a document with intent to cause damage
or injury...........or with intent to commit fraud or that fraud may be committed, commits
forgery".
Making a false document is defined in S. 464 I. P. C., which runs as follows:-"A person is said to make a false document-first-who dishonestly or fraudulently makes,
signs, seals or executes a document or part of a document, or makes any mark denoting
the execution of a document, with the intention of causing it to be believed that such
document or part of a document was made, signed, sealed or executed by or by the
authority of a person by whom or by whose authority he knows that it was not made,
signed, sealed or executed, or at a time at which he knows that it was not made, signed,
sealed or executed.

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The other two provisions of the section are omitted as they are not relevant for the
purpose of the discussion in the case. "Forged document" is defined under Sec. 470 I. P.
C. A false document made wholly or in part by forgery is designated 'a forged document'.
The requirements to constitute the offence of forgery may be broadly stated as follows;
(1) The document or the part of the document must be false in fact; (2) It must have
been made dishonestly or fraudulently within the meaning of the words as used in Sec.
464 I. P. C. and (3) It must have been made with one of the intents specified under
Section 463 I. P. C.
(14) It is contended that the passport Ex. P-40 was issued by the competent authority
and the document cannot be said to be forged though the particulars contained in page 2
of the passport (Ex. P-40-a) under the false signature of B. P. C. Comyn may be false and
it is further contended that those particulars cannot be said to be a part of the
document. Hence, it becomes necessary to consider whether the particulars contained in
page 2 of Ex. P-40 constitute a part of the document. It appears that in the United
Kingdom, to obtain a passport, the applicant must submit what is called a 'person,
description slip' along with the application showing particulars relating to his
profession, place and date of birth, country of residence, height, colour of hair and eyes
and any other special mark and has to be signed by the applicant and this will be pasted
to page 2 of the passport. This slip after it is pasted to the passport, undoubtedly
becomes a part of the document, without which the passport cannot be recognised by
the authorities writing the particulars themselves, the slip prepared by the applicant is
placed in the passport as part and parcel thereof. The learned counsel had to concede
that Ex. P-40(a), namely, page 2 of the passport might be a part of the document, but
contends it was not made with intent to commit fraud or that fraud might be committed.
It is true that if a document is merely false, it is not enough to bring it under the offence
of forgery. The main element is, the false document must have been made with a
fraudulent intention. There cannot be any doubt that the part of the document, viz., p. 2
in the passport is false. But the question is whether it was made with fraudulent
intention. "Fraudulently" is defined in S. 25 of the I.P.C. It says that "a person is said to
do a thing fraudulently if he does that thing with intent to defraud but not otherwise".

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This definition does not give much help as it is used tataulogically. The word 'fraud' or
'fraudulently' must be understood in the general and popular sense. It involves two
elements namely, (1) deceit, and (2) injury caused or likely to be caused to the person
deceived or someone else in consequence of the deception. If a person by deceiving
another derives any advantage from it, which he could not have had, if the truth had
been known, and thereby causes injury to the body, mind or reputation of the deceived,
he commits fraud. In all case where an advantage has been obtained by the deceiver,
there will be invariably an equivalent disadvantage in loss or risk of loss to the deceived
or to someone else.
(15) In Dr. Vimla v. Delhi Administration , the case-law on this subject was fully
discussed and the principle has been laid down in the following terms:-"The expression 'defraud' involves two elements, namely, deceit and injury to the person
deceived. Injury is something other than economic loss, i.e., deprivation of property,
whether movable or immovable, or of money, and it will include any harm whatever
caused to any person in body, mind, reputation or such others. In short, it is noneconomic or non-pecuniary loss. A benefit or advantage to the deceiver will almost
always cause loss or detriment to the deceived. Even in those rare cases where there is
any benefit or advantage to the deceiver, but no corresponding loss to the deceived, the
second condition is satisfied......... Non-economic advantage to the deceiver or noneconomic loss to the deceived need not co-exist."
(16) Sir James Stephen in his "History of the Criminal Law of England" Vol. II, p. 121,
observes-which has been quoted in Kotamraju Venkatarayadu v. Emperor, (1905) ILR
28 Mad 90 at p. 96, the Full bench decisions of this Court, subsequently followed and
approved by the Supreme Court in -"Whatever the words 'fraud' or 'intent to defraud' or 'fraudulently' occur in the definition
of a crime, two elements of the crime; namely, first, deceit or an intention to deceive, or
in some cases, merely secrecy; and secondly, either actual injury, or possible injury, or
an intent to expose some person either to actual injury or to a risk of possible injury by

291

means of that deceit or secrecy." "This intent", he adds, "is very seldom the only, or the
principal, intention entertained by the fraudulent person, whose principal objet in
nearly every case in his own advantage...... A practically conclusive test of the fraudulent
character of a deception for criminal purposes is this: Did the author of the deceit derive
any advantage from it which could not have been had if the truth had been known? If so,
it is hardly possible that the advantage should not have had an equivalent in loss of risks
of loss to someone else, and if so, there was fraud".
(17) It is, therefore, clear that the person who deceives another and derives benefit or
advantage, possibly causing injury to the deceived in body, mind or reputation and such
others commits fraud and that even if no corresponding loss or disadvantage to the
deceived is established, it could be inferred that if one gets benefit or advantage,
someone will incur loss or disadvantage to some extent. Applying this principle in the
present case, there cannot be any doubt that Ex. P-40(a), p. 2 of the passport, a part of
the passport is a false document made, in order that fraud might be committed. The
maker must have known that what was made was false and that he intended that the
authorities concerned could be deceived by making such authorities believe the
document to be true when it was false and allow the holder of the document to enter the
country to which he was bound by virtue of the passport. The appellant admitted in his
statement under S. 342, Crl. P.C., that it was he who put the signature of Comyn in Ex.
P-40(a), a part of the passport. I, therefore, find that a part of the passport, namely,
page 2 of Ex. P-40 is a forged document.
(18) It was contended, however, by the learned counsel for the appellant, that at the
worst it could be said that the appellant furnished false particulars in the application
and forged the signature of one Comyn in that application; but it cannot be said the
appellant made the part of the passport. I do not think there is any substance in this
contention. It is not the application that is the subject-matter of this case, but the
passport. To put it short, page 2 of the passport is made by the appellant and the
signature of B. P. C. Comyn therein as admittedly forged.

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(19) The appellant has been convicted for having used the forged documents
fraudulently. He admitted that he was in possession of the forged British passport Ex. P40 when he landed at Meenambakkam airport. He produced the passport to the
authorities concerned. By producing the forged passport, he made the authorities
believe that it was genuine and thereby deceived and obtained the advantage of gaining
entry into this country. The appellant by deception had caused injury to mind and
reputation of the offices concerned, in that if the officers had known that it was a forged
document, at the time he produced, they would not have allowed the appellant to enter
and to that extent, a detriment was caused. There is no doubt that the appellant
fraudulently used Ex. P-40 the passport as genuine which he knew was a forged
document.
(20) The next important question to be considered is, whether Ex. P-40 the passport is a
valuable security since the appellant was convicted under Section 471 read with Section
467, I. P. C. Section 467, I. P. C. is a penal section in respect of forgery of valuable
security. Elaborate arguments were advanced by the learned counsel appearing on both
sides, and, therefore, it may be necessary to deal with this point with due consideration.
"Valuable security" is defined in S. 30 of the Indian Penal Code:
"The words 'valuable security' denote a document which is, or purports to be, a
document whereby any legal right is created, extended, transferred, restricted,
extinguished or released, or whereby any person acknowledges that he lies under legal
liability, or has not a certain legal right."
In view of this definition, we are now concerned in this case whether the passport
created a legal right. We have to first consider what a legal right is before dealing with
the nature of the passport and whether it creates a legal right.
(21) Legal right is a difficult concept. It is not defined. It is, therefore, necessary to note
carefully what the eminent jurists have said about this concept of legal right. Roscoe
Pound in his Jurisprudence (Vol. IV, Chap. 21, p. 70) stated as follows-:-

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"..................by the end of the last century a legal right had come to be defined as a
secured interest, or as a capacity of asserting a secured interest, or as a claim that could
be asserted in the Courts."
Roscoe Pound prefers to follow the English analytical jurists and thinks of legal right lies
in the capacity of assertion rather than of an assertable claim. In the same page, it is
stated:
"The capacities of asserting it (legal right) before Courts and administrative agencies by
which the interest is given efficacy are some At pp. 70 and 71, it is stated:
"The capacities of creating, divesting and altering legal rights in the stricter sense or of
creating liabilities, as means of securing recognised interests (legal powers) are some
conferred and some recognised............The exemption on certain occasions from liability
for what would otherwise be infringements of legal rights, are sometimes conferred, as
in case of emergency privileges.....in all of these juristic conceptions through which
recognised and delimited interests are secured, there is a capacity of asserting them
before Courts and administrative agencies."
At pp. 74 and 75, Roscoe Pound again says:
"I should put the juristic conceptions by which legally recognised and delimited interests
are secured as legal rights (in the stricter sense), powers, liberties, privileges, duties and
liabilities."
Salmond on Jurisprudence (12th Edn. at p. 224) states that a legal right in the generic
sense may be defined as any advantage or benefit conferred upon a person by a rule of
law. Again at p. 233, under the headnote "The kinds of legal rights", it is stated:
"A perfect right is one which corresponds to a perfect duty; and a perfect duty is one
which is not merely recognised by the law, but enforced...............In all ordinary cases, if
the law will recognise a right at all, it will enforce it. In all fully developed legal system,

294

however, there are rights and duties which, though undoubtedly recognised by the law,
yet fall short of this typical and perfect form............Examples of such imperfect legal
rights are............claims against foreign states or sovereigns, as for instance due on
foreign bonds.................No action will lie for their maintenance; yet they are, for all that
legal rights and legal duties, for they receive recognition from the law."
W. Panton in his Text-book of Jurisprudence, 3rd Edn. at p. 250 states as follows:-"..............The characteristics mark of a legal right is its recognition by a legal
system................ Enforceability by legal process has, therefore, sometimes been said to
be the sine qua non of a legal right............There are certain rights sometimes called
imperfect rights, which the law recognises but will not enforce directly."
At p. 251, he again says:
".........................in some systems Courts of justice do not control an adequate machinery
for enforcement. Thus in international law there is no power in the Court to enforce its
decree. Hence, ultimately, the answer to the question whether the essence of a legal
right lies in its enforceability will depend on our definition of law. Dicey distinguished
between constitutional conventions and laws, the test of the latter being that they will be
enforced by the Courts, whereas the conventions will not. Many constitutional lawyers
point out, however, that if we apply rigorously the test of enforcement in a Court of law,
we are left with too narrow a view of constitutional law......................Because of the
difficulties which sometimes arise in the enforcement of particular rights, it is better to
define a legal right in terms of recognition and protection by the legal order. This does
not unduly narrow the meaning of legal right. Thus an international Court would
recognise any rights granted by international law and would protect them so far as it
cold, even although there was no machinery for direct enforcement. The element of
enforceability is important in questions of jurisdiction and private international law."
From the statements made by the jurists noted above, the following principles can be
deduced broadly to understand what a 'legal right' is: (1) Legal right in its strict sense is

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one which is an assertable claim, enforceable before Courts and administrative agencies;
(2) In its wider sense, a legal right has to be understood as any advantage or benefit
conferred upon a person by a rule of law; (3) There are legal rights which are not
enforceable, though recognised by the law; (4) There are rights recognised by the
International Court, granted by international law; but not enforceable; and (5) A legal
right is a capacity of asserting a secured interest rather than a claim that could be
asserted in the Courts.
(22) It is, therefore, clear that the test of enforceability, though it may be a normal one,
is not the only test for determining a legal right. A legal right may be one recognised by
rule of law, either by Municipal law or International law, without the capacity of being
enforced. A legal right may be asserted even before administrative agencies. It includes
the liberty of freedom from penalty. In short, it can be said that a legal right is one which
is either enforceable or recognised.
(23) Bearing these principles in mind, we have to consider whether the British passport
Ex. P-40 obtained by the appellant created any legal right to bring it within the
definition of 'valuable security' under Sec. 30, I.P.C. It is necessary to know the
implication of a passport.
(24) A British passport is described as follows by Lord Alverstone C. J. in Reg v.
Brailsford, 1905-2 KB 730, at p. 745, which is oft-quoted:
"It is a document issued in the name of the Sovereign on the responsibility of Minister of
the Crown to a named individual, intended to be presented to the Governments of
foreign nations and to be used for that individual's protection as a British subject in
foreign countries." A British passport as Indian passport by its terms requests and
requires all those whom it may concern to allow the bearer to pass freely without let or
hindrance and to afford him every assistance and protection of which he may stand in
need.

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(25) Lord Jowitt L. C. in Joyce v. Director of Public Prosecutions, 1946 AC 347 at p. 369,
in his illustrious speech in respect of the characteristics of a British passport, observed
as follows:-"..........................the possession of a passport by one who is not a British subject give
shim rights and imposes upon the Sovereign obligations which would otherwise not be
given or imposed".
At p. 370, he says:
"To me, my Lords, is appears that the Crown in issuing a passport is assuming an
onerous burden, and the holder of the passport is acquiring substantial privileges. A
well-known writer on International Law has said (see Oppenheim's International Law,
5th Edn., Vol. I, p. 546) that by a universally recognised customary rule of the law or
nationals every state holds the right of protection over its citizens abroad. This rule thus
recognised may be asserted by the holder of a passport which is for him the outward title
of his rights. It is true that the measure in which the state will exercise its right lies in its
discretion. But with the issue of the passport the first step is taken. Armed with that
document the holder may demand from the State's representatives abroad and from the
officials of foreign Government that he be treated as a British subject, and even in the
territory of a hostile state may claim the intervention of the protecting power."
(26) It is, therefore, clear from this speech with which I respectfully agree that the
holder of the passport acquires substantial privileges and that it gives him a capacity to
assert--a rule recognised--for the outward title of his rights. He can also demand from
the officials of foreign Governments that he be treated as citizen of that country which
issued the passport. This right has been recognised by the law of nations and has
become a rule of law.
(27) Apart from this, in this country a law has been made, taking power to require
passports of persons entering India. Indian Passports Act (34) was passed in 1920.
Section 30 of the said Act provides to make rules prohibiting entry into India, of any

297

person who has not in his possession a passport issued to him. In exercise of the powers
conferred under S. 30 of the said Act, the Central Government made rules. Under Rule
3, therefore, no person proceeding from any place outside India shall enter, or attempt
to enter, India by water, land or air unless he is in possession of a valid passport
conforming to the conditions prescribed in Rule 5 thereof. Under S. 4 of the said Act,
any person who contravenes the rules made in S. 3 can be arrested and under Rule 6 of
the rules, such a person can be punished with imprisonment for a term which may
extend to three months or with fine or with both. Under S. 5 of the Act, the Central
Government is authorised by general or special order to direct the removal of any such
person from India.
(28) These provisions make it abundantly clear that possession of a passport is a
necessary requisite for a person leaving India.
(29) But, however, the main question involved in this case is as to the nature and the
characteristics of a passport issued by a foreign country to its national to enter this
country. It is, therefore, necessary to note the relevant provisions of the Indian Passport
Act and the rules framed thereunder.
"Passport is defined under S. 2 of the Act, as one for the time being in force issued or
renewed by the prescribed authority and satisfying the conditions prescribed relating to
the class of passports to which it belongs. The conditions of a valid passport are
mentioned in Rule 5 of the rules of which the main condition is that it shall have been
issued or renewed by or on behalf of the Government of the country of which the person
to whom it relates is a national and shall be within the period of its validity. Rule 3 of the
rules which is very important for the discussion herein is as follows:-"Save as provided in Rule 4, no person proceeding from any place outside India shall
enter, or attempt to enter, India by water, land or air:--(a) unless he is in possession of a
valid passport conforming to the conditions prescribed in Rule 5, and................"
(30) Under Rule 4, certain classes of persons are exempted from the provisions of R. 3.

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(31) The Indian Passport Act with the rules framed thereunder, therefore, recognises the
right of a foreigner holding a valid passport to enter into this country. When such right
is recognised, there is correspondingly the duty of the authorities exercising the powers
under this Act to allow a person holding a valid passport to enter this country unless
otherwise such person is disqualified in the view of the authorities. Thus, in my opinion,
the right which is recognised under the provisions of the Indian Passport Act is a legal
right.
(32) The learned counsel for the appellant strenuously argued that a passport does not
create an enforceable legal right as only a request is made to the foreign countries by the
country which issues the passport to its national to permit him to travel without let or
hindrance and to give him necessary protection. This, the counsel says, is by virtue of
international convention and does not have the force of rule of law. The learned counsel
in support of his convention and does not have the force of rule of law. The learned
counsel in support of his contention relied upon a passage in the British Digest of
International Law published by Stevens and Sons, Phase I, Vol. 6 at p. 9, which is as
follows:-"An alien, it has been judicially stated by the Privy Council in Musgrove v. Chung
Teeong Toy, 1891 AC 272, has in English law no enforceable right to enter British
territory. This principle is quite independent of any general legislation in force whereby
the entry of aliens is regulated."
(33) This passage is not at all helpful, in my opinion, to support the contention of the
learned counsel. The second sentence in the passage makes it clear that the principle
mentioned in the first sentence does not apply in cases where a law is made regulating
the entry of aliens. We have in this country a law made (Indian Passports Act, 1920)
regulating the entry of persons into India and also the Foreigners Act (Act 31 of 1946),
which, I will advert to presently, which provides for the exercise of powers by the
Central Government in respect of the entry of foreigners into India, their presence

299

therein and their departure therefrom. Thus, we have legislation in force in this country
in respect of the entry of foreigners into India.
(34) The principle quoted in the above passage is based upon the decision in 1891 AC
272. To appreciate this principle, it is necessary to know under what circumstances the
principle was laid down and whether this principle is absolute and unconditional. The
facts in that case are these.
(35) The plaintiff Chum Teeong Toy, a Chinese national, was refused entry on his arrival
in the port of Melbourne by a British ship. The plaintiff contended that he and the
master of the vessel offered to pay 10 pounds to the Collector of Customs as provided by
S. 3 of the Chinese Act of 1881. But the Collector of Customs refused to receive the said
10 pounds and to allow the plaintiff to land in Victoria. It appears, by S. 2 of the Chinese
Act, 1881, if any vessel which ha don board a greater number of immigrants than in the
proportion of one such immigrant to every hundred tons of the tonnage of such vessel,
the owner, master, or character of such vessel should be liable to a penalty of 100
pounds

for

each

immigrant

so

carried

in

excess

of

the

fore

going

limitation...................By Section 3 of the same Act it was provided that nay immigrant
arriving from parts beyond Victoria shall be permitted to land from any vessel at any
port or place in Victoria, provided the master of the vessel shall pay to the Collector the
sum of 10 pounds for every such immigrant. When the vessel arrived at Melbourne, she
carried more than the number limited by S. 2 of the Chinese Act which was unlawful.
The question, therefore, arose for decision whether the Colonial Government had the
power to prevent the plaintiff, a Chinese immigrant from landing on the shores of the
colony under the circumstances of the case and whether an action is maintainable by
him in British Courts. In answering this question, it is observed at p. 282 thus:
"...............their Lordships would observe that the facts appearing on the record raise,
quite apart from the statutes referred to, a grave question as to the plaintiff's right to
maintain the action. He can only do so if he can establish that an alien has a legal right,
enforceable by action, to enter British territory. No authority exists for the proposition

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that an alien has any such right. Circumstances may occur in which the refusal to permit
an alien to land might be such an interference with international comity as would
properly give rise to diplomatic remonstrance from the country of which he was a native,
but it is quite another thing to assert that an alien excluded from any part of Her
Majesty's dominions by the executive Government there, can maintain an action in a
British Court, and raise such questions as were argued before their Lordships on the
present appeal--whether the proper officer for giving or refusing access tot he country
has been duly authorised by his own Colonial Government, whether the Colonial
Government has received sufficient delegated authority from the Crown to exercise the
authority which the Crown had a right to exercise through the Colonial Government if
properly communicated to it, and whether the Crown has the right without
parliamentary authority to exclude an alien. Their Lordships cannot assent to the
proposition that an alien refused permission to enter British territory can, in an action
in a British Court, compel the decision of such matters as these, involving delicate and
difficult constitutional questions affecting the respective rights of the Crown and
Parliament, and the relations of this country to her self-growing colonies. When once it
is admitted that there is no absolute and unqualified right of action on behalf of an alien
refused admission to British territory, their Lordships are of opinion that it would be
impossible upon the facts which the demurrer admits for an alien to maintain an
action."
(36) To my mind, a careful reading of this passage does not fully support the view that
an alien cannot under no circumstance maintain an action in respect of refusal of entry.
What their Lordships have said was that an action of the nature involving delicate
questions of the constitutional rights could not be brought in an action by an alien and
such right of action is not absolute and unqualified. From the observations made by
their Lordships, it is clear that an action by an alien is not completely excluded.
(37) Under our Constitution, one fundamental rights provided under Arts. 14, 21, 25 and
31 are open to any person irrespective of the fact whether he is citizen of India or not. All
civilized countries recognise and protect these basic human freedoms. The infringement

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of the rights mentioned above will undoubtedly give a cause of action even to foreigners
who are not citizens of India; but the question here is whether an alien can move these
Courts if entry is refused in spite of his possessing a valid passport. Under the provisions
of the Foreigners Act, the Commonwealth citizen is entitled to certain civic rights and
protection. Section 3-A of the Foreigners Act provides power to exempt the citizens of
Commonwealth countries and other persons from the application of the Foreigners Act
in certain cases.
(38) By virtue of the powers conferred under S. 3-A of the Foreigners Act, Foreigners
(Exemption) Order, 1957, was passed by the Central Government exempting the United
Kingdom and other countries mentioned in para 2 of the said Order from the operation
of the provisions of the Foreigners Act excepting to the extent mentioned in para 3 of the
Order. It is true that a discretion is left with the Central Government to allow or refuse
entry of a foreigner into this country; but so far as a British subject holds a valid
passport, he has got a right to demand entry into this country. He has a freedom from
penalty and can claim immunity from the penalty. It confers on him a right of immunity
from punishment. If a British subject knowing the Municipal law of this country,
attracted by the exemptions and concessions under the provisions of the Foreigners
Exemption Order, obtains a valid passport and comes to this country as a tourist
without any disqualification liable for the refusal of entry, can the authorities refuse
permission to such a person to enter, without valid reasons? If entry is refused by an
officer arbitrarily abusing his power, cannot the British subject get redress by moving
the Civil Courts or at least through the administrative agencies? In my opinion, he has
certainly got a remedy by asserting his claim to enter into this country by virtue of a
valid passport given to him if he has no other disqualification. Otherwise it would be
unfair and unjust to refuse entry to the British subject who ahs been assured under the
Municipal law of this country that he will be allowed to enter if he has a valid passport
issued by that country of which he is the national and fulfils the conditions as required
under the law. I am, therefore, of the opinion, the possession of a valid passport creates
a right, recognised and enforceable, in my event a right recognised by rule of law.

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(39) In Md. Solomen v. State, , in considering the rights of a foreigner to move Civil
Courts under the Constitution, it was observed by the Division Bench consisting of
Mukharji and Laik JJ. as follows:"....................even if a foreigner has no locus standi to claim a fundamental right under
Art. 19, he can still have locus standi to claim a legal right, if he has any, and attempt to
enforce it by a writ or order or direction under Art. 226."
I respectfully agree with the view expressed in the above decision. If a foreigner has a
legal right, he can enforce it.
(40) In a recent decision of the Supreme Court in Satwant Sing Sawney v. Ramratnam,
W.P. No. 230 of , Subba Rao C.J., in the majority judgment, in considering whether an
Indian citizen has got a fundamental right to travel abroad and whether a passport is a
condition requisite for such travel emphasised the importance of a passport in the
following terms:-"...................a passport, whether in England or in the United States America, serves
diverse purposes; it is a 'request for protection', it is a document of identity, it is a prima
facie evidence of nationality, in modern times; it not only controls exit from the State to
which one belongs but without it, with a few exceptions, it is not possible to enter
another State. It has become a condition for free travel."
Of course, in this decision the legal effect of a passport was not considered and it was left
open. It is clear from the observation made by the Supreme Court that the passport is a
very valuable document, in that it establishes that identity of the person who holds it. It
is a valuable piece of evidence to protect himself from any prosecution. It is a prima
facie evidence that he is the national of the country which issued the passport in his
favour.

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(41) The passport Ex. P-40 in this case creates legal right as mentioned under S. 30 of
the Indian penal Code, and it is, therefore, a valuable security. The conviction of the
appellant under this charge by the lower Court is, therefore, correct is confirmed.
(42) Charge No. 3: The appellant has been convicted under Rule 55(2)(b) read with Rule
55(3) of the Defence of India Rules and sentenced to R.I., for three years. Rule 55(2)(b)
is as follows:-"No person shall use or have in his possession any forged or altered official document or
any document so nearly resembling an official document as to be calculated to deceive."
Rule 55(3) provides punishment extending up to five years or with fine or with both for
contravention of any of the provisions of the rule. This rule is substantially the
reproduction of Sec. 471 I.P.C. I have already found that the appellant used Ex. P-40,
passport, a forged document, under Charge No. 10. The conviction under this charge is
correct and confirmed.
(43) Charge No. 4: It is under Rule 55(2)(c) read with Rule 55(3) of the Defence of India
Rules. Rule 55(2)(c) is as follows:-"No person shall personate or falsely represent himself to be, or not to be a person to
whom an official document relates or to whom an official document or any secret official
codeword or password has been duly issued or communicated."
It is clear from the facts of this case that the appellant by producing before the
authorities the passport, an official document represented himself to be one Comyn
when admittedly he was not Comyn but Daniel Hailey Walcott. The appellant thereby
falsely impersonated one Comyn. The appellant has also admitted in his judicial
confession and his statement under Sec. 342, Crl. P.C., that the was in possession of the
passport issued in the name of Comyn and he was passed out as Comyn on the
production of the passport. The conviction by the lower Court under this charge is also
correct and is hereby confirmed.

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(44) Charge No. 5: It is a similar charge as that of charge No. 4; but this was in respect of
the appellant having personated and falsely represented before the Receptionist of the
Oceanic Hotel, Madras. The appellant not only produced the passport before the
Receptionist of the Oceanic Hotel but he described himself as Comyn, a British subject
in the register maintained in respect of foreigners in the Hotal Oceanic. It is, therefore,
clear that he falsely represented himself to the Receptionist that he was Comyn when
really he was not so. The learned counsel for the appellant, in respect of this charge, has
contended that the alleged false representation to the Receptionist of Oceanic Hotel is
an independent and different transaction from the false representation alleged to have
been made by the appellant at the airport and that, therefore, the conviction has to be
quashed on the ground of misjoinder of charges. I do not think there is substance in this
argument. From S. 537, Crl.P.C., it is clear that no finding, sentence or order passed by a
Court of competent jurisdiction shall be reversed on appeal or revision on account of
misjoinder of charges. I do not think, by the inclusion of this charge any material
prejudice was caused to the appellant or it has occasioned a failure of justice. The
conviction under this charge is confirmed.
(45) Charge No. 6: The appellant ahs been convicted under Rule 26(2) of the Defence of
India Rules and sentenced to undergo R.I. for five years. Rule 26(2) of the Defence of
India Rules provides as follows:-"If any person enters India in contravention of any order made under sub-rule (1), or of
the provisions of, or of any rule or order made under, the Indian Passport Act, 1920 (34
of 1920), he shall, without prejudice to any other proceedings which may be taken
against him, be punishable with imprisonment for a term which may extend to five year,
or with fine, or with both."
(46) I have already found under Charge No. 10 that the appellant entered into this
country with a forged passport (without a valid passport). Rule 3 of the Indian Passport
Rules, 1950, prohibits any person entering into India without a valid passport. The
appellant has clearly contravened Rule 3 of the Indian Passport Act 1920 which is made

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punishable under Rule 26(2) of the Defence of India Rules. The learned counsel for the
appellant argued that the prosecution has not established mens rea on the part of the
appellant which, according to him, is an essential ingredient, especially when the
sentence provided under Rule 26(2) is deterrent. I am unable to accept this contention.
The appellant has come with a forged passport into this country. He knew he was not in
possession of a valid passport. he deliberately and consciously contravened the
provisions of the Indian Passport Act. It is not necessary for the prosecution to prove the
motive of the appellant in violating the provisions. The Defence of India Rules were
framed during emergency when there was external danger to our country. The rules
have been framed providing deterrent sentence to avoid any person coming to this
country without a valid passport as it would not be possible to go into the motives of
persons individually as to why they come to this country during the period of
emergency. The conviction and sentence to five years' R.I. under Rule 26(2) are
confirmed.
(47) Charge No. 7: The appellant has been convicted under Rule 3 read with Rule 5(v)
and Rule 6 of the Indian Passport Act, 1950, for having entered this country without a
valid passport. In view of the finding given under Charge No. 10, and under Charge No.
6, I find the conviction under this rule by the lower Court is correct and it is, therefore,
confirmed.
(48) Charge No. 8: The appellant has been convicted under S. 420, I.P.C., and sentenced
to R.I. for five years. The charge against the appellant is that he deceived P.W. 23 Sri V.
Kuppuswami, Sub-Inspector of Police, Port Registration Office, Meenambakkam
Airport, by suppressing his real name and falsely representing himself to be a British
subject and by using a false passport Ex. P-40 and thereby fraudulently induced P.W. 23
to permit him to land at Madras by affixing a seal on the said passport and returned the
said passport to him which P.W. 23 would not have done if he had no been so deceived
and which act was likely to cause damage and harm to the said officer in mind and
reputation. P.W. 23 stated that on 31-12-1965 when he was on duty at the Airport, the
appellant arrived from Colombo by AIR Ceylon flight at 6-15 p.m. and produced the

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passport Ex. P-40 and the disembarkation card Ex. P-56 before him. On a comparison of
the passport photo with the appellant, he found that the person was the same. He
questioned the appellant about his name and intended the appellant about his name and
intended address in India and the appellant replied that his name was Barry Phillips
Charles Comyn and that he intended to go to Taj Hotel, Bombay. P.W. 23 believed the
representation of the appellant to be true and had initialled in Ex. P-40 and had signed
in Ex. P-56 in token of his check with his seal and permitted him to enter. He further
stated that if he had known that the appellant was a different person and that he has
used the forged passport, he would not have permitted him to land and would not have
returned the passport after affixing his seal. He further stated that subsequently he had
been asked by his superior officers to offer an explanation when it was found that the
person permitted by him was not Comyn but the appellant and as a result thereof he had
been mentally upset. The evidence in this case is clear that the appellant by
representation and his conduct and by the production of a forged passport had
committed the offence under S. 420, I.P.C. The conviction and sentence under this
charge are also confirmed.
(49) Charge No. 9: The appellant has been convicted under S. 419, I.P.C., for having
falsely impersonated Comyn and represented that he was Comyn when he was not that
person both by the production of the passport and oral representation to P.W. 23. It is
clear from the evidence of P.W. 23, as discussed in the previous paragraph, that the
appellant has committed this offence also. The conviction and sentence under this
charge are also confirmed.
(50) Charge No. 1: The appellant has been convicted under Sec. 5(1) read with S. 5(3)
and S. 14 of the Foreigners Act, 1946 (Act 31 of 1946). It is alleged that the appellant
having entered India during January 1962 calling himself as Daniel Hailey Walcott and
having been ordinarily known as such, he entered India again through the
Meenambakkam Airport on 31-12-1963 under an assumed name "Barry Philips Charles
Comyn" and used that name without any licence and permission of the Government of
India. In respect of this charge, the learned counsel appearing for the appellant

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contended that the appellant ha snot committed the offence under this charge as the
prosecution has not proved the ingredients and the requirements of the provisions of
the Foreigners Act with which the appellant was charged. To appreciate this contention,
it is necessary to set out the relevant provisions of the Foreigners Act, 1946:-(51) Section 5(1) of the Foreigners Act says:
"No foreigner who was in India on the date on which this Act name into force shall,
while in India after that date, assume or use or purport to assume or use for any purpose
any name other than that by which he was ordinarily known immediately before the said
date."
Clause (2) is omitted as unnecessary. Clause (3) is as follows:-"In relation to any foreigner who, not having been in India, on the date on which this
Act came into force, thereafter enters India, sub-sections (1) and (2) shall have effect as
if for any reference in those sub-sections to the date on which this Act came into force
there were substituted a reference to the date on which he first enters India thereafter."
(52) Sec. 14 of the Foreigners Act is a penal provision which provides punishment for
contravention of any of the provisions of this Act with imprisonment for a term which
may extend to five years and fine. This Act came into force on 23-11-1946. The appellant
was not admittedly residing in this country on the date the Act came into force. Hence S.
5(3) will apply to the appellant in that he entered India after the Act came into force,
namely, 15-1-1962. Sec. 5(3) says that the words "to the date on which he first enters
India thereafter" be substituted in Clause (1) of the same sub-section in the place of the
words "referred to therein" to the date on which this Act came into force." If S. 5(1) is
read with the substitution of the words as referred to in Clause (3) will read as follows:-"No foreigner who first enters India after this Act came into force shall, while in India
after that date, assume or use or purport to assume or use for any purpose any name
other than that by which he was ordinarily known immediately before the said date."

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(53) The learned Special Public Prosecutor Sri V. P. Raman contends that the appellant
had entered into this country in 1962 as Daniel Hailey Walcott and he made subsequent
visits in the same name and that his having come on 31-12-1965 with another name
without the permission of the Central Government as required under Clause (5) of S. 5
would bring him within the mischief of Sec. 5, Clauses (1) and (3). I am unable to agree
with this contention. The emphasis under Sec. 5(1), in my opinion, is that a foreigner
while in India shall not assume or use any other name other than that by which he was
ordinarily known. If a foreigner enters into this country and remains in this country,
even for a short period, with a known name and he subsequently assumes or uses
another name for any purpose without the permission of the Central Government, he
will come within Sec. 5(3). If a foreigner visits this country with a known name and
returns to his country and changes his name in his country according to the law and
procedure of that country and if he comes again with that assumed name to this country
and uses that assumed name, it cannot be said that he has assumed or used the name
while he was in this country without the permission of the Central Government. It is not
the case of the prosecution that the appellant has changed his name after he came to this
country, but he came to this country with an assumed name. To my mind, the object of
introducing this section appears to be that the Government should have control over all
the foreigners while in India and if the names are changed, the identity of the foreigners
may become difficult. The Government of India cannot have any control over any
foreigner who ahs visited this country once to have his name changed in his country
according to the law of that country. If a foreigner has lawfully changed his name and
comes to this country, it cannot be said he is committing an offence under Sec. 5(3). It
will cause hardship and inconvenience to any foreigner who comes with his name
lawfully changed to expect him to get permission from the Central Government even
before landing. How can any foreigner get permission from the Central Government
before landing? And the permission will again depend upon the discretion of the
Government which may taken in some cases considerable time. If the contention of the
Special Public Prosecutor is accepted, the very moment a foreigner steps into this
country in an assumed name, he will be committing the offence. I do not think that that
is the intention of the Legislature. I am, therefore, of opinion that the prosecution has

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not proved the offence under this charge. The conviction and sentence are set aside and
the appellant is acquitted of charge No. 1.
(54) In the result, the conviction of the appellant under charges Nos. 3 to 10 is
confirmed.
(55) So far as the sentence is concerned, the learned counsel for the appellant
strenuously pleaded for a lenient sentence. He urged that the appellant hails from a
respectable family, that he had lost all his fortunes and that the prosecution has not
shown that the appellant has come to this country with a hostile attitude or for a
nefarious purpose. I am unable to accede to the request of the learned counsel. The
appellant wanted to gain entry into this country with a forged passport while the country
was at war and the state of emergency prevailed. The appellant had come on prior
occasions to this country and got into trouble during those visits. Even during prior
visits, it appears he committed offences and nonbailable warrants were pending against
him. The appellant should have known that if he were to go again to this country while
nonbailable warrants were pending and that he was wanted in those offences, he would
be apprehended. To avoid detection, he had come with a British passport as a British
subject under an assumed name. The fact that the appellant had come to this country in
spite of the difficulties and risk that he might have to face, indicates that he had not
come for any legitimate purpose. In view of these circumstances, I do not think that it
will be proper to reduce the sentence imposed on him. The sentences passed under
charges Nos. 3 to 10 are also confirmed.
(56) The appeal is dismissed with the above modifications.
(57) C. A. 815 of 1966: The appellant Jean Claude Donze was charged under 10 counts of
which he was convicted on counts Nos. 1 and 3 to 10 and was sentenced to various term
of imprisonment, the maximum being R.I. for five years, the sentences to run
concurrently by the Sessions Judge, Madras. The facts of the prosecution case are briefly
these:

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(58) The appellant, Jean Claude Donze has in alias name Pierre Carraud. He is a French
national. On 10-11-1961, he landed at Santa Cruz Aerodrome. Bombay from Rome under
the name of Pierre Carraud with a French passport. He left Bombay for Tokyo on 13-111961. In the middle of the year 1962, he came back to India under the same name and
stayed in Ashoka Hotel, New Delhi for a day and left the hotel abruptly with the key of
the room occupied by him and did not return to the hotel subsequently.
(59) On 21-6-1962, the appellant was found again near Mandapam Camp attempting to
leave for Ceylon by a country craft. He was arrested on suspicion. The appellant had a
British passport, in the name of E.V. Conway, a British national. He was also found to be
in possession of a key of a room No. 207 Ashoka Hotel, New Delhi. On being questioned
by the officer who arrested him, it appears that the appellant first told him that he was
E. V. Conway and subsequently stated that he was Pierre Carraud and finally said that
he was Jean Claude Donze.
(60) Later, the appellant was prosecuted along with another in a case of smuggling and
convicted and his finger print impressions were taken. He was detained in the Bombay
District prisons from 15-2-1963 to 28-2-1963. He had left the country again. On 29-61963 the appellant returned to Delhi from Tel Aviv under the name of Donze John. On
15-9-1963, the appellant left Delhi for Beirut under the name Donze Jean Claude, a
French national. He returned to New Delhi on 29-11-1963 under name Donze Jean. He
left Bombay for Beirut again on 21-12-1963 under the name Jean Claude Donze. He
arrived at Palam Airport from Beirut on 29-3-1964 under the name Jean Donze and left
for Beirut on 3-4-1964. These facts are admitted.
(61) It appears subsequently he obtained a British passport in the name of Stephen
Thomas Lamb, a British national and came to India. A case was registered against the
appellant for having used a forged passport and impersonated a British national and it
was pending. The appellant was wanted in that case.
(62) While matters stood thus, the appellant arrived at Meenambakkam Airport, Madras
on 31-12-1963 by an Air Ceylon flight and produced the passport Ex. P-18, and the

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disembarkation card Ex. P-19 to the Security Officer, P. W. 22, at Meenambakkam


Airport. The passport and the disembarkation card stood in the name of S. T. Lamb, a
British national. P. W. 22 Sri Sankaran, the security officer on being satisfied that the
photograph attached to the passport was that of the appellant who produced Exs. P-18
and P-19 he was allowed to go.
(63) The appellant then went to Hotel Oceanic along with another foreigner, the
appellant in C.A. 810 of 1966 and registered his name in the arrival register as S.T.
Lamb, British national, Ovington Gardens, London. The appellant left the Oceanic Hotel
on the next day. He stayed in West End Hotel, Bombay on 22-1-1966 he was arrested on
suspicion. He produced a British passport Ex. P-18. His finger prints slip of Pierre
Carraud taken on conviction earlier in 1962. The finger prints were found to be identical.
The prosecution has let in ample evidence to show that the appellant is Jean Claude
Donze alias Pierre Carraud and with that name, he had come to India on prior
occasions. The appellant does not dispute that he is Jean Claude Donze.
(64) The case for the prosecution is that he used a forged British passport fraudulently
and impersonated Stephen Thomas Lamb and committed various offences as charged.
The subject matter of all these offences is mainly the passport Ex. P-18.
(65) Thus there cannot be any doubt that Ex. P-18 is a forged passport and equally there
is not doubt that the appellant used the forged is no doubt that the appellant used the
forged passport fraudulently in order to gain entry into this country. P. W. 13, Mr.
Charles Edward O'Hanlon, a British Constable attached to the New Scotland Yard stated
that he verified the name and address given in Ex. P-18 the passport namely, Stephen
Thomas Lamb born in Finchley, London, on 29-10-1925 at 42-A Grove End Garden, N.
W. 8 London and found that there was no No. 42-A in the Grove End Garden. He
further stated that none of the inmates of the flats in No. 42 could recognise the photo in
Ex. P-18 and that no person by name Lamb lived there at any time. He found in the birth
and death registers the entry relating to one Stephen Thomas Lamb that he was born on
29-10-1925 and died when he was aged about 15 years in the year 1940 as a result of

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enemy bombing. It is, therefore, clear from the evidence of P. W. 13, that the name of a
dead man has been obviously used for the purpose of getting the passport Ex. P-18.
(66) The appellant when questioned under Section 342 Crl. P.C., admitted that he was
known as Jean Claude Donze and Pierre Carraud. He stated that he arrived at
Meenambakkam airport and gave the passport to the air hostess which according to him
must have been give by her to P. W. 22. There is no reason to disbelieve the evidence of
P. W. 22 who stated that the appellant produced the passport Ex. P.18 and represented
that he was Stephen Thomas Lamb and believed that the appellant was Stephen Thomas
Lamb as borne by Ex. P-18 and passed out the appellant. It is now, therefore, necessary
to consider with the proved facts whether the convictions under the various charges
could be sustained against the appellant.
(67) Charge No. 1: The appellant has been convicted for having assumed or used a
different name, namely, Stephen Thomas Lamb other than the known name under
which he has come to this country on prior occasions, namely Jean Claude Donze or
Pierre Carraud. I have discussed in detail under charge No. 1 in C. A. 810 of 1966 in
regard to the implication of S. 5(1) read with Sec. 5(3) of the Foreigners Act. I have held
that a foreigner who changes his name other than the name known and recognised while
he is in India, commits the offence contemplated under Sec. 5. It does not apply to a
foreigner who changes his name in his county and obtains a passport in that name
lawfully and comes to this country with a valid passport. It is not the case of the
prosecution that the appellant has changed his name after he came to this country or
while he stayed here. The conviction under this charge cannot, therefore, be sustained.
The conviction and sentence are set aside under this charge.
(68) I propose to deal with charge No. 10 which is the main charge in respect of using
forged passport fraudulently (a valuable security) I have discussed under charge No. 10
in detail in C. A. 810 of 1966 and found that a passport creates a legal right, and,
therefore, a valuable security within the meaning of Section 30 I. P. C. Page 2 of Ex. P-18
which is a part of the passport is undoubtedly false, and, therefore, it is a false

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document. The appellant does not say that it was not false. The signature of Stephen
Thomas Lamb found in page 2 is forged by some one though not the appellant as the
said Stephen was dead at the time of the issue of the passport. Th evidence of P. W. 22 is
very clear that the appellant landed at Meenambakkam airport and produced Ex. P-18,
which is a forged document. P. W. 22 believed that it was genuine on the representation
made by the appellant and allowed him to go. This charge has been clearly proved
against the appellant. The conviction under this charge is confirmed.
(69) The convictions under charges Nos. 3, 6 and 7 are similar to those of charges Nos. 3
and 6 and 7 in C. A. 810 of 1966. Charge No. 3 is under Rule 55(2)(b) read with Rule
55(3) of the Defence of India Rules. The possession or use of a forged document is
prohibited under the said rule. Charge No. 6 is in respect of Rule 26(2) of the Defence of
India Rules which provides that if any person contravenes any rule or order made under
the Indian Passport Act shall be punished. Charge No. 7 is in respect of R. 3 read with
Rule 5(v) and R. 6 of the Indian Passport Rules 1950, which provides punishment for
any person entering this country without a valid passport. As I have found under charge
No. 10, the appellant used a forged passport and charges Nos. 3, 6 and 7 deal with
substantially what is dealt with under charge No. 10. I find the conviction under these
charges are correct and they are confirmed.
(70) Charges Nos. 4, 5, 8 and 9 are similar to those charges Nos. 4, 5, 8 and 9 in C.A. 810
of 1966. Charge No. 4 is in respect of R. 55(2)(c) read with Rule 55(3) of the Defence of
India Rules. It provides that no person shall personate or falsely represent himself to be
a person to whom an official document relates. In this case, the passport related to
Stephen Thomas Lamb. The appellant Jean Claude Donze has falsely impersonated the
said Stephen Thomas Lamb mentioned in the passport and gained entry. Charge No. 5 is
in respect of the same offence; but it relates to impersonation by false representation
made to the receptionist of the Oceanic Hotel, Madras. The case of the Receptionist of
Oceanic Hotel describing himself as Stephen Thomas Lamb and entered as such in the
arrival register. These two charges are clearly made out and the convictions are
confirmed. Charge No. 8 is that the appellant has deceived P. W. 22 Sankaran, the

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Security Officer, Meenambakkam airport, by suppressing his real name and falsely
representing himself to be a British subject by using a false passport Ex. P-18, and
thereby fraudulently induced P. W. 22 to permit him to land at Madras by affixing a seal
on the said passport which P. W. 22 would not have done if he had not been so deceived.
It is clear from the evidence of P. W. 22, that the appellant made a false representation
by not only producing the passport but also making oral representation to him that he
was Stephen Thomas Lamb and thereby induced him to permit him to land at Madras
by affixing his seal. This representation was made fraudulently with a view to gain entry.
The conviction under Section 410 I. P. C., is correct and is, therefore, confirmed. Charge
No. 9 is under Section 419 I. P. C. In view of the finding given by me under Charge No.
8, I confirm the convition under charge No. 9 also.
(71) In the result, the convictions of the appellant under charges Nos. 3 to 10 are
confirmed. He was acquitted under charge No. 1.
(72) So far as the sentence is concerned, I am not impressed with the request made by
learned counsel for the appellant for taking a lenient view. I have given reasons in C. A.
810 of 1966 as to why I am unable to reduce the sentence. The sentences passed under
charges Nos. 3 to 10 are also confirmed.
(73) The appeal is dismissed with the above modifications.
(74) Appeals dismissed.

315

Benoyendra Chandra Pandey And ... vs Emperor on 10 January, 1936


Equivalent citations: AIR 1936 Cal 73
Author: Lort-Williams
JUDGMENT Lort-Williams, J.
1. This case is probably unique in the annals'of crime. On 4th December 1933, Amarendra
Chandra Pandey died in Calcutta. It is alleged that he died of plague, the germs of which had
been injected into his arm by some person, who has not yet been discovered, on Howrah station
on the 26th November. The two appellants Benoyendra Chandra Pande and Taranath
Bhattacharjee along with Durga Ratan Dhar and Sivapada Bhattacharjee and others unknown
were charged with conspiring to murder Amarendra in pursuance of which conspiracy
Amarendra was murdered in the manner alleged. Benoyendra was charged also with abetment
of murder and Sivapada was charged also with offences under Sub-section 201 and 202, I. P. C.
Benoyendra and Taranath were found guilty by a unanimous verdict of the offences with which
they were charged and were convicted and sentenced to death. Durga Ratan Dhar and Sivapada
Bhattacharjee were found not guilty and acquitted. Benoyendra and Taranath have appealed on
the ground of misdirection and illegal admission of evidence. We have to consider these two
appeals and a reference under Section 374, Criminal P. C. Benoyendra and Amarendra were
half-brothers and members of the Pakur Raj family and jointly inherited their father's estate in
1929. At that time Benoyendra was 27 and Amarendra 16 years old. They were also joint
reversionary heirs of their aunt Rani Surjabati. Benoyendra became the Karta of the family on
his father's death, and pursued a course of life which, rightly or wrongly, offended and outraged
the family, including Surjabati and Amarendra. They considered that he was extravagant, and
objected to his relations with a dancing girl named Balikabala, and to his failure to provide
money adequate for the suitable upkeep and education of Amarendra.
2. This friction between Benoyendra and the rest of the family gradually increased, especially
with Amarendra, who was advised by Surjabati and his relatives Rabindra Nath Pandey and
Baidya Nath Pandey. Its existence has been denied by Benoyendra, but it is fully confirmed by
documentary evidence of undoubted authenticity. In 1931 Amarendra attained his majority, and
in 1932 he began to take definite steps to assert his rights in the joint estate, and in open
opposition to Benoyendra. On the 12th May he executed a several power of attorney in favour of
persons who could not be controlled by Benoyendra, though he was subsequently induced by
Benoyendra's threats and promises to cancel it on the 6th July. These facts and the growing

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friction between the brothers are confirmed in a series of letters which passed between them, in
which also for the first time the question of partition was openly mooted. During the Puja
vacation of 1932, Amarendra was staying with Surjabati at Deoghar. One day Benoyendra came
there accompanied by a compounder. He and Amarendra went for a walk together, after which.
Benoyendra and the compounder departed. A few days after Amarendra began to be ill and his
illness was diagnosed by Dr. Sourendra Nath Mukherjee as being due to tetanus infection, which
he treated with injections of anti-tetanus serum. A telegram was sent to Benoyendra at Pakur to
bring the family physician. He brought instead the appellant, Taranath, a doctor from Calcutta,
and wanted Dr. Sourendra to keep Dr. Taranath as his assistant. Dr. Sourendra refused because
he got the impression that Dr. Taranath was trying to induce him to abandon the serum
treatment in favour of injections of morphia.
3. Subsequently, Benoyendra appeared again, this time with Dr. Dhar, who persuaded Dr.
Sourendra reluctantly to give a further injection of serum he had brought from Calcutta, and
later still Benoyendra came again with both Dr. Dhar and Dr. Sivapada who prescribed
medicines for the patient. These however were not given to him because his relatives were by
this time suspicious about both Benoyendra and the doctors who were brought by him.
Subsequently, Amarendra developed an abscess at the place where Dr. Dhar's injection had been
given, and a sinus which was eventually opened by Dr. L.M. Banerjee in Calcutta. The Crown
regarded all these happenings at Deoghar as overt acts of the conspiracy to murder Amarendra.
The learned Sessions Judge quite properly excluded evidence of statements alleged to have been
made by Amarendra about what happened when he and Benoyendra went for a walk together.
Bearing in mind that morphia was admitted to be a correct treatment for tetanus if used as
ancillary to serum and for the purpose only of reducing the accompanying convulsions and that
there was evidence of the existence of a bleb upon Amarendra's foot which he had pricked with a
pin, and that both Dr. Dhar and Dr. Sivapada have been acquitted, I consider that it is safer to
disregard the Deoghar incidents altogether in considering the question of the guilt or innocence
of the appellants. This illness of Amarendra left him with a permanently damaged heart, and he
did not otherwise recover his health until April 1933.
4. In November 1932 Benoyendra began to take steps to obtain the withdrawal from the
Allahabad and other Banks of certain cash deposits belonging to the joint estate and amounting
to Rs. 13,000. This he achieved by obtaining in June 1933 in the joint names of himself and
Amarendra a succession certificate empowering Benoyendra and Amarendra jointly and

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severally to collect the debts. Subsequently Amarendra learnt about this withdrawal and began
to take more active steps to protect his interests, and consulted pleaders with the object of
calling Benoyendra to account, and bringing about a partition of the joint estate either amicably
or by means of a suit. In October 1933, a sum of Rs. 17,000 was paid into Pakur Court in respect
of a compromise decree in favour of the joint estate, and Benoyendra made strenuous efforts to
withdraw it. This came to the knowledge of Amarendra who, upon the advice and with the
assistance of Rabindra, filed a petition of objection on 17th November, with the result that an
order for withdrawal was refused, and Benoyendra failed to get this money until sometime after
Amarendra's death. Thereupon Benoyendra returned to Calcutta and attempted to persuade
Surjabati to send for Amarendra. Upon her refusal he sent a bogus telegram to Amarendra in the
name of Surjabati on 18th November, with the result that Amarendra came to Calcutta on the
19th. The strained relations between the brothers had now reached breaking point, and all the
family and especially Amarendra were thoroughly suspicious of Benoyendra and feared that he
would stop at nothing to injure Amarendra. The brothers met and discussed at length the
question of partition which Amarendra in opposition to Benoyendra, wished to be settled at
Pakur.
5. While in Calcutta Amarendra went to the Purna Theatre with his relative Jyotirmayee and her
party. Benoyendra was seen hovering about the theatre and its precincts in the company of
another man described as short, dark-complexioned and wearing khaddar. Surjabati and
Amarendra decided to leave Calcutta on 26th November and Benoyendra learnt about this the
night before. On that night he was seen at Howrah Station in the company of a short, darkcomplexioned man in khaddar. The next day he called at Surjabati's house, ascertained the exact
time of her departure, and announced his intention of coming to see the party off. Surjabati
went to the station accompanied by Amarendra, his sister Banabalaand his deceased half-sister's
daughter Anima, and they found Benoyendra waiting for them at the station entrance. The party
passed through the booking-staff on their way to the platform. Amarendra headed the
procession and Benoyendra brought up the rear. On the way Amarendra was jostled by someone
coming from the opposite direction whom he afterwards described as a black man in khaddar
who was not a gentleman.
6. Immediately after, Amarendra felt a prick in his right arm and exclaimed "someone has
pricked me." Benoyendra made light of the matter saying that it was nothing, but Amarendra
rolled up his sleeve and showed the mark of the prick to his relatives including Benoyendra and

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Kamala Prasad Pande, and his friend Asoke Prokash Mitra. Kamala Prosad especially was
suspicious and feared that the incident was due to some foul play. All the members of the family
had been surprised at Benoyendra's unexpected courtesy in coming to see them off, as such
behaviour was unusual for him. Kamala begged Amarendra not to go by the train, but to stay in
Calcutta and have his blood examined, but Benoyendra was annoyed and rebuked him and said
that they were making a mountain out of a mole-hill and urged Amarendra to go. In the train the
anxiety of the party grew, and after arriving at Pakur and after receiving an urgent letter from
Kamala and upon the advice of Rabindranath, Amarendra decided to return to Calcutta with
Rabindra, where they arrived on the 29th. There he was examined by Dr. Nalini Ranjan Sen
Gupta who found the mark of a prick on his arm like the mark of hypodermic needle. On the
30th Dr. Nalini advised an immediate blood culture and this was made by Dr. Santosh Kumar
Gupta. On 4th December Amarendra died. After a thorough and exhaustive testing of the blood
culture on white rats and by means of other tests it was definitely established that Amarendra's
blood was infected with germs of bubonic plague and this was reported to the public health
authorities.
7. At the trial a mass of evidence was given by medical experts, who were cross-examined very
thoroughly and at great length with the object of establishing the probability or possibility that
the diagnosis that Amarendra died of plague was wrong, or that the blood culture had been
confused with the culture of some other person's blood, or had been either accidentally or
deliberately contaminated, or that Amarendra had contracted plague either from his half-sister
Kananbala who is alleged to have died of mumps on 10th September 1933, or otherwise
naturally from a flea-bite or some other source.
8. I do not propose to discuss this evidence again, but I have considered all of it very carefully
and I am satisfied that the Crown succeeded in proving beyond the possibility of reasonable
doubt that Amarendra died of plague, the germs of which were injected into his arm on Howrah
Station as alleged, by some person at present unknown. Immediately after Amarendra's death
some of his relatives began to discuss with Kalidas Gupta, a pleader, well known to the family
and living at Pakur, the question of instituting a police enquiry. These discussions went on
throughout December and in January, and it was ascertained that Benoyendra had been a boon
companion of Taranath to whom he had been introduced by Balikabala, and that all three had
been in close friendship and association for more than two years, and that Taranath was a
doctor and a trained bacteriologist. Eventually a petition was presented to the Deputy

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Commissioner of Police at Calcutta by Kamala Prosad Pandey on 22nd January 1934 and SubInspector Sarat Chandra Mitra began to make a cofidential inquiry.
9. Upon information given by Kalidas, Benoyendra was arrested on 16th February while on his
way by train to Bombay. The case was formally instituted on the 17th and Taranath was arrested
on the 18th. Kalidas proceeded to Bombay on business and there got in touch with a guide
named Ratan Salaria who was able to give much valuable information about visits paid by
Benoyendra to Bombay both alone and in the company of Taranath. The investigation
proceeded at Bombay and Calcutta and the following surprising facts were elucidated. On 12th
May 1932, the day upon which Amarendra executed the several power of attorney already
mentioned, the stamp for which had been purchased the previous day, Taranath sent an express
prepaid telegram to the authorities of the Haffkine Institute at Bombay asking them to send
virulent plague culture for laboratory work. At this time Benoyendra was staying at a hotel in
Calcutta, and on that day Balikabala accompanied by an officer of the Pakur estate arrived at the
hotel. Although Taranath went to the lengtth of adding after his name the letters D. T. M.
(Diploma of Tropical Medicine) to which he was not entitled, the authorities of the Haffkine
Institute refused to supply the culture, unless Taranath first obtained the permission of the
Surgeon-General of Bengal.
10. Later in May, Taranath approached Dr. Ukil of Calcutta and on the faith of Taranath's
statement that he had discovered a cure for plague and wished to test it with plague culture, he
induced Dr. Ukil to allow him to work in his laboratory under his supervision. Plague culture
was obtained from Dr. Naidu of the Haffkine Institute, but Taranath was not allowed to handle
it. Attempts were made to subculture the strain supplied, but there was no growth and the strain
was destroyed. Taranath tried to induce Dr. Ukil to indent for culture a second time, but he
refused. Eventually in 1933, Taranath obtained from Dr. Ukil a letter of introduction addressed
to the officer-in-charge of the Haffkine Institute with the request that Dr. Taranath as a
bacteriologist might be granted facilities of making experiments in connection with the curative
value of a drug which he had discovered and which he considered to be effective in cases of
plague.
11. On 30th April 1933, Benoyendra went to Bombay and entered his address in the Orient Hotel
registered as of Tagore Castle Lane Calcutta, which was not his address, but Taranath's. He
engaged Ratan Salaria as his guide, and told him that he had come to Bombay with the object of

320
obtaining facilities for testing a curative drug for plague on behalf of a brother doctor. He asked
for a Times of India Directory in order to ascertain the names of the doctors attached to the
Haffkine Institute. The next day he saw Dr. Naidu and gave him Taranath's letter of introduction
and said that he was his friend and had been sent in advance to find out whether Dr. Naidu
would grant the desired facilities. Dr. Naidu told him that his friend must first write to the
Director of the Haffkine Institute and obtain his permission, otherwise he could not help him.
The same evening Benoyendra left for Calcutta.
12. On 1st July, Benoyendra, went again to Bombay and stopped at the Sea View Hotel. Again he
gave the Tagore Castle Lane address and engaged the same guide. On arrival he made strenuous
efforts, including offers of money, to obtain plague culture from Dr. Nagrajan and Dr. Sathe-two veterinary surgeons attached to the Haffkine Institute, but failed. He however obtained
from Dr. Nagarajan the information that he could get plague culture at the Arthur Road
Infectious Diseases Hospital. Thereupon he saw Dr. Patel, the Superintendent of that Hospital,
and asked him to allow his doctor friend to work in his laboratory on his alleged cure. Eventually
Dr. Patel was persuaded to accede to this request, and he instructed his assistant, Dr. Mehta that
a Bengali doctor was coming to do some work on plague bacilli and to give him facilities. At
Benoyendra's request Dr. Mehta obtained Dr. Patel's permission to indent for one tube of live
plague culture from the Haffkine Institute pending the arrival of Dr. Taranath. Taranath arrived
on 7th July and stayed at the same hotel with Benoyendra, who eventually paid the bill.
Benoyendra and Taranath together purchased rats in the market.
13. Dr. Patel introduced Taranath to Dr. Mehta who prepared some subcultures, and Taranath
tested the cultures upon the rats with the result that they died of plague. At times Taranath was
assisted by Dr. Mehta, but he was not always present during the experiments. Taranath was
allowed to work freely in the laboratory and had the use of all the necessary appliances. He also
brought with him a small bag containing instruments. On the evening of 12th July, when an
experiment on one of the rats was still incomplete, Taranath told Dr. Mehta that he had urgent
work in Calcutta and must leave immediately. He asked him to convey his thanks to Dr. Patel
and said that he would return later on, but he never returned nor did he correspond with either
Dr. Patel or Dr. Mehta. Benoyendra and Taranath left Bombay together that night for Calcutta.
While in Bombay Benoyendra made strenuous endeavours to get Amarendra's life insured for
Rs. 51,000 with a condition that the policy should not be contested after Amarendra's death.
This unusual condition was not accepted and the insurance was not effected. Long statements by

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Benoyendra and Taranath were read at the trial and amounted substantially to a denial of guilt
and of the truth of the inferences which the Crown sought to draw from the facts given in
evidence. Taranath's explanation of the Bombay incidents was that he thought that he had
discovered a cure for plague and wanted to test its efficacy. He asked Benoyendra to take the
letter of introduction to Bombay and make the necessary enquiries because Benoyendra
happened to be going on business of his own. Benoyendra's explanation was that he had to go to
Bombay on business connected with the film industry in which he was interested, and that he
had made enquiries for Taranath simply as an act of friendship.
14. Dr. Mehta saw no signs of any cure or medicine being applied by Taranath to the rats during
the experiments. Apart from statements made by Benoyendra and Taranath, there is not a
vestige of evidence to show that Taranath either had or thought he had at any time discovered a
cure for plague, or wished to test it, or that Benoyendra had any other purpose in going to
Bombay than either to procure plague culture, or to obtain for Taranath facilities which would
enable to procure it. The practicability of removing culture from the Arthur Road Hospital,
carrying it from Bombay to Calcutta and keeping it alive from July to December, was established
beyond doubt by the medical evidence. Upon arrest Taranath told Sub-Inspector Mitra that he
had never been to Bombay with Benoyendra, that he had no idea of the culture of plague bacilli,
that he had never been to Bombay in his life, and that he had never approached any doctor for
any letter of introduction for Bombay. He admitted that he had known Benoyendra for 3 or 4
years. Later, while on bail he went to the police and altered this statement, and admitted that he
had been to Bombay, but not with Benoyendra. At the trial he denied that he had known
Benoyendra prior to September or October 1932.
15. Benoyendra admitted that he had been to Bombay to arrange for film work, but denied that
Taranath had ever been with him to Bombay. Further he said that he had never heard anything
about Amarendra having been pricked at Howrah Station. While on bail, upon being asked by
Gouri Sen, who is connected with the Medical Supply Concern where Taranath was employed as
a bacteriologist, "Well, and how are you in this murder?" Taranath replied "What little I have
done, those who have done more have not been arrested." Apart from the denials which I have
already mentioned, Benoyendra alleged in his defence that the whole case was false and was due
to a conspiracy to get rid of him which was concocted by his relatives with the aid of Kalidas
Gupta. Of this alleged conspiracy there is not a vestige of evidence. The learned Advocate for the
appellants have complained of the wrongful admission of evidence and misdirection and non-

322
direction by the learned Sessions Judge, and of his failure adequately to examine the appellants
under the provisions of Section 342, Criminal P. C. There is some justification for these
criticisms.
16. A good deal of evidence both oral and documentary was admitted which was of doubtful
relevance and which it would have been wiser to exclude. When considering the question of
admissibility, the Court should lean always in favour of the accused, and exclude all evidence
tendered by the prosecution which is of doubtful or remote relevance. Some evidence also was
admitted which was clearly inadmissible and irrelevant. For example Ex. 20, being a letter from
Rabindra to Kalidas, Ex. 67 being a letter from Baidyanath to Amarendra, and the contents of
certain anonymous petitions found upon Benoyendra when arrested, being Exs. 73, 76, 77 and
78. The admission of the contents of Ex. 76 was somewhat serious error because it contained a
reference to statements made by Amarendra about the cause of his tetanus infection, which
evidence had quite properly been excluded by the learned Judge at another stage of the trial.
17. Of oral evidence wrongly admitted, there was the statement by Kamala Prosad on p. 70, Vol.
1 of the paper book, that he had his suspicions about Benoyendra because he had heard from
Amarendra something about the cause of his tetanus. Also the statement by,Jatindra Das Gupta
on p. 421 that another witness, Tota Singh had told him that "Bhaya" meant Taranath. Tota
Singh in his evidence denied this. Of instances of misdirection and non-direction the learned
Judge omitted to remind the jury that statements attributed to individual accused, such as those
attributed to Sivapada on pp. 38, 113 and 488, would not be evidence against the other accused
in the event of the jury finding that individual not guilty. Also he repeatedly stated the case for
the prosecution and the arguments advanced in support of it, without clearly pointing out to the
jury those parts of it which were not supported by evidence, or depended merely upon glosses
upon evidence. Further on p. 703 he stated to the jury that they had already heard in evidence
that Benoyendra was suffering from venereal disease. This undoubtedly was liable to prejudice
the accused. There was no such evidence, because Ex. 75 which was Benoyendra's Blood
Examination Report, was, quite properly, not tendered in evidence, being irrelevant and
inadmissible. Further with regard to the anonymous petitions which I have mentioned already,
the learned Judge referred, on pp. 708 and 712, to their contents, and told the jury that evidence
given on oath was of much greater value than statements made by unknown persons in
anonymous petitions, when there was nothing to show that the statements were made whereas
he ought to have told them that this evidence, which had been improperly admitted, was of no

323
value, and directed them to reject it as irrelevant. Similarly, he referred to the contents of other
documents which I have held to be inadmissible and irrelevant, such as Ex. 67 on p. 712.
Further, on p. 746, he referred to Balikabala as the common keep of Benoyendra and Taranath,
of which there was no evidence, and on pp. 748 and 750 he said that Amarendra's body had been
cremated speedily, thanks to Benoyendra's bribe to the Registrar at the burning ghat, of which
there was no real evidence.
18. With regard to the Judge's alleged failure to examine the accused generally at the end of the
case for the prosecution the learned advocates have pointed out that he repeatedly drew the
jury's attention to the fact that the accused had failed to give any explanation of facts adduced in
evidence against them. In my opinion, this criticism is justified. Bearing in mind that the onus of
proof in criminal cases never shifts to the accused, and that they are under no obligation to
prove their innocence or adduce evidence in their defence or to make any statement, the learned
Judge's remarks amounted to misdirection. Upon this point the law has recently been re-stated
clearly and emphatically by Viscount Sankey, L.C. in Woolmington v. The Director of Public
Prosecutions (1935) A 0 462. And in any case, if the learned Judge intended to make such
remarks, it was undoubtedly his duty first to give the accused an opportunity of explanation by
drawing their attention specifically to the evidence upon which the learned Judge relied. On the
whole however I have come to the conclusion that none of these errors are more than
comparatively minor blemishes on what was otherwise a careful and very able charge, and a
masterly exposition of intricate evidence, at the end of a long and difficult trial. Nevertheless, if I
thought that these errors had seriously prejudiced the accused, or that their omission would
possibly have led to a different result, or that they had caused any failure of justice it would have
been necessary to order a new trial. The decision in this case, however does not really turn upon
questions about the veracity of witnesses or upon the finding of doubtful facts, but upon the
question what inference is to be drawn from well-established facts about the existence of which
there is not and cannot be any reasonable doubt. This Court is at least as well, if not better,
qualified than the jury to draw the necessary inference.
19. For the purpose of this decision I have eliminated from consideration all evidence which was
inadmissible or of doubtful relevance. I have also disregarded the evidence of Gouri Sen about
the truth of which there may be some doubt, and of Benoyendra's alleged attempts to interfere
with possible witnesses after the death of Amarendra. Taking into consideration only the
incidents at Bombay and at Howrah Station, and the medical and documentary evidence, the

324
questions to be decided are, what inferences are to be drawn from these facts, and whether more
than one inference 'is reasonably probable. After very careful consideration I have come to the
conclusion that the only possibly reasonable inference is, that the two appellants conspired
together to murder Amarendra, and that for this purpose they provided some person at present
unknown with plague culture which was obtained by them from Bombay as alleged, and that
that person, upon their instigation, murdered Amarendra by injecting the germs of plague into
his arm at Howrah Station as a direct result of which he died. I am satisfied beyond any
reasonable doubt from the evidence given by the medical experts and the health authorities, that
the plague culture could not possibly have been obtained elsewhere than at Bombay and in the
manner alleged. It is clear from the evidence that Benoyendra and Taranath had the means of
obtaining plague culture and that Benoyendra had the motive to use it in the manner alleged.
There is evidence that no other likely or possible person could have had either the means or the
motive, and there is no evidence that anyone else had either means or motive.
20. The motive for this crime is clear and abundant and requires no elaboration. It is proved by
the documentary evidence alone, apart from the statements of witnesses whose evidence may
possibly have been coloured by bias or suspicion. The result is that each of these appeals must be
dismissed. The murder was committed more than two years ago. The appellants were arrested in
February 1934, were committed for trial in May, and were on trial until February 1935. The
appeals and the reference were received in the office of this Court on 25th February, but the
paper book was not ready until 2nd July, a delay of over four months. In a capital sentence case
this delay is unreasonable and requires explanation. The result of this delay and the intervention
of the long vacation had been that the appellants have remained under sentence of death for
approximately ten months. In consideration of these facts, and all the facts and circumstances of
this case, which depends solely upon circumstantial evidence, and in the hope that this course
may lead to the discovery and apprehension of the actual perpetrator of this atrocious crime, we
do not confirm the sentence of death, but sentence each of the appellants instead to
transportation for life.
Nasim Ali, J.
21. I agree. Mr. Basu appearing on behalf of the accused Benoyendra has contended before us
that we have no power to affirm the conviction of the accused, if the verdict of the jury on which
the conviction is based is found by us to be erroneous owing to misdirections of the Judge. The

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line of reasoning adopted by Mr. Basu is as follows: By proviso to Section 376, Criminal P. C.,
sentence of death cannot be confirmed by this Court until the appeal of the accusd has been
disposed of. By Section 418 (1), of the Code, where the trial is by jury, appeal lies on a matter of
law only. In disposing of appeals in such cases the powers of the appellate Court are limited by
Section 423 of the Code (1). If there is no error of law the appeal fails. If there is an error of law
the appeal succeeds. Admission of inadmissible evidence, misdirections or non-directions on
material points are errors of law. Sub-section 2 of Section 423, authorises the Court to alter or
reverse the verdict of a jury if it is erroneous owing to a misdirection of the Judge. As soon as the
verdict is found to be erroneous owing to misdirection of the Judge this Court is bound to set
aside the verdict as well as the conviction and sentence. After the conviction and the sentence
are set aside nothing remains to be confirmed under Section 376 (a) of the Code. Two courses
are thereafter open to this Court (a) to acquit the accused or (b) to order a re-trial. This Court
can go into facts for either of those two purposes. It cannot go into facts and substitute its own
verdict in place of the verdict of the jury which has been already set aside. The word "erroneous"
in Sub-section (2) of Section 423 does not mean wrong in facts but wrong in the process by
which it has been arrived at. The expression "in fact has occasioned a failure of justice" in
Section 537 (d) of the Code does not imply failure of justice in reality, i.e. on merits. It implies
prejudice or some substantial wrong to the accused. Section 167 of the Evidence Act must be
read subject to the general principle laid down (1894) A C 57 Makin's case (1894) A C 57, that
the right to be tried by a jury is a cherished right and cannot be taken away by the Court of
appeal.
22. In support of this argument reliance was placed by the learned Advocate in the following
cases, Waffadar Khan v. Queen-Empress (1894) 21 Cal 955, Ali Fakir v. Queen-Empress (1897)
25 Cal 230, Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576, Harzir v. Emperor (1910) 14 C
W N 493, Emperor v. Ikramuddin 1917 All 173, Ramesh Chandra Das v. Emperor 1919 Cal 514.
In Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 there was no appeal on facts. The word
"erroneous" in Section 423 was taken to mean wrong not on facts but wrong in the process by
which it was arrived at. The reason given for this interpretation was that the word must be read
in connection with the words that follow. In this case the principle in Makin's case (1894) A C 57
was applied and no reference was made to Section 167, Evidence Act. (1894) A C 57 Makin's case
(1894) A C 57 proceeded on the principle that right to be tried by jury is a cherished right and if
an accused be deprived of that right, substantial wrong is done to the accused and there is
miscarriage of justice. The verdict of the jury was set aside and the accused was acquitted. In Ali

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Fakir v. Queen-Empress (1897) 25 Cal 230 the verdict of the jury was found to be vitiated by
misdirections. This Court set aside the verdict and ordered a re-trial in view of the decision in
Waffadar's case WAffadar Khan v. Queen-Empress (1894) 21 cal 955. In this case also there was
no appeal on facts. In Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576 the principle in
Makin's case (1894) A C 57 was applied. In this case there was no appeal on facts. The
misdirections of the Judge were found to have misled the jury upon a material point. The Court
of appeal was not in a position to say what effect the misdirection might or might not have on
the minds of the jurymen. Under these circumstances it was held that the prisoners were
prejudiced and there had been failure of justice. The conviction was set aside and a retrial was
ordered. In Harzir v. Emperor (1910) 14 C W N 493 the principle in Sadhu Sheikh's case Sadhu
Sheikh v. Queen-Empress (1900) 4 C W N 576 was followed. There was no appeal on facts.
Section 167, Evidence Act, did not apply to it as no inadmissible evidence was placed before the
jury. In this case re-trial was ordered in the case of some of the accused. In Emperor v.
Ikramuddin 1917 All 173 the appeal was against an order of acquittal. The Allahabad High Court
followed the principle laid down in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955, set
aside the conviction and ordered a re-trial.
23. In Ramesh Chandra Das v. Emperor 1919 Cal 514 there was no appeal on facts. The verdict of
the jury was based on some inadmissible evidence. Section 167, Evidence Act, was not applied as
the trial was by jury and the appeal lay on a matter of law only. In this case however it has been
observed that the true rule is that the Court of appeal should not confirm the conviction of the
appellant or regard the legal evidence as sufficient to justify the decision unless it is satisfied
that the verdict of the jury would have been the same if no evidence had been wrongly admitted
and that the same principle should be applied to the wrongful admission of evidence as to
misdirections of law. In this case the Court was not in a position to predict that the verdict of the
jury would not have been the same if no evidence had been wrongly admitted. The appellant was
discharged in this case, as re-trial was held to be a matter of discretion. The learned Advocategeneral appearing for the Crown invited our attention in this connection to the following cases:
Queen-Empress v. Ram Chandra (1895) 19 Bom 749, Taju Paramanik v. Queen-Empress (1898)
25 Cal 711, Emperor v. E.W. Smither. (1903) 26 Mad 1, Superintendent and Remembrancer of
Legal Affairs v. Syam Sundar 1922 Cal 106, Harendra Nath v. Emperor 1925 Cal 161,
Government of Bengal v. Santiram Mondal 1330 Cal 370, Saroj Kumar v. Emperor 1932 Cal 474
and Ram Chandra v. Emperor 1933 Bom 153. In Ram Chandra v. Emperor 1933 Bom 153 the
Bombay High Court dissented from the decision in Waffadar Khan v. Queen-Empress (1894) 21

327
Cal 955. In this case the verdict of the jury was vitiated by some inadmissible evidence. The
learned Judges however applied the provisions of Section 167, Evidence Act, and affirmed the
conviction and sentences though the appeal lay as a matter of law only. The reasons given were:
(1) no authority was cited in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955 in support of
the interpretation of the word "erroneous" in Section 423 of the Code. (2) In view of the
provision of Section 167, Evidence Act, and Sub-section 537 and 423, Clause (d), Criminal P. C.,
the principle in Makin's case (1894) A C 57 was not applicable in India. The learned Judges
applied the test laid down in In Re: Elahi Buksh (1866) 5 W R, 80, viz., whether if the case had
been tried by a Judge and assessors the Court would set aside the verdict.
24. It was pointed out that a re-trial should be ordered where the evidence is of such a character
as to render it difficult to pronounce upon its value without hearing witnesses, but where the
evidence is one sided and practically undisputed and the result depends upon the inference from
that evidence the matter should be determined by the Court of appeal and no re-trial should be
ordered. In Taju Paramanik v. Queen-Empress (1898) 25 Cal 711, this Court dissented from the
decision in Waffadar Khan v. Queen-Empress (1894) 21 Cal 955. The reasons given are (1) that
the principle enunciated in Makin's case (1894) A C 57 is not applicable in this country as the
policy of this country is different, (2) that nowhere the law lays down that when the verdict is set
aside the Court must necessarily direct a new trial. In this case the appeal lay on a matter of law
only. In Emperor v. E.W. Smither. (1903) 26 Mad 1 the test in In Re: Elahi Buksh (1866) 5 W R,
80 was applied. It is pointed out that trial by jury is a comparatively recent innovation in India
and even now all the offences are not so tried. The principle in Makin's case (1894) A C 57
should not be applied to a country where the history and essential characteristics of the law of
trial by jury are very different. It has been observed in this case that Section 418 simply means
that if there is an error of law the appeal will lie, and if there is no such error no appeal will lie
and that the section does not prohibit the Court in a case where an appeal lies on a question of
law from deciding questions of fact which other sections of the Code require the Court to decide
in order to do justice to the case. In this case it is also pointed out that the words "in fact" in
Section 537, indicate that in order to determine whether there has been a failure of justice in fact
we must look into the facts to see what they are. Waffadar Khan v. Queen-Empress (1894) 21 Cal
955 and Ali Fakir v. Queen-Empress (1897) 25 Cal 230 were dissented from by the learned
Judges.

328
25. In Superintendent and Remembrancer of Legal Affairs v. Syam Sundar 1922 Cal 106 there
was an appeal on a matter of law only. Though there had been misdirections, this Court refused
to set aside the verdict and dismissed the appeal as it came to the conclusion after examining the
evidence, that the misdirection in fact did not occasion a failure of justice. In Harendra Nath v.
Emperor 1925 Cal 161 this Court did not interfere with the verdict of the jury though it was
based on some inadmissible evidence in view of the provision of Section 167, Evidence Act, as
apart from the inadmissible evidence there was sufficient evidence to justify the decision. In
Government of Bengal v. Santiram Mondal 1330 Cal 370 this Court has laid down that even if
the verdict of the jury is erroneous owing to misdirection in a proper case this Court should deal
with the whole case under the power and duty conferred upon it by law. This was an appeal
against an order of acquittal. In Saroj Kumar v. Emperor 1932 Cal 474 it has been laid down by
this Court that before we can interfere with the verdict of the jury we must be reasonably
satisfied that not only the Judge misdirected the jury but that his misdirection has caused them
to come to a conclusion which is in fact wrong. In deciding Harzir v. Emperor (1910) 14 C W N
493 the Bombay High Court followed the principle laid down in the case reported in QueenEmpress v. Ram Chandra (1895) 19 Bom 749. In this case though iho appeal lay on a matter of
law only Patkar J., made the following observations:
In a case of trial by jury the appellate Court has power in the event of any misdirection or
admission of inadmissible evidence either to convict or to acquit the accused according as the
evidence is or is not sufficient for conviction where the facts have to be determined and the
evidence is of such a character that it renders it difficult to pronounce any opinion as to its
character without hearing witnesses, re-trial may be ordered.
26. It may be noticed here that in the Code of 1872 (Section 283) the words used were has
occasioned a failure of justice either by affecting the due conduct of the prosecution or by
prejudicing the prisoner in his defence.
27. In the Code of 1882 the latter words were omitted and the section simply read "has
occasioned a failure of justice." after the decision in Waffadar Khan v. Queen-Empress (1894) 21
Cal 955 and Ali Fakir v. Queen-Empress (1897) 25 Cal 230 the words "in fact" were inserted and
the explanation and an illustration were added in 1898. In Emperor v. E.W. Smither., (1903) 26
Mad 1 Benson, J., observed:

329
The words 'in fact' were introduced into the code in 1898 apparently in order to emphasise the
duty of the Court to go into merits before interfering in consequence of a misdirection or other
error.
28. It is not disputed by Mr. Bose that in an appeal against an order of acquittal this Court can
go into facts and convict the accused though the verdict may be erroneous owing to a
misdirection of the Judge. Mr. Bose also concedes that in appeals against the conviction this
Court after setting aside the verdict on the ground of misdirection has power to go into facts and
acquit the accused. The learned Advocate-General contended that this Court has power under
Section 423 to dismiss the appeal (even if verdict is erroneous in the process by which it has
been arrived at) if this Court find that the conviction is right on the merits from the reported
cases it appears that there is a divergence of judicial opinion on the question whether in cases
where the appeal lies on a matter of law only the appellate Court has power in the event of any
misdirection by the Judge or admission of inadmissible evidence to deal with the whole case on
merits and to dispose of the case finally. The later decisions of this Court show that this Court
has such power. In cases however where the appellants have been sentenced to death they have
in this Court an appeal on matter of fact as well as of law. Section 374, read with 418 (2),
supports this view. In disposing of a reference under Section 374 and the appeals by the persons
sentenced to death we are therefore obliged to come to our own independent conclusions as to
the guilt or innocence of the accused independently of the verdict of the jury or of the opinion of
the Judge. In these cases the questions of misdirection are of less importance. But though we are
not bound by the verdict of the jury we must attach greatest possible weight to the verdict of the
jury if it answer a reasonable test. [See Queen-Empress v. Chatradhar (1898) 2 C W N 49,
Gulkhan v. Emperor 1928 Cal 430, Emperor v. Pachoo Shaikh 1931 Cal 178, and Emperor v.
Ashraf Ali 1933 Cal 426.] Much reliance was placed by Mr. Bose on a decision of this Court of
the year 1927 in Emperor v. Rajab Ali Fakir 1927 Cal 631 103 C C 790, in which the following
observations were made:
The learned Deputy Legal Remembrancer has argued that the entire case is open to us under
Section 374, Criminal P. C. No doubt that is so; but that assumes that whatever has happened
before the case comes to this Court has been done in strict accordance with the provision of the
law, viz., that there had been a proper trial before a Judge and jury. But we are unable to say that
there has been a proper trial in the case, the only course that is open to us is to set aside the
conviction and sentence and to direct a re-trial.

330
29. This was a very peculiar case. In this case the Judge told the jury that there was no case
considering the matter from any point of view other than the point of view presented by the
prosecution and that the only course open to them was to bring in a verdict of guilty. Under
these circumstances this Court held that there has been no proper trial. It may be noticed that in
this case also it has been observed that in a reference under Section 374 the entire case is open
to us. In disposing of a reference under Section 374 of the Code and the appeals by the accused,
we are therefore bound to satisfy ourselves by going through the evidence whether the accused
have been rightly convicted, but in doing so we must attach considerable weight to the verdict of
the jury. If after examining the evidence which is admissible in law we find even without any
opportunity of hearing witnesses and seeing their demeanour, that certain facts emerge from the
evidence as proved beyond reasonable doubt and the decision in the case depends upon
inference to be drawn from these proved facts, we are not bound to order a retrial. When
however the evidence cannot be properly weighed by the Court without hearing witnesses and
seeing their demeanour in the witness box and we are not in a position to say whether the facts
from which inferences are to be drawn are true or false, retrial should be ordered. I am therefore
unable to accept the broad proposition that in dealing with reference under Section 374 and the
appeal by the accused only two courses are open to us, viz. either to acquit the accused or to
order a re-trial.
30. Now the charge against the accused is that between May 1932 and December 1933 at
Bhawanipore, Calcutta, Howrah and Deoghar, Pakur, Bombay and other places they along with
others were parties to a conspiracy to commit murder of Amarendra and in pursuance of the
said conspiracy Amarendra was in fact murdered by the introduction, on 26th November 1933
of virulent plague bacilli in his body which resulted in his death on 4th ,December 1933. It is not
necessary that there should be express proof of conspiracy. It is not necessary to prove that two
or more persons came together, actually agreed in terms to have the common design and to
pursue it by common means and so carry it into execution. There may be no witnesses to say
that in their presence the conspirators agreed to carry out an unlawful object. From the acts and
conduct agreement can be inferred. If it is proved that they pursued, by the acts, the same object
often by the same means, one performing one part of the act and the other another part of the
same act so as to complete it with a view to the attainment of the object which they were
pursuing, you are at liberty to draw the inference that they conspired together to effect that
object: R. v. Murphy (1873) 8 C & P 297. The question whether certain acts were done in
pursuance of a conspiracy or were done separately without any pre-arranged plan depends upon

331
the evidence in each case. The evidence must show a common plan so as to exclude a reasonable
possibility of the acts of the conspirators having been done separately and connected only by
coincidence. (His Lordship then considered the evidence and proceeded). There are therefore no
circumstances to show that his attempts to get plague culture in 1932 and his activities at the
Arthur Road hospital in 1933 were in connection with his experiments on any plague cure. It is
true that:
The proof of a case against the prisoner must depend for its support not upon the absence or
part of any explanation on the part of the prisoner himself but from the positive alternative
evidence of his guilt that is given by the Crown. It is not however an unreasonable thing and it
daily occurs in investigation both civil and criminal that if there is a certain appearance made
against a party if he is involved by the evidence in a state of considerable suspicion he is called
upon for his own sake and his own safety to state and to bring forward the circumstances
whatever they may be which might reconcile such suspicious circumstances with perfect
innocence, Regina v. Frost (1839) 4 St Tr N S 85 443.
31. From the facts and circumstances of the case the only reasonable inference is Taranath went
to Bombay for the purpose of securing plague culture. Now Benoy in his statement says that he
had been to Bombay in connection with his film business. It has been already stated that he
arrived at Bombay on 30th April 1933 and left Bombay on the next day when he was told by Dr.
Naidu to ask Taranath to write to the Director of Haffkine Institute for permission to make his
experiments in the laboratory of the Institute. On his arrival at Bombay on 30th April 1933 he
took Ratan Salaria as his guide. Ratan Salaria in his examination says that Benoy told him that
his business in Bombay was to obtain facilities for Taranath's plague cure. He further says that
Benoy did not say a word to him about any film Company or asked him to guide him to any film
Company. It was never suggested to Ratan Salaria in the course of his cross-examination that his
first visit to Bombay was in connection with any film business or that he ever visited any film
Company. On his second visit to Bombay he also told Ratan Salaria that the object of his visit
was the same as on the last occasion. This time he tried to get plague culture surreptitiously
from the Haffkine Institute through Dr. Nagrajan and Dr. Sathe. He no doubt denies this, but no
reason was shown why these two witnesses from Bombay would give false evidence against
Benoy. There is nothing to show that Taranath asked Benoy to see these two doctors.

332
32. On the other hand Taranath says that he asked him to try Arthur Road Hospital for facilities
for his experiments there. There was no suggestion to Ratan Salaria that Benoy's second visit
was in connection with some film business. Much reliance was placed by the learned advocate
for Benoyendra on Ex. 33. This is a letter which was written by Benoy to Amar on 20th July
1933. In this letter Benoy stated that his trip to Bombay was in connection with the production
of a film and the costs were paid by a Company to a rupee, and that there were letters, cheques
and bills in connection with the matter. No evidence was adduced by Benoy to substantiate these
statements in Ex. 33. There is nothing to show that such evidence was not available at the time
of the trial. In the course of the trial Benoy did not suggest the name of any company or anything
from which the prosecution could get any details of this business. Prosecution therefore was not
in a position to bring any evidence to show that his story about film business was false. Benoy
was spending money from the joint fund and in order to meet any objections from Amarendra
he was giving a false explanation in Ex. 33 about his expenses at Bombay.
33. It may be noticed here that after the death of Amarendra, Benoyendra made attempts to
tamper with the evidence. Benoy does not explain why he was going to Bombay with money on
18th February 1934. The reason is obvious. He was going to Bombay because he knew that the
best evidence about his complicity in the crime would come from Bombay. There are no
materials or circumstances for a reasonable hypothesis that Benoyendra's visit to Bombay was in
connection with any film business or any business other than the procurement of plague culture.
The report (Ex. 26) of Dr. Santosh Kumar Gupta (P. W. 33), his evidence in Court and the
evidence of Dr. Naidu (P. W. 68) prove that Amarendra died of plague. It was argued on behalf
of the appellants that the report of Dr. Gupta should not be relied upon as he did not apply the
agglutination test. The evidence of Dr. Naidu is that it is extremely difficult, almost impossible to
get a homogeneous and even suspension without spontaneous clumping and that specific anti
plague serum agglutinates precede tuberculosis reduentum and also some members of the
Pasteurella group. There is therefore no substance in this contention. It had been already stated
that on 26th November 1933, while Amarendra was proceeding across the Howrah Station Hall
after passing through the no-exit gate, he shouted out that he had been pricked by somebody
with a pin. On 29th November Dr. Nalini found the mark of a prick on the right deltoid,
something like the mark of a hypodermic needle. Dr. Nalini refused to accept the defence
suggestion that the mark which he saw was the mark of a flea or insect-bite. The evidence in this
case excludes the defence suggestion that Amarendra was bitten by a rat-flea at the Howrah
Station. I am satisfied from the evidence in this case that plague bacilli were injected into Amar's

333
system by some man at the Howrah Station and that his death was caused by the injection of the
sensis. Now what was the source of this plague culture? The evidence in this case shows:
34. (1) That the Haffkine Institute at Bombay is the only place in India where plague research
and researches on cultured Sera and Vaccine are being carried on since 1896 (P. W. 68). Makin's
case (1894) A C 57 That the said Institute supplied cultures to Government Institutions and
research Institutions, if approved by proper authority (P. W. 68). Waffadar Khan v. QueenEmpress (1894) 21 Cal 955 That the said Institute does not supply plague culture to private
bodies or persons (P. W. 68). Ali Fakir v. Queen-Empress (1897) 25 Cal 230 That in 1932 the
Haffkine Institute sent some plague culture to Dr. Ukil of Calcutta but the culture and the subculture were destroyed in 1932 when the sub-culture failed (Exs. 15, 15/1, Ex. 16 and the
evidence of P. W. 41 and P. W. 43); Sadhu Sheikh v. Queen-Empress (1900) 4 C W N 576 that in
January or February 1933 four tubes of plague culture were supplied by the Haffkin Institute to
the School of Tropical Medicine in Calcutta (P. W. 69); Harzir v. Emperor (1910) 14 C W N 493
that the Arthur Road Hospital at Bombay is the only place in Bombay where plague cases are
treated and culture is made in that hospital only for the Haffkin Institute (P. W. 47); Emperor v.
Ikramuddin 1917 All 173 that the said hospital does not supply plague cultures to any other
person or Institute except the Haffkin (P. W. 47); Ramesh Chandra Das v. Emperor 1919 Cal 514
that at Kanbum Valley researches are going on with regard to several aspects of plague (P. W.
68); and (9) that there are plague hospitals in Poona, Hyderabad and Secunderabad (P. W. 68).
35. Now the evidence does not show that plague cultures are made or are available at Kanbum
Valley or the plague hospitals in Poona, Hyderabad and Secunderabad. The evidence of P. W. 69
shows that out of the four sealed tubes of plague culture indented by the Tropical School in
Calcutta, up to 2nd October 1934, three continued to be in the same condition as they were when
they were received from Bombay. The accused Tara Nath could not get plague culture in
Calcutta, in 1932 and 1933 and had to look to Bombay for the same. In July 1933 Benoyondra
told Dr. Nagarajan (P. W. 46) that he could not get plague culture in the Calcutta School of
Tropical Medicine. The Tropical School in Calcutta does not make plague cultures or stock them.
Plague cultures are generally indented for that school from the Haffkin Institute for purposes of
experiment. The inference therefore is legitimate that the other tube in the Tropical School was
used for experiments in the school before 6th April 1933. Captain Pasricha (P. W. 69) also said
that in no other place in Calcutta plague cultures are made or stocked the culture which was the
cause of Amar's death was not therefore procured from Calcutta. The attempts of Dr. Tara Nath

334
in 1932 and that of Benoyendra in 1933 to obtain plague culture from Haffkin Institute failed.
The evidence in this case does not suggest that it could have been obtained from the said
Institute. In July 1933 Benoyendra while at Bombay got the information from Dr. Nagarjan that
plague cultures were available in Arthur Road Hospital at Bombay. Tara Nath on his arrival at
Bombay got access to plague cultures which were alive. The evidence further shows that Tara
Nath had means to remove some plague culture without the knowledge of the hospital
authorities and carry the same to Calcutta.
36. There is evidence also to the effect that plague culture if purloined in July 1933 could be kept
alive up to 26th November 1933. There is also evidence that from 1926 up to September 1934
only one doctor, i.e., Tara Nath from Bengal had gone from Calcutta and Bengal to Arthur Road
Hospital. The only reasonable inference is that the culture which was injected into Amar's body
was brought from the Arthur Road Hospital at Bombay. The evidence does not show that the
man who injected plague culture into Amar's body had any opportunity of stealing culture from
the said hospital. He must have therefore got it from some body else. Benoyendra was on bad
terms with Amarendra. The evidence does not show that any one else had any motive for
murdering Amarendra. Benoyendra and Tara Nath were close friends and associates. The
activities of Benoyendra and Tara Nath at Bombay in July 1933 can be explained only on the
reasonable hypothesis that they were acting in close concert to steal plague culture from Arthur
Road Hospital. In pursuance of the preparation made by Benoyendra, Tara Nath on his arrival
at Bombay obtained facilities for stealing plague bacilli from the said hospital. They could be
carried to Calcutta and kept alive till 26th November 1933. The germ which was responsible for
Amarendra's death was obtained from Arthur Road Hospital and the evidence shows that
excepting Tara Nath no body else had any opportunity for purloining it from that hospital. The
only legitimate inference therefore is that the plague culture which was the cause of
Amarendra's death was procured from Arthur Road Hospital in pursuance of a conspiracy to
murder Amarendra and was supplied to a person at present unknown who injected it into
Amar''s system and Amarendra was murdered in fact by the injection of that sepsis at the
Howrah Station on 26th November 1933 and that Benoyendra and Tara Nath were parties to
that conspiracy.

335

Jaharlal Das vs State Of Orissa on 12 April, 1991


Equivalent citations: 1991 AIR 1388, 1991 SCR (2) 298
Author: K J Reddy
Bench: Reddy, K. Jayachandra (J)
PETITIONER:
JAHARLAL DAS
Vs.
RESPONDENT:
STATE OF ORISSA
DATE OF JUDGMENT12/04/1991
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1991 AIR 1388

1991 SCR

1991 SCC

JT 1991 (2)

(3) 27

1991 SCALE

(2) 298
264

(1)713

ACT:
Indian Penal Code, 1860: Section 302 and 376- Rape
murder-

Criminal

evidence-Sufficiency

trial-Death

and

penalty-Circumstantial

of evidence for conviction-Gravity

of

offence cannot overweigh legal proof- Caution against basing


conviction on suspicion-Court should ensure that conjectures
and

suspicions do

not

take the

place

of

legal

proof-

336

Necessary conditions for circumstantial evidence as a

basis

for conviction explained-Inquest Report-Purpose of.

HEADNOTE:
The
aged

five

appellant was tried for rape and murder of a


years.

The

entire evidence

girl

against

him

was

circumstantial: (a) the accused and the deceased werelast


seen

together; (b) false explanation given by

regarding

the whereabouts

of the

the

deceased; (c)

accused

alleged

recovery of the dead body of the deceased at the instance of


the accused and (d) presence of abrasions on the genital

of

the accused as well as blood stains on his wearing

apparels

and

evidence

nail clippings. Relying on the circumstantial

the Trial Court convicted him under Sections 302 and 376 and
sentenced
years

him to death for the offence of murder and

rigorous imprisonment for the offence of

seven

rape.

The

High Court confirmed the conviction and the sentence awarded


by the Trial Court. In appeal to this court it was contended
on behalf of the appellant that the circumstantial

evidence

is

guilt

wholly

insufficient

to bring home

the

of the

accused.
Allowing the appeal, this Court,
HELD:

1. The

circumstantial

evidence

sustain the conviction must satisfy three

in

order

to

conditions;

(1)

the circumstances from which an inference of guilt is sought


to

be drawn, must be cogently and firmly established;

those

circumstances

nerringly
the

should

be

of

definite

(ii)
tendency

pointing towards the guilt of the accused;

(iii)

circumstances, taken cumulatively, should form a

chain

so complete that there is no escape from the conclusion that


within all human probability the crime was committed by

the

accused and none else, and it should also be incapable

of

337

explanation

on any other hypothesis than that of the

guilt

of the accused [303E-F].


299
Hanumant and Anr.v. The State of Madhya Pradesh, [1952]
SCR

1090;

Wadhwani

Reg v.

Hodfe, [1838]

Lew.227;

Dharam Das

v. State of Uttar Pradesh, [1974] S.C.R.

607

and

Jagta v. State of Haryana, [1975] 1 SCR 165, referred to.


2.In
evidence

cases

depending

largely

upon

circumstantial

there is always a danger that the


the

place of

legal

conjecture

suspicion

may take

proof

suspicion

however so strong cannot be allowed to

or

andsuch
take

the

place of proof. The Court has to be watchful and ensure that


conjectures

and suspicions do not take the place

of

legal

sometimes unconsciously it may happen

to

be

proof

for

short

step between moral certainty and the legal proof.

times

it can be case of 'may be true. But there is

a
At

long

mental distance between 'may be true' and 'must be true' and


the

same

divides conjectures from

sure

conclusions.

Court must satisfy itself that the various circumstances

The
in

the chain of evidence should be established clearly and that


the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused. [304-G, 309E-F]
3.In

the instant case

the

circumstance

that the

deceased was last seen in the company of the accused is

not

established

was

not

beyond reasonable doubt. This circumstance

mentioned in

the Inquest

Report

prepared

by the

Investigating Officer. Further the statement of the


of

parents

the deceased that the accused took the deceased girl

by

itself is not enough to conclude that the deceased was


seen
them

in

the company of accused because even

last

according

on being inquired the accused told them that

to

he

had

sent the girl back in a truck. [308C, 305F]


3.1

The

prosecution has not conclusively

proved the

crucial circumstance of the recovery of the dead body of the

338

deceased
was

girl at the instance of the accused. No

Panchnama

prepared for such a discovery under Section 27

Evidence

of

Act and there is no mention in the Inquest

the

Report

as

to how the body was discovered. On the other hand

is

any amount of doubt and suspicion

there

about the

accused

having shown the place of occurrence. Once it is held

that

the

body

crucial circumstances namely the discovery of the

at the instance of the accused is not established, than

the

other

the

circumstance are hardly sufficient to

establish

guilt of the accused. [308B-C-D, 306B, 307C]


3.2

The explanation given by the accused that

he

sent

the girl back to the village in a truck cannot be held to be


not

plausible and

therefore false

because it

is

not

uncommon in villages for children to go about the fields and


walk short distance while coming back to the village. [308E]
300
3.3 The prosecution has also not established that
accused had
When

the

an intercourse on the day of

the

doctor who examined the accused

the
occurrence.

stated

that

he

could not find any sign of sexual intercourse atleast within


one

hour

of his examination then it is only

matter

of

conjectures as to when the accused had any intercourse.

The

presence of blood in the nail clippings and on the underpant


does not also incriminate and do not connect the accused
any

in

manner with the alleged offences. The accused also

had

given an explanation namely that his gums were bleeding

and

in

wiping

out the same he got these blood

stains. Even

otherwise this circumstance coupled with the circumstance of


last seen in the company of the accused would ;not amount to
legal

proof

of

the guilt particularly

when

the

crucial

circumstance namely that the accused showed the dead body is


held to be not established. When such a main link goes,
chain gets snapped and the other circumstances cannot in any
manner establish

the guilt

of

the accused beyond all

the

339

reasonable
about

doubts.

Therefore there is a

reasonable

doubt

the guilt of the accused and the benefit of the

same

should go to him. Accordingly the conviction and sentence of


the accused is set aside. [309B-C, F-G]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 276 of 1991.


From the Judgment and Order dated 16.7.1990 of the Orissa High Court in Criminal Appeal No.
117 of 1990 And Death Reference No. 1 of 1990.
H.K. Puri (Amicus Curiae) for the Appellant. A.D. Giri, Solicitor General and A.K. Panda for the
Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. Leave granted.
This is a case of death sentence. The fact that such a sentence is awarded even in the year 1990
would immediately suggest that the offence involved should be of a grave nature. Yes, the
offence is not only grave but heinous and inhuman.
A girl aged five years was a victim of rape and thereafter murder. The sole appellant before us
was tried, convicted and sentenced to death by the Sessions Court and confirmed by the High
Court. It is a case depending entirely on circumstantial evidence and the obvious contention is
that the circumstantial evidence is wholly insufficient to bring home the guilt to the accused.
No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh
as far as legal proof is concerned. Invariable in such cases a person last seen with the victim,
unless otherwise there are circumstances prima facie exonerating him, would be the prime
suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed
to take the place of proof. With that caution in mind we shall now proceed to examine the facts
and circumstances as put forward and the various arguments advanced.

340
The deceased Disco alias Sukumari, a girl aged 5 years was the daughter of P. Ws 1 and 6, the
father and the mother who were drummers by castes. They belong to village Badachatra, an
interior part of Mayurbhanj District. They had three children and the deceased was the eldest. In
the year 1988 during Kalipuja time the accused who was the resident of Tulsibani village about
one kilometre away, came to the house of P.Ws 1 and 6. He named their newly born daughter.
He took his meals in their house and went away saying that he would come with the new dresses
for the newly born daughter. Next day i.e. on 9.11.88 he came to their house in the morning with
new dresses. He told the parents that he would take the deceased with him to Bombay Chhak to
get new dresses for the other two children. He took his lunch and went with deceased towards
Bombay Chhak. Sometime after his departure P.W 6 told her husband P.W.1 to proceed to
Bombay Chhak as the deceased might be crying. Accordingly P.W. 1 accompanied by one
Sambhu proceeded towards that Chhak. On the way they met one Babuli and asked him whether
he had seen the accused and the deceased to which he replied in the negative. P.W. 1 came back
to the village and sat in the shop of P.W. 2 who informed that he had seen the accused going
towards village Tulsibani alongwith the deceased. P.W. 1 and Sambhu then went to that village
but could not find them there. Therefore they went to Jharpokharia Police Station and gave a
report to the Officer-in-charge P.W.11 stating that the deceased. P.W. 1 again went to the
Tulshibani Village where a person informed him that he has seen the accused going towards his
house. P.W. 1 went there and enquired the accused. He told P.W. 1 that the deceased had gone
back home but P.W. 1, caught hold of him but the accused squirmed away from his grip. P.W. 1,
however, again caught him and took him to his Village and according to P.W. 1 on being
questioned the accused confessed to have raped and committed murder of the deceased. The
accused is alleged to have pointed the place where he had thrown the dead body, whereafter
P.W. 1 and others proceeded in that direction. P.W. 11 the Police Officer also came in a jeep and
took the accused into custody, drew up F.I.R. and sent the same to the Police Station for
registration of a case. The accused is alleged to have led the Police party to the spot where the
dead body was lying. P.W. 11 found the deceased lying with injuries on her vagina and other
parts. He held the inquest in the presence of P.W. 4 and others and sent the dead body for postmortem. P.W. 7 conducted the post- mortem. He noticed abrasions all over the body. He also
found one bruise on the left side of the forehead and a lacerated wound of 2.5 cm x 1 cm x
muscle deep starting from the posterior angle of vagina along the perinium upto the anus. On
internal examination he found the following injuries.

341
"(1) Soft tissues and muscles below the external injuries to the neck were contused with extravassation of blood into the soft tissues.
(2) Heamatoma under the scalp corresponding to external injury No. 11.
(3) The hymen was torn and the floor of the vagina i.e., vaginal channel was lacerated. This
injury corresponds to external injury No. 15."
The Doctor opined that all the injuries were antemortem and homicidal in nature and cause of
death was due to asphyxia and shock as a result of strangulation and also due to injuries to the
vagina. He also opined that the injuries on the neck suggest that the deceased was strangulated
by pressure of hands. So far injury to the vagina is concerned, he was of the opinion that the
same could have been caused by forcible penetration of a male organ. The accused also was
examined on 10.11.88 itself by another Doctor P.W 8 for some abrasions on his genital. P.W. 8,
however, categorically stated that on examining the accused he could not find any recent sign of
sexual intercourse. The prosecution relied on some blood stains which were found on his dhoti
but the accused explained away by saying that they were caused by the bleeding of his gums. The
accused when examined under Section 313 pleaded not guilty. He however, admitted that he
went to the house of P.W. 1 but denied the rest of the case.
The trial court did not accept the P.W. 1, s evidence regarding the extra-judicial confession
alleged to have been made by the accused. It held that nobody else has mentioned about this
extrajudicial confession and at any rate it was supposed to have been made in the presence of
the police. We have also examined the evidence of P.W. 1 as well as the evidence of the other
witnesses. The trial court has rightly rejected this part of the prosecution case regarding the
alleged extra-judicial confession. As a matter of fact we do not find anywhere mentioned that
such a confession was made by the accused to P.W. 1 neither in the F.I.R. nor in the evidence of
other witnesses who were also said to have been present when the accused was brought to the
village by P.W. 1. P.W. 6, who is no other than the wife of P.W. 1, did not even mention about it.
The trial court, however, relying on the other circumstances convicted the accused under
Sections 302 and 376 I.P.C. and sentenced him to death subject to confirmation by the High
Court and for seven years' rigorous imprisonment for the offence of rape. The sentences are
directed to run concurrently. The High Court confirmed the conviction and sentence awarded by
the trial court.

342
As already mentioned this case rests purely on circumstantial evidence. It is well-settled that the
circumstantial evidence in order to sustain the conviction must satisfy three conditions; 1) the
circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established; ii) those circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; iii) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else, and it should also be incapable of
explanation on any other hypothesis than that of the guilt of the accused. In the leading
case Hanumant and Another v. The State of Madhya Pradesh, [1952] SCR 1090 it is also
cautioned thus: "In dealing with circumstantial evidence there is always the danger that
conjecture or suspicion may take the place of legal proof. It is therefore right to remember that
in cases where the evidence is of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be fully established and all the facts
so established should be consistent only with the hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive nature and tendency, and they should be such as to
exclude every hypothesis but the one proposed to be proved. In other words, there must be a
chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show that within all human
probability the act must have been done by the accused."
Mahajan, J., as he then was, has also aptly referred to a passage containing the warning
addressed by Baron Alderson to the Jury in Reg v. Hodge, [1838] 2 Lew 227 which is stated as
under;
"The mind was apt to take a pleasure in adapting circumstances to one another and even in
straining them a little, if need be, to force them to form parts of one connected whole; and the
more ingenious the mind of the individual, the more likely was it, considering such matter, to
over- reach and mislead itself, to supply some little link that is wanting, to take for granted some
fact consistent with its previous theories and necessary to render them complete."
In Dharam Das Wadhwani v. State of Uttar Pradesh, [1974] SCR 607 it was held that " unlike
direct evidence the indirect light circumstances may throw may vary from suspicion to certitude
and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.
" In Jagta v. State of Haryana, [1975] 1 SCR 165 it was held that "The circumstances that the

343
accused could not give trustworthy explanation about the injuries on his person and about his
being present on the scene of ;occurrence are hardly sufficient to warrant conviction."
It may not be necessary to refer to other decisions of this Court except to bear in mind a caution
that in cases depending largely upon circumstantial evidence there is always a danger that the
conjecture or suspicion may take the place of legal proof and such suspicion however so strong
cannot be allowed to take the place of proof. The Court has to be watchful and ensure that
conjectures and suspicions do not take the place of legal proof. The Court must satisfy that the
various circumstances in the chain of evidence should be established clearly and that the
completed chain must be such as to rule out a reasonable likelihood of the innocence of the
accused. Bearing these principles in mind we shall now consider the reasoning of the courts
below in coming to the conclusion that the accused along has committed the offence.
The trial court relied on the following circumstances: "(a) 'Last seen' theory-that the accused and
the deceased were last seen together.
(b) Conduct of the accused-that the accused attempted to flee away when he could be seen at his
village by P.W.1;
(c) False explanation-the accused when questioned gave false explanation regarding the
whereabout of the deceased;
(d) Recovery of the dead body of the deceased on the showing of the accused-That the accused
pointed out the place where the dead body of the deceased was lying inside a paddy field;
(e) Presence of injury on the genital as well as stains of blood on the wearing apparel and
nailclippings of the accused."
The evidence of P.Ws 1, 2 and 6 are relied upon in support of the first circumstance namely that
the deceased was last seen in the company of the accused. P.W. 1 the father and P.W. 6 the
mother deposed that on the day of occurrence the accused came to their house and took the
deceased towards Bombay Chhak to purchase new clothes. The accused only admitted to the
extent namely that he had been to their house and denied the rest of the prosecution case.
However, we shall accept the evidence of P.Ws 1 and 6 to the effect that the accused took the
deceased on that day to Bombay Chhak. But that by itself is not enough to conclude that the

344
deceased was last seen in the company of the accused because even according to them on being
enquired, the accused told them that he sent the girl back in a truck. Even otherwise the distance
between the two villages is not much. P.W. 2's evidence, however, is relied upon that the
deceased was going in the company of accused. P.W. 2 is also a native of the same village to
which P.Ws 1 and 6 belong. He deposed that on a Wednesday he had been to village pond to take
his bath at about 12 noon and while returning she saw the accused going towards east with a
minor girl aged about 5 years but P.W. 2 does not say that the deceased was in his company. He,
however, proceeded to depose that he found P.W. 1 searching for some one and thereupon P.W.
2 told him that he has seen the accused with a minor girl going towards the paddy field. He
admitted that did not know whose daughter was in the company of the accused. In the crossexamination he further admitted that he did not talk to the accused. No. doubt P.W. 2's
evidence, to some extent, corroborates the evidence of P.Ws 1 and 6 but unfortunately even at
the stage of inquest this circumstance namely that the deceased was last seen in the company of
the accused, was not noted. We will advert to this aspect at a later stage. The important and
crucial circumstance heavily relied upon by the prosecution is the alleged recovery of the dead
body of the deceased on showing of the accused and the accused pointed the place where the
body of the deceased was lying. For this again the prosecution relied on the evidence of lP.Ws 1
and 11. Having carefully gone through the evidence of P.W. 1 we find that he has improved his
version from stage to stage. As already noted both the courts below were not prepared to place
any reliance on his evidence regarding the extra-judicial confession about which he made no
mention at any earlier stage. As far as the recovery of the body is concerned, P.W. 1 however
deposed that he managed to catch hold of the accused and brought him to the village and that
the police came in a jeep and took the accused into custody. Then all of them went towards
paddy field which had been pointed by the accused and on search they found the dead body.
P.W. 11 the Investigating Officer deposed at he went to village and found the accused to have
been detained. He therefor prepared the F.R.I. and sent the same for registration of the crime.
Then he arrested the accused and his evidence and his evidence thereafter to put in his own
words reads as under: "The accused pointed out the place where the dead body of the deceased
was lying and thereafter led me to the paddy field wherefrom I could recover the dead body of
the deceased Disco. As there were good number of persons present apprehending danger to the
accused I sent him to the police station. During course of investigation, I examined witnesses,
seized the dhoti (M.O. iii),Shirt (M.O.

345
iv) and this chadi marked M.O.VII from the accused under the seizure list already marked Ext.
3. The dead body of the deceased was lying in the paddy field where there were paddy plants
which had been damaged and scattered. I held inquest over the dead body of the deceased Disco
in presence of witnesses under the inquest report already marked Ext. 1. I noticed INJURIES on
the vagina and other parts of the body of the deceased. After inquest I sent the dead body for
P.M. examination through constables."
According to this evidence the accused is alleged to have taken P.W. 11 and others to the open
paddy field where the dead body was lying. It is only thereafter that the inquest report was
drawn up. However, P.W. 11 stated in his evidence that before going to the paddy field the F.I.R.
Ex. P. 10 was drawn up by him. Surprisingly we find a mention about the discovery of the body
in the F.I.R. itself. But the same is not found in the inquest. There is not even a reference to the
accused in the column No. 9 of the inquest report where the information of witness as to the
cause of death has to be noticed. We are aware that the purpose of inquest report is only to
ascertain the cause of death but in a case of this nature there should have been atleast a mention
in the inquest report as to how the body was discovered. Apart from that usually a panchanama
is prepared for such a discovery made under Section 27 of the Evidence Act but strangely in this
case there is no such panchanama nor there is any other evidence of P.Ws 1 and 11. P.W. 6 does
not say anything about this aspect. As a matter of fact the trial court has noted the discrepancies
in the evidence of P.Ws 1 and 11 and it is observed as under:
"The Investigating Officer, P.W. 11 has stated something more about the find of the dead body.
He speaks that the accused pointed out the place where the dead body of the deceased was lying
and thereafter led him to the paddy field wherefrom the dead body of the deceased could be
recovered. Though this part of this evidence has not been supported by P.W. 1,but from the
evidence of both P.Ws 1 and 11 coupled with the evidence of P.W.4 I am persuaded to hold that
on the showing of the accused, the dead body of the deceased was recovered from a paddy field."
We have perused the evidence of P.W. 4. His evidence does not in any manner incriminate the
accused. P.W. 4 deposed that the dead body of the deceased was found lying in paddy field and
that the police held inquest over the dead body in his presence and that the inquest report is P. 1
in which he put his signature as a witness. Nothing more is stated by him. He does not even refer
to the presence of the accused at the place where the dead body was found or at the time of
inquest, which was held also there. P.W. 4 does not in any manner help the prosecution case so

346
far as this circumstance is concerned. If ready the body has been discovered at the instance of
the accused there should have been discovered at the instance of the accused there should have
been a panchanama and a mention about the same in the inquest report. P.W. 11 categorically in
his evidence has stated that after sending the F.I.R. the accused was questioned and the body
was discovered thereafter at the instance of the accused and the inquest was held over the dead body and P.W. 4 was
a panch witness to the inquest and he also affixed his signature in the inquest report. But as
mentioned above P.W. 4 does not say anything about the accused being present anywhere near
the place where the dead body was found nor there is a reference to the accused in the inquest
report. The only two remaining witnesses P.Ws 1 and 11 namely the father of the girl and the
Investigating Officer respectively have contradicted each other. That is the type of evidence
regarding this crucial circumstance. It is highly dangerous to accept the same and hold that the
dead body was discovered at the instance of the accused. Having given our careful consideration
we are of the firm opinion that the prosecution has not established this circumstance
conclusively. On the other hand there is any amount of doubt and suspicion about the accused
having shown the place of occurrence. We may also point out at this stage that the circumstance
that the deceased was last seen in the company of the accused was not mentioned in the inquest
report. Therefore the first circumstance also namely that the deceased was last seen in the
company of the accused is not established beyond reasonable doubt. However, when once it is
held that the crucial circumstance namely the discovery of the body at the instance of the
accused is not established, then the other circumstances are hardly sufficient to establish the
guilt of the accused. The courts below have also observed that the accused gave a false
explanation. According to the prosecution case the accused is supposed to have stated to P.Ws 1
and 6 that he sent away the deceased in a truck. The courts below held that this explanation is
false mainly on the surmise that a minor girl could not have come back on her own in a truck.
We are not convinced that on this surmise alone we can hold that the accused has given a false
explanation. It is not uncommon in villages for children to go about the field and walk short
distances while coming back to the village. In any event the accused had given an explanation
that he sent the girl back to the village in a truck and the same cannot be held to be not plausible
and therefore false.
Then the last circumstance relied upon by the courts below is the presence of some abrasions on
the genital of the accused and presence of stains blood on the wearing apparels and nail

347
clippings. The prosecution wanted to show that because of the penetration the accused sustained
the abrasions on his penis. The Doctor, P.W. 8 who examined the accused has stated that he
found only two pin-head abrasion on the genital of the accused and on examination he opined
that he could not find any recent sign of sexual intercourse and he also added that there was no
such sign of having intercourse within one hour of his examination. However to a court
question, P.W 8 stated that as a result of forcible sexual intercourse those abrasions can be
possible. We are unable to see as to how this evidence, in any manner, is helpful to the
prosecution. When P.W. 8 stated that he couldn't find any sign of sexual intercourse atleast
within one hour of his examination then it is only a mater of conjectures as to when the accused
had any intercourse. The accused is a man aged 57 years and it is not as if he was not used to
sexual intercourse. In any event the prosecution has not established that the accused had an
intercourse on the day of the occurrence. Then the presence of blood in the nail clippings and on
the underpant does not also incriminate and do not connect the accused in any manner with the
alleged offences. The accused also had given an explanation namely that his gums were bleeding
and in wiping out the same he got these blood stains. Even otherwise having given our earnest
consideration, we are not able to say that this last circumstance coupled with the circumstance
of last seen in the company of the accused amount to legal proof of the guilt particularly when
the crucial circumstance namely that the accused showed the dead body is held to be not
established. when such a main link goes, the chain gets snapped and the other circumstances
cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this
juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the
place of legal proof for sometimes unconsciously it may happen to be a short step between moral
certainty and the legal proof. At times it can be case of 'may be true'. But there is a long mental
distance between 'may be true' and 'must be true' and the same divides conjectures from sure
conclusions. The least that can be said in this case is that atleast there is a reasonable doubt
about the guilt of the accused and the benefit of the same should go to him.
We are conscious that a grave and heinous crime has been committed but when there is ;no
satisfactory proof of the guilt we have no other option but to give the benefit of doubt to the
accused and we are constrained to do so in this case. Accordingly, the appeal is allowed. The
conviction and sentence of the accused is set aside and he shall be set at liberty forthwith if not
required in any other case.
T.N.A.

Appeal allowed.

348

349

Bhagat Ram vs State Of Punjab on 9 February, 1954


Equivalent citations: AIR 1954 SC 621
Author: Jagannadhadas
Bench: Bhagwati, Jagannadhadas, V Ayyar
JUDGMENT Jagannadhadas, J.
1. These two are appeals by special leave against a common judgment of the High Court of
Punjab in its revisional jurisdiction. The appellant who is the same in both was convicted by the
Magistrate, First Class, Hoshiarpur at two separate trials, one in respect of a charge under
section 420 and the other in respect of a charge under section 409 of the Indian Penal Code. The
convictions were confirmed by the Sessions Judge on appeal and by the High Court in revision.
The charges relate to connected matters and the evidence, though separately recorded, was
substantially the same. It is, therefore, convenient to deal with the two appeals by a common
judgment as the High Court did.
2. The appellant, Bhagat Ram, was the Civil Nazir in the office of the Senior Subordinate Judge,
Hoshiarpur. The main charge against him was that in his capacity as a public servant, he
committed criminal breach of trust in respect of a sum of Rs. 3,496/5/- of Government money
between the 1st December, and the 18th December, 1948.
The other charge was that in order to find the money to cover up the embezzlement, he tried to
raise a sum of Rs. 3,350/- by way of loan from one Seth Brij Lal, misrepresenting to him that it
was required by the then Subordinate Judge and that by such representation he dishonestly
induced the said Seth Brij Lal to issue a cheque for the sum of Rs. 3,350/-.
At the material period of time Shri K. S. Gambhir was the Senior Subordinate Judge of
Hoshiarpur in the place of the regular Senior Subordinate Judge, Shri Bhandari, who was
officiating as the District and Sessions Judge, from the 13th November to the 16th December,
1948.
Under arrangements made by the High Court, the Senior Subordinate Judge of the place was
vested with certain administrative duties, one of such being that he was to draw and disburse
month by month the salaries of the Civil Courts establishments at Hoshiarpur and of three other
outlying Tahsils of that district, viz., (1) Una, (2) Dasuya, and (3) Garhshankar. The normal

350
procedure for the disbursement of the salaries was to prepare the salary bill of all the four
Tahsils and present it to the Treasury on or about the first of the month, the salary for the Sadar
Tahsil of Hoshiarpur being drawn in cash and the salaries for the three other Tahsils being
drawn by means of cash orders authorising payment locally.
The embezzlement in question relates to the salary bill for the month of November, 1948.
Departing from the pre-existing practice, the said salary bill was drawn entirely in cash for all
the four Tahsils. This was done under the authorisation of the Subordinate Judge, Shri Gambhir,
but the actual cash amounting to Rs. 5,576/6/- was received from the Treasury by the appellant
on the 4th December, 1948. Out of this amount a sum of Rs. 811/1/- for Hoshiarpur Sadar and a
sum of Rs. 1,420 for Garhshankar Tahsil were in fact disbursed within a few days. The salaries of
Una and Dasuya, totaling an amount of Rs. 3,347/5/- were not disbursed. On the 14th
December, a telegram was received by the District Judge, Hoshiarpur, from the Subordinate
Judge, Una, complaining that the civil establishment pay of his Tashil was not so far received
and requesting him to arrange for the same.
It is the prosecution case that the appellant had misappropriated the amount and that on receipt
of the above telegram by the District Judge, he realised the urgency of finding the money
somehow and that he accordingly made attempts to raise the money by way of a loan.
It is in evidence that on the 16th December, he approached two persons, by name Hakim Rai
and Lala Shiv Dayal for loans, representing to them that they were required for the Subordinate
Judge. Failing in these attempts he approached one Seth Brij Lal for the amount of Rs. 3,350/also making the same representation. He showed them a 'Ruqqa' from the Subordinate Judge
purporting to authorise him to raise the money. On the morning of the 17th, Seth Brijlal gave the
appellant a bearer cheque on the local Imperial Bank drawn in favour of Shri K. S. Gambhir,
Subordinate Judge, by name. The cheque was presented by the appellant on the Bank that very
day at 10 a. m. But before the cash was paid to the appellant by the Bank, Seth Brij Lal happened
to have gone towards the Court premises and to have met the Subordinate Judge. He informed
him that he had issued the cheque to accommodate him. The Subordinate Judge appeared
surprised at it and repudiated the same. Consequently Seth Brij Lal rushed up to the Bank and
stopped payment, got back the cheque from the Bank authorities, and informed the Subordinate
Judge. The Subordinate Judge thereafter took a statement from him. This statement and the
returned cheque were duly sent up to the Police for investigation.

351
Suspicion having been thereby aroused against the appellant as regards the handling of the
moneys drawn by him, the relevant accounts were immediately checked and it was discovered
that the salaries of Una and Dasuya establishment were not disbursed. Accordingly, two
complaints, one in respect of a charge under section 420 and the other in respect of a charge
under section 409 of the Indian Penal Code were filed against the appellant, the first on the 17th
December at 8-30 p. m. and the second on the 18th December. It would appear also that the
appellant left the place on the 17th itself and sent to the Subordinate Judge, an application for
leave for a month. He was not found for some days and was actually arrested on the 3rd
January, 1949. Meanwhile the entire amount was deposited by the brother of the appellant on
the 21st of December, 1948. It may also be mentioned that the Subordinate Judge, Shri
Gambhir, contacted the two persons, Shiv Dayal and Hakim Rai, whom the appellant had
approached for raising the loan, and took their statements on the 19th December. These
statements also were forwarded to the Police.
3. The appellant substantially admits all the material facts above stated. His defence is that it
was the Subordinate Judge, Shri Gambhir, that misappropriated the amount and that it was at
his request and under his specific authority that he made the attempts to raise the sum of Rs.
3,350 on the 16th and the 17th of December, from the three persons above mentioned.
In support of this defence he has examined a witness and produced a 'Ruqqa,' Ex. D. A. dated
the 4th December, 1948, purporting to bear the signature in English of Shri K. S. Ghambir
acknowledging receipt of "a sum of Rs. 3,500/- out of the pay account of the process-serving
establishment from the Civil Nazir for a day". The said 'Ruqqa' bears an endorsement of
repayment of Rs. 150/- on the 8th December, so that, it is, if true, a receipt for the sum of Rs.
3,350/- said to have been misappropriated. The appellant relies on this in respect of the charge
under section 409 of the Indian Penal Code.
So far as the charge under section 420 of the Indian Penal Code is concerned, it is his defence
that the Subordinate Judge gave him on the 16th December another 'Ruqqa', signed by him and
specifically authorising him to raise an amount of Rs. 3,350/- by way of loan on his behalf
locally and that he made use of it in his attempts to raise the loan for him. The 'Ruqqa' has not
been produced. But it is his case that it was returned to the Subordinate Judge after being shown
to Brij Lal. He relies on the evidence of the very witnesses whom he is said to have approached
for the loan in support of this defence.

352
The trial Court as well as the appellate Court have disbelieved the defence and convicted him of
both the charges and sentenced him to imprisonment as well as fine.
The High Court on revision confirmed the convictions but considered the fines uncalled for and
confined the sentences to the imprisonment awarded.
It may be mentioned that after we heard the arguments fully on these appeals, we have been
informed that the appellant has served out the sentences of imprisonment. But we have been
pressed to express our view on the merits of the case inasmuch as the conviction has affected the
official employment of the appellant and has caused him serious loss and dislocation in his life.
4. On the above statement of the case it is fairly clear that the appellant must be found guilty of
the offences charged unless the defence put forward by him can be held to be made out to the
extent of its being reasonably probable.
In the course of the trial certain circumstances relating to this transaction have been elicited
which have been variously relied on by the prosecution as well as the defence as being in support
of their respective cases.
The learned Judge of the High Court who dealt with this matter in revision sums up the position
as follows in his judgment.
"The issue in the cases is quite simple -- either Mr. Ghambir is the villain of the piece and Bhagat
Ram is a victim of his oppression and is being made to embezzle a sum of Rs. 3,500/- for Mr.
Ghambir's benefit on the 4th of December, and then falsely being accused of trying to cheat the
money-lender Seth Brij Lal when in fact the loan was being taken on behalf of Mr. Ghambir, or
else Mr. Ghambir is rather a careless officer who allowed himself to be tricked by the accused in
the matter of pay-bill on the 4th December and was thereafter falsely accused by Bhagat Ram of
being the principal offender when Bhagat Ram's embezzlement of Rs. 3,500/- could no longer
be concealed owing to the urgent demands for the pay of the process serving establishment at
Una and Dasuya. 'It cannot be denied that there are circumstances in the evidence on the record
which point towards both conclusions'. (Underlined (here in ' ') by me)."
The learned Judge, however, came to the conclusion that the Courts below have carefully
considered the circumstances for and against and that they rightly held that it was Bhagat Ram,

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the appellant who was responsible for the embezzlement and that his efforts to throw the blame
on the Subordinate Judge, Shri Ghambir, were false.
5. On a consideration of the merits of the case, it is necessary to notice at the outset that the
conviction of the appellant is not based upon a mere acceptance of the oath of shri Ghambir
denying the alleged misappropriation by himself and the alleged authorisation by him to the
appellant to raise money on his credit but on a consideration of the circumstances brought out
in the evidence.
Indeed all the three Courts had severe comments to make against the evidence of the
Subordinate Judge. The trial Magistrate Characterised a material item of the evidence of Shri
Ghambir as "a piece of falsehood unworthy of a judicial officer of the standing of Mr. Ghambir".
The Sessions Judge at the conclusion of the judgment stated as follows:
"Before concluding I would like to say that though I have exonerated Mr. Ghambir from all
complicity in the matter of the misappropriation of Government money, I cannot exonerate him
from all blame in connection with this affair. He has come in for a good deal of criticism which
in my judgment is not altogether unmerited at the hands of the learned trial Magistrate both in
regard to the truthfulness of the statement he made in Court and the fact that he arrogated to
himself the role of the complainant and the investigator in this case"
The learned Judge of the High Court has also substantially agreed with this opinion. The
question, threfore, that arises in this case is whether the circumstances brought out are or clear
as to show that the defence is false or improbable. In a case like this depending on the
conclusions drawn from circumstances, it is well settled that the cumulative effect of the
circumstances must be such as to negative the innocence of the accused and to bring the
offences home to him beyond any reasonable doubt. This Court has affirmed the proposition in 'Hanumant v. State of Madhya Pradesh', (A), in the following terms at pp. 345-346.
"It is well to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the first, instance be
fully established, and alt the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as not to leave any reasonable

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ground for a conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the accused".
We cannot help noticing that the Courts below do not appear to have kept this fundamental
approach in view. The first question that arises in this case is whether from the circumstances it
is so well-established beyond doubt that it is the appellant that has misappropriated the amount
in question.
There are at the outset two circumstances 'against' him, (1) that the amount in question was
drawn by him from the Treasury, and (2) that it remained unpaid to the parties concerned, viz.,
to the Civil Establishments at Una and Dasuya. But he asserts that the money was taken from
him by the Subordinate Judge himself temporarily for his own purpose. Apart from the alleged
receipt, Ex. D. A. which will be dealt with presently, the defence relies on the following
circumstances. It is pointed out that the scope for misappropriation by one party or the other
arose in this case by virtue of deviation from the normal practice of drawing the pay of outlying
Tahsils by way of cash orders and that this deviation was at the instance of the Subordinate
Judge himself and with his full knowledge, but that he now falsely denies all knowledge of the
same.
It is in evidence that the salary bill as originally presented to the Treasury had a note at the top
thereof that the amounts for the three outlying Tahsils were to be paid by cash-orders. The bill
was returned on the 4th December for correction of a small mistake in the details thereof. The
evidence shows that before re-presenting it to the Treasury, the note above referred to was
scored out under signatures of the Subordinate Judge at the two ends of the note, thus
converting the bill into one for payment of the entire amount thereof in cash to the appellant. A
look at the original bill which has been exhibited also shows this. In addition to this
authorisation to draw the entire amount in cash, in departure from the pre-existing practice,
another circumstance has also been brought out in the evidence. As already stated the
Subordinate Judge of Una sent a telegram to the District Judge of Hoshiarpur on the 14th
December complaining that the pay of the Civil establishment was not disbursed till then. The
District Judge forwarded it to the Subordinate Judge, Shri Ghambir, on that very date marking
it "immediate". No action appears to have been taken on it by him. All that appears is that
certain memos were issued to the other Subordinate Judges of the outlying stations requesting
that their respective Nazirs should be sent over to the Sadar station for receiving the salaries of

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their establishments. This order appears to have been issued as part of a general order, Ex. P. W.
9/A, which is as follows:
"Generally salaries of officials in the Mufassil are received late. To avoid this delay it is proposed
that Nazirs posted at the Mufassil should personally come to the Sadar along with their
respective pay bills in the first week of every month and should not send anybody else so that
they should take with them salary of the establishment. As a rule, pay is drawn at the Sadar on
the first day of every month. Hence, all Mufassil Nazirs should bring with them their pay bills
within the first week of every month and return the same day after receiving salaries of their
establishments to avoid cash-order or any other trouble. Acquittance roll shall be kept at the
Sadar. Nazirs may also take them along with salaries. This is for urgent information.
ORDER This Robkar be sent to the Sub-Judge, Una, with the request that the Nazir may be
kindly instructed to comply (with the above instructions) in future."
Thus not only was there a departure from the previous practice by way of drawing cash also for
the outlying stations under the specific orders of the Subordinate Judge but when delay in
payment was made a matter of complaint no action was taken thereon but there was only an
attempt to gain time by adopting the device of appearing to make a general change in the
practice for the future and asking the outlying Nazirs to go over to Sadar for receiving the
moneys.
The Subordinate Judge disclaims responsibility for these circumstances, by putting forward the
plea that he signed the scoring out in the salary bill merely as a matter of routine and without
being conscious of the implication thereof and that the instructions in Ex. P. W. 9/A were issued
without his knowledge. He asserts that the appellant alone was responsible in getting his
signatures and for issuing these instructions.
It cannot be disputed that under the rules, the responsibility was entirely that of the Subordinate
Judge and that it was a serious one and that a disclaimer thereof is not to be lightly accepted.
The Punjab Financial Rules lay down as follows:
"The head of an office is personally responsible for every pay drawn on a bin signed by him or on
his behalf until he has paid it to the person entitled to receive it and obtained his receipt, duly
stamped where necessary on the office copy of the pay bill".

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The Rules and Orders of the Punjab High Court also are as follows:
"As the Government is responsible for the due application of all property and money received in
accordance with law by any court of justice the officers presiding over such courts must be held
directly and personally responsible for any loss caused by failure to observe rules or neglect on
their part to exercise supervision and control over the officials subordinate to them in
accordance with law and the orders issued by the High Court ..................".
To negative the plea of the Subordinate Judge that he had no knowledge of the pre-existing
practice, evidence has been given of previous instances when this practice was within his notice.
This appears from Ex. P. W. 6/D. A. and B. W. 6/D. C. When confronted with these documents
in cross-examination, he has mo answer except to say that he does not remember. Having
regard to the matter therein and dates thereof this answer appears to be false. There can also be
no doubt that the orders contained in Ex. P. W. 9/A were issued under his specific instructions.
The Subordinate Judge takes advantage of the fact that Ex. P. W. 9/A is signed by P. W. 6 and
the matter thereof is in the handwriting of the appellant. But P. W. 6 deposes that the
Subordinate Judge admitted before him that he did instruct the appellant to send for the
Mofassil Nazirs to receive payment at Sadar. P. W. 6 also deposes that he made similar
admission before Shri Bhandari in the departmental enquiry against the appellant which
followed, pending the prosecution. Shri Bhandari's evidence confirms this but the Subordinate
Judge, Shri Ghambir, falsely denies having so admitted. If as appears to us to be clear, the pleas
put forward by the Subordinate Judge to explain these circumstances are false and if the
Subordinate Judge not only authorised cash to be drawn for outside stations instead of mere
cash-orders but when the delay in disbursement was specifically drawn to his attention, he did
not also take any notice of it as against the appellant and only authorised the issue of
instructions to the outlying stations that their Nazirs should he sent over to the Sadar in order to
receive the moneys, the reasonable probability is that the non-availability of the money for
disbursement by about the 16th December was a situation for which the Subordinate Judge was
deliberately and primarily responsible.
6. It is as against this background that the defence of the appellant, that he in fact handed over
the money to the Subordinate Judge, has got to be considered. As already stated he produced a
receipt Ex. D-A in support of it. The Courts below have discredited that receipt. All the three

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Courts below were inclined to hold that that receipt bears the genuine signature of the
Subordinate Judge notwith-standing the denial thereof by him. But, all the same, they held it to
be a forgery. The reasons given by the trial Court and the appellate Court for this are not by
themselves convincing. The main reason given is that the very look at the piece of paper on
which this receipt was written indicates its forged character.
We have had the opportunity of looking at the original 'Ruqqa'. Ex. D. A., ourselves, bat do not
think that it can be definitely pronounced to be a forgery by appearance. The Courts below were
inclined to think that it is on a piece of paper which may have been torn out from a larger sheet
containing the genuine signature of the Subordinate Judge in which a blank space was by some
chance left above it. But a look at it shows clearly that the suggested blank space is about 2 to 3
inches in size commencing from the normal uncut top line of an ordinary sheet. It is not easy to
see how a blank space of that size and in that position was likely to have been left above a
genuine signature. The impression of the Courts below in this behalf is mere speculation and
there is nothing in the evidence of the Subordinate Judge to indicate any such likelihood.
7. Another consideration which weighed with the trial Court and the appellate Court in rejecting
this 'Ruqqa' is that the Subordinate Judge was very unlikely to have admitted in a piece of paper
under his signature that he had taken a sum out of the pay account of the process-establishment
even for a day, for that would have meant a complete ruin of his official position and of his
future career and that so responsible an officer was not likely to have done so. This
consideration is not without force. But the Courts do not seem to have appreciated that the same
consideration equally weighs in favour of the appellant. The trial Magistrate has noted in his
judgment that the appellant had an unblemished record of service. The prospect of jeopardizing
the same is one which would equally weigh with him to prevent his misappropriating the money
for his own use. The reaction on his position and on his future, consequent on such
misappropriation, is not the less for him, from his point of view, merely because he is a person
in lesser official situation and drawing a lower salary.
One cannot help feeling that in viewing this circumstance as in others, the Courts below have
without justification -- unconsciously it may be -- adopted differing standards as between the
Subordinate Judge and the Civil Nazir. One of the main reasons which persuaded the learned
Judge of the High Court to accept the view of the Courts below that Ex. D. A. was a forgery was
the following. The very next day after the incident took place, i. e., on the 18th December, the

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appellant sent two letters, Exs. P. W. 6/C and P. W. 6/D, one to the clerk, P. W. 6, Ramdas, and
another to a process-server, Barkat Ram. In the letter, Ex. P. W. 6/D, he states as follows:
"On the 4th December, 1948, he took Rs. 3,500/- in cash and gave a ruqqa. But he took back
that ruqqa on the 17th December".
In view of this categorical admission, the learned Judge was inclined to think that the piece of
paper that has now been produced into Court as Ex. D. A. could not have been genuine. While
this inference is not without force, it must be noticed that the accused who has put forward this
'Ruqqa' in the forefront of his defence throughout and who has admitted the genuineness of the
two letters, Exs. P. W. 6/C and P. W. 6/D has not at all been asked to explain how with reference
to his previous statement in Ex. P. W. 6/D he was now able to produce it into Court. One cannot
imagine what explanation he may have been able to give. Having read the two letters Exs.
P.W.6/C & P.W.6/D carefully together, we feel that it is not altogether unlikely that the
statement in Ex. P. W. 6/D which has been relied on as negativing the genuineness of Ex. D. A.
may have been due to some confusion at the time, for, we find that in Ex. P. W. 6/C which is
much more detailed and categorical as regards the material facts in this case, the only 'Ruqqa'
stated to have been returned to the Subordinate Judge is the second 'Ruqqa' of the 16th
December the first 'Ruqqa' dated the 4th December, while there is reference to both in the
contents thereof.
However that may be, it is unnecessary for the purposes of this case to find positively that Ex. D.
A. is genuine. It is sufficient to say that we cannot agree with the view taken by the Courts below
that it is proved to be a forgery.
8. In this context it is also relevant to consider whether there is any indication in the case as to
who out of the two was likely to have had need for the money at the time.
The learned Judge of the High Court very rightly touched on this aspect of the case. But his
assumption that there is no indication in the evidence that the Subordinate Judge had any need
for the money at the time is not correct. It is in the evidence of P. W. 4, Shiv Dayal, that, when
approached by the appellant for a loan on behalf of the Subordinate Judge, he believed it to be
genuine because he knew already that the Subordinate Judge, Shri K. S. Ghambir, had
purchased land and therefore guessed that the money may have been required by him in that

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connection. Even in the earliest statement (Ex. P-B. dated the 19th December, 1948), which he
made to the Subordinate Judge, Shri Ghambir, he stated as follows:
"He (the appellant), however, told me that the Sub-Judge had to repay the amount in respect of
land. Since it was within my knowledge that the S. Kartar Singh, Sub-Judge, had purchased
land, I guessed that the said Sardar Sahib might have asked for money."
The Subordinate Judge himself, in his cross-examination says as follows:
"I offered a bid to purchase two plots of land offered to the refugees by the East Punjab
Government for sale at Hoshiarpur on 25-6-48 and 10 per cent of the amount was paid the same
day. It was about Rs. 580/- or a little above or less. It was paid on the same day and after a
month or so the Government refused to confirm the sale and the money was refunded to the
bidders and the balance was never paid. Two plots were purchased by me one in my name and
one in the name of my son Kewal Krishan and another plot was purchased by my father-in-law. I
had taken to the spot Rs. 300/-. I handed over that money to S. Harkishan Singh A. D. M. and
my father-in-law gave me a cheque for Rs. 4,000/-. I think I gave that cheque to the accused for
getting it credited into my account with the Punjab National Bank and gave him another cheque
either to Bhani Ram my orderly or to the accused and perhaps this cheque was for Rs. 600/- or
700/-".
All this, no doubt, is far from proving that the Subordinate Judge had any substantial need for
money at the time. But such as it is, it gives some indication that there may have been need for
him in connection with the land transaction. It does not appear whether there has been any
investigation of the circumstances of the Subordinate Judge relating to his land transactions
though the statement of Shiv Dayal made to the Subordinate Judge himself on the 19th
December indicating this was forwarded to the Police and was before them during investigation.
In the circumstances, the remark made by the learned Judge of the High Court that the
Subordinate Judge may have had no need for the money at the time cannot be of much weight.
On the other hand it is a matter not without some significance in this context, that no need of
the appellant for any finance at the time has even been indicated. The fact that his brother has
paid up the entire amount so quickly as the 21st December, obviously in response to the
suggestion conveyed in the letter, Ex. P. W. 6/D, must furnish some indication that the appellant
could command ready money for a crisis like this and have been able to make it up on his own

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account if he had himself misappropriated the amount instead of having to go about in the open
market trying to raise money by false representations as to the authority of the Subordinate
Judge.
9. It appears to us, therefore, that the defence put forward by the accused on this part of me case
cannot be said to have been disproved or to be so improbable that his guilt must be taken to
have been established beyond reasonable doubt.
10. Coming to the other part of the case which is the subject matter of the prosecution under
section 420 of the Indian Penal Code it is clear that in the above view, his defence on this part
also cannot be said to be improbable. If the defence of the appellant that the Subordinate Judge
took the money from him is accepted as not improbable, it follows that the defence that the
attempts to raise the loan were for him and on his authorisation, becomes probable. There is
also some evidence in support of this. Hakim Rai, P. W. 5 and Seth Brij Lal, P. W. 14, both
definitely say that a 'Ruqqa' bearing the signature of the Subordinate Judge and authorising the
raising of a loan on his behalf for a sum of Rs. 3,350/- was shown to them.
No doubt the 'Ruqqa' itself has not been produced and P. W. 5 says that he was not in a position
to identify the signature of the Subordinate Judge. But he does say that he read the 'Ruqqa'
carefully and was satisfied that the Judge Sahib really wanted money. In his earliest statement
Ex. P/B dated the 19th December, made to this very Subordinate Judge, P. W. 5, sets out the
contents of the 'Ruqqa' as follows:
"I (i. e. Sardar Ghambir Singh, Sub-Judge) need Rs. 3,350/- which I will repay to you after some
days".
Here again it is not either necessary or feasible to hold definitely that this defence has been
completely made out. But it certainly cannot be said that it is improbable or false.
11. One of the outstanding features of this, case is that the defence which has been put forward at
the trial is one which has been very elaborately and categorically set out the very next day after
the incident in Ex. P. W. 6/C. One has only to read the whole of that letter closely and carefully
to see that the great deaf of detail that has been set out therein was very unlikely to have been an
anticipatory false-defence. The learned Judges of the Courts below have almost ignored this
letter excepting to make a reference to it for the purpose of discrediting the defence.

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They do not seem to have realised the significance of the fact that quite a member of details
furnished therein have found ample corroboration from the very evidence of the prosecution
witnesses Nos. 4, 5 and 14, persons in respect of whom the appellant could not have felt sure at
the time when he was setting out the details in his letter. It is somewhat unusual to find the
accused in a case like this coming out with his entire defence so early after the occurrence and
the same finding substantial corroboration at the trial from the witnesses for the prosecution.
The only reason that the learned Judges give for discrediting this is that a period of 24 hours had
elapsed by then. Having regard to the nature and contents of the letter and the fact that it has
been sent by registered posts the next day from & different place--probably at a distance--called
Daulatpur as indicated by the stamping on the registered envelope thereof, we are not able to
share the view that there was time enough for concocting such a false defence in this letter. To
our mind, the very fact that the defence was given out at such an early stage and that it has, to
such a large extent, been corroborated is a strong reason for thinking that the defence was very
likely to have been true.
12. The Courts below have relied on a number of circumstances which they consider to be
against the accused, most of which appear to us inconsequential and to be based on insufficient
appreciation of the surrounding situation. For instance the learned Judge of the High Court
thinks that "there was no necessity for the Subordinate Judge, Shri Ghambir, to repudiate the
whole scheme when confronted by Seth Brij Lal on the 17th December after the loan had in fact
been raised and the money was about to be realised which would tide over the embezzlement
and give Shri Ghambir a breathing space for some time, if in fact he was a party and indeed the
principal figure in the embezzlement".
He treats this as crucial in the case.
With respect, the learned Judge does not seem to have appreciated that the fact of Brij Lal
having issued a cheque in the name of the Subordinate Judge himself makes all the difference. It
is obvious that if the embezzlement, however temporary, came to light, the fact of the amount
having been raised on the basis of a cheque in his name and his having taken advantage of it in
spite of information thereof having been conveyed by Seth Brij Lal himself, would have been a
serious matter. The cheque itself would have been fairly strong evidence against him. It is not
unlikely that he expected merely cash accommodation which would leave no documentary

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evidence behind but that when he found that that expectation did not materialise, he saw the
danger into which he was running.
13. Again the Courts below were inclined to think that if the defence of the appellant was true
and he had in his possession a 'Ruqqa' Ex. D. A., acknowledging receipt of the amount of Rs.
3,500/-, the appellant would have at once put it forward on the 17th itself at the premises of the
Imperial Bank when Seth Brij Lal stopped payment on the ground of misrepresentation of the
Subordinate Judge's authorisation in this behalf.
But it does not appear to have been appreciated that the question uppermost in the minds of
everybody at that time was as to whether he was obtaining the loan on the authority of the
Subordinate Judge. For this it was the 'Ruqqa' alleged to have been given to the appellant by the
Subordinate Judge on the 16th that would have been material and not the 'Ruqqa' of the 4th
December. If what is stated in Ex. P. W. 6/C namely that the 'Ruqqa' of the 16th December was
returned by the appellant to the Subordinate Judge at the suggestion of Seth Brij Lal himself is
true, he may well have become panicky on the realisation of the mistake he had committed in so
returning it in view of the prosecution for an offence under section 420 of the Indian Penal Code
that was imminent and probably threatened.
14. There are a number of other similar circumstances relied on by the Courts below into which
it is unnecessary to go at length. It is enough to say that in our opinion none of them can be
legitimately treated as circumstances which disprove the defence put forward by the appellant.
We are clearly of the opinion, as already stated, that the defence was not improbable both as
regards the assertion that the money was taken by the Subordinate Judge from the appellant by
way of temporary accommodation and as regards the assertion that the Subordinate Judge not
being able to put the money back within the expected time and in view of the urgency,
authorised the appellant to raise money for him. In this view it would follow that the offences
charged cannot be said to have been brought home to the appellant beyond reasonable doubt.
The Courts below in taking the contrary view have failed to keep in mind the fundamental rule
stated at the outset relating to the proof of guilt based on circumstantial evidence and have
proceeded on conjectures in a case where statedly the circumstances are more or less equally
balanced. They have adopted varying standards as between the accused and the Subordinate
Judge in weighing the circumstances against them. They have also virtually ignored a crucial
circumstance in favour of appellant, 'viz.' that he came forward with his defence on the very next

363
day which finds considerable support from the prosecution evidence itself. The interference of
this Court to prevent miscarriage of justice is accordingly called for.
15. It may be noted that in the above discussion we have ignored the alleged embezzlement of
the small extra amount of Rs. 149/- since we consider the appellant's explanation therefore in
answer to question No. 7 on 19-11-1949 not to be improbable and the same has also been paid
up.
16. There is, however, one other aspect of the matter which requires consideration. The very
receipt, Ex. D. A., on which the appellant relies shows that the appellant intentionally handed
over the money in his custody to the Subordinate Judge for being utilised by him for purposes
other than the disbursement of the salaries though it be statedly for a day.
The trial Court has pointed out that even on this view the offence under section 409 of the
Indian Penal Code stands committed. That is also the view taken by the Sessions Judge on
appeal as an alternative.
The correctness of this view, however, would depend upon whether the Civil Nazir, in drawing
the money from the Treasury under the authority of the Subordinate Judge, and keeping the
same in his custody, can be said to have been entrusted with the money. The exact legal position
as to the nature of the custody of the money by the Civil Nazir in such a case has not been
clarified. We have been shown no rule which authorises or enables the Civil Nazir in such cases
to keep custody of the money with himself pending disbursal. If there was any such rule such
custody may well amount to entrustment.
The only rule that has been placed before as shows that it is the Subordinate Judge that is fully
responsible for the drawal and the disbursal. It is he that must be primarily taken to be
entrusted with the money. No doubt the Subordinate Judge himself in his evidence says that it is
the duty of the Civil Nazir to draw the pay of the subordinate employees and to keep the same in
his personal custody along with any other Government money in the safe provided to him which
is kept in the Nazir Khana. Also one of the witnesses, P. W. 10, a Civil Nazir, states that it is
incumbent on the Civil Nazir to keep all the Government money lying undisbursed with him in
the safe provided by the Government fixed in the Nazir's room.

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The appellant when asked about these matters under section 342, Cr. P. C. in questions 1, 2 and
3 makes a distinction between amounts drawn in respect of pay and the amounts drawn on
contingent bills and says that it was his duty to keep only contingent amounts with him implying
that in respect of salaries it was not his regular duty. In the absence of a clear rule defining this
responsibility in this behalf and the nature of his custody of money in such circumstances, we do
not think that he can be held to have been entrusted with the custody of the money.
But, inasmuch as he has handed over the money to the Subordinate Judge with the knowledge
that it was to be utilised for a purpose other than that for which it was legally intended, he may
be said to have abetted criminal breach of trust by the Subordinate Judge. In an appropriate
case the conviction may probably have been altered to one of abetment of an offence under
Section 409 of the Indian Penal Code. But in this case an alteration of the appellant's conviction
under section 409 of the Indian Penal Code into one of abetment thereof would imply a definite
finding of guilt against the Subordinate Judge, Shri Ghambir, who is not before us. It would,
therefore, be unfair to make such an alteration. We do not accordingly feel called upon to do so
in an appeal on special leave.
17. In the result Criminal Appeals 46 and 47 of 1953 are allowed and the convictions of the
appellant for both the offences with which he was charged are hereby set aside.