DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY (DSNLU)

VISAKHAPATNAM, AP
Law of Evidence
Study Material
2020
Name of the Faculty: Dr. Nandini C.P.
Associate Professor of Law

Course Code Semester Credits Minimum Maximum

Teaching Sessions Sessions

05-2 5 4 60 65

Objectives of the Course

Study of law of evidence is mandatory because the learning of law is incomplete without a
thorough understanding of the law of evidence. Any person who wants to take his dispute
or litigation to the court has to adduce evidence before the court of law. So, a student of
law has on no account can leave the law school without a thorough understanding of the
subject of law of evidence. The Law of evidence law is a law applied to all laws, with few
exceptions as provided in the statute where strict application of law of evidence is not
mandatorily applied. But some or the other part of the law of evidence in one or other part
of proceedings. The changes in the 21st century and application of ICT to all types of
transaction has widened the course of understanding this subject as the importance and
appreciation of Electronic evidence has increased the burden on the parties in producing
such new types of evidence.
So, the main object of learning is to understand, how the process is done, what must be
adduced and why it has to be done is the primary purpose of studying Indian Evidence Act,
1872. As law of evidence is an admixture of substantive and procedural law with practice,
course would be an experimentation learning to the legal fraternity.
The Course would be an attempt to make the learners understand the relevancy of facts,
what evidences are relevant, what kind of evidences are admitted in the court and what
evidence are rejected by the court. When documentary evidence or oral evidence can be
adduced and when they are relied upon. Who can testify and what credibility is given by
the courts? Types of examination of witnesses, the art of cross-examination etc. are to be

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part of the course. Overall, the learner is expected to know the basic principles of law of
evidence that will be useful in their practice of law.

Scope of Law of Evidence

Evidence is something presented before the court for the purpose of proving or disproving
an issue under question. In other words, evidence is the means of satisfying or convincing
the court of the truth or untruth of disputed fact between the parties in their pleadings. It
includes both oral and documentary evidence by nature. Evidence can be described as the
material placed before a Court for assisting a Judge to reach a decision in the matter. The
decision of the judge is limited to the evidence placed before them; therefore, it is
important that a party by himself or through his counsel provide as much relevant evidence
as possible to support their case.
Whether initiating proceedings or defending them, the first step for a party is to gather all
the possible evidence that may be relevant to the matter. Evidence has most important role
in administration of justice. Evidence is the foundation of justice, no justice can be
provided unless the judiciary knows the facts of the case, and obviously, for knowing the
facts of the case evidence has to be produced. The evidence is produced by the parties so
that they can prove their point and thereby convince the court that they are rightful to get
the decision in their favor. The general functions of evidence law are then to regulate the
following: collection, organization, presentation, and evaluation of information
(‘evidence’) for purpose of resolving disputes about the past events in legal adjudication. A
fundamental step when preparing for any litigious matter is to gather evidence to support
the legal position that support the claim of the parties. The litigious matters are won and
lost based on the evidence placed before the Court.  It is vitally important that parties seek,
locate and gather evidence that supports their legal position.  Once this evidence has been
sought, obtaining legal advice as to its admissibility, or whether further evidence should be
obtained may assist parties in preparation for their matter.

Law of evidence has more of the smell of the courtroom than just the classroom learning
and it offers the opportunity for some court- room feel while conducting the exercises. The
rules and application of the law of evidence is a skill that needs to be learnt from the

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practice of law. The rule of evidence is not applied independently from other factors and do
not exist solely as a matter of academic interest and debate. They are a dynamic set of
principles, which interact with other essential factors in a case including the rule of
substantive law, the rule of procedure and the substantive characteristics of many of the
participants in the trial. The latter includes the judge's opinions and perception, the skill of
the advocates, a party's or witness's demeanor in court, his credibility, criminal convictions
and personality traits. All these factors ultimately come together to provide the bases for
the court's decision in the case.  

Objectives of law of evidence

The objective of the Evidence Act is to prevent laxity and negligence in the admissibility of
evidence and to introduce a full-proof and uniform rule of practice than what was
previously used.

 Evidence law and procedure with practice is to find truth

 Evidence must be confined to the matter in issue
 Evidence law also regulates the information that can be put before the court.
 Only material and relevant information are to be placed before the court.
 The factor is relevancy is to regulate the time of trial
 Best evidence must be given in all case
 Hearsay evidence is no evidence and hence it must not be admitted with few
exceptions
 Only those permitted to prove the facts are to be relevant
 How proof is the effect of evidence
 The role of a judge during the trial in an adversarial system of justice
 Type of evidence to be admitted or rejected
 Law of evidence is Lex Fori, which means that those matters that are to be
governed by the law of the country and in the proceedings

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The main purpose for a practice of law to study of law of evidence is to learn to persuade a
court of the truth of a party’s claim. That can be done through evidence to be produced
before the court of law. The Statute in India has highlighted on the following:
 Relevance, admissibility and circumstantial evidence
 Burdens and standards of proof, presumptions and probabilities
 Admissible and inadmissible evidence
 Admissions and Confessions
 Inferences /Judicial Notice
 Witness competence and compellability
 Special measures for vulnerable witnesses
 Documentary evidence and oral evidence
 Examination in-chief and cross-examination
 Role of Judges
 Character, Credibility and Disposition
 Improperly obtained evidence and rejection of evidence and consequences

The court while admitting and appreciating evidence prefers documentary to oral and direct
over indirect evidence and rejects hearsay evidence other than in exceptional cases. The
judge also has the powers to exclude some forms of evidence, and the rationale for
exclusion. The lawyer as well the judges must use their analytical mind, and preferably
with a strong interest in justice as the statute is concerned with the principles of evidence
have varied principles when it comes to civil and criminal proceedings. The court also have
the concern about the relevance of certain pieces of evidence are much the same in both
criminal and in civil evidence, as are the proper limits of cross-examination and the rules of
legal professional privilege. The object of the law of evidence is to give a fair trial and
bring out the truth before deciding the matter before the court of law with proper evidence,
appreciating, and taking only reliable piece of evidence giving weightage based on the type
of evidence produced by the parties. The statute is an adjective law which has both
substantive and procedure with practice and the approach to the subject has to be to learn
under the purview of all the subjects as law of evidence in India has same statute for both
Criminal and Civil unlike in other countries but in India the standard varies.

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 Introduction
Definition and Its Importance

Law of evidence is Lex fori. It means evidence is one of those matters, which are governed
by the law of the country in which the proceedings take place (Lex fori) 1. Evidence is
means of proof. Proof is the effect of evidence. The Indian Evidence Act, 1872 came into
force on 01-09-1872. Sir James Fitz James Stephen is author of Indian Evidence Act. It was
divided into 3 (three) parts, 11 (eleven) Chapters and 167 (one hundred and sixty-seven)
sections.

Definition of Evidence
Before understanding the law of Evidence, it is important to know the concept of
“evidence” in general since evidence and law of evidence are two different things. The
word “evidence” is originated from a Latin term “evidentia” which means to show clearly,
to make clear to the sight to discover clearly certain, to ascertain or to prove.
The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to
show distinctly, to make clear to view or sight, to discover clearly, to make plainly certain,
to certain, to ascertain, to prove. According to Sir Blackstone, ‘Evidence’ signifies that
which demonstrates, makes clear or ascertain the truth of the facts or points in issue either
on one side or the other.
According to Sir Taylor, Law of Evidence means through argument to prove or disprove
any matter of fact. The truth of which is submitted to judicial investigation.
Section 3 of The Indian Evidence Act, defines evidence2 in the following words:
Evidence means and includes-
1. All the statements which the court permits or requires to be made before it
by witnesses, in relation to matters of fact under enquiry; such statements are
called Oral evidence.

1Sarkar’s Law of Evidence Act,1872

2 Board of Trustees of Port of Kandla v Hargovind Jasraj & Anr, 2013 Indlaw SC 45; (2013) 3 SCC 182
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 2. All the documents including electronic records produced for the inspection
of the court; such documents are called documentary evidence;3

Thus, evidence4 is something, which serves to prove or disprove the existence or non-
existence of an alleged fact. The party who alleges the existence of a certain fact has to
prove its existence and the party, who denies it, has to disprove its existence or prove its
non-existence. Therefore, basic question to be answered is What, How and Why to get to
the truth of any given case. India follows the adversarial system and thereby the party has
the burden to prove their case, whereas in the inquisitorial system the judge can also seek
evidence.
The basic rule followed is the law of exclusion. Exclusionary evidence. Law Information
drawn from personal testimony, a document, or a material object, used to establish facts in
a legal investigation or admissible as testimony in a law court 5. Every type of proof legally
presented at trial (allowed by the judge) which is intended to convince the judge and/or jury
of alleged facts material to the case. It can include oral testimony of witnesses, including
experts on technical matters, documents, public records, objects, photographs and
depositions (testimony under oath taken before trial). It also includes so-called
“circumstantial evidence” which is intended to create belief by showing surrounding
circumstances, which logically lead to a conclusion of fact. Comments and arguments by
the attorneys, statements by the judge and answers to questions which the judge has ruled
objectionable are not evidence. Charts, maps and models that are used to demonstrate or
explain matters are not evidence themselves, but testimony based upon such items and
marks on such material may be evidence. Evidence must survive objections of opposing
attorneys that it is irrelevant, immaterial or violates rules against "hearsay" (statements by a
party not in court), and/or other technicalities6.
Form of Evidence
3http://www.legaleraonline.com/articles/different-kinds-of-evidences-witnesses-under-the-indian-evidence-
act
4 Rohit Singh and Others v State of Bihar 2006 Indlaw SC 1007, (2006) 12 SCC 734, AIR 2007 SC 10-
Counter claim -It did not also scrutinize whether there was adequate pleading as known to law in support of a
case of prescriptive title, whether such an inconsistent prescriptive title could be set up after claiming
proprietary title in the property and whether there was any acceptable evidence to establish a title by adverse
possession.
5 https://en.oxforddictionaries.com/definition/evidence
6https://dictionary.law.com

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  Oral Evidence7
 Documentary evidence8
 Real evidence

There are four general types of evidence:

1. Real evidence (tangible things, such as a weapon)
2. Demonstrative (a model of what likely happened at a given time and place)
3. Documentary (a letter, blog post, or other document)
4. Testimonial (witness testimony)9

The types of evidence are classified as10

Circumstantial Evidence11: Evidence that tends to prove a factual matter by proving other
events or circumstances from which the occurrence of the matter can be reasonably
inferred12.
Corroborating Evidence: Evidence that is independent of and different from but that
supplement and strengthens evidence already presented as proof of a factual matter.
Hearsay: A statement made of court and not under oath, which is offered as proof that,
what is stated is true (usually deemed inadmissible).
Exclusionary Rule: A rule of evidence that excludes or suppresses evidence obtained in
violation of a defendant's constitutional rights.
Facts to be proved
 Fact
 Facts in issue
 (Relevant Facts) Facts relevant to a fact in issue and Facts constituting part of or
accompanying and explaining a fact in issue, described as part of the ‘res gestae’-
facts surrounding an event
 Where appropriate; standards of comparison
 Secondary facts in issue
 Admissibility and weight
 Admissibility - Limited admissibility
 Weight - qualitative assessment
 Credibility
 Reliability

7 State of Maharashtra v Dr . Praful B Desai AIR 2003 SC 2053

8 Ibid
9https://hirealawyer.findlaw.com/choosing-the-right-lawyer/evidence-law.html
10https://hirealawyer.findlaw.com/choosing-the-right-lawyer/evidence-law.html
11 Dhananjay Chatterjee v State of WB, ( 1994) 2 SCC 200
12 Raju v State, AIR 2009 SC 2171

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However, all facts traditionally considered, as evidence may not be evidence in the eyes of
evidence law. Rather, evidence is something presented before the court for the purpose of
proving or disproving an issue under question. In other words, evidence is the means of
satisfying the court of the truth or untruth of disputed fact between the parties in their
pleadings.  To finalize it, the law of evidence in the major legal systems/ i.e., in the
common law, civil law or in countries that have a mixed legal system) is the body of legal
rules developed or enacted to govern.
 What facts need to be proved and produced to the court
 Which of the parties have the burden of proof?
The required standards of proof
 The admissibility, creditability, and weight of evidence and other procedural
matters as to how the evidence shall be produced before the court of law.
Nature of Evidence law
Place of Evidence Law
Laws are broadly being classified in to substantive and adjective. Adjective laws are
concerned with the method of presenting cases to court proving them or generally
enforcing the rights and duties provided under the substantive laws. While substantive
laws, are those that defines rights and duties. This forms the greater part of the law, it
would seem that it is more important part, since it defines what rights, privileges and duties
one person may have against or owe another. However, the rights, privileges and duties that
exist under such law will mean nothing unless they can be enforced. Therefore, the law of
evidence is an adjective law but it is as important as the substantive law. It is an adjective
law together with procedural laws, both criminal and civil in nature. However, some
authors say that the rules of evidence as one part of procedural law since they have similar
purpose. So, it is well categorized that evidence as one part of adjective law for the sake of
establishing more effective system of adjudication of cases before the court of law. The
main dealing is with how pleadings can be framed, investigation conducted, evidence
collected etc. Therefore, as it has few parts as procedural law, it does not make the law of
evidence to be part of procedural law and it also deals with the enforcement of the
substantive law.  

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More practical rather than classroom learning
Law of evidence has more of courtroom opportunity and court- room type exercises than a
classroom. As in this statute, the process of proof involves many participants, and it is
impossible to regulate every action of those participants by the law of evidence unless we
interpret the rules in line with purpose of the law of evidence in general and the rationale
behind of the specific rule in particular.   In this, the trial judge has to ensure the defendant
receives a fair trial. He can for example, limit the nature of questioning in cross-
examination, he can ask question also. The judge may exercise his discretion to exclude
evidence, if the prejudicial effect of which exceeds its probative value.

Significance and scope of Evidence law

As evidence is the key for a court to render a decision. Minus evidence, there can be no
proof. Evidence provides the court with information. Proving facts through the presentation
of evidence means convincing court to accept a particular version of events. Of course, one
can search truth even trough violating the constitutional rights of the parties. Law of
evidence is in conjunction with the rules of procedure; establish the framework for the
process of proof and the conduct of litigation, so that a lawyer advising his client, preparing
his case for trial, or presenting it to the court or tribunal will know what issues his client
must prove in order to succeed.  
According to eminent legal thinkers like Jeremy Bentham and William Twining the overall
aim if the process of adjudication is the ''rectitude of decision making''. This is achieved by
the correct application of substantive law to the true facts in the particular case. In this way;
the aims of justice are served.  Of the rules relating to admissibility and use of evidence are
directed towards minimizing the risk of wrongful convictions. And the main risks of error
stem largely from the admission of unreliable or prejudicial evidence. Thus, this concept of
free proof may allow the court to admit unreliable or prejudicial evidence, which lead it to
a hasty conclusion. The concept of free-proof also ignores the fundamental importance of
procedural rights and the symbolic importance of trials. Verdicts of the court to have
amoral legitimacy, trials must uphold basic human and constitutional rights. And Justice
must not only be done but be seen to be done. That is why most trials are held in public.
That means the public must have a faith in its criminal Justice system and the verdicts that

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are delivered by it and this can only be the case if the trial is perceived to be a fair one. And
respect for procedural rights through evidence law is a key component of the right to a fair
trial.13 
The three properties of evidence that are basically taken into consideration are probative
value, sufficiency and degree of completeness. These concepts are arrived through
Relevance either logical or legal. Materiality of evidence and admissibility and strength or
weight of the evidence produced before the court of law. (“Adducing evidence” is the legal
term for presenting or producing evidence in court for the purpose of establishing proof.)
Evidence produced before the court of law are based on the factual proposition (in
Latin, factum probans) is evidence in the third sense only if it can serve as a premise for
drawing an inference (directly or indirectly) to a matter that is material to the case (factum
probandum). The fact that the accused’s footprints and fingerprints were found in a room
where there was theft committed was, there could be a probable inference that there
accused was present in the room. The court admits only relevant facts and not irrelevant
unless and until they are of a material fact or part of the same transaction.

Significance of Relevance
The concept of relevance plays a pivotal role in legal fact-finding. articulates its
significance in terms of two foundational principles of the law of evidence: first, without
exception, nothing, which is not relevant, may be received as evidence by the court and
secondly, subject to many exceptions and qualifications, whatever is relevant is receivable
as evidence by the court14.

Conceptions of Logical Relevance

Evidence may be adduced in legal proceedings to prove a fact only if the fact is relevant.
Relevance is a relational concept. No fact is relevant in itself; it is relevant only in relation
to another fact. The term “probable” is often used to describe this relation 15. Stephen
emphasis that the word “relevant” means that any two facts to which it is applied are so
related to each other that according to the common course of events one either taken by

13https://www.abyssinialaw.com/about-us/item/932-meaning-and-nature-of-evidence-law
14Thayer (1898: 266, 530)
15Stephen (1886:28)

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itself or in connection with other facts proves or renders probable the past, present, or
future existence or non-existence of the other16. Evidence is relevant if “it has a tendency to
make a fact more or less probable than it would be without the evidence”. The word
“probable” in these and other standard definitions is sometimes construed as carrying the
mathematical meaning of probability. 

Logical Relevancy v Legal Relevancy

“Relevance is not a matter of logic, but depends on matters of fact” 17The term “logical
relevance” at times especially in the forensic language is used loosely and refers to the
stock of background beliefs or generalizations and the type of reasoning that judges and
lawyers are fond of labelling as “commonsense”18. A key purpose of using the adjective
“logical” is to flag the non-legal character of relevance. As Thayer (1898: 269) famously
claimed, relevance “is an affair of logic and not of law”. This is not to say that relevance
has no legal dimension. The law distinguishes between questions of law and questions of
fact. Relevance is said to be a logical, and non-legal, concept in the sense that in answering
a question of relevance and in applying the definition of relevance, the judge has
necessarily to rely on extra-legal resources and is not bound by legal precedents. Evidence
is relevant if “it has a tendency to make a fact more or less probable than it would be
without the evidence”.
Wigmore argues that relevance is a legal concept. There are two strands to his contention.
The first is that for evidence to be relevant in law, “a generally higher degree of probative
value” is required “than would be asked in ordinary reasoning”;
Whereas, legal relevance denotes… something more than a minimum of probative value.
Each single piece of evidence must have a plus value. Wigmore contents that relevance is
legal in the sense that the judge is bound by previously decided cases (“judicial
precedents”) when he has to make a ruling on the relevance of a proposed item of
evidence.Wigmore cites in support the judgment of Cushing C.J. in State v La Page where
it was remarked:

16The United States’ Federal Rule of Evidence 401

17Haack 2004: 46
18MacCrimmon 2001–2002; Twining 2006: 334–335

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[T]here are many instances in which the evidence of particular facts as bearing on
particular issues has been so often the subject of discussion in courts of law, and so often
ruled upon, that the united logic of a great many judges and lawyers may be said to
furnish…the best evidence of what may be properly called common-sense, and thus to
acquire the authority of law. (1876 57 N.H. 245 at 288 [Supreme Court, New Hampshire])

Materiality and Facts-in-issue

The materiality of facts in a particular case is determined by the law applicable to that case.
In criminal prosecution, it depends on the law which defines the offence with which the
accused is charged and at a civil trial, the law which sets out the elements of the legal claim
that is being brought against the defendant19. All material facts are required in a dispute.
Suppose the plaintiff sues the defendant for breach of contract. Under the law of contract,
to succeed in this action, the plaintiff must prove the following three elements: that there
was a contract between the parties, that the defendant was in breach of the contract, and
that the plaintiff had suffered loss as a result of that breach. The defendant may concede
that there was a contract and that he was in breach of it but deny that the plaintiff had
suffered any loss as a result of that breach. In such a situation, only the last of the material
facts is disputed. Following Stephen’s terminology, a disputed material fact is called a “fact
in issue”20 The law does not allow evidence to be adduced to prove facts that are immaterial
or that are not in issue. “Relevance” is often used in the broader sense that encompasses the
concepts under discussion. Evidence is sometimes described as “irrelevant” not for the
reason that no logical inference can be drawn to the proposition that is sought to be proved.

Admissibility and Relevance

A further condition must be satisfied for evidence to be received in legal proceedings.
There are legal rules that prohibit evidence from being presented at a trial even though it is
relevant to a factual proposition that is material and in issue. These rules render the
evidence to which they apply “inadmissible” and require the judge to “exclude” it. Two
prominent examples of such rules of admissibility or rules of exclusion are the rule against
hearsay evidence and the rule against character evidence. This section considers the
19(Wigmore 1983a, 15–19; Montrose 1954: 536–537).
20(Stephen 1872: 28).
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relation between the concept of relevance and the concept of admissibility. Here, again, the
terminology is imprecise. Admissibility and receivability are not clearly distinguished. It is
common for irrelevant evidence, or evidence of an immaterial fact to be described as
“inadmissible”. What this means is that the court will refuse to receive evidence if it is
irrelevant or immaterial. But, importantly, the court also excludes evidence for reasons
other than irrelevance and immateriality21. Thayer (1898: 515) puts it, “the rule of reason
that rejects it”; if evidence is rejected under an admissibility or exclusionary rule, the
rejection is by force of law. The concepts of admissibility and materiality should also be
kept apart. This is because admissibility or exclusionary rules serve purposes and rationales
that are distinct from the law defining the crime or civil claim that is before the court and it
is this law that determines the materiality of facts in the dispute. He also states that 22 the
law of evidence has no say on logical relevance and that its main business is in dealing with
admissibility. If the evidence is logically irrelevant, it must for that reason be excluded. If
the evidence is logically relevant, it will be received by the court unless the law—in the
form of an exclusionary or admissibility rule - requires its exclusion. In this scheme, the
concept of relevance and the concept of admissibility are distinct: indeed, admissibility
rules presuppose the relevance of the evidence to which they apply. Stephen appears to
hold a different view, one in which the concept of admissibility is apparently absorbed by
the concept of relevance. As a general rule, no evidence may be given of hearsay because
the law prohibits it. The question then arises as to the rationale for this prohibition.
Stephen’s answer to this question is often taken to be that hearsay is not “relevant” and he
is criticized for failing to see the difference between relevance and admissibility 23. The
critics point out that hearsay has or can have probative value and evidence of hearsay is
excluded despite or regardless of its relevance. On the generalization that there is no smoke
without fire, the fact that a person claimed that p in a statement made out-of-court does or
can have a bearing on the probability that p, and p may be (logically relevant to) a material
fact in the dispute. Interestingly, Stephen seemed to have conceded as much. He
acknowledged that a policeman or a lawyer engaged in preparing a case would be negligent
if he were to shut his ears to hearsay. Hearsay is one of those facts that are “apparently

21(Montrose 1954: 541–543)

22Thayer (1898: 266, 530)
23(Whitworth 1881: 3; Thayer 1898: 266–268; Pollock 1876, 1899; Wigmore 1983a: §12)

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relevant but not really so”. In claiming that hearsay is irrelevant, Stephen appears to be
merely stating the effect of the law: the law requires that hearsay be treated as irrelevant.
He offered a variety of justifications for excluding hearsay evidence: its admissibility
would “present a great temptation to indolent judges to be satisfied with second-hand
reports” and “open a wide door to fraud”, and “everyone would be at the mercy of people
who might tell a lie, and whose evidence could neither be tested nor contradicted” 24. The
Privy Council in Subramaniam v PP25, the court stated that what it prohibits is the use of a
hearsay statement to prove the truth of the facts asserted therein.

Exclusionary Rules
The Evidence Act 1872 deals with exclusionary rules.
Admissibility or exclusionary rules are the product of the jury system where citizens
untrained in assessing evidence sit as judges of fact. These rules came about because it was
thought necessary to keep away from inexperienced jurors’ certain types of evidence that
may mislead or be mishandled by them - for instance, evidence to which they are likely to
give too much weight or that carries the risk of creating unfair prejudice in their minds. The
exclusion of relevant evidence - evidence capable of casting light on the truth - is
detrimental to this end. Hence, no relevant evidence should be excluded; the only
exceptions he would allow are where the evidence is superfluous or its production would
involve preponderant delay, expense or vexation26. It is said that Bentham has overvalued
the pursuit of truth, undervalued procedural fairness and procedural rights, and placed too
much faith in officials, underestimating the risk of abuse when they are given discretion
unfettered by rules27.

The Standards of Proof and its sufficiency

The Standards is based on the Mathematical Probability
The weight of evidence is in the sense of probative value of individual items of evidence.
The concept of weight can also apply to the total body of evidence presented at the trial;

24(Stephen 1872: 122; see also Stephen 1886: xi)(Stephen 1872: 124–125)
25 (1956) 1 Weekly Law Reports 965)
26(Bentham 1827: Book IX; Bentham 1825: Book VII; Twining 1985: Ch. 2)
27(Twining 1985: 70–71)

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here “weight” is commonly referred to as the “sufficiency of evidence”. The law assigns
the legal burden of proof between parties to a dispute. To secure a conviction, the body of
evidence presented at the trial must be sufficient to meet the standard of proof. Putting this
generally, a verdict will be given in favour of the side bearing the legal burden of proof
only if, having considered all of the evidence, the fact-finder is satisfied that the applicable
standard of proof is met. The standard of proof has been given different interpretations. For
instance, at a criminal trial, the accused is presumed innocent and the burden is on the
prosecution to prove that he is guilty as charged. In many cases the standard of proof is a
probabilistic threshold. In civil cases, the standard is the “balance of probabilities” or, as it
is more popularly the “preponderance of evidence”. The plaintiff will satisfy this standard
and succeed in his claim only if there is, on all the evidence adduced in the case, more than
0.5 probability of his claim being true. At criminal trials, the standard for a guilty verdict is
“proof beyond a reasonable doubt”. Here the probabilistic threshold is thought to be much
higher than 0.5 but courts have eschewed any attempt at authoritative quantification. For
the prosecution to secure a guilty verdict, the evidence adduced at the trial must establish
the criminal charge to a degree of probability that crosses this threshold. Where, as in the
United States, there is an intermediate standard of “clear and convincing evidence” which
is reserved for special cases, the probabilistic threshold is said to lie somewhere between
0.5 and the threshold for proof beyond reasonable doubt28.
Application of Law of Evidence
 It applies only to “Judicial Proceedings” other than Arbitration and Affidavits29
 The definition of “court”30 as per section 3 of the Act has various interpretation
through landmark judgments.

28https://plato.stanford.edu/entries/evidence-legal/
29 Ayaaubkhan Noorkhan Pathan v State of Maharashtra (2013) 4 SCC 465
30Public Prosecutor (A.P.) v Legisetty Ramayya and Another 1974 Indlaw AP 53- Interpretation relating to
What is Court and application of Evidence Act, to Courts.

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 Curriculum
DAMODARAM SANJIVYYA NATIONAL LAW UNIVERSITY
Visakhapatnam

Course Outline: Law of Evidence

Semester- V Total No. of Sessions : Min 60- Max 65

Credits: 4

Name of the Faculty: Dr Nandini C P -Associate Professor of Law

Objectives

Law of evidence is a subject that is mandatory for practice of both civil and criminal
practice. Beyond in many disciplinary and other Judicial Proceedings and learning of law is
incomplete without a thorough understanding of this subject. Any person who wants to
take his dispute or litigation to the court must adduce evidence before the court of law
either in a civil or criminal matter. How it is to be done, what kind of evidence must be
adduced and why it must be done is the primary purpose of studying this subject. In India
the principles of evidence, method and mode including the role of court in admitting
evidence is codified in the Indian Evidence Act, 1872. The Rule followed in India as in
other countries is Best Evidence Rule. As law of evidence is an admixture of substantive
and procedural law which is inclusive of principles and practice, it is called an adjective
law. The course would be better delivered with an experiential learning.

Take away
The Course would be an attempt to make the learners understand as to what are considered
to be relevant facts and facts in issue, what evidences are relevant to prove the facts, what
kind of evidences are admitted in the court and what evidence may be rejected by the court.
When the law mandates adducing documentary evidence and when the court would allow
oral evidence. The statute gives the discretion as to when the court may rely upon which
kind of evidence and when and what evidence are supposed to be admitted i.e. Best
Evidence Rule. What weight, credibility is provided to the evidence produced before the
court and when the court would rely upon such evidence are the crux of the learning this
subject. Beyond the principles, the code also states as to who may testify and what
credibility is given to the witnesses and evidence produced before the courts. It also
elucidates the role of the judges in the process of recording of evidence. The substantive
rules such as Admission and Confession, and persons who cannot be called as witnesses are
also part of the law. The procedure for the examination of witnesses, the process of
examination in chief, cross-examination and re-examination are to be practiced by students
with use of different pedagogy and the examination process is an art that they have to
practice. Overall, the learner is expected to know the basic principles of law of evidence
that will be useful in their practice of law.
The objective of the Evidence Act is to prevent laxity and negligence on the part of learner
in bringing admissibility of best evidence. Material and relevant facts only to be produced.
The basic facet is to avoid hearsay evidence. Though adversarial by nature, how the judge

16
can use his inherent qualities to make it inquisitorial by nature to bring out the truth and
how the counsels have to help the judge in this process is the aim of learning this subject.
The other aim is to know how to prove or disprove the facts before the court of law.
Outcome
A detailed and in-depth discussion of the Supreme Court decisions will be undertaken.
With the basic principles and doctrines of law that are relevant to the provisions of law the
class discussion will head into the judicial precedents examining the practice and how
different case laws and principle of law has been applied. By the end of this course the
students would -
 Have an understanding of the elementary principle of the Law of Evidence.
 Have a good understanding of working of the important provisions of the Indian
Evidence Act, 1872
 Have a basic understanding of the engineering of the Indian Evidence Act, 1872
 Have a good understanding of the leading cases where important provisions of the
Indian Evidence Act, 1872 have been interpreted by the Supreme Court of India and
the doctrine of the Court in this area of law
Unit Title and Topics List of Cases Articles/Research No of
Paper Sessions
UNIT Introduction to Law of Evidence
1
1.1 Evidence and Law 1. R v Abdullah (1885) Blaustone, Beryl. 5-8
of Evidence ILR 7 All 385 "Teaching Evidence:
Truth and Fact- 2. Sodhi Transport Co. Storytelling in the
Finding Process And Anr. Etc. Etc. v Classroom." Americ
The development of State of Uttar Pradesh an University Law
Law of Evidence & and Another and Others Review
common law AIR 1986 SC 1099 41, no.2 (1992): 453-
principles 3. Ayaaubkhan Noorkhan 484.
Different Types of Pathan v State of
Evidence Maharashtra (2013) 4 Criminal Law:
Different Types of SCC 465 Murder: Proof of
Court and use of 4. Zahira Habibulla H Corpus Delicti by
Evidence- Sheikh and Another v Circumstantial
State of Gujarat and Evidence by Francis
1.2 - Part I Others AIR 2004 SC Willmarth
Applicability of IEA 3114 California Law
to Tribunals; 5. State of Maharashtra v Review
Commission of Dr Praful B Desai AIR Vol. 48, No. 5 (Dec.
enquiry; Court 2003 SC 2053 1960), pp. 849-852
Martial’s. 6. Sidharth Vashit@ (4 pages)
Stages of Proceedings Manu Sharma v State
Introduction of the NCT Delhi AIR 2010 James B. Thayer,
17
 English principles of SC 2352 Bedingfield's Case -
Evidence 7. Partap Singh (Dead), Declarations as a
1.3 Historical through Lrs. and others Part of the Res Gesta
Development The v Shiv Ram (Dead), , 14 Am. L. Rev. 817
main features of IEA through Lrs. (1880) and Conduct,
Definitions 2020 Indlaw SC 179 Relevance and The
Interpretation of Key Hearsay Rule
concepts: Facts: Facts 13 Legal Stud. 54
in issue; Proof; 1993
Proved; Disproved
and Not Proved William Twining,
May Presume; Shall Evidence and Legal
Presume & Theory, 47 Mod. L.
Conclusive Proof Rev. 261 (1984)

UNIT Relevancy and Best Evidence Rule

2
2.1 Relevancy: Best 1. G. V. Rao v. State of CONFESSIONAL 20-25
Evidence rule Andhra Pradesh AIR STATEMENTS BY
2.2 Principle and 1996 SC 2791 ACCOMPLICES
various kinds of 2. State of Haryana V. AND CPC
relevant facts; res Rattan Singh AIR 1977 HEARSAY: AN
gestae; common SC 1512 UNHEALTHY
intention; facts for 3. Union of India v T. R. MIX? Lee Chez Kee
proof of custom; state Varma AIR 1957 SC v. PP
of mind - body - 882 Singapore Journal
bodily feeling, etc. 4. Poornal Mal v. Director of Legal Studies
2.3-General principles of Inspection AIR 1974 50th Anniversary
concerning admissions SC 348 1959–2009: Special
and confessions, rules 5. State of Punjab v. Issue (July 2009),
of exclusion of Baldev Singh AIR 1999 pp. 235-242 (8
admissions and SC 2378 pages)
confessions caused by 6. Daya Singh v. State of Published by: Nation
inducement or made Haryana AIR 2001 SC al University of
to police or in police 1188 (TIP) Singapore (Faculty
custody, retracted 7. Sahoo v. State of U.P of Law) to be read
confessions, AIR 1966 SC 40 with Section 27 of
confessions of co- 8. Sita Ram Bhau Patil v. the Indian Evidence
accused etc Ramchandra Nago Patil Act (I of 1872)—Sir
2.4- Dying declaration AIR 1977 SC 1712 James Stephen and
and their evidentiary 9. Kushal Rao v. State of Deoman Upadhyaya
value, other Bombay AIR 1958 SC Vepa P. Sarathi

18
statements by persons Journal of the
22
who cannot be called Indian Law Institute,
10. Harbans Singh v. State
as witness, special Vol. 6, No. 2/3
of Punjab AIR 1962 SC
problems concerning (Apr.-Sept., 1964),
439
women particularly in pp. 332-337
11. State of U.P. v.
marriage Deoman Upadhyaya
2.5 Relevancy of Dirty Little Secrets
AIR 1960 SC 1125
Courts of Justice of Expert Testimony
12. Haricharan Kurmi v.
judgments by Robert J.
State of Bihar AIR
2.6 Opinion of third Shaughness
1964 SC 1184
person - when relevant Litigation
13. AghnooNagesia v.
2.7 Character - when State of Bihar AIR Vol. 33, No. 2,
relevant 1966 SC 119 SECRETS & LIES
14. Bheru Singh v. State of (Winter 2007), pp.
Rajasthan (1994) 2 47-52 (6 pages)
SCC 467 Published by: Ameri
15. State of Punjab v. can Bar Association
Barkat Ram AIR 1962
SC 276 Visual Evidence- J.
16. Raja Ram Jaiswal v. Eric Smithburn and
State of Bihar AIR James H. Seckinger
1964 SC 828 Litigation- Vol. 9,
17. State of Bombay v. No. 2, EVIDENCE
Kathi Kalu Oghad AIR (Winter 1983), pp.
1961 SC 1808 33-35 (3 pages)
18. Sri Chand Batra v. Published by: Ameri
State of U.P AIR 1974 can Bar Association
SC 639
19. State of H.P. v. Jai Lal
AIR 1974 SC 639
20. Selvi v. State of
Karnataka, AIR 2010
SC 1974
21. St of UP v Krishna
Master AIR 2010 SC
3071
22. Mulla v. State of
U.P. 2010 (3) SCC 508
23. Atbir v. Govt.
(NCT of Delhi), (2010)
9 SCC 1.
24. Purshottam Chopra and
another v State
Government of (NCT
of Delhi) 2020 Indlaw
SC 6

19
 25. Sital Das v Sant
Ram And Ors.
AIR 1954 SC 606
UNIT Part II
-3 On Proof-Ss- 56-90A
3.1 Facts which need 1. Dhanpat v Sheo Ram MAKING SENSE 10
not be proved (deceased), through OF
3.2 Oral Evidence Lrs. and others 2020 DOCUMENTARY
Exclusion of Oral Indlaw SC 266 EVIDENCE (Part I)
Evidence by 2. Shivakumar and others Tan Yock Lin
Documentary v Sharanabasappa and Singapore Journal
Evidence –Oral others 2020 Indlaw SC of Legal Studies
Evidence to be Direct 309 (December 1993),
– Law relating to 3. State of Bihar v. Radha pp. 504-537 (34
Hearsay Evidence Krishna Singh AIR pages)
3.3 Of Documentary 1983 SC 684 Published by: Nation
Evidence 4. MarvariKumhar v. B. al University of
Primary and G. Ganeshpuri AIR Singapore (Faculty
Secondary Evidence 2000 SC 2629 of Law)
Electronic Records: 5. B. Gangaram v. State of And MAKING
Public & Private Gujarat AIR 1983 SC SENSE OF
Documents: Certified 906 DOCUMENTARY
Copies etc 6. Joseph John Peter EVIDENCE (Part II)
3.4 Presumptions as to Sandy v Veronica [Continued]
Documents- Thomas Rajkumar & Tan Yock Lin
Various presumptions Anr. AIR 2013 SC Singapore Journal
3.5 Of the Exclusion 1132 of Legal Studies
of Oral by 7. P. V. Anvar v P. K. (July 1994), pp. 111-
Documentary Basheer and others 128 (18 pages)
Evidence-Exclusion of 2014 Indlaw SC 630 Published by: Nation
Terms of Contracts/ 8. Sonu @ Amar v State al University of
Oral Agreements etc of Haryana 2017 Singapore (Faculty
Indlaw SC 493 of Law)
9. Ritesh Sinha v The
State of Uttar Pradesh The foundations of
& Anr. 2012 Indlaw SC evidence in
524 electronic form
10. Standard Chartered Stephen Mason and
Bank v Andhra Bank Daniel Seng pp. 36-
Financial Services 69 
Limited, and Others
(2003) 5 SCC 555 University of
11. Kumar Exports v London
Sharma Carpets 2008 Press, Institute of
Indlaw SC 1968 Advanced Legal
12. Government of A. P. Studies (2017)

20
 and Others v Karri http://www.jstor.org.
Chinna Venkata Reddy elibrarydsnlu.remote
and Others AIR 2006 xs.in/stable/j.ctv512
SC 362 x65.10
13. Bai Hira Devi And
Others v The Official "Real" Evidence
Assignee Of Bombay Sidney L. Phipson
AIR 1958 SC 448 The Yale Law
14. Izhar Ahmad Khan v Journal Vol. 29, No.
Union of India AIR 7 (May 1920), pp.
1962 SC 1052 705-717 (13 pages)
Published by: The
Yale Law Journal
Company, Inc.

UNIT PART III-Of Burden of Proof (101-114A)

4
4.1 On whom, of 1. State through CBI V BURDEN OF 10
particular Fact Mahendra Singh PROOF AND
4.2 Presumptions Dahiya AIR 2011 (3) STANDARD OF
Seven Years Absence. SCC 109 PROOF IN CIVIL
Documents of Thirty 2. N V Gavate v. State of LITIGATION - 25
Years. Maharashtra AIR 1977 SAcLJ 130 2013
Legitimacy; Dowry SC 183 PRESUMPTIONS
Death; Absence of 3. Shambhu Nath Mehra v ACCORDING TO
Consent of for Rape State of Ajmer AIR PURPOSE: A
etc. 1956 SC 404 FUNCTIONAL
4.3 Estoppel 4. Amba Lal v. Union of APPROACH- 45
Estoppel of Tenant: India, AIR 1961 SC Alb. L. Rev. 1079
Estoppel of 264 1980-1981
Acceptance of a Bill 5. Collector of Customs, ESTOPPEL:
of Exchange Madras v. D. Bhoormal SHIELDS AND
AIR 1974 SC 859 SWORDS 11 Trent
6. Paul v State of Kerala L.J. 57 1987 and
2020 Indlaw SC 50 THE JUDICIARY
7. Dipanwita Roy v SAYS, YOU CAN'T
Ronobroto Roy 2014 HAVE IT BOTH
Indlaw SC 711 WAYS: JUDICIAL
8. Motilal Padampat ESTOPPELA
SUGAR MILLS DOCTRINE
vs. STATE OF PRECLUDING
U.P. AIR 1979 SC 621 INCONSISTENT
9. Rajasthan Small POSITIONS 30 Loy.

21
 Industries Corporation L. A. L. Rev. 323
Limited v Ganesh 1996-1997
Containers Movers
Syndicate 2019 Indlaw
SC 59
10. Kali Ram v. State of
H.P AIR 1973 SC 2773
11. S. N. Bose v. State of
Bihar AIR 1968 SC
1292
12. K. L. Rallaram v.
Custodia Evacuee
Property Bombay AIR
1961 SC 1316
13. Hans Raj v. State of
Haryana, (2004) 12
SCC 257
14. Deshpande v.
Deshpande AIR 1954
SC 82
15. Shreedhar v Munireddy
AIR 2003 SC 578
UNIT Of Witnesses -118-133
5
5.1 Who may Testify 1. Major Somnath v Karen J. Saywitz, 15
Union of India and The Credibility of
Husband or Wife of Another AIR 1971 SC Child Witnesses, 10
the Person in Criminal 1910 Fam. Advoc. 38
Trial 2. Tahsildar Singh and (1988)
Judges and Another v State of Uttar Michael D. Horlick,
Magistrates Pradesh AIR 1959 SC Evidence -
Communication 1012 Privileged
During Marriage 3. S.P. Gupta v Union of Communications -
Evidence of Affairs of India & Anr 1981 Attorney-Client
State Indlaw SC 599 Privilege in
Official 4. Dagdu and Others v Stockholders' Suit.
Communication: State of Maharashtra Garner v.
Professional 1977 Indlaw SC 74 Wolfinbarger, 430
Communication 5. Raja @ Ayyappan v F.2d 1093 (5th Cir.
Privileged State of Tamil Nadu 1970), cert. denied,
communication 2020 Indlaw SC 272 39 U.S.L.W. 3411
6. Yakub Abdul Razak (U.S. March 23,
Accomplice etc Memon v The State Of 1971), 12 Wm. &
Maharashtra, Through Mary L. Rev. 925
Order for Production CBI Bombay 2013 (1971),
of Witnesses: Indlaw SC 171

22
 Examination-in-Chief; 7. Pradip Buragohain v http://scholarship.la
Cross Examination; Pranati Phukan 2010 w.wm.edu/wmlr/vol
Re-examination; Indlaw SC 466 12/iss4/14
Order of Examination; 8. Ram Bharosey v. State Character Evidence
Direction of of U.P AIR 1954 SC and Impeachment:
Examination 704 An Introduction by
9. State of Punjab v. James W.
Witnesses Character; Sodhi Sukhdev Singh McElhaney
Leading Questions, AIR 1961 SC 493
etc. 10. Ramchandra Rambux Litigation
Impeaching credit of v. Champabai AIR Vol. 4, No. 1,
Witnesses 1965 SC 354 DISCOVERY (Fall
Child Witnesses 11. Rameshwar v. State of 1977), pp. 45-48, 59-
Refreshing Memory Rajasthan AIR 1952 SC 60 (6 pages)
Production of 54 Published by: Ameri
documents, etc 12. Laxmipat Choraria v. can Bar Association
State of Maharashtra
5.2 Of Examination of AIR 1968 SC 938 Emily Henderson,
Witnesses-134-166 13. R. D. Nayak v. State of Bigger Fish to Fry:
Gujarat AIR 2004 SC Should the Reform
5.3 Of Improper 23 of Cross-
Admissions - 14. Varkey Joseph v. State Examination Be
Rejection of of Kerala AIR 1993 SC Expanded beyond
Evidence-S 167- No 1892 Vulnerable
new Trail for 15. Pannayar v. State of Witnesses, 19 Int'l J.
improper admission or Tamil Nadu AIR 2010 Evidence & Proof 83
rejection of evidence (2015) L. K.
SC 85
Kapustina, The
16. Ram Chander v. State Correlation of
of Haryana AIR 1981 Admissibility and
SC 1036 Reliability of
17. State of Rajasthan v Evidence in
Criminal Legal
Islam AIR 2011 SC
Procedure, 37 Bull.
2317 Kazan L. Inst. MIA
Russ. 386 (2019)
Note -List of Cases is not exhaustive (Tentative for Reference Only) in addition to the
above there may be other relevant and landmark judgments that are to be part of discussion

LIST OF BOOKS
Sl. No. Author/s Title of the Textbook Edition and Publisher
1 Ratanlal and Dhirajlal Law of Evidence, Recent 27 Ed Lexis Nexis
Butterworth’s, Wadhwa
2 Dr. V Nageswara Rao The Indian Evidence Act, A 3rd Edition -Lexis Nexis
critical Commentary

23
 Covering Emerging Issues
and International
Developments
Title of the Reference Book Edition and
Publisher
3 Woodroffe and Amir Ali Law of Evidence- (Revised ISBN: 9788180387883,
by: B M Prasad, Manish Set of 4 vols.
Mohan)
4 SC Sarkar Law of Evidence in India, 10th Ed. ISBN-13: 978-
Pakistan, Bangladesh, 9351430858: LexisNexis
Burma, Ceylon, Malaysia & Butterworth’s
Singapore
5 Peter Murphy Murphy on Evidence Murphy on Evidence, 11th
Evidence – OUP- Online
Resource Centre
6 Colin Tapper Cross & Tapper on Cross & Tapper on
Evidence Evidence, 12th Ed. –
Online Resource Centre
(OUP)
7 Sen Gupta Law of Evidence Law of Evidence, 2nd Ed.,
Vol 1 and 2, Kamal Law
House, Kolkata 2018
8 Chief Justice M Monir Law of Evidence Universal Law Publishers
Commentary on Indian
Evidence Act, 1872- 2
Volumes
9 Jethmalani and The Law of Evidence Second Ed Thomson
Chopra’s 2 Volumes Reuters
10 Stephen Mason, Daniel Electronic Evidence University of London
Seng Press 2017
4th Edition

11 David H. Kaye(Author), Wigmore on Evidence - The 2nd Ed., Nov 2010 ISBN-13
David E. New Wigmore: A Treatise on 978-0735593534 ISBN-10:
Bernstein(Author), Evidence - Evidence, 0735593531
Jennifer L. Mnookin

12 Eoghan Casey Digital Evidence and Academic Press Inc; 3rd

Computer Crime: Forensic Revised Ed.
Science, Computer, and the
Internet
13 William Twining Rethinking Evidence Cambridge University Press,
Exploratory Essays Dec. 2009, Online
ISBN:9780511617249 2nd
Ed.
14 Steven Powles, Lydia May on Criminal Evidence Sweet and Maxwell

24
 Waine and Radmila May South Asian Edition
6th Edition, 2015
15 K.S. Narayan The Essentials of Forensic Recent Edition
Reddy (Author), O.P. Medicine and Toxicology 
Murty (Author)

16 Anil Aggrawal Textbook of Forensic Jaypee Brothers, Medical

Medicine and Toxicology  Publishers Pvt. Limited

17 K. Kannan (Editor) Modi's Textbook of medical Elsevier

Jaising Prabhudas Modi jurisprudence and
toxicology

List of Cases with Citation

Sl. No. Cases Title Citation

1. M. G. Agarwal v State of 1962 Indlaw SC 520; AIR 1963 SC 200
Maharashtra (Constitutional Bench)
2. General Court-Martial and Others v 1997 Indlaw SC 1216; AIR 1998 SC 983
Col. Aniltej Singh Dhaliwal
3. Ayaaubkhan Noorkhan Pathan v State (2013) 4 SCC 465
of Maharashtra
4. Ladli Prasad Jaiswal v Karnal 1962 Indlaw SC 435; AIR 1963 SC 1279
Distillery Company Limited
5. Zahira Habibulla H Sheikh and AIR 2004 SC 3114: 2004 Indlaw SC 408
Another v State of Gujarat and Others
(‘Best Bakery Case’)
6. Sodhi Transport Co. And Anr. Etc. 1986 Indlaw SC 136; AIR 1986 SC 1099
Etc. v State of Uttar Pradesh and
Others
7. Toran Singh v State of Madhya 2002 Indlaw SC 1913; (2002) 6 SCC 494
Pradesh
8. Varun Chaudhary v State of 2010 Indlaw SC 938, AIR 2011 SC 72
Rajasthan
9. Jayendra Saraswathi Swamigal v State 2005 Indlaw SC 11; (2005) 2 SCC 13
of Tamil Nadu
10. Bodhraj Alias Bodha and Others v 2002 Indlaw SC 1786; AIR 2002 SC 3164
State of Jammu and Kashmir
11. Dudh Nath Pandey v State of Uttar 1981 Indlaw SC 107; (1981) 2 SCC 166
Pradesh
12. Emperor v Panchu Das and Another 1920 Indlaw CAL 388; AIR 1920 CAL

25
 500
13. Purna and Another v State of Uttar 1983 Indlaw SC 391; AIR 1984 SC 454
Pradesh
14. Saraswathi Ammal v Jagadambal and 1953 Indlaw SC 103, AIR 1953 SC 201
Another
15. Tirumala Tirupati Devasthanams v 1998 Indlaw SC 1449; AIR 1998 SC 1132
K.M. Krishnaiah
16. Banarsi Das v Seth Kanshi Ram and 1962 Indlaw SC 415; AIR 1963 SC 1165
Others
17. Bharat Singh and Another v 1965 Indlaw SC 176; AIR 1966 SC 405
Bhagirathi
18. Aghnoo Nagesia v State of Bihar 1965 Indlaw SC 131, AIR 1966 SC 119

19. Abdul Ghani S/O Mohammad v State 1972 Indlaw SC 437; (1973) 4 SCC 17
of Uttar Pradesh
20. Lakhan v State of M.P. 2010 Indlaw SC 628, (2010) 8 SCC 514
21. Atbir v Govt. Of N.C.T. Of Delhi 2010 Indlaw SC 629; AIR 2010 SC 3477
22. Rajan Rai v State of Bihar 2005 Indlaw SC 718; AIR 2006 SC 433
23. Hemalata Sahu v Sugyani Sahu 2009 Indlaw ORI 89; AIR 2010 ORI 35
24. Syed Askari Hadi Ali Augustine 2009 Indlaw SC 278; AIR 2009 SC 3232
Imam & Anr. v State (Delhi Admn.)
& Anr
25. Ramesh Chandra Agrawal v Regency AIR 2010 SC 806
Hospital Limited and Others
26. Ajay Kumar Parmar v State of 2012 Indlaw SC 424; (2012) 12 SCC 406
Rajasthan
27. R. M. Malkani v State of Maharashtra 1972 Indlaw SC 200; AIR 1973 SC 157
28. Balram Prasad Agrawal v State of 1996 Indlaw SC 1761; (1997) 9 SCC 338
Bihar and Others
29. Government of A. P. and Others v 1993 Indlaw SC 1646; AIR 1994 SC 591
Karri Chinna Venkata Reddy and
Others
30. Standard Chartered Bank v Andhra 2006 Indlaw SC 826; AIR 2006 SC 3626
Bank Financial Services Limited, and
Others
31. Karnataka Wakf Board v State of 2003 Indlaw SC 400; (2003) 5 SCC 555
Karnataka and another
32. State Bank of India and Another v 2006 Indlaw SC 1463; AIR 2007 SC 2361
Mula Sahakari Sakhar Karkhana
Limited
33. Joseph John Peter Sandy v Veronica 2013 Indlaw SC 133; (2013) 3 SCC 801
Thomas Rajkumar & Anr.
34. Ritesh Sinha v The State of Uttar 2012 Indlaw SC 524; AIR 2013 SC 1132
Pradesh & Anr.
35. Jaswant Singh v Gurdev Singh and 2011 Indlaw SC 691, (2012) 1 SCC 425
others
26
36. Shashi Kumar Banerjee and Others v 1963 Indlaw SC 414’ AIR 1964 SC 529
Subodh Kumar Banerjee since
Deceased and after Him His Legal
Representatives and Others
37. Shri Najmuddin & Ors v Union Of 2008 Indlaw SC 2013; AIR 2009 SC 1429
India & Ors.
38. Roop Kumar v Mohan Thedani 2003 Indlaw SC 319; AIR 2003 SC 2418
39. Anil Rishi v Gurbaksh Singh 2006 Indlaw SC 192; AIR 2006 SC 1971
40. Amrit Banaspati Co. Limited v Union 1995 Indlaw SC 1754;AIR 1995 SC 1340
Of India And Ors.
41. Narcinva V. Kamat and Anr. Etc. v 1985 Indlaw SC 210, (1985) 2 SCC 574
Alfred Antonio Doe Martins and Ors.
42. Union of India and others v Joginder 2019 Indlaw MEG 19
Singh & Mohammad Yaqoob Mir,
H.S. Thangkhiew
43. Rajasthan Small Industries 2019 Indlaw SC 59
Corporation Limited v Ganesh
Containers Movers Syndicate
44. Ritika Jain and others v Guru Gobind 2019 Indlaw DEL 926
Singh Indraprastha University and
another
45. Pawan Kumar v State of Himachal 2017 Indlaw SC 351, AIR 2017 SC 2459
Pradesh
46. State Of Rajasthan v Darshan Singh 2012 Indlaw SC 141, AIR 2012 SC 1973
@ Darshan Lal
47. Maneka Sanjay Gandhi and Another 1978 Indlaw SC 109, AIR 1979 SC 468
v Rani Jethmalani
48. State of Haryana v Ram Mehar and 2016 Indlaw SC 623, AIR 2016 SC 3942
others
49. Major Som Nath v Union of India and 1971 Indlaw SC 797, AIR 1971 SC 1910
Another
50. State of Rajasthan v Islam 2011 Indlaw SC 373, AIR 2011 SC 2317

51. Sital Das v Sant Ram and Others 1954 Indlaw SC 186, AIR 1954 SC 606
52. Bai Hira Devi and Others v Official 1958 Indlaw SC 23, AIR 1958 SC 448
Assignee of Bombay
53. State of Maharashtra with P.C. Singh 2003 Indlaw SC 320, AIR 2003 SC 2053
v Dr. Praful B. Desai and another
54. Shivakumar and others v 2020 Indlaw SC 309
Sharanabasappa and others
55. Dhanpat v Sheo Ram (deceased), 2020 Indlaw SC 266
through Lrs. and others
56. Director General (Road 2020 Indlaw SC 391
Development) National Highways
27
 Authority of India v Aam Aadmi
Lokmanch and others
57. Manoj Suryavanshi v State of 2020 Indlaw SC 244
Chhattisgarh
58. Kumar Exports v Sharma Carpets 2008 Indlaw SC 1968, AIR 2009 SC 1518
59. Paul v State of Kerala 2020 Indlaw SC 50

60. Purshottam Chopra and another v 2020 Indlaw SC 6

State Governmentof (NCT of Delhi)
61. Dipanwita Roy v Ronobroto Roy 2014 Indlaw SC 711, AIR 2015 SC 418

Note- The lists of cases given above are not exhaustive. They are just suggestive cases for
the reference. The course will be beyond the material submitted. This is for academic
purpose only. The case and concepts are not completely or exhaustively covered in the
course material, due to constraint of space. An attempt is made to give a peripheral
indication of the cases in the law of Evidence. The books given in the reference section are
available in the library and the course coverage will be as per the requirement of better
understanding of the subject. The Course material with cases only are not to be considered
as complete material for the course. The Articles and other Material discussed in the
Classroom to be part of the Course.

28
 Section 3 and Section 60

Principle of Criminal law (Criminal Jurisprudence) and Application of law of

Evidence
Relevance of Oral Evidence
M. G. Agarwal v State of Maharashtra (Constitutional Bench)31,
1962 Indlaw SC 520; AIR 1963 SC 20032
Cases Referred
1. Surajpal Singh v The State, (1952) S.C.R. 193, 201; 1951 Indlaw SC 23
2. Ajmer Singh v State of Punjab, (1953) S.C.R 418; 1952 Indlaw SC 110,
3. Sanwat Singh v State of Rajasthan, (1961) 3 S C. R. 120; 1960 Indlaw SC 446. ,
4. Harbans Singh v The State of Punjab, (1962) Supp. I.S.C.R 104; 1961 Indlaw SC
361.
Facts of the Case
A criminal conspiracy to which, according to the prosecution, M.G. Agarwal M. K.
Kulkarni and N. Laxminarayan, hereafter called accused Nos. 1, 2 and 3 respectively, were
parties between December, 1954, and June 1955, at Bombay, has given rise to the criminal
proceedings from which the two present appeals arise. At the relevant time, the three
accused persons were attached to the office of the Income-tax Officer, Ward No. A-III in
Greater Bombay. Accused No. I was designated as the First Income-tax Officer, and

31 Rananjaya Singh v Baijnath Singh And Others 1954 Indlaw SC 99; AIR 1954 SC 749 ( constitutional
bench)
32 Pralhad Balacharya Gajendragadkar, Bhuvaneshwar Prasad, Sinha, Kailas Nath Wanchoo, N. Rajagopala
Ayyangar, T.L., Venkatarama Aiyyar

29
accused Nos. 2 and 3 worked under him as second and third Assessment Clerks
respectively. The main charge against these persons was that during the relevant period,
they had entered into a criminal conspiracy by agreeing to do or cause to be done illegal
acts, by corrupt and illegal means and by abusing their position as public servants to obtain
for themselves pecuniary advantage in the form of income-tax refund orders and this
criminal object was achieved by issuing the said refund orders in the names of persons who
either did not exist or were not assesses entitled to such refunds. The prosecution case was
that after the said refund orders were thus fraudulently issued, they were fraudulently
cashed and illegally misappropriates. The ten persons in whose names these refund orders
were fraudulently issued were G.M. Thomas, P.N. Swamy, K. S. Patel, S. R. Bhandarkar,
S. P. Jani, D. M. Joshi, C. B. Kharkar, Ramnath Gupta, V. M. Desai and K. V. Rao. It
appears that twenty-five bogus vouchers were issued in respect of these ten fictitious cases;
eleven accounts were fraudulently opened in different Banks in Bombay and
misappropriation to-the extent of Es. 54,000/- has thereby been committed. That, in.
substance, is the main charge which was leveled against the three accused persons. Nine
other subsidiary charges were also framed against them. Charges 2, 3 and 4 wore in respect
of the income-tax refund order issued on the 7th January, 1955, in favour of Mr. G. M.
Thomas. The prosecution alleged that by their several acts in respect of the issuance of this
refund order, the three accused persons had committed offences u/ss. 467 and 471 read
with, s. 34 I.P.C., as well as s. 5(2) of the Prevention of Corruption Act read with s. 5(1)(d)
of the said Act and a. 34 of 'the Indian Penal Code. Similarly, charges 5, 6, and 7 were
framed under the same sections respectively in regard to the income-tax refund order issued
in favour of Mr. G. M. Thomas on the 2nd April, 1955. In regard to the income-tax refund
order issued in favour of Mr. S. R. Bhandarkar on 2nd April, 1955, charges, 8, 9 and 10
were framed under the said respective, sections. That is how the case against the three,
accused persons under ten charges was tried by the Special Judge, Greater Bombay. It
would thus be seen that, in substance, the prosecution case if; that in order to carry out the
criminal object of the conspiracy, the three accused, persons adopted a very clever and
ingenious modus operandi in defrauding the public treasury. They decided to take adequate
steps to issue income-tax refund orders in the names of non-existing persons and to
misappropriate the amounts by enchasing the said refund certificates issued in pursuance of

30
the said refund orders. In furtherance of the conspiracy and in furtherance of the common
intention of all the conspirators, steps were taken to forge the signatures of the said
fictitious persons as claimants wherever necessary, to prepare some of the supporting
documents and to deal with the cases as though they were cases of genuine assesses
submitting a return and making a claim for refund. It is by adopting this clever device that
all the accused persons have succeeded in misappropriating such a large amount as Re.
54,000/-.

It appears that when a return 'or refund application is received in the Income-tax Office,
first goes to the assessment refund clerk who, in due course, puts it up for orders before the
Income tax Officer. In ordinary course, the Income-tax Officer sends a notice to the
assesses, examines him and the accounts produced by him to see if the return is correct.
That done, an assessment order is passed by the Income-tax Officer. Thereafter, a form
known as I.T. 30 form is prepared. This form contains several columns which, when filled
in, give details about the income-tax payable by the assesses the tax paid by him, the refund
ordered by the income-tax Officer or the collection demanded by aim. After this form is
duly filled, it is sent to another clerk for preparing the refund order. At that stage, the
refund order is prepared and the said order together with the demand and collection register
and I.T. form 30 are sent back to the Income-tax Officer who examines the record and
signs the refund order and the I.T. form 30 and himself makes or causes to be made an
entry in the demand and collection register. At this time, he also cancels the refund
certificates, such as dividend warrants. The Income-tax Officer also receives the advice
memo prepared by the refund clerk and signs it. The said memo is sent to the Reserve Bank
and the refund order is sent to the assessee. After the refund voucher is cashed by the
Reserve Bank, the advice memo is received back in the Income-tax Office. It is thereafter
that an entry is made in the Daily Refund Register. The prosecution case is that the
conspirators purported to adopt all steps which they deemed necessary to carry out their
criminal object in order formally to comply with the procedure prescribed by the
department in making refund orders. Before the learned trial Judge, accused No. 3 pleaded
guilty to all the charges framed against him, whereas accused Nos. 1 and 2 denied that they
had anything to do with the alleged commission of the offences charged.

31
Contention of the Counsel
The prosecution sought to prove its case against all the three persons by producing before
the learned trial Judge the relevant documents including the files kept in A-III Ward office,
and it examined four witnesses from the department for the purpose of showing the
procedure that is followed in passing assessment orders and granting refunds and with the
object of showing that the conspiracy could not have succeeded without the active
assistance and cooperation of accused No. 1. These witnesses are Sundararajan, P. W. 1,
Nagwekar, P. W. 2, Subramanian, P.W. 5 and Downak, P. W. 21. It also, examined Das
Gupta, P. W. 26, to prove the handwriting of the accused persons. Eleven other witnesses
were examined to prove the identity of accused Nos. 2 and 3 in respect of the steps taken
by them to open accounts in different banks in order to encash the refund vouchers issued
in pursuance of the refund orders passed by accused No. 1. Against the order of acquittal
passed by the learned Judge in favor of accused Nos. 1 and 2, the State of Maharashtra
preferred an appeal in the Bombay High Co-art and this appeal succeeded. The High Court
has found that the learned trial Judge a misdirected himself by assuming that accused No. I
had pleaded that he had negligently signed the relevant documents and passed the relevant
orders in a hurry, placing confidence in his staff. The High Court has pointed out that far
from pleading negligence, accused No. 1 had definitely stated in his written statement filed
in the trial Court that before he directed the issue of refund in the ten cases, be had
examined the files containing the supporting documents and had satisfied himself that it
was proper to allow the refund in each one of those cases. This position was conceded by
the learned Advocate who appeared for accused No. 1 in the High Court. The High Court
then examined the question as to whether the ten assessees were existing persons or were
fictitious names and it came to the conclusion that the ten names given for the eleven
accounts in which refund orders were passed were fictitious names.
The High Court then examined the circumstantial evidence on which the prosecution relied
in support and proof of its main charge of conspiracy between the three accused persons
and it came to the conclusion that the said charge had been proved against all the three
accused persons beyond a reasonable doubt. That is how the High Court partially allowed
the appeal preferred by the State and convicted all the three accused persons under section
120-B of the Indian Penal Code. It also convicted accused No. 2 of the offences under ss.

32
467, 471, I. P. C., and s. 5(2) of the Prevention of Corruption Act. In regard to the other
offences charged, the order of acquittal was confirmed. Having convicted accused Nos. 1 &
2 under section 120-B, the High Court has sentenced each one of them to suffer rigorous
imprisonment for 18 months for the said offence. Accused No. 2 has also been directed to
suffer R.I. for 18 months in respect of each of the offences under ss. 467, 471, I. P. C. and
s. 5 (2) of the Prevention of Corruption Act. These sentences are ordered to run
concurrently with the sentence ordered under s. 120-B. It is against this order of conviction
and sentence passed by the High Court in appeal that accused Nos. 1, 2 have come to this
Court by special leave by their appeals Nos. 176 of 1959 and 40 of 1960. Since the
impugned order of conviction and sentence was passed against the appellants by the High
Court in exercise of its powers under s. 423 of the Criminal Procedure Code while hearing
‘an appeal against their acquittal, the first question which calls for our decision relates to
the extent of the High Court's powers in interfering with orders of acquittal in appeal. This
question has been discussed and considered in several judicial decisions both by the Privy
Council and this Court. In dealing with the different aspects of the problem raised by the
construction of s. 423, emphasis has sometimes shifted from one aspect to the other and
that is likely to create a doubt about the true scope and effect of the relevant provisions
contained in s. 423. Therefore, we propose to deal with that point and state the position
very briefly.
Judgment
Therefore, the question, which we have to ask ourselves in the present appeals is whether
on the material produced by the prosecution, the High Court was justified in reaching the
conclusion that the prosecution case against the appellants had been proved beyond a
reasonable doubt, and that the contrary view taken by the trial Court was, erroneous. In
answering this question, we would, no doubt, consider the salient and broad features of the
evidence in order to appreciate the grievance made by the appellants against the
conclusions of the High Court. But, under Art. 136, we would ordinarily be reluctant to
interfere with the finding of fact recorded by the High Court particularly where the said
findings are based on appreciation of oral evidence. There is another point of law, which
must be considered before dealing with the evidence in this case. The prosecution case
against accused No. 1 rests on circumstantial evidence. The main charge of conspiracy

33
under section 120 B is sought to be established by the alleged conduct of the conspirators
and so far, as accused No. 1 is concerned, that rests on circumstantial evidence alone. It is a
well-established rule in criminal jurisprudence that circumstantial evidence can be
reasonably made the basis of an accused person's conviction if it is of such a character that
it is wholly inconsistent with the innocence of the accused and is consistent only with his
guilt. 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. There is no
doubt or dispute about this position. But in applying this principle, it is necessary to
distinguish between facts which may be called primary or basic on the one hand and
inference of facts to be drawn from them on the other. In regard to the proof of basic or
primary facts the Court has to judge the evidence in the ordinary way, and in the
appreciation of evidence in respect of the proof of these basic or primary facts there is no
scope for the application of the doctrine of benefit of doubt. The Court considers the
evidence and decides whether that evidences proves a particular fact or not. When it is held
that a certain fact is proved, the question arises whether that fact leads to the inference of
guilt of the accused person or not, and in dealing with this aspect of the problem, the
doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the
proved fact is wholly inconsistent with the innocence of the accused and is consistent only
with his guilt. It is in the light of this legal position that the evidence in the present case
must be appreciated. The Court then considered the evidence and the findings of the High
Court and dismissed the appeals.

34
 Applicability of the Indian Evidence Act
General Court-Martial and Others v Col. Aniltej Singh Dhaliwal
1997 Indlaw SC 1216; (1998) 1 SCC; 756; AIR 1998 SC 98333
Cases Referred
1. Nagendra Nath Bora v The Commissioner of Hills Diven and Appeals, 1958 SCR
1240; 1958 Indlaw SC 62
2. Parry & Co. v Judge, 2nd I.T. Cal., AIR 1970 SC 1334
3. H.S. and I.E. Board, U.P. v Bagleshwar, AIR 1966 SC 875
4. Bhagat Ram v State of H.P., AIR 1983 SC 454
5. S.N. Mukherjee v Union of India, (1990) 4 SCC 594
6. Chaturvedi v Union of India, (1995) 6 SCC 749
7. Ranjit Thakur v Union of India & Ors, (1987) 4 SCC 611
8. Naqubai v B. Shama Rao, AIR 1956 S.C. 593
9. K.S. Srinivasan v Union of India, AIR 1958 S.C.419
10. Basant Singh v Janki Singh AIR1967 S.C. 341
11. P.Ex-s. Co-op. T. F.S. v State of Haryana, AIR 1974 S.C. 1121

33 M. Srinivasan and M.M. Punchhi

35
Facts of the Case
The respondent was an Army Officer of the rank of Lt. Col. and was posted as
Commanding Officer under 116 Engineer Regiment, with head quarter, 17 Mta. Arty. Brde.
Nine charges were framed against him on 24.6.1995 and General Court Martial was held
from 1.7.95 to 10.11.95. He was found guilty on charges 2, 3, 8 and 9. He filed Crl. Writ
Petition No.1 of 1995 in the High Court of Sikkim on 11.12.95. Thereafter on 2.3.1996 the
order of the Court Martial was confirmed u/s. 154 of the Army Act. By judgment dated
9.8.96 the High Court allowed the writ petition and quashed the order or the Court Martial.
The appellant has preferred this appeal against the judgment of the High Court.
Contention of the Counsel/parties
The main contention of the appellant is that the High Court has exceeded its power of
judicial review u/art. 226 and acted as a court of appeal by discussing and appreciating the
evidence. Reliance is placed on Nagendra Nath Bora Versus The Commissioner of Hills
Diven and Appeals 1958 SCR 1240 1958 Indlaw SC 62 wherein this court held that the
High Court had no power u/art. 226 to issue a writ of certiorari in order to quash an error of
fact, even though it may be apparent on face of the record unless there is an error of law
which is apparent on the face of the record. The court observed that the jurisdiction of the
High Court is limited to seeing that the judicial or quasi-judicial tribunals or administrative
bodies exercising quasi-judicial powers do not exceed their statutory jurisdiction and
correctly administer the law laid down by the Statute under which they act. Relying on the
aforesaid relines learned counsel for the appellants submit that the High Court in this case
has exceeded its jurisdiction not only by re appreciating the evidence but also by erroneous
understanding provisions of the Evidence Act. It is argued by him that in this case there has
been no violation of principles of natural justice or rules of procedure and that there is
ample evidence on record to support the findings of the Court Martial.
Contention of the Respondent
Learned counsel for the respondent contends that the court martial has relied on
inadmissible evidence and over looked certain relevant evidence on record and its findings
are vitiated. He has placed reliance on the ruling in Ranjit Thakur v Union of India & Ors34.
In that case the court found that there was failure to enquire from accused as required by s.

34 (1987) 4 SCC 611; 1987 Indlaw SC 28438

36
130 of the Army Act whether he objects to trial by any of the officers’ present and held that
the entire proceedings were vitiated. The court went on to hold that the punishment
awarded was disproportionately excessive and quashed the same. The respondent
contended before the High Court that the oral evidence of PWs6, 21 and 24 was not
admissible in view of the provisions of S. 94 of the Evidence Act as the same was contrary
to the proceedings of the Board. The High Court has accepted the said contention and held
that S. 94 of the Evidence Act barred the admissibility of the oral evidence. The High Court
has also observed that the Members of the Board who has deposed that they had assigned
the Board proceedings because the respondent wanted them to do so should have been
proceeded against for their lapses. According to the High Court the non-consideration of
the said aspect of the matter was a gross omission on the part of the Court Martial. It was
further observed by the High Court that the evidence of PW 20 was omitted to be
considered by the Court Martial. None of the reasons given by the High Court is
sustainable. A perusal of S. 94 of the Evidence Act shows that it has no applicability
whatever. The Section reads thus: Exclusion of Evidence against application of document
to existing facts:-
“When language used in a document is plain in itself and when it applies accurately to
existing facts, evidence may not be given to show that it was not meant to apply to such
facts."
The Section will come into play only when there is document and the language of it has to
be considered with reference to a particular factual situation. That Section will apply only
when the execution of the document is admitted and no vitiating circumstance has been put
forward against the same. In the present case, the document in question is a proceeding of
the Board. If at all, it can only be said that said document contains an admission made by
the signatories thereto that they had checked the materials and the serviceability thereof. It
is well settled that an admission can be explained by the markers thereof. There is another
aspect of the matter to be considered. S. 133 of the Army Act provides that the Indian
Evidence Act shall subject to the provisions of the Act applied to all proceedings before the
Court Martial. S. 134 provides that a Court Martial may take judicial notice of any matter
within the general military knowledge of the members. It is quite obvious that in this case
the Court Martial had taken judicial notice of the fact that a lower official obeys implicitly

37
the directions of a higher official. The respondent being an official higher in rank to the
aforesaid witnesses, the latter carried out his directions by signing the Board proceedings.
The High Court has also observed that the evidence of PW 20 was not considered by the
Court Martial. We are unable to appreciate how the evidence of PW 20 is relevant in this
regard. Hence, the reasoning of the High Court for setting aside the finding of the Court
Martial on Charge No.3 is wholly unsustainable. It is quite obvious that the charge framed
against the respondent will not fall under Para 1(c). The charge is not that some other
persons brought about losses/deficiencies of defence Brick Store and the same was not
reported by the respondent. Not is the charge to the effect that it was the respondent himself
who caused such losses/deficiencies. The charge itself is very vague. The High Court is
therefore justified in holding that the charge is defective and the respondent cannot be
made guilty. There is no doubt that the High Court has erroneously set aside the findings of
the Court Martial on Charges 2,3 and 8. Now that we uphold the findings of the Court
Martial on the said charges, the only question which remains to be considered is that of
punishment awarded to the respondent. Prima facie, the sentence awarded by the Court
Martial appears to be very service. But we do not want to decide the question here. As the
Court Martial awarded such a sentence on the basis of the findings on all the four charges,
namely, 2, 3, 8 and 9 the same cannot be sustained as we have now held that Charge No.9
is unsustainable and the finding thereon has been rightly quashed. Hence, the question of
sentence has to be considered on the basis of three charges namely 2, 3 and 8 being found
against the respondent. That has to be done by the Court Martial. Therefore, the matter has
to be remanded back to the Court Martial for deciding that question. Consequently, the
appeal is partly allowed and the judgment of the High Court is set aside except with
reference to its conclusion on charge No.9. The sentence awarded by the Court Martial is
set aside and the matter is remitted to the Court Martial for considering and passing an
appropriate sentence on the basis of findings on Charges 2, 3 and 8.
In the facts and circumstances of the case we find it necessary to invite attention of
appellants 2 to 4 to consider initiating appropriate proceedings against PWs 6, 21 26, 30
and 32 who deposed at the Court Martial that they had signed or prepared official record on
the oral directions of the respondent without verifying the correctness thereof which act of

38
their was in direction of duties. These states of affairs are highly distressing. We record our
displeasure. Appeal partly allowed.

39
 AFFIDAVIT
Ayaaubkhan Noorkhan Pathan v State of Maharashtra
(2013) 4 SCC 46535
Cases Referred
1. Sudha Devi v M.P. Narayanan & Ors., AIR 1988 SC 1381; 1988 Indlaw SC 462
2. Range Forest Officer v S.T. Hadimani, AIR 2002 SC 1147; (2002 Indlaw SC 843)
Facts of the Case
The competent authority in the present case, issued a caste certificate dated 19.10.1989,
after following due procedure, in favour of the appellant stating that he does in fact, belong
to Bhil Tadvi (Scheduled Tribes). On the basis of the said certificate, the appellant was
appointed as Senior Clerk in the Municipal Corporation of Aurangabad (hereinafter
referred to as the, 'Corporation') on 6.2.1990, against the vacancy reserved for persons
under the Scheduled Tribes category. The Corporation referred the caste certificate of the
appellant for the purpose of verification, to the Caste Certificate Scrutiny Committee
(hereinafter referred to as the, "Scrutiny Committee"). The Vigilance Cell attached to the
Scrutiny Committee, upon conducting vigilance enquiry, vide order dated 29.12.1998,
found that the appellant did, in fact, belong to Bhil Tadvi (Scheduled Tribes) and thus, the
said certificate was verified. The Scrutiny Committee, on the basis of the said report and
also other documents filed by the appellant in support of his case, issued a validity
certificate, dated 23.5.2000 to the appellant belonging to Bhil Tadvi (Scheduled Tribes).
After the lapse of a period of 9 years, respondent no.5 filed complaint dated 9.1.2009,
through an advocate before the Scrutiny Committee, for the purpose of recalling the said
validity certificate, on the ground that the appellant had obtained employment by way of
misrepresentation, and that he does not actually belong to the Scheduled Tribes category. In
fact, the appellant professed the religion of Islam and therefore, could not be a Scheduled
Tribe.
The Scrutiny Committee rejected the said application vide order dated 13.3.2009,
observing that it had no power to recall or to review a caste validity certificate, as there is
no statutory provision that provides for the same.

35 Balbir Singh Chauhan and J. S. KHEHAR

40
Aggrieved, respondent no.5 challenged the order dated 13.3.2009, by filing Writ Petition
No.3129 of 2009 before the High Court of Bombay (Aurangabad Bench), praying for
quashing of the order dated 13.3.2009, and directing the Scrutiny Committee to hold de
novo enquiry, with respect to the appellant's caste certificate. The appellant contested the
said petition, denying all the allegations made by respondent no.5. Vide its impugned
judgment and order dated 22.9.2009, the High Court disposed of the said writ petition
without going into the merits of the case. However, while doing so, the High Court set
aside the order dated 13.3.2009, and remitted the matter to the Scrutiny Committee,
directing it to hear all the parties concerned in accordance with law, as regards the
allegations made by respondent no.5 in the complaint. It further directed the Committee to
decide the said matter within a period of 6 months. Hence, this present appeal.
Argument of the Appellant
Shri A.V. Savant, learned Senior counsel, appearing for the appellant has submitted that
respondent no.5 does not belong to any reserved category, in fact, he belongs to the
General category, and hence, he has no right or locus standi, to challenge the appellant's
certificate. Thus, the High Court committed an error by directing the Scrutiny Committee
to entertain the complaint filed by respondent no.5. It has further been submitted that,
despite the directions given by this Court, the Scrutiny Committee failed to ensure
compliance with the principles of natural justice, as the appellant was denied the
opportunity to cross-examine witnesses, and no order was passed with respect to his
application for recalling such witnesses for the purpose of cross-examination, which has no
doubt, resulted in the grave miscarriage of justice. The affidavit filed by the Scrutiny
Committee did not clarify, or make any specific statement with respect to whether or not
the appellant was permitted to cross-examine witnesses. It further, did not clarify whether
the application dated 28.2.2012, filed by the appellant to re-call witnesses for the purpose
of cross-examination, has been disposed of. Moreover, the procedure adopted by the
Scrutiny Committee is in contravention of the statutory requirements, as have been
specified under the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes,
(Vimukta Jatis), Nomadic Tribes, Other Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001
(hereinafter referred to as the, 'Act 2001'), and the Rules, 2003 which are framed under the

41
Act 2001 and therefore, all proceedings hereby stand vitiated. The appellant placed reliance
upon several documents which are all very old and therefore, their authenticity should not
have been doubted. The earlier report submitted by the Vigilance Cell dated 29.12.1998,
clearly stated that the traits and characteristics of the appellant's family, matched with those
of Bhil Tadvi (Scheduled Tribes). The action of respondent no.5 is therefore, completely
mala fide and is intended, solely to harass the appellant, and the High Court committed
grave error in not deciding the issue related to the locus standi of respondent no.5 in
relation to him filing a complaint in the first place, as the said issue was specifically raised
by the appellant. Therefore, the present appeal deserves to be allowed.
Argument by the Scrutiny Committee
Shri Shankar Chillarge, learned counsel made elaborate submissions, in support of the
impugned judgment and subsequent proceedings. Mr. Udaya Kumar Sagar and Ms. Bina
Madhavan, learned counsel appearing for respondent no.5, have also supported the
impugned judgment of the High Court and has further submitted that even though
respondent no.5, does not belong to the Scheduled Tribes category, he most certainly could
file a complaint against the appellant, at such a belated stage, as the appellant had obtained
employment in 1989, by way of mis-representation and fraud. Respondent no.5, being a
public-spirited person has espoused the cause of the real persons who have been deprived
of their right to be considered for the said post occupied by the appellant. Respondent No. 5
has also filed affidavits of relevant persons before the Scrutiny Committee, to prove his
allegations.
Thus, the present appeal lacks merit and is liable to be dismissed.
Is Affidavit Evidence within the meaning of Sec 3 of the IEA?
It is a settled legal proposition that an affidavit is not evidence within the meaning of S. 3
of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'). Affidavits
are therefore, not included within the purview of the definition of "evidence" as has been
given in S. 3 of the Evidence Act, and the same can be used as "evidence" only if, for
sufficient reasons, the Court passes an order under Order XIX of the Code of Civil
Procedure, 1908 (hereinafter referred to as the 'CPC'). Thus, the filing of an affidavit of
one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any

42
Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular
fact-situation.

Maxim Referred
It has been held that presumption is based on legal maxim “Omnia praesumuntur rite esse
acta” i.e. all acts are presumed to have rightly and regularly been done. Such a presumption
can be rebutted by adducing appropriate evidence. Mere statement made in the written
statement/petition is not enough to rebut the presumption. The onus of rebuttal lies upon
the person who alleges that the act had not been regularly performed or the procedure
required under the law had not been followed.
Decision
Therefore, affidavits in the light of the aforesaid discussion are not considered to be
evidence, within the meaning of S. 3 of the Evidence Act. However, in a case where the
deponent is available for cross-examination and opportunity is given to the other side to
cross examine him, the same can be relied upon. Such view, stands fully affirmed
particularly, in view of the amended provisions of Order XVIII, Rules 4 & 5 CPC. In
certain other circumstances, in order to avoid technicalities of procedure, the legislature, or
a court/tribunal, can even lay down a procedure to meet the requirement of compliance
with the principles of natural justice, and thus, the case will be examined in the light of
those statutory rules etc. as framed by the aforementioned authorities.
The instant case is required to be examined in the light of the aforesaid legal propositions.
This Court examined this matter in detail in Km. Madhuri Patil v Addl. Commissioner,
Tribal Development36, and upon realizing that spurious tribes and persons not belonging to
the Scheduled Tribes category, were snatching away the reservation benefits that have been
made available to genuine tribe’s, and that they were being wrongly deprived of their rights
on the basis of false caste certificates, and that further, at a subsequent stage such
unscrupulous persons, after getting admission/employment, were adopting dilatory tactics,
the court issued a large number of directions to investigate such cases of false claims.
Appeal disposed based on the following reasons

36 (1994) 6 SCC 241; 1994 Indlaw SC 760

43
In view of the above discussion and considering the seriousness of the allegations, as the
Scrutiny Committee has already conducted an inquiry in relation to this matter, and the
only grievance of the appellant is that there has been non-compliance with the principles of
natural justice, and the fact that the applications filed by him, were not decided upon, we
direct that before the submission of any report by the Scrutiny Committee, his application
for calling the witnesses for cross-examination must be disposed of, and appellant must be
given a fair opportunity to cross-examine the witnesses, who have been examined before
the Committee.
The court further directed that the Scrutiny Committee to pass appropriate orders in
accordance with the law thereafter. In case, the Scrutiny Committee has already taken a
decision, the same being violative of the principles of natural justice, would stand vitiated.
47. The appeal is disposed of accordingly, however, considering the fact that respondent
no. 5 has not been pursuing the matter in a bonafide manner, and has not raised any public
interest, rather he abused the process of the court only to harass the appellant, the
respondent no. 5 is restrained from intervening in the matter any further, and also from
remaining a party to it, and he is also liable to pay costs to the tune of Rs. one lakh, within
a period of 4 weeks to the District Collector, Aurangabad. The District Collector,
Aurangabad, would deposit the said amount in the account of the Supreme Court Legal
Services Committee. In the event that, the cost imposed is not deposited by respondent no.
5 within the period stipulated, we request the District Collector, Aurangabad, to recover the
same as arrears of land revenue and deposit the same, accordingly. A copy of the judgment
be sent by the Registry of this Court to the District Collector, Aurangabad (Maharashtra)
for compliance.

44
 Evidence and Witnesses
Proof of Undue Influence and Coercion
Ladli Prasad Jaiswal v Karnal Distillery Company Limited
1962 Indlaw SC 435; AIR 1963 SC 127937
Cases Referred
1. Tulsi Prasad v Benayak : L. R. 23 I. A. 102; 1896 Indlaw PC 12)
2. Wahid-ud-din v Makhan Lal [1944]; I.L.R. 26 Lah. 24
3. Satgur Prasad v Har Narain Das (1932) L.R. 59 I.A. 147; 1932 Indlaw PC 14,
4. Bishnudeo Narain v Seogeni Rai and Jagernath [1951] S.C.R. 548; 1951 Indlaw
SC 66 (Constitutional Bench)
Facts of the Case
One Kishori Lal Jaiswal started a “distillery business” in the name of Kishori Lal & Sons
and set up a factory at Kamal in the Punjab for manufacturing liquor. Kishori Lal died in
1528 leaving him surviving three sons, Durga Prasad, Ladli Prasad and Shanti Prasad.
Durga Prasad who was the eldest surviving member became karta of the Joint Hindu family,
and continued the family business. On the death of Durga Prasad in 1934 leaving him
surviving two sons Sajjan Lal and Madan Lal and his wife Suraj Mukhi, Ladli Prasad
became the ‘karta’ of the family and continued the business. By mutual arrangement on
November 5, 1940 the joint Hindu Family of three branches was disrupted and the business
of Kishori Lal & Sons was thereafter conducted as a partnership concern each branch having
a third share therein. On March 23, 1941 a private limited company called the Karnal
Distillery Company Ltd. was incorporated under the Indian Companies Act, 1913, and the
business of Kishori Lal & Sons was taken over by that Company. Under the final allotment
of shares made by the Company on August 1, 1941-1005 shares were allotted to the branch
of Durga Prasad, 1503 shares to Ladli Prasad and 1003 to Shanti Prasad. By the Articles of
Association, the maximum number of Directors was five and the maximum number was
two. Ladli Prasad, Shanti Prasad and Suraj Mukhi were appointed as the first Directors of
the Company. Every year one-third of the Directors except the Managing Directors were to
retire by rotation. Ladli Prasad was appointed Managing Director for ten years with the right
to continue for another ten years unless a notice of fifteen days within eight years was given
37 J.C. Shah, Bhuvaneshwar Prasad Sinha, Pralhad Balacharya Gajendragadkar, Kailas Nath Wanchoo and
K.C. Das Gupta

45
by a two-third majority at a special general meeting held for the purpose of terminating his
appointment as Managing Director, and that two third of the total number of members could
expel a member of the Company. Ladli Prasad as Managing Director of the Company drew
an allowance of Rs. 1,800/- per month, a commission of 7 1/2 per cent on net profits of the
Company, a motor-car allowance of Rs. 350/- per month with a right to be provided a new
motor-car every three years for personal use and Rs. 30/- per day as travelling allowance.
The other Directors of the Company were paid remuneration at the rate of Rs. 250/- per
month, and each Director who attend the meeting of the Board of Directors was allowed in
addition Rs. 25/-per day. Manifestly there was great disparity between the remuneration
received by Ladli Prasad and the other Directors, and this gave rise to quarrels between the
members of the family. At an extraordinary general meeting of the Company held on
February 20, 1945 at which Shanti Prasad, Sajjan Lal, Madan Lal and Suraj Mukhi were
present, it was resolved that Ladli Prasad be removed from his office of Managing Director
and that Shanti Prasad be appointed Managing Director instead. But, Ladli Prasad declined
to hand over charge of the Managing Director's office to Shanti Prasad. A suit was
thereupon filed by Shanti Prasad in the Court of the Subordinate Judge, Karnal, on behalf of
the Company against Ladli Prasad on April 10, 1945 for a declaration that he was lawfully
appointed Managing Director of the Company and for enforcing the resolution dated
February 20, 1945. Ladli Prasad in his turn filed a suit for a declaration that Shanti Prasad
had ceased to be a Director of the Company. In the suit filed by Shanti Prasad on behalf of
the Company, the trial Court appointed Suraj Mukhi and Madan Lal as joint receivers to
manage the affairs of the Company for the duration of the suit. Against that order Ladli
Prasad appealed to the High Court of judicature at Lahore and obtained an order staying the
operation of the order appointing receivers. On October 16, 1945 at an extraordinary general
meeting of the Company held at the residence of Ladli Prasad at which all the members of
the family were present certain special resolutions were passed. The effect of various
resolutions passed (about 13 resolutions)
Issues before the Lower Court
Plaintiff - On November 26, 1946, Ladli Prasad filed a suit in the Court of the Senior
Subordinate judge, Karnal for a declaration that the meeting and proceedings of the Board
of Directors dated March 3, 1946, and the extraordinary general meeting dated March 28,

46
1946, and all meetings of the Directors held after March 28, 1946 were illegal, ultra vires,
ineffective and operated as a fraud on the Company and the interests of minority members
of the Company and that the unanimous resolutions of the extraordinary general meeting
dated October 16, 1945, continued to remain in force and were still operative, and a
permanent injunction restraining the Company, Shanti Prasad, Suraj Mukhi, Sajjan Lal and
Madan Lal (who were impleaded respectively as defendants I to 5) from acting upon or
carrying into effect the resolutions passed in the meetings dated March 3, 1946 and March
28, 1946 and all meetings held after March 28, 1946.
Defendants- The defendants by separate written statements resisted the suit contending
inter alia that the defendants 2 to 5 were coerced by Ladli Prasad taking advantage of his
position, into passing the resolutions in the extraordinary general meeting dated October 16,
1945, and that the resolutions were not binding upon the Company and the other defendants.
The pleading which was regarded as one of undue influence also suffers from a lack of
particulars. How the plaintiff took advantage of his position as a person in possession of the
assets of the Company and by what device he compelled the defendants to submit to his
will has not been stated. S. 16 of the Indian Contract Act which incorporates the law
relating to undue influence in its application to contracts is but a particularisation of a
larger principle. All transactions procured in the manner set out therein, are regarded as
procured by the exercise of undue influence. S. 16 of the Contract Act provides:
“(1) A contract is said to be induced by ‘undue influence’ where the relations subsisting
between the parties are such that one of the parties is in a position to dominate the will of
the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a
person is deemed to be in a position to dominate the will of another-
(a) Where he holds a real or apparent authority over the other, or where he stands in a
fiduciary relation to the other; or
(b) Where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or mental or bodily distress.
(3) where a person who is in a position to dominate the will of another, enters into a
contract with him, and the transaction appears, on the face of it or on the evidence

47
adduced, to be unconscionable, the burden of proving that such contract was not induced
by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of section III of the Indian Evidence
Act, 1872”.
The first sub-section of s. 16 lays down the principle in general terms. By subs. (2) a
presumption arises that a person shall be deemed to be in a position to dominate the will of
another if the conditions set out therein are fulfilled.' Sub-s. (3) lays down the conditions
for raising a rebuttable presumption that a transaction is procured by the exercise of undue
influence.
Judgment
Allowing the Appeal, the court held that
All the Courts have come to the conclusion that the resolutions dated March 3, 1.946 and
March 28, 1946 were invalid and not binding on the plaintiff. Therefore, any action taken
by the defendants pursuant to those resolutions may prima facie be regarded as ineffective.
On that view of the case, this appeal must be allowed and the decree passed by Bishan
Narain, J., must be restored with costs in this Court and before the Division Bench.

48
 Zahira Habibulla H Sheikh and Another v State of Gujarat and Others
(‘Best Bakery Case’)
AIR 2004 SC 3114; 2004 Indlaw SC 40838
S. 165 Role of Judge and Fair Trial and Admitting evidence in the Appellant Court
Principle- The Courts have to take a participatory role in a trial- Order for a Re-Trial
Facts of the Case
Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business concern known as
“Best Bakery” at Vadodara was burnt down by an unruly mob of large number of people.
In the ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory
action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was
the main eye-witness who lost family members including helpless women and innocent
children in the gruesome incident. Many persons other than Zahira were also eye-
witnesses. Accused persons were the perpetrators of the crime. After investigation charge
sheet was filed in June 2002.
‘Best Bakery Case’ - Concept of fair trial vis-a-vis human rights protection - Witness
threatened/forced to give false evidence is not fair trial - Failure to hear material witnesses
is denial of fair trial - State has a definite role to play in protection of witnesses -
Administration of justice vis-a-vis a fair trial - Presiding Judge must not be a spectator and
a mere recording machine - But, should play active role in evidence collecting process -
Appellate powers to consider additional evidence - S. 391 is in nature of exception to s. 386
- It is open to Appellate Court to call for further evidence before appeal is disposed of -
Object of s. 391 is to sub serve ends of justice and to get at the truth - Star eye-witness who
had not stated truthfully before trial Court - Willing to speak truth before Appellate Court
on basis of affidavit - Power u/s. 391 can be exercised by Appellate Court.
Rejecting application for additional evidence by Appellate Court merely branding witness
as not truthful - Improper - Fact that accused had saved some persons belonging to other
community etc. - Immaterial - Acquittal of accused set aside - Defective investigations,
made ground to acquit accused - Tantamount to playing into hands of Investigating Officer
- Court must resort to s. 311 or s. 391 instead, accept additional evidence of star eye-
witnesses, and get at the truth - Re-trial ordered to be conducted outside State.

38 Arijit Pasayat and Doraiswamy Raju

49
Prayer- Witness Protection and Protection of Justice
One of the appeals is by Zahira who claims to be an eye-witness to macabre killings
allegedly as a result of communal frenzy. She made statements and filed affidavits after
completion of trial and judgment by the trial Court, alleging that during trial she was forced
to depose falsely and turn hostile on account of threats and coercion. That raises an
important issue regarding witness protection besides the quality and credibility of the
evidence before Court. The other rather unusual question interestingly raised by the State
of Gujarat itself relates to improper conduct of trial by the public prosecutor. Last, but not
the least that the role of the investigating agency itself was perfunctory and not impartial.
Though its role is perceived differently by the parties, there is unanimity in their stand that
it was tainted, biased and not fair. While the accused persons accuse it for alleged false
implication, the victims’ relatives like Zahira allege its efforts to be merely to protect the
accused.
A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive
at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the
fact issue and obtain proof of such facts at which the prosecution and the accused have
arrived by their pleadings; the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict the guilty and protect the
innocent, the trial should be a search for the truth and not a bout over technicalities, and
must be conducted under such rules as will protect the innocent, and punish the guilty. The
proof of charge which has to be beyond reasonable doubt must depend upon judicial
evaluation of the totality of the evidence, oral and circumstantial and not by an isolated
scrutiny. (Para 42)
Failure to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of law. It is inherent in the concept of due process of
law, that condemnation should be rendered only after the trial in which the hearing is a real
one, not sham or a mere farce and pretense. Since the fair hearing requires an opportunity
to preserve the process, it may be vitiated and violated by an overhasty stage-managed,
tailored and partisan trial. (Para 43)

50
The fair trial for a criminal offence consists not only in technical observance of the frame
and forms of law, but also in recognition and just application of its principles in substance,
to find out the truth and prevent miscarriage of justice.( Para 44)

‘Witnesses’ as Bentham said: are the eyes and ears of justice.

Hence, the importance and primacy of the quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed,
and it no longer can constitute a fair trial. The incapacitation may be due to several factors
like the witness being not in a position for reasons beyond control to speak the truth in the
Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe
to act on account of numerous experiences faced by Courts on account of frequent turning
of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at
the instance of those in power, their henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth
and realities coming out to surface rendering truth and justice, to become ultimate
casualties. Broader public and societal interests require that the victims of the crime who
are not ordinarily parties to prosecution and the interests of State represented by their
prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably,
which if allowed would undermine and destroy public confidence in the administration of
justice, which may ultimately pave way for anarchy, oppression and injustice resulting in
complete breakdown and collapse of the edifice of rule of law, enshrined and jealously
guarded and protected by the Constitution.
There comes the need for protecting the witness. Time has come when serious and
undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is
presented before the Court and justice triumphs and that the trial is not reduced to mockery.
The State has a definite role to play in protecting the justice.
A plea which was emphasised by Tulsi relates to the desirability of restraint in
publication/exhibition of details relating to sensitive cases, more particularly description of
alleged accused persons in the print/electronic/broadcast medias. According to him, "media
trial" causes indelible prejudice to the accused persons. This is sensitive and complex issue,

51
which we do not think it proper to deal in detail in these appeals. The same may be left
open for an appropriate case where the media is also duly and effectively represented.
This prayer has to be considered in the background and keeping in view the spirit of S. 406
of the Code. It is one of the salutary principles of the administration of justice that justice
should not only be done but it should be seen to be done. However, a mere allegation that
there is apprehension that justice will not be done in a given case or that general allegations
of a surcharged atmosphere against a particular community alone does not suffice. The
Court has to see whether the apprehension is reasonable or not.
Judgment-Appeal allowed. Order for Re trial and Re hearing of Witnesses

52
 Section 4
Presumptions and its interpretations
Sodhi Transport Co. And Anr. Etc. Etc. v State of Uttar Pradesh and Another and
Others
1986 Indlaw SC 136, (1986) 2 SCC 486, AIR 1986 SC 1099
Cases Referred
1. Gursahai Saigal v Commissioner of Income-tax, Punjab [1963] 3 S.C.R. 893 at 900;
1962 Indlaw SC 260.
2. Sardar Baldev Singh v Commissioner of Income Tax, Delhi & Ajmer [1961] 1
S.C.R. 482 at page 493; 1960 Indlaw SC 336
3. Izhar Ahmad khan v Union of India, [1962] Suppl. 3 S.C.R. 235, p. 257; 1962
Indlaw SC 432
Facts of the case
The appellants who claim to be engaged in the business of transport of goods belonging to
others for hire from one place to another and who in the course of their business have to
carry goods from one State to another State along roads lying in the State of Uttar Pradesh
filed the writ petitions out of which these appeals arise feeling aggrieved by the restrictions
imposed on them by section 28-B of the Act and rule 87 of the Rules and the orders of
assessment passed under the Act against them by the Sales Tax authorities of the State of
Uttar Pradesh. The Legislature of a State is entitled to levy tax on sales under Entry 54 of
List II of the Seventh Schedule to the Constitution. The Act, however, came into force prior
to the commencement of the Constitution. When the State of Uttar Pradesh found that there
was large scale evasion of sales tax by persons engaged in trade who were bringing goods
from outside the State of Uttar Pradesh into that State the Legislature enacted certain
measures by way of amendment of the Act to prevent as far as possible such evasion.

53
First, s. 28 of the Act was enacted in 1956 providing for establishment of check-posts and
barriers. It was substituted by an amended s. 28 by U.P. Act 11 of 1972 which inter alia
provided for the establishment of check-posts and barriers at the boundaries of the State
and also for inspection of goods while in transit. Even this provision was found to be
inadequate. Taxation laws usually consist of three parts – charging provisions, machinery
provisions, and provisions providing for recovery of the tax. We may refer here to the
observations of Lord Dunedin in Whitney v. Commissioner of Inland Revenue [1925] 10
T.C. 88 (110). The appellants contend that the words 'it shall be presumed that the goods
carried thereby have been sold within the State' in section 28-B of the Act as meaning that
it shall be conclusively held that the goods carried thereby have been sold within the State
to buttress their argument that a tax is being levied on a transaction which is not a sale at all
under Entry 54 of List II of the Seventh Schedule by introducing a legal fiction. This
argument overlooks the essential difference between the two sets of words set out above.
The meaning of these words would become clear if we read the definitions of the words
'may presume', 'shall presume', and 'conclusive proof' given in s. 4 of the Indian Evidence
Act, 1872, although the said Act is not directly attracted to this case. These words mean as
follows : 'May presume'. Whenever it is provided by this Act that the Court may presume a
fact, it may either regard such fact as proved, unless and until it is disproved; or may call
for proof of it; 'Shall presume'. Whenever it is directed by this Act that Court shall presume
a fact, it shall 952 regard such fact as proved, unless and until it is disproved; 'Conclusive
proof'. When one fact is declared by the Act to be conclusive proof of another, the Court
shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to
be given for the purpose of disproving it." In the Indian Evidence Act, 1872 there are three
cases where conclusive presumption may be drawn. They are sections 41, 112 and s. 113.
These are cases where law regards any amount of other evidence will not alter the
conclusion to be reached when the basic facts are admitted or proved. In Woodroffe &
Amir Ali's Law of Evidence (Vol. I) 14th Edition at page 299 it is stated thus:
“Conclusive presumptions of law are : 'rules determining the quantity of evidence requisite
for the support of any particular averment, which is not permitted to be overcome by any
proof that the fact is otherwise. They consist chiefly of those cases in which the long-
experienced connection just alluded to has been found so general and uniform as to render

54
it expedient for the common good that this connection should be taken to be inseparable
and universal.
They have been adopted by common consent, from motives of public policy, for the sake of
greater certainty, and the promotion of peace and quiet in the community; and therefore, it
is that all corroborating evidence is dispensed with, and all opposing evidence is forbidden
(Taylor, Ev., s.71 : Best, Ev., p. 317, s.304').... Rebuttable presumptions of law are, as well
as the former, 'the result of the general experience of a connection between certain facts or
things, the one being usually found to be the companion or the effect of the other. The
connection, however, in this class is not so intimate or so uniform as to be conclusively
presumed to exist in every case; yet, it is so general that the law itself, without the aid of a
jury, infers the one fact from the proved existence of the other in the absence of all
opposing evidence. In this mode, the law defines the nature and the amount of the evidence
which is sufficient to establish a prima facie case, and to throw the burden of proof upon
the other party; and If no opposing evidence is offered, the jury are bound to find in favour
of the presumption. A contrary verdict might be set aside as being against evidence. The
rules in this class of presumptions as in the former, have been adopted by common consent
from motives of public policy and for the promotion of the general good; yet not as in the
former class forbidding all further evidence, but only dispensing with it till some proof is
given on the other side to rebut the presumption raised”.
Having regard to the definition of the words 'may presume', it is open to a court where they
are used in its discretion either to draw a presumption referred to in a law or may not. The
words ‘shall presume’ require the court to draw a presumption accordingly, unless the fact
is disproved. They contain a rule of rebuttable presumption. These words i.e., 'shall
presume' are being used in Indian judicial lore for over a century to convey that they lay
down a rebuttable presumption in respect of matters with reference to which they are used
and we should expect that the U.P. Legislature also has used them in the same sense in
which Indian courts have understood them over a long period and not as laying down a rule
of conclusive proof. In fact, these presumptions are not peculiar to the Indian Evidence Act.
They are generally used wherever facts are to be ascertained by a judicial process. The
history of the Rules regarding presumptions is succinctly given in W.S. Holdsworth’s ‘A
History of English Law’ (Vol. IX) at page 140 thus:

55
“From time to time the ordinary process of reasoning have suggested various inferences,
which have been treated by the courts in different ways. Sometimes they are treated as
more or less probable inferences of fact; and it is possible, though by no means certain,
that in the remote past most presumptions originated as mere presumptions of fact. Just as
in the case of judicial notice, the courts, as a matter of common sense, assume the
existence of matters of common knowledge without further proof; so, they easily drew an
obvious inference from facts proved or admitted, and thus created a presumption, as
common sense dictated. And just as the truisms which elementary experience teaches came
to be embodied in maxims which illustrate the origins of the doctrine of judicial notice, so
other maxims arose which illustrate the origins, in that same elementary experience, of
some of the commonest of the presumptions known to the law. But it was inevitable that as
the law developed, some of these presumptions should be so frequently drawn that they
took upon themselves the character of rules of laws and we shall see that, owing to the
exigencies of primitive methods of trial, the Legislature and the courts were active in
creating them. Some of them were made or became only prima facie rules - rules, that is,
which were rebuttable by further evidence. Others were made or became irrebuttable, and
therefore, in effect rules of law. Others hovered uncertainly on the border line of rebuttable
and irrebuttable presumptions…”
A presumption is not in itself evidence but only makes a prima facie case for party in
whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the
burden of proof lies. When presumption is conclusive, it obviates the production of any
other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it
is rebuttable it only points out the party on whom lies the duty of going forward with
evidence on the fact presumed, and when that party has produced evidence fairly and
reasonably tending to show that the real fact is not as presumed the purpose of presumption
is over. Then the evidence will determine the true nature of the fact to be established. The
rules of presumption are deduced from enlightened human knowledge and experience and
are drawn from the connection, relation and coincidence of facts, and circumstances. In
Izhar Ahmad khan v. Union of India39, Gajendragadkar, J., (as he then was) explains the
meaning of a rebuttable presumption thus: “It is conceded, and we think, rightly, that a

39 [1962] Suppl.3 S.C.R. 235 @ 257; 1962 Indlaw SC 432

56
rule prescribing a rebuttable presumption is a rule of evidence. It is necessary to analyse
what the rule about the rebuttable presumption really means. A fact A which has relevance
in the proof of fact and inherently has some degree of probative or persuasive value in that
behalf may be weighed by a judicial mind after it is proved and before a conclusion is
reached as to whether fact is proved or not. When the law of evidence makes a rule
providing for a rebuttable presumption that on proof of fact A, fact shall be deemed to be
proved unless the contrary is established, what the rule purports to do is to regulate the
judicial process of appreciating evidence and to provide that the said appreciation will
draw the inference from the proof of fact A that fact has also been proved unless the
contrary is established. In other words, the rule takes away judicial discretion either to
attach the due probative value to fact A or not and requires prima facie the due probative
value to be attached in the matter of the inference as to the existence of fact B, subject of
course, to the said presumption being rebutted by Proof to the contrary...”
In our opinion a statutory provision which creates a rebuttable presumption as regards the
proof of a set of circumstances which would make a transaction liable to tax with the object
of preventing evasion of the tax cannot be considered as conferring on the authority
concerned the power to levy a tax which the Legislature cannot otherwise levy. A
rebuttable presumption which is clearly a rule of evidence has the effect of shifting the
burden of proof and it is hard to see how it is unconstitutional when the person concerned
has the opportunity to displace the presumption by leading evidence. We are of the view
that the words contained in section 28-B of the Act only require the authorities concerned
to raise a rebuttable presumption that the goods must have been sold in the State if the
transit pass is not handed over to the officer at the check-post or the barrier near the place
of exit from the State. The transporter concerned is not shut out from showing by
producing reliable evidence that the goods have not been actually sold inside the State. It is
still open to him to establish that the goods had been disposed of in a different way. He
may establish that the goods have been delivered to some other person under a transaction
which is not a sale, they have been consumed inside the State or have been re-dispatched
outside the State without effecting a sale within the State etc. It is only where the
presumption is not successfully rebutted the authorities concerned are required to rely upon
the rule of presumption in section 28-B of the Act. It is, therefore, not correct to say that a

57
transaction which is proved to be not a sale is being subjected to sales tax. me authority
concerned before levying sales tax arrives at the conclusion by a judicial process that the
goods have been sold inside the State and in doing so relies upon the statutory rule of
presumption contained in section 28-B of the Act which may be rebutted by the person
against whom action is taken under section 28-B of the Act.
Judgment
During the hearing of these appeals, learned counsel for the appellants pointed out that
some difficulties and hardships were being faced by the genuine transporters. Keeping in
view the submissions made by the learned counsel for the appellants, this Court was
pleased to suggest to the counsel appearing for the State to evolve a suitable method to
ensure that the Act and the provisions would not operate unjustly or harshly against bona
fide transporters.
Counsel appearing for the State of U.P. has agreed on behalf of the Respondents to re-
examine all the assessments in respect of the period prior to 1.6.1979 (the date mentioned
by this Court in the interim order). Counsel states that all assessment orders ex parte or
otherwise shall be withdrawn. A fresh notice containing as far as possible relevant
particulars, would be issued to the assessees/appellants/petitioners. The authorities will
finalise the assessment proceedings in accordance with law. The authorities will also bear
in mind that the presumption contained in section 28-B that if the transporter fails to
produce the transit pass at the exit check-post, then it would be presumed that the goods
carried have been sold within the State by the owner or person in charge of the vehicle, is a
rebuttable presumption and it would be open to the transporter, assessee, to displace this
presumption by producing adequate material or evidence.
In respect of the assessments after 1.6.79, the department will withdraw any ex parte orders
of assessment which may have been passed. A fresh notice giving an opportunity shall be
given to the transporter / assessee to present his case. The assessments made after 1.6.79
after affording an opportunity to the transporter / assessee shall not be disturbed except in
accordance with law (i.e.by way of appeal or any other remedy provided under the Act).
The revised assessment proceedings pursuant to this order may be completed within a
period of 5 months from today. The assessing authorities will pass fresh orders of
assessment in accordance with law uninfluenced by the previous orders which may have

58
been made. It may be clarified that Sec. 21 of the U.P. Sales Tax Act will not be a bar to
the instant re- assessments. “On going through the above proposal we feel that it would
meet the ends of justice if the cases of the appellants and petitioners are permitted to be
dealt with accordingly”. We give our approval to the said proposals and make an order
accordingly. Any assessment made pursuant to the above orders shall not be open to
question on the ground that it does not satisfy the period of limitation contained in s. 21 of
the Act. We also make it clear that any person who is aggrieved by the order of assessment
may question it in appeal or revision as provided by the Act on all grounds except on the
ground that it had been passed beyond time. We also direct that if any of the appellants or
petitioners has, depending upon the pendency of these appeals or petitions, not filed any
appeal or revision against any order passed under the Act, such appellant or petitioner may
prefer such appeal or revision as the case may be on or before April 30. 1986 and if any
such appeal or revision is filed it shall be disposed of by the concerned authority without
raising any objection as to the period of limitation. These appeals and writ petitions are
disposed of accordingly. There shall be no order as to costs. Appeals disposed of.
Presumptions
For this, reference needs to be made to s. 114 of the Indian Evidence Act, as also,
Illustrations (g) and (h) thereunder. The same are extracted below: “114. Court may
presume existence of certain facts - The Court may presume the existence of any fact which
it thinks likely to have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the facts of the
particular case. Illustrations
The Court may presume -xxx xxx xxx
(g) That evidence which could be and is not produced would, if produced be unfavorable to
the person who withholds it; (h) That if a man refuses to answer a question which he is not
compelled to answer by law, the answer, if given, would be unfavorable to him;xxx xxx xxx
But the Court shall also have regard to such facts as the following, in considering whether
such maxims do or do not apply to the particular case before it - As to illustration (g) - A
man refuses to produce a document which would bear on a contract of small importance
on which he is sued, but which might also injure the feelings and reputation of his family;
As to illustration (h) - A man refuses to answer a question which he is not compelled by

59
law to answer, but the answer to it might cause loss to him in matters unconnected with the
matter in relation to which it is asked;xxx xxx xxx”
Based on s. 114 of the Indian Evidence Act, and more particularly the illustrations
extracted above, SEBI ought to have drawn the obvious presumption against the appellant-
companies. The material sought by the SEBI from the appellant-companies, thought
available with them, must be deemed to have been consciously withheld, as the same if
disclosed, would have been unfavourable to the appellant-companies40.
Presumptions and its application
Kumar Exports v Sharma Carpets41
Citation: 2008 Indlaw SC 1968, AIR 2009 SC 1518
Principles and Law established
NI Act, 1881- Ss 118,138, 139 Presumptions, Ss 3, 4 , 114 of IEA
Special Leave granted.
The instant appeal is directed against judgment dated November 23, 2006, rendered by
the learned Single Judge of Punjab and Haryana High Court, in Criminal Appeal No.
946 SBA of 2004, by which the judgment dated December 6, 2003, passed by the
learned Judicial Magistrate I Class, Karnal, in Criminal Complaint No. 178 of 2001,
acquitting the appellant under Section 138 of the NI Act, is set aside and after convicting
the appellant under Section 138 of the Act the matter is remitted to the learned
Magistrate to pass appropriate order of sentence.
Facts of the Case
Jai Bhagwan Sharma, proprietor of M/s. Sharma Carpets, the respondent herein, deals in
carpets. Rajinder Kumar, proprietor of M/s. Kumar Exports, the appellant herein, is
carrying on business at Panipat. It is the case of the respondent that the appellant
purchased handtufted woolen carpets from him on August 6, 1994, cost of which was
Rs.1,90,348.39. According to the respondent, the appellant issued two cheques, i.e., one
cheque bearing No. 052912 dated August 25, 1994 for a sum of Rs.1,00,000/- and
another cheque bearing No. 052913 dated September 25, 1994 for an amount of
Rs.90,348.39 drawn on Panipat branch of Union Bank of India, for discharge of his
liability. The case of the respondent is that the cheques were deposited in the bank by
him for encashment, but those cheques were received back unpaid with remarks

40 Sahara India Real Estate Corporation Limited & Ors v Securities And Exchange Board Of India & Anr
2012 Indlaw SC 272, (2013) 1 SCC 1
41 Bench : J.M. Panchal, R.V. Raveendran; The Judgment was delivered by : J. M. Panchal, J.

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"insufficient funds". It is the case of the respondent that the fact that the cheques were
dishonoured for insufficient funds was brought to the notice of the appellant and on the
request of the appellant, the cheques were again presented for encashment in the bank on
January 5, 1995, but they were again dishonoured due to lack of funds in the account of
the firm of the appellant. What is claimed by the respondent is that under the
circumstances he had served statutory notice dated January 19, 1995 calling upon the
appellant to make payment of the amount due but neither the appellant had replied the
said notice nor made payment of the amount due.
The respondent, therefore, filed Criminal Complaint No. 178 of 2001 in the court of the
learned Judicial Magistrate 1st Class, Karnal and prayed to convict the appellant under
Section 138 of the Act. On service of summons the appellant appeared before the Court.
His defence was that the bill produced by the respondent indicating sale of woolen
carpets was a fictitious one and that blank cheques with his signatures were taken from
him by the respondent to enable the respondent to purchase the raw material for him.
According to the appellant the cheques were in the form of advance payment for supply
of carpets, but the respondent had failed to deliver the goods to him. The appellant
alleged that the respondent had stopped manufacturing carpets and as the cheques were
not issued in discharge of any liability, he was not liable to be convicted under Section
138 of the Act.
In order to prove his case, the respondent examined himself as CW-3 and produced the
cheques dishonoured at Ex. CW-2/A and CW-2/B, statutory notice at Ex. C-4, carbon
copy of bill at CW-2/C, etc. He examined two witnesses to prove the presentation and
dishonour of the cheques. No other witness was examined by him in support of his case
pleaded in the complaint against the appellant.
The appellant examined himself to substantiate his defence as DW-1. He also examined
one Mr. Om Prakash, serving as a clerk in the Sales Tax Department, as DW-2, who
stated before the Court that the respondent's firm had filed sales tax return for the
Assessment Year 1994-95 declaring that no sale or purchase of woolen carpets had
taken place and, therefore, no sales tax was deposited. The said witness also produced an
affidavit filed by the respondent as Ex.D-1 wherein the respondent had stated on oath
that no sale or purchase of woollen carpets had taken place during the Assessment Year
1994-95.
On appreciation of evidence the learned Magistrate held that the execution of the
cheques was admitted by the appellant and that it was proved by the respondent that
those cheques were dishonoured on account of insufficient funds. However, the learned
Magistrate concluded that it was not proved by the respondent that the cheques were
issued by the appellant for discharge of a debt or liability. The learned Magistrate
noticed that the bill produced at Ex. CW-2/C did not bear the signature of the appellant

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as buyer to acknowledge its acceptance or correctness. The learned Magistrate also
noted that no corroborative evidence in the form of account books was produced by the
respondent and it was, therefore, doubtful whether in fact the respondent had delivered
any goods to the appellant.
The learned Magistrate referred to the testimony of witness from the Sales Tax
Department and concluded that as no transaction of sale of woolen carpets was effected
by the respondent during the Assessment Year 1994-95, the defence pleaded by the
appellant was probablised. In view of abovementioned conclusions, the learned
Magistrate acquitted the appellant by judgment dated December 6, 2003.
Feeling aggrieved, the respondent preferred Criminal Appeal No. 946 SBA of 2004 in
the High Court of Punjab and Haryana at Chandigarh. The learned Single Judge, who
heard the appeal, was of the opinion that in terms of Section 139 of the Act there was a
presumption that the cheques received by the respondent were for the discharge of a
debt or liability incurred by the appellant that execution of cheques was admitted by the
appellant and that the appellant did not place material to rebut such presumption as a
result of which, he was liable to be convicted under Section 138 of the Act.
The learned single Judge concluded that if the defence put forth by the appellant was
true, he would have issued instructions to 'stop payment of the cheques' instead of
allowing the cheques to be presented and dishonoured. He was also of the view that the
affidavit of complainant (appellant herein) that there was no transaction during 1994-95,
was not a relevant circumstance.
Accordingly, the learned Single Judge convicted the appellant under Section 138 of the
Act and remitted the matter to the trial court for passing appropriate order of sentence,
after hearing the appellant and the respondent. Feeling aggrieved, the appellant has
approached this Court by way of filing the instant appeal.
Opinion and Observation of the Court
We heard the learned counsel for the parties at length and considered the record of the
case.
In order to determine the question whether offence punishable under Section 138 of the
Act is made out against the appellant, it will be necessary to examine the scope and
ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and
139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his
pleading that it was made for good consideration and must substantiate it by evidence.
But to this rule, the negotiable instruments are an exception. In a significant departure
from the general rule applicable to contracts, Section 118 of the Act provides certain
presumptions to be raised.
This Section lays down some special rules of evidence relating to presumptions. The

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reason for these presumptions is that, negotiable instrument passes from hand to hand on
endorsement and it would make trading very difficult and negotiability of the instrument
impossible, unless certain presumptions are made. The presumption, therefore, is a
matter of principle to facilitate negotiability as well as trade. Section 118 of the Act
provides presumptions to be raised until the contrary is proved (i) as to consideration,
(ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v)
as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a
holder in due course.
Section 139 of the Act provides that it shall be presumed, unless the contrary is proved,
that the holder of a cheque received the cheque of the nature referred to in Section 138
for the discharge, in whole or in part, of any debt or other liability. Presumptions are
devices by use of which the courts are enabled and entitled to pronounce on an issue
notwithstanding that there is no evidence or insufficient evidence. Under the Indian
Evidence Act all presumptions must come under one or the other class of the three
classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall
presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable).
The term 'presumption' is used to designate an inference, affirmative or disaffirmative of
the existence a fact, conveniently called the "presumed fact" drawn by a judicial
tribunal, by a process of probable reasoning from some matter of fact, either judicially
noticed or admitted or established by legal evidence to the satisfaction of the tribunal.
Presumption literally means "taking as true without examination or proof". Section 4 of
the Evidence Act inter-alia defines the words 'may presume' and 'shall presume as
follows: -
"(a) 'may presume' - Whenever it is provided by this Act that the Court may presume a
fact, it may either regard such fact as proved, unless and until it is disproved or may call
for proof of it.
(b) 'shall presume' - Whenever it is directed by this Act that the Court shall presume a
fact, it shall regard such fact as proved, unless and until it is disproved."
In the former case the Court has an option to raise the presumption or not, but in the
latter case, the Court must necessarily raise the presumption. If in a case the Court has
an option to raise the presumption and raises the presumption, the distinction between
the two categories of presumptions ceases and the fact is presumed, unless and until it is
disproved.
Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is
proved, that every negotiable instrument was made or drawn for consideration. Section
139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the
holder of the cheque received the cheque, for the discharge of, whole or part of any debt

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or liability.
Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the
provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under
Section 138 of the Act a presumption will have to be made that every negotiable
instrument was made or drawn for consideration and that it was executed for discharge
of debt or liability once the execution of negotiable instrument is either proved or
admitted. As soon as the complainant discharges the burden to prove that the instrument,
say a note, was executed by the accused, the rules of presumptions under Sections 118
and 139 of the Act help him shift the burden on the accused.
The presumptions will live, exist and survive and shall end only when the contrary is
proved by the accused, that is, the cheque was not issued for consideration and in
discharge of any debt or liability. A presumption is not in itself evidence, but only
makes a prima facie case for a party for whose benefit it exists.
The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of
the words "unless the contrary is proved" in Section 139 of the Act read with definitions
of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes
it at once clear that presumptions to be raised under both the provisions are rebuttable.
When a presumption is rebuttable, it only points out that the party on whom lies the duty
of going forward with evidence, on the fact presumed and when that party has produced
evidence fairly and reasonably tending to show that the real fact is not as presumed, the
purpose of the presumption is over. The accused in a trial under Section 138 of the Act
has two options. He can either show that consideration and debt did not exist or that
under the particular circumstances of the case the non-existence of consideration and
debt is so probable that a prudent man ought to suppose that no consideration and debt
existed.
To rebut the statutory presumptions an accused is not expected to prove his defence
beyond reasonable doubt as is expected of the complainant in a criminal trial. The
accused may adduce direct evidence to prove that the note in question was not supported
by consideration and that there was no debt or liability to be discharged by him.
However, the court need not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct evidence because the existence
of negative evidence is neither possible nor contemplated. At the same time, it is clear
that bare denial of the passing of the consideration and existence of debt, apparently
would not serve the purpose of the accused. Something which is probable has to be
brought on record for getting the burden of proof shifted to the complainant.
To disprove the presumptions, the accused should bring on record such facts and
circumstances, upon consideration of which, the court may either believe that the

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consideration and debt did not exist or their non-existence was so probable that a
prudent man would under the circumstances of the case, act upon the plea that they did
not exist. Apart from adducing direct evidence to prove that the note in question was not
supported by consideration or that he had not incurred any debt or liability, the accused
may also rely upon circumstantial evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on to the complainant. The accused
may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of
the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the
Act.
The accused has also an option to prove the non-existence of consideration and debt or
liability either by letting in evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in the complaint, the case set out
in the statutory notice and evidence adduced by the complainant during the trial. Once
such rebuttal evidence is adduced and accepted by the court, having regard to all the
circumstances of the case and the preponderance of probabilities, the evidential burden
shifts back to the complainant and, thereafter, the presumptions under Sections 118 and
139 of the Act will not again come to the complainant's rescue. The defence of the
appellant was that he had agreed to purchase woolen carpets from the respondent and
had issued the cheques by way of advance and that the respondent did not supply the
carpets. It is the specific case of the respondent that he had sold woolen carpets to the
appellant on 6.8.1994 and in discharge of the said liability the appellant had issued two
cheques, which were ultimately dishonoured. In support of his case the respondent
produced the carbon copy of the bill.
A perusal of the bill makes it evident that there is no endorsement made by the
respondent accepting the correctness of the contents of the bill. The bill is neither signed
by the appellant. On the contrary, the appellant examined one official from the Sales
Tax Department, who positively asserted before the Court that the respondent had filed
sales tax return for the Assessment Year 1994-95 indicating that no sale of woolen
carpets had taken place during the said Assessment Year and, therefore, sales tax was
not paid.
The said witness also produced the affidavit sworn by the respondent indicating that
during the year 1994-95 there was no sale of woolen carpets by the respondent. Though
the complainant was given sufficient opportunity to cross-examine the said witness,
nothing could be elicited during his cross-examination so as to create doubt about his
assertion that no transaction of sale of woolen carpets was effected by the respondent
during the year 1994-95. Once the testimony of the official of the Sales Tax Department
is accepted, it becomes evident that no transaction of sale of woolen carpets had taken
place between the respondent and the appellant, as alleged by the respondent.

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When sale of woolen carpets had not taken place, there was no existing debt in
discharge of which, the appellant was expected to issue cheques to the respondent. Thus
the accused has discharged the onus of proving that the cheques were not received by
the holder for discharge of a debt or liability. Under the circumstances the defence of the
appellant that blank cheques were obtained by the respondent as advance payment also
becomes probable and the onus of burden would shift on the complainant.
The complainant did not produce any books of account or stock register maintained by
him in the course of his regular business or any acknowledgement for delivery of goods,
to establish that as a matter of fact woolen carpets were sold by him to the appellant on
August 6, 1994 for a sum of Rs.1,90,348.39. Having regard to the materials on record,
this Court is of the opinion that the respondent failed to establish his case under Section
138 of the Act as required by law and, therefore, the impugned judgment of the High
Court is liable to be set aside.
This Court has also noticed a strange and very disturbing feature of the case. The High
Court, after convicting the appellant under Section 138 of the Act, remitted the matter to
the learned Magistrate for passing appropriate order of sentence. This course, adopted
by the learned Single Judge, is unknown to law. The learned Single Judge was hearing
an appeal from an order of acquittal.
The powers of the Appellate Court, in an appeal from an order of acquittal, are
enumerated in Section 386(a) of the Code of Criminal Procedure, 1973. Those powers
do not contemplate that an Appellate Court, after recording conviction, can remit the
matter to the trial court for passing appropriate order of sentence.
The judicial function of imposing appropriate sentence can be performed only by the
Appellate Court when it reverses the order of acquittal and not by any other court.
Having regard to the scheme of the Code of Criminal Procedure, 1973 this Court is of
the view that after finding the appellant guilty under Section 138 of the Act, the judicial
discretion of imposing appropriate sentence could not have been abdicated by the
learned Single Judge in favour of the learned Magistrate. Having found the appellant
guilty under Section 138 of the Act it was the bounden duty of the High Court to impose
appropriate sentence commensurate with the facts of the case.
Therefore, we do not approve or accept the procedure adopted by the High Court. Be
that as it may, in this case, we have found that reversal of acquittal itself was not
justified.
For the foregoing reasons the appeal is allowed. The judgment and order dated
November 23, 2006, rendered by the learned Single Judge of Punjab and Haryana High
Court at Chandigarh in Criminal Appeal No. 946 SBA of 2004 convicting the appellant
under Section 138 of the Act, is set aside and judgment dated December 6, 2003,

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rendered by the learned Judicial Magistrate I Class, Karnal in Criminal Complaint No.
178 of 2001 acquitting the appellant, is restored.
Appeal allowed

Motive and Conduct of the Witnesses

Toran Singh v State of Madhya Pradesh
2002 Indlaw SC 1913; (2002) 6 SCC 49442
Facts of the Case
The prosecution case as unfolded during trial is that the appellant had called deceased
Hardas and his son Puran Singh to his village Haider for properly setting roof tiles. Hardas
stayed in the house of the appellant. His son Puran Singh, PW-1, had gone to the house of
Gyarasa, barber (PW-3) of village Haider. At about 11 o’clock on 24.6.1992 in the night,
PW-1 came to the house of the appellant to sleep. He saw that the appellant was assaulting
the deceased Hardas by axe. When asked as to why he was cutting his father, the appellant
told him that the deceased Hardas had eloped with his wife and he was annoyed for the
same. When PW-1 tried to save Hardas, the appellant rushed towards him; so, he ran away
to his village Miyan Khedi to save himself. He awakened his brothers Bhagwat and Seeta
Ram and informed about the occurrence. PW-1 and his brothers went towards village
Haider. On the way, PW-2 Kamla, Chowkidar of the said village met and told them that

42 Shivaraj V. Patil and Doraiswamy Raju

67
the appellant had murdered Hardasand asked them to go back and lodge report in the police
station. Thereafter, PW-1 went to the house of Sarpanch of his village Miyan Khedi and
lodged F.I.R. in the police station. After investigation, the police filed challan for the
offence under Section 302 IPC against the appellant. After trial, the learned Sessions Judge,
finding the appellant guilty for the offence under Section 302, convicted and sentenced him
for imprisonment for life. As already noticed above, the appellant unsuccessfully
challenged the said order of the learned Sessions Judge before the High Court.
Contention of the Parties
The learned counsel for the appellant contended that the High Court failed in its duty and
committed manifest error in not appraising and re-appreciating the evidence as it ought to
be as the first court of appeal; as is evident from the impugned judgment, there is narration
of prosecution case and reference to the evidence of few prosecution witnesses without
there being any consideration and appreciation of evidence; the High Court wrongly
placing the burden on the defence and accepted the deposition of PW-1 Puran Singh as
inspiring confidence. The learned counsel added that the appellant had only one hand as the
other hand had been mutilated and it was not possible to assault the deceased that too in the
presence of his son in the manner described.
Contention of the respondent
The learned counsel for the respondent argued supporting the impugned judgment and was
not in a position to give satisfactory explanation to the infirmities and defects pointed out in
the prosecution case.
Observations and reasons by the Court
We have carefully considered the submissions made by the learned counsel for the parties.
Ordinarily this Court does not disturb or upset the concurrent findings recorded by the trial
court as affirmed by the High Court, entering into the domain of appreciation of evidence.
But in a case like this where there was no proper and objective appreciation of evidence by
the trial court and the High Court, as a first court of appeal, fails in its duty of re-
appreciating the evidence and reviewing the evidence objectively and simply endorses the
conclusion arrived at by the trial court resulting in patent miscarriage of justice, not only
this Court interferes but it becomes the duty of this Court to do so to prevent miscarriage of

68
justice. In this case we have no hesitation to upset the order of conviction and sentence
passed against the appellant for the reasons more than one given here in below.
i. The motive for the alleged offence is that the deceased had eloped with the wife of
the appellant. If that be so, it was improbable that the appellant would have gone
from his village Haider to other village Miyan Khedi of the deceased and PW-1 to
call them for properly setting the roof of his house as if no one else could do the job
in his village itself. In the background of ill-will and enmity, he could not have
chosen to call the deceased and his son to his house and the deceased and his son
could not have gone to the house of the appellant and that too to stay there
overnight. There is no evidence on record to speak about the deceased and his son
reaching the house of the appellant or their stay in that house.
ii. PW-1 was the only eye-witness according to the prosecution. He being the son of
the deceased is obviously an interested witness. His evidence ought to have been
scrutinized with greater care and caution. Even otherwise, his evidence is not
corroborated on material aspects by the evidence of other witnesses. According to
the prosecution, PW-1 had gone to the house of Gyarasa (PW-3) on the date of
incident and returned to the house of the appellant at 11.00 p.m. but PW-3 in his
evidence has stated that PW-1 left his house at the time of sunset in the evening. It
may also be noted here that PW-3 did not support the prosecution case and he was
treated hostile.
iii. PW-2, Kamla, Chowkidar of the village, stated that when PW-1 and his brothers
were coming to village Haider, he met them on the way and told them that the
appellant had killed the deceased and they need not go further and should return and
go to police station to lodge the complaint.PW-2 has stated that he was told by PW-
9 Ghuman Singh about the appellant killing the deceased but PW-9 Ghuman Singh
does not support the case of the prosecution and the statement of PW-2. He too was
treated as hostile.
iv. The axe alleged to have been used in the commission of offence, said to have been
recovered at the instance of the appellant, was not produced before the Court and
there was no occasion for the doctor to confirm whether injuries of the nature found
on the deceased could be caused by such an axe.

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 v. The conduct of PW-1, the only eye-witness, that too to the part of the incident is
highly unnatural and improbable. When his father was being assaulted with axe on
the neck and other parts of the body, he does not make hue and cry; he does not try
to rescue; the appellant has only one hand; the PW-1 and his father in the ordinary
course would have over-powered him and it appears doubtful whether the appellant
could assault with his one hand causing so many injuries on the body of the
deceased in the manner stated; PW-1 does not try to take the help of the people in
village Haider around the house of appellant; he ran to his village Miyan Khedi and
thereafter goes back with his brothers to Haider and returns to his village again after
PW-2, Kamla, told them about the murder of their father. There was delay in
lodging the complaint also. These factors would render the very presence claimed
of PW-1 at the place and time of occurrence itself doubtful and incredible.
Apart from material contradictions and omissions in the statements of witnesses, these
factors clearly indicate the serious infirmities and improbabilities of the prosecution case
giving rise to grave doubts as to the involvement of the appellant in the commission of the
offence.
The substantial portion of the judgment of the trial court is contained in the narration of
prosecution story and referring to the prosecution witnesses. We hardly find evaluation,
analysis or scrutiny of evidence in a proper perspective objectively. With regard to serious
infirmities pointed out by the defence raising doubt of the prosecution case, the learned
Sessions Judge has simply stated that he did not agree with such contentions. The trial
court, in our view, was not right and justified in lightly brushing aside the infirmities and
improbabilities brought out from the prosecution case, that too when the entire prosecution
case rested on sole eye-witness, who was interested being the son of the deceased; more so
in the absence of any corroboration of his evidence by other independent evidence on
material aspects of the prosecution case.
It is unfortunate that the High Court has simply endorsed the conviction and sentence
passed by the trial court without objectively and satisfactorily scrutinizing and examining
the evidence as a first court of appeal except narrating the prosecution case and referring
briefly to the evidence of few prosecution witnesses.
The reason recorded by the High Court is to be seen in the judgment which reads:-

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 “Thus, in the absence of plausible defence by the appellant and the fact that the
deceased had stayed in the house of appellant and in the absence of the explanation
as to the cause of death, the appellant is liable to be convicted. Deposition of PW-1
Puran inspires confidence and finds support from the medical evidence”.
Judgment
In the light of what we have stated above, we find it difficult to agree with the High Court
as to how deposition of PW-1 Puran Singh inspires confidence. As is evident from the
above para, the High Court instead of giving benefit of doubt to the appellant placed the
burden on the defence and found that there was absence of plausible defence and
explanation by the appellant. The case of the prosecution should rest on its strength not on
the absence of explanation or plausible defence by the accused.
Thus, we find it difficult to sustain the impugned judgment. In the result, the impugned
judgment affirming the judgment of the trial court is set aside. The appellant is acquitted
giving benefit of doubt. He be set at liberty forthwith if he is not required in any other case.
Appeal allowed.

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 Motive
Varun Chaudhary v State of Rajasthan
2010 Indlaw SC 938, AIR 2011 SC 7243
Case Referred –
1. Mohd. Abdul Hafeez v State of Andhra Pradesh, AIR 1983 SC 367
2. Surinder Pal Jain v Delhi Administration 1993 SCC (Crl.) 1096
3. Tarseem Kumar v Delhi Administration 1994 Sup.(3) SCC 367
4. C. Chenga Reddy v State of A.P.(1996) 10 SCC 193
5. G.Parashwanath v State of Karnataka, (2010)8 SCC 593
Facts of the case
(a) Bhawani Singh (deceased) was an Income Tax Officer who was posted at Ajmer and
was a member of a search party, function of which was to conduct raids on certain persons’
premises to find out whether the concerned persons had evaded payment of income-tax.
(b) In the evening of 22nd August, 2000, the deceased had left his residence for going to
Ajmer Club with an intimation to his son Ajit Singh (P.W.11), that he would return by 10
p.m. As Bhawani Singh did not return till midnight, Ajit Singh (PW-11) had enquired from
Vasudev (P.W.5), as to why the deceased had not returned. Vasudev (P.W.5), had
thereupon informed Ajit Singh (P.W.11), that he had given lift to the deceased from Ajmer
Club and had dropped him near Ricoh circle, which was near his residence. In the
circumstances, Ajit Singh (P.W.11) had gone to make inquiry near the residence of
Vasudev (P.W. 5), but in the meantime it was informed that body of the deceased was lying
near Ricoh circle which was not quite far from the residence of the deceased. Incised
wound on left side of chin and stab wounds were found on his body and it was found that
the deceased died as somebody had attacked him. In the circumstances, First Information
Report (Ext.P.15) was lodged around 2 a.m. and thereafter necessary investigation was
made by the Investigation Officer (P.W. 26). In the course of investigation, Varun
Chaudhary - Accused No.1, Sudhir @ Bunty - Accused no.2 and Himmat Singh @ Bobby
-accused no.3 were arrested.

43 A.R. Dave and Mukundakam Sharma

72
Contention of the parties
It was the case of the prosecution that the afore- stated accused had committed the offence
of murder by inflicting serious injuries upon the deceased. It was a case of circumstantial
evidence as nobody had seen the commission of the offence. It was, however, recorded in
the evidence that immediately after arrest of accused no.1 on 1st September, 2000, and
arrest of accused no.2, a knife had been recovered from accused no.1 whereas blood-
stained clothes of Himmat Singh, accused no.3 had been recovered.
The trial court had considered the facts and on the basis of evidence recorded, accused no.1
was found to be guilty of having committed an offence under Section 302 of the IPC and
was sentenced to undergo life imprisonment and pay a fine of Rs. 1,000/-, in default three
months simple imprisonment whereas accused Nos. 2 and 3 were acquitted. So far as the
evidence, which pertains to the tyre marks of the motor cycle, which was alleged to have
been used in the offence is concerned, they submitted that there was no evidence that the
marks of the tyre had been compared with the marks which were found at the place of the
offence. In fact, there was nothing to show that tyre marks at the place of the offence and
tyre marks found by FSL Report were same. They further submitted that even at the time
when the accused were questioned by the court under the provisions of Section 313 of the
Code of Criminal Procedure, the weapon and the blood-stained clothes had not been shown
to the accused. They relied upon the judgment delivered by this Court in, to substantiate
their case that the articles recovered must be shown to the accused during the trial or at the
time when his statement under Section 313 of Cr.P.C. is recorded. They further submitted
that no motive was attributed against the accused. They fairly admitted that though motive
is not important in each and every case, according to the learned counsel, even if one relies
upon the statement made by the son of the deceased, the deceased might have some enmity
with persons dealing in scrap as the deceased had raided premises of some scrap dealers
and due to the said fact, some threats had also been received by the deceased from persons
dealing in scrap. For the aforestated reasons, they submitted that the order convicting the
accused could not have been passed and, therefore, the appeals should be allowed and the
accused should be acquitted.
Contention of the PP

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On the other hand, the learned public prosecutor made an effort to support the judgments
delivered by the High Court whereby the accused have been convicted. He submitted that
the evidence recorded by the trial court was properly appreciated by the High Court and
looking to the reasons given by the High Court, interference with the Order of the High
Court was not called for.
Judgment
However, in the instant case, where there is no eye witness or where there is no scientific
evidence to connect the accused with the offence, in our opinion, the prosecution ought to
have established that there was some motive behind commission of the offence of murder
of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer
had raided the premises belonging to some scrap dealers and, therefore, he had received
some threats from such scrap dealers. It is an admitted fact that the accused are not scrap
dealers or there is nothing to show that the accused had been engaged by scrap dealers to
commit the offence. Thus, there was no motive behind the commission of the offence so far
as the accused are concerned. in our opinion, the conclusion reached by the courts below is
not correct. On the basis of such scanty evidence, which is practically no evidence at all in
the eyes of law, the courts below could not have passed the order of conviction.

For the reasons stated hereinabove, we are of the view that the orders convicting the
accused-appellants in both the appeals are not justified and, therefore, the appeals are
allowed. The impugned orders are quashed and set aside. The accused-appellants shall be
released immediately, if not required in any other offence.

74
 Conspiracy and Confession Section 10 and 24-31

Jayendra Saraswathi Swamigal v State of Tamil Nadu

2005 Indlaw SC 11; (2005) 2 SCC 1344
Principle- There should first be a prima facie evidence that the person was a party to
conspiracy before his acts or statements can be used against his co-conspirators - No prima
facie evidence apart from alleged confessions have been brought to show that petitioner
along with A-2 and A-4 was party to a conspiracy - Prima facie a strong case has been
made out for grant of bail to petitioner.
Cases Referred
1. Bhuboni Sahu v The King AIR, 1949 PC 257 1949
2. Kashmira Singh v State of M.P., AIR 1952 SC 159
3. State of U.P. v Buta Singh, 1979 (1) SCC 31
4. State of Maharashtra v Damu, 2000 (6) SCC 269
5. Firozuddin Basheeruddin & Ors.v State of Kerala, 2001 (7) SCC 596
6. Prakash Dhawal Khairnar v State of Maharashtra, 2002 (2) SCC 35
7. State of H.P. v Satya Dev Sharma & Ors., 2002 (10) SCC 601
Facts of the Case
As per the prosecution, the petitioner had entered into a conspiracy with some other co-
accused for getting Sankararaman murdered. The motive for the commission of the crime is
said to be various complaints alleged to have been made by the deceased levelling serious
allegations, both against the personal character of the petitioner and also his style of
functioning as Shankaracharya of the Mutt. In the reply statement filed on behalf of State
of Tamil Nadu, it is averred that the deceased had filed a complaint before the
Commissioner HR & CE not to allow the petitioner to visit China. He filed a writ petition
in the Madras High Court claiming the same relief which was later on dismissed as a
statement was made by the petitioner that he had no intention of going to the said country.
The deceased sent several letters alleging that the petitioner was selling properties of the
Mutt; was indulging in corruption and misappropriation of funds. He also made complaint
before Special Commissioner, HR & CE that the petitioner was not observing the rules of
Sanyasa Asrama Dharma; was leading a luxurious life enjoying mundane comforts; not

44 G.P. Mathur, R.C. Lahoti and P.P. Naolekar

75
performing the Pooja and promoting commercial ventures. It is also the case of the
prosecution that the deceased sent a letter under the name of Somasekara Ganapadigal
alleging that the petitioner was indulging in immoral activities and was having relationship
with women and finally a letter was sent by him on 30.8.2004 to the petitioner as "last
warning" wherein it was said that when the petitioner went to Thalakeverj, Kaveri river
dried; when he went to the only Hindu Kingdom of Nepal, the entire royal family was
wiped out; and when he went to Kumbakonam, there was a fire tragedy and many innocent
lives were lost. Shri K.T.S. Tulsi, learned senior counsel for the State, has submitted that
after receipt of this letter dated 30.8.2004 described as “last warning”, the petitioner called
accused A-2, A-3 and A-4 and a conspiracy was hatched for eliminating the deceased. In
order to establish the aforesaid motive for commission of crime, the prosecution relies upon
copies of 39 letters which were allegedly recovered from the house of the deceased himself.
What the prosecution claims is that the deceased used to keep copies of all the letters and
complaints which he made against the petitioner and it is these copies which have been
recovered from the house of the deceased. The prosecution claims that of these 39 letters or
complaints 5 complaints were found in the office of HR & CE, Chennai which relate to the
period 14.8.2001 to 23.1.2002, one in the residence of A-4 and 2 in the residence of the
petitioner. In our opinion, the recovery of these letters from the house of the deceased
himself is not a proof of the fact that they were actually received by the petitioner or were
brought to his notice. The deceased was not an employee of the Mutt but was working as
In-charge Administrative Manager of another Dharamsthanam which has nothing to do
with Kanchi Mutt and at least since 1998 he had no connection with the said Mutt. Though
according to the case of the prosecution, the deceased had started making complaints
against the petitioner since August 2001, there is absolutely no evidence collected in
investigation that the petitioner made any kind of protest or took any kind of action against
the deceased. Even otherwise, many letters or complaints etc. are addressed to people
holding high office or position and it is not necessary that they read every such letter or
complaint or take them seriously. There is absolutely no evidence or material collected so
far in investigation which may indicate that the petitioner had ever shown any resentment
against the deceased for having made allegations against either his personal character or the
discharge of his duties as Shankaracharya of the Mutt. The petitioner having kept

76
absolutely quiet for over three years, it does not appeal to reason that he suddenly decided
to have Sankararaman murdered and entered into a conspiracy for the said purpose
Contention of the Counsel
Shri F.S. Nariman, learned senior counsel for the petitioner, has submitted that the specific
case of the prosecution at the time of the hearing of the first bail application before the
High Court was that a huge sum of money amounting to Rs.50 lakhs was withdrawn from
an account of the Mutt maintained in ICICI Bank, Kanchipuram for being paid to the
hirelings. The same stand was taken by the prosecution when the second bail application
was heard by the High Court. In the two orders passed by the High Court by which the bail
petitions were rejected, the plea of the State that the money was withdrawn from the
account of the Mutt in ICICI Bank, Kanchipuram for payment to the hirelings is clearly
mentioned. When the special leave petition was heard for admission on 17.12.2004, a
detailed order was passed by this Court, wherein the State was directed to give particulars
of the bank account wherefrom money is alleged to have been withdrawn by the petitioner
for payment to the assailants and also to produce the copy of the account and the passbook,
if any, seized by the investigating agency. However, in the statement in reply which has
been filed in this Court by the State on 6.1.2005, a different stand is taken that an
agreement had been entered into for sale of 50 acres of land belonging to Kanchi
Janakalyan Trust to Bhargava Federation Pvt. Ltd. for Rs.5 crores, wherein an advance of
Rs.50 lakhs in cash was received on 30.4.2004 and an endorsement regarding receipt of the
said amount was made on the reverse side of the first page of the agreement. It was this
money which was retained in cash by the petitioner all along from which payment was
made to the hirelings after the conspiracy was hatched soon after the receipt of the alleged
letter dated 30.8.2004 sent by the deceased which was described as “last warning”. No
documents of the account in ICICI bank have been produced in support of the plea which
was twice taken by the prosecution before the High Court while opposing the prayer for
bail made by the petitioner. Learned counsel has explained that in addition to Rs.50 lakhs
which received in cash an extra amount of Rs.9,703/ was deposited in order to liquidate the
overdraft over which penal interest was being charged by the bank. The statement of
account clearly shows that after deposit of the aforesaid amount the entire overdraft was
cleared. This clearly shows that the entire amount of Rs.50 lakhs which was received in

77
cash on 30.4.2004 was deposited in Bank on 7.5.2004. This belies the prosecution case,
which was developed subsequently after the order had been passed by this Court on
17.12.2004 directing the State to produce copy of the ICICI Bank account, that the cash
money was retained by the Petitioner from which substantial amount was paid to the
hirelings. Shri Nariman has submitted that in view of S. 30 of the Evidence Act confession
of a co-accused is a very weak type of evidence which can at best be taken into
consideration to lend assurance to the prosecution case. wherein it was observed that
confession of a co accused is obviously evidence of a very weak type and it does not come
within the definition of evidence contained in S. 3 as it is not required to be given on oath,
nor in the presence of the accused and it cannot be tested by cross-examination. It was
further observed that the proper way is, first to Marshall the evidence against the accused
excluding the confession altogether from consideration and see whether, if it is believed a
conviction could safely be based on it. If it is capable of belief independently of the
confession, then of course it is not necessary to call the confession in aid. But cases may
arise where the Judge is not prepared to act on the other evidence as it stands even though,
if believed, it would be sufficient to sustain a conviction.
Contention of the Prosecution
The prosecution also relies upon confessional statement of Kathiravan (A-4) recorded u/s.
164 Cr.P.C. on 19.11.2004, wherein he stated that he went to the Kanchi Mutt on 1.9.2004
and in the presence of Ravi Subramaniam and Sundaresan, the petitioner said that
Sankararaman had written letters and had filed cases and it was not possible for him to bear
the torture any longer and, therefore, he should be killed on the same day. It is important to
mention here that A-4 retracted his confession on 24.11.2004 when his statement was again
recorded u/s. 164 Cr.P.C. The prosecution also relies upon confession of Ravi
Subramaniam (A-2) which was recorded on 30.12.2004 wherein he made a similar
statement that the petitioner offered him Rs.50 lakhs on 1.9.2004 for getting rid of
Sankararaman. Shri K.T.S. Tulsi, learned senior counsel, has, on the other hand, placed
strong reliance on S. 10 of the Evidence Act and has submitted that this being a specific
provision dealing with a case of conspiracy to commit an offence, the principle laid down
in the authorities cited by Shri Nariman would not apply and anything said, done or written
by any one of the accused is a relevant fact as against each of the person conspiring to

78
commit a crime. Shri Tulsi has also submitted that there is also evidence of dying
declaration in order to fasten the liability upon the petitioner and for this reliance is placed
upon the statement of S. Vaidyanathan, which was recorded u/s. 164 Cr.P.C. on
28.12.2004.
Judgment
Appeal allowed and before parting, we would like to place it on record by way of abundant
caution that whatever has been stated hereinabove in this order has been so said only for
the purpose of disposing of the prayer for bail made by the petitioner. Nothing contained in
this order shall be construed as expression of a final opinion on any of the issues of fact or
law arising for decision in the case which shall naturally have to be done by the trial court
seized of the trial. We have only formed a prima facie opinion and placed the same on
record in fairness to the learned senior counsel for the State who raised those pleas and
vehemently urged the same by citing various provisions of law and the authorities.

79
 Confession and Principles under Special Law
Raja @ Ayyappan v State of Tamil Nadu45
Citation: 2020 Indlaw SC 272
Principles and Law established
TADA Judgment of 2009 challenged regarding Sentence under Section 120B IPC and Ss 3
and 4 of TADA ( Appeal Filed under section 19 of TADA) and Section 5 of Explosive
Substances Act, 1908. Section 25 of the Arms Act ( Sentences to run concurrently)
Cases Referred
 Kartar Singh v. State of Punjab 1994 (3) SCC 569
 Pakala Narayana Swami v. Emperor 1939 PC 47
 State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600
 Jameel Ahmad v. State of Rajasthan (2003) 9 SCC 673
 State v. Nalini and others (1999) 5 SCC 253
Facts of the case
The case of the prosecution in brief is that during June 1988, the absconding accused,
Ilango @ Kumaran @ Ravi @ Santhosh and Suku @ Sukumaran @ Kumar, had formed
an organization at Trichy under the name 'Tamilar Pasarai', with the object of achieving
separate Statehood for Tamil Nadu and to blast Central and State Government buildings
with bombs with a view to overawe the Government established by law. The appellant
herein and 13 other accused have enrolled themselves in the said organization and they
entered into a criminal conspiracy during June 1988 to commit an illegal act and to blast
the State Government building in the Secretariat by name 'Namakkal Kavignar Maligai'
and in furtherance of the said conspiracy, Suku and Shanmuga Sundaram had undergone
a course in electronics at Tamil Nadu Advanced Technical Institute, Trichy, and learnt
the mechanism for devising electronic timer, to be used in the time bombs to be
manufactured by them. The further case of the prosecution is that during September
1990, the above said Suku had brought electronic printed circuit board, integrated circuit
switches, resisters and directed Shanmuga Sundram to device electronic timer device, to
be attached to time bomb. The appellant, along with two other accused, wrote slogans in
the paper (MO-7) hailing 'Tamilar Pasarai' and kept it near the time bomb on
22.09.1990. The bomb was to be blasted by another accused, namely, Sukku, in a
jerrycan (MO-1) containing explosives with timer devices (MO-6), near Namakkal
Kavignar Maligai on 22.09.1990. The bomb was noticed before its explosion at about

45 Bench : S. Abdul Nazeer, Deepak Gupta; The Judgment was delivered by : S. Abdul Nazeer, J.

80
6.45 a.m. by the Head Constable, G.M. Rajendran (PW-1), attached to Armed Reserves,
Madras, and the said bomb was subsequently defused. Thereafter, information was
given by PW-1 to the Assistant Commissioner, in-charge of the Fort Police Station, who
handed over the investigation to Parthasarathy (PW-21), the then D.S.P., who registered
the case initially under Section 4 of the Explosive Substances Act, 1908 and under
Sections 2-F(d)(1) and (2) read with Section 13 of the Unlawful Activities (Prevention)
Act, 1967. Subsequently, during the course of investigation, the charges were altered
against the accused under Section 120-B IPC read with Sections 3(3) and 4(1) of TADA
Act and under Section 5 of the Explosive Substance Act, 1908. On 24.09.1990, the place
of incident was searched by the bomb disposal squad and the seized items were sent for
finger print examination. A request was also made to the Chief Controller of Explosives
for examining the explosive substance. The statements of witnesses were recorded in
respect of the aforesaid offences on the basis of the information received during
investigation. The Inspector of Police C.B.C.I.D., Thanjavore, raided the premises of
one Abdul Kalam and handed over his custody to Inspector Raman of 'Q' Branch. On
10.05.1993, PW-26, the then Superintendent of Police, SBCID, received the case file
pertaining to Cr. No.1 GO/90, Fort Station, Chennai. Thereafter, he sent the requisition
for the extension of remand of the accused Sathish @ Vadivelu and Abdul Kalam, on
04.06.1993 and 14.07.1993 respectively. He gave requisition to the competent authority
for sanction to prosecute Abdul Kalam and Vadivelu and obtained the sanction orders.
On receiving the statement of the accused, Chandran, he obtained sanction for
prosecution of Chandran under the TADA Act on 02.09.1993. After completion of the
investigation, the police on 03.09.1993, filed the charge-sheet against the accused Nos. 1
to 14 and the unknown accused, under Section 120-B read with Section 3(3), (4) (1) of
the TADA Act and Section 5 of the Explosive Substance Act and Section 7 read with
Section 35(1)(A), Section 3 read with Section 25(1)(B) of the Arms Act. Thereafter, the
statements of the witnesses were recorded by the Special Judge in the aforesaid case. It
was the further case of the prosecution that on 24.05.2007, PW-28, Superintendent of
Police, Ashok Kumar, 'Q' Branch, CID Head Quarters, Chennai, came to know about the
arrest of the appellant-accused by the DSP 'Q' Branch Tanjavore, in connection with the
Mannarkudi P.S. Cr. No.954/94 and as the appellant was involved in the subject case,
the investigating officer was informed to take necessary steps for the same. Accordingly,
PW-26 took steps for the police custody of the appellant from 25.07.2007 to 27.07.2007.
During the police custody, the appellant voluntarily wished to give his confessional
statement and as such he was produced before PW-28, Superintendent of Police, on
26.07.2007 with a requisition, Ex. P-55 by PW-27. On 27.07.2007, PW-28 recorded the
confession of the accused, observing the formalities under Section 15 of the TADA Act,
as Ex. P-56 and P-57. PW-28 made an appendix as per the said provision and the
appellant was handed over to the DSP to be produced before the Court. All the

81
proceedings were sent in a sealed cover to the Chief Metropolitan Magistrate through
special messenger on 27.07.2007. Thereafter, the charges were framed against the
appellant, read over and explained to him. However, while questioning, the appellant
denied the charges. The prosecution examined as many as 28 witnesses to prove the case
against the accused. The appellant was examined under Section 313 of the Code of
Criminal Procedure, 1973. The appellant was permitted to be examined as DW-1. He
filed the documents Ex. DW-1 to DW-7. As stated earlier, the Designated Court has
convicted the appellant in the aforesaid terms.
Arguments of the counsel for the Appellant
Shri S. Nagamuthu, learned senior counsel appearing for the appellant, has submitted
that the Designated Court has relied on the confession (Ex. P-57) of the appellant for his
conviction. PW-28 who recorded the alleged confession, had not scrupulously followed
the guidelines laid by this Court in Kartar Singh v. State of Punjab 1994 (3) SCC 569
1994 Indlaw SC 525. The confession had not been recorded in a free atmosphere. The
prescribed procedure under the TADA Act and the rules made thereunder had not been
followed while recording the confession. It was also submitted that the confession was
not admissible in evidence as it was not voluntary. In this connection, he has taken us
through the oral evidence of the parties. It was further submitted that the accused had
retracted the confession subsequently. Therefore, even if the confession is admissible, it
is a weak piece of evidence and the same cannot be the sole evidence for conviction in
the absence of corroboration from independent sources. It was also submitted that the
confession of the co-accused (Ex. P-26 and P-27) are not admissible in evidence because
there was no joint trial of those two accused with the appellant. The confession of the
co-accused is not substantive piece of evidence. The proviso to Section 15(1) of the
TADA Act, introduced by amending the said section in the year 1993 which, in fact,
supplements Section 30 of the Evidence Act, mandates that there should be a joint trial.
Therefore, he submits that the conviction of the appellant by the Designated Court is
unsustainable in law.
Argument of the Counsel for the Respondent
On the other hand, Shri Jayant Muth Raj, learned Additional Advocate General,
appearing for the respondent-State, has supported the impugned judgment of the
Designated Court.
Opinion of the Court
We have carefully considered the submissions of the learned senior counsel made at the
Bar and perused the materials placed on record.
The Designated Court has convicted the appellant based on the confession of the
appellant made on 27.02.2007 (Ex. P-57) and the confession statement of the two other

82
co-accused (Ex. P-26 and P-27).
Therefore, the first question for consideration is whether the appellant has made the
confession (Ex. P-57) voluntarily and truthfully.
The law of confession is embodied in Sections 24 to 30 of the Indian Evidence Act,
1872. The confession is a form of admission consisting of direct acknowledgment of
guilt in a criminal charge. In this connection, it is relevant to notice the observations of
Privy Council in Pakala Narayana Swami v. Emperor 1939 PC 47 which is as under:
".....a confession must either admit in terms of an offence, or at any rate substantially all
the fact which constitute the offence. An admission of a gravely incriminating fact, even
a conclusively incriminating fact is not by itself a confession...."
It is well-settled that a confession which is not free from doubt about its voluntariness, is
not admissible in evidence. A confession caused by inducement, threat or promise
cannot be termed as voluntary confession. Whether a confession is voluntary or not is
essentially a question of fact. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
60046 2005 Indlaw SC 1026
Section 15(1) of the TADA Act is a self-contained scheme for recording the confession
of an accused charged with an offence under the said Act. This provision of law is a
departure from the provisions of Sections 25 to 30 of the Evidence Act. Section 15 of
the TADA Act operates independently of the Evidence Act and the Criminal Procedure
Code. In Kartar Singh (supra) a Constitution Bench of this Court while upholding the
validity of the said provision has issued certain guidelines to be followed while
recording confession. These guidelines have been issued to ensure that the confession
obtained in the pre-indictment interrogation by a police officer not lower in rank than a

46 the Court has elaborately considered this aspect as under:

"29. Confessions are considered highly reliable because no rational person would make admission against
his interest unless prompted by his conscience to tell the truth. "Deliberate and voluntary confessions of
guilt, if clearly proved are among the most effectual proofs in law." (Vide Taylor's Treatise on the Law of
Evidence, Vol. I.) However, before acting upon a confession the court must be satisfied that it was freely
and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or
by fear induced by violence or threats of violence cannot constitute evidence against the maker of the
confession. The confession should have been made with full knowledge of the nature and consequences of
the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied,
the court should eschew the confession from consideration. So also the authority recording the confession,
be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the
issue whether the accused has come forward to make the confession in an atmosphere free from fear,
duress or hope of some advantage or reward induced by the persons in authority. Recognising the stark
reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police
custody, the Evidence Act has excluded the admissibility of a confession made to the police officer."

83
Superintendent of Police is not tainted with any vice but is in strict conformity with the
well-recognised and accepted aesthetic principles and fundamental fairness. These
guidelines are:
"(1) The confession should be recorded in a free atmosphere in the same language in
which the person is examined and as narrated by him;
(2) The person from whom a confession has been recorded under Section 15(1) of the
Act, should be produced before the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate to whom the confession is required to be sent under Rule 15(5)
along with the original statement of confession, written or recorded on mechanical
device without unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should
scrupulously record the statement, if any, made by the accused so produced and get
his signature and in case of any complaint of torture, the person should be directed
to be produced for medical examination before a Medical Officer not lower in rank
than of an Assistant Civil Surgeon;
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no
police officer below the rank of an Assistant Commissioner of Police in the
Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police
officer of equivalent rank, should investigate any offence punishable under this Act of
1987.
This is necessary in view of the drastic provisions of this Act. More so when the
Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic
Prevention Act, 1956 under Section 13, authorise only a police officer of a specified
rank to investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of any person for pre-indictment or
pre-trial interrogation from the judicial custody, must file an affidavit sworn by him
explaining the reason not only for such custody but also for the delay, if any, in
seeking the police custody;
(6) In case, the person, taken for interrogation, on receipt of the statutory warning
that he is not bound to make a confession and that if he does so, the said statement
may be used against him as evidence, asserts his right to silence, the police officer
must respect his right of assertion without making any compulsion to give a
statement of disclosure."
In Jameel Ahmad v. State of Rajasthan (2003) 9 SCC 673 2003 Indlaw SC 416 this
Court has held that when an accused charged with an offence under the provisions of
the TADA Act, is voluntarily willing to make a confessional statement and if such
statement is made and recorded by an officer not below the rank of Superintendent of

84
Police in a manner provided in that section, is admissible in evidence. The findings
recorded in this case are as under:
To sum up our findings in regard to the legal arguments addressed in these appeals,
we find:
(i) If the confessional statement is properly recorded, satisfying the mandatory
provision of Section 15 of the TADA Act and the Rules made thereunder, and if the
same is found by the court as having been made voluntarily and truthfully then the
said confession is sufficient to base a conviction on the maker of the confession.
(ii) Whether such confession requires corroboration or not, is a matter for the court
considering such confession on facts of each case.
(iii) In regard to the use of such confession as against a co-accused, it has to be held
that as a matter of caution, a general corroboration should be sought for but in cases
where the court is satisfied that the probative value of such confession is such that it
does not require corroboration then it may base a conviction on the basis of such
confession of the co-accused without corroboration. But this is an exception to the
general rule of requiring corroboration when such confession is to be used against a
co-accused.
(iv) The nature of corroboration required both in regard to the use of confession
against the maker as also in regard to the use of the same against a co-accused is of
a general nature, unless the court comes to the conclusion that such corroboration
should be on material facts also because of the facts of a particular case. The degree
of corroboration so required is that which is necessary for a prudent man to believe
in the existence of facts mentioned in the confessional statement.
(v) The requirement of sub-rule (5) of Rule 15 of the TADA Rules which contemplates
a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate who, in turn, will have to send the same to the Designated Court
is not mandatory and is only directory. However, the court considering the case of
direct transmission of the confessional statement to the Designated Court should
satisfy itself on facts of each case whether such direct transmission of the
confessional statement in the facts of the case creates any doubt as to the
genuineness of the said confessional statement."
Bearing these principles in mind, let us consider as to whether the confession of the
appellant was voluntary and truthful. The appellant was examined as DW-1. In his
evidence he has stated that he was arrested on 19.05.2007, when he was returning
from Chennai airport. He was detained for two days and was taken to Trichi, "Q"
branch office and was kept there for one day. During this period, he was allegedly
tortured by the police. On 22.05.2007 he was produced before the Judicial

85
Magistrate, Trichi, and was remanded by the court till 25.07.2007. PW-27 made an
application requesting for police custody of the accused for five days and obtained
police custody from 25.07.2007 to 27.07.2007. On 25.07.2007, when the appellant
was sitting in the police vehicle, Mr. Rajendran, 'Q' Branch Inspector, told him that
he should sign certain papers, otherwise he would be killed in police custody. When
he was brought before the Designated Court, on the same day, he informed the same
to the learned Judge and gave a petition (Ex. D-1) stating that he was tortured by the
police and that he had nothing to do with the alleged incident. When he was again
produced before the Designated Court, after recording the confession statement, he
gave a petition (Ex. D-2) stating that he has not made any incriminating statement
before PW-28.
On 26.07.2007, PW-29 produced the appellant before PW-28. PW-28 during his
cross-examination has stated that until the accused was produced on 26.07.2007, the
accused was in police custody. On 26.07.2007, though it has been recorded that a
number of questions were put to the accused and the answers were elicited, there is
no record to show that the appellant-accused was warned as required under Section
15 of the TADA Act and Rule 15(3) of the TADA Rules. During his cross-
examination PW-28 has stated that he gave warning to the accused which was not
supported by any contemporary record, namely, Ex. P-56 dated 26.06.2007. As it is
seen in Ex. P-57, only two questions were asked to the appellant and answers elicited,
which do not reflect any warning as required under the TADA Act and the TADA
Rules. The evidence of PW-28 is that he gave the same warning which he had given
on 26.07.2007. There are no contemporary records to show that the warning was
made on 26.07.2007 or 27.07.2007. The second question asked on 27.07.2007 (per
Ex. P-57) assumes much importance. In this question PW-28 has only explained to
the accused that he had been produced only to record his statement. He did not
explain to the accused that he had been produced to record the confession.
It was contended by the learned Additional Advocate General, appearing for the
respondent, that the footnote appended to Ex. P-56 would satisfy Section 15 of
TADA Act and Rule 15 of TADA Rules. It is necessary to notice here that complying
with these rules is not an empty formality or a mere technicality as these provisions
serve a statutory purpose to ensure a fair trial as guaranteed under Article 21 of the
Constitution of India. The entire proceedings on record should reflect application of
mind into various surrounding circumstances including questions and answers
elicited from the accused. Mere recording in a certificate will only amount to
technical observance of the rule but that will not prove the voluntariness of the
statement. In law, it is not the technical observance of the rules but it is the real
satisfaction about the voluntariness of the confession is sine qua non.

86
It is also necessary to state here that the confession recorded by the police officer is
undoubtedly equated to a confession recorded by a Judicial Magistrate under Section
164 Cr.P.C. Thus, the said confession is a substantive piece of evidence. Therefore,
all the safeguards which are to be followed by a Magistrate should have been
followed by the police officer also. It is well-settled that the satisfaction arrived at by
the Magistrate under Section 164 Cr.P.C. is, if doubtful, then, the entire confession
should be rejected.
In the instant case, it is evident that from out of the questions put by PW-28 and the
answers elicited and the manner in which the accused has made the statement are all
the foundations upon which it is to be found out as to whether the statement was
made voluntarily or not. If the certificate is not supported by any of the above inputs,
then the certificate needs to be rejected. The police officer cannot record such a
certificate out of his own imagination and the entire proceedings should reflect that
the certificate was rightly given based on the materials. In the present case, there is
nothing on record to prove the voluntariness of the statement. Ex. D-1 and D-2 and
other circumstances would go to show that the appellant could not have made the
statement voluntarily. Therefore, the confession statement of the appellant requires to
be rejected.
The second question for consideration is whether the statement of two other co-
accused (Ex. P-26 and P-27) is admissible in evidence.
The confession statement of the co-accused was recorded by the Superintendent of
Police (PW-20) in Crime No.160/1990. The appellant was absconding, hence the
proclamation order was issued by the trial court and thereafter the case was split
against the appellant. A separate trial was conducted against the appellant and the
impugned judgment convicting the appellant-accused has been passed by the
Designated Court.
The contention of the learned Additional Advocate General, appearing for the
appellant, is that the appellant cannot take the advantage of his own wrong to thwart
the object and purpose of Section 15 of the TADA Act.
Learned senior counsel appearing for the appellant has submitted that the confession
statements of the two co-accused are not at all admissible in evidence because there
was no joint trial of those two co-accused with the appellant. Therefore, Ex. P-26 and
Ex. P-27 are not admissible in evidence.
Section 30 of the Indian Evidence Act mandates that to make the confession of a co-
accused admissible in evidence, there has to be a joint trial. If there is no joint trial,
the confession of a co-accused is not at all admissible in evidence and, therefore, the
same cannot be taken as evidence against the other co-accused. The Constitution

87
 Bench of this Court in Kartar Singh (supra), while considering the inter-play between
Section 30 of the Indian Evidence Act and Section 15 of the TADA Act held that as
per Section 15 of the TADA Act, after the amendment of the year 1993, the
confession of the co-accused, is also a substantive piece of evidence provided that
there is a joint trial.
In State v. Nalini and others (1999) 5 SCC 253 1999 Indlaw SC 810 Justice Quadri
has held that a confession of an accused made under Section 15 of the TADA Act is
admissible against all those tried jointly with him47.
In Jameel Ahmad (supra), this Court has reiterated the above position as under:
"30......Therefore we notice that the accepted principle in law is that a confessional
statement of an accused recorded under Section 15 of the TADA Act is a substantive
piece of evidence even against his co-accused provided the accused concerned are
tried together."
In the instant case, no doubt, the appellant was absconding.
That is why, joint trial of the appellant with the other two accused persons could not
be held. As noticed above, Section 15 of the TADA Act specifically provides that the
confession recorded shall be admissible in trial of a co-accused for offence
committed and tried in the same case together with the accused who makes the
confession. We are of the view, that if for any reason, a joint trial is not held, the
confession of a co-accused cannot be held to be admissible in evidence against
another accused who would face trial at a later point of time in the same case. We are

47 It has been held thus:"688. Having excluded the application of Sections 24 to 30 of the Evidence Act
to a confession recorded under Section 15(1) of the TADA Act, a self-contained scheme is incorporated
therein for recording the confession of an accused and its admissibility in his trial with co-accused, abettor
or conspirator for offences under the TADA Act or the Rules made thereunder or any other offence under
any other law which can jointly be tried with the offence with which he is charged at the same trial. There
is thus no room to import the requirements of Section 30 of the Evidence Act in Section 15 of the TADA
Act.
689. Under Section 15(1) of the TADA Act the position, in my view, is much stronger, for it says,
"a confession made by a person before a police officer not lower in rank than a Superintendent of Police
and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or
soundtracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such
person or co-accused, abettor or conspirator for an offence under this Act or Rules made thereunder,
provided that co-accused, abettor or conspirator is charged and tried in the same case together with the
accused." On the language of sub-section (1) of Section 15, a confession of an accused is made admissible
evidence as against all those tried jointly with him, so it is implicit that the same can be considered against
all those tried together. In this view of the matter also, Section 30 of the Evidence Act need not be
invoked for consideration of confession of an accused against a co-accused, abettor or conspirator charged
and tried in the same case along with the accused."

88
 of the further opinion that if we are to accept the argument of the learned counsel for
the respondent-State, it is as good as re-writing the scope of Section 15 of the TADA
Act as amended in the year 1993.
In Ananta Dixit v. The State 1984 Crl. L.J. 1126 the Orissa High Court was
considering a similar case under Section 30 of the Evidence Act. The appellant, in
this case, was absconding. The question for consideration was whether a confession
of one of the accused persons who was tried earlier, is admissible in evidence against
the appellant. The Court held that the confession of the co-accused was not
admissible in evidence against the present appellant48.
We are in complete agreement with the view of the High Court.
We are of the view that since the trial of the other two accused persons was separate,
their confession statements (Ex.P-26 and P-27) are not admissible in evidence and the
same cannot be taken as evidence against the appellant.
In view of the discussion made above, the Designated Court was not justified in
convicting the appellant. The appeal is accordingly allowed. The judgment and order
dated 4.12.2009 passed by the Presiding Judge, Designated Court No.2, Chennai, in
Calendar Case No.1/2007, is hereby set aside and the appellant-accused is acquitted
for the offence for which he was tried. This Court by order dated 25.19.2010 had
granted the bail to the appellant. Hence, the question of releasing him does not arise.
The bail bond executed by the appellant and the surety, if any, stands cancelled.
Appeal allowed

48 The Court held:"7. As recorded by the learned trial Judge, the accused Narendra Bahera, whose
confessional statement had been relied upon, had been tried earlier and not jointly with the appellant and
the co-accused person Baina Das. A confession of the accused may be admissible and used not only
against him but also against a co-accused person tried jointly with him for the same offence. Section 30
applies to a case in which the confession is made by accused tried at the same time with the accused
person against whom the confession is used. The confession of an accused tried previously would be
rendered inadmissible. Therefore, apart from the evidentiary value of the confession of a co-accused
person, the confession of Narendra Behera was not to be admitted under Section 30 of the Evidence Act
against the present appellant and the co-accused Baina Das."

89
 Conspiracy/Circumstantial Evidence/Dying Declaration
Bodhraj Alias Bodha and Others v State of Jammu and Kashmir
2002 Indlaw SC 1786, (2002) 8 SCC 45, (2003) SCC (Cr) 201, AIR 2002 SC 316449
Cases Referred
1. Bhagat Ram v State of Punjab, AIR (1954) SC 621
2. C Chenga Reddy and Ors. v State of A,P., [1996] 10 SCC 193
3. Padala Veera Reddy v State of A.P. and Ors., AIR (1990) SC 79
4. State of U.P. v Ashok Kumar Srivastava, (1992) Crl.L.J.1 104; 1992 Indlaw SC 107
5. Hanumant Govind Nargundkar and Anr. v State of Madhya Pradesh, AIR (1952)
SC 343
6. Sharad Birdhichand Sarda v State of Maharashtra, AIR (1984) SC 1622
7. Delhi Admn v Balakrishan. AIR (1972) SC 3 1971; Indlaw SC 577
8. Md. Inayatullah v State of Maharashtra, AIR (1976) SC 483
9. Palukuri Kotayya v Emperor, AIR (1947) PC 67
Facts of the Case
Swaran Singh @ Pappi (hereinafter referred to as the 'deceased') was running a finance
company. Accused No. 2 (Ashok Kumar) and accused No. 1 (Ravinder Kumar) had
taken huge amounts as loan from the deceased. They suggested to the deceased to enter
into a Financial arrangement. On the fateful day i.e. 03 August 1994 deceased went to
his business premises. After about 10 minutes of his arrival accused -Ravinder Kumar
also reached his office. As the deceased had brought some money from his house which

49 Arijit Pasayat and Ruma Pal

90
was to be deposited in a bank, Darshan Singh (PW 15) an employee was asked to make
the deposit. Since no vehicle was available. Ravinder Kumar gave the key of his car to
Darshan Singh. The registration number of the car is CH01 5408. Darshan Singh Left
the office around 11.30 a.m. and returned around 1.30 p.m. On his return, Darshan found
the deceased in the company of accused Ravinder Kumar and Ashok Kumar. He
returned the key of the car to Ravinder Kumar. After about 10/15 minutes, deceased and
accused-Ashok Kumara left the office. At the time of his departure, deceased told
Darshan to take the food which was to come from his house, as they were going out to
have food. Accused-Ashok Kumar and the deceased went to Hotel Asia for taking their
food. Later on, accused -Ravinder Kumar joined them. All the three after taking food
went to the business premises of Gian Singh (PW-1) who was a property dealer and
broker. He was informed that they were interested in purchasing some land for setting
up a flour mill. Ravinder and Ashok Kumar persuaded the deceased to accompany them
for the selection of the site. Along with Gian Singh (PW-1), another property dealer was
also picked up. This was done as PW-1 wanted to go to the site in question along with
Pratap Singh (PW-2) who was his business partner, AII of them went to village Dhiansar
where the land was situated. They went by car No. JK-02B 566. As accused-Ravinder
Kumar appeared to be in extreme haste, he told that site has been approved and PWs. 1
and 2 were told that they would settle the matter at their business premises. When they
were returning, the deceased was attacked by some persons (later on identified as
accused No. 3 to 10). The accused 1 and 2 remained silent spectators and even did not
pay any heed to the pitiful plea of the deceased to bring the car so that he can escape the
attacks. On the contrary, they left the scene of occurrence leaving behind the deceased
and PWs. 1 and 2. They did not report the matter to the police and even though they
claimed to be friends of the deceased, did not even inform family members of the
deceased, They owed huge amounts and issued cheques for which they had made no
provision. Ashok Kumar made use of the cheque book of his wife and issued a cheque in
respect of her bank account, thought. The same was not operated for quite some time.
Accused -Rajesh Kumar's presence was established as later on, a licensed revolver
belonging to accused-Ravinder Kumar was recovered at the instance of Ravinder
Kumar. The license of the revolver was seized from the house of Ravinder Kumar and

91
father of the said accused produced the same before the police in the presence of
witnesses. Pistol of the deceased was also recovered at his instance. The license in
respect of the pistol was seized on personal search of the deceased at the spot of
occurrence. One Hari Kumar (PW-18) stated that accused Ravinder Kumar and Ashok
Kumar made a statement before him that they had got the deceased killed because he
was demanding money from them. From the fact that the land was to be selected was
only known to accused Ravinder Kumar and Ashok Kumar, an inference was drawn that
it was these two accused who had hired the assailants and planted them well in advance
for the ultimate elimination of deceased. The fact that accused Ravinder Kumar left the
office of the deceased earlier and joined them at the Hotel was considered significant, as
the intervening period was utilized by him to inform the assailants as to where they
would be taking the deceased for the assaults being carried out. Accused Rajesh Kumar
and Subhash Kumar had also suffered bullet injury which was on account of the firing
done by the deceased while he was trying to save his life.
Arguments of the Counsels for the parties
Counsel for the Appellants
Several points were urged by the learned counsel for the accused persons. It was pointed
out that there was no evidence of any conspiracy. The only witness Kapur Chand who is
alleged to have stated before the police about the conspiracy was not examined. Even the
Investigating Officer has admitted that there was no direct evidence of conspiracy. There
was no evidence collected against the accused persons to link them with the crime till 11
August 1994 when suddenly material supposed to have come like a flood-gate. Initiation of
action by the police is also shrouded in mystery. It has not been disclosed in either Trial
Court or High Court as to how the police received information about the killing and arrived
at the spot. Though it was claimed at some point of time that a telephone call was
supposedly made, but the FIR was registered on the bias of reliable sources. There are no
independent witnesses. It is surprising as alleged killing took place in the evening time at a
highly populated place. The so-called identification of the witnesses is highly improbable.
Additionally, having discarded the evidence of PW-7 the Courts erred in believing the
evidence of PWs. 8 and 9 who stand on the same footing. The presence of these witnesses
is highly doubtful. Their behaviour was un-natural and there is no corroborative evidence.

92
They are persons with criminal records. Since their presence is doubtful, Identification, if
any done by them becomes ipso facto doubtful. The recoveries purported to have done
pursuant to the disclosure made by the accused persons is highly improbable and requisite
safeguards have not been adopted while making alleged recoveries. The case against four
of the accused persons who were acquitted by the Trial Court rests on circumstantial
evidence. The approach to be adopted by the Court while dealing with circumstantial
evidence was kept in view by the Trial Court. Unfortunately, the High Court did not do so.
It was further submitted that there was no complete chain of circumstances established
which ruled out even any remote possibility of anybody else than the accused persons
being the authors of the crime. The examination of so-called eye-witnesses PWs 1 and 2
was belated and, therefore, should not have been accepted. The evidence of PWs vis-a-vis
accused persons is so improbable that no credence should be put on it. The High Court
should not have disturbed the findings of innocence of four accused persons without any
plausible reasoning.
Counsel for the Prosecution
On the contrary, learned counsel for the prosecution submitted that the background facts
and the evidence on record has to be tested with a pragmatic approach. The situation which
prevailed in the area at the relevant time cannot be lost sight of. Accused 1 and 2 are very
influential persons. The witnesses were naturally terrified. It has come on record that
witnesses PWs 1 and 2 were too terrified even to depose and had asked for police
protection. There is no reason as to why the witnesses would depose falsely against accused
1 and 2 who are known to them. There is nothing irregular or illegal in the procedure
adopted while effecting recovery pursuant to the disclosure made by the accused persons.
Principle Discussed
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. It has been consistently laid down by this Court that where a case rests squarely

93
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 persons.
Judgment
Corning to the appeal filed by four appellants who were acquitted by the Trial Court but
convicted by the High Court. it has been argued with emphasis that even if it is accepted
the two views are possible on the evidence, the one in favour of the accused was to be
accepted and their acquittal should not have been rightly interfered with, it is to be noticed
that the Trial Court placed reliance on the evidence of Hari Kumar (PW 18) for the purpose
of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it
was not held to be reliable. There was no cogent reason indicated as to why the same was
termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure
made by them. Though, arguments were advanced that due procedure was not followed, in
view of the evidence of the witnesses examined by the prosecution in that regard, we find
nothing illegal ruling out its acceptance. There are certain additional features also. A pant
was recovered from the house of Subhash kumar which had holes indicating passage of
bullet. However, a chemist (PW 22) was examined to show when he had gone to purchase
the medicine to be applied to the injury. It was submitted that so far as Santokh Singh (PW
7) is concerned, his evidence was held to be not reliable. Therefore, the identification of
accused No. 5, Subhash Kumar by Santokh Singh was not of any consequence. Even if it is
accepted, the evidence relating to recovery established by the evidence of PW 18 cannot be
lost sight of. The evidence of Nainu (PW 9) was also described to be unreliable and it was
said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit
Singh. Their evidence has been analysed in great detail by the High Court and has been
held to be reliable. It is of significance that practically there was no cross- examination on
the recovery aspect. We do not find any reason to differ with the High Court in that regard.
There can be no dispute with the proposition as urged by learned counsel for the appellants
that two views are possible, the one in favour of the accused has to be preferred. But where
the relevant materials have not been considered to arrive at a view by the Trial Court.
Certainly, High Court has a duty to arrive at correct conclusion a taking view different
from the one adopted by the Trial Court. In the case at hand, the course adopted by the

94
High Court is proper. Judged in the aforesaid background, conviction by the High Court
that those four who were acquitted by the Trial Court does not warrant any interference.
Another point which was urged was the alleged delayed examination of the witnesses. Here
again, it was explained as to why there was delay. Important witnesses were examined
immediately. Further statements were recorded subsequently. Reasons necessitating such
examination were indicated. It was urged that the same was to rope in accused persons.
This aspect has also been considered by the Trial Court and the High Court. It has been
recorded that there was valid reason for the subsequent and/or delayed examination. Such
conclusion has been arrived at after analyzing the explanation offered. It cannot be laid
down as a rule of universal application that if there is any delay in examination of a
particular witness the prosecution version becomes 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. As was observed by this Court in Ranbir and Ors. v State of Punjab 50, the
investigating officer has to be specifically asked as to the reasons for the delayed
examination where the accused raised a plea that there was unusual delay in the
examination of the witnesses. In the instant case however, the situation does not to arise.
Therefore, in the aforesaid background, the appeals filed by the four appellants who were
acquitted by the Trial Court but convicted by the High Court also deserve dismissal which
we direct. Corning to the appeal filed by the State in respect of whom both the Trial Court
and High Court recorded acquittal, it is seen that there was no acceptable material. This
aspect has been analysed in great detail by the Trial Court and the High Court and we do
not find any reason to interfere with the conclusions. The appeal filed by the State is
accordingly dismissed. In the ultimate result, all the four appeals are dismissed. Appeal
dismissed.

50 AIR (1973) SC 1409; 1973 Indlaw SC 114

95
 Section 11-Plea of Alibi
Dudh Nath Pandey v State of Uttar Pradesh
1981 Indlaw SC 107, (1981) 2 SCC 16651
Facts of the Case
The appellant, Dudh Nath Pandey, who was a motor-car driver by occupation, used to live
as a tenant in an out-house of a sprawling bungalow belonging to the family of the
deceased, situated at 17, Stanley Road, Allahabad. The appellant developed a fancy for
Ranjana who was about 20 years of age when he came to live in the out-house. The
overtures made by the appellant to Ranjana created resentment in her family and its only
surviving male member, her brother Pappoo, took upon himself the task of preventing the
appellant from pursuing his sister. As a first step, the appellant was turned out of the out-
house. Soon thereafter, he filed an application before the City Magistrate, Allahabad,
asking for the custody of Ranjana, alleging that she was his lawfully wedded wife. That
application was dismissed by the learned Magistrate after recording the statement of
Ranjana, in which she denied that she was married to the appellant. The appellant thereafter
filed a habeas corpus petition in the Allahabad High Court alleging that Ranjana was
detained unlawfully by the members of her family, including her uncle K. P. Saxena, and
asking that she be released from their custody. Ranjana denied in that proceedings too that
she was married to the appellant or that she was unlawfully detained by the members of her
family. The habeas corpus petition was dismissed by the High Court on November 8, 1973.
On August 1, 1975, the Principal of St. Anthony's Convent made a complaint to the police
that the appellant had made indecent overtures to Ranjana. The appellant was arrested as a
result of that complaint. On November 1, 1976, Ranjana was having an evening stroll with
her brother, the deceased Pappoo, in the compound of their house. The appellant came
there in a rickshaw, abused Pappoo and is alleged to have threatened to kill him, if he dared
oppose his, the appellant's marriage with Ranjana. As a result of these various incidents and
the family's growing concern for Ranjana's safety, Pappoo used to escort Ranjana every
morning to the school where she was teaching. On the following day, i.e. on November 2,
1976, Pappoo took Ranjana to her school on his scooter as usual. The classes used to begin
at 9-30 A.M. but Ranjana used to go to the school 30 to 40 minutes before time for

51 Y.V. Chandrachud and A.P. Sen

96
correcting the students' home-work. After dropping Ranjana at the school, Pappoo started
back for home on his scooter. While he was passing by the Children's Park, known as the
Hathi Park, the appellant is alleged to have fired at him with a country-made pistol. Pappoo
fell down from his scooter and died almost instantaneously.
Contention of the Counsels
Contention of the Prosecution
The evidence surrounding the discovery of the pistol may not be discarded as wholly
untrue but it leaves a few significant questions unanswered and creates a sense of
uneasiness in the mind of a Criminal Court, the Court of conscience that it has to be: How
could the appellant have an opportunity to conceal the pistol in broad-day light on a public
thoroughfare ? If he re-loaded the pistol as a measure of self-protection, as suggested by the
prosecution, why did he get rid of it so quickly by throwing it near the Hathi Park itself ?
And how come that the police hit upon none better that Ram Kishore (P.W. 4) to witness
the discovery of the pistol ? Ram Kishore had already deposed in seven different cases in
favour of the prosecution and was evidently at the beck and call of the police. But the real
hurdle in the way of the appellant is the evidence of the eye witnesses: Ashok Kumar (P.W.
1) and Harish Chandra (P.W. 3)
Contention of the Appellant Counsel
Shri R. C. Kohli counsel for the appellant made a valiant attempt to demolish their
evidence but in spite of the counsel's able argument, we find it difficult to hold that the eye-
witnesses have perjured themselves by claiming to be present at the time and place of the
occurrence.
Counsel for the appellant pressed hard upon us that the defence evidence establishes the
alibi of the appellant. We think not. The evidence led by the appellant to show that, at the
relevant time, he was on duty at his usual place of work at Naini has a certain amount of
plausibility but that is about all. The High Court and the Sessions Court have pointed out
many a reason why that evidence cannot be accepted as true. The appellant's colleagues at
the Indian Telephone Industries made a brave bid to save his life by giving evidence
suggesting that he was at his desk at or about the time when the murder took place and
further, that he was arrested from within the factory. We do not want to attribute motives to
them merely because they were examined by the defence. Defence witnesses are entitled to

97
equal treatment with those of the prosecution. And, Courts ought to overcome their
traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the
prosecution witnesses. Granting that D. Ws. 1 to 5 are right, their evidence, particularly in
the light of the evidence of the two Court witnesses, is insufficient to prove that the
appellant could not have been present near the Hathi Park at about 9-00 A.M. when the
murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of
the presence of the accused at the scene of offence by reason of his presence at another
place. The plea can therefore succeed only if it is shown that the accused was so far away at
the relevant time that he could not be present at the place where the crime was committed.
The evidence of the defence witnesses, accepting it at its face value, is consistent with the
appellant's presence at the Naini factory at 8-30 A.M. and at the scene of offence at 9.00
A.M. So short is the distance between the two points. The workers punch their cards when
they enter the factory but when they leave the factory, they do not have to punch the time
of their exit. The appellant, in all probability, went to the factory at the appointed hour, left
it immediately and went in search of his prey. He knew when, precisely, Pappoo would
return after dropping Ranjana at the school. The appellant appears to have attempted to go
back to his work but that involved the risk of the time of his re-entry being punched again.
That is how he was arrested at about 2-30 P.M. while he was loitering near the pan-shop in
front of the factory. There is no truth in the claim that he was arrested from inside the
factory.
Judgment with reasons
A poor motor-car driver that the appellant was, he must have been offended enormously
that his poverty was being put up as the reason why Ranjana would not be allowed to marry
him. The dispute thus assumed the proportions of a feud over social status, the poor man
fretting that the rich man's daughter would not be allowed to marry him for the mere reason
that he did not belong to an equal class of society. And it is evident that he believed, rightly
or wrongly, that Ranjana was not unwilling to take him as a husband. It is in the immediate
background of the previous evening's incident that the question of sentence has perforce to
be considered. That incident cannot certainly be considered as affording "sudden"
provocation to the appellant for the crime committed by him the next morning and,
therefore, it cannot reduce the offence of murder into a lesser offence. But, the mental

98
turmoil and the sense of being socially wronged through which the appellant was passing
cannot be overlooked while deciding which is the appropriate sentence to pass, the rule
being that for the offence of murder, the normal sentence is the sentence of life
imprisonment and not of death. Secondly, Harish Chandra and Ashok Kumar do not appear
to have revealed the whole truth to the Court. If the appellant had fired a shot at Pappoo
while the latter was driving along on his scooter, and if Pappoo, as is alleged, dropped
dead, his scooter would have dragged him ahead and in that process, he would have
received some injury. The scooter too would have been damaged, howsoever slightly. But
it is strange that apart from the gun-shot wound, Pappoo had no other injury on his person
except an abrasion on the left side of the chest which was evidently caused by the gun-shot
itself. The scooter was not dragged at all, except for the mark of pellets. And, most
importantly, the scooter was not lying on the road but was "standing". Pappoo seems to
have stopped on seeing the appellant and quite clearly, there was an exchange of hot words
between them which culminated in Pappoo's murder. The death of the brave, young lad
which has deprived the family of the succor of its only male member is to be deeply
lamented. But, if witnesses on whose evidence the life of an accused hangs in the balance,
do not choose to reveal the whole truth, the Court, while dealing with the question of
sentence, has to step in interstitially and take into account all reasonable possibilities,
having regard to the normal and natural course of human affairs. Since a part of the crucial
event has been screened from the Court's scrutiny and the possibility of an altercation
between the appellant and the deceased cannot reasonably be excluded, we consider it
unsafe to sentence the appellant to the extreme penalty. In the result, we confirm the
conviction of the appellant under section 302 of the Penal Code but set aside the sentence
of death imposed upon him. We sentence the appellant to imprisonment for life. The appeal
is, accordingly, allowed partly.

99
 Ss 9/11 of IEA
Emperor v Panchu Das and Another
1920 Indlaw CAL 388; AIR 1920 CAL 50052
Cases Referred
1. Queen v Hurribole Chunder Ghose, 1875-76 (1) ILR (Cal) 207
2. Fateh Chand v Emperor, 1917 (44) ILR (Cal) 477,
3. Queen-Empress v Abdullah, 1885 (7) ILR (All) 385
4. Muhammad Allahdad Khan v Muhammad Ismail Khan, 1888 (10) ILR (All) 289,
5. Collector of Gorakhpur v Palakdhari Singh, 1890 (12) ILR (All) 1
6. Imperatrise v Pitamber Jina, 1877-78 (2) ILR (Bom) 61
7. Empress v Moodeliar, 1881 (6) ILR (Cal) 655,
8. Baharuddin Mandal v Emperor, 1914 AIR (Cal) 589
9. Emperor v Abdul Wahid Khan, 1912 (34) ILR (All) 93
10. Emperor v Debendra Pershad, 1909 (36) ILR (Cal) 573
11. Emperor v Abdul Wahid Khan, 1912 (34) ILR (All) 93
12. R. v Parbhudas, 1874 (11) B. H. C. R. 90
13. Makin v Attorney General for New South Wales, 1894 A. C. 57
14. R. v Ball, 1911 A. C. 47
15. R. v Ball, 1910 (5) Cr. App. Rep. 238
16. R. v Smith, 1917 (1) 11,
17. R. v Bond, 1906 (2) K. B. 389
18. R. v Thompson, 1917 (2) K. B. 630
19. Thompson v R, 1918 A. C. 221
20. Amritalal Hazra v Emperor, 1915 (42) ILR (Cal) 957
Facts of the Case
Prosecution story is that the first accused introduced himself to the deceased woman as a
Raja's son or a zamindar’s son, and a few days after, the first accused began visiting the
deceased woman: the second accused began coming with him and was introduced as his
durwan. The allegation was that on the night of 9th December or morning of 10th
December 1914, the two accused murdered the deceased woman, or that one of them

52 Sir Lancelot Sanderson, Mookerjee, E. E. Fletcher and Chaudhuri Walmsley

100
murdered her, and the other abetted the murder, and that they robbed her of practically all
she possessed, and decamped. Inquiries were made by the police, but without getting any
trace of the alleged murderers, and the inquiries were dropped in July 1915. The second
accused was arrested in December 1918 in connexon with a complaint of theft made by a
woman of the town Shamasundari, against two persons described as a babu and a durwan.
In the course of inquiries, the Police came across another woman, Niroda, who made a
similar complaint against two persons, a babu and a durwan. The police on further inquiries
being made came across a third woman Sindhubala, who made a similar complaint of theft
against two persons. The Inspector of Police obtained a photograph from Sindhubala of one
of the persons whom she charged: he showed it to Niroda and Shamasundari both of whom
identified it as that of the babu against whom they complained. In the course of his
inquiries, the Inspector of Police got certain information from a Head Constable who had
something to do with the inquiry into the murder of Dakho. He obtained the addresses of
Manoda and Annoda, who are two of the women who lived on the ground floor of Dakho,
the murdered woman's house, and on 9th January 1919 he showed them the photograph.
They identified it as that of the babu who used to visit Dakho in December 1914, and who
was with her on the night of the murder. On 11th March 1919 the first accused was
arrested. The murder was on 10th December 1914. Sindhubala's charge related to events of
September 1916. Niroda's was February or March 1918 and Shamasundari's
October/November 1918. It was mainly in relation to part of the evidence of the three
women, Sindhubala, Niroda and Shamasundari, and part of the evidence of Inspector M. N.
Mukerjee that this reference was made.
Contention of the Counsels
It was alleged that in each case the offenders passed themselves off as a babu and a
durwan, and that in each case the complainant was a woman of the town who was visited
by the alleged babu and that consequently it was highly probable that these two men were
the same as those who were living in Dakho's house at the time of the murder. Having
regard however to the dates of the incidents alleged by the three abovementioned women,
and the nature of their evidence, in my judgment, it was not admissible under S. 9 or under
S. 11, Evidence Act. There was other evidence to which objection was taken, but in view of
the opinion which I hold as to the evidence already dealt with, it is not necessary for me to

101
consider the other evidence. During the course of the argument we intimated to the learned
counsel that we had come to the conclusion that some of the evidence was improperly
admitted; and the question then arose as to whether this Court could order a new trial,
which in this case would have been the most desirable course. The learned standing counsel
however submitted that we had no power to direct a new trial, in which submission the
learned counsel for the convicted men concurred. The merits of the case were then argued
and the learned standing counsel submitted that we should uphold the conviction in view of
the evidence as to which there was no question, and excluding the evidence to which
objection was taken. In my judgment, the convictions should not be upheld. The accused
persons were entitled to be tried by a jury. They were in fact tried by a jury: the jury were
not unanimous, the nature of the evidence, which I have referred to and which I consider
was wrongly admitted, is such that, in my judgment, it is impossible to say that the verdict
of the majority of the jury may not have been affected by it.
The Standing Counsel, in other words, wished to achieve by indirect means what he could
not possibly attain directly even upon the most favourable interpretation of S. 15. This
clearly should not be permissible and indicates that, in the present case, separate trials of
the charges of murder and theft was desirable as has been pointed out by the learned Chief
Justice at the conclusion of his judgment. With reference to section 15 the court held-
“The admissibility, not merely the weight, of the evidence depends upon the evidence of
such conduct as would authorize a reasonable inference of a systematic pursuit of the same
criminal object”.
There is thus no escape from the position that neither S. 14 nor S.15, Evidence Act, is of
any assistance to the prosecution. The Standing Counsel was finally constrained to invoke
the aid of Ss. 9 and 11. Reliance was placed upon the rule prescribed by S. 9 that facts
which establish the identity of anything or person whose identity is relevant, are relevant in
so far as they are necessary for that purpose. This does not advance the argument for the
prosecution. No question of identity arises till the offenders who committed the crime
under investigation are ascertained by independent evidence. S. 11 is equally unavailing.
That section provides that facts not otherwise relevant are relevant if by themselves or in
connection with other facts they make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable. This leads me on to the next point, namely,

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can the Court on review, examine the evidence and determine whether after exclusion of
the inadmissible evidence, the residue is sufficient to justify the conviction? The Standing
Counsel has argued that the Court is not merely competent, but is really bound to follow
this procedure. On behalf of the accused it has not been disputed that this contention
accords with the numerous decisions previously mentioned, but we have been pressed to
hold that they were overruled by implication by the Judicial Committee in the case of
Subrahmania v King Emperor53. Reliance has also been placed upon the observations of the
Judicial Committee in Makin v Attorney-General for New South Wales 54, where they
emphatically condemned the transference, from the jury to the Court, of the determination
of the question, whether the evidence, that is what the law regards as evidence, established
the guilt of the accused. The question thus raised is not free from difficulty and was left
open in the case of Fateh Chand v Emperor 55, as the evidence there was manifestly
insufficient to support the conviction. In the case before us the question has been re-argued
and I have arrived at the conclusion that the Judicial Committee did not, by their decision
in Subrahmania v King Emperor56, overrule by implication the series of cases in Calcutta
and in Bombay where the High Court had in cases reserved or certified, reviewed the
evidence and determined the question of guilt of the accused. The decision of the Judicial
Committee must be limited to cases of the type then before them, namely, where the trial
had been conducted in a mode entirely prohibited by law, and cannot be extended to cases
where evidence had been erroneously received or improperly rejected. If this view were not
adopted the result would follow that, wherever evidence, however trifling its effect, had
been erroneously received or excluded, the Court would be constrained to quash the
conviction and sentence and set free the accused as no retrial could be ordered. Such a
conclusion would directly contravene the principle enunciated in S. 167…
Judgment
I believe the evidence of identification, although the photograph of accused 1 was shown to
Manoda, Annoda, Prafulla and Giribala by the investigating officer before they were
examined in Court. That they took time in identifying him when the photograph was first
shown was natural as the man was dressed up when the photograph was taken. It was
53 1902 (25) ILR(Mad) 61
54 1894 A. C. 57
55 1917 (44) ILR(Cal) 477
56 1902 (25) ILR(Mad) 61

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shown to them more than three years after they had seen him. Prafulla’s doubt when the
accused was first shown to him after his arrest, was also due to lapse of time. He had seen
the man only on two occasions; on one of such occasions however he was with the accused
for some time I do not think the shawl has been sufficiently identified. I place much
reliance on the evidence of the silversmith as regards the gate which was found in the box
of accused 2. The other evidence about the identification is not without value. It is clearly
established that these two were well known to each other and that they had given different
names to different people and that accused 1 is not a zamindar or a zamindar’s son but a
menial servant. The statements made by Manoda, Annoda, Panchu, Keora and others to the
police soon after the occurrence I consider of great value. I have no hesitation in holding
that both the accused are guilty of the offence of murder, robbery and conspiracy to rob, as
charged. It is not for us to speculate what the jury would have done. It is for us to arrive at a
decision and after all one's own mind is his best standard.
Walmsley, J.
I agree with the learned Chief Justice in holding that the evidence to which objection was
taken was not admissible. I accept the proposition that this Court has on previous occasions
held that it cannot order a retrial. On the merits, I am satisfied that the two accused before
us are the men who caused the unfortunate woman's death. The evidence given by the
inmates of the house and by the doctor is of a convincing nature, and my learned brother
who presided at the trial believed the witnesses to be speaking the truth. I do not think it
necessary to ask what view a jury would take of the evidence, except so far as the opinion
of a hypothetical jury affords a standard of reasonableness. If it were necessary to ask such
a question I should hold that of nine reasonable men at least two-thirds would believe the
evidence, and having regard to the terms of the charge delivered by my learned brother, I
would go further and hold that as a matter of fact the seven jurors who found the accused
guilty, found them guilty on the evidence to which objection cannot be taken.

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 Alibi
Purna and Another v State of Uttar Pradesh
1983 Indlaw SC 391, AIR 1984 SC 45457
Facts of the case
PW 1 Hari Babu claimed that plot No. situated in village Abdul Navipur was in his
possession and he had raised crop. On March 11, 1973 around 3 p.m. PW 2 Babu Lal a
relation of PW 1 Hari Babu went to the filed and found about 15 persons present in the
filed. Some of them were cutting the crop and 5 persons including the present two
appellants Purna and Guru prasad were seen removing the crop. He returned to Hari Babu,
PW 1 and gave him the information of what was happening in plot No. 169. Immediately
PW 1 Hari Babu contacted Circle Officer on telephone who directed the flying squad of
police to visit the scene of occurrence. PW 2 Babu Lal returned to the filed. Some
policemen came in a jeep to the filed. All those who were in the filed except one Baij Nath
decamped, The officer In charge of the flying squad took Baij Nath and PW 2 Babu Lal to
P. S. Kotwali. Presumably, after questioning them no case was registered. PW 1 Hari Babu
went on sending applications to higher officers without success. Ultimately on March 15,
1973 he filed a complaint in the Court of the Additional District Magistrate (Judicial),
Mathura against 15 persons including the present two appellants for having committed and
offence under section 395, IPC. It appears that the learned Magistrate committed the
accused to the Court of Session. The case came to be tried by First Additional Sessions
Judge, Mathura. PW 2 Babu Lal, PW 3 Tikam and PW 4 Chitar Mal were examined as
witness to the occurrence. The learned First Additional Sessions Judge accepted the
evidence of the prosecution and convicted all the 15 accused for having committed an
offence u/s. 379 and sentenced each of them to suffer RI for 2 years. All 15 convicted
accused persons preferred Criminal Appeal No. 9119 of 1975 in the High Court of
Judicature at Allahabad. During the pendency of the appeal accused Zorawar, Ram Singh
and Raja Ram appellants died and their appeal abated. The High Court held that the
remaining 12 appellants were shown to have committed an offence u/s. 379 and confirmed
the conviction. On the question of sentence, the learned Judge held that considering the fact
that the value of the crop stolen was about Rs. 500 and the incident took place nearly eight

57 D.A. Desai and E.S. Venkataramiah

105
years before the date of Judgment, the sentence of 2 years' RI awarded to each of the
appellants is excessive and accordingly reduced the substantive sentence to sentence
already undergone and imposed a fine of Rs. 100 on each of the appellants. Appellants
Purna and Guru Prasad have filed this appeal by special leave.
Contention of the counsel
R. K. Garg, learned advocate who appeared for the appellants urged that both the Courts
are in error in rejecting the evidence of alibi led by Purna. It was urged that the relations
between the appellant guru Prasad and PW 1 Hari Babu were strained as they had fought
election against each other and therefore, he was falsely involved in this case. It was urged
that both these aspects were not examined by the High Court. Ordinarily this Court does
not undertake re-appreciation of evidence unless failure to do so will lead to miscarriage.
With this precaution, we may examine the two contentions raised by Mr. Garg in this
appeal. Adverting to the case of purna, his specific and positive defence was that on the
date of occurrence that is on March 11, 1973 he was assigned the duty from 8.00 a.m. to
5.00 p.m. in Hydel Sub-Division, at Mathura. In order to substantiate this defence, he
examined DW 1 Mani Kant Trivedi a clerk in the office of S. D. O. Hydel who deposed
that appellant Purna was on duty from 8.00 a.m. to 5.00 p.m. on March 11, 1973 in Hydel
Sub-Division at Mathura. In support of this statement, he produced the time keeper; record
made at the gate of power station the time of entering the power station at 8.00 a.m. He
stated that the gate is locked at 8.00 a.m. and reopened at 5.00 p.m. and the record shows
that appellant Purna was in the Hydel Sub-Division on that day from 8.00 a.m. to 5.00 p.m.
According to PW 1 Hari Babu and PW 2 Babu Lal, the incident occurred around between
2.00 p.m. to 3.00 p.m. Even allowing for a margin of couple of hours on either side if the
documentary evidence produced by the DW 1 Mani Kant Trivedi is believed, appellant
Purna could not be at the scene of occurrence which is in a filed bearing plot No. 169
situated in Abdul Navipur. The High Court declined to accept this evidence by relying
upon the evidence of one T. S. Chauhan who was posted as Junior Electrician in the
Aurangabad Sub-Station in March 1973. The circumstances in which T. S. Chauhan came
to be examined are worth noticing. Mr. Chauhan was not examined in the Court. It appears
that the High Court summoned him and examined him. Conceding that the High Court
considered examining Chauhan imperative for the end of justice, yet his evidence in our

106
opinion is worthless. Chauhan stated that on Sundays all the employees are on leave except
a few who come and even those who come to the workshop leave the place by 12 noon. It
is true that March 11, 1973 happened to be a Sunday. But Chauhan does not say a single
word about the register maintained at the gate. He has no knowledge whether the appellant
Purna was or was not present in Hydel Sub-Division at Mathura. Witness Chauhan himself
was working at Aurangabad Sub-station. He had no personal knowledge about the presence
of appellant Purna at the power station. His evidence is of a general nature and is very
vague and it could not be accepted in preference to the evidence of D.W. 1 Mani Kant
Trivedi whose evidence was borne out by the contemporaneous record. We are therefore of
the opinion that the High Court was in error in accepting the evidence of Chauhan in
preference to the evidence of Mani Kant Trivedi. Once evidence of Trivedi is accepted,
which we find trustworthy, it would appear that at any rate appellant Purna was not present
at the scene of offence at the time of occurrence.
Decision with reasons
Allowing the Appeal, the court held that, in view of the state of evidence herein discussed
we have considerable hesitation in accepting the prosecution case against the present
appellants and we are of the opinion that the participation in the occurrence is not proved.
Therefore, the charge is not brought home against them, and they are entitled to be
acquitted.
Garg, learned counsel for the appellant stated that in any view of the matter appellants are
willing to make good the loss suffered by complaint Hari Babu. Complainant Hari Babu
was accordingly joined as respondent in this appeal and a notice was ordered to be issued
to him. Notice has been returned with an endorsement that Hari Babu is dead. We,
however, feel that the heirs of Hari Babu should be paid Rs. 500 as an ex gratia
compensation for the loss, if any, suffered by them.
We accordingly allow this appeal, set aside the conviction and sentence imposed upon the
appellants and acquits them. The sentence of fine of Rs. 100 imposed on each of the
appellants is quashed and set aside. Appellants do deposit within two months from today in
the trial court a sum of Rs. 500 as ex gratia compensation to be paid to the heirs of Hari
Babu. If the heirs of Hari Babu do not claim the same after the notice by the trial court,
within a reasonable time the trial court should refund the amount to the appellant.

107
 Section 13 and 21 of the IEA
Sital Das v Sant Ram and Others58
Citation: 1954 Indlaw SC 186, AIR 1954 SC 606
Principles and law established
Indian Evidence Act, 1872, ss. 13 and 21
Question before the Court of Law
Whether the lease in favour of defendants 1 and 2 which has been challenged in suit is
supported by legal necessity and is binding on the institution?
An appeal directed, against the judgment and decree of a Division Bench of the Punjab
High Court, dated the 30th April 1952, by which the learned Judges reversed, on appeal,
a decision of the Subordinate Judge, First Class, Jullundur dated the 31st May 1948,
passed in Suit No. 131 of 1947.
Facts of the Case
The facts material for the present purpose may be briefly stated as follows:
There is a Thakardwara or religious institution belonging to the Ram Kabir sect of
Hindu Bairagis situated at Mouza Jamsher within the district of Jullundur. One Kishore
Das was admittedly the last Mahant of the Thakardwara, who died on the 4th of April
1945. On the 31st March 1945, that is to say just four days before his death, Kishore Das
granted a lease in respect of 645 Kanals of land, appurtenant to the endowment, for a
period of 10 years in favour of defendants’ respondents 1 and 2 at an annual rental of
Rs.1, 500 only. The suit, out of which this appeal arises, was instituted by Sital Das,
who is the appellant before us, in the Court of the Subordinate Judge, First Class
Jullundur on 2nd January 1946 making the two lessees, mentioned above, parties
defendants, for recovery of possession of the lands comprised in the lease, on the
allegation that Sital Das was the legally appointed Mahant of the Thakardwara after the

58 Bench : Bijan Kumar Mukherjea, Vivian Bose, Ghulam Hasan, T.L. Venkatarama Aiyyar (The
Judgment was delivered by: B. K. MUKHERJEA, J).

108
death of Kishore Das and that the lease, executed by the latter, was illegal and
inoperative by the latter, was illegal and inoperative on grounds, 'inter alia' that it was a
colourable transaction, executed without consideration and not supported by legal
necessity. Sital Das was admittedly not a disciple of Kishore Das, the last Mahant, and
he based his claim as superior of the institution solely on the ground that he was duly
appointed as Mahant by the 'Bhek' of the assembly of Bairagi Mahants of the same
order, to which Kishore Das belonged, along with 'Sewaks' or worshippers of the
Thakardwara itself.
In the plaint, as it was originally framed, two other persons were joined as co-plaintiffs
along with Sital Das; one of them was Mahant Hira Das who purported to be the head of
a Bairagi institution at Sahri, said to be the parent institution of the Thakardwara in
dispute, and the other was Sadhu Ram Das, whose disciple Sital Das is and who claimed
to belong to the same spiritual fraternity as Kishore Das. It was stated in paragraph 4 of
the plaint that these two persons had obtained the consent of the Advocate General u/s.
92 of the CPC to file a suit under that section in respect of the properties of the Jamsher
Thakardwara, alleged to be improperly alienated by Kishore Das, and the reason for
joining them as co-plaintiffs along with Sital Das was that in case the court held that
Sital Das was not a validly appointed Mahant, the other two plaintiffs would be able to
continue the suit, as persons interested in the endowments, against the lessees. On the
28th March 1946 the trial judge made an order to the effect that as plaintiff No. 1 was
alleged to be the lawfully appointed Mahant, plaintiffs 2 and 3 could not claim to have
simultaneously the same rights with him and the joinder of plaintiffs in this form was
likely to create confusion and embarrass the trial of the suit; and the plaint therefore
should be amended, and either the plaintiff No. 1 alone, or plaintiffs 2 and 3 together,
should appear as claimants. In pursuance of this order, the plaint was amended and the
names of plaintiffs 2 and 3 were deleted from the record. The amended plaint was filed
on the 17th of April 1946. The defendants 1 and 2 filed their written statement on the
28th March 1946, the same day on which the order for amendment of the plaint was
passed by the Subordinate Judge, and the contentions raised by them in their written
statement were substantially of a three-fold character.
Contentions

109
In the first place it was contended that it was not the plaintiff but one Ishar Das who was
the legal Mahant and administrator of the Thakardwara at Jamsher after the death of
Kishore Das. The said Ishar Das was therefore a necessary party to the suit which was
not maintainable at the instance of Sital Das at all. The second plea raised was that the
plaintiff was not appointed as Mahant by the Bhek, as alleged in the plaint, and that he,
not being a disciple of the last Mahant, had no. right to be so appointed. The third point
raised related to the validity of the lease impugned by the plaintiff and it was asserted
that the lease was executed for good consideration and for legal necessity and was hence
binding on the institution.
It appears that on the 24th July 1946 a copy of a registered will, alleged to have been
executed by Kishore Das only four days before his death, was produced in court and by
that will the testator purported to appoint Ishar Das and Lachman Das, described as his
two disciples, joint managers of the Thakardwara after his death. Upon this, the
Subordinate Judge made an order directing that Ishar Das and Lachman Das should be
added as parties’ defendants in order that the suit may be decided in their presence. This
was done and on that very day, namely, the 24th of July 1946, the plaintiff put in an
amended petition of plaint impleading Ishar Das and Lachman Das as defendants 3 and
4 to the suit. A new paragraph was added to the plaint in which it was stated that if any
will or wills were at all executed by Kishore Das in favour of defendants 3 and 4 the
same were fictitious and collusive. The deceased Mahant, it was said, had no. right to
make a testamentary disposition of his rights as Mahant and such disposition could not
affect in any way the rights of the plaintiff. On the 26th October1946, Ishar Das and
Lachman Das, who were the added defendants, put in their written statement; and in
substance, they pleaded that the plaintiff, not being a 'chela' of the deceased Mahant,
was not eligible for appointment as mahant at all and that the 'Bhek' could not and did
not appoint him as such. The will left by Kishore Das was asserted to be a valid and
genuine document by which his two disciples were appointed his successors. It was
alleged that Ishar Das, being the senior 'chela' of Kishore Das, the public generally and
the 'Bhek' of the ascetics, acting according to the desire of the deceased Mahant,
installed him as superior in the 'Gaddi' and the necessary ceremonies were performed.
The Thakardwara, it was said, was in possession and management of the said Ishar Das.

110
Issues framed
The material issues were issues Nos. 1 and 4.:
1.The first issue related to the title of the plaintiff as a validly appointed Mahant of the
institution and his competency to maintain the suit.
2.The fourth issue raised the question as to whether Ishar Das, the defendant No. 3 was a
valid 'chela' of the deceased Mahant and was duly appointed as successor by him or the
'Bhek', or was otherwise entitled to succeed?
3.Issues 2 and 3 related to the validity and binding character of the lease executed by
Kishore Das in favour of defendants 1 and 2 and its liability to be challenged by the
plaintiff.
Judgment of the Trial Court
The trial judge, by his judgment dated the 31st of May 1948, decided all these issues in
favour of the plaintiff. The Subordinate Judge took the view that according to the
custom prevailing in the institution, the ultimate authority to appoint a Mahant rested
with the "Bhek' and the" Sewaks', irrespective of the fact whether the claimant was a
'chela' or in any other way spiritually connected with the last incumbent. It was found as
a fact however that the plaintiff Sital Das was a spiritual collateral of the late Kishore
Das and came within the description of what is called a 'Bhatija chela' The Subordinate
Judge found further that the plaintiff was duly appointed Mahant by the 'Bhek' of the
Bairagi ascetics as well as by the 'Sewaks' of the temple. As regards Ishar Das, it was
held that his original name was Ujagar Singh and he was never a 'Chela' of the late
Mahant, nor had he renounced the world. There was also no. proper evidence to show
that he was appointed Mahant by the 'Bhek' or the 'Sewaks'. Lastly, it was held that the
lease was not executed for legal necessity and was not binding on the institution. The
recital of payment of Rs. 5, 000/- as premium for the lease was found to be fictious and
the rent reserved to be grossly inadequate.
Judgment of the Lower Court
On these findings, the learned Subordinate Judge allowed the plaintiff's claim and
passed a decree in his favour as prayed for.
Appeal to the High Court
Against this decision there was an appeal taken by the defendants to the Punjab High

111
Court and the appeal was heard by a Division Bench consisting of Khosla and Harnam
Singh JJ.
The only points canvassed before the High Court were those covered by issues 1 and 4.
The learned Judges held differing from the trial Court, that Sital Das was not able to
prove that he was a spiritual agnate of the deceased Mahant, nor was it established that
the meeting held at Jamsher on the 23rd July 1945, at which Sital Das was said to have
been appointed was a proper meeting of the 'Bhek' and the 'Sewaks'. The result was that
Sital Das was held to have failed in establishing his title as a validly appointed Mahant
and on this ground alone the learned Judges allowed the appeal and dismissed the
plaintiff's suit. It was considered unnecessary to decide the other points which were
raised in the suit. It is against this decision that the plaintiff has come up on appeal to
this court on the strength of a certificate given by the High Court u/art. 133 of the
Constitution read with ss. 109 and 110 of the CPC.
Contentions of the Parties before the Supreme Court
In the appeal before us the contentions raised by the parties primarily centre round the
point as to whether after the death of Kishore Das, the plaintiff or the defendant No. 3
acquired the rights of mahant in regard to the Thakardwara in dispute. The law is well
settled that succession to Mahant ship of a Math or religious institution is regulated by
custom or usage of the particular institution except where a rule of succession is laid
down by the founder himself who created the endowment 59 among one of the many
cases on this point.
In determining who is entitled to succeed as Mohunt, the only law to be observed is to
be found in the custom and practice. which must be proved by testimony, and the
claimant must show that he is entitled according to the custom to recover the office and
the land and property belonging to it...... Mere infirmity of the title of the defendant,
who is in possession, will not help the plaintiff. The plaintiff's case as made in the plaint
is, that according to the custom of the Bairagis, when a Mahant dies the person who is
appointed by the 'Bhek' of the Bairagis and the 'Sevaks' or worshippers of the institution
can only be regarded as a duly appointed Mahant and can function as such. It is not said
in the plaint as to whether the 'Bhek' or the Sewaks are competent to appoint any and

59 Genda Puri v. Chhatar Puri- Judicial Comomitee Decision

112
every person they like or their choice is limited to the disciples of the last Mahant or at
any rate, to those who claim, like co-disciples, some sort of spiritual affinity with the
latter.
Defendant No. 3, on the other hand, in his written statement rested his claim to
Mahantship upon appointment by Kishore Das as his successor by his will, an
appointment which, he alleged, was ratified by the 'Bhek' of the Bairagis on the
seventeenth day after the demise of the last Mahant. The case set up by him seems to be
that none but a 'chela' of the last Mahant can succeed to the office, that it is open to a
Mahant to nominate during his lifetime his successor from amongst his 'chelas' & the
'Bhek' or assembly of Sadhus is more or less a confirming authority which ratifies the
wishes expressed by the deceased Mahant.
On the question of custom, the plaintiff examined a number of Bairagi Mahants as his
witnesses and it seems that both the courts below have placed reliance upon their
evidence. Mahant Hira Das (C/P. W. 1), who is the head of the Bairagi shrine at Sahri,
states in his deposition that the custom among Bairagis is that, on the death of the last
Mahant, his 'chela' and failing a 'chela', his 'Bhatija chela' or 'Gurubhai' succeeds to the
Mahantship and it is the 'Bhek' and the 'Sewaks' who make the appointment by applying
'Tilak' to the person elected. C/P. W. 2 Brahm Das, who is also associated with a Bairagi
institution says that "after a guru his 'chela' is appointed Mahant and if there be no.
'chela', the 'Gaddi is given to 'Bhatija chela' and if there be any other able person he is
given the 'Gaddi'. The 'Bhek' and the 'Sewaks' make the appointment". To the same
effect is the evidence of Balack Das, another Bairagi Mahant who deposes that on the
death of a Mahant his 'chela', who is able, is appointed a Mahant. But if the 'Chela' is not
able then another person namely a 'Gurubhai' or 'Bhatija chela' or 'Pota chela' is
appointed. The Mahant according to this witness is always appointed from the line of the
last incumbent and the 'Bhek' and the 'Sewaks' are appointing authority. Only one of the
plaintiff's witnesses, namely, Ram Charan (P. W. 3) who purports to be the Mahant of
Doaba Mandal goes to the length of saying that on the demise of the last Mahant the
"Bhek" and the worshippers appoint his successor and any person can be appointed
whether he is a 'chela' or not. It may be noted that the plaintiff himself does not support
this story and he expressly says in his deposition that the custom is that if there is an

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able 'Chela' of the Mahant, he is appointed the successor, if not a person is selected from
the "Bans' or the spiritual family which includes 'Gurubhai, Bhatija chela' and 'Pota
chela'.
Opinion of the Court
In our opinion the custom that is proved to exist in this Bairagi institution, in matters of
succession to Mahantship, is that the Bhek of the Bairagis and the worshippers of the
temple together appoint the successor, but the appointment has got to be made from the
disciples of the deceased Mahant, if he has left any and failing disciples, any one of his
spiritual kindred like a 'Gurubhai, Bhatija chela' or a 'Pota chela' could be appointed.
The defendants' case is true to this extent that if a disciple of the Mahant exists he has
the first right to be appointed, except in case of proved disability; but it would not be
correct to say that none but a disciple is eligible to become a Mahant. In that case if the
Mahant does not leave a 'chela' behind him no. appointment could at all be made. It
cannot also be disputed that the Mahantship is not hereditary in the sense that on the
death of an existing Mahant his 'chela; succeeds to the office as a matter of course. He
can acquire rights only by appointment and the authority to appoint is vested in the
'Bhek' and the 'Sewaks'. This has been judicially noticed in the case of -'Jiwan Das v.
Hira Das', where the dispute was as regards succession to Mahantship of the shrine at
Sahri which also is admittedly an institution of Ram Kabir Bairagis. This being the
nature of the custom in regard to succession to Mahantship in the Thakardwara at
Jamsher the first question that requires consideration is whether Kishore Das, at the time
of his death, had left any disciple of his own. If Ishar Das, is provied to be a 'chela' of
Kishore Das, it is conceded that the plaintiff, who admittedly is not the 'chela' of Kishore
Das, was not eligible for appointment as a Mahant and even if the 'Bhek' and the
Sewak's nominated him he could not, in law, acquire the rights of a Mahant. If, on the
other hand, Ishar Das was not a 'Chela' at all, the question would then arise whether the
plaintiff was a 'Bhatija chela' or a spiritual agnate of Kishore Das as alleged by him and
secondly whether he was validly appointed by the 'Bhek' and the 'Sewaks'. On the
question as the whether Ishar Das was a 'chela' of Kishore Das the finding of the trial
judge is in favour of the plaintiff and against defendant No. 3 though the learned Judges
of the High Court left it undecided. On the other two points, the High Court has differed

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from the views taken by the trial judge.
The court took the matters up for consideration on these three points one after another
and if they are decided in favour of the plaintiff, then only the question would require
determination as to whether the lease granted by Kishore Das in favour of defendants 1
and 2 was a valid lease binding on the endowment.
So far as the first point is concerned, the case of the plaintiff appellant is that Ishar Das
was not the 'chela' of Kishore Das; in fact the plaintiff contends that Kishore Das had no.
'chela' at all. The case of the defendants on the other hand is that Ishar Das as well as
Lachman Das were both 'chelas' of Kishore Das at the time of his death. Lachman Das it
may be mentioned has not examined himself in this case and except formally joining in
the written statement filed by Ishar Das and supporting the case of the latter, did not take
any part in this litigation at all. Except the bare statement made by some of the witnesses
examined by the defendants that both Ishar Das and Lachman Das were the' chelas' of
the late Mahant, we have no. materials on the record to show what the antecedents of
Lachman Das were and at what time, if at all, he became a 'chela' of Kishore Das. As
regards Ishar Das, the Subordinate Judge came to a definite finding upon a consideration
of the entire evidence on the record that he was not the 'Chela' of Kishore Das. As the
High Court has not recorded any finding on this point, it is necessary for us to see
whether the decision of the trial judge on this point is a proper one and is borne out by
evidence. Ishar Das himself state in his deposition that his original home was at Mannan
and that he left his house when he was only 5 or 6 years old and after being initiated as
'chela' by Kishore Das lived with the latter in the Thakrdwara at Jamsher all along. It is a
fact, spoken to by the plaintiff's witnesses and not seriously disputed on the defendant's
side that Ishar Das is the same person as Ujagar Singh, whose father was one Ganga
Singh, a resident of Mannan. To prove that Ishar Das never left his house, the plaintiff
has produced the Khasra Girdwaris papers of village Mannan (Ex. P. 7) from Kharif
1938 up to Rabi 1946 and these papers show certain lands under the personal cultivation
of Ujagar Singh and Kartar Singh as co-sharers both being described as sons of Ganga
Singh.
Defendants Argument
The defendants point out that these Khasra papers carry no. presumption of correctness

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but they are certainly relevant evidence admissible u/s. 35 of the Indian Evidence Act
and they do support the plaintiff's story that far from renouncing the world and
embracing the life of an ascetic, Ishar Das or Ujagar Singh, as he was called, was
carrying on cultivation with his brother and nephews during the years 1938 to 1946.
Ishar Das stated in course of his cross-examination that he did not cultivate his lands,
but in the same breath he admitted that he was joint with his nephews with regard to his
paternal properties.

Arguments of the counsels

It was argued by Mr. Achhru Ram that even though a man has renounced the world his
name might still be retained as a co-sharer of his paternal properties in the revenue
papers. But this, it seems, was not probable in the present case as Ishar Das is alleged to
have renounced the world sometime in the year 1908 when he was only 5 or 6 years old
and the revenue papers were prepared nearly 30 years after that. Whatever doubts might
have existed on this point are removed, in our opinion, by the production of a ration card
which was issued to Ujagar Singh in the year 1946 and which shows that he was getting
cloth as the head of a family consisting of nine members. The ration card purports to
bear the thumb impression of Ujagar Singh P. W. 7 who is the owner of a cloth shop at
Mannan, proves certain entries in a cash memo (Ex. P. W. 7/2) showing that Ujagar
Singh, son of Ganga Singh of village Mannan, purchased cloth valued Rs. 17/1/5 pies on
7th December 1946. P. W. 12, who holds a Government Depot for kerosene oil and
sugar at village Mannan, says that Ujagar Singh, son of Ganga Singh had purchased
kerosene oil and sugar from his depot on several occasions. This is corroborated by
certain entries in the register of sales kept by him which have been marked Exs. P. W.
12/1 and P. W. 12/2. This witness also says that Ujagar does zamindari and cultivation
work at Mannan. It is well known that entry into a religious order is accompanied by
certain rites and ceremonies and there is absolutely no. evidence that any such
ceremonies of initiation were performed when Ishar Das became a Bairagi. To prove
that Ishar Das was in fact a chela' of Kishore Das, considerable reliance has been placed
on behalf of the defendants upon two wills alleged to have been executed by Kishore

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Das, one in the year 1911 and the other on the 31st of March 1945, just four days before
his death. The first document, if proved, would undoubtedly support the defendants'
story. It recites that Ishar Das was taken as 'chela' by the testator in the year 1908 and
provides that after the death of the testator he shall be the Mahant of the Thakardwara as
his successor. We have not got however the original will, nor has any certified copy of it
been produced; the document, which has been printed in the paper book prepared in this
case, purports to be the translation of a copy of the registered will dated 7th of October
1911 executed by Mahant Kishore Das. The document does not appear to have been
proved by any of the witnesses and does bear any exhibit mark. It has not been referred
to, even incidentally, in the judgment of either of the courts below and if as a matter of
fact such a will existed and Ishar Das had already been appointed a Mahant, there seems
to be no. conceivable reason why Kishore Das should execute another will just before
his death. We are further unable to see how this document came on the record at all.
Secondary Evidence and Document 30 Years Old – Presumptions
Mr. Achhru Ram argues that the document being more than 30 years old, there is a
statutory presumption available to it u/s. 90 of the Indian Evidence Act. But this
contention is altogether unavailing. The language of s. 90 of the Indian Evidence Act
requires the production of the particular document in regard to which the court is invited
to made the statutory presumption. If the document produced is a copy, admissible as
secondary evidence u/s. 65 of the Indian Evidence Act and is produced from proper
custody and is over 30 years old, then only the signatures authenticating the copy may
be presumed to be genuine; but production of a copy is not sufficient to raise the
presumption of the due execution of the original 'Basant Singh v. Brij Raj Saran Singh',
In this case no. foundation was laid for reception of secondary evidence u/s. 65 of the
Indian Evidence Act, nor can the copy produced be regarded as secondary evidence
within the meaning of s. 63. In these circumstances, we must hold that the will alleged to
have been executed by Kishore Das in the year 1911 has not been proved and the
translation of an alleged copy of it which has been produced in this case should be
excluded from consideration. As regards the will executed by Kishore Das just before
his death, we may agree with the trial judge that Kishore Das was not provied to have
been unconscious at the time when the will purports to have been executed, but the

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circumstances attending the execution of this document as well as its contents do not
incline us to attach any value to it. The will was executed only a few days before the
death of Kishore Das and on the very same day the lease which is challenged in this suit
was executed in favour of defendants 1 and 2. Sant Ram, one of the lessees, was
admittedly the agent of Kishore Das and was managing the properties of the
Thakardwara on his behalf. Ishar Das admitted in his deposition that Sant Ram was his
agent too and in his written statement he makes common cause with the lessees and does
not challenge the validity of the lease at all. So the court observed that, these
circumstances would lead us to think that Ishar Das was really a creature of Sant Ram
and as he is admittedly a nephew of Kishore Das, the latter, who was apparently under
the influence of Sant Ram, might have been prevailed upon to appoint his nephew along
with Lachman Das as manager after his death. It is pertinent to observe that Ishar Das
has not been appointed a Mahant by this will at all. In fact, the word 'Mahant"does not
occur in the will. He as well as Lachman Das were only appointed joint managers of the
endowed property after the death of the testator. The only thing in favour of the
defendants is that in the will Ishar Das has been described as a 'chela' of Kishore Das'
but in view of the circumstances mentioned above this description by itself is of very
little value. The evidence given by Ishar Das himself is not of such a character as could
inspire confidence. Although he says that he has been residing continually in the
Thakardwara ever since his initiation which happened many years ago, he does not
know who occupy the neighbouring houses. He says that he performed the 'Kirya karam'
or the last rites of Kishore Das but he could not tell what these ceremonies were. The
only thing that he remembers is that he had his head shaved and his beard and
moustaches removed as part of the ceremony. Strangely however, a photograph, which
he himself produces in court and which is supposed to be a picture of the gathering of
the 'Bhek' and the 'Sewaks' on the day of his appointment, shows him with long hair,
beard and moustaches, although the shaving, ceremony is said to have been performed
only for days before that date.
A number of witnesses have been examined by both sides on this point and while the
plaintiffs witnesses assert that Ishar Das, who was Sikh Jat by birth, never became a
Bairagi and never was adopted as a 'chela' by Kishore Das, the defendants' witnesses say

118
that he was in fact a 'chela' and lived with Kishore Das. We cannot place much reliance
upon oral evidence of such a character and basing our conclusion on the documentary
evidence referred to above, we have no. hesitation in holding in agreement with the
Subordinate Judge, that it has not been proved in this case that Ishar Das was the 'Chela'
of Kishore Das or that any 'chela' was left by Kishore Das at the time of his death. This
being our conclusion it is not necessary to go in the other question as to whether Ishar
Das was at all appointed a Mahant by the 'Bhek' and 'Sewaks' as alleged by him.
Points for Consideration
1. whether the plaintiff Sital Das was eligible for a appointment as Mahant of the
Thakardwara in accordance with the custom of the institution and
2. whether in fact he was so appointed.
As has been said already, although the authority to appoint the successor of a Mahant
rests with the 'Bhek' and the 'Sewaks' the appointment could be made only of a person
who was the disciple of the last Mahant and, failing that, was one spiritually connected
with him. It is well known that entrance into a religious order generally operates as a
civil death. The man who becomes an ascetic severs his connection with the members of
his natural family and being adopted by his preceptor becomes, so to say, a spiritual son
of the latter. The other disciples of his Guru are regarded as his brothers, while the co-
disciples of his Guru are looked upon as uncles and in this way a spiritual family is
established on the analogy of a natural family. The plaintiffs case is that he is a 'Bhatija
chela' of Mahant Kishor Das he being a descendant of the fourth degree from Ram
Krishna Das through whom Kishore Das also traced his spiritual lineage. Kishore Das
was admittedly a disciple of one Behari Das whose Guru Chetan Das was the disciple of
Ram Krishna Das. On the other hand Ram Krishna Das is said to have another disciple
named Brahm Das whose disciple Mangal Das was the Guru of Sadhu Ram Das and the
plaintiff Sital Das is admittedly a disciple of Sadhu Ram. If this story is believed to be
true, it is not disputed that Sital Das would rank as a 'Bhatija chela' or spiritual collateral
of Kishore Das. The trial judge accepted this story as correct and in support of his
decision relied upon the evidence of the plaintiff and some of the Mahant witnesses
examined by him. Reliance was also placed upon a judgment (Ex. P-3) given in Civil
Suit No. 24 of 1912 of the court of the Subordinate Judge, Jullundur in which Kishore

119
Das along with one Vidya Das figured as plaintiffs and Mangal Das, who was so to say
the spiritual grandfather of Sital Das, was one of the defendants. The High Court has
rejected the case of the plaintiff on this point substantially on two grounds.
According to the learned Judges, the evidence adduced by the plaintiff falls short of
establishing that Ram Krishna Das was the common spiritual ancestor of Kishore Das
and the plaintiff. The other ground assigned is that the judgment (Ex. P-3) is not
admissible in evidence under any of the provisions of the Indian Evidence Act and no.
reliance could consequently be placed upon it.
In our opinion neither of these grounds appears to be sound. Two of the Mahant
witnesses examined by the plaintiff said in their deposition that Sital Das was the
'Bhatija Chela' of Kishore Das. They mentioned the names of some of the spiritual
ascendants of both of them, though Ram Krishna Das was not specifically mentioned as
the common spiritual ancestor. Mahant Hira Das says in his deposition:
"Sital Das is not a 'Chela' of Kishore Das. He is his 'Bhatija chela' ...... Kishore Das was
'chela' of Behari Das. Behari Das was the 'chela' of Chetan Das .... The Guru of Chetan
Das was Ram Krishna Das"
According to this witness, Ram Krishna was the spiritual ascendant of Kishore Das. He
does not specifically say that Ram Krishna was a spiritual ancestor of Sital Das also and
no. such question seems to have been put to him. He says however definitely that Sital
Das was a 'Bhatija Chela of Kishore Das. Mahant Balak Das (C/P.W. 3) also says that
Sital Das is the 'Bhatija chela' of Kishore Das. He mentions the name of Sadhu Ram as
the Guru of Sital Das but could not say who was the Guru of Sadhu Ram or of Kishore
Das. Much fuller details have been given by the plaintiff in his deposition which runs as
follows:
"I am 'Bhatija chela' of Mahant Kishore Das. Behari Das was the Guru of Kishore
Das...... The name of my guru was Sadhu Ram. Sadhu Ram's Guru was Mangal Das.
The Guru of Mangal Das was Brahm Das. The Guru of Behari Das was Chetan Das. The
Guru of Chetan Das was Ram Krishna Das". The plaintiff's case really was that Ram
Krishna Das was the spiritual ancestor of both himself as well as of Kishore Das and the
only omission in his statement was that he did not say in so many words that Ram
Krishna Das was the Guru of Brahm Das. We think that this slight lacuna in the

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evidence upon which so much stress has been laid by the learned Judges of the High
Court could very well be deemed to have been filled up by the judgment (Ex. P-3). This
judgment, it is to be noted, was given in a suit instituted by two plaintiffs to wit, Kishore
Das and Vidya Das to set aside the alienation of property made by Mangal Das who was
the Mahant of a Thakardwara in Jullundur city. This Mangal Das was admitedly the
Guru of Sadhu Ram Das whose disciple the plaintiff is. Kishore Das, the succession to
whose office is the subject-matter of dispute in the present litigation was one of the
plaintiffs in the suit and he as well as Vidya Das based their right to impeach the
alienation of property made by Mangal Das on the ground of their being the spiritual
collaterals of the latter. In his judgment the Subordinate Judge of Jullundur set out a
pedigree which shows the relationship between Kishore Das and Vidya Das on the one
hand and Mangal Das on the other and this relation is traced through Ram Krishna Das,
the common ancestor.
Judgment of the Court
We agree with the High Court that in the absence of any evidence to show as to who
propounded this pedigree which the subordinate Judge acted upon, it is not possible to
say that it was an admission by Kishore Das through whom Ishar Das lays his claim and
consequently the pedigree would not be an admission relevant u/s. 21 of the Indian
Evidence Act. But the judgment itself, we think can be received in evidence u/s. 13 of
the Indian Evidence Act as a transaction in which Kishore Das, from whom Ishar Das
purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and
on that footing got a decree. The decree also recognised the right of Kishore Das to
institute the suit as such collateral. We think therefore that the judgment could be
received in evidence and although it is not by any means conclusive and has got to be
weighed and appraised for what it is worth, it can be used in support of the oral evidence
adduced in the case. It is to be noted that this part of the plaintiffs story was not
challenged by the defendants in their evidence at all. In our opinion therefore on the
evidence on the record it is fully established that Sital Das was a spiritual collateral of
Kishore Das.
Answer to the question as to whether the plaintiff was appointed a Mahant by the 'Bhek'
of the Bairagis and the 'Sewaks' of the Thakardwara, it seems to us that the decision

121
arrived at by the learned Judges of the High Court proceeds upon a misappreciation of
the evidence on record.
A full description of the events, that happened from the date of the death of Kishore Das
which took place on 4th of April 1945 down to 23rd July 1945 when Sital Das was said
to have been elected as Mahant, by the 'Bhek' and the 'Sewaks' contained in a register
kept by Mahant Ram Charan Das P. W. 3 which has been proved by him and made an
exhibit in this case. Ram Charan Das is a Shri Mahant and is the head of a Bairagi
Thakardwara at Nakodar. It is true that he belongs not to the Ram Kabir sect of Bairagis
but to an allied order called Ram Thamman, but it is not disputed that he is a Shri
Mahant of Ramanand Doaba Mandal which is a Mandal of Bairagis of Jullundur. It is
admitted by Mathura Das, a witness for defendants, that in the absence of the Shri
Mahant of one's own 'Sampradaya' Ram Charan was competent to give the Turban, that
is to say to appoint a Mahant. The story as told by Ram Charan Das in his deposition
and which is supported by the entries in the register (P. W. 3/2) is briefly as follows:
Kishore Das died on the 4th of April 1945. The 'Chautha' ceremony was performed by
Mahant Hira Das of Sahri Thakardwara and on the 16th of April 1945 the 'Kirya Karam'
was solemnised. Hira Das then proceeded to Hardwar with the earthly remains of
Kishore Das to immerse them in the Ganges. On the 17th of July 1945 Hira Das
presented a petition to the Mandal praying that a Mahant might be appointed forthwith
and it was not proper to keep the 'Gaddi vacant so long. It may be stated here that Hira
Das himself was a candidate for the office of the Mahant. On the 23rd July 1945 the
'Bhek' of the Bairagis and the 'Sewak's assembled at the Thakardwara at Jamsher
appointed the plaintiff Sital Das as Mahant. The report shows that Sital Das was a Sadhu
from his boyhood upwards and there was absolutely no. complaint against him. Ten or
twelve Mahants of the Bairagis of the locality were present at the gathering and so also
were a large number of worshippers. After 'Havan', the ceremony in connection with the
Pagri (Turban) was performed and the whole congregation touched the Pagri and Hira
Das tied it on the head of Sital Das. There is a complete record of these proceedings
which was signed by the worshippers present there and we do not think that its
genuineness can be seriously questioned. Besides Ram Charan Das, three other Bairagi
Mahants, who have been examined by the plaintiff, - fully support the story. One of

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these is Hira Das of Sahri institution who performed the last rites of Kishore Das and
took a leading part in the subsequent proceedings. The learned Subordinate Judge on a
consideration of the evidence came to the conclusion that the plaintiff's story was true
and that he was validly appointed a Mahant at the meeting held on the 23rd July 1945.
The High Court however differed from the view taken by the Subordinate Judge. In the
opinion of the learned Judges of the High Court, the meeting held on 23rd July 1945 was
not a proper meeting of the 'Bhek' and the 'Sewaks' entitled to appoint a Mahant of the
Jamsher Thakardwara. It is pointed out first of all that Ram Charan Das, who presided at
the meeting, did not belong to Ram Kabir sect to which the Thakardwara in dispute
belongs but to another sect known as Ram Thamman. The second thing said is this that
no. notice was given to the parent institution at Jaipur or to the Bairagis belonging to the
said locality. It is said in the third place that the three Bairagi Mahants, who were
examined on behalf of defendant No. 3, were certainly not invited. Lastly, it is pointed
out that the assembly did not apply their minds properly to the claim put forward on
behalf of Ishar Das who was appointed as successor in the last will of Kishore Das.
Opinion of the court
None of these reasons appear to be convincing. It may be stated at the outset that there is
no. evidence to show that the head institution of this particular sect is at Jaipur. All that
Ram Charan Das Says is this that there is a 'Gaddi' of Ram Kabir Math also at Jaipur.
On the other hand there is evidence adduced by the plaintiff to show that the head
institution was at Sahri of which Hira Das was the Mahant and Hira Das admittedly
performed the funeral rites of Kishore Das and took a leading part in the subsequent
transactions. It is true that Ram Charan Das did belong to the sect of Ram Thamman but
that was also a Bairagi sect of an allied order Ram Charan Das was admittedly the Shri
Mahant of the Doaba Mandal and it is clear from the evidence of the defendants' own
witnesses that he was held in high esteem by all the Bairagis and was deemed quite fit to
give the Pagri to a newly appointed Mahant. The three Mahants who deposed in favour
of defendant No. 3 and stated that they took part in appointing him as Mahant at a
meeting held on the seventeenth day after the death of Kishore Das may or may not have
spoken the truth. If they really took part in appointing Ishar Das as Mahant, they were
not certainly present at the gathering of the 23rd July 1945 but leaving aside these three

123
Bairagi Mahants the evidence on behalf of the plaintiff clearly shows that 10 or 12
Bairagi Mahants of the locality as well as vast number of 'Sewaks' were present at the
meeting held on the 23rd July 1945. It cannot be disputed therefore that the majority of
the Bairagis took part in appointing the plaintiff.
We are not told whether there is a practice in this institution to issue formal invitations
on such occasions and none of the witnesses examined on the defendants' side have
spoken to the issuing of formal notices before defendant No. 3 was said to have been
appointed. In our opinion, on the evidence as it stands the decision of the Subordinate
Judge appears to be correct and we would prefer it to that of the learned Judges of the
High Court. We hold there that Sital Das, the plaintiff, was eligible for appointment as a
Mahant and in fact was so appointed by the 'Bhek' and the Sewaks' assembled at
Jamsher Thakardwara on the 23rd of July 1945. In view of these findings it remains for
us to consider whether the lease in favour of defendants 1 and 2 which has been
challenged in this suit is supported by legal necessity and is binding on the institution.
On this point the finding of the Subordinate Judge was clearly against the lessees and it
appears from the judgment of the High Court that this finding of the trial judge was not
challenged before the learned Judges of the High Court at all. As the lease was not a
permanent one but was only for a period of 10 years, it could certainly be supported on
the footing of a transaction entered into in the ordinary course of management. The
Subordinate Judge found however that the document contained an untrue recital
regarding the payment of consideration and as a matter of fact the sum of Rs. 5, 000/-
stated to be paid as premium for the lease was not paid at all. The Subordinate Judge
further found that the rent reserved was grossly inadequate and it was not even one-
fourth of the profits which the properties would ordinarily fetch. The defendants 1 and 2
did not adduce any evidence in support of their case and did not make any attempt to
show whether having regard to the profit which could normally be realised from the
property the rent secured by the lease was a proper one. The lessees avoided the witness
box and, in these circumstances,, we are bound to hold that they failed to discharge the
burden which admittedly lay upon them of showing that the transaction was prudent act
of management on the part of the Mahant which it was within his competence to enter
into.

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The result therefore is that in our opinion the view taken by the Subordinate Judge is
right. Appeal is hence allowed; the judgment and decree of the High Court are set aside
and those of the trial Court restored. The plaintiff will have his costs from defendants. 1
and 2 of all the courts.
Appeal allowed.

Custom as a relevant fact

Saraswathi Ammal v Jagadambal and Another
1953 Indlaw SC 103, AIR 1953 SC 20160
Cases Referred
1. Shanmugathammal v Gomathi Ammal, 67 M.L.J. 861. 122 1934 Indlaw MAD 216
2. Narasanna v Oangu, I.L.R. 13 Mad. 133
3. Subbaratna Mudali v Balakrishnaswami Naidu, 33 M.L.J. 207
4. Subbaraya Pillai v Ramaswami Pillai, I.L.R. 23 Mad. 171 at page 177,
5. Balasundaram v Kamakshi Ammal, 71 M.L.J. 785 1936 Indlaw MAD 82
6. Abdul Hussein Khan v Soma Dero, I.L.R. 45 Cal. 450; 1917 Indlaw PC 14 (P.C.)
7. Tara v Krishna, I.L. R. 31 Bom. 495
Facts of the case
One Thangathammal who was a dasi (dancing girl) lived in the Tanjore district in Madras
State and died possessed of some properties. She left her surviving three daughters,
Saraswathi, Jagadambal and Meenambal. Jagadambal filed the suit out of which this appeal

60 Mehr Chand Mahajan and Sudhi Ranjan Das

125
arises against her sisters for partition of the movable and immovable properties set out in
the plaint and for allotment of a third share to her therein. She alleged that her mother was
married to one Thyagaraja Pillai, that the properties in suit were the stridhanam properties
of her mother who died intestate on 26th July, 1943, and that according to the law or
custom of the community to which the parties belonged she and her sisters were entitled to
share equally the properties of her mother Saraswathi Ammal, the 1st defendant contested
the suit. She pleaded that her mother was not a married woman but a dasi who followed her
hereditary occupation and was attached to Shri Saranatha Perumal temple at Tiruchurai in
the Tanjore district, that of the three daughters the plaintiff and the 2nd defendant married
and lived with their husbands, while she (1st defendant) was duly initiated as a dasi in the
said temple and remained unmarried and that according to the law and custom of the
community, the mother’s property devolved solely on her to the exclusion of the plaintiff
and the 2nd defendant. The 2nd defendant supported the 1st defendant’s case. The material
issue in the suit was issue No. 1 which was in these terms: “Who is the proper heir of
Thangathammal. Whether according to custom as set tip by the plaintiff, all the daughters
are heirs, or according to the custom put forward by the 1st defendant, -the unmarried
daughters alone are entitled to inherit. The Subordinate Judge dismissed the suit holding
that Thangathammal was a dasi and not a married woman, that according to the custom of
the dasi community in South India, a dasi daughter is regarded as a nearer heir to the
mother than a married daughter and that the 1st defendant was entitled to remain in
possession of the suit properties. Against this decision an appeal was taken to the High
Court. The High Court reversed the decree of the Subordinate Judge and held that the
custom pleaded by the 1st defendant was not proved and that the rule of propinquity of
Hindu law as a rule of justice, equity and good conscience, governed the succession and the
married and dasi daughters were equally entitled to the inheritance. It was further held that
a dasi daughter was not in the status of a maiden or unmarried daughter for purposes of
succession to stridhanam property. Leave to appeal to the Supreme Court was granted
under article 133 of the Constitution.
Contention of the Counsels
After bearing the learned counsel for the appellant, we feel no hesitation in concurring with
the decision of the High Court. It was contended that the High Court was in error in

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holding that the custom set up by the defendant was not proved. To prove the custom that a
dasi daughter was a preferential heir and excluded her married sister’s reliance was placed
on, the evidence of some members of the community and reference was also made to
certain instances same kind of evidence was led by the plaintiff support of her case. The
evidence of both the parties on the issue of custom is of an unsatisfactory and inconclusive
character and from it no inference can be drawn of the existence of a uniform, certain and
ancient custom prevailing in the community on this point. It was argued that the dasis have
a distinct status in Hindu society and, that a rule has been evolved by judicial decisions
under which the state of degradation by itself furnishes a rule of preference in a
competition -between dasi daughters and married daughters. The judicial decisions referred
to concern the community of prostitutes and the rule evolved concerning them has been
abrogated by later decisions. It was contended that though the said rule had been abrogated
and was no, longer applicable to that community concerning which it was evolved, it
should by analogy be applied to cases of succession to dasis. The learned counsel
attempted to persuade us to hold the custom pleaded proved by the assistance of decisions
given in analogous cases and by applying the principles of the rules said to have been,
enunciated in some of them. Those cases were decided on their own facts and in some of
them a rule was enunciated that degraded people are a class by themselves and their
degraded relations are preferential heirs to the undegraded ones. As already said, we cannot
subscribe to the view that any such rule can be evolved merely on logical grounds. Its
existence can only be justified on the basis of established custom. No trustworthy evidence
has been led in this case to establish that the daughters of a dasi by marriage lose their right
of inheritance and form a separate community. The correct approach to a case where a
party seeks to prove a custom is the one pointed out by their Lordships of the Privy Council
in Abdul Hussein Khan v Soma Dero61.
Judgment
It was there said that it is incumbent on a party setting up a custom to allege and prove the
custom on which he relies and it is not any theory of custom or deductions from other
customs which can be made a rule of decision but only any custom applicable to the parties
concerned that can be the rule of decision in a particular case. It is well settled that custom

61 I.L.R. 45 Cal. 450; 1917 Indlaw PC 14 (P.C.)

127
cannot be extended by analogy. It must be established inductively, not deductively and it
cannot be established by a priori methods. Theory and custom are antitheses, custom
cannot be a matter of mere theory but must always be a matter of fact and one custom
cannot be deduced from another. A community living in one particular district may have
evolved a particular custom but from that it does not follow that the community living in
another district is necessarily following the same-custom. The last point taken by the
learned counsel was that under Hindu laws the 1st defendant as a maiden was entitled to
preference over her married sisters. Defendant No. I was admittedly married to the idol and
she has been on her own show living a life of prostitution. The text of the Mitakshara
dealing with the case of a virgin cannot be applied to her case. Vide Tara v. Krishna I.L. R.
31 Bom. 495.It is inconceivable that when the sages laid down the principle of preference
concerning unmarried daughters, they would have intended to include a prostitute within
the ambit of that text. For the reasons given above we see no force in this appeal and it is
dismissed with costs.

128
 Section 13 of the Indian Evidence Act, 1872
Tirumala Tirupati Devasthanams v K.M. Krishnaiah
1998 Indlaw SC 1449; (1998) 3 SCC 331; AIR 1998 SC 113262
Cases Referred
1. Nair Service Society Ltd. v K.C. Alexander, AIR 1968 S.C. 1165
2. Srinivas Krishna Rao Kango v Narayan Devji Kango & Others, AIR 1954 SC 379
3. Sital Das v Sant Ram & Others, AIR 1954 SC 606
4. Dinamoni v Brajmohini, [1902] [ILR 29 Cal. 190 (198) (PC)]
5. Ram Ranjan Chakerbati v Ram Narain Singh, [1895 ILR 22 Cal 533 (PC)]; 1894 Indlaw
PC
6. Gorakhpur v Ram Sunder, [AIR 1934 PC 157 (61 IA 286)]; 1934 Indlaw PC 19
7. Asher v Whitcock, [1865 (1) QB 1]
8. Perry v Clissold, [1907 AC 73]
Facts of the Case
The Appellant (Tirumala Tirupati Devasthanams, hereinafter called the T.T.D. is the
defendant in the suit O.S. No. 51 of 1968 filed by the respondent-plaintiff in the Court of
the District Munsif at Tirupati. The suit was filed by the respondent for grant of permanent
injunction against the TTD in respect of AC 2.29 of land in Tirumala Hills. The trial Court
dismissed the suit holding that the plaintiff had proved neither title nor possession and that
the plaintiff who had trespassed into the property in October, 1967, was not entitled to
permanent injunction against the true owner, of the property, namely, the TTD. The
plaintiff filed an appeal and during the pendency of the appeal, the plaintiff had temporary
injunction in CMP 319 of 1969 in his favour only up to 28.8.1969 and was dispossessed on
30.8.1969 by the TTD. The plaintiff then filed an application CMP No 289 of 1970 on
25.7.70 under order 6 Rule 17 CPC (beyond 6 months from the date of (dispossession) for
amendment of plaint and converted the suit into one for possession. The appellate Court
too held that the plaintiff had proved neither title nor possession to the suit property. The
appeal was dismissed by judgment dated 5.8.1982. We may state here that both courts
relied upon the judgment of the Sub-Court, Chittoor dated 15.6.1942 in an earlier suit filed
by the TTD against the Hathiramji Mutt in 1937 (O.S. 51/1937) wherein that Court had

62 M. Jagannadha Rao and S.P. Bharucha

129
declared the TTD’s titled to this property. Such title was declared on basis of title deeds of
1887. Evidence of the Deity's possession from 1846 was adduced in that suit. Subsequent
to the decree dated 15.6.1942, the TTD filed E.P. No. 1 of 1946 against Hathiramji Mutt
and obtained delivery under Ex. B6 delivery receipt on 12.1.1946 through Court. After
failing in both Courts, the respondent plaintiff preferred second Appeal No 781 of 1982 in
the High Court. The learned Judge allowed the appeal by judgment dated 24.4.1987 and
passed a decree for possession in favour of the plaintiff observing that the suit was to be
treated as one based on 'possessory title, and that the plaintiff dispossessed on 30.8.1969
could recover possession from the appellant TTD unless the TTD proved title. The learned
Judge held that the oral evidence adduced by both sides was to be rejected and that the
TTD's title in respect of this extent of land of Ac 2.29 stood "extinguished" inasmuch as the
delivery receipt dated 12.1.1946 showed that some 'encroachers' were in possession of this
piece of land. Such a finding as to extinguishment of plaintiff's title was given for the first
time in second Appeal, even though there was no such issue in the courts below. Against
the said judgment in Section Appeal, decreeing the suit for possession, this Civil Appeal
has been preferred by the TTD.
Contention of counsel for TTD
Learned senior counsel for the TTD, sri Soli J. Sorabjee contended before us that it was not
open to the second Appellate Court to reappreciate evidence and reject the oral or
documentary evidence which was accepted by the courts below and that it was also not
open to the Court in Second Appeal to hold that the TTD’s title stood “extinguished” when
there was no such issue framed in the lower courts. If the suit was to be decided only on the
basis of possessory title, as even accepted by the Second Appellate Court and if s. 6 of the
Specific Relief Act 1963 was, even according to the said court, not available to the
plaintiff,- because the application for amendment to convert the suit into one for possession
was filed on 25.7.1970, beyond 6 months from the date of dispossession i.e. 30.6.69, -the
suit for possession was liable to be dismissed as the TTD had proved titled and the said title
was subsisting and was never extinguished.
Contention of the Respondent Counsel
On the other hand, it was contended by Sri A.T.M. Sampath, learned counsel for the
respondent-plaintiff that the earlier judgment in OS 51/1937 - Sub-Court, Chittoor was

130
rendered in a suit by the TTD against the Hathiramji Mutt and that the present plaintiff was
not a party thereto and hence any declaration as to title in favour of the TTD given therein
in respect of the suit property was not admissible or binding in the present suit. He also
contended that the delivery receipt Ex.B6 dated 12.1.1946 in the earlier suit OS 51/1937 in
favour of the TTD showed that the TTD was given possession of 0.06 cents in S.No. 669/2
and 0.39 cents in S.No.669/1 only and that so far as Ac 2.29 in S. No. 669/2 was
concerned, it was stated in the said receipt that extent of land was being cultivated by
‘encroachers’. He, therefore, contended that TTD was not put in possession of the suit
property on 12.1.1946. According to him, the plaintiff’s family from the time of his
grandfather Chengaiah was in possession of the Ac 2.29 for over 60 years right up to the
filing of the present suit on 14.2.1968 and hence the learned Judge was right in holding that
TTD's title to this extent of Ac 2.29 stood ‘extinguished’.
Points for Consideration before the Court
In view of the above contentions, the following three points arise for consideration:
1. Whether the judgment in OS 51 of 1937, Sub-Court, Chittoor dated 15.6.1942
declaring the title of the TTD, was admissible and could be relied upon by the TTD
as evidence in the present case, even though present plaintiff was not a party to OS
51 of 1937?
2. Whether it was open to the Second Appellate Court to reappreciate the evidence and
hold that the oral evidence adduced by the parties was not acceptable and that in
view of the recitals in Ex B6 delivery receipt dated 12.1.1946, the title of the TTD
was to be deemed ‘extinguished’ and whether this could be done when there was no
such issue raised in the courts below?
3. Whether, in case we should hold on Point 2 that the Second Appellate Court could
not hold that the TTD's title stood extinguished, the decree for possession based on
possessory title as granted by the Second Appellate Court, could be sustained?
Point 1
Is, therefore, unsupportable. We accordingly set aside the same and hold that the TTD
continues to have absolute title to the property of Ac 2.29 in S.N. 669/1 and 669/2 and that
its title never stood ‘extinguished’.
Point 2 is decided accordingly against the plaintiff and in favour of the appellant.

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Point 3: We have already state that after the plaintiff filed the first appeal, the temporary
injunction expired on 28.8.1969 and the TTD dispossessed the plaintiff on 30.8.1969. The
plaintiff did not claim any relief within six months u/s. 6 of the Specific Relief Act, 1963
but applied on 25.7.1970, beyond 6 months from date of dispossession, for amendment of
plaint converting the suit into one for possession.
Judgment
Before parting with the case, we must also state that the respondent-plaintiff has filed
certain additional documents in this appeal in IA 1 of 1991 purporting to be certified copies
of Inam Fair Register, Inam B Register, Resettlement Register, Inam Title Deed etc. said to
have been obtained from the office of the District Collector, Chittoor bearing dates 10.4.90
and 4.5.90 etc. In that IA, a detailed counter has been filed by the Department of Survey
and Land Records, TTD stating that on enquiry in the office of the District Collector,
Chittoor it was learnt that no such certified copies were issued by that office to the plaintiff
and that the copies are false documents and appear to have been obtained with the help on
his close relative one Kumaraswamy, worker in the Record Room of the Collector's office,
who was closely related to the plaintiff. These copies are said to be not true copies of the
originals but contain false recitals showing a grant by the Government in favour of the
plaintiff's maternal grandfather instead of the Deity. The counter filed by the Department
says that the copies filed are not genuine and are forged documents. No doubt, plaintiff
filed a rejoinder stating that he had applied for copies and got them but he does not know
who prepared them and that Kumaraswamy is not related to him. Be that as it may, be
make it clear that the plaintiff's counsel did not choose to rely on those documents filed in
IA 1 of 1991 before us. If he had relied upon them, we would have considered if it was a fit
case for ordering an inquiry into the genuine of these documents. The IA, in the
circumstances, is dismissed. In the result, the Civil appeal is allowed as stated above and
the IA 1 of 1991 is dismissed. Appeal allowed

132
 Sec 24-31
Law relating to Admission and Confession
Banarsi Das v Seth Kanshi Ram and Others
1962 Indlaw SC 415; AIR 1963 SC 116563
Principle - Contracts & Commercial - Practice & Procedure - Trusts & Associations -
Evidence Act, 1872, s. 17 - Partnership Act, 1932, s. 43 Civil Procedure Code, 1908, O. 20,
r. 15
Facts of the Case
“The plaintiff Kundanlal and the defendants 1 to 5 Banarsi Das, Kanshi Ram, Kundan Lal,
Munnalal, Devi Chand sandshoe Prasad are brothers and formed a joint Hindu Family, till
the year 1936.Amongst other properties the family owned a sugar mill at Bijnor in Uttar
Pradesh called “Sheo Prasad Banarsi das Sugar Mills”.
After the disruption of the family the brothers decided to carry on the business of the said
sugar mill as partners instead of as members of a joint Hindu Family. The partnership was
to be at will and each of the brothers was to share all the profits and losses equally. The
mill was to be managed by one of the brothers who was to be designated as the managing
partner and the agreement arrived at amongst the brothers provided that for the year 1936-
37, which began on September 1, 1936, the first defendant Banarsi Das, who is the
appellant in Civil Appeals 94 to96 of 1960, was to be the managing partner. The agreement
provided that for subsequent years the person unanimously nominated by the brothers was
to be the managing partner and till such unanimous nomination was made, the person
functioning as managing partner in the previous year must continue. For the years 1941-44,
Kundanlal was the managing partner. On May 13,1944, She o Prasad defendant No. 5 now
deceased, instituted a suit in the court of the Sub ordinate judge, First Class, Lahore, for
dissolution of partnership and rendition of accounts against Kundanlal and joined the other
brothers as defendants to the suit, In the course of that suit the court, by its order dated
August 3,1944, appointed one Mr. P. C. Mahajan, Pleader, as Receiver but as the parties
were dissatisfied with the order the matter was taken up to the High Court in revision
where they came to terms. In pursuance of the agreement between the parties the High
Court appointed Kanshiram as Receiver in place of Mr. Mahajan as from April 5,1945. In

63 J.R. Madholkar, K. Subba Rao, N. Rajagopala Ayyangar and Syed Jaffer Imam, JJ

133
the meanwhile, the District Magistrate, Bijnor took over the mill under the Defence of
India Rules and appointed Kundanlal and his son to work the mill as agents of the U. P.
Government for the year 1944-45. This lease was renewed by the Government for the year
1945 46. On August 28,1956, the parties, except Devi Chad, made an application to the
Court at Lahore praying that the Receiver be ordered to execute a lease in favours' of
Banarsidas for a period of five years. It may be mentioned that this application was made at
the suggestion of the District Magistrate; Bijnor. The Subordinate Judge made an order in
terms of the application. In September 1946, Banarsidas obtained possession of the mill. It
may be mentioned that Sheo Prasad had in the meanwhile applied to the court for
distribution amongst the erstwhile partners of an amount of Rs. 8,10,000/(out of the total of
Rs. 8,30,000/-) which was lying with the Receiver and suggested that the amount which fell
due to Kundanlal and Banarsidas should be withheld because they had to render accounts.
However, the aforesaid amount lying with the receiver was distributed amongst-all the
brothers and Devi hand acknowledged receipt on November 14, 1946. On October 11
1947, the Lahore suit was dismissed for default, the parties having migrated to India
consequent on the partition -of the country. On November 8,1947, Sheo Prasad instituted a
suit before the court of Civil judge, Bijnor against his brothers for a permanent injunction
restraining Banarsidas from acting as Receiver. The suit, however, was dismissed on March
3,1948. On July 16, 1948, Sheo Prasad transferred his 1/6th share to Banarsidas and since
then Banarsidas has been getting the profits both in respect of his own share as well as in
respect of that of SheoPrasad. 8. On October 7,1948, the suit out of which these appeals
arise was instituted by Kundanlal against all his brothers claiming the reliefs set out in para
29 of the plaint.
“The relief by the lower court are as follows:
a) That it may be declared that the partnership of the Shiv Prasad Banarsi Das Sugar
Mills, Bijnor between the parties was dissolved on 13th May, 1944 and if in opinion
of the court the partnership is still in existence, the court may be pleased to dissolve
it. Valued at Rs. 5000.
b) That an account be taken from defendants I and 2 or any of them and decree be
passed in favour of the plaintiff for the amount that may be found to be due to the

134
 plaintiff on account of his share in the assets and profits and sums of money in their
possession Valued at Rs. 500.
c) That a pendent late interim Receiver may be appointed for the Seth Shiva Prasad
Banarsi Das Sugar Mills, Bijnor.
d) Any other relief which the plaintiff may be entitled against any or either of the
defendants as the court may deem fit to grant.
e) Costs may be awarded to the plaintiff."
Decision of the HC
Three appeals were preferred before the High Court against this decision. One was by
Kanshi Ram, another by Banarsidas and the third was by Munnalal. It may be mentioned
here that the suit has been decreed ex-parte against both Kanshi Ram and Munna Lal. It
may also be mentioned that even in the appeals the winding up of the partnership business
and the appointment of Mr. Kashi Nath as Commissioner for this purpose was not
challenged by any party to the appeals. These appeals were heard together and were
disposed of by a common judgment by the High Court on March 15, 1958. The High Court,
in effect, dismissed the appeals of Banarsidas and Munnalal but granted partially the appeal
of Kanshi Ram.
Contention of the HC
Devi hand and Munnalal wanted that the winding up order should be set aside while
Kundanlal wanted that it should be upheld but that he should not be asked to render any
accounts. Kanshi Ram contended that the suit was barred by time and that at any rate he
should not be called upon to account. The appellant Banarsidas wanted that the winding up
order should be maintained and also wanted that accounts should be rendered both by
Kundanlal and Kanshi Ram. The ground on which the High Court dismissed the suit was
that the suit for accounts was barred by Art.106 of the Limitation Act. It was, however,
contended before the High Court on behalf of the plaintiff that although a suit for accounts
and share of profits may be barred by time, the suit in so far as it related to the distribution
of the assets of the dissolved firm was not barred by limitation as such a suit falls outside
Art. 106 of the Limitation Act. This contention was also rejected by the High Court and it
held that not only the claim for accounts and share for profits was time-barred but also the
claim for distribution of the assets of the dissolved firm was time-barred. The High Court

135
was alive to the fact that the plea of limitation was not taken by any of the defendants in the
trial court but was of the opinion that the plaint itself disclosed that the Suit was barred by
time and, therefore, it was the duty of the court under s. 3 of the Limitation Act to dismiss
it. It was then contented before the High Court on behalf of the plaintiff that as in none of
the appeals preferred before it the appellants had questioned that portion of the decree
which granted the plaintiff the relief of a share in the assets of the partnership and therefore
it ought not to be interfered with.
Contention in Appeal
The points raised by Mr. Veda Vyasa on behalf of Banarsidas are these:
1. Under the Partnership Act, the partners are entitled to have the business of the
partnership wound up even though a suit for accounts is barred under Art. 106 of
the Limitation Act.
2. Kanshi Ram having been appointed a Receiver by the Court stood in a fiduciary
relationship to the other partners and the assets which were in his possession must
be deemed to have been held by him for the benefit of all the partners. Therefore,
independently of any other consideration, he was bound to render accounts.
3. The question of' limitation was not raised in the plaint or the grounds of appeal
before the High Court and as it is a mixed question of fact and law, it should not
have been made this foundation of the decision of the High Court. If it was thought
necessary to allow the point to be raised in view of the provisions of s. 3 of the
Limitation Act, the courts should at least have followed the provisions of O. 41, r.
25, Code of Civil Procedure, and framed an issue on the point and remitted it for a
finding to the trial court.
4. The Court was wrong in holding that limitation for the suit commenced on May 13,
1944.
5. The High Court was wrong in resorting to the provisions of O.41, r.33, of the Code
of Civil Procedure. Before we consider the points raised by Mr. Veda Vyasa, we
would like to point Out that at the commencement of the argument, Mr. Veda
Vyasa made an offer that if all the parties agreed, Banarsidas was prepared to waive
his claim for accounts against Kundanlal and Kanshi Ram provided that the decree
of the trial court was restored in other respects.

136
Contention of the respondents
On the other hand, it was contended on behalf of some of the respondents that the
partnership being one at will, it must be deemed to have been dissolved from the date on
which the suit for dissolution was instituted and in this connection reference was made to
the provisions of sub-s. (1) of s. 43 of the Partnership Act which reads thus:
“Where the partnership is at will, the firm may be dissolved by any partner giving notice in
writing to all the other partners of his intention to dissolve the firm”.
The argument seems to be based on the analogy of suits for partition of joint Hindu family
property, with regard to which it is settled law that if all the parties are majors, the
institution of a suit for partition will result in the severance of the joint status of the
members of the family. The analogy however cannot apply, because, the rights of the
partners of a firm to the property of the firm are of a different character from those of the
members of a joint Hindu family.
Question before the Court?
(A) Whether admission made by a person is binding on him?
Held, an admission in so far as facts are concerned would bind maker of admission but
not in so far as it relates to a question of law
In the plaint in the present suit, the plaintiff Kundanlal alleged in para 10 that the
partnership being at will it stood dissolved on May 13, 1944, when She o Prasad filed suit
No105 of 1944 in the court of the Sub-Judge, Lahore. No doubt, as pointed out by the High
Court, Banarsidas has admitted this fact in his written statement at no less than three places.
The admission, however, would bind him only in so far as facts are concerned but not in so
far as it relates to a question of law. It is an admitted fact that the partnership was at will.
Even so, Mr. Veda Vyasa points out, the mere filing of a suit for dissolution of such a
partnership does not amount to a notice for dissolution of the partnership. In this
connection, he relies upon 68, Corpus Juris Secundum, P. 929. There the law is stated
thus:

137
The mere fact that a party goes to court asking for dissolution does not operate as notice of
dissolution., He then points out that under O.20, r. 15, of the Code of Civil Procedure, a
partnership would stand dissolved as from the date stated in the decree, and that as the
Lahore suit was dismissed in default arid no decree was ever passed therein it would be
incorrect even to say that the partnership at all stood dissolved because of the institution of
the suit.
Judgment
We are clearly of opinion that the High Court was in error in allowing the plea of limitation
to be raised before it particularly by defendants who had not even filed a written statement
in the case. We do not think that this was a fit case for permitting an entirely new point to
be raised by a non-contesting party to the suit. In view of our decision on this point, it
would follow that the High Court's decision must be set aside and that of the trial court
restored. We may, however, mention that some of the parties including the appellant
Banarsidas and the plaintiff-respondent, Kundenlal as well as the defendant/respondent
Kanshi Ram were agreeable to certain variations in the decree. But as there were other
parties besides them to whom these variations are not acceptable, we are bound to decide
the appeals on merits. For the aforesaid reasons, we allow the appeals of Banarsidas and
Kundanlaland restore the decree of the trial court but make no order as to costs.
Along with the appeals, we heard two Civil Miscellaneous Petitions; Nos. 1482 of 1962
and 1534 of 1962.The first is to the effect that the lease granted by this Court during the
pendency of these appeals should be terminated early. It is said that the reason why the
term of five years was fixed was that this Court was seized with the litigation and it was
expected to last for five years. But as it happens, it has terminated within about a year and a
half and therefore there is no reason for the lease to continue. Apart from the fact that it
would not be in the interest of the parties to determine the lease before its expiry we doubt
whether we can legally do SO. We, therefore, reject this application. As regards the other
application, it is agreed between parties that it should be considered by the Receiver when
the assets are distributed.
We may also mention that during arguments it was stated before us on behalf of Banarsidas
that he had installed some new machinery for the efficient running of the mill and that
before the mill is sold, he should be allowed to remove the machinery. It was suggested

138
that perhaps it would be in the interest of all the parties if the mill is sold along with the
new machinery at the date of sale. The other parties, however said that it would be best if
Banarsidas removes the machinery before the expiry of the lease. In the circumstances, we
can give no direction in the matter. It will be open to the parties, however, to agree upon
the course to be adopted when the Receiver sets about selling the machinery, or if they do
not agree, to obtain directions from the High Court. Dismissing the petition and the Civil
Miscellaneous Petitions, No order as to costs was passed.
Admission section 17, 21 and 145 of the Indian Evidence Act, 1872
Admission is substantive evidence of the fact admitted while a previous statement used to
contradict a witness does not become substantive evidence and merely serves the purpose
of throwing doubt on the veracity of the witnesses.
Indian Evidence Act, 1872, ss. 17, 21, and 145 - Whether Revenue entries can be
considered as conclusive evidence of the severance of a Joint Hindu family? –
Whether admissions duly proved are admissible evidence irrespective of whether the party
making them appeared in the witness box or not and whether that party when appearing as
witness was confronted with those statements in case it made a statement contrary to those
admissions? –
There is a strong presumption in favour of Hindu brothers constituting a joint family. It is
for the person allying severance of the joint Hindu family to establish it. There is however
nothing surprising if the mutation entry had been made without the knowledge of the
appellants who were minors at the time –
Held - Revenue entries all by themselves are not conclusive proof as the Revenue
Authorities do not make any regular enquiry about the devolution of title - Held, further, a
previous statement used to contradict a witness does not become substantive evidence and
merely serves the purpose of throwing doubt on the witness.

139
 Bharat Singh and Another v Bhagirathi
1965 Indlaw SC 176; AIR 1966 SC 40564
Facts of the Case
The plaintiffs, Bharat Singh and Kirpa Ram, are the sons of Ram Narain. They had another
brother Maha Chand, whose widow is Bhagirti, the defendant. The plaintiffs alleged that
they and Maha Chand constituted a joint Hindu family, that Maha Chand died as a member
of the joint Hindu family and that thereafter Maha Chand's widow lived with the plaintiffs
who continued to be the owners and possessors of the property in suit, the widow being
entitled to maintenance only. They also alleged that it was by mistake that the defendant's
name was mutated in the village records in place of Maha Chand, who died on September
16, 1925. They further alleged that the defendant lost her right to maintenance due to her
leading an unchaste life.
Contention of the parties
This contention, however, was not accepted by the Courts below and is no more for
consideration. It was on the other allegations that the plaintiffs claimed a declaration that
the entry of the defendant's name in the column of ownership in the Jamabandi papers was
wrong, that they were the owners and possessors of the property in suit and that the
defendant had no right therein. They also claimed a permanent injunction against the
defendant restraining her from alienating or leasing any of title properties in favour of any
person or causing interference of any kind in the possession of the plaintiffs.
Contention of the Defendant
The defendant contested the suit alleging that her husband Maha Chand, along with the
plaintiffs, did not constitute a joint Hindu family at the time of his death, that he was
separate from the plaintiff's and that he was living separate from them, that the property In
suit was neither ancestral property nor the property of the joint Hindu family that the

64 Raghubar Dayal, A.K. Sarkar and Vaidynathier Ramaswami, JJ

140
plaintiffs and Maha Chand were owners of agricultural land as co-sharers out of which one
third share belonged to Malta Chand and that therefore the entry in her favour in the
Jamabandi papers was correct. She also claimed right to Maha Chand's share on tile basis
of custom. This contention, however, was not accepted by the Courts below and is not now
open for consideration. Bhagirti further contended that the suit was not within time as she
had become owner and possessor of the land in suit in 1925. The suit was brought in 1951.
Opinion of High Court
The High Court did not use the admissions of Bhagirti, defendant, in certain documents
about the existence of the joint Hindu family or a joint Hindu family firm as she, when 'in
the witness box, was not confronted with those admissions and as those documents, if read
as a whole, did not contain any admissions on behalf of Bhagirti that there was any joint
family stilt in existence.
Question before the Court
The sole question for determination in this Court is whether the plaintiffs and Maha Chand
constituted a joint Hindu family at the time of the latter's death. Having considered the
evidence on record and the submissions made on behalf of the parties, we are of opinion
that the trial Court took a correct view of the, evidence on record. There is a strong
presumption in favour of Hindu brothers constituting a joint family. It is for the person
allying severance of the joint Hindu family to establish it. It is to be noticed in the present
case that the defendants did not state in the written statement as to when disruption took
place in the joint family. The High Court too has not given any clear- cut finding with
regard to the time when disruption took place in the joint family. The way it has expressed
itself indicates that no joint Hindu family existed after the death of Ram Narain, father of
the plaintiffs and Maha Chand.
Judgment
Allowing the Appeal, the court held that- We are therefore of opinion that the mere fact of
the mutation entry being made in favour of Bhagirti on the death of Maha Chand is no clear
indication that there was no joint Hindu family of the plaintiffs and Maha Chand at the time
of the latter's death.
We are of opinion that the evidence of the plaintiffs on record establishes that there had
been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a

141
member of the joint Hindu family. It follows that the entries in the Jamabandis showing
Bhagirati as the owner of one-third share are wrong and that the decree of the trial Court is
right. The question of limitation may be briefly disposed of. There is no good evidence on
record to establish that the respondent, prior to 1950, asserted that she had any right
adverse to the plaintiffs over the property in suit or that she acted any manner which would
amount to an ouster of the plaintiffs. Admittedly the dispute between the parties arose
sometime in 1944. Prior to that there could. be no reason for her acting adversely to the
interests of the plaintiffs. It was really in about 1950 that she leased certain properties and
transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly
not barred by limitation. We therefore allow the appeal, set aside the decree of the Court
below and restore the decree of the trial Court. We further direct the respondent to pay the
costs of the appellants in the High Court and this Court.

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 Relevance on Confession before the Police and its admissibility
Aghnoo Nagesia v State of Bihar65
Citation-1965 Indlaw SC 131, AIR 1966 SC 119, 1966 CRLJ 100, [1966] 1 S.C.R. 134
Cases Referred
1. Faddi v. The State of Madhya Pradesh
2. Nisar Ali v. State of U.P, A.I.R. 1957 S.C. 366
3. Dal Singh v. King Emperor, L.R. 44 I.A. 137 1917 Indlaw PC 23
4. Pakala Narayanaswami v. The King Emperor, [1939] L.R. 66 I.A. 66, 81
5. Palvinder Kaur v. The State of Punjab, [1953] S.C.R. 94, 104 1952 Indlaw SC 50
6. State of U.P. v. Deoman Upadhyaya, [1961] 1 S.C.R. 14, 21 1960 Indlaw SC 462.
7. Hanumant v. State of U.P., [1952] S.C.R. 1091, 1111 1952 Indlaw SC 89
8. Harji v. Emperor, A.I.R. 1918 Lah. 69.
9. Noor Muhammad v. Emperor, (1925) 90 I.C. 148,
10. Emperor v. Harman Kisha, [1935] I.L.R. 59 Dom. 120.,
11. King Emperor v. Kommoju Brahman, I.L.R. 119401 Patna, 301, 308, 314 1939 Indlaw
PAT 33
12. Adimoola Padayachi v. State , [1960] M.W.N. -28
13. State of Rajasthan v. Shiv Singh, A.I.R. 1962 Rajasthan 3 1960 Indlaw RAJ 89
14. Legal Remembrancer v. Lalit Mohan Singh Roy, [1922] I.L.R. 49 Cal. '167
15. Bharosa Ramdayal v. Emperor, A.T.R. 1941 Nag. 86 1940 Indlaw MUM 137.
16. Kartar Singh v. State, A.I.R. 1952 Pepsu 98 1952 Indlaw PNH 30,
17. Ram Singh v. The State, [1952] I.L.R. 2 Rajasthan 93 1951 Indlaw PNH 75
18. Lachrymose Mundane v. The State of Bihar, A.I.R. 1964 Patna 210 1963 Indlaw PAT
119
19. State of U.P. v. Deoman Upadhyaya, [1961] 1 S.C. R. 14 at 26, 44 1960 Indlaw SC
462.
Facts of the Case and Arguments of the Prosecution
The appellant was charged under s. 302 of the Indian Penal Code for murdering his aunt,
Ratni, her daughter. Chamin, her son-in-law, Somra and Dilu, son of somra. He was
convicted and sentenced to death by the Judicial Commissioner of Chotanagpur. The High

65 Bench: R.S. Bachawat, K. Subba Rao, Raghubar Dayal

143
Court of Patna accepted the death reference, confirmed the conviction and sentence and
dismissed the appeal preferred by the appellant. The appellant now appeals to this Court by
special leave. The prosecution case is that on August 11, 1963 between 7 a.m. and 8 a.m.
the appellant murdered Somra in a forest known as Dungijharan Hills and later Chamin in
Kesari Garha field and then Ratni and Dilu in the house of Ratni at village Jamtoli. The
first information of the offences was lodged by the appellant himself at police station
Palkot on August 11, 1963 at 3-15 p.m. The information was reduced to writing by the
officer-in-charge, Sub-Inspector H. P. Choudhury, and the appellant affixed his left thumb-
impression on the report. The Sub Inspector immediately took cognizance of the offence,
and arrested the appellant. The next day, the Sub Inspector in the company of the appellant
went to the house of Ratni, where the appellant pointed out the dead bodies of Ratni and
Dilu and also a place in the orchard of Ratni covered with bushes and grass, where he had
concealed a tangi. The appellant then took the Sub Inspector and witnesses to Kasiari garha
khet and pointed out the dead body of Chamin lying in a ditch covered with Ghanghu. The
appellant then took the Sub Inspector and the witnesses to Dungijharan Hills, where he
pointed out the dead body of Somra lying in the slope of the hills to the north. The Sub
Inspector also recovered from the appellant's house a chadar stained with human blood.
The evidence of P.W. 6 shows that the appellant had gone to the forest on the morning of
August 11, 1963. The medical evidence discloses incised wounds on all the dead bodies.
The injuries were caused by a sharp-cutting weapon such as a tangi. All the four persons
were brutally murdered. There is no eye-witness to the murders. The principal evidence
against the appellant consists of the first information report, which contains a full
confession of guilt by the appellant. If this report is excluded, the other evidence on the
record is insufficient to convict the appellant.
Question before the Court of Law in Appeal
The principal question in the appeal is whether the statement or any portion of it is
admissible in evidence.
Contention of the Appellants
On behalf of the appellant, it is contended that the entire statement is a confession made
to a police officer and is not provable against the appellant, having regard to S. 25 of the
Indian Evidence Act, 1872. On behalf of the respondent, it is contended that S. 25

144
protects only those portions of the statement which disclose the killings by the appellant
and the rest of the statement is not protected by s. 25. Section 25 of the Evidence Act is
one of the provisions of law dealing with confessions made by an accused. The law
relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and
ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the
Evidence Act are too he found under the heading "Admissions". Section 154 of the Code
of Criminal Procedure provides for the recording of the first information. The
information report as such is not substantive evidence. It may be used to corroborate the
informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act,
if the informant is called a,,; a witness. If the first information is given by the accused
himself, the fact of his giving the information is admissible against him as evidence of
his conduct under s. 8 of the Evidence Art. If the information is a non-confessional
statement, it is admissible against the accused as an admission under s. 21 of the
Evidence Act and is relevant.. The accused is entitled to insist that the entire, admission
including the exculpatory part must be tendered in evidence.

For the purposes of the case, we shall assume that the appellant was constructively in
police custody and therefore the information contained in the first information report
leading to the discovery of the dead bodies and the tangi is admissible in evidence. The
entire evidence against the appellant then consists of the fact that the appellant gave
information as to the place where the dead bodies were lying and as to the place where
he concealed the tangi and that the discovery of the dead bodies and the tangi in
consequence of the information, the discovery of a blood-stained chadar from the
appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of
August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses
under s. 302 of the Indian Penal Code. In the result, the appeal is allowed, the conviction
and sentence passed by the Courts below are set aside, and the appellant is directed to be
set at liberty forthwith.

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 Statements of the Accused and its relevancy under section 20, 26 IEA etc
Manoj Suryavanshi v State of Chhattisgarh66
Citation : 2020 Indlaw SC 244
Principles and Law established
Section 20, 26 of IEA , Direct Evidence, Death Penalty- Mitigating and Aggravating
Factors’ Provisions etc
Cases Referred
Digamber Vaishnav v. State of Chhattisgarh (2019) 4 SCC 522
Anjan Kumar Sarma v. State of Assam (2017) 14 SCC 359
Ganpat Singh v. State of Madhya Pradesh (2017) 16 SCC 353
Chhannu Lal Verma v. State of Chhattisgarh (2019) 12 SCC 438
Santa Singh v. State of Punjab (1976) 4 SCC 190 1976 Indlaw SC 169,
Rajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706 2011 Indlaw SC 678
Ajay Pandit @ Jagdish v. State of Maharashtra (2012) 8 SCC 43 2012 Indlaw SC 213.
Bachan Singh v. State of Punjab (1980) 2 SCC 684.
Gurvail Singh v. State of Punjab (2013) 2 SCC 713 2013 Indlaw SC 72 and Amit v.
State of Uttar Pradesh (2012) 4 SCC 10
Kalu Ram v. State of Rajasthan [2015) 16 SCC 492,
Sudam v. State of Maharashtra (2019) 9 SCC 388 and
Baba Vishwakarma v. State of M.P. (2019) 9 SCC 689.
Shaikh Ayub v. State of Maharashtra (1998) 9 SCC 521 1998 Indlaw SC 1501,
Allaudin Mian v. State of Bihar (1989) 3 SCC 5 1989 Indlaw SC 577,
Dharmedrasinh v. State of Gujarat (2002) 4 SCC 679 2002 Indlaw SC 246,

66 Bench : M.R. Shah, Uday Umesh Lalit, Indira Banerjee; The Judgment was delivered by : M.R. Shah,
J.

146
Nemu Ram Bora v. State of Assam & Nagaland (1975) 1 SC 318,
Brajendra Singh v. State of M.P. (2012) 4 SCC 289 2012 Indlaw SC 75.
Leema Ram v. State of Haryana [AIR 1999 SC 3717 1999 Indlaw SC 564
Leave granted.
Feeling aggrieved and dissatisfied with the impugned judgment and order dated
08.08.2013 passed by the Division Bench of the High Court of Chhatisgarh at Bilaspur
in Criminal Appeal No. 550 of 2013 and Criminal Reference No. 05 of 2013, by which
the Division Bench of the High Court has dismissed the said appeal preferred by the
appellant-original accused and has confirmed the judgment and order of conviction and
death sentence awarded by the learned Trial Court for the offences punishable under
Section 302 of the IPC for having killed the three minor children of the complainant
Shivlal - P.W.18 and also for the offences punishable under Section 364 of the IPC. the
original accused has preferred the present appeal.
Facts of the Case
As per the case of the prosecution, at 7.00 AM on 11.02.2011, two sons of one Shivlal-
original complainant - Vijay aged about 8 years, Ajay aged about 6 years and Kumari
Sakshi aged about 4 years left their home in Darripara to attend the school at
Karaihapara and reached the school. On the school getting over at 11.30 AM, the three
minors left the school for home on foot. When they did not reach home, Shivlal-P.W.18
looked for the children in the vicinity and went to school and enquired about the
children. On enquiry at the school, the teachers of the minor children told Shivlal that
the three minors had come to the school and on the school getting over they had left the
school for home on foot. That, thereafter Shivlal and others looked for the three minors.
On not finding the three minor children, Shivlal-P.W.18 went to the police station,
Raipur and lodged the Missing Person Report. The missing person report was registered
in the Daily Journal (Ex. P-18) by the Head Constable Krishna Kumar Koshle-P.W.17.
During the search of three minor children, one Ashok Patel-P.W.8 stated that he had
seen the minor children along with the appellant-accused near the school. As per the
case of the prosecution, on 11.02.2011, Rameshwar-P.W.11 contacted the accused on
cell-phone and talked with him and the accused asked Shivlal-P.W.18 how he was
feeling when his children are missing. According to the prosecution, the accused was

147
working as labourer in the house of Shivlal. It was alleged that the wife of the accused,
namely Sumrit Bai, eloped with the younger brother of the complainant, namely
Shivnath Dhiwar and with the view to take revenge, the appellant abducted the minors
and thereafter killed them. The FIR-Ex.24 was lodged against the accused initially for
the offences under Sections 363 and 364 IPC. According to the prosecution, after the
FIR was lodged, the accused was contacted on his mobile no. 9179484724. The accused
received the call and told that he was 60 kms away. The Investigating Officer-P.W.24
asked the Head Constable Hemant Aditya, Crime Branch to trace the said mobile
number and to tell its location. Then the Head Constable Hemant Aditya traced the
location of the said mobile and the location was found near Village Lakhram. That,
thereafter the Investigating team went to the house of one Ashok Kumar Madhukar-
P.W.13, a relative of the accused. Initially, the accused was not in home. However,
thereafter continuing the search, they again went to the house of the said Ashok Kumar
Madhukar. According to the case of the prosecution, thereafter the accused was found
and brought to the police station. He was interrogated in the presence of the witnesses. A
memorandum of statement Ex.P.2 was recorded under Section 20 of the Evidence Act.
On the basis of the memorandum Ex.P.2 and at the instance of the accused, in the barren
land in Karaihapara - in the field of one Damodar Beldar, the dead bodies of the three
minors were recovered from the spot of site. The Investigating Officer collected the
incriminating materials during the course of the investigation. The mobile of the accused
was also seized. The Investigating Officer conducted the Panchnama of the dead bodies
of the three minors. The dead bodies were sent for post-mortem. One Dr. A.M.
Srivastava-P.W.23 conducted the post-mortem. The cause of death of the three minors
was strangulation and the deaths were found to be homicidal. During the investigation,
the Investigating Officer received the call details - Ex.P.30 of the mobile phone of the
accused. During the investigation, the Investigating Officer recorded the statement of the
witnesses, including the statement of the original complainant Shivlal and others. That
the accused was arrested as per the memorandum dated 13.02.2011. After conclusion of
the investigation, it was found that the accused had first abducted and thereafter killed
the three minors to take the revenge as his wife eloped with the brother of the
complainant Shivlal and thereby committing the offences punishable under Section 302

148
and Section 364 IPC. The Investigating Officer filed the charge-sheet against the
accused for the aforesaid offences. The case was committed to the Court of Sessions.
The accused pleaded not guilty and therefore he came to be tried for the aforesaid
offences. To prove the charges against the accused, the prosecution examined as many
as 24 witnesses.
(List in the Original Judgment Also see the list of 41 Documentary evidences that were
produced by the prosecution)
After closure of the evidence by the prosecution, further statement of the accused under
Section 313 CrPC was recorded. The case of the accused was of a total denial. He did
not examine any witness in support of his defence. That, thereafter, on appreciation of
evidence and giving the fullest opportunity to the accused, the learned Trial Court held
the accused guilty for the offences punishable under Sections 302 and 364 IPC. After
considering the aggravating and mitigating circumstances and after having heard the
accused on the quantum of sentence, the learned Trial Court awarded the death sentence,
which was numbered as Reference No. 05 of 2013 before the High Court. Feeling
aggrieved and dissatisfied with the judgment and order of conviction passed by the
learned Trial Court, the original accused also preferred an appeal before the High Court,
being Criminal Appeal No. 550 of 2013. Both, the appeal preferred by the accused as
well as the reference case were heard together by the High Court. By the impugned
judgment and order, the High Court has dismissed the appeal preferred by the accused
and has confirmed the conviction and the death sentence awarded by the learned Trial
Court. Feeling aggrieved and dissatisfied with the impugned judgment and order passed
by the High Court in dismissing the appeal preferred by the accused and also confirming
the death sentence awarded by the learned Trial Court, the original accused has
preferred the present appeal.
Arguments of the counsel for Appellant (Accused)
Shri Singh, learned counsel appearing on behalf of the appellant-original accused has
vehemently submitted that in the facts and circumstances of the case both, the learned
Trial Court and the High Court have committed grave error in holding the appellant-
original accused guilty for the offences punishable for the offences under Section 302
and Section 364 IPC. It is further submitted on behalf of the appellant-original accused

149
that both the Courts below ought to have appreciated that there was no eye-witness to
the incident and the whole conviction was based on the circumstantial evidence. It is
submitted that, in a case of circumstantial evidence, unless the entire chain of events is
complete, which leads to the only conclusion that it is the accused only who has
committed the offence, a person cannot be convicted. It is submitted that in the present
case the prosecution has failed to form a complete chain of circumstances and the
instance which leads exclusively to the conclusion that the appellant only was guilty of
committing the offence.
It is further submitted on behalf of the appellant-original accused that both the Courts
below have materially erred in holding the appellant-original accused guilty for the
offences punishable under Sections 302 and Section 364 IPC for having killed the three
minor children relying upon the prosecution witnesses, more particularly, P.W.1, P.W.8,
P.W.13, P.W.18 and P.W.24 and other eye-witnesses.
It is further submitted by the learned counsel appearing on behalf of the appellant-
original accused that the case against the appellant is based on three sets of
circumstances:
(i) last seen evidence.
(ii) recovery of bodies pursuant to a disclosure memo and
(iii) alleged calls made to the appellant during the search for the missing
children. It is further submitted that the prosecution has sought to use the
calls made to the appellant and the testimony of P.W.13 as an extra-
judicial confession made by the appellant. It is submitted that such an
extra-judicial concession is not admissible in law.
It is further submitted by the learned counsel appearing on behalf of the appellant-
original accused that to establish and prove the last seen evidence, the prosecution has
relied upon the depositions of P.W.1 and P.W.8, whose evidences are full of material
contradictions. It is submitted that as such both the Courts below have materially erred
in heavily relying upon the depositions of P.W.1 and P.W.8, insofar as last seen
evidence is concerned. It is further submitted by the learned counsel appearing on behalf
of the appellant-original accused that so far as P.W.1 is concerned, he has specifically
stated that he was stating the material evidence for the first time in the court. It is

150
submitted that though another witness - Surya Pratap Dhimar was present with P.W.1 on
11.02.2011, the prosecution had chosen not to examine the said witness. It is submitted
that P.W.1 is neither credible nor reliable. It is submitted that dropping of a cited witness
Surya Pratap Dhimar has been unexplained by the prosecution. It is submitted that this
circumstance will operate as a presumption against the prosecution in terms of Section
114(g) of the Indian Evidence Act.
Now, so far as the reliance placed upon the deposition of P.W.8, who is the second last
seen witness is concerned, it is submitted that P.W.8 states that he communicated that he
has seen the accused with the deceased to P.W.9-Imrat Singh @ Mungi Lal. It is
submitted that, however, P.W.9 has categorically denied knowing any person named as
Ashok, where he resides. It is submitted that he has affirmed that he had no conversation
with Ashok.
It is further submitted that as per the prosecution P.W.8 communicated his sighting of
the missing children to P.W.18 and his friends - P.W.2 and P.W.3. It is submitted that
P.W.2 states that they met Ashok Patel at about 6/6.30 pm near Dholpara, but in his
cross, has denied knowing Ashok Patel or having any conversation with him. It is
submitted that P.W.18 claimed that he met P.W.8 near Darriparra prior to meeting
P.W.2 and P.W.3. It is submitted that though P.W.3 maintains that he met P.W.8 and
Dholpara, the testimony of P.W.18 belies the testimony of P.W.3. It is submitted that the
testimony of P.W.2, P.W.3 and P.W.18 that they met P.W.8 is belied by P.W.8 himself
who has unequivocally affirmed that P.W.18 and his friends did not come to him
searching for the children. It is submitted that therefore it is not safe to rely the
testimony of P.W.8 also.
It is further submitted by the learned counsel appearing on behalf of the appellant-
original accused that the prosecution has not proved geographical proximity between the
alleged sighting of the appellant and the place of residence of the children; their school
or the location where the bodies were recovered. It is submitted that there is no evidence
on record to suggest that the fields where the bodies were found were in the same
direction as the children were walking when they had been allegedly sighted.
It is further submitted that furthermore the medical evidence concludes that the time of
death of the children was between 12 noon on 11.02.2011 and midnight of the

151
intervening night of 11/12.02.2011. It is submitted that therefore an alleged sighting in
the beginning of this period is not proximate to the time of death. It is further submitted
that even the missing person complaint dated 11.02.2011 does not refer to last seen
evidence. It is submitted that it was entered on the Roznamcha at 9.40 am on
12.02.2011. It is submitted that the Roznamcha is silent on the suspicion of kidnapping
by the appellant. It is submitted that neither the complaint nor the Roznamcha contain
any last seen evidence or evidence with respect to the alleged calls between the
appellant and P.W.18. It is submitted that the FIR that is lodged on 12.02.2011 at 11.40
pm has a mention of P.W.8. It is submitted that therefore the last seen evidence of P.W.8
is recorded for the first time only on the intervening of 12-13.02.2011, which is also the
time of the appellant's arrest. It is submitted that it is the settled law that the
circumstance of last seen together cannot by itself form the basis of conviction and can
only be an incriminating circumstance. In support thereof, the learned counsel for the
appellant has relied upon the decisions of this Court in the cases of Digamber Vaishnav
v. State of Chhattisgarh (2019) 4 SCC 522, Anjan Kumar Sarma v. State of Assam
(2017) 14 SCC 359 and Ganpat Singh v. State of Madhya Pradesh (2017) 16 SCC 353.
It is submitted that in light of the principles stated in the aforesaid decisions, the
testimony of P.W.8 does not inspire confidence and cannot be relied upon as last seen
evidence.
It is further submitted by the learned counsel appearing on behalf of the appellant that
another circumstance considered by the Courts below against the appellant is the calls
and extra-judicial confession.
It is submitted that the evidence against the appellant refers to two calls involving the
appellant. The first call is between the appellant and P.W.11 and the second call is
between the appellant and P.W.18. It is submitted that with respect to P.W.11's call,
P.W.11 categorically states that the call was on 12.02.2011 at night which is when the
appellant was in the custody of the police. It is submitted that he further improved his
version when he was re-examined by the Trial Court. It is submitted that neither P.W.2
nor P.W.18 has testified to this call. It is submitted that neither the fact nor the contents
of this call were put to the appellant during his examination under Section 313 Cr.P.C.
It is further submitted that the prosecution has relied upon the extracts of the appellant's

152
CDR-Ex.P30 (Call Details Report), which does not contain any call made or received on
12.02.2011. It is submitted that even otherwise the production of CDR is through the
Investigating Officer who in turn receives it from the Head Constable Hemant Aditya. It
is submitted that there is no material on record to show the manner in which the CDR
was obtained. It is submitted that even the CDR is not accompanied by a certificate
under Section 65-B of the Evidence Act. It is submitted that therefore the calls/call
details contained in the CDR-Ex.P30 are neither believable nor has been proved by the
prosecution.
It is further submitted that so far as P.W.18 is concerned, he has alleged a call made by
him to the appellant on 11.2.2011. It is submitted that the said call has not been
corroborated by any other witness. It is submitted that even it does not find mention in
the complaint, Roznamcha or the FIR, which are dated 11.2.2011. It is submitted that
there remains a discrepancy in P.W.18's version of when he lodged the missing person
complaint.
It is further submitted that the prosecution has not seized the phone, SIM card or any
material with respect to P.W.18's phone records which would have proved the veracity
of P.W.18's statement. It is submitted that even there is no material on record to prove
the phone number of P.W.18.
It is further submitted that so far as the confession made by P.W.13-Ashok Kumar
Madhukar is concerned, no other document or witness mentions his presence during the
alleged recovery proceedings. It is submitted that the statement made by the appellant do
not amount to a confession of the offence, or of any inculpatory fact. It is submitted that
since the appellant was in police custody at that time, any confession made by him
would be inadmissible in terms of Section 26 of the Evidence Act, irrespective of whom
the alleged confession was made to. It is submitted that therefore both, the Trial Court
and the High Court have materially erred in convicting the appellant on the basis of such
call details and/or the alleged confessions made to the respective witnesses.
Now, so far as the conviction based upon the recovery of dead bodies of the deceased
minors is concerned, it is submitted that the said recovery was made from an open area
that had been searched previously. It is submitted that as per the settled preposition of
law the recovery made from an open place, accessible to all and which is not in the

153
exclusive knowledge of the accused cannot be the basis of conviction. It is submitted
that therefore the recovery of the bodies at the instance of the appellant is full of
suspicion.
It is further submitted that neither PW.7 nor P.W.22 who are the independent witnesses
to the disclosure memorandum and all other documents relating to recovery proceedings
on the intervening night of 11.01.2011 and 12.1.2011, lend support to the recovery. It is
submitted that P.W.7 has specifically stated that he signed on blank papers on the asking
of the police and that he did not know about the case. It is submitted that he has further
stated that the documents were not read over to him by the police and that no
notice/summons were given by the police to remain present for seizures.
It is further submitted that P.W.22 also does not remember the date on which the alleged
events took place.
It is further submitted that all recovery related proceedings are ante-dated and the same
is proved from the evidence of P.W.22 himself. It is submitted that P.W.22 states that
the interrogation of accused continued till 9.00 pm on 12.02.2011 and that they went to
the field at 10.30-11.00 pm. It is submitted that even P.W.18 and P.W.22 testify that all
documentation with respect to the recovery was done the next day at 9.00 pm. It is
further submitted that even there is a discrepancy with respect to the time and place of
arrest of the appellant which renders the recovery doubtful. It is submitted that therefore
on the basis of the alleged recovery, the appellant could not have been convicted.
It is further submitted that even the recovery cannot be said to be voluntary as the
appellant was detained in custody without any formal arrest.
It is further submitted that even the medical and forensic examination does not support
the recovery. It is submitted that the post-mortem reports of the victims indicate the
presence of incised wounds on the bodies caused by a hard and sharp/blunt object. It is
submitted that, however, no such weapon was recovered at the instance of the appellant.
It is submitted that the prosecution has not put forth any evidence to show how such
wounds were caused by the appellant. It is submitted that there are so many lacunas at
the time of the alleged recovery at the instance of the appellant, which creates a serious
doubt on the credibility of the recovery. It is submitted that therefore it is not safe to
convict the appellant on the basis of such recovery.

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It is further submitted by the learned counsel appearing on behalf of the appellant that
the Courts below have committed grave error in convicting the appellant solely based on
(i) last seen evidence; (ii) recovery of bodies pursuant to a disclosure memo and (iii)
alleged calls made to the appellant during the search for the missing children and the so-
called extra-judicial confession made by the appellant, more particularly, when it is a
case of circumstantial evidence. It is submitted that in a case of circumstantial evidence,
even if one link is missing and the chain is not complete which leads to the only
conclusion that it is the appellant-accused alone who has committed the offence, the
appellant could not have been convicted.
Now, so far as the judgment and order passed by the learned Trial Court awarding the
death sentence and confirmed by the High Court is concerned, it is submitted that both
the Courts below have not appreciated and/or considered the mitigating and aggravating
factors while awarding the death sentence. It is submitted that even the learned Trial
Court imposed the death penalty/award of sentence on the same day on which the
appellant was convicted. It is submitted that after the decision relating to his conviction
was given, the learned Trial Court held the hearing of the sentence on the same day
when the conviction was recorded i.e. 04.05.2013, thereby violating the right of the
accused to be given ample opportunity to adduce the evidence of mitigation and to be
heard on the question of quantum of sentence as provided under Section 235(2) Cr.P.C.
It is submitted that it has been consistently held by this Court that sufficient time must
be given to the accused on the question of sentence, to show the grounds on which he
may show that sentence of life imprisonment may be awarded and not the death penalty.
In support thereof, the learned counsel for the appellant has relied upon a recent
judgment of this Court in the case of Chhannu Lal Verma v. State of Chhattisgarh
(2019) 12 SCC 438. It is submitted that the absence of providing a separate hearing for
sentence vitiates the sentencing process. It is submitted that under these circumstances
this Court has previously commuted the sentence of death to one of imprisonment for
life. In support, reliance has been placed upon the decisions of this Court in the cases of
Santa Singh v. State of Punjab (1976) 4 SCC 190 1976 Indlaw SC 169, Rajesh Kumar v.
State (NCT of Delhi) (2011) 13 SCC 706 2011 Indlaw SC 678 and Ajay Pandit @
Jagdish v. State of Maharashtra (2012) 8 SCC 43 2012 Indlaw SC 213.

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It is further submitted that even otherwise the death sentence awarded by the learned
Trial Court and affirmed by the High Court is not sustainable. It is submitted that the
learned Trial Court has solely looked to the brutality of the crime to impose the death
penalty. It is submitted that this Court has rejected the contention that the death penalty
can be imposed on the basis of the crime alone. It is submitted that consideration of the
brutality or the circumstances surrounding the crime alone renders meaningless the
objective of the sentencing exercise envisaged in death penalty cases. Reliance has been
placed upon the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684.
It is submitted that so far as the High Court is concerned, the High Court has also
committed a grave error in confirming the death sentence. It is submitted that the High
Court has not properly appreciated the mitigating circumstances, such as the fact that the
accused can be rehabilitated in the society and is capable of being reformed. It is
submitted that as held by this Court in the case of Ajay Pandit (supra), there is a duty on
the High Court to elicit the relevant facts while considering mitigating circumstances
and awarding sentence.
It is submitted that both the Courts below have not appreciated and considered the fact
that there were no criminal antecedents. It is submitted that the High Court has also not
considered the fact that there is a possibility of the appellant being reformed. It is further
submitted that at the time when the alleged offence was committed, the appellant was of
a young age of 28 years. It is submitted that the young age of the appellant at the time of
commission of the offence has not been considered as the relevant mitigating
circumstance by the learned Trial Court as well as the High Court, which ought to have
been considered, as held by this Court in the cases of Gurvail Singh v. State of Punjab
(2013) 2 SCC 713 2013 Indlaw SC 72 and Amit v. State of Uttar Pradesh (2012) 4 SCC
107.
It is further submitted that even otherwise in a case of circumstantial evidence, as held
by this Court in the case of Kalu Ram v. State of Rajasthan [2015) 16 SCC 492, the
doctrine of prudence requires that a sentence of life be imposed, and ordinarily death
penalty should not be awarded. It is further submitted that this Court in several
judgments has commuted the death sentence based on the doctrine of "residual doubt".
Reliance is placed on the decisions of this Court in the cases of Sudam v. State of

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Maharashtra (2019) 9 SCC 388 and Baba Vishwakarma v. State of M.P. (2019) 9 SCC
689.
It is further submitted that even the conduct of the appellant in the prison is very good,
which is also a relevant consideration to commute the death sentence to that of the life
imprisonment.
It is further submitted that the emotional disturbance of the appellant at the time of the
offence is a relevant consideration not to award the death sentence. It is submitted that at
the relevant time the appellant was emotionally disturbed due to the elopement of his
wife with the uncle of the deceased minors. It is submitted that the appellant's acts were
not the product of a long period of cold blooded planning, but were instead actions
committed during a period of extreme emotional turmoil and disturbance after he had
come back from Chandigarh to Darripara after trying to find out his wife. It is submitted
that the aforesaid aspect has not been considered by the Courts below.
It is further submitted by the learned counsel appearing on behalf of the appellant that,
unfortunately, subsequently the wife of the appellant has died and the liability to
maintain the children was/is upon his old aged mother. It is submitted that the
appellant's mother is no longer capable of working and the entire family survives on Rs.
300/- of old-age pension that she receives. It is submitted that the daughter of the
appellant was forced to drop the school after class IX due to poverty. It is submitted that
his one daughter is married and the appellant has another daughter Sanjana aged about
16 years. It is submitted that if the death sentence of the appellant is converted to life, in
that case, the appellant would be in a position to work in the jail and earn something
which would be helpful to his mother and daughter. It is submitted that while the death
sentence is continued, the appellant would not be in a position to do any work in Jail.
Learned counsel appearing on behalf of the appellant has further submitted that in many
cases this Court has commuted the death sentence imposed for heinous crimes. Reliance
is placed upon the decisions of this Court in the cases of Shaikh Ayub v. State of
Maharashtra (1998) 9 SCC 521 1998 Indlaw SC 1501, Allaudin Mian v. State of Bihar
(1989) 3 SCC 5 1989 Indlaw SC 577, Dharmedrasinh v. State of Gujarat (2002) 4 SCC
679 2002 Indlaw SC 246, Nemu Ram Bora v. State of Assam & Nagaland (1975) 1 SC
318, Rajesh Kumar (supra) and Brajendra Singh v. State of M.P. (2012) 4 SCC 289

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2012 Indlaw SC 75.
Making the above submissions, it is prayed to allow the present appeal and acquit the
appellant-accused for the offences for which he was tired. In the alternative, it is prayed
to convert the death sentence into the life imprisonment.
Arguments of the Counsel for the Respondent -State
The present appeal is vehemently opposed by Shri Pranav Sachdeva, learned counsel
appearing on behalf of the respondent-State.
It is vehemently submitted by the learned counsel appearing on behalf of the respondent-
State that in the facts and circumstances of the case both, the learned Trial Court and the
High Court have rightly convicted the accused for the offence punishable under Section
302 IPC for having killed the three minor children of the complainant and both the
Courts below have rightly awarded the death sentence.
It is vehemently submitted by the learned counsel appearing on behalf of the respondent-
State that the impugned judgment and order passed by the High Court is a well-reasoned
and has been passed after hearing the parties and considering the entire facts and
circumstances and therefore the same is not required to be interfered with by this Court
in exercise of powers under Article 136 of the Constitution of India.
It is further submitted by the learned counsel appearing on behalf of the respondent-
State that though the present case is based on circumstantial evidence, however, the
prosecution has been successful in completing the chain of events which lead to the only
conclusion that it is the accused alone who had killed the three innocent children.
It is further submitted by the learned counsel appearing on behalf of the respondent-
State that in the present case the prosecution has been successful in proving the motive
for the accused to take revenge and killing three minor children of the complainant
Shivlal-P.W.18.
It is further submitted by the learned counsel appearing on behalf of the respondent-
State that thereafter the prosecution has been successful in establishing and proving that
the accused was last seen together with the three minor children whose dead bodies were
found subsequently at the instance of the accused.
It is further submitted by the learned counsel appearing on behalf of the respondent-
State that there are three relevant and material circumstances against the accused,

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namely, (i) last seen evidence; (ii) recovery of dead bodies pursuant to a disclosure
memorandum at the instance of the accused and (iii) call details made to the accused. It
is submitted that therefore the aforesaid three sets of circumstances are proved by the
prosecution against the accused by examining P.W.1, P.W.8, P.W.13, P.W.16, P.W.18
and P.W.24. It is further submitted by the learned counsel appearing on behalf of the
respondent-State that by examining P.W.2, P.W.5 and P.W.10 the prosecution has been
successful in proving that all the three deceased-three minor children had gone to the
school on that day and thereafter after the school was over, they left the school together
for home. It is submitted that the same is supported by the relevant documentary
evidence. It is further submitted by the learned counsel appearing on behalf of the
respondent-State that the minor children were last seen together with the accused, has
been established and proved by the prosecution by examining P.W.1 and P.W.8.
It is submitted that the dead bodies of minors - Ajay, Vijay and Kumari Sakshi - were
recovered on the basis of the disclosure memorandum Ex.P-2. It is submitted that Ex.P-2
and the recovery of the dead bodies at the instance of the accused has been established
and proved by the prosecution beyond doubt, more particularly, by examining P.W.7,
P.W.22 and P.W.24.
It is further submitted by the learned counsel appearing on behalf of the respondent-
State that during the course of the investigation there were phone calls with the accused
and the conversation has been established and proved by Ex-P-30 - Phone Call Details.
It is submitted that the same have not been explained by the accused.
It is further submitted by the learned counsel appearing on behalf of the respondent-
State that in the present case even the conduct on the part of the accused, more
particularly, his absence from the date of missing of the minor children till he was
arrested from the house of witness Ashok Kumar Madhukar-P.W.13 is a relevant factor.
It is submitted that the accused has failed to explain his absence from the village and
from his house.
It is submitted that in fact the accused was found in the house of his relative Ashok
Kumar Madhukar-P.W.13. It is submitted that therefore it is established and proved that
after committing the offence the accused had taken the shelter in the house of his
relative Ashok Kumar Madhukar-P.W.13. It is submitted that even there was an extra-

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judicial confession by the accused before Ashok Kumar Madhukar-P.W.13 which has
been established and proved from the deposition of Ashok Kumar Madhukar-P.W.13.
It is further submitted that the death of the three minors was homicidal deaths, which has
been established and proved by examining the doctors who conducted the post-mortem.
It is submitted that therefore the prosecution has been successful in completing the chain
of events. It is submitted that therefore both the Courts below have rightly convicted the
accused for having killed the three minor children.
Now, so far as the submission on behalf of the accused that there are material
contradictions in the depositions of P.W.1, P.W.8, P.W.18 and other witnesses is
concerned, it is submitted by the learned counsel for the respondent-State that the
alleged contradictions do not affect the case of the prosecution. It is submitted that the
aforesaid contradictions cannot be said to be the material contradictions for which the
benefit of doubt should be given to the accused. It is submitted that most of the
witnesses are consistent with their statements under Section 161 Cr.P.C. recorded by the
Investigating Officer during the investigation. It is submitted that there are no much
improvements. It is further submitted by the learned counsel appearing for the
respondent-State that the so-called/alleged contradictions in any way do not affect the
case of the prosecution and the material evidence with respect to the last seen evidence;
recovery of the dead bodies as per the disclosure memorandum at the instance of the
accused and the phone call details with the accused and even the motive for the accused
to commit the offence.
Now, so far as the submission on behalf of the accused that the incriminating
circumstances against the accused from the deposition of P.W.1 has not been put to the
accused while recording his statement under Section 313 Cr.P.C. is concerned, it is
submitted by the learned counsel appearing for the respondent-State that, as such, the
said irregularity shall not affect the ultimate case against the accused. It is submitted that
in any case the case of the accused in his statement under Section 313 Cr.P.C. is that of
total denial. It is submitted that on the aforesaid ground the accused cannot be acquitted.
Now, so far as the submission on behalf of the accused that sufficient opportunity was
not given to the accused on the sentence inasmuch as the accused was heard on the
sentence on the very same day he was convicted is concerned, it is submitted that on the

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aforesaid ground the judgment and order passed by the learned Trial Court on sentence
and confirmed by the High Court is not required to be interfered with. It is submitted
that after the accused was held guilty, fullest opportunity was given to the accused on
sentence. It is submitted that elaborate submissions were made by the learned Advocate
appearing on behalf of the accused on sentence and even on the death sentence also. It is
submitted that therefore as such no prejudice has been caused to the accused.
Now, so far as the submission on behalf of the accused not to confirm the death sentence
and to convert the death sentence into the life imprisonment is concerned, it is submitted
by the learned counsel appearing for the respondent-State that on striking the balance
between the aggravating circumstances and the mitigating circumstances and
considering the fact that the accused killed the three minor children after abducting
them, no sympathy should be shown to such an accused. It is submitted that, therefore,
as such this is a fit case to award the death sentence and the case would fall into the
rarest of rare cases. Therefore, it is prayed to dismiss the present appeal and confirm the
death sentence.
Opinion and Observation of the Court
Heard the learned counsel appearing for the respective parties at length. We have also
gone through and considered in detail the Judgment and order passed by the learned
Trial Court as well as the impugned judgment and order passed by the High Court
convicting and accused for the offences punishable under Sections 302 and 364 IPC. We
have also gone through and considered in detail the evidence on record - both oral and
documentary.
The appellant-accused has been held guilty for having committed the murder/killing of
three minor children aged about 8 years, 6 years and 4 years respectively and has been
convicted by both the Courts below for the offences punishable under Sections 302 and
364 IPC. The learned Trial Court, after having held the appellant-accused guilty for the
aforesaid offences, has imposed the death sentence, which has been confirmed by the
High Court by the impugned judgment and order.
We are conscious of the fact that it is a case of circumstantial evidence and therefore
before convicting the accused on the basis of circumstantial evidence, the prosecution
has to prove beyond doubt and complete the chain of events which lead to the

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conclusion that it is the accused alone who has committed the offence. Therefore, in the
facts and circumstances of the case, it is required to be considered whether the
prosecution has been successful in establishing the complete chain of events which lead
to the conclusion that it is the appellant-accused alone who has committed the offence?
Having gone through the impugned judgment and order passed by the High Court as
well as the judgment and order of conviction passed by the learned Trial Court and the
case of the prosecution, the appellant-accused has been convicted mainly based on three
sets of circumstances: (i) last seen evidence; (ii) recovery of bodies pursuant to a
disclosure memo and (iii) alleged calls made to the appellant during the search for the
missing children.
Before considering the submissions made on behalf of the accused, few findings
recorded by the learned Trial Court and confirmed by the High Court, are required to be
first referred to. The prosecution has been successful in establishing and proving that the
accused was having enmity with Shivlal-father of the three deceased minor children.
The same has been established and proved by the prosecution by examining Shivlal-
P.W.18, Manisha-P.W.20 and Rameshwar-P.W.11. The prosecution has been successful
in proving that on 11.02.2011 all the minors deceased Ajay, Vijay and Kumari Sakshi
went to the school from their house. The prosecution has also been successful in
establishing and proving that on 11.02.2011 at about 11.30 hours the deceased minors
left for home on foot; that the minors did not return to their home. On 11.02.2011 at
about 12.00 noon - 1.00 pm, the deceased were seen going with the accused in school
uniform with their school bags. Therefore, the accused was last seen together with the
deceased minors. That, after the incident, the accused was not found at his house and
was missing even from the village. During the search by Shivlal-P.W.18 and others and
after the accused was not found in the village, there were phone calls on the mobile of
the accused. That, thereafter, the accused was found from the house of his relative
Ashok Kumar Madhukar-P.W.13. Immediately after his arrest, the dead bodies were
recovered/found along with the school bags etc. from the place shown by the accused
himself. The aforesaid are the chain of events which led to the conclusion that the
accused first kidnapped the three minor children and thereafter killed all of them. The
phone-calls made to the accused has been established and proved by the prosecution by

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examining the Investigating Officer and by producing the call details from the mobile
company as Ex.P.30.
Now, so far as the evidence of the accused having last seen together with the deceased is
concerned, the prosecution has heavily relied upon the depositions of P.W.1 and P.W.8.
So far as the reliance placed upon the deposition of P.W.1 is concerned, it is the case on
behalf of the accused that while recording his statement under Section 313 Cr.P.C., the
incriminating material on the basis of the deposition of P.W.1 that he saw the accused
with the deceased minors at around 1.00 pm on the afternoon of 11.02.2011, was not put
to him and therefore, to that extent, the deposition of P.W.1 cannot be relied upon.
However, it is required to be noted that while recording the statement of the accused
under Section 313 Cr.PC., the deposition of P.W.1 was specifically referred to.
Therefore, not asking a specific question arising out of the deposition of P.W.1, in the
facts and circumstances of the case, cannot be said to be fatal to the case of the
prosecution. Even otherwise, the accused was last seen together with the deceased
minors has been established and proved by the prosecution by examining P.W.8-Ashok
Patel. P.W.8-Ashok Patel in his deposition has specifically stated that he saw the
accused with all the three minors deceased at around 12.00 hours on 11.02.2011. He has
identified/recognized the accused present in the court. He has also stated that he knew
the complainant Shivlal and he recognized all the three minor children of Shivlal. The
said witness has been thoroughly cross-examined by the defence. However, from the
cross-examination, the defence has failed to make out any case which may doubt either
the credibility and/or what the said witness has stated in his examination-in-chief. He is
an independent witness on the evidence of last seen together. We see no reason to doubt
the same. There may be some contradictions, but according to us, those contradictions
are not material contradictions, which may doubt the credibility of the said witness
and/or may be fatal to the case of the prosecution. Thus, the prosecution has been
successful in establishing and proving that the accused was last seen together with all
the three minor children at about 12.00 noon on 11.02.2011 after they left the school.
At this stage, it is required to be noted that the prosecution has proved beyond doubt that
all the three minors went to the school in the morning of 11.02.2011 and thereafter they
left for the home at about 11.30 hours. That, thereafter, at about 12.00 hours, the accused

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was seen with all the three minor children. At this stage, it is required to be noted that
after Ashok Patel disclosed to Shivlal-P.W.18 and others that he had seen the accused
with the three minor children on 11.02.2011 at about 11.30 hours, the name of the
accused was specifically mentioned in the missing report given by Shivlal on
11.02.2011 and the same was also mentioned in the FIR. In the FIR, it was specifically
mentioned that during the investigation of missing person No. 3/11, he had enquired the
complainant and Ashok Patel and Ashok Patel told that he saw the minor children with
the accused. Thus, considering the entire evidence on record, we see no reason to doubt
the credibility of P.W.8-Ashok Patel. He is an independent witness and no mala-fides
are alleged against him on behalf of the accused.
Now, the next important evidence against the accused is the recovery of dead bodies
which were found from the places shown by the accused after his arrest. During the
course of the investigation, the dead bodies were found from the places shown by the
accused, the places which the accused alone could have known. Therefore, there is a
recovery of the dead bodies along with the school dress and bags at the instance of the
accused. It has been established and proved from the disclosure memo. The disclosure
memo has been exhibited. Therefore, the aforesaid circumstance definitely goes against
the accused.
One another circumstance which goes against the accused is that after the incident of
missing of three minor children, the accused was not found in his house and even in the
village. He was contacted on his mobile phone. Initially when he was tried to be
contacted, his mobile phone was found switched-off. However, thereafter, he could be
contacted on mobile when Rameshwar-P.W.11 phoned the accused Manoj on 12.2.2011
at about 11.00 p.m. As per the said witness, at about 11.00 p.m. he phoned the accused
Manoj and asked him "Where are you" and the accused told that he is present in his
house. According to the said witness, the accused also told when he was asked whether
any information about the where-about of Shivlal's children was received, initially the
accused replied that he do not know. But, thereafter, he told that "When my children are
crying Guddu @ Shivlal was enjoying, now when his children are missing how is he
feeling".
However, it is required to be noted that the accused was not present in his house at all.

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From the evidence on record, it appears that the concerned witnesses - Shivlal and others
found that the accused Manoj was not in his house. Phone calls made at 11.00 pm on the
mobile of the accused in the night of 11.02.2011 has been established and proved by the
prosecution by producing the call details from the mobile company (produced as
Ex.P.30). The accused has failed to give any explanation on the same in his statement
under Section 313 Cr.P.C. Non-examination of the officer of the mobile company
cannot be said to be fatal to the case of the prosecution, more particularly, when the
CDR has been got exhibited, through the deposition of the Investigating Officer and
when the same was exhibited, no objection was raised on behalf of the defence. Even
otherwise, it is required to be noted that the mobile SIM No. 9179484724 was seized
from the accused at the time of his arrest and which is proved as per the seizure memo.
Therefore, the prosecution has proved that the mobile SIM No. 9179484724 belonged to
the accused.
One other important evidence against the accused is the deposition of P.W.13-Ashok
Kumar Madhukar. The accused was found hiding in the house of said Ashok Kumar
Madhukar situated at village Lakharam which is 5-6 kilometers away. It is true that the
said witness has turned hostile. However, in the cross-examination by the prosecution,
P.W. 13 has specifically stated that the accused Manoj told him that the children of
Shivlal had gone missing and Shivlal has lodged a report against him and the police is
looking for him. He has specifically stated in the cross-examination that he engaged the
accused Manoj in conversation and thereafter the police came and took Manoj after
arresting him. Therefore, the fact that the accused was found from the house of said
Ashok Kumar Madhukar from village Lakharam has been established and proved,
despite the said Ashok Kumar Madhukar has turned hostile. As per the settled
proposition of law, even the deposition of the hostile witness to the extent it supports the
case of the prosecution can be relied upon. The accused has failed to explain his conduct
in his statement under Section 313 Cr.P.C. about his missing from the house and even
the village after the incident of kidnapping. He has also failed to explain the reason why
he was found from the house of Ashok Kumar Madhukar. It may be that there is some
doubt created by the defence about the place where the accused was arrested. However,
the fact remains that the accused was arrested from village Lakharam on 13.02.2011.

165
According to the defence, the accsued was arrested on 12.02.2011 evening. But the same
is not established and proved from the evidence. On the contrary, as per the deposition
of Ashok Kumar Madhukar, he was arrested on 13.02.2011. Even as per the arrest
memo, the accused was arrested on 13.02.2011. Immediately thereafter, during the
course of the investigation and as per the disclosure memo, the dead bodies of the
deceased minor children were recovered at the instance of the accused. Therefore, as
such, the chain of events established and proved by the prosecution as under:
(1) That all the three minor children went to the school in the morning of 11.02.2011;
(2) That all three minor children left the school at about 11.30 a.m. on 11.02.2011;
(3) That the accused was last seen together with the deceased minors at about 12.00
hours - 1.00 p.m. on 11.02.2011;
(4) That there was a prior enmity between the accused and the complainant Shivlal-
father of the deceased minor children as the wife of the accused ran away with the
brother of Shivlal and that the children of the accused were without their mother and
therefore he took the revenge how Shivlal would feel if his children are missing;
(5) That the accused was missing from his house and even the village from the time
of the incident of kidnapping;
(6) There were phone calls with the accused on his mobile no. 9179484724 on the
night of 11.02.2011;
(7) That he was hiding in the house of Ashok Kumar Madhukar and he was arrested
from village Lakharam from the house of Ashok Kumar Madhukar on 13.02.2011
and/or at least from Village Lakharam;
(8) Recovery of dead bodies of the minor children from the place shown by the
accused, which are recovered from the place/places for which the accused alone
could have the knowledge; and
(9) That the death of the minors were homicidal death.
As per the learned counsel appearing on behalf of the accused, there are contradictions
in the depositions of various witnesses, more particularly, P.W.1 and P.W.8 having told
that they had seen the accused with the minor children on 11.02.2011 and even with
respect to the telephonic calls and having talked with the accused after 11.02.2011.
However, having considered the so-called contradictions pointed out by the learned

166
counsel appearing on behalf of the accused and other evidences, we are of the opinion
that those contradictions are not material contradictions which may ultimately affect the
case of the prosecution as a whole. The minor discrepancies and inconsistencies in the
statements of the prosecution witnesses and the minor lacuna in the investigation led by
the police cannot be a reason for discarding the entire prosecution case, if the evidence
is otherwise sufficient and inspiring to bring home the guilt of the accused. As observed
by this Court in the case of Leema Ram v. State of Haryana [AIR 1999 SC 3717 1999
Indlaw SC 564], there are bound to be some discrepancies between the narrations of
different witnesses, when they speak on details, and unless the contradictions are of a
material dimension, the same should not be used to jettison the evidence in its entirety. It
is further observed that corroboration of evidence with mathematical niceties cannot be
expected in criminal cases. Minor embellishment, there may be, but variations by reason
therefore should not render the evidence unbelievable. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence. The Court shall have to bear in mind that
different witnesses react differently under different situations: whereas some become
speechless; some start wailing while some others run away from the scene and yet there
are some who may come forward with courage, conviction and belief that the wrong
should be remedied. So it depends upon individuals and individuals. There cannot be
any set pattern or uniform rule of human reaction and to discard a piece of evidence on
the ground of his reaction not falling within a set pattern is unproductive. Therefore, we
are of the opinion that the so-called minor discrepancies/contradictions do not ultimately
affect the case of the prosecution. The benefit of such minor
discrepancies/contradictions should not go to the accused, more particularly, when from
the other evidences on record the guilt of the accused has been established and proved.
Thus, for the reasons sated above, we are of the opinion that the High Court has not
committed any error in upholding the conviction of the accused for the offences
punishable under Sections 302 and 364 IPC. We are in complete agreement with the
view taken by the learned Trial Court as well as the High Court in so far as convicting
the accused for the offences punishable under Section 302 and 364 IPC for having killed
three minor children aged about 8 years, 6 years and 4 years respectively.
Now, so far as the capital punishment imposed by the learned Trial Court and confirmed

167
by the High Court is concerned, it is the case on behalf of the appellant-accused that as
the learned Trial Court heard the accused on sentence the very same day on which the
conviction was recorded and as such an error has been committed by the learned Trial
Court and therefore it vitiates the award of sentence, reliance has been placed upon the
decisions of this Court in the cases of Santa Singh (supra), Allaudin Mian (supra),
Rajesh Kumar (supra), Ajay Pandit @ Jagdish (supra) and a recent decision of this Court
in Chhannu Lal Verma (supra). While considering the aforesaid submissions, the object
of Section 235(2) Cr.P.C. is required to be considered. The object and purpose of
Section 235(2) Cr.P.C. is that the accused must be given an opportunity to make a
representation against the sentence to be imposed on him. Sub-section (2) of Section 235
satisfies a dual purpose; it satisfies the rule of natural justice by affording to the accused
an opportunity of being heard on the question of sentence and at the same time helps the
court to choose the sentence to be awarded. So, what is required to be considered is
whether at the time of awarding of sentence, sufficient and proper opportunity has been
given to the accused or not and when the capital punishment is awarded, whether the
accused has been given the opportunity to point out the aggravating and mitigating
circumstances or not? An identical question came to be considered by this Court in a
recent decision of this Court in the case of Accused 'X' v. State of Maharashtra in
Review Petition (Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007 dated
12.04.2019. Before this Court the very decisions on which the reliance has been placed
now by the learned counsel appearing on behalf of the accused, which are referred to
hereinabove, were pressed into service. This Court had the occasion to consider the very
submissions made on behalf of the accused, more particularly, the conviction and the
sentence on the very day on which the conviction was recorded. In paragraphs 29 to 34,
this Court has observed and held as under67:……
Thus, there is no absolute proposition of law that in no case there can be conviction and
sentence on the same day. There is no absolute proposition of law laid down by this
Court in any of the decisions that if the sentence is awarded on the very same day on
which the conviction was recorded, the sentencing would be vitiated.
So far as the reliance placed upon by the learned counsel appearing on behalf the

67 See original Judgment

168
appellant upon the decision of this Court in the case of Santa Singh (supra) is concerned,
on considering the entire judgment and the facts in that case, we are of the opinion that
the said decision shall not be applicable to the facts of the case on hand and/or the same
shall not be of any assistance to the accused. In that case before this Court, it was found
that the learned Trial Court did not give the accused an opportunity to be heard in regard
to the sentence to be imposed on him and by one single judgment convicted the accused
and also sentenced him to death.
Similarly, the decision of this Court in the case of Allaudin Mian (supra) also shall not
be applicable to the facts of the case on hand. In the case before this Court, it was found
that the death sentence was imposed by the Trial Court without affording proper
opportunity of hearing as contemplated under Section 235(2) Cr.P.C. No reasons were
recorded for awarding the death sentence which as such were mandatory and thereafter
on merits this Court found that the death sentence was no warranted.
Applying the law laid down by this Court in the aforesaid decisions, more particularly,
in the case of Accused 'X' (supra) to the facts of the case on hand and on considering the
reasoning given by the learned Trial Court as well as the High Court, we are of the
opinion that there is sufficient compliance of the provisions of Section 235(2) Cr.P.C.
The learned Trial Court heard the accused on the aspect of proposition of sentence
separately which is clear from paragraphs 76 to 82 of the judgment of the learned Trial
Court. Hence, based on the material on record, we are satisfied that the learned Trial
Court fully complied with the requirements of Section 235(2) Cr.P.C. The learned Trial
Court had considered the mitigating circumstances pointed out on behalf of the accused
and also considered the aggravating circumstances which warranted the death sentence.
Thus, it cannot be said that the accused was not given any sufficient opportunity to put
forward his case on sentence. It also cannot be said that the learned Trial Court has not
given any special reasons while awarding the death sentence. After considering the
aggravating circumstances and the crime i.e. the magnitude and the manner of the
commission of the crime in the form of kidnapping and thereafter murdering three minor
children, while awarding the death sentence the learned Trial Court has considered the
following aggravating circumstances against the accused68:….Thus, the submission on

68 See original Judgment

169
behalf of the accused that as the sentence was recorded on the same day on which the
conviction was recorded and therefore it has vitiated the award of sentence, cannot be
accepted. As observed hereinabove, there is a total compliance of the provisions of
Section 235 (2) as well as Section 354 Cr.P.C.
Now, so far as the submission on behalf of the accused that while awarding the capital
punishment the learned Trial Court has solely looked to the brutality of the crime is
concerned, it is factually incorrect. On considering the rival discussions as well as the
reasons given by the learned Trial Court while awarding the capital punishment, it
appears that the brutality of the crime was considered to be one of the reasons and not
the sole reason. However, at the same time, the prayer on behalf of the accused not to
impose the death penalty and to convert the same into life imprisonment, in the facts and
circumstances of the case, requires consideration. Therefore, now the question which is
posed for consideration of this Court is whether, in the facts and circumstances of the
case, the death sentence is warranted?...While answering the aforesaid questions, few
decisions of this Court on when the death sentence is warranted are required to be
referred to and considered69……. (See the Original Judgment)
In the case of Absar Alam v. State of Bihar (2012) 2 SCC 728 2012 Indlaw SC 46, it is
observed and held by this Court that the mental condition of the accused, which led to
assault, cannot be lost sight of. It is further observed that the mental condition or state of
mind of accused is one of the factors that can be taken into account in considering the
question of sentence. Thus, from the catena of decisions of this Court, more particularly,
the decisions referred to hereinabove, for deciding on the issue of sentence, the
aggravating circumstances and mitigating circumstances must be located and the right
balance must be adopted. What can be said to be the mitigating circumstances has been
dealt with and considered by this Court in the case of Bachan Singh (supra) (See Bachan

69 Bachan Singh (supra); Machhi Singh v. State of Punjab (1983) 3 SCC 470 1983 Indlaw SC 116; Mohd.
Chaman v. State (NCT of Delhi) (2001) 2 SCC 28 2000 Indlaw SC 3127; Aloke Nath Dutta v. State of W.B.
(2007) 12 SCC 230 2006 Indlaw SC 1278; State of Punjab v. Manjit Singh (2009) 14 SCC 31 2009 Indlaw
SC 681; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 2009 Indlaw SC
1921; Sebastian v. State of Kerala (2010) 1 SCC 58 2009 Indlaw SC 1194; Rajesh Kumar (supra); Ramesh v.
State of Rajasthan (2011) 3 SCC 685 2011 Indlaw SC 189; Amit (supra); and Mohinder Singh v. State of
Punjab (2013) 3 SCC 294 2013 Indlaw SC 47, the decisions which were relied upon on behalf of the accused
and after considering few decisions of this Court involving death sentence which were relied upon on behalf
of the State, ultimately, this Court in the case of Sushil Sharma v. State (NCT) of Delhi (2014) 4 SCC 317
2013 Indlaw SC 667

170
Singh Original Judgment) .
In light of the above judgments, we would now ascertain the factors which we need to
take into consideration while deciding on the question of sentence. We must locate the
aggravating and mitigating circumstances in this case and strike a right balance. In the
present case, the following are the mitigating factors/circumstances:
(i) That the offence was committed under the influence of extreme mental or emotional
disturbance. The accused was emotionally disturbed due to the elopement of his wife
with the uncle of the deceased and that his children were suffering in absence of their
mother with them. The accused was so much disturbed and troubled is also born out
from the deposition of one of the witnesses that on mobile the accused told how Shivlal
is feeling without his children.
(ii) There are no criminal antecedents.
(iii) At the time of commission of the offence the accused was 28 years of age and his
conduct in prison is reported to be good.
(iv) That he belongs to a poor family and is the only son of his parents, and
(v) That he has got an old aged mother who is taking care of two daughters of the
accused, out of which one is married now.
On the other hand, the only aggravating circumstance pointed out by the State is that the
manner in which the incident took place and three minors were brutally killed. Except
the above, no other aggravating circumstances are pointed out on behalf of the State.
Therefore, striking the balance between aggravating circumstances and mitigating
circumstances, we are of the opinion that in the facts and circumstances of the case,
more particularly, the mental condition of the accused at the time of the commission of
the offence and that the accused was under extreme mental disturbance due to his wife
eloped with the uncle of the deceased and his children were deprived of the company of
their mother, the mitigating circumstances are in favour of the accused to convert the
death sentence to life imprisonment. It is true that the court must respond to the cry of
the society and to settle what would be the deterrent punishment for an abominable
crime. It is also equally true that a larger number of criminals go unpunished thereby
increasing criminals in the society and law losing its deterrent effect. It is also true that
the peculiar circumstances of a given case often results in miscarriage of justice and

171
makes the justice delivery system a suspect; in the ultimate analysis, the society suffers
and a criminal get encouraged. Sometimes it is stated that only rights of criminals are
kept in mind, the victims are forgotten. However, at the same time, while imposing the
rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and
aggravating circumstances of the crime and it would depend upon particular and
peculiar facts and circumstances of each case. The mitigating circumstances as observed
by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in
the present case, if are considered cumulatively and more particularly, that the accused
was under the extreme mental disturbance because of the reasons stated hereinabove, we
are of the opinion that, in the peculiar facts and circumstances of the case, the death
penalty is not warranted and the same be converted to life imprisonment.
In view of the above and for the reasons stated above, the present appeal succeeds in
part. The Judgment and Order passed by the learned Trial Court and confirmed by the
High Court convicting the accused for the offences punishable under Sections 302 and
364 IPC is hereby confirmed. However, the death sentence imposed by the learned Trial
Court, confirmed by the High Court, is converted into the life imprisonment. It is further
observed and directed that the life means till the end of the life with the further
observation and direction that there shall not be any remission till the accused completes
25 years of imprisonment.
The present appeal is partly allowed to the aforesaid extent. Appeal partly allowed
Retracted Confession
Abdul Ghani S/O Mohammad v State of Uttar Pradesh
1972 Indlaw SC 437; (1973) 4 SCC 1770
Cases Referred
1. Pyare Lal Bhargava v State of Rajasthan71 1962 Indlaw SC 280

70 A. Alagiriswami and J.M. Shelat

71 A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and
was voluntarily made. But it has been held that a court shall not base conviction on such a confession without
corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible
rule of practice or prudence that under no circumstances such a conviction can be made without
corroboration, for a court may, in a particular case, be convicted of the absolute truth of a confession and
prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is
unsafe to rely upon a confession much less on a retracted confession, unless the court is satisfied that the
retracted confession is true and voluntarily made and has been corroborated in material particulars”.

172
 2. M. G. Agarwal v State of Maharashtra, 1962 Indlaw SC 520
Facts of the Case
The appellant used to reside at Aligarh and the deceased Ahmad Husain in the village
Chakhatal, police station Atrauli, district Aligarh. They were distantly related to each other,
the appellant's wife being the daughter of the brother of the deceased Ahmad Husain's wife.
The appellant had come to reside with the deceased about 3 months prior to the murder in
question. The appellant, it appears, developed illicit intimacy with the wife of the deceased.
When the deceased came to know of this intimacy he got annoyed with the appellant and
asked him to leave his house but, it is said that, the wife of the deceased intervened, and the
appellant continued to live in the house of the deceased. This happened about 7 or 8 days
before the murder in question. The appellant and the deceased were both engaged in the
business in selling gola (copra) and misri (sugar candy) and they used to go from their
house in the morning for selling goal and misri and return in the evening at about 6 or 6.30
p.m. On July 21, 1969, Ahmad Husain, deceased, as usual went out on his usual business of
selling gola and misri at about 6 or 7 a.m. The appellant did not accompany him on that
day. The deceased did not return home in the evening and this naturally caused anxiety to
the members of his family. After waiting for his return till about 8.30 p.m. Chaman, son of
the deceased aged about 14 years, went to the house of his uncle Hamid (a first cousin of
the deceased) and informed him about this fact. Hamid promised to make a search for the
deceased the following morning, as it had by then grown dark. Chaman accordingly
returned to his house. The following morning the son again went in search of his father.
When he reached the bank of the river Neem he found lying there a pair of scales and
weight belonging to his father. Leaving the weight there he took the pair of scales with him
to Hamid and told him that the said pair of scales had been found at the river bank. They
both then took Liladhar, chowkidar of the village along with them towards the river. The
pair of scales was placed at the spot from where it had been found. The three persons then
entered the river and found the dead body of Ahmad Husain lying at its bed. The water in
the river was only knee-deep at that place. They took the dead body out. The chowkidar
and Chaman were sent to the Pradhan of the village. Hamid himself staying with the dead
body. When the Pradhan came to the spot he asked Hamid to go to the police station
Atrauli for lodging the report. Hamid accordingly went to that police station on a bicycle

173
and lodged the report about the occurrence at about 10 a.m. The police station was at a
distance of 8 miles from the place of occurrence. In this report there was no mention of the
appellant, apparently because till then neither Chaman nor Hamid suspected him of
complicity in the murder. When Chaman returned to his house he found Abdul Ghani,
appellant, present, Abdul Ghani was looking somewhat restless and perturbed. This excited
Chaman's suspicion. He, therefore, decided to inform the Pradhan of the village about the
appellant's behaviour. The Pradhan on getting this information accompanied Chaman to the
house of the deceased. On the way he met Malkha Singh and Roshanlal whom also he took
along with him. The appellant, on seeing these persons, tried to run away but was captured
by them. He was found to have a cut mark on his right hand and an abrasion on his left leg.
When questioned as to how he had sustained these injuries he is said to have replied that it
had happened while he was striking the deceased with the knife. The appellant was then
taken to the house of the Pradhan where he is stated to have made an elaborate extra-
judicial confession about his having murdered the deceased.

Apart from the extra-judicial confession of the appellant the evidence in this case is entirely
circumstantial. Both the trial court and the High Court, however, considered the evidence,
though circumstantial, to be sufficiently convincing and incriminating and consistent only
with the appellant's guilt. The question arises if these circumstances in law justify the
conclusion of the High Court with regard to the appellant's guilt and imposition of the
extreme penalty of death on him. The legal position with respect to the sufficiency of the
circumstantial evidence for sustaining criminal conviction is well-settled. The
circumstances established on the record according to the law of evidence must be
consistent only with the guilt of the accused and wholly inconsistent with his innocence.
The chain of evidence furnished by those circumstances must be complete and leave no
reasonable ground for a conclusion consistent with his innocence. Now the circumstantial
evidence in the present case has to be considered along with the extra judicial confession.
Both the trial court and the High Court have considered the circumstantial evidence to be
strong and convincing enough to leave no scope for any reasonable doubt about the guilt of
the appellant. We have not been able to find any flaw in the reasoning of the High Court in
holding the circumstantial evidence to be complete and convincing in this respect. The

174
extra-judicial confession in this case is, in our opinion also free from any infirmity and no
reason has been shown as to why it should not be considered as both voluntary and true.
This extra-judicial confession was made by the appellant before the village Pradhan soon
after he was apprehended. From its very nature it impresses us to be spontaneous, free from
suspicion, voluntary and true. The words actually used by the appellant have been
reproduced so far as possible in the circumstances of the case. No doubt the appellant has
denied having made this extra-judicial confession. This may be considered to amount to
retraction of the confession but a retracted extra-judicial confession can also legally form
the basis of a conviction, though as a matter or prudence the courts try to look for
corroboration from some independent source so as to satisfy their conscience that the
confession is true.
Judgment
In the present case the confession considered in the background of the attending
circumstances, clearly seems to us to be both voluntary and true as also free from
suspicion. The circumstantial evidence is also complete and convincing so as to leave no
scope for any reasonable ground of appellant's innocence. This evidence amply serves to
corroborate in material particulars the confession, if any corroboration were needed. We
have, therefore, no hesitation in agreeing with the conclusion of the High Court about the
appellant's guilt. With respect to the sentence also we do not think any interference is called
for the appeal accordingly fails and is dismissed. Appeal dismissed.

Importance of Dying Declaration and How it is an Exception to section 60 of the IEA

The doctrine of dying declaration is enshrined in the legal maxim “Nemo moriturus
praesumitur mentire”, which means “a man will not meet his maker with a lie in his
mouth”. The doctrine of Dying Declaration is enshrined in S. 32 of the Indian Evidence
Act, 1872, as an exception to the general rule contained in S. 60 of the Evidence Act, which
provides that oral evidence in all cases must be direct i.e. it must be the evidence of a
witness, who says he saw it. The dying declaration is, in fact, the statement of a person,

175
who cannot be called as witness and, therefore, cannot be cross-examined. Such statements
themselves are relevant facts in certain cases72.

Dying Declaration Sec 32 (32-39)

Lakhan v State of M.P.
2010 Indlaw SC 628, (2010) 8 SCC 51473
Cases Referred
1. Balak Ram v State of U.P., AIR 1974 SC 2165
2. Sayarabano @ Sultanabegum v State of Maharashtra, (JT 2007 (3) SC 106)
3. Sher Singh & Anr. v State of Punjab, AIR 2008 SC 1426

72 Munnawar & Ors. v State of Uttar Pradesh & Ors.2010 (5) SCC 451
73 Balbir Singh Chauhan and P. Sathasivam
176
 4. Heeralal v State of Madhya Pradesh, 2009 (12) SCC 671
Facts of the Case
The appellant got married to Smt. Savita (hereinafter referred to as “deceased”) on
22.6.1999. She was brought to the hospital by her in-laws on 27.2.2000 at about 7 p.m. in a
burnt condition. Dr. Subhash Jain informed the Police Station, Gopalganj, about the arrival
of the deceased, Smt. Savita, and a police party arrived at the hospital. The dying
declaration was recorded by the Executive Magistrate, Smt. Madhu Nahar (DW.1), vide
Exh.D/2, wherein, the deceased stated that when she was cooking, kerosene oil had been
put behind her back, and when she moved herself back, her Saree caught fire. On
29.2.2000, ASI, Damodar Prasad Mahure (PW- 19), on the instructions of the
Superintendent of Police recorded the second dying declaration (Ex.P/2), wherein, the
deceased stated that appellant brought a kuppi (a metallic container for lighting) full of
kerosene and poured it on her body and as a result of which kerosene oil spread all over her
body. Thereafter, the fire was lit by chimney by him and she was burnt. She also stated that
she had been brought to the hospital by her in-laws. After recording the dying declaration
dated 29.2.2000, ASI Damodar Prasad (PW-19), recorded the Dehati Nalishi (Ex.P/14), at
10.40 p.m. on its basis. The kupee, as referred to in the dying declaration, was seized from
the house of the appellant on 2.3.2000. Smt. Savita died on 20.3.2000, and thus, there was
an alteration of offences from 307/ 201 IPC to 302 IPC. After completing the investigation,
charge sheet was filed against the appellant before the court and the case was committed to
the Court of Sessions where the appellant was tried. During trial, the prosecution examined
as many as 19 witnesses and in the form of documentary evidence, reliance was placed on
the statement of Savita, deceased, in the form of dying declaration dated 29.2.2000
(Ex.P/2), Dehati Nalishi (Ex.P/14), FIR (Ex.20), deposition of ASI (PW-19) dated
29.2.2000 and case diary etc.
In defence, appellant placed reliance on the statement of the deceased dated 27.2.2000
(Ex.D/2), and examined Smt. Madhu Nahar (DW.1). the appellant made a statement u/s.
313 of the Code of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C."), that he was,
by no means, involved in the case. However, the appellant did not explain under what
circumstances his wife was burnt. The trial Court, vide judgment and order dated
31.8.2000, found the appellant guilty of offence u/s. 302 IPC and accordingly sentenced

177
him to imprisonment for life. Being aggrieved, the appellant preferred Criminal Appeal No.
2304 of 2000 before the High Court of Madhya Pradesh, at Jabalpur, which has also been
dismissed vide judgment and order dated 9.7.2008. Hence, this appeal.
Arguments of the Counsels-Appellant
Sudhir Kulshreshtha, learned counsel appearing for the appellant, has submitted that it is a
case of circumstantial evidence as no eye-witness has been examined by the prosecution in
support of its case. There has been no allegation of a demand of dowry, though the
marriage had taken place only 9-10 months prior to the death of the deceased, Savita. The
only allegation against the appellant had been of harassment, as alleged by the parents of
the deceased, who were examined as prosecution witnesses before the trial Court. There
were two dying declarations in the case. The first was recorded by Ms. Madhu Nahar, the
Executive Magistrate (DW.1), which should have been accepted in toto, without raising
any doubt to its veracity as compared to the dying declaration, unauthorisedly recorded by
Shri Damodar Prasad Mahure, the ASI (PW.19), subsequently. Where there are two dying
declarations, the first dying declaration recorded by the Magistrate should have been relied
upon, particularly when both the witnesses to the second dying declaration had been
declared hostile. Therefore, the appeal deserves to be allowed.
Respondent - State
Siddharth Dave along with Vibha Datta Makhija, learned counsel for the respondent-State,
has vehemently opposed the appeal contending that the first dying declaration had been
recorded by the Executive Magistrate when the deceased, Savita, had been tutored by her
in-laws who had brought her to the hospital. At that time the deceased was under
duress/influence of her in-laws. However, there cannot be any doubt regarding contents of
the second dying declaration recorded by the police officer, particularly when it stands
corroborated with other relevant evidence. The appeal lacks merit and is liable to be
dismissed.
Judgment with Reasons
The Court observed that they reach the following inescapable conclusions on the questions
of fact:

178
“(a) After having the burn injuries, Savita, deceased, was brought to the hospital by her
Father-in-Law and Mother-in-Law and they had tutored not to give any statement against
her family members.
(b) The first Dying Declaration was recorded by the Executive Magistrate, Smt. Madhu
Nahar (DW.1), after getting a Certificate from the Doctor, in which Savita did not make
allegation against any of her family members, rather, she said that it was an accident.
However, such a statement is not supported by the medical evidence for the reason that the
injuries on her body were found on the upper part of her body and it was not possible to
have such burn injuries in case of the kind of accident as she had disclosed in the first
Declaration.
(c) The second Dying Declaration was recorded by a Police Officer on the instruction of
the Superintendent of Police after getting a Certificate of fitness from the Doctor, which is
corroborated by the medical evidence and free from any suspicious circumstances. More
so, it stands corroborated by the oral declaration made by the deceased to her parents,
Phool Singh (PW.1), father and Sushila (PW3), mother.
(d) A kuppi, the container, was recovered by the Investigating Officer from the house of the
appellant.
(e) Savita, deceased, died on 20.03.2000, after about 21 days of
recording of the second Dying Declaration. Thus, it is evident that she was not in a
precarious condition or unable to make the statement, rather this fact suggests that she
was in a stable condition.
(f) There is nothing on record to show for what reason, the witnesses would depose falsely
against the appellant”.
Dismissing the appeal, in view that in the facts and circumstances of this case, the above
concurrent findings of fact recorded by the Courts below, the court does not warrant any
interference from this Court. The appeal lacks merit and is accordingly dismissed.
Dying Declaration Guidelines- Can it be the sole evidence without corroboration
Atbir v Govt. of N.C.T. of Delhi
2010 Indlaw SC 629; (2010) 9 SCC 1; AIR 2010 SC 3477
P. Sathasivam and Balbir Singh Chauhan
Cases Referred

179
 1. Munnu Raja and Another v The State of Madhya Pradesh, (1976) 3 SCC 104
2. Paras Yadav and Ors. v State of Bihar, (1999) 2 SCC 126
3. Balbir Singh & Anr. v State of Punjab, (2006) 12 SCC 283
4. State of Rajasthan v Wakteng, (2007) 14 SCC 550
5. Muthu Kutty & Anr. v. State By Inspector of Police, T.N., (2005) 9 SCC 113
6. Panneerselvam v State of Tamil Nadu, (2008) 17 SCC 190
7. Paniben v State of Gujarat, (1992) 2 SCC 474
Facts of the case
Atbir, the appellant in Criminal Appeal No. 870 of 2006 is the son of one Jaswant Singh.
Jaswant Singh had married accused Chandra @ Chandrawati, who is absconding and from
the said wedlock, three children, namely, Satbir, Atbir and Anju were born to them.
Thereafter, Jaswant Singh married Sheela Devi, the deceased and from their wedlock, one
daughter Sonu @ Savita and one son Manish @ Mannu - the deceased, were born. Sheela
Devi - the 2nd wife of Jaswant Singh was staying at Mukherjee Nagar, Delhi, with her
children. They were having dispute over the division of their properties.
(b) On the afternoon of 22.01.1996, on receiving information of murder of a man and that
of one injured at N-33, Mukherjee Nagar, Delhi, Inspector Virender Singh, Addl. S.H.O.,
Mukherjee Nagar Police Station along with ASI Kanwar Lal, Ct. Manoj Kumar and Ct.
Jogender Singh rushed to the place of occurrence and found two dead bodies, one of female
and other of a boy aged about 16 years in the adjacent room on the ground floor of N-33,
Mukherjee Nagar, Delhi. Both were later identified as Smt. Sheela Devi, second wife of
Jaswant Singh and her son Manish @ Mannu. It was revealed at the spot that one injured,
namely, Sonu @ Savita, daughter of Sheela Devi was removed to Hindu Rao Hospital in a
PCR Gypsy. After leaving ASI Kanwar Lal at the spot, Inspector Virender Singh along
with his team rushed to Hindu Rao Hospital and on endorsement given by Dr. Sharat
Chandra Jai Singh-PW 30 that “patient fit for statement”, recorded the statement given by
Sonu @ Savita. In the statement, Sonu @ Savita alleged that Chandra @ Chandrawati her
step-mother, along with her son Atbir, one Ashok-appellant herein in Crl. Appeal No. 877
of 2006 and one person whose name she did not know entered their house and demanded
money from her mother Sheela Devi, but she refused. Accused persons bolted the doors
from inside and Atbir took out a knife and stabbed Manish @ Mannu, who was held by

180
Chandra @ Chandrawati, Ashok and another. Thereafter, Atbir stabbed Sheela Devi and
then Sonu @ Savita with knife. On the above statement, a case under Sections 307 and 302
of the IPC was registered at Mukherjee Nagar Police Station and investigation started. On
24.01.1996, Sonu @ Savita succumbed to her injuries and died at Hindu Rao Hospital.
(c) On completion of the formalities, the challan was filed in the Court of Metropolitan
Magistrate and after completion of committal proceedings, the case was re- allocated to the
Court of Additional Sessions Judge, Delhi. On 12.08.1997, a charge under Section 302 read
with Section 34 IPC. was framed against accused Atbir, Ashok and Chandra @
Chandrawati. On 24.08.1999, on filing the supplementary challan against accused Arvind,
the charge was re- framed against all the accused persons, namely, Atbir, Ashok, Arvind
and Chandra @ Chandrawati by the Court of Additional Sessions Judge, to which they
pleaded not guilty and claimed trial. Prosecution examined as many as 41 witnesses and
their statements were recorded. The Additional Sessions Judge, vide order dated
27.09.2004, convicted Atbir - appellant in Crl.A. No.870/2006 with death penalty and
Ashok- appellant in Crl. A. No. 877/2006 with life imprisonment and acquitted Arvind.
The accused Chandra @ Chandrawati remained absconding. Being aggrieved by the order
of the Additional Sessions Judge, Delhi, the appellants herein filed appeal before the High
Court. The murder reference was also sent by the Sessions Court to the High Court. The
High Court, by the impugned judgment and order dated 13.01.2006, confirmed the findings
recorded by the Additional Sessions Judge and upheld the conviction of the appellants
awarded by him. Against the said judgment, the appellants have preferred these appeals by
way of special leave before this Court.
Contention of the Parties
K. B. Sinha, learned senior counsel, has raised the following contentions: -
i. Whether the dying declaration made before the police officer without there being
any corroboration from any other independent witness in itself is sufficient to
convict the accused with capital punishment.
ii. When there was sufficient time for the Magistrate to be called for recording the
dying declaration, the statement made before the Investigating Officer can be
treated as dying declaration and the conviction of the accused with capital
punishment can be sustained.

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 iii. When the Doctor-PW 30, in whose presence the alleged statement “Dying
Declaration” was recorded, has stated in his deposition that the trachea of the
deceased Sonu @ Savita was torn then whether the dying declaration made before
the Investigation Officer inspire the confidence to base the conviction on the said
sole statement.
iv. When all the injuries responsible for causing the death, as noted in the statement
of doctor C.B. Dabbas- PW 9, who conducted the post-mortem on the dead body,
were on the neck then whether the dying declaration made before the I.O. can be
relied on to base the conviction.
v. Whether no corroboration of any kind is required to the dying declaration and the
conviction can be based solely on the dying declaration.
vi. Whether the High Court is justified in holding that the lust for property was the
motive of the accused persons for committing the murder.
vii. Whether the courts below are justified in awarding death sentence in the facts and
circumstances of the case and principles laid down by this Court.
Rangaramanujam, learned senior counsel for one of the appellants reiterated very same
contentions relating to recording of dying declaration by the police officer when the
Magistrate was very well available. He also submitted that in the absence of any
corroborative evidence, conviction solely on the basis of dying declaration cannot be
sustained. He further submitted that though, the knife, which was said to be used and
recovered, prosecution has not established the ownership of the same.
Contention of the State
Atri, learned senior counsel for the State has submitted that in view of the categorical
statements by way of dying declaration by Sonu @ Savita, recorded by police officer after
certifying that she was in a fit state of mind to make a statement by the doctor coupled with
the admissible portion of Suresh Chauhan PW-2, Arvind Monga PW-4, Jaswant Singh PW-
5, Ct. Kulvinder Singh PW-8, Dr. C.B. Dabbas PW-9, Dr. Ruma Jain PW-26 and Dr.
Sharat Chandra Jai Singh PW-30, absolutely there is no ground for interference. He also
highlighted that in view of aggravating circumstances, eliminating the entire family and
considering the brutality and exceptional depravity, the appellant-Atbir deserves capital
punishment. The life imprisonment imposed on the other accused, namely, Ashok is also

182
justifiable and there is no valid ground for interference and prayed for dismissal of both the
appeals.
Among the various contentions raised by both the sides, major part relates to two legal
submissions:-
a) Admissibility and reliability of the dying declaration made by Sonu @ Savita before the
Investigating officer.
b) Whether death sentence insofar as Atbir and life sentence insofar as Ashok is warranted.
The analysis of the various decisions clearly shows that,
i. Dying declaration can be the sole basis of conviction if it inspires the full
confidence of the Court.
ii. The Court should be satisfied that the deceased was in a fit state of mind at the time
of making the statement and that it was not the result of tutoring, prompting or
imagination.
iii. Where the Court is satisfied that the declaration is true and voluntary, it can base its
conviction without any further corroboration.
iv. It cannot be laid down as an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
v. Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence.
vi. A dying declaration which suffers from infirmity such as the deceased was
unconscious and could never make any statement cannot form the basis of
conviction.
vii. Merely because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected.
viii. Even if it is a brief statement, it is not to be discarded.
ix. When the eye-witness affirms that the deceased was not in a fit and conscious state
to make the dying declaration, medical opinion cannot prevail.
x. If after careful scrutiny, the Court is satisfied that it is true and free from any effort
to induce the deceased to make a false statement and if it is coherent and consistent,

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 there shall be no legal impediment to make it basis of conviction, even if there is no
corroboration.
Judgment on Dying Declaration and Death Sentence
It is seen from the evidence of the Doctors particularly, Post-mortem Doctor, that the
accused Atbir inflicted as many as 37 knife injuries on the body of three innocent persons.
A perusal of the post-mortem reports of the three deceased clearly shows the nature of the
injuries inflicted on all the vital parts and the accused Atbir continued his action
mercilessly till all the three lost their breath. Fortunately, before the death of Sonu @
Savita, she was taken to the hospital where she made a statement to the effect that how they
were killed by the accused particularly, by Atbir. She categorically mentioned that it was
Atbir who took out the knife and inflicted stab blows on all the three deceased. We have
already mentioned the fact that Atbir inflicted 37 knife blows which resulted in the death of
three persons. After analyzing all the relevant materials let in by the prosecution and in the
light of the well-established principles including aggravating and mitigating circumstances
as laid by the Constitution Bench in Bachan Singh's case 1980 Indlaw SC 586 (supra) and
explained in Machhi Singh’s case 1983 Indlaw SC 116 (supra), we conclude the murders
committed by Atbir is extremely brutal and diabolical one. The cold-blooded murder is
committed with deliberate design in order to inherit the entire property of Jaswant Singh
without waiting for his death. The magnitude of the crime is also enormous in proportion
since Atbir, with the assistance of his mother and brother, committed multiple murders of
all the members of the family. Apart from this, the victims are none else than his step-
mother, brother and sister. The victims are innocent who could not have or has not
provided even an excuse much less a provocation for murder. Further, the victims were
unaware of the sudden entry of Atbir and others and after bolting the door from inside, they
have no other way to go out or resist except subjecting themselves to the wishes of Atbir.
Though the accused Atbir was also at the age of 25 at the relevant point of time considering
his hunger and lust for property killing his own family members when they had no occasion
to provoke or resist and causing 37 knife blows on vital parts of all the three persons, we
conclude that it is a gravest case of extreme culpability and rarest of rare case and death
sentence alone would be proper and adequate. We have already noted that the accused had
no justifiable ground for his action. We are also satisfied that the victims were helpless and

184
undefended. Taking into consideration of all the facts and materials, it is crystal clear that
the entire act of Atbir amounts to a barbaric and inhuman behaviour of the highest order.
The manner in which the murder was carried out in the present case is extremely brutal,
gruesome, diabolical, and revolting as to shock the collective conscience of the community.
In the light of the above discussion, we confirm the conviction and sentence of death
imposed on Atbir and the same shall be executed in accordance with law. We also confirm
the conviction and sentence of life imprisonment imposed on Ashok. Consequently, both
the appeals are dismissed. Appeal dismissed.

185
 Section 40-44
Rajan Rai v State of Bihar
2005 Indlaw SC 718; (2006) 1 SCC 191; AIR 2006 SC 43374
Cases Referred
1. Hui Chiming v R, [1991] 3 All E.R. 897; [1992] 1 A.C. 34
2. Karan Singh v The State of Madhya Pradesh, AIR 1965 SC 1037
Facts of the Case
As per the prosecution it was stated that on 10.6.1983 at about 7.45 p.m. when Joginder
Singh [PW 9] came back to his house, he found his brother - Bhola Singh sitting at the
outer verandah of the house chatting with one Shobha Rai [DW 3]. At about 8.10 p.m.
Joginder Singh heard sound of explosion and found that a bomb was thrown upon his
brother - Bhola Singh. Thereafter he saw the appellant - Rajan Rai, accused Kameshwar
Rai, Tileshwar Rai [since deceased], Sipahi Rai, Bankim Rai and Dasrath Rai having bags
in their hands and throwing bombs on his brother as a result of which he fell down and
succumbed to the injuries. PW 9 caught the appellant from his waist whereupon accused
Kameshwar Rai threw a bomb upon him. Ram Ayodhya Rai [DW 1] Ram Gobind Sau
[DW.2] and DW 3 also sustained splinter injuries on their hands and legs during the course
of the occurrence. The occurrence was also witnessed by some other persons who were
present there. Thereafter, the accused persons fled away. Motive for the occurrence
disclosed is old grudge and animosity. The Parsa Police Station was at a distance of 1/4th
kilometer from the place of occurrence, as such Baban Prasad Singh, Sub-Inspector of
Police, [PW 17], who was in- charge of the said Police Station on that day, upon hearing
sound of bomb explosion along with other police officials came to the place of occurrence
and recorded fard-beyan of PW 9 at 8.25 p.m. in which the aforenoted facts were stated on
the basis of which formal First Information Report [FIR] was registered at 9.30 p.m. on the
same day in which names of all the six accused persons, including the appellant, were
disclosed. Police after registering the case took up investigation and on completion thereof
submitted charge sheet against all the six accused on receipt whereof cognizance was taken
and all of them were committed to the Court of Sessions to face trial. As the appellant -
Rajan Rai was absconding, his trial was separated from that of other five accused persons,
out of whom Tileshwar Rai died before the commencement of trial, as such, the trial
74 B.N. Agrawal and A.K. Mathur

186
proceeded against the remaining four accused persons and the same was registered as
Sessions Trial Nos. 245 of 1983 and 20 of 1984.
Contention of the Defence
Shri P.S. Mishra, learned Senior Counsel appearing in support of the appeal, attacked the
impugned judgment on three counts.
Firstly, it has been submitted that as in the appeal arising out of the earlier trial, the High
Court acquitted other four accused persons on merit, it was not permissible for it to uphold
conviction of the appellant on the basis of evidence of the same witnesses examined during
the course of trial of the appellant.
Secondly, in the facts and circumstances of the present case, the High Court was not
justified in upholding the convictions of the appellant as the evidence of the four
eyewitnesses, namely, PWs 2,3,5 and 9 could not have been relied upon, especially in view
of the fact that their names were not disclosed in the FIR and the three eyewitnesses,
namely, DWs 1, 2 and 3, who were injured witnesses named in the FIR, did not support the
prosecution case so far as complicity of the appellant with the crime was concerned.
Thirdly, it has been submitted that there being only six accused persons out of whom four
acquitted and prosecution of one - Tileshwar Rai dropped, he having died before the
commencement of trial, the conviction of the appellant u/s. 302 read with S. 34 IPC was
not justified as he could not have shared the common intention either with the four
acquitted accused persons or even with Tileshwar Rai, whose prosecution was dropped. On
the other hand, Shri B.B. Singh, learned counsel appearing on behalf of the State of Bihar,
submitted that judgment of acquittal rendered by the High Court in appeals arising out of
convictions of other four accused persons in their trial was inadmissible and irrelevant in
the present trial. Further, the evidence of PWs 2, 3, 5 and 9 has been rightly relied upon by
the trial court as well as the High Court.
Lastly, learned counsel submitted that conviction of the appellant u/s. 302 read with S. 34
IPC was warranted in law as the appellant could have shared the common intention with
accused Tileshwar Rai, who died before the commencement of trial and his prosecution
was simply dropped by virtue of his death which cannot be equated with the case of
acquittal.

187
Defence of the accused persons was that they were innocent, no occurrence much less the
occurrence alleged had taken place and that they had no complicity with the crime, but
were falsely roped in to feed fat the old grudge. In the aforesaid Sessions Trial Nos.
245/1983 and 20/1984, which proceeded against the aforesaid four accused persons, as
stated above, both the parties adduced evidence and upon conclusion thereof all the four
accused persons were convicted u/s. 302 read with S. 34 IPC and sentenced to undergo
imprisonment for life. They were further convicted u/ss. 3 and 5 of the Act and sentenced
to undergo rigorous imprisonment for 10 years on each count. The sentences were,
however, ordered to run concurrently. Against the said judgment, appeals were preferred by
the aforesaid four convicted accused persons. During the pendency of the appeals, the
appellant could be apprehended and was put on trial giving rise to Sessions Trial No. 181
of 1985, during the course of which both the parties examined witnesses and upon
conclusion of the trial, the trial court convicted the appellant, as stated above, against which
judgment also an appeal was preferred before the High Court. The appeals preferred by the
four convicted accused persons challenging their conviction recorded in Sessions Trial No.
245/1983 and 20/1984 were decided by the High Court on 4th October, 1996 and the same
were allowed and their convictions and sentences set aside, which attained finality as the
matter was not carried further to this Court. The appeal filed by the appellant was taken up
later on and by the impugned judgment, the High Court upheld his convictions and
sentences. Hence this appeal by special leaves.
Principle applicable- Section 40-4475
Coming to the first submission very strenuously canvassed by Shri Mishra, it would be
necessary to refer to the provisions of Ss. 40 to 44 of the IEA, which are under the heading
'Judgments of Courts of justice when relevant', and in the aforesaid Sections the
circumstances under which previous judgments are relevant in civil and criminal cases
have been enumerated. S. 40 states the circumstances in which a previous judgment may be
relevant to bar a second suit or trial and has no application to the present case for the
obvious reasons that no judgment order or decree is said to be in existence in this case

75 Section 40-44 -Satrucharla Vijaya Rama Raju v Nimmaka Jaya Raju and Others, 2005 Indlaw SC 699,
(2006) 1 SCC 212, AIR 2006 SC 543, Bench: P.K. Balasubramanyan, R.C. Lahoti and C.K. Thakker
(Elelction petition and Documentatry Evidence) - Misrepresentation in the Caste as Tribe when the accused
was Khsatriya

188
which could in law be said to prevent the Sessions Court from holding the trial. S. 41 deals
with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency
jurisdiction and is equally inapplicable. S. 42 refers to the relevancy and effect of
judgments, orders or decrees other than those mentioned in S. 41 in so far as they relate to
matters of a public nature, and is again inapplicable to the present case. Then comes 10. S.
43 which clearly lays down that judgments, order or decrees, other than those mentioned in
Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or
decree is a fact in issue, or is relevant under some other provisions of the IEA. As it has
not been shown that the judgment of acquittal rendered by the High Court in appeals
arising out of earlier sessions trial could be said to be relevant under the other provisions of
the IEA, it was clearly "irrelevant" and could not have been taken into consideration by the
High Court while passing the impugned judgment. The remaining S. 44 deals with fraud or
collusion in obtaining a judgment, or incompetency of a court which delivered it, and can
possibly have no application in the present case. It would thus appear that the High Court
was quite justified in ignoring the judgment of acquittal rendered by it which was clearly
irrelevant.
Reasoning-In view of the foregoing discussion, we are clearly of the view that the
judgment of acquittal rendered in the trial of other four accused persons is wholly irrelevant
in the appeal arising out of trial of appellant - Rajan Rai as the said judgment was not
admissible under the provisions of Ss. 40 to 44 of the IEA. Every case has to be decided on
the evidence adduced therein. Case of the four acquitted accused persons was decided on
the basis of evidence led there while case of the present appellant has to be decided only on
the basis of evidence adduced during the course of his trial. Now the question arises as to
whether the trial court as well as the High Court was justified in placing reliance upon the
evidence of PWs 2, 3, 5 and 9. PW 9 is the informant himself and, being brother of the
deceased, most competent person to have witnessed the occurrence that had taken place in
the outer verandah of the house.
Judgment -For the foregoing reasons, we are of the view that the High Court has not
committed any error in upholding convictions of the sole appellant u/s. 302 read with S. 34
IPC as well as Ss. 3 and 5 of the Act. In the result, the appeal fails and the same is
dismissed. Bail bonds of the appellant, who is on bail, are cancelled and he is directed to be

189
taken into custody forthwith to serve out the remaining period of sentence for which a
compliance report must be sent to this Court within one month from the date of receipt of
copy of this order. Appeal dismissed.

190
 Section 41-44
Hemalata Sahu v Sugyani Sahu
2009 Indlaw ORI 89; AIR 2010 ORI 3576
Facts of the case
Smt. Sugyani Sahu (respondent herein) obtained a decree of maintenance against her
husband Rabi Narayan Sahu u/s. 18 of Hindu Adoption and Maintenance Act, 1956 for a
sum of Rs. 1,200/- (Rupees Twelve Hundred only) per month which was made payable
from 7-4-1998. She levied the execution being Execution Proceeding No. 6 of 2003 for
realization of maintenance. In the said proceeding order of attachment of immovable
property to the extent of the share of judgment debtor was passed on 26-9-2003. The
present appellant Hemalata Sahu being the mother of Rabinarayan Sahu filed a petition
under Order 21, Rule 58, C. P. C. to dismiss the Civil Proceeding No. 136 of 1998 on the
ground that the decree holder cannot be regarded as the wife of Rabinarayan Sahu because
of statutory bar contained u/ss. 5 and 18 of the Hindu Marriage Act, 1955 and, therefore,
the execution proceeding is liable to be dropped and the order of attachment vacated. The
learned Court below after hearing from both sides rejected the application and dismissed
the Misc. Case occasioning the present appeal.
Contention of the counsels
Learned advocate for the appellant has submitted that the impugned order is bad in law
since the property belongs to a joint family to which the judgment debtor belongs and since
all the members of the joint family have not been impleaded in the suit. Learned advocate
for the respondent has supported the impugned order with vehemence.
Judgment
In the present case, whether the marriage between the decree holder and judgment debtor is
valid or not and whether the decree holder is entitled to maintenance from the judgment
debtor and to what extent has already been decided by the competent Court. This judgment
is a judgment in rem and consequently, is binding against the whole world as per the
provision of S. 41 of the Evidence Act. The judgment could be challenged only by a party
to the litigation that too in a competent appeal.

76 L. K. Mishra and P. K. Tripathy

191
 Sections 40-44

Syed Askari Hadi Ali Augustine Imam & Anr. v State (Delhi Admn.) & Anr
2009 Indlaw SC 278; (2009) 5 SCC 528; AIR 2009 SC 323277
Cases Referred
1. M.S. Sheriff & anr. v State of Madras & Ors., AIR 1954 SC 397
2. K.G. Premshanker v Inspector of Police and anr., [(2002) 8 SCC 87]
3. M/s Karam Chand Ganga Prasad & anr. etc. v Union of India & ors, [(1970) 3
SCC 694]
Facts of the Case
One Shamim Amna Imam (testatrix) indisputably was the owner of the properties in
question. Allegedly, she executed a Will in favour of the appellants on 3.5.1998. She
expired on 23.5.1998. Her legal heir was one Smt. Syeda Mehndi Imam (‘Syeda’ for short),
the mother of the testatrix. On or about 23.1.1999, Syed Askari Hadi Ali Augustine Imam
(‘Askari’ for short) filed an application before the office of the Sub- Registrar Hazaribagh
in the State of Jharkhand for registration of the said Will dated 3.5.1998. He also applied
before the Delhi Development Authority (DDA) for grant of mutation in respect of the
property situated at A-4, Chirag Co-operative Housing Society Limited known as Chirag
Enclave, New Delhi on or about 25.2.1999 in view of the Will dated 3.5.1998.
Indisputably, Syeda also made an application to the DDA on 23.4.1999 for grant of
mutation in her favour. On or about 17.7.2000, the said Authority informed 'Askari' that his
request for mutation could not be acceded to as (1) the appellant could not produce the
original copy of the Will dated 3.5.1998; (2) the property in question was under the
possession of Shri M.C. Reddy and Shri M.H. Reddy, and (3) Title Suit (T.S. No. 262 of
1991) filed by testatrix against the appellant was pending in the civil court in Hazaribagh.
Thereafter, appellant approached Permanent Lok Adalat (PLA) of the DDA, which by an
award dated 20.2.2001 directed DDA to grant mutation in his favour. Syeda filed a writ
petition marked as Writ
Petition (C) No. 2263 of 2002 before the Delhi High Court for quashing of the said order
dated 20.2.2001 of the PLA in pursuance whereof further proceedings before the PLA was
directed to be stayed by an order 3.5.2002. Aggrieved thereby, Askari filed Writ Petition

77 S.B. Sinha, Lokeshwar Singh Panta and B. Sudarshan Reddy

192
(C) No. 3579 of 2002, which has been dismissed by a learned single judge of the same
High Court by an order dated 8.4.2003. Writ Petition (C) No. 2263 of 2002 filed by Syeda
has been allowed by an order dated 29.9.2003. An appeal preferred there against before the
Division Bench of High Court was dismissed. A Special Leave Petition filed there against
has also been dismissed by this Court. Indisputably Syeda filed a civil suit in the court of
Subordinate Judge, Patna, which was marked as Civil Suit No. 71 of 2000, inter alia,
questioning the genuineness of the said will based on which the appellants had claimed
mutation in respect of the property at Delhi. Syeda also filed a criminal complaint on or
about 19.9.2002 against the appellants under Sections 420/468/444/34 IPC in Greater
Kailash-I, New Delhi, Police Station alleging that the Will dated 3.5.1998 had been forged
by the appellants. The matter was investigated into and the disputed Will was sent for
examination by the experts to the Forensic Science Laboratory and the same was found to
be forged…
Contention of the Appellants
Dinesh Dwivedi, learned Senior Counsel appearing on behalf of the appellants, would urge:
(i) A judgment in a probate proceeding being a judgment in rem as envisaged u/s. 41 of the
Indian Evidence Act, the criminal proceedings should have been directed to be stayed.
(ii) The learned trial judge as also the High Court committed a serious error insofar as they
failed to take into consideration that the application u/s. 309 of the Code of Criminal
Procedure was dismissed on the same ground on which the application for quashing the
proceedings had been dismissed.
Contention of the State
A. Sharan, learned Additional Solicitor General appearing for State and Dr. A.M. Singhvi,
learned Senior Counsel appearing on behalf of the impleaded respondent, however would
support the impugned judgment. Indisputably, in a given case, a civil proceeding as also a
criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can
be taken by the criminal court upon arriving at the satisfaction that there exists a prima
facie case. The question as to whether in the facts and circumstances of the case one or the
other proceedings would be stayed would depend upon several factors including the nature
and the stage of the case…, a Constitution Bench of this Court was seized of a question as
to whether a civil suit or a criminal case should be stayed in the event both are pending; it

193
was opined that the criminal matter should be given precedence. In regard to the possibility
of conflict in decisions, it was held that the law envisages such an eventuality when it
expressly refrains from making the decision of one Court binding on the other or even
relevant, except for certain limited purposes, such as sentence or damages. It was held that
the only relevant consideration was the likelihood of embarrassment. If primacy is to be
given to a criminal proceeding, indisputably, the civil suit must be determined on its own
merit, keeping in view the evidences brought before it and not in terms of the evidence
brought in the criminal proceeding.
Arguments relating to Ss 40-44
“What emerges from the aforesaid discussion is
1. the previous judgment which is final can be relied upon as provided u/ss. 40 to 43
of the Evidence Act;
2. in civil suits between the same parties, principle of res judicata may apply;
3. in a criminal case, S. 300 CrPC makes provision that once a person is convicted or
acquitted, he may not be tried again for the same offence if the conditions
mentioned therein are satisfied;
4. if the criminal case and the civil proceedings are for the same cause, judgment of
the civil court would be relevant if conditions of any of Ss. 40 to 43 are satisfied,
but it cannot be said that the same would be conclusive except as provided in S. 41.
S. 41 provides which judgment would be conclusive proof of what is stated therein.
31. Further, the judgment, order or decree passed in a previous civil proceeding, if
relevant, as provided u/ss. 40 and 42 or other provisions of the Evidence Act then
in each case, the court has to decide to what extent it is binding or conclusive with
regard to the matter(s) decided therein. Hence, in each and every case, the first
question which would require consideration is- whether judgment, order or decree
is relevant, if relevant - its effect. It may be relevant for a limited purpose, such as,
motive or as a fact in issue. This would depend upon the facts of each case”.
It is, however, significant to notice that the decision of this Court … wherein it was
categorically held that the decisions of the civil courts will be binding on the criminal
courts but the converse is not true, was overruled…,

194
Judgment
The FIR was lodged not only in regard to forgery by the Will but also on the cause of
action of a trespass. Appellant admittedly is facing trial under Section 420, 468 and 448 of
the IPC. It is, thus, possible that even if the Will is found to be genuine and that no case u/s.
468 of the IPC is found to have been made out, appellant may be convicted for commission
of other offences for which he has been charged against, namely, trespass into the property
and cheating. If it is found that the appellant is guilty of trespass, he may be asked to
handover possession of the premises in question to the complainant. Exercise of such a
jurisdiction furthermore is discretionary. As noticed by several decisions of this Court,
including two Constitution Bench decisions, primacy has to be given to a criminal case.
The FIR was lodged on 19.9.2002. Not only another civil suit is pending, as noticed
hereinbefore, but a Lis in relation to mutation is also pending. Whereas the criminal case is
pending before the Delhi court, the testamentary suit has been filed before the Jharkhand
High Court. Since 2003 not much progress has been made therein. The Will has not been
sent to the handwriting expert for his opinion, which is essential for determination of the
question in regard to the genuineness of the Will. It is alleged that the Will was registered
at Hazaribagh after the death of the testatrix. For the last seven years in view of the
pendency of the matters before the High Courts in different proceedings initiated by the
appellant, the criminal case has not proceeded, although as noticed hereinbefore charge-
sheet has been filed and cognizance of the offence has been taken. We, therefore, are of the
opinion that it is not a fit case where we should exercise our discretionary jurisdiction u/art.
136 of the Constitution of India having regard to the facts and circumstances of the present
case. For the aforementioned reasons, we find no merit in this appeal. The appeal is
dismissed. No costs. Appeal dismissed

195
 Evidence Includes Expert Opinion
Ramesh Chandra Agrawal v Regency Hospital Limited and Others
AIR 2010 SC 80678
Cases Referred
1. State of H.P. v Jai Lal and Ors., [(1999) 7 SCC 280]
2. Titli v Jones, (AIR 1934 All 237)
3. State of Maharashtra v Damu s/o Gopinath Shinde and others, AIR 2000 SC 1691;
2000 Indlaw SC 570
Facts of the Case
The appellant/complainant was a teacher by profession. He was aged about 60 years when
he was down with physical ailments such as 1 backache and difficulty in walking as a
result of progressive weakness of both his lower limbs. As the problem worsened, on
20.11.1995, the appellant approached Regency Hospital Ltd. (Respondent No. 1), for
Medical check-up. On the same day, C.T. Scan was done and he was diagnosed as a patient
of 2w3Dorsol Cord Compression D4-D6 Pott’s spine which in simple terms means that
T.B. infection has spread till his vertebra. On the same day he was advised to get operated
for decompression of spinal cord by Laminectomy D-3 to D-6. The operation was
performed by Dr. Atul Sahay (Respondent No.2) on 25.11.1995. It is asserted, that, after
the operation, the condition of the appellant deteriorated further and it was revealed from
the MRI scan that the operation was not successful as it was not done at the right level. It is
also stated that the case summary and the MRI reports suggest that the problem was
aggravated and there was need for another operation. Dr. I.N.Vajpayee (respondent no.3)
was consulted on 12.12.1995 and he performed the operation on the same day. Even after
the second operation the infection was not cured and this forced him to refer his case to
Vidya Sagar Institute of Mental Health and Neurological Sciences, New Delhi
(VIMHANS) for further treatment. It is further stated, that, the third operation was
performed and it 2 provided the appellant some relief, but left him handicapped due to his
legs being rendered useless and loss of control over his Bladder movement.
Complaint Before the National Commission-“The appellant, being impaired by the
treatment, filed a complaint before the National Consumer Disputes Redressal Commission
(“National Commission”) alleging medical negligence on the part of respondents 1 to 3.

78 H.L. Dattu and G.S. Singhvi

196
Claim
“The claim of the appellant before the National Commission was as under:
i. That the correct method of operating his infection was the Antero-Lateral
Decompression (ALD) and not Laminectomy.
ii. That the complainant/appellant contends that he was kept only for one week on the
Anti-Tubercular drugs before the surgery, which is a much shorter duration than
the accepted medical practice.
iii. That there was no requirement of immediate surgery.
iv. That the respondent no.2, who was a Neurosurgeon did not consult the Orthopedic
surgeon, even though he was not capable to handle the case of
complainant/appellant without consulting Orthopedic surgeon. Hence, it was
claimed that there is gross negligence and carelessness on the part of the
respondents in treating the complainant/appellant, 3 and therefore, respondents be
directed to pay a sum of Rs. 22,00,000/- with interest at the rate of 24% per annum
to the complainant”.
National Commission Judgment
After considering the case presented by the appellant and the respondents and looking
through the affidavits filed by the parties, the National Commission has come to the
conclusion that medical negligence is not proved against the respondents.
The Commission has concluded: “Medical negligence is when a doctor did something
which he ought not to have done or did not do what he ought to have done. The doctors
were qualified professionals. They did whatever was required to be done of Neuro-
Surgeons. In fact, we find the complainant's deficient, who neither appeared for cross
examination nor produced any literature in support of this case to be of any assistance to
this Commission”.
Contention of the Parties
Contention in the Appeal: It is the contention of the appellant that it was due to non-
compliance of the order of National Commission by the Registry of National Commission;
the Commission did not have the benefit of the expert opinion to arrive at a conclusion, as
to whether there was any negligence of the doctors who treated the appellant. It is further 4
contended that pursuant to the order passed by the Commission dated 5.1.2000, the

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appellant had submitted all the records relating to his treatment on 4.2.2000 and had
requested the Registry of the Commission to forward the same to Dr. A.K. Singh,
Neurologist, who had been requested to offer his opinion on the surgery done to the
appellant.
However, the Registry had not sent the documents furnished by the appellant to the expert
and, therefore, the expert could not offer his opinion and thereby, the appellant was denied
the benefit of having an opinion which would have proved his case before the Commission.
Contention of the Respondents
The respondents in their counter affidavit filed before this court, have denied the assertions
and allegations made by the appellants and further justified the judgment of the National
Commission.
About the Concept
Cleavage of Opinion:
“Since medical science is complicated, expert opinion provides deep insight. It is clear that
diagnosis and the method of treatment suggested to a patient of Pott’s disease vary. The
nature of disease is such that there exists difference in the identification of the symptoms
and also the protocol of treatment to cure the disease. Therefore, the expert opinion forms
an important role in arriving at conclusion”.
EXPERT OPINION:
“The law of evidence is designed to ensure that the court considers only that evidence
which will enable it to reach a reliable conclusion. The first and foremost requirement for
an expert evidence to be admissible is that it is necessary to hear the expert evidence79.
The test is that the matter is outside the knowledge and experience of the lay person. Thus,
there is a need to hear an expert opinion where there is a medical issue to be settled. The
scientific question involved is assumed to be not within the court's knowledge. Thus, cases
where the science involved, is highly specialized and perhaps even esoteric, the central role

79 Santokh Singh and another v State of Punjab 2010 Indlaw SC 706, (2010) 8 SCC 784 ( Suicide or
Murder)
The absence of fingerprints on the pistol the trial court concluded that the fatal shot had not been fired by the
deceased. His fingerprints were bound to be present on the pistol in case the shot had been fired by him. The
fingerprint expert in his report has clearly stated that the pistol had been wiped clean. The trial court, in our
opinion, rightly concluded that the fingerprints were in all probability wiped away by the assailant to remove
the evidence of his fingerprints. There is no reason for any other person to remove the finger prints. We are
unable to accept the farfetched suggestion of Mr. Tulsi that the fingerprints have been removed to rule out the
possibility of the deceased having shot himself.

198
of expert cannot be disputed. The other requirements for the admissibility of expert
evidence are:
i. that the expert must be within a recognized field of expertise
ii. that the evidence must be based on reliable principles, and
iii. that the expert must be qualified in that discipline.
Cases Referred
The importance of the provision has been explained in the case of State of H.P. v Jai Lal
and Ors80.
It is stated in Titli v Jones81 that the real function of the expert is to put before the court all
the materials, together with reasons which induce him to come to the conclusion, so that the
court, although not an expert, may form its own judgment by its own observation of those
materials.
Judgment
In view of the above discussion, appeal requires to be allowed and, accordingly, it is
allowed. The impugned order is set aside.
The Registrar of the Commission is directed to forward all the records of the treatment filed
by the appellant before the Commission to Dr. A. K. Singh, Neurologist, who is now
working at Fortis Hospital, Noida, for his expert opinion within one month from the date of
receipt of this order, with a request to give his expert opinion on the basis of the records of
the treatment and affidavits filed by both the parties within two months from the date the
records are made available to him. After receipt of the expert opinion, the Commission is
requested to pass fresh order in accordance with law. No order as to costs.

80(1999) 7 SCC 280

81 AIR 1934 All 237

199
 Chemical Examiner
Ajay Kumar Parmar v State of Rajasthan
2012 Indlaw SC 424, (2012) 12 SCC 40682
Cases referred
1. Mahabir Singh v State of Haryana, AIR 2001 SC 2503
2. Sanjay Gandhi v Union of India, AIR 1978 SC 514
3. O. Bharathan v K. Sudhakaran & Anr., AIR 1996 SC 1140
4. A. Neelalohithadasan Nadar v George Mascrene & Ors., 1994 Supp. (2) SCC 619
Facts and Appeal
The Judgment was delivered by Balbir Singh Chauhan, J.
This appeal has been preferred against the impugned judgment and order passed by the
High Court of Judicature for Rajasthan at Jodhpur by way of which, the High Court has
upheld the judgment and order passed by the Sessions Judge and By way of the said
revisional order, the court had reversed the order of discharge of the appellant for the
offences u/ss. 376 and 342 of IPC, passed by the Judicial Magistrate, Sheoganj.
Facts
The facts and circumstances giving rise to this appeal are as follows:
A FIR was lodged by one Pushpa on 22.3.1997, against the appellant stating that the
appellant had raped her on 10.3.1997. In view thereof, an investigation ensued and the
appellant was medically examined. The prosecutrix's clothes were then also recovered and
were sent for the preparation of FSL report. The prosecutrix was medically examined on
22.3.1997, wherein it was opined by the doctor that she was habitual to sexual intercourse,
however, a final opinion regarding fresh intercourse would be given only after receipt of
report from the Chemical Examiner.
Contention by the Prosecution
As the public prosecutor could not produce the Case Diary at 4.00 P.M, the Judicial
Magistrate, Sheoganj, directed the Public prosecutor to produce the Case Diary on
10.4.1997 at 10.00 A.M. The Case Diary was then produced before the said court on
10.4.1997 by the Public prosecutor. The Statement of the prosecutrix u/s. 164 Cr.P.C., was
recorded after being identified by the lawyer, to the effect that the said FIR lodged by her
82 Balbir Singh Chauhan and Fakkir Mohamed Ibrahim Kalifulla

200
was false; in addition to which, the statement made by her u/s. 161 Cr.P.C., before the
Deputy Superintendent of Police was also false; and finally that no offence whatsoever was
ever committed by the appellant, so far as the prosecutrix was concerned. After the
conclusion of the investigation, charge sheet was filed against the appellant. On 25.3.1998,
the Judicial Magistrate, Sheoganj, taking note of the statement given by the prosecutrix u/s.
164 Cr.P.C., passed an order of not taking cognizance of the offences u/ss. 376 and 342
IPC and not only acquitted the appellant but also passed strictures against the investigating
agency. Aggrieved, the public prosecutor filed a revision before the Learned Sessions
Judge, Sirohi, wherein, the aforesaid order dated 25.3.1998 was reversed by order dated
25.7.1998 on two grounds, firstly, that a case u/ss. 376 and 342 IPC was triable by the
Sessions Court and the Magistrate, therefore, had no jurisdiction to discharge/acquit the
appellant on any ground whatsoever, as he was bound to commit the case to the Sessions
Court, which was the only competent court to deal with the issue. Secondly, the alleged
statement of the prosecutrix u/s. 164 Cr.P.C. was not worth reliance as she had not been
produced before the Magistrate by the police.
Contention by the Appellant
Being aggrieved by the aforesaid order of the Sessions Court dated 25.7.1998, the appellant
moved the High Court and the High Court vide its impugned judgment and order, affirmed
the order of the Sessions Court on both counts.
Hence, this appeal.
Before the Appellate court on Evidence
It was permissible for the Judicial Magistrate, Sheoganj, to take into consideration the
evidence in defence produced by the appellant as it has consistently been held by this Court
that at the time of framing the charge, the only documents which are required to be
considered are the documents submitted by the investigating agency along with the charge-
sheet. Any document which the accused want to rely upon cannot be read as evidence. If
such evidence is to be considered, there would be a mini trial at the stage of framing of
charge. That would defeat the object of the Code. The provision about hearing the
submissions of the accused as postulated by S. 227 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. Even if, in a rare case it is permissible to consider the defence

201
evidence, if such material convincingly establishes that the whole prosecution version is
totally absurd, preposterous or concocted, the instant case does not fall in that category.
(Vide: State of Orissa v Debendra Nath Padhi, AIR 2003 SC 1512; State of Orissa v.
Debendra Nath Padhi, AIR 2005 SC 359; S.M.S. Pharmaceuticals Ltd. v Neeta Bhalla &
Anr., AIR 2005 SC 3512; Bharat Parikh v C.B.I. & Anr., (2008) 10 SCC 109; and Rukmini
Narvekar v Vijaya Satardekar & Ors., AIR 2009 SC 1013).
At the stage of application of Section 227, the court has to shift the evidence in order to
find out whether or not there is sufficient ground for proceeding against the accused. Thus,
appreciation of evidence at this stage is not permissible. (Vide: P. Vijayan v State of Kerala
& Anr., AIR 2010 SC 663 and R.S. Mishra v State of Orissa & Ors., AIR 2011 SC 1103).
On Expert Opinion
The original record reveals that the prosecutrix had lodged the FIR herself and the same
bears her signature. She was medically examined the next day, and the medical report also
bears her signature. We have compared the aforementioned signatures with the signatures
appearing upon the application filed before the Chief Judicial Magistrate, Sirohi, for
recording her statement u/s. 164 Cr.P.C., as also with, the signature on the statement
alleged to have been made by her u/s. 164 Cr.P.C., and after examining the same, prima
facie we are of the view that they have not been made by the same person, as the two sets
of signatures do not tally, rather there is an apparent dissimilarity between them.
Expert Opinion and Comparison of Signature
Evidence of identity of handwriting has been dealt with by three Sections of the Indian
Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act') i.e. Sections 45, 47 and
73. S. 73 of the said Act
provides for a comparison made by the Court with a writing sample given in its presence,
or admitted, or proved to be the writing of the concerned person. (Vide: Ram Chandra &
Anr. v. State of Uttar Pradesh, AIR 1957 SC 381 1956 Indlaw SC 127; Ishwari Prasad
Misra v. Mohammad Isa, AIR 1963 SC 1728 1962 Indlaw SC 256; Shashi Kumar Banerjee
& Ors. v. Subodh Kumar Banerjee, AIR 1964 SC 529 1963 Indlaw SC 414; Fakhruddin v.
The State of Madhya Pradesh, AIR 1967 SC 1326 1966 Indlaw SC 403; and State of
Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100 1992 Indlaw SC 44).

202
In Murari Lal v State of Madhya Pradesh83, this Court, while dealing with the said issue,
held that, in case there is no expert opinion to assist the court in respect of handwriting
available, the court should seek guidance from some authoritative text-book and the courts
own experience and knowledge, however even in the absence of the same, it should
discharge its duty with or without expert, with or without any other evidence. The opinion
of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it
cannot be brushed aside as useless. There is no legal bar to prevent the Court from
comparing signatures or handwriting, by using its own eyes to compare the disputed
writing with the admitted writing and then from applying its own observation to prove the
said handwritings to be the same or different, as the case may be, but in doing so, the Court
cannot itself become an expert in this regard and must refrain from playing the role of an
expert, for the simple reason that the opinion of the Court may also not be conclusive.
Therefore, when the Court takes such a task upon itself, and findings are recorded solely on
the basis of comparison of signatures or handwritings, the Court must keep in mind the risk
involved, as the opinion formed by the Court may not be conclusive and is susceptible to
error, especially when the exercise is conducted by one, not conversant with the subject.
The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base
its findings solely upon the comparison made by it. However, where there is an opinion
whether of an expert, or of any witness, the Court may then apply its own observation by
comparing the signatures, or handwritings for providing a decisive weight or influence to
its decision.
From the signatures on the FIR and Medical Report, it appears that she is not an educated
person and can hardly form her own signatures. Thus, it leads to suspicion regarding how
an 18-year-old, who is an illiterate rustic villager, reached the court and how she knew that
her statement could be recorded by the Magistrate. More so, she appeared before the Chief
Judicial Magistrate, Sirohi, and not before the area Magistrate at Sheoganj.
Judgment with reasons
The revisional court as well as the High Court have rightly held that the statement u/s. 164
Cr.P.C. had not been recorded correctly. The said courts have rightly set aside the order of
the Judicial Magistrate, Sheoganj, dated 25.3.1998, not taking the cognizance of the

83 AIR 1981 SC 363

203
offence. There is no provision analogous to Section 207-A of the old Cr.P.C. The Judicial
Magistrate, Sheoganj, should have committed the case to the Sessions court as the said
application could be entertained only by the Sessions Court. More so, it was not
permissible for the court to examine the weight of defence evidence at that stage. Thus, the
order is insignificant and inconsequential being without jurisdiction.
Dismissing the Appeal - The court held that there is any force in the appeal. It is,
accordingly, dismissed. The judgment and order of the revisional court, as well as of the
High Court is upheld. The original record reveals that in pursuance of the High Court's
order, the case has been committed by the Judicial Magistrate, Sheoganj, to the Court of
Sessions on 23.4.2012. The Sessions Court is requested to proceed strictly in accordance
with law, expeditiously and take the case to its logical conclusion without any further
delay. We make it clear that none of the observations made herein will adversely affect
either of the parties, as the same have been made only to decide the present case.

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 Tape Recorded Evidence under the Prevention of Corruption Cases
R. M. Malkani v State of Maharashtra
1972 Indlaw SC 200; AIR 1973 SC 15784
Cases Refereed-
1. Shri N. Sri Rama Reddy etc. v Shri V. V. Giri, [1971] 1 S C. R. 399
2. Ysufalli Esmail Nagree v The State of Maharashtra, [1967] 3 S.C.R. 720
3. S. Pratap Singh v The State of Punjab, [1964] 4 S.C.R. 733
4. R. v Maqsud Ali, [1965] 2 All. E.R. 464; [1965] 3 W.L.R.229
5. R. v Leatham, [1861] 8 Cox.C.C.498; 121 E.R. 589
Facts of the case
The appellant was at the crucial time the Coroner of Bombay. The prosecution case was as
follows. Jagdish prasad Ramnarayan Khandelwal was admitted to the nursing home of a
Gynecologist Dr. Adatia on 3 May, 1964. Dr. Adatia diagnosed the case as acute
appendicitis. Dr. Adatia kept the patient under observation. After 24 hours the condition of
the patient became serious. Dr. Shantilal J. Mehta was called. His diagnosis was acute
appendicitis with ‘generalised peritonitis’ and he advised immediate operation. Dr. Adatia
performed the operation. The appendix, according to Dr. Adatia had become gangrenous.
The patient developed paralysis of the ilium. He was removed? to Bombay Hospital on 10
May, 1964 to be under the treatment of Dr. Motwani. The patient died on 13 May, 1964.
The Hospital issued a Death Intimation Card as “paralytic ileus and peritonitis following an
operation, for acute appendicitis”. The appellant allowed the disposal of the dead body
without ordering post-mortem. There was however a request for an inquest from the Police
Station. The cause for the inquest was that his was a case of post operation death in a
hospital. The Coroner’s Court registered the inquest on 13 May 1964. The dates for inquest
were in the months of June, July, September, and October 1964. The appellant was on
leave for some time in the months of June and July 1964. This is said to delay the inquest.
It was the practice of the Coroner’s Court to send letters to professional people concerned
in inquest to get the explanation of the Doctor who treated or operated upon the patient.
The appellant on 3 October, 1964 made an order that Mr. Adatia be called. It is alleged that
the appellant had told Dr. Adatia a few days earlier that though he might have operated

84 A.N. Ray and I.D. Dua

205
satisfactorily the cause of death given by the hospital would give rise to a presumption of
negligence on his part. Dr. Adatia was asked by the appellant to meet Dr. Motwani, so that
the latter could get in touch with the appellant to resolve the technical difficulties. Dr.
Motwani met the appellant on 3 October, 1964. The appellant told Dr. Motwani that Dr.
Adatia was at fault but he might be cleared of the charge in the inquest. The appellant
asked for a sum of Rs. 20,000. Dr. Motwani said that he would consult Dr. Adatia. Dr.
Motwani conveyed the proposal to Dr. Adatia. The latter refused to pay any illegal
gratification. Dr. Motwani intimated the same to the appellant. The appellant then reduced
the demand to Rs. 10,000. Dr. Adatia also refused to pay the same On 4 October the
appellant got in touch with Dr. Jadhav. Superintendent of the Bombay Hospital to find out
if the cause of death given in the Hospital Card could be substantiated. Dr. Motwani told
Dr. Jadhav on the same day that incorrect cause of death was shown and great injustice was
done to Dr. Adatia. Dr. Jadhav said that he Would send an amended deposition to the
Coroner, the appellant. On 5 October, 1964 Dr. Motwani and Dr Adatia decided to lodge a
complaint with the Anti-Corruption Bureau. Dr. Adatia's Nursing Home got messages on
the telephone to get in touch with the appellant. Dr. Adatia complained to Dr. Motwani of
the harassment on the telephone. Dr. Motwani rang up the appellant. The appellant asked
Dr. Motwani to intimate by 10 a.m. on 7 October whether Dr. Adatia was willing to pay
Rs. 10,000. Dr. Motwani rang up Mugwe, Director of the Anti-Corruption Branch and
complained that a higher Government official was demanding a heavy bribe from a Doctor.
Must we then arranged for his staff to be present near Dr. Motwani's residence on the
morning of 7 October with the tape-recording equipment to record on the tape the
telephonic conversation.
Four Questions before the Court in Appeal
1. That the trial Court and the High Court are correct in admitting the evidence of the
telephonic conversation between Dr.Motwani and the appellant which was recorded
on the tape. The evidence was illegally obtained in contravention of s. 25 of the
Indian Telegraph Act and therefore the evidence was inadmissible.
2. Conversation between Dr. Motwani and the appellant which was recorded on the
tape took place during investigation inasmuch as Mugwe asked Dr. Motwani to talk

206
 and therefore the conversation was not admissible under s. 162 of the Code of
Criminal Procedure.
3. The appellant did not attempt to obtain gratification.
4. The sentence of six months imprisonment should be interfered with because the
appellant has already paid Rs. 10,000 as fine. The appellant suffered heart attacks
and therefore the sentence should be modified.
Importance of Tape-Recorded Evidence
The trial Court as well as the High Court found that the evidence of Dr. Motwani and Dr.
Adatia needed corroboration. The High Court found that the conversation recorded on the
tape corroborated their evidence. The evidence of Dr. Motwani is that on 7 October, 1964
Mugwe accompanied by Sawant and members of the Police staff went to the residence of
Dr. Motwani. Mugwe directed Sawant to record Dr. Motwani's statement. Mugwe had
instructed his staff to bring a tape-recording machine. After the statement of Dr. Motwani
Mugwe connected the tape-recording machine to Dr. Motwani's phone and asked Dr.
Motwani to talk to anyone he liked in order to test whether the tape-recording machine was
in order. Motwani was then asked to talk to the appellant. Motwani talked with the
appellant. That conversation was recorded on the tape. This tape-recorded conversation is
challenged by counsel for the appellant to be inadmissible because it infringes Arts. 20(3)
and 21 of the Constitution and is an offence tinder s. 25 of the Indian Telegraph Act. s. 25
of the Indian Telegraph Act 1885 states that if any person intending (b) to intercept or to
acquaint himself with the contents of any message damages, removes, tampers with or
touches any battery, machinery. telegraph line, post or other thin whatever, being part of or
used in or about any telegraph or in the working thereof he shall be punished with
imprisonment for a term which may extend to three years, or with fine, or with both.
Argument of the Counsel
Counsel for the appellant submitted that attaching the tape-recording instrument to the
telephone instrument of Dr. Motwani was an offence under section 25 of the Indian
Telegraph Act. It was also said that if a Police Officer intending to acquaint himself with
the contents of any message touched machinery or other thing whatever used in or about or
telegraph or in the working thereof he was guilty of an offence under the Telegraph Act.
Reliance was placed on rule 149 of the Telegraph Rules which states that it shall be lawful

207
for the Telegraph Authority to monitor or intercept a message or messages transmitted
through telephone, for the purpose of verification of any violation of these rules or for the
maintenance of the equipment. This Rule was referred to for establishing that only the
Telegraph Authorities could intercept message under the Act and Rules and a Police
Officer could not.
Judgment
In the present case the recording of the conversation between Dr. Motwani and the
Appellant cannot be said to be illegal because Dr. Motwani allowed the tape-recording
instrument to be attached to his instrument. In fact, Dr. Motwani permitted the Police
Officers to hear the conversation. If the conversation were relayed on a microphone or an
amplifier from the telephone and the police officers heard the same they would be able to
give direct evidence of what they heard. Here the police officers gave direct evidence of
what they saw and what they did and what they recorded as a result of voluntary
permission granted by Dr. Motwani. The tape-recorded conversation is contemporaneous
relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness.
There is no reason to exclude this evidence.
It was said that the admissibility of the tape-recorded evidence offended Arts. 20(3) and 21
of the Constitution. The submission was that the manner of acquiring the tape-recorded
conversation was not procedure established by law and the appellant was incriminated. The
appellant’s conversation was voluntary. There was no compulsion. The attaching of the
tape-recording instrument was unknown to the appellant. That fact does not render the
evidence of conversation inadmissible. The appellant’s conversation was not extracted
under duress or compulsion. If the conversation was recorded on the tape it was a
mechanical contrivance to play the role of an eavesdropper… In the present case there is no
unlawful or irregular method in obtaining the tape recording of the conversation.

The second contention on behalf of the appellant was that the entire tape-recorded
conversation is within the vice of section 162 of the Criminal Procedure Code. In aid of
that contention the oral evidence of Mugwe, the Director of Intelligence Bureau was relied
on. Mugwe said that it was under his advice and instruction that Dr. Motwani starting
talking with the appellant and Dr. Adatia. Therefore, it was said that the tape recording was

208
in the course of investigation. Sections 161 and 162 of the Criminal Procedure Code
indicate that there is investigation when the Police Officer orally examines a person. The
telephonic conversation was between Dr. Motwani and the appellant. Each spoke to the
other. Neither made a statement to the Police Officer. There is no mischief of section 162.

The third contention was that the appellant did not attempt an offence. The conversation
was said to show bargain. The evidence is that the patient died on 13 May, 1964. Dr.
Motwani saw the appellant on 3 October, 1964. The appellant demanded Rs. 20,000. The
appellant asked for payment of Rs. 20,000 in order that Dr. Adatia would avoid
inconvenience and publicity in newspapers in case inquest was held. Dr. Motwani informed
Dr. Adatia about the conversation with the appellant. On 4 October, 1964 the appellant
rang up Dr. Motwani and said that he was willing to reduce the amount to Rs. 10,000. On 5
October, 1964 Dr. Adatia received calls from the appellant asking him to attend the
Coroner's Court on 6 October, 1964. Dr. Adatia got in touch with Dr. Motwani on 6
October and gave him that message. Dr. Adatia rang up the appellant on 6 October and
asked for adjournment. The appellant granted the adjournment to 7 October. On 6 October
there were two calls from the appellant asking Dr. Adatia to attend the Coroner's Court on
7 October and also that Dr. Adatia should contact the appellant on 6 October. Dr. Motwani
rang up the appellant and told him that the telephonic conversation had upset Dr. Adatia.
On 6 October Dr. Motwani conveyed to Mugwe, Director of Intelligence Bureau about the
demand of bribe to the appellant. These are the facts found by the Court. These facts prove
that the offence was committed. The last contention on behalf of the appellant was that the
sentence of imprisonment should be set aside in view of the fact that the appellant paid the
fine of Rs. 10,000. In some cases, the Courts have allowed the sentence undergone to be
the sentence. That depends upon the fact as to what the term of the sentence is and what the
period of sentence undergone is. In the present case, it cannot be said that the appellant had
undergone any period of sentence. If it is said that the appellant had heart attacks and
therefore the Court should take a lenient view about the sentence the gravity of the offence
and the position held by the appellant at the relevant time do not merit such consideration.
For the above reasons, the appeal is dismissed. The appellant will surrender to his bail and
serve out the sentence.

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 Importance of Oral Evidence against Hearsay Evidence
Hearsay Evidence, Burden of Proof, Presumptions, etc
Section 60
Balram Prasad Agrawal v State of Bihar and Others
1996 Indlaw SC 1761; (1997) 9 SCC 33885
Cases Referred –
1. Surendra Tiwari v State of Madhya Pradesh, AIR 1991 SC 1853
2. Sat Paul v Delhi Administration, AIR 1976 SC 2941
3. J.D. Jain v The Management of State Bank of India & Anr., AIR 1982 SC 673
4. Kali Ram v State of Himachal Pradesh, AIR 1979 SC 2773
Facts of the Case
Deceased Kiran Devi was married to respondent no.2 Paran Prasad Agrawal in the year
1977. It is the case of the prosecution that even after five to six years of her marriage as no
child was born respondent no.4, the mother-in-law of the deceased against whose acquittal
the present proceedings do not survive, and respondent no.3, the elder brother of the
husband of the deceased wanted accused no.1-respondent no.2 to marry some other girl by
killing Kiran Devi. It is the further case of the complainant father of the deceased that he
got her treated by a gynecologist and subsequently she gave birth to two sons. It is alleged
that despite the aforesaid events the cruelty meted out to Kiran Devi did not stop. They
persisted in demanding dowry and as Kiran Devi did not fulfil their requirement the
accused started beating her physically and used to torture her causing danger to her life.
That being tired to the torture meted out to her she had earlier tried to jump in the same
well about four years ago. But she was saved by the neighbours. In this regard Kiran Devi
herself had made a report before the concerned Police Station against her husband and in-
laws. Thereafter Kiran Devi started living at her paternal home. However, at the instance of
her father, a compromise was made with her husband and in-laws and she was brought to
the house of her in-laws in the year 1988 where she started to reside till the date of her
tragic death. It is the prosecution case that on the fateful night intervening 30th and 31st

85 S.B. Majmudar and G.N. Ray

210
October 1988 at about 9.00 a.m. Kiran Devi fall in the wall situated in the backyard of the
house of her fell to the ground. The appellant carried the matter in revision before the High
Court. A learned Single Judge of the High Court who decided the Revision Application
came to the conclusion that no case was made out for him to interfere of revisional
proceedings against the accused as there was no evidence to show that the accused were
responsible for the murder of Kiran Devi.
Arguments of the Counsels
Learned senior counsel for the appellant Shri Banyal vehemently contended that both the
courts below had failed to appreciate the well-established fact on the record that deceased
Kiran Devi had suffered a consistent course of cruel conduct on the park of the accused.
That she had earlier tried to commit suicide by jumping in the same well but she was saved
by the neighbours. That the accused were torturing her and treating her with extreme
cruelty. Under these circumstances even though there may not be any clear evidence
against the accused regarding their overt act of throwing her in the well on that fateful
night, it can easily be seen that at least she was forced to commit suicide because of the
cruelty meted out to her by the accused and evidence of the appellant in this behalf relying
upon what the neighbours told him as to what transpired in the household of the accused on
that fateful night as corroborated by the evidence of investigating officer clearly established
the lesser charge against the accused under Section 498-a of the IPC and even though the
police had charge sheeted the accused also under Section 498-A the learned Sessions Judge
had wrongly failed to frame this alternative charge against the accused. He, therefore,
submitted that either the matter be remanded for fresh trial or this Court in exercise of its
powers u/art. 142 of the Constitution of India may go into the evidence on record and take
appropriate decision about the culpability of the respondent-accused for the offence under
Section 498-A, IPC.
Counsel for the respondents
Learned counsel for the respondents on the other hand submitted that though there was no
charge framed under Section 498-A, IPC and as the prosecution evidence fell short of
bringing home the charge u/s. 302 read with Section 34, IPC against the accused the order
of acquittal as rendered by the Trial Court and as confirmed in revision by the High Court
deserves to be upheld. He however, fairly stated that if this Court comes to the conclusion

211
that the accused are required to be called upon to meet the lesser charge under Section 498-
A, IPC then the accused may be charged accordingly. He also submitted that if this Court is
inclined to appreciate the evidence on record and take decision on merits on the culpability
of the accused so far as offence under Section 498-A is concerned, then according to him
the evidence does not connect the accused with the said offence. That there was nothing on
record to show that the complainant was informed about what happened on the fateful night
by the neighbours as the neighbours who were examined in the case as prosecution
witnesses had turned hostile and did not support the prosecution regarding what they were
alleged to have stated in their police statements and to the complainant about the incident
of quarrel that took place on the fateful night. He submitted that what the complainant
deposed about the information gathered by him from the neighbours was purely hearsay
evidence and could not be legally relied upon. It was contended by him that once that
evidence is ruled out nothing remains on the record to show as to what actually happened
on the night of the incident which resulted in the drowning of deceased Kiran Devi in the
well and that it could be a case of sheer accident or even assuming that she had committed
suicide there was nothing to show that the accused were responsible for the said suicide or
had by their willful conduct driven Kiran Devi to commit suicide on that fateful night. He,
therefore, contended that in the light of the evidence available on record even charge under
Section 498-A is not brought home to the accused.
Provision referred under the IEA
Father’s evidence about what his deceased daughter told him earlier about her sufferings at
the hands of the accused was clearly admissible u/s. 22 of the Evidence Act. His evidence
further shows that the cruel conduct of the respondent-accused did not abate and appeared
to have continued till the fateful night when the situation became unbearable to the
deceased which resulted in her unfortunate death by drowning in the well in the courtyard
of the house of the accused. it is necessary to appreciate that on that fateful night apart from
the victim only the accused ware in the house. Thus, what happened on that night and what
led to the deceased failing in the well would be wholly within the personal and special
knowledge of the accused. But they kept mum on this aspect. It is of course true that
burden is on the prosecution to prove the case beyond reasonable doubt. But also the
prosecution is found to have shown that the accused were guilty of persistent conduct of

212
cruelty against the deceased spread over years as is well established from the unshaken
testimony of P.W.6, father of the deceased girl, the facts which were in the personal
knowledge of the accused who were present in the house on that fateful night could have
been revealed by them to disprove the prosecution case. This burden u/s. 109 of the Indian
Evidence Act is not discharged by them. In this connection we may usefully refer to some
of the decisions of this Court on the point. In the case of Shambhu Nath Mehra v The State
of Ajmer86, Bose, J. speaking for a two-member Bench referring to the applicability to S.
106 of the Evidence Act to criminal prosecutions laid down in paragraphs 10 and 11 of the
Report as under: “S. 106 is an exception to S.101. S. 101 lays down the general rule about
the burden of proof. ‘Whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove that those facts
exist”.
Oral Evidence and hearsay Evidence distinguished
It was submitted by learned senior counsel for the appellant that what was deposed to by
the witness P.W.6 would not remain in the realm of hearsay evidence as these informants
have been examined as witnesses. It was contended by him that before any oral version of a
witness can be said to be hearsay it must amount to statement of oral version of the witness
based on what he heard from others who are not before the court. In other words, the
witness says about what he heard from outsiders. S. 60 of the Indian Evidence Act lays
down that oral evidence must be direct. If it refers to a fact which could be heard, it must be
the evidence of a witness who says he heard it. The evidence before the court can be
divided into original and unoriginal. The original is that which a witness reports himself to
have seen or heard through the medium of his own senses. Unoriginal, also called
derivative, transmitted, secondhand or hearsay, is that which a witness is merely reporting
not what he himself saw or heard, not what has come under the immediate observation of
his own bodily senses, but what he had learnt respecting the fact through the medium of a
third person. Hearsay, therefore, properly speaking is secondary evidence of any oral
statement. Learned senior counsel for the appellant submitted that if the informants are
examined as witnesses as in the present case, the objection to hearsay disappears as then it
becomes the original evidence of the informant who can be cross- examined about the truth

86 AIR 1956 SC 404; 1956 Indlaw SC 81

213
of his information conveyed to P.W.6 and in such an eventuality the versions deposed to by
P.W.6 and the informants will fall for scrutiny and will have to be weighed by the court
with a view to ascertaining as to which of the versions on bath is a correct one.

Judgment
…All the circumstances proved by the prosecution clinchingly establish the culpability of
the accused themselves and no one else. These established circumstances wholly rule out
any reasonable possibility of innocence of the accused from any viewpoint. In other words,
the chain in the circumstantial evidence is so complete against the accused as to rule out
any other hypothesis about their innocence. We accordingly convict respondent no.2 Paran
Prasad Agrawal and respondent no.3 Girbar Prasad Agrawal of offences punishable under
Section 498-A, IPC.
Only Question on the sentence to be decided
In view of our aforesaid finding of guilt of the concerned respondent-accused it will now be
necessary to hear them on the question of appropriate sentence to be imposed on them. We,
therefore, give an opportunity to the learned counsel for the respondent to have his say on
the question of appropriate sentence to be imposed on these accused after taking
instructions from them. It will be open to the learned counsel for the respondent-accused to
furnish material on this aspect by way of affidavits of the concerned accused if thought fit.

214
 Section 55, Ss 91-100 of the IEA
Bai Hira Devi and Others v Official Assignee of Bombay87
Citation: 1958 Indlaw SC 23, AIR 1958 SC 448
Principles and Law applied
Banking & Finance - Practice & Procedure - Presidency towns Insolvency Act, 1909, s. 55
- Indian Evidence Act, 1872, ss. 91, 92 - Insolvency - Gift - Oral Evidence- Applicability
Special Leave Petition
This appeal by special leave arises from the notice of motion taken out by the
respondent official assignee under s. 55 of the Presidency towns Insolvency Act against
the appellants for a declaration that a deed of gift executed by the insolvent Daulatram
Hukamchand on May 22, 1950, in favour of the appellants was void. It appears that
some creditors of Daulatram filed a petition in the High Court of Judicature at Bombay,
Insolvency Case No. 74 of 1.951, for an order that the said Daulatram be adjudged
insolvent as he had given notice of suspension of payment of the debts on August 2,
1951. Daulatram was adjudicated in- solvent on August 21, 1951, with the result that the
estate of the insolvent vested in the respondent under s. 17 of the Act. On September 26,
1951, the respondent took out the present notice of motion. The impugned deed of gift
has been executed by the insolvent in favour of his wife and three sons who are the
appellants before us. In reply to the notice of motion appellants I to 3 filed a joint
affidavit setting out the facts and circumstances under which the said deed of gift had
been executed by the insolvent in their favour. In substance, the appellants' case was
that, though the document purported to be a gift, it was really a transaction supported by
valuable consideration and as such it did not fall within the mischief of s. 55 of the Act.
At the hearing of this notice of motion before Mr. Justice Coyajee, when the appellants
sought to lead evidence in support of this plea, the respondent objected and urged that
the evidence which the appellants wanted to lead was inadmissible under s. 92 of the
Indian Evidence Act. The learned Judge, however, overruled the respondent's objection
and allowed the appellants to lead their evidence. In the end the learned Judge did not

87 Bench : Pralhad Balacharya Gajendragadkar, Natwarlal Harilal Bhagwati, J.L. Kapur (The Judgment
was delivered by : P. B. Gajendragadkar, J.)

215
accept the appellants' contention and, by his judgment delivered on January 28, 1954, he
granted the declaration claimed by the respondent under s. 55 of the Act. Against this
judgment and order the appellants preferred an appeal (No. 30 of 1954) which was heard
by Chagla C. J. and Shah J. The learned Judges took the view that Mr. Justice Coyajee
had erred in law in allowing oral evidence to be led by the appellants in support of their
plea that the transaction evidenced by the deed of gift was in reality a transfer for
consideration. The learned Judges held that the gift in question had been executed by the
donor in favour of the donees out of natural love and affection and that, under s. 92, it
was not open to the appellants to lead evidence to show that the transaction was
supported not by the consideration of natural love and affection but by another kind of
valuable consideration . On this view of the matter the learned Judges did not think it
necessary to consider the oral Evidence Actually led by the appellants and decide
whether Mr. Justice Coyajee was right or not in rejecting the said evidence on the
merits. That is how the appeal preferred by the appellants was dismissed on August 6,
1964. On September 23, 1954, the application made by the appellants for a certificate
was rejected by the High Court at Bombay; but special leave was granted to the
appellants by this Court on November 3, 1954, and that is how the appeal has come
before us for final disposal.
Issues before the Court
The principal point which arises in this appeal is whether the appellants were entitled to
lead oral evidence with a view to show the real nature of the impugned transaction. In
deciding this question, it would be necessary to consider the true scope and effect of ss.
91 and 92 of the Evidence Act.
Chapter VI of the Evidence Act which begins with s. 91 deals with the exclusion of oral
by documentary evidence. Section 91 provides that, "when the terms of a contract, or of
a grant, or of any other disposition of property, have been reduced to the form of a
document, and in all cases in which any matter is required by law to be reduced to the
form of a document, no evidence shall be given in proof of the terms of such contract,
grant or other disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary As, evidence is
admissible under the provisions hereinbefore contained." The normal rule is that the

216
contents of a document must be proved by primary evidence which is the document
itself in original. Section 91 is based on what is sometimes described as the "best
evidence rule". The best evidence about the contents of a document is the document
itself and it is the production of the document that is required by s. 91 in proof of its
contents. In a sense, the rule enunciated by s. 91 can be said to be an exclusive rule
inasmuch as it excludes the admission of oral evidence for proving the contents of the
document except in cases where secondary evidence is allowed to be led under the
relevant provisions of the Evidence Act. Section 92 excludes the evidence of oral
agreements and it applies to cases where the terms of contracts, grants or other
dispositions of property have been proved by the production of the relevant documents
themselves under s. 91 ; in other words' it is after the document has been produced to
prove its terms under s. 91 that the provisions of s. 92 come into operation for the
purpose of excluding evidence of any oral agreement or statement, for the purpose of
contradicting, varying, adding to or subtracting from its terms. The application of this
rule is limited to cases as between parties to the instrument or their representatives in
interest. There are six provisos to this section with which we are not concerned in the
present appeal. It would be noticed that ss. 91 and 92 in effect supplement each other.
Section 91 would be frustrated without the aid of s. 92 and s. 92 would be inoperative
without the aid of s. 91. Since s. 92 excludes the admission of oral evidence for the
purpose of contradicting, varying, adding to or subtracting from the terms of the
document properly proved under s. 91, it may be said that it makes the proof of the
document conclusive of its contents. Like s. 91, s. 92 also can be said to be based oil the
best evidence rule. The two sections, however, differ in some material particulars.
Section 91 applies to all documents, whether they purport to dispose of rights or not,
whereas s. 92 applies to documents which can be described as dispositive. Section 91
applies to documents which are both bilateral and unilateral, unlike s. 92 the application
of which is confined only to bilateral documents. Section 91 lays down the rule of
universal application and is not confined to the executant or executants of the
documents. Section 92, on the other hand, applies only between the parties to the
instrument or their representatives in interest. There is no doubt that s. 92 does not apply
to strangers who are not bound or affected by the terms of the document. Persons other

217
than those who are parties to the document are not precluded from giving extrinsic
evidence to contradict, vary, add to or subtract from the terms of the document. It is only
where a question arises about the effect of the document as between the parties or their
representatives in interest that the rule enunciated by s. 92 about the exclusion of oral
agreement can be invoked. This position is made absolutely clear by the provisions of s.
99 itself. Section 99 provides that "persons who are not parties to a document or their
representatives in interest may give evidence of any facts tending to show a
contemporaneous agreement varying the terms of the document." Though it is only
variation which is specifically mentioned in s. 99, there can be no doubt that the third
party's right to lead evidence which is recognized by s. 99 would include, a right to lead
evidence not only to vary the terms of the document, but to contradict the said terms or
to add to or subtract from them. If that be the true position, before considering the effect
of the provisions of s. 92 in regard to the appellants' right to lead oral evidence, it would
be necessary to examine whether s. 92 applies at all to the present proceedings between
the official assignee who is the respondent and the donees from the insolvent who are
the appellants before us. Does the official assignee represent the insolvent, and can he be
described as the representative-in interest of the insolvent, when he moves the
Insolvency Court under s. 55 of the Presidency-towns Insolvency Act. It is true that,
under s. 17 of the Act, on the making of an order of adjudication, the property of the
insolvent wherever situate vests in the official assignee and becomes divisible among his
creditors; but the property in respect of which a declaration is claimed by the official
assignee under s. 55 has already gone out of the estate of the insolvent, and it cannot be
said to vest in the official assignee as a result of the order of adjudication itself. Besides,
when the official assignee makes the petition under s. 55 he does so obviously and
solely for the benefit of the creditors. An insolvent himself has, and can possibly have,
no right to challenge the transfer effected by him. In this respect the official assignee has
a higher title than the insolvent and, when, under s. 55, he challenges any transfer made
by the insolvent, he acts not for the insolvent or on his behalf, but in the interest of the
whole body of the insolvent's creditors. In theory and on principle, as soon as an order of
adjudication is made, all proceedings in regard to the estate of the insolvent come under
the control of the Insolvency Court. It may be said that the official assignee in whom the

218
estate of the insolvent vests is to guard not only the interests of the creditors of the
insolvent but also "public morality and the interest which every member of the public
has in the observance of commercial morality" (1). There is no doubt that it is the
Insolvency Court alone which has jurisdiction to annul the insolvent's transactions,
whether the case is governed by the Presidency-towns Insolvency Act or by the
Provincial Insolvency Act; and so the proceedings taken under s. 55 cannot be deemed
to be proceedings taken for and on behalf of the insolvent at all.
(1) "The Law of Insolvency in India" -By Rt. Hon. Sir D. F. Mulla, Kt.--2nd Ed., p. 231.
The provisions of s. 55 themselves support the same conclusion. Under s. 55, any
transfer of property not being a transfer made before and in consideration of marriage or
made in favour of a purchaser or encumbrancer in good faith and for valuable
consideration shall, if the transferor is adjudged insolvent within two years of the date of
transfer, be void against the official assignee. This section, like s. 53-A of the Provincial
Insolvency Act, makes the impugned transfers voidable at the instance of the official
assignee or the receiver. The transfers in question are not declared void as between the
parties themselves; they are avoided by the official assignee or the receiver and their
avoidance is intended to enure for the benefit of the whole body of the creditors of the
insolvent. The relevant sections of the two Insolvency Acts in effect require the
Insolvency Courts to set aside the impugned transactions in exercise of the Insolvency
Courts' exclusive jurisdiction in that behalf The obvious object of these provisions is to
bring back to the insolvent's estate, property which has left the estate by the impugned
act of the insolvent himself and make the said property available for distribution
amongst his creditors. It would, therefore, be impossible to hold that, when the official
assignee makes a petition under s. 55 of the Act, he is acting as a representative-in
interest of the insolvent.
In this connection it would be relevant to remember that, in cases governed by the
Presidency-towns Insolvency Act, the practice in Calcutta and Bombay consistently
allows a creditor who has proved his debt to file a petition to set aside the transfer under
s. 55 of the Act if he shows that the official assignee, on being tendered a reasonable
indemnity has unreasonably refused to make an application. Similarly, under s. 54-A of
the Provincial Insolvency Act, a creditor himself can make the application if the receiver

219
refuses to take any action. Now, if an application is made by a creditor for setting aside a
voluntary transfer effected by the insolvent, there can be no doubt that the creditor is not
the representative- in-interest of the insolvent and the creditor would obviously not be
affected by the provisions of s. 92 of the Indian Evidence Act. It would really be
anomalous if s. 92 were to apply to proceedings instituted by the official assignee under
s. 55 though the said section cannot and would not apply to similar proceedings
instituted by a creditor. Having regard to the object with which s. 55 has been enacted,
the nature of the proceedings taken under it, and the nature and effect of the final order
which is contemplated under it, it is clear that, like the creditor who may apply, the
official assignee also cannot be said to be the representative-in-interest of the insolvent
in these proceedings. If that be the true position, s. 92 cannot apply to the present
proceedings between the respondent and the appellants; and so there can be no doubt
that the respondent would not be precluded from leading evidence of an oral agreement
for the purpose of contradicting, varying, adding to or subtracting from the terms of the
impugned document.
Arguments of the Counsels
The question raised by Shri Purushottam which still remains to be considered is whether
the appellants who undoubtedly are the representatives in interest of the insolvent can
avoid the application of a. 92. In our opinion, the answer to this question must be in
favour of the appellants. It is urged before us by Shri Purushottam that the scheme of the
relevant provisions of Ch. VI of the Indian Evidence Act is inconsistent with the
appellants' contention that they can lead oral evidence about the alleged agreement
which may tend to change the character of the transaction itself.
Shri Purushottam bases his argument mainly on the provisions of s. 91 read with s. 99 of
the Act. He contends that s. 91 requires the production and proof of the document itself
for the purpose of proving the contents of the document; and by necessary implication
all evidence about any oral agreement which may affect the terms of the document is
excluded by s. 91 itself.
We are not impressed by this argument. As we have already observed, ss. 91 and 92
really supplement each other. It is because s. 91 by itself would not have excluded
evidence of oral agreements which may tend to vary the terms of the document that s. 92

220
has been enacted; and if s. 92 does not apply in the present case, there is no other section
in the Evidence Act which can be said to exclude evidence of the agreement set up by
the appellants. What s. 91 prohibits is the admission of oral evidence to prove the
contents of the document. In the present case, the terms of the document are proved by
the production of the document itself. Whether or not the said terms could be varied by
proof of an oral agreement is a matter which is not covered by s. 91 at all. That is the
subject-matter of s. 92; and so, if s. 92 does not apply, there is no reason to exclude
evidence about an oral agreement solely on the ground that if believed the said evidence
may vary the terms of the transaction.
Shri Purushottam 'also relied upon the provisions of s. 99. His argument is that it is only
persons who are not parties to a document or their representatives in interest who are
allowed by s. 99 to give evidence of facts tending to show a contemporaneous
agreement varying the terms of the document. lit other words, the effect of s. 99 is not
only to allow strangers to lead such evidence, but to prohibit parties or their
representatives-in-interest from leading such evidence independently of tile provisions
of s. 92 of the Evidence Act. We do not read s. 99 as laying down any such prohibition
by necessary implication. As a matter of fact, from the terms of s. 92 itself, it is clear
that strangers to the document are outside the scope of s. 92; but s. 99 has presumably
been enacted to clarify the same position. It would be unreasonable, we think, to hold
that s. 99 was intended not only to clarify the position with regard to the strangers to the
document, but also to lay down a rule of exclusion of oral evidence by implication in
respect of the parties to the document or their representatives in interest. In our opinion,
the true position is that, if the terms of any transfer reduced to writing are in dispute
between a stringer to a document and a party to it or his representative in interest, the
restriction imposed by s. 92 in regard to the exclusion of evidence of oral agreement is
inapplicable; and both the stranger to the document arid the party to the document or his
representative in interest are at liberty to lead evidence of oral agreement
notwithstanding the fact that such evidence, if believed, may contradict, vary, add to or
subtract from its terms. The rule of exclusion enunciated by s. 92 applies to both parties
to the document and is based on the doctrine of mutuality. It would be inequitable and
unfair to enforce that rule against a party to a document or his representative in interest

221
in the case of a dispute between the said. party or his representative in interest on the
one hand and the stranger on the other. In dealing with this point we may incidentally
refer to the relevant statement of the law by Phipson in his treatise on "Evidence":
" Where the transaction has been reduced into writing merely by agreement of the
parties ", it is observed, " extrinsic evidence to contradict or vary the writing is excluded
only in proceedings between such parties or their privies, and not in those between
strangers, or a party and a stranger; since strangers cannot be precluded from proving the
truth by the ignorance, carelessness, or fraud of the parties (R. v. Cheadle, 3 B. and Ad.
833); nor, in proceedings between a party and a stranger, will the former be estopped,
since there would be no mutuality ", Phipson on Evidence-9th Ed., p. 602. .
The result is that s. 92 is wholly inapplicable to the present proceedings and so the
appellants are entitled to lead evidence in support of the plea raised by them. It appears
that the attention of the learned Judges who heard the appeal in the High Court at
Bombay was not drawn to this aspect of the matter. That is why they proceeded to deal
with the question about the admissibility of oral evidence led by the appellants on the
assumption that s. 92 applied.
Judgment of the Court
We must accordingly set aside the decree passed by the court of appeal in the High
Court at Bombay and send the appeal back to that Court for disposal on the merits in
accordance with law. In the circumstances of this case, we think that the fair order as to
costs of this appeal would be that the costs should abide the final result in the appeal
before the High Court at Bombay. Appeal allowed. Case remanded

222
 Photostat copies and genuineness of documents
Government of A. P. and Others v Karri Chinna Venkata Reddy and Others
1993 Indlaw SC 1646; AIR 1994 SC 59188
Principle- ss. 62 and 63 - Genuineness of documentary evidence - Admission by way of
Photostat copies - Validity of admission of secondary evidence - Held, improper as copies
should have been accepted in evidence, after examining original
Facts of the case
Question before the court in this appeal for consideration in this appeal is if the High Court
was justified in quashing the orders passed by the appellants 2 to 4 and issuing directions to
grant ryotwari patta to the respondents of approximately 340 acres of land.
Arguments of the counsels
The respondents claimed rights under Andhra Pradesh Muttas (Abolition and Conversion
into Ryotwari) Regulation, 1969. Section 5 of the regulation entitled the ryot in a Mutta for
grant of ryotwari patta, in respect of agricultural land, held by him if he was found in
lawful possession for a continuous period of not less than one year immediately before the
notified date. Mutta under the regulation is defined to mean a village or a group of villages
held by a Muttadar. The learned Single Judge found that the respondent was a ryot of the
abolished Rampamutta and having been lawfully inducted into possession on February 1,
1951 in pursuance of the permission issued by Madras Government through GO dated 13-
11-1950 and was continuing for more than eight years preceding 26-10-1970 the date of
notification issued under Regulation II of 1969 abolishing Mutta he was entitled to ryotwari
patta under Section 5 of the said regulation. One of the ingredients for successfully
invoking Section 5 of the regulation is continuous possession for eight years preceding the
date of notification that is 26-10-1970. For recording this finding, the learned Single Judge
relied apart from other circumstances on certain documents filed for the first time in writ
petition. In Letters Patent Appeal the Division Bench dismissed the appeal as the question

88 N.P. Singh, R.M. Sahai and S.P. Bharucha

223
whether respondent was in possession or not was a finding of fact and the same having
been recorded on appreciation of evidence it was not liable to interference.

In this Court an affidavit has been filed by Deputy Director, Survey and Land Records that
the learned Single Judge had received into evidence the photostat copies of certified copies
of the survey land registers of Rampachodavaram Village which was prepared during the
initial survey operations. It is averred that verification of the original survey land register of
the Rampa village prepared in 1970 revealed that the original entries had been erased and
the name of the respondent was overwritten. In reply affidavit the allegations of tampering
are not very clearly denied except saying that this being a Government document the
allegations that they were tampered were not correct.
Questions before the court
Two questions arise,
1. if the additional documents could have been admitted in writ jurisdiction and
2. if reliance could be placed on them as they were only photostat copies and the High
Court admitted the documents without recording any finding that the respondents
made out a case for acceptance of secondary evidence.
The admission of additional documents by the High Court in writ jurisdiction is an exercise
of discretion with which this Court does not normally interfere. But the genuineness of
documents is an aspect which goes to the root of the matter. If the records have been
tampered and fictitious documents were produced before the High Court then it certainly
vitiates the finding.
Observation of the Court
We have heard the learned counsel for parties.
In our opinion, in absence of any finding on it, may be because it was not raised in the High
Court yet being a fundamental question which if found to be correct would render entire
proceedings bad, it appears expedient to direct the Commissioner of Survey and Settlement
to examine it after affording opportunity to both sides to lead evidence. The finding shall
be recorded after examining the original records. In the result, this appeal succeeds and is
allowed. The orders passed by the learned Single Judge and the Division Bench are set
aside. The order of the Commissioner of Survey and Settlement is also set aside. He shall

224
decide the dispute afresh after examining the original record and recording the finding if
the documents filed by the respondents are genuine or not. Parties shall bear their own
costs. Appeal allowed
Recording of Evidence through Video Conferencing – Electronic Evidence
State of Maharashtra with P.C. Singh v Dr. Praful B. Desai and another89
Citation: 2003 Indlaw SC 320, AIR 2003 SC 2053
Principles and Law established
Section 273 of CrPC -Whether in a criminal trial, evidence can be recorded by video
conferencing - Held, evidence can be both oral and documentary and electronic records can
be produced as evidence, which would include video-conferencing
Cases Referred
 K. Gopalan Vs State of Madras AIR 1950 S. C. 27
 Nazir Ahmed vs Emperor AIR 1936 PC 253
 Siva Kumar Chadda Vs Municipal Corporation of Delhi AIR 1975 S.C. 915
 Maryland vs. Santra Aun Craig [497 US 836]
 Sri Krishna Gobe vs State of Maharashtra [(1973) 4 SCC 23
 National Textile Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228
 Basavaraj R. Patil v. State of Karnataka 2000 Indlaw SC 2653
These Appeals are against a Judgment of the Bombay High Court dated 23rd/24th April
2001. The question for consideration is whether in a criminal trial, evidence can be
recorded by video conferencing. The High Court has held, on an interpretation of
Section 273 CrPC, that it cannot be done. Criminal Appeal by filed by Mr. P. C. Singhi,
who was the complainant. As the question of law is common in both these Appeals, they
are being disposed of by this common Judgment. In this Judgment parties will be
referred to in their capacity in the Criminal Appeal (arising out of SLP (Criminal) No
6814 of 2001). Mr. P. C. Singhi will be referred to as the complainant.
Facts of the Case
The complainant's wife was suffering from terminal cancer. It is the case of the

89 Bench : S.N. Variava, B.N. Agrawal; The Judgment was delivered by : S. N. Variava, J.
Leave granted

225
prosecution that the complainant's wife was examined by Dr. Ernest Greenberg of Sloan
Kettering Memorial Hospital, New York, USA, who opined that she was inoperable and
should be treated only with medication. Thereafter the complainant and his wife
consulted the Respondent, who is a consulting surgeon practising for the last 40 years.
In spite of being made aware of Dr Greenberg's opinion the Respondent suggested
surgery to remove the uterus. It is the case of the prosecution that the complainant and
his wife agreed to the operation on the condition that it would be performed by the
Respondent. It is the case of the prosecution that on 22nd December 1987 one Dr. A. K.
Mukherjee operated on the complainant's wife. It is the case of the prosecution that
when the stomach was opened ascetic fluids oozed out of the abdomen.
It is the case of the prosecution that Dr. A. K. Mukherjee contacted the Respondent who
advised closing up the stomach. It is the case of the prosecution that Dr. A. K.
Mukherjee accordingly closed the stomach and this resulted in intestinal fistula. It is the
case of the prosecution that whenever the complainant's wife ate or drank the same
would come out of the wound. It is the case of the prosecution that the complainant's
wife required 20/25 dressings a day for more than 3 1/2 months in the hospital and
thereafter till her death.
It is the case of the prosecution that the complainant's wife suffered terrible physical
torture and mental agony. It is the case of the prosecution that the Respondent did not
once examine the complainant's wife after the operation. It is the case of the prosecution
that the Respondent claimed that the complainant's wife was not his patient. It is the case
of the prosecution that the bill sent by the Bombay Hospital belied the Respondent case
that the complainant's wife was not his patient. The bill sent by the Bombay Hospital
showed the fees charged by the Respondent. It is the case of the prosecution that the
Maharashtra Medical Council has, in an inquiry, held the Respondent guilty of
negligence and strictly warned him.
On a complaint by the complainant a case under Section 338 read with Sections 109 and
114 of the IPC was registered against the Respondent and Dr. A. K. Mukherjee. Process
was issued by the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai. The
Respondent challenged the issue of process and carried the challenge right up to this
Court. The Special Leave Petitions filed by the Respondent was dismissed by this Court

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on 8th July 1996. This Court directed the Respondent to face trial. We are told that
evidence of six witnesses, including that of the complainant and the investigating
officer, has been recorded. On 29th June 1998 the prosecution made an application to
examine Dr. Greenberg through video-conferencing. The trial court allowed that
application on 16th August 1999. The Respondent challenged that order in the High
Court. The High Court has by the impugned order allowed the Criminal Application
filed by the Respondent. Hence these two Appeals. At this stage it is appropriate to
mention that Dr. Greenberg has expressed his willingness to give evidence, but has
refused to come to India for that purpose. It is an admitted position that, in the CrPC,
there is no provision by which Dr. Greenberg can be compelled to come to India to give
evidence. Before us a passing statement was made that the Respondent did not admit
that the evidence of Dr. Greenberg was relevant or essential. However, on above-
mentioned facts, it prima-facie appears to us that the evidence of Dr. Greenberg would
be relevant and essential to the case of the prosecution.
Arguments of the Counsel for the State
Ms. Jaisingh, senior counsel argued for the State of Maharashtra. The complainant,
except for pointing out a few facts, adopted her arguments. On behalf of the Respondent
submissions were made by Senior Counsels Mr Sundaram and Mr Ashok Desai.
Argument of the Counsel for the Respondents
That the procedure governing a criminal trial is crucial to the basic right of the Accused
under Articles 14 and 21 of the Constitution of India. It was submitted that the
procedure for trial of a criminal case is expressly laid down, in India, in the CrPC. It was
submitted that the CrPC lays down specific and express provisions governing the
procedure to be followed in a criminal trial. It was submitted that the procedure laid
down in the CrPC was the "procedure established by law". It was submitted that the
Legislature alone had the power to change the procedure by enacting a law amending it,
and that when the procedure was so changed, that became "the procedure established by
law". It was submitted that any departure from the procedure laid down by law would be
contrary to Article 21. In support of this submission reliance was placed on the cases of
There can be no dispute with these propositions. However if the existing provisions of
the CrPC permit recording of evidence by video conferencing then it could not be said

227
that "procedure established by law" has not been followed. This Court was taken
through various sections though emphasis was laid on Section 273. It was submitted that
Section 273, does not provide for the taking of evidence by video conferencing.
Emphasis was laid on the words "Except as otherwise provided" in Section 273 and it
was submitted that unless there is an express provision to the contrary, the procedure
laid down in Section 273 has to be followed as it is mandatory. It was submitted that
Section 273 mandates that evidence "shall be taken in the presence of the accused". It is
submitted that the only exceptions, which come within the ambit of the words "except as
otherwise provided" are Sections 284 to 290 (those dealing with issue of Commissions);
Section 295 (affidavit in proof of conduct of public servant) and Section 296 (evidence
of formal character on affidavit). It is submitted that the term "presence" in Section 273
must be interpreted to mean physical presence in flesh and blood in open Court. It was
submitted that the only instances in which evidence may be taken in the absence of the
Accused, under the CrPC are Sections 317 (provision for inquiries and trial being held in
the absence of accused in certain cases) and 299 (record of evidence in the absence of
the accused). It was submitted that as Section 273 is mandatory, the Section is required
to be interpreted strictly. It was submitted that Section 273 must be given its
contemporary meaning (Contemporanea exposition est optima et fortissimm - The
contemporaneous exposition is the best and the strongest in law). It was submitted that
video conferencing was not known and did not exist when the CrPC was
enacted/amended. It was submitted that presence on a screen and recording of evidence
by video conferencing was not contemplated by the Parliament at the time of
drafting/amending the CrPC. It was submitted that when the Legislature intended to
permit video conferencing, it has expressly provided for it, as is evident from the
Ordinance passed by the State of Andhra Pradesh in December 2000 permitting the use
of video conferencing under Sec. 167(2) CrPC in remand applications. It is pointed out
that a similar amendment is being considered in Maharashtra. It is submitted that
Section 273 is analogous to the Confrontation Clause set out in the VIth Amendment to
the US Constitution. It is submitted that Courts in USA have held that video
conferencing does not satisfy the requirements of the Confrontation Clause. This
argument found favour with the High Court. The High Court has relied on judgments of

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various High Courts which have held that Section 273 is mandatory and that evidence
must be recorded in the presence of the accused. To this extant no fault can be found
with the Judgment of the High Court. The High Court has then considered what Courts
in foreign countries, including Courts in USA, have done. The High Court then based its
decision on the meaning of the term "presence" in various dictionaries and held that the
term "presence" in Section 273 means actual physical presence in Court. We are unable
to agree with this. We have to consider whether evidence can be led by way of video-
conferencing on the provisions of the CrPC and the IEA. Therefore, what view has been
taken by Courts in other countries is irrelevant. However, it may only be mentioned that
the Supreme Court of USA, in the case of Maryland vs. Santra Aun Craig [497 US 836],
has held that recording of evidence by video-conferencing was not a violation of the
Sixth Amendment (Confrontation Clause). Considering the question on the basis of
CrPC, we are of the view that the High Court has failed to read Section 273 properly.
One does not have to consider dictionary meanings when a plain reading of the
provision brings out the intentions90.
One needs to set out the approach which a Court must adopt in deciding such questions.
It must be remembered that the first duty of the Court is to do justice. As has been held
by this Court in the case of Sri Krishna Gobe vs State of Maharashtra Courts must
endeavour to find the truth. It has been held that there would be failure of justice not
only by an unjust conviction but also by acquittal of the guilty for unjustified failure to
90 Section 273: Evidence to be taken in presence of accused. Except as otherwise expressly provided, all
evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused,
or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation: In this
section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been
commenced under this Code. Thus Section 273 provides for dispensation from personal attendance. In
such cases evidence can be recorded in the presence of the pleader. The presence of the pleader is thus
deemed to be presence of the Accused. Thus Section 273 contemplates constructive presence. This shows
that actual physical presence is not a must. This indicates that the term "presence", as used in this Section,
is not used in the sense of actual physical presence. A plain reading of Section 273 does not support the
restrictive meaning sought to be placed by the Respondent on the word "presence". One must also take
note of the definition of the term 'Evidence' as defined in the Indian Evidence Act. Section 3 of the Indian
Evidence Act reads as follows:
"Evidence----Evidence means and includes------
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral evidence
(2) all documents including electronic records produced for the inspection of the Court; such documents
are called documentary evidence"
Thus evidence can be both oral and documentary and electronic records can be produced as evidence. This
means that evidence, even in criminal matters, can also be by way of electronic records. This would
include video- conferencing."

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produce available evidence. Of course, the rights of the Accused have to be kept in mind
and safeguarded, but they should not be over emphasized to the extent of forgetting that
the victims also have rights. It must also be remembered that the CrPC is an ongoing
statute. The principles of interpreting an ongoing statute have been very succinctly set
out by the leading jurist Francis Bennion in his commentaries titled "Statutory
Interpretation", 2nd Edition page 61791:
At this stage the words of Justice Bhagwati in the case of National Textile Workers'
Union v. P.R. Ramakrishnan, at page 256, need to be set out.
They are: "We cannot allow the dead hand of the past to stifle the growth of the living
present. Law cannot stand still; it must change with the changing social concepts and
values. If the bark that protects the tree fails to grow and expand along with the tree, it
will either choke the tree or if it is a living tree, it will shed that bark and grow a new
living bark for itself. Similarly, if the law fails to respond to the needs of changing
society, then either it will stifle the growth of the society and choke its progress or if the
society is vigorous enough, it will cast away the law which stands in the way of its
growth. Law must therefore constantly be on the move adapting itself to the fast
changing society and not lag behind."
This Court has approved the principle of updating construction, as enunciated by Francis
Bennion, in a number of decisions. These principles were quoted with approval in the
case of Commissioner of Income Tax, Bombay versus M/s Podar Cement Pvt. Ltd. 1997
Indlaw SC 2014]. They were also cited with approval in the case of State versus S. J.

91 "It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that
continuously updates its wordings to allow for changes since the Act was initially framed. While it
remains law, it has to be treated as always speaking. This means that in its application on any day, the
language of the Act though necessarily embedded in its own time, is nevertheless to be construed in
accordance with the need to treat it as a current law. ..........In construing an ongoing Act, the interpreter is
to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect
to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that
have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and
other matters.. That today's construction involves the supposition that Parliament was catering long ago
for a state of affairs that did not then exist is no argument against that construction. Parliament, in the
wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the
future and allow for it in the wording. .An enactment of former days is thus to be read today, in the light
of dynamic processing received over the years, with such modification of the current meaning of its
language as will now give effect to the original legislative intention. The reality and effect of dynamic
processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year
out. It also comprises processing by executive officials. "

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Chowdhury 1996 Indlaw SC 224]. In this case it was held that the Evidence Act was an
ongoing Act and the word "handwriting" in Section 45 of that Act was construed to
include "typewriting". These principles were also applied in the case of SIL Import USA
versus Exim Aides Silk Exporters 1999 Indlaw SC 1405].
In this case the words "notice in writing", in Section 138 of the NI, were construed to
include a notice by fax. On the same principle Courts have interpreted, over a period of
time, various terms and phrases. To take only a few examples:- "stage carriage" has been
interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive";
"telegraph" to include "telephone"; "bankers books" to include "microfilm"; "to take
note" to include "use of tape recorder"; "documents" to include "computer database's".
These principles have also been applied by this Court whilst considering an analogous
provision of the CrPC. In the case of Basavaraj R. Patil v. State of Karnataka 2000
Indlaw SC 2653 the question was whether an Accused needs to be physically present in
Court to answer the questions put to him by Court whilst recording his statement under
Section 313. To be remembered that under Section 313 the words are "for the purpose of
enabling the accused personally to explain". The term "personally" if given a strict and
restrictive interpretation would mean that the Accused had to be physically present in
Court. In fact the minority Judgment in this case so holds. It has however been held by
the majority that the Section had to be considered in the light of the revolutionary
changes in technology of communication and transmission and the marked improvement
in facilities for legal aid in the country. It was held, by the majority, that it was not
necessary that in all cases the Accused must answer by personally remaining present in
Court. Thus the law is well settled. The doctrine "Contemporanea exposition est optima
et fortissimm" has no application when interpreting a provision of an on-going
statute/act like the CrPC.
Arguments of Counsel for the Respondents
At this stage we must deal with a submission made by Mr Sundaram. It was submitted
that video-conferencing could not be allowed as the rights of an accused, under Article
21 of the Constitution of India, cannot be subjected to a procedure involving "virtual
reality". Such an argument displays ignorance of the concept of virtual reality and also
of video conferencing. Virtual reality is a state where one is made to feel, hear or

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imagine what does not really exists. In virtual reality one can be made to feel cold when
one is sitting in a hot room, one can be made to hear the sound of ocean when one is
sitting in the mountains, one can be made to imagine that he is taking part in a Grand
Prix race whilst one is relaxing on one sofa etc. Video conferencing has nothing to do
with virtual reality. Advances in science and technology have now, so to say, shrunk the
world. They now enable one to see and hear events, taking place far away, as they are
actually taking place. To take an example today one does not need to go to South Africa
to watch World Cup matches. One can watch the game, live as it is going on, on one's
TV. If a person is sitting in the stadium and watching the match, the match is being
played in his sight/presence and he/she is in the presence of the players. When a person
is sitting in his drawing-room and watching the match on TV, it cannot be said that he is
in presence of the players but at the same time, in a broad sense, it can be said that the
match is being played in his presence. Both, the person sitting in the stadium and the
person in the drawing-room, are watching what is actually happening as it is happening.
This is not virtual reality; it is actual reality. One is actually seeing and hearing what is
happening. Video conferencing is an advancement in science and technology which
permits one to see, hear and talk with someone far away, with the same facility and ease
as if he is present before you i.e. in your presence. In fact, he/she is present before you
on a screen. Except for touching, one can see, hear and observe as if the party is in the
same room. In video conferencing both parties are in presence of each other. The
submissions of Respondents counsel are akin to an argument that a person seeing
through binoculars or telescope is not actually seeing what is happening. It is akin to
submitting that a person seen through binoculars or telescope is not in the "presence" of
the person observing. Thus it is clear that so long as the Accused and/or his pleader are
present when evidence is recorded by video conferencing that evidence is being
recorded in the "presence" of the accused and would thus fully meet the requirements of
Section 273, CrPC. Recording of such evidence would be as per "procedure established
by law".
Recording of evidence by video conferencing also satisfies the object of providing, in
Section 273, that evidence be recorded in the presence of the Accused. The Accused and
his pleader can see the witness as clearly as if the witness was actually sitting before

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them. In fact, the Accused may be able to see the witness better than he may have been
able to if he was sitting in the dock in a crowded Court room. They can observe his or
her demeanour. In fact, the facility to play back would enable better observation of
demeanour. They can hear and rehear the deposition of the witness. The Accused would
be able to instruct his pleader immediately and thus cross- examination of the witness is
as effective, if not better. The facility of play back would give an added advantage
whilst cross-examining the witness. The witness can be confronted with documents or
other material or statement in the same manner as if he/she was in Court. All these
objects would be fully met when evidence is recorded by video conferencing. Thus no
prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out
hereinafter, evidence by video conferencing has to be on some conditions. Reliance was
then placed on Sections 274 and 275 of the CRPC, which require that evidence be taken
down in writing by the Magistrate himself or by his dictation in open Court. It was
submitted that video conferencing would have to take place in the studio of VSNL. It
was submitted that that this would violate the right of the Accused to have the evidence
recorded by the Magistrate or under his dictation in open Court. The advancement of
science and technology is such that now it is possible to set up video conferencing
equipment in the Court itself. In that case evidence would be recorded by the Magistrate
or under his dictation in open Court. If that is done then the requirements of these
Sections would be fully met. To this method there is however a draw back. As the
witness is now in Court there may be difficulties if he commits contempt of Court or
perjures himself and it is immediately noticed that he has perjured himself. Therefore, as
a matter of prudence evidence by video-conferencing in open Court should be only if the
witness is in a country which has an extradition treaty with India and under whose laws
contempt of Court and perjury are also punishable. However even if the equipment
cannot be set up in Court the CrPC contains provisions for examination of witnesses on
commissions. Sections 284 to 289 deal with examination of witnesses on commissions.
For our purposes Sections 284 and 285 are relevant92.

92 "284 WHEN ATTENDANCE OF WITNESS MAY BE DISPENSED WITH AND COMMISSION

ISSUED.
(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court
or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance
of such witness cannot he procured without an amount of delay, expense or inconvenience which, under

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Thus in cases where the witness is necessary for the ends of justice and the attendance of
such witness cannot be procured without an amount of delay, expense or inconvenience
which, under the circumstances of the case would be unreasonable, the Court may
dispense with such attendance and issue a commission for examination of the witness.
As indicated earlier Dr. Greenberg has refused to come to India to give evidence. His
evidence appears to be necessary for the ends of Justice. Courts in India cannot procure
his attendance. Even otherwise to procure attendance of a witness from a far of country
like USA would generally involve delay, expense and/or inconvenience. In such cases
commissions could be issued for recording evidence. Normally a commission would
involve recording evidence at the place where the witness is. However, advancement in
science and technology has now made it possible to record such evidence by way of
video conferencing in the town/city where the Court is. Thus, in cases where the
attendance of a witness cannot be procured without an amount of delay, expense or
inconvenience the Court could consider issuing a commission to record the evidence by
way of video conferencing. It was however submitted that India has no arrangement
with the Government of United States of America and therefore commission cannot be
issued for recording evidence of a witness who is in USA. Reliance was placed on the
case of Ratilal Bhanji Mithani v. State of Maharashtra 1972 Indlaw SC 216. In this case
a commission was issued for examination of witnesses in Germany. The time for
recording evidence on commission had expired. An application for extension of time
the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such
attendance and may issue a commission for the examination of the witness in accordance with the
provisions of this Chapter : Provided that where the examination of the President or the Vice-President of
India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the
ends of justice, a commission shall be issued for the examination of such a witness.
(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct
that such amount as the Court considers reasonable to meet the expenses of the accused, including the
pleader's fees, be paid by the prosecution.
285 COMMISSION TO WHOM TO BE ISSUED.
(1) If the witness is within the territories to which this Code extends, the commission shall be directed to
the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local
jurisdiction the witness is to, be found.
(2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission
shall be directed to such Court or officer as the Central Government may, by notification, specify in this
behalf.
(3) If the witness is in a country or place outside India and arrangements have been made by the Central
Government with the Government of such country or place for taking the evidence of witnesses in relation
to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and
sent to such authority for transmission, as the Central Government may, by notification, prescribe in this
behalf. "

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was made. It was then noticed that India did not have any arrangement with Germany
for recording evidence on commission93.
This authority, which is of a Constitution Bench of this Court, does suggest that no
commission can be issued if there is no arrangement between the Government of India
and the country where the commission is proposed to be issued. This authority would
have been binding on this Court if the facts were identical. Ms. Jaising had submitted
that notwithstanding this authority a difference would have to be drawn in cases where a
witness was not willing to give evidence and in cases where the witness was willing to
give evidence. She submitted that in the second class of cases commissions could be
issued for recording evidence even in a country where there is no arrangement between
the Government of India and that country.
In this case we are not required to consider this aspect and therefore express no opinion
thereon. The question whether commission can be issued for recording evidence in a
country where there is no arrangement, is academic so far as this case is concerned. In
this case we are considering whether evidence can be recorded by video-conferencing.
93 OLD CRPC The provisions contained in Sections 504 and 508-A of the Code of Criminal Procedure
contain complimentary provisions for reciprocal arrangements between the Government of our country
and the Government of a foreign country for Commission from Courts in India to specified courts in the
foreign country for examination of witnesses in the foreign country and similarly for Commissions from
specified courts in the foreign country for examination of witnesses residing in our country. Notifications
Nos. SRO 2161, SRO 2162, SRO 2163 and SRO 2164 all, dated November 18, 1953, published in the
Gazette of India Part II, Section 3 on November 28, 1953, illustrate the reciprocal arrangements between
the Government of India and the Government of the United Kingdom and the Government of Canada for
examination of witnesses in the United Kingdom, Canada and the examination of witnesses residing in
India.
In the present case, no notification under Section 508-A of the Code of Criminal Procedure has been
published specifying the courts in the Federal Republic of West Germany by whom commissions for
examination of witnesses residing in India may be issued. The notification, dated September 9, 1969, in
the present case under Section 504 of the Code of Criminal Procedure is not based upon any existing
complete arrangement between the Government of India and the Government of the Federal Republic of
West Germany for examination of witnesses residing in West Germany. The notification, dated September
9, 1969, is ineffective for two reasons. First, there is no reciprocal arrangement between the Government
of India and the Government of the Federal Republic of West Germany as contemplated in Sections 504
and 508-A of the Code of Criminal Procedure. Secondly, the notification under Section 504 is nullified
and repelled by the affidavit evidence adduced on behalf of the State that no agreement between the two
countries has yet been made. In the present case, extension of time was granted in the past to enable the
State for examination of witnesses in West Germany and return of the commission to this country. The
State could not obtain the return of the commission. Now, a question has arisen as to whether any
extension of time should be made when it appears that reciprocal arrangements within the contemplation
of Sections 504 and 508-A of the Code of Criminal Procedure are not made. The courts do not make
orders in vain. When this Court finds that there are no arrangements in existence within the meaning of
Sections 504 and 508-A of the Code of Criminal Procedure this Court is not inclined to make any order."

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Normally when a Commission is issued, the recording would have to be at the place
where the witness is. Thus Section 285 provides to whom the Commission is to be
directed. If the witness is outside India, arrangements are required between India and
that country because the services of an official of the country (mostly a Judicial Officer)
would be required to record the evidence and to ensure/compel attendance. However
new advancement of science and technology permit officials of the Court, in the city
where video conferencing is to take place, to record the evidence. Thus, where a witness
is willing to give evidence an official of the Court can be deported to record evidence on
commission by way of video-conferencing. The evidence will be recorded in the
studio/hall where the video-conferencing takes place. The Court in Mumbai would be
issuing commission to record evidence by video conferencing in Mumbai. Therefore, the
commission would be addressed to the Chief Metropolitan Magistrate, Mumbai who
would depute a responsible officer (preferably a Judicial Officer) to proceed to the office
of VSNL and record the evidence of Dr. Greenberg in the presence of the Respondent.
The officer shall ensure that the Respondent and his counsel are present when the
evidence is recorded and that they are able to observe the demeanour and hear the
deposition of Dr. Greenberg. The officers shall also ensure that the Respondent has full
opportunity to cross-examine Dr. Greenberg. It must be clarified that adopting such a
procedure may not be possible if the witness is out of India and not willing to give
evidence. It was then submitted that there would be practical difficulties in recording
evidence by video conferencing. It was submitted that there is a time difference between
India and USA. It was submitted that a question would arise as to how and who would
administer the oath to Dr. Greenberg. It was submitted that there could be a video
image/audio interruptions/distortions which might make the transmission
inaudible/indecipherable. It was submitted that there would be no way of ensuring that
the witnesses is not being coached/tutored/prompted whilst evidence was being
recorded. It is submitted that the witness sitting in USA would not be subject to any
control of the Court in India. It is submitted that the witness may commit perjury with
impunity and also insult the Court without fear of punishment since he is not amenable
to the jurisdiction of the Court. It is submitted that the witness may not remain present
and may also refuse to answer questions. It is submitted that commercial studios place

236
restrictions on the number of people who can remain present and may restrict the
volume of papers that may be brought into the studio. It was submitted that it would be
difficult to place textbooks and other materials to the witness for the purpose of cross-
examining him. Lastly, it was submitted that the cost of video conferencing, if at all
permitted, must be borne by the State. To be remembered that what is being considered
is recording evidence on commission. Fixing of time for recording evidence on
commission is always the duty of the officer who has been deputed to so record
evidence. Thus the officer recording the evidence would have the discretion to fix up the
time in consultation with VSNL, who are experts in the field and who , will know which
is the most convenient time for video conferencing with a person in USA. The
Respondent and his counsel will have to make it convenient to attend at the time fixed
by the concerned officer. If they do not remain present the Magistrate will take action, as
provided in law, to compel attendance. We do not have the slightest doubt that the
officer who will be deputed would be one who has authority to administer oaths. That
officer will administer the oath.
By now science and technology has progressed enough to not worry about a video
image/audio interruptions/distortions. Even if there are interruptions they would be of
temporary duration. Undoubtedly an officer would have to be deputed, either from India
or from the Consulate/Embassy in the country where the evidence is being recorded who
would remain present when the evidence is being recorded and who will ensure that
there is no other person in the room where the witness is sitting whilst the evidence is
being recorded. That officer will ensure that the witness is not
coached/tutored/prompted. It would be advisable, though not necessary, that the witness
be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being
recorded on commission that evidence will subsequently be read into Court. Thus no
question arises of the witness insulting the Court. If on reading the evidence the Court
finds that the witness has perjured himself, just like in any other evidence on
commission, the Court will ignore or disbelieve the evidence. It must be remembered
that there have been cases where evidence is recorded on commission and by the time it
is read in Court the witness has left the country. There also have been cases where
foreign witness has given evidence in a Court in India and that then gone away abroad.

237
In all such cases Court would not have been able to take any action in perjury as by the
time the evidence was considered, and it was ascertained that there was perjury, the
witness was out of the jurisdiction of the Court. Even in those cases the Court could only
ignore or disbelieve the evidence. The officer deputed will ensure that the Respondent,
his counsel and one assistant are allowed in the studio when the evidence is being
recorded. The officer will also ensure that the Respondent is not prevented from
bringing into the studio the papers/documents which may be required by him or his
counsel. We see no substance in this submission that it would be difficult to put
documents or written material to the witness in cross-examination. It is now possible, to
show to a party, with whom video conferencing is taking place, any amount of written
material. The concerned officer will ensure that once video conferencing commences, as
far as possible, it is proceeded with without any adjournments. Further if it is found that
Dr Greenberg is not attending at the time/s fixed, without any sufficient cause, then it
would be open for the Magistrate to disallow recording of evidence by video
conferencing. If the officer finds that Dr. Greenberg is not answering questions, the
officer will make a memo of the same. Finally when the evidence is read in Court, this is
an aspect which will be taken into consideration for testing the veracity of the evidence.
Undoubtedly the costs of video conferencing would have to be borne by the State.
Judgement
Accordingly, the impugned judgment is set aside. The Magistrate will now proceed to
have the evidence of Dr. Greenberg recorded by way of video conferencing. As the trial
has been pending for a long time the trial court is requested to dispose off the case as
early as possible and in any case within one year from today. With these directions the
Appeals stand disposed of. The Respondent shall pay to the State and the complainant
the costs of these Appeals.
Appeals disposed of

238
 Recent Judgment of Video Conferencing and recording of evidence of Prosecutrix
Sujoy Mitra v State of West Bengal94
Citation : 2015 Indlaw SC 846
Principles and Law established in the case
S. 278 of CrPC - Testimony of Prosecutrix through video-conferencing - Justification -
Indian Penal Code, 1860, s. 376 - Appellant accused is facing Trial Court u/s. 376 of IPC
and complainant is citizen of Ireland, resident in Dublin - Trial Court accepted to record
testimony of prosecutrix, through video conference. The Appellant challenged to this
procedure adopted by Trial Court while recording statement of PW5
HC vide impugned order disposed of revision filed by appellant
Hence, present appeal.
Cases Referred- State of Maharashtra vs. Dr. Praful B. Desai (2003) 4 SCC 601
Ratio - It is justified to record testimony of prosecutrix through video conference when
safeguards and directions provided by Court is followed.
Facts of the Case
The appellant before this Court is an accused, who is facing trial in ST No. 1(8) of 2014
arising out of Kalighat police station Case No. 164/2013 dated 1.6.2013, inter alia, under
Section 376 of the IPC. Complainant in the above case is a citizen of Ireland, resident in
Dublin. Four witnesses were examined by the trial Court before examining the
prosecutrix-PW5. The trial Court accepted to record the testimony of the prosecutrix,
through video conference.
The appellant before this Court raised a challenge to the procedure adopted by the trial

94 Bench: Jagdish Singh Khehar, R. Banumathi, The Judgment was delivered: Jagdish Singh Khehar, J.

239
Court, while recording the statement of PW5 on various grounds, by filing a petition
under Section 482 of the CrPC. The learned Single Judge of the High Court of Calcutta,
disposed of Criminal Revision No. 1285 of 2015, by passing the impugned order dated
16.06.2015. Alleging, that the postulated procedure was not fair to the appellant, the
appellant has approached this Court.
We have heard learned counsel for the rival parties at some length, and are satisfied, that
the following procedure should be adopted, in addition to the steps and safeguards
provided in the impugned order, while recording the statement of PW5:
1.The State of West Bengal shall make provision for recording the testimony of PW5 in
the trial Court by seeking the services of the National Informatic Centre (NIC) for
installing the appropriate equipment for video conferencing, by using "VC Solution"
software, to facilitate video conferencing in the case. This provision shall be made by
the State of West Bengal in a room to be identified by the concerned Sessions Judge,
within four weeks from today. The NIC will ensure, that the equipment installed in the
premises of the trial Court, is compatible with the video conferencing facilities at the
Indian Embassy in Ireland at Dublin.
2.Before recording the statement of the prosecutrix-PW5, the Embassy shall nominate a
responsible officer, in whose presence the statement is to be recorded. The said officer
shall remain present at all times from the beginning to the end of each session, of
recording of the said testimony.
3.The officer deputed to have the statement recorded shall also ensure, that there is no
other person besides the concerned witness, in the room, in which the testimony of PW5
is to be recorded. In case, the witness is in possession of any material or documents, the
same shall be taken over by the officer concerned in his personal custody.
4.The statement of witness will then be recorded. The witness shall be permitted to rely
upon the material and documents in the custody of the officer concerned, or to tender the
same in evidence, only with the express permission of the trial Court.
5.The officer concerned will affirm to the trial Court, before the commencement of the
recording of the statement, the fact, that no other person is present in the room where
evidence is recorded, and further, that all material and documents in possession of the
prosecutrix-PW5 (if any) were taken by him in his custody before the statement was

240
recorded. He shall further affirm to the trial Court, at the culmination of the testimony,
that no other person had entered the room, during the course of recording of the
statement of the witness, till the conclusion thereof. The learned counsel for the accused
shall assist the trial Court,to ensure, that the above procedure is adopted, by placing
reliance on the instant order.
6.The statement of the witness shall be recorded by the trial Court, in consonance with
the provisions of Section 278 of the Code of Criminal Procedure. At the culmination of
the recording of the statement, the same shall be read out to the witness in the presence
of the accused (if in attendance,or to his pleader). If the witness denies the correctness of
any part of the evidence, when the same is read over to her, the trial Court may make the
necessary correction, or alternatively, may record a memorandum thereon, to the
objection made to the recorded statement by the witness, and in addition thereto, record
his own remarks, if necessary
7.The transcript of the statement of the witness recorded through video conferencing(as
corrected, if necessary), in consonance with the provisions of Section 278 of the Code of
Criminal Procedure, shall be scanned and dispatched through email to the embassy. At
the embassy, the witness will authenticate the same in consonance with law. The
aforesaid authenticated statement shall be endorsed by the officer deputed by the
embassy. It shall be scanned and returned to the trial Court through email. The statement
signed by the witness at the embassy, shall be retained in its custody in a sealed cover.
8. The statement received by the trial Court through email shall be re-endorsed by the
trial Judge. The instant statement endorsed by the trial Judge, shall constitute the
testimony of the prosecutrix-PW5, for all intents and purposes.
We are satisfied, that the aforesaid parameters will meet the ends of justice, and that no
further inputs are required. Needless to mention, that the procedure for recording the
statement of PW5, as noticed above, was finalised with the invaluable assistance of the
learned counsel for the rival parties.
In recording our conclusions in regulating the above procedure, the learned senior
counsel for the appellant emphasised, that recording of the video-graphic testimony of
the witness should be furnished to the appellant, and it is only thereupon, that the
direction contained in the judgment rendered by this Court in State of Maharashtra vs.

241
Dr. Praful B. Desai (2003) 4 SCC 601 2003 Indlaw SC 320, can be deemed to have been
fully complied with. The instant contention of the learned senior counsel for the
appellant is based on a variety of reasons including the fact, that the statement may be
recorded in a language which is not known, and/or is not properly understandable to the
accused. And even if the statement of the witness is recorded in English, because of
different accents of English (based on the countries of their origin), it may not be
possible to fully understand the testimony of the concerned witness.
Having given our thoughtful consideration to the instant contention advanced at the
hands of the learned senior counsel for the appellant, we find no reason whatsoever to
agree with the same. In case of there being any difficulty in recording the testimony of
the concerned witness, it is always open to the trial Court to seek appropriate assistance
(based on, or independently of such plea raised by a party to the proceeding), as may be
required by the trial Court, for a truthful recording of the testimony of the concerned
witness. We are of the view, that furnishing recorded video-graphic testimony to an
accused may eventually turn out to be a cumbersome process, if the same has to be
replicated in all cases. Specially because this procedure is increasingly being adopted,
by allowing the accused to participate in their trials, from jail premises also (at certain
stages of the trial). And further more, it is likely to lead more record, which will also
have to be maintained for its safe custody. What has been allowed to the accused herein,
is what an ordinary accused would be entitled to, had the statement been recorded by the
trial Court itself.
The instant appeal is accordingly disposed of. The trial Court shall fix the date of
hearing, as and when the video-conferencing facilities have been provided for in the
premises of the trial Court, and after the same have been synchronized with the facilities
available at the Indian Embassy in Ireland at Dublin.
The trial Court shall forward the instant order through the Sessions Judge, 24 Parganas,
Alipore to the Ambassador of the Indian Embassy in Ireland at Dublin for compliance.
The instant parameters have to be adopted to record the testimony of the prosecutrix-
PW5, in addition to the procedure and safeguards provided for in the impugned order.
Accordingly, it will be imperative to record her testimony afresh.
Appeal disposed of

242
 Various Provision of the IEA
Evidence in pleadings and Documentary evidence / relevant and irrelevant evidence
Section 11/Section 110/ s114/s 165
Standard Chartered Bank v Andhra Bank Financial Services Limited, and Others
2006 Indlaw SC 826; (2006) 6 SCC 94; AIR 2006 SC 362695
Cases referred
1. M/s Ammonia Supplies Corporation (P) Ltd. v M/s Modern Plastic Containers Pvt.
Ltd. and Ors., 1998 Indlaw SC 912
2. Siddik Mohamed Shah v Mt. Saran & Ors., Bhagatsingh & Ors. v Jaswant Singh,
1961 Indlaw SC 515
3. Shri Venkataramana Devaru & Ors. v State of Mysore, 1957 Indlaw SC 120.
4. Bhagwati Prasad v Chandramaul, 1965 Indlaw SC 244
5. Moran Mar Basselios Catholicos and Anr. v Most Rev. Mar Poulose Athanasius
and Ors., 1954 Indlaw SC 131
6. Brahma Nand Puri v Mathra Puri and Anr. and L.J. Leach and Co. Ltd. and Anr. v
Messrs. Jardine Skinner and Co. 1957 Indlaw SC 15
7. Chuharmal Takarmal, 1988 Indlaw SC 360
8. Mohnani v Commissioner of Income Tax
9. Sita Ram Bhau Patil v Ramchandra Nago Patil and Anr., 1977 Indlaw SC 419
10. France v Clark
11. V.S. Venkata Subbiah Chetty v A. Subha Naidu and Ors. and Govt. of the United
States of Travancore and Cochin v Bank of Cochin Ltd., 1953 Indlaw KER 46..
12. Fazal D. Allana v Mangaldas M. Pakvasa 1921 Indlaw MUM 179
95 B.N. Srikrishna, Y.K. Sabharwal, P.P. Naolekar

243
Facts of the case
Sometime in December 1991, NPCL issued bonds of two series - 9% tax free bonds and
17% taxable bonds. These bonds were permitted by the Controller of Capital Issues to be
sold to banks and financial institutions for private placement. On 24 February 1992 Andhra
Bank Financial Services Ltd. (hereinafter referred to as “ABFSL”) made an offer to NPCL
for placing Rs. 100 crores Rs. 50 crores in 9% tax free bonds and Rs. 50 crores in 17%
taxable bonds. On 26 February 1992 NPCL wrote to ABFSL confirming the allotment of
the 9% tax free bonds and the 17% taxable bonds, as requested. On 26 February 1992,
NPCL issued a letter of allotment (hereinafter referred to as the “LOA”) confirming the
allotment of 9% tax free bonds of the nominal value of Rs. 50 crores (hereinafter referred
to as the “suit bonds”). NPCL also said that intimation would be given in due course as to
when the allotment letter duly discharged may be exchanged for bond certificates, and that
the interest payable on the suit bonds would accrue from the date of allotment, payable on
half yearly basis. On the same day ABFSL sold the suit bonds to SCB and in connection
with the said sale issued its Cost Memo No. 057 dated 26 February 1992 indicating the
particulars of the suit bonds and the cost at which they were being sold i.e. @ 85.05 at the
total cost of Rs. 42,52,50,000/-.
Against the receipt of the said Cost Memo No. 057 from ABFSL, SCB issued a Pay Order
No. 246408 dated 26 February 1992 for the sum of Rs. 42,52,50,000/-. ABFSL, in turn,
issued a Banker's Receipt (hereinafter referred to as "BR") No. 23728 acknowledging
receipt of the sum of Rs. 42,52,50,000/- from SCB towards the cost of the suit bonds and
undertook to deliver the suit bonds of the value of Rs. 50 crores, when ready, in exchange
for the said BR duly discharged, and assured that, in the meantime, the suit bonds would be
held on account of SCB. On 26/27 February 1992, ABFSL addressed a letter to SCB
requiring SCB to hand over its BR No. 23728 in lieu of the original LOA in respect of the
suit bonds as well as the 17% NPCL taxable bonds, which were said to have been enclosed
with the said letter.

According to SCB, in April/May 1992, when the securities scam broke out, the officers of
SCB made an investigation of its records and found that SCB did not have in its possession
the original LOA, but only a photocopy. On 20 May 1992, SCB wrote to NPCL alleging

244
that though in ABFSL’s letter dated 26 February 1992, it was stated that the original LOA
was forwarded, SCB had found that only a photocopy of the LOA had been enclosed. A
copy of ABFSL's concerned letter was also enclosed. SCB further stated that the original
LOA purportedly sent by ABFSL was not available, that a note may be made in NPCL’s
records that the original LOA was missing and, therefore, due caution should be exercised
by NPCL. SCB also requested for issue of a duplicate allotment letter on the undertaking to
return the original, if received by it, and keeping NPCL indemnified against claims, if any,
arising out of issue of the duplicate. On 29 May 1992, SCB requested ABFSL to confirm to
NPCL the fact of having sold the suit bonds to SCB. On the same date, ABFSL addressed a
letter to NPCL (with a copy endorsed to SCB), confirming having sold the suit bonds to
SCB on 26 February 1992. They also confirmed that they had no objection to NPCL
issuing a duplicate LOA to SCB. On 8 June 1992 one Hiten P. Dalal (hereinafter referred to
as "HPD"), who was acting as a broker in a large number of securities transactions of banks
and financial institutions, was declared a ‘notified person’ under the provisions of S. 3 of
the Act. On 20 June 1992 SCB filed a First Information Report (“FIR”) against HPD and
its own employees alleging that, as a result of a conspiracy between HPD and its own
employees, several securities and monies had been misappropriated by HPD.
Issues:
The Special Court raised the following issues in the impugned judgment and answered
them as under: Issues with Answers
1. Does the Plaint not disclose any cause of action against the Defendant No.2?
2. In the affirmative i.e. in favour of CMF and against SCB
a. Whether the plaintiffs were entitled to and continue to be entitled to the suit
bonds as alleged in para 8 of the Plaint ?
3. In the negative i.e. in favour of CMF and against SCB
a. Whether the Plaintiffs prove the circumstances in which Original BR was
taken away from them as alleged in para (8) of the Plaint ?
4. In the negative i.e. against SCB and in favour of CMF.
a. Whether the alleged transaction dated 26/2/92 was a transaction of Hiten P.
Dalal as alleged in para 1(d) and 8 of the Written Statement?
5. In the affirmative i.e. in favour of CMF and against SCB

245
 a. Whether the alleged transaction dated 26/2/1992 was under an arrangement
with the Plaintiffs as alleged in paras 1(d), 7, 8 and 9 of the Written
Statement?
6. In the affirmative i.e. in favour of CMF and against SCB.
7. Whether the Plaintiffs are estopped from making any claim as alleged in para 1 read
with para 22 and 29 of the Written Statement?
8. In the affirmative i.e. in favour of CMF and against SCB.
a. Whether on 9th May 1992 the Plaintiffs purchased Cantriple Units of the
face value of Rs.45.50 crores for Rs.266.18 crores (approx.) and against
which the Plaintiffs sold and adjusted various securities including the suit
bonds of the face value of Rs. 50 crores and
b. whether the Plaintiffs have applied for and got the said Cantriple units of
face value of Rs.45.50 crores transferred in their name in January, 1993
disclosing a sale consideration of about Rs.266.18 crores as stated in para 14
and 15 of the Written Statement ?
This issue is divisible in to three parts
i. C
MF has proved that SCB has purchased cantriple units of the face value of Rs.
45.50 crores on 9/5/1992. To that extent, issue is answered in the affirmative
ii. H
owever, CMF has not proved that the said purchase was against sale of the suit
bonds on 9/5/1992. To that extent the sub-issue is answered in the negative,
iii. C
MF has proved that in January, 1993 SCB applied for and have got the said
cantriple units of the face value of Rs. 45.50 crores transferred in their name.
Therefore, to that extent, the sub-issue is answered in the affirmative.
Whether the Defendant No.2 purchased the bonds and received delivery thereof along with
Transfer Deed as alleged in para 22 and 29 of the Written Statement ?
In the affirmative i.e. in favour of CMF and against SCB.

246
Whether the plaintiffs deliberately by their act and or omission or negligence put Defendant
No.1 or Hitel P. Dalal in a position to deal with the LOA and the Transfer Deed as they
liked as alleged in para 21 and 29 of the Written Statement ?
In the affirmative i.e. in favour of CMF and against SCB.
Whether Hiten P. Dalal was authorised to deal with and/or deemed to be authorised to deal
with the Bonds as alleged in paras 22 and 29 of the Written Statement ?
In the affirmative i.e. in favour of CMF and against SCB.
Whether the Plaintiff is entitled to any reliefs and if so what ? As per final Order.
Other issues are also raised in the case
Contention of the counsel
Mr. Jethmalani, learned counsel for the appellant, contended that the Special Court erred in
taking the view that Suit No. 11/96 was a title suit in which SCB failed to have its title
established. He submitted that on proper analysis, the suit of SCB was in the nature of a
declaratory suit falling within the ambit of S. 34 of the Specific Relief Act, 1963, which
corresponds to S. 42 of the SPA ("old Act"). He placed particular emphasis on illustration
(c) appended to S. 42 of the old Act and contended that a declaratory suit under S. 42 of the
old Act, or S. 34 of the present Specific Relief Act, need not be one for declaring the title
of the plaintiff, but may be one for declaring any other legal character of the plaintiff. It is
difficult to accept this contention of Mr. Jethmalani.
Counsel for CMF, SCB
As rightly pointed out by Mr. Kapadia, learned counsel for CMF, SCB appears to have all
along claimed that its suit was a title suit.
Observation of the Court and the Judgment
Considering the evidence as a whole, it appears that the initial stand taken by the learned
counsel of CMF in the first round of the litigation, that there was no credible evidence on
which payment of consideration by CMF could be proved, was fully justified. The attempt
of CMF on picking up and putting forward some of the documents, out of the several
transactions entered into by them to patch up the story of consideration, in our opinion, has
miserably failed. There was no cause for being charitable to CMF by saying that they could
prove only a part of the consideration, ergo, rest of the transactions must be deemed to have
been proved. We are of the view that every one of the arguments put forward by SCB to

247
impugn the story of CMF that it had paid consideration is justified and the Special Court
was wrong in rejecting the arguments of SCB on this count. We, therefore, hold that CMF
has utterly failed to prove its story that it had paid consideration for purchase of the suit
bonds on 27 February 1992.
Conclusion:
Finally, it appears that there is not much to choose between the two contending banks,
namely, SCB and CMF. Both the banks have been tarred by the same brush by the
Janakiraman Committee Report about fudging their accounts. However, it appears to us
that the issue of the ownership of the suit bonds could not have been decided on any basis
other than what the legal evidence showed. The situation is somewhat like a game of
musical chairs; the one who is sitting on the chair when the music stops, wins. Similarly,
the situation before us. Once we eliminate the conjectural findings, we find that all the
material evidence on record shows that SCB had purchased the suit bonds from NPCL by
paying good money. The original LOA for purchase of the suit bonds along with the
transfer deed was handed over to SCB. As to how it went out of its possession, it appears to
be the subject matter of the FIR filed by SCB. SCB alleges that, it was pilfered or
misappropriated by some officer in conspiracy with HPD, but that is a matter which will be
tried by an appropriate criminal court. Turning to the other side of the story, CMF claims
acquisition of the suit bonds on 27 February 1992 by paying consideration for them. It is
not shown as to who was the counter-party from whom the purchase was made, as CMF’s
stand on its counter-party keeps changing from beginning to end. The documents produced
on record do not bear out the stand of CMF. In spite of exercise of our imagination, we are
not able to support the conclusion that CMF had paid consideration for acquisition of the
suit bonds from HPD; or that HPD became the owner of the suit bonds merely because of
the existence of the 15% arrangement, the details of which were thoroughly analysed by the
Janakiraman Committee Report and the Joint Parliamentary Committee Report. That such
an agreement was not against public policy was clearly held by the previous judgment of
this Court in Civil Appeal No. 4456/95. In these circumstances, we are not satisfied that the
evidence on record proves that HPD became the owner of the suit bonds or that CMF
legitimately acquired the suit bonds from HPD or any other person by paying bona fide
purchase value for them. Consequently, we must hold that CMF acquired no right,

248
whatsoever, to the suit bonds. The suit bonds always remained the property of SCB
irrespective of how they found their way into the hands of CMF.
In the result, we allow both the appeals and set aside the impugned judgments of the
Special Court in Special Court Suit No.11/96, and Special Court Misc. Petition No. 81/95
and hold that SCB as the owner of the suit bonds is entitled to be registered as such in the
register of NPCL. Consequently, the Suit is decreed in terms of the prayers in Civil Suit
No. 3808/92 and Misc. Petition No. 81/95 is dismissed.
Considering that both parties are in pari delicto in the matter of fudging their accounts and
indulging in transactions which have facilitated the securities' scam, we do not think it fit
that SCB should be awarded costs, although it has succeeded in the appeals. Appeals
allowed.

249
 Importance of Documentary Evidence

Karnataka Wakf Board v State of Karnataka and another

2003 Indlaw SC 400; (2003) 5 SCC 55596
The documents to prove the title and possessions and the value of evidence
Facts
Both the appeals are raised on a common question of law; and hence they were heard
jointly and are being disposed of by a common Judgment. The senior counsel, Shri Salman
Khursheed appeared for the appellant Karnataka Wakf Board and Mr. Sanjay R. Hegde
who appeared for the respondents.
The appeal is relating to the Original Suit No. 1 of 1981 filed by the Department of
Education, there is satisfactory and convincing documentary evidence to show that this
property belongs to the Education Department. Exh. 1 is the certified copy of the order
passed by the Government of Bombay dated 29.5.1941 which shows that two acres of land
in Bijapur was sanctioned by the Government of Bombay to the District Local Board,
Bijapur. The occupancy price was fixed at Rs. 16,325/- and this occupancy price was
exempted by the Government. Certain conditions were imposed on the District Local Board
for the user of the said property. Exh. P2 is a letter addressed by the Collector of Bijapur to
the President of the District Local Board.
In both these documents, the property has been described as CTS No. 34B. Exh. P-3 is also
an important document, which shows that the property was resumed from the District Local
Board by the Government and the same was given to District School Board. Exh.P-4, the
property registers of 1941 also show that it was described as the property belonging to the
District School Board. These documents are clinching evidence to prove the title of the
plaintiff. The defendants could not bring any counter evidence to question the credibility of
these documents. Though the defendants had contended that the Arab religious preacher by
name ‘Peer’ Mahabare Khandayat came to India in A.D. 1304 and occupied the entire
Arkilla area, there are no documents to show that the suit property was ever in possession
of Wakf Board and under the control and management of defendant nos. 2A and 2B.

96 K.G. Balakrishnan, S. Rajendra Babu and G.P. Mathur

250
It is true that the suit property was very close to the Arkilla area, but the defendants 2A and
2B could not produce any documents at least to prove the possession and enjoyment of this
property. The second defendant produced Exh. D4 to show that in CTS records of the years
1980, the name of the second defendant was mentioned in respect of the suit property.
Except this document, defendants 2A and 2B could not produce any other document. But
that by itself is not sufficient to establish the possession of the defendants. The plaintiff by
the various documents successfully proved its title and the trial Court rightly held that the
plaintiff has got title to this property.

In respect of the property comprising CTS No. 34/4A-2 situated in Ward No. VI of Bijapur
city, the State of Karnataka is represented by Deputy Director of Agriculture, who was the
plaintiff. The Plaintiff No. 1 was initially designated as Deputy Director of Agriculture,
Bijapur city. The Government of Karnataka changed the designation of Plaintiff No. 1 as
Principal Agricultural Officer. It was contended on behalf of the plaintiff that out of the
property comprising CTS 34/A- 1, an area admeasuring 1600 square yards had been
granted by Deputy Commissioner Bijapur by Order No. RD-LBP-SR.167-63 dt. 12.4.1965
on the occupancy price of Rs. 25/- to the District Agricultural Officer. The Plaintiff No. 1 is
the Executive Officer/Convenor of the Farmer's forum of Bijapur district. Plaintiff Nos. 2
and 3 are respectively the President and Secretary of the Farmer's forum.

The office building was constructed on the suit property in 1964-65 by spending a huge
amount. At the instance of defendants 2A and 2B, this property was included in the
notification dated 21.4.1976 as 'Wakf' property. No notice was served on the plaintiff
before the said notification. Defendants were never the owners in possession of this
property and the inquiry under Section 67 of the Karnataka Land Revenue Act was not
done properly. Plaintiff was given notice on 27.1.1979 and plaintiff no. 1 appeared and
prayed for adjournment to produce the documents, but the Deputy Commissioner rejected
his prayer and passed an order holding that the suit property was ‘Wakf’ property. Plaintiff
had issued notice under Section 80 CPC read with Section 56 of the Wakf Act to the
defendants before filing the suit.

251
In this case also, the Defendant No. 1 contended that the suit property was ‘Wakf property’
and it never belonged to the Department of Agriculture of the State of Karnataka. It was
also contended that the plaintiff was not entitled to challenge the notification published by
the State Government. Defendants 2A and 2B raised similar contention that religious
preacher ‘Peer’ Mahabare Khandayat came to India in A.D. 1304 and occupied the whole
‘Arkilla’ area and erected Mecca Masjid and the entire area, including the suit property
thus, became ‘Wakf property’ and for the past 7 centuries, it is being treated as ‘Wakf
property’.

In Original Suit No. 4 of 1981 the plaintiff relied on P3 document. The Hon. Secretary of
the District Farmer's Forum was examined as PW 1. He deposed that an extent of land
measuring 1680 square yards was granted to District Farmer’s Forum and in the year 1965,
the forum constructed a building spending about two and a half lakhs rupees. Exh. P4 is an
important document which shows that a grant was made in favour of the Farmer's forum
for constructing a training-cum-meeting hall. Exh. P5 is the property register card relating
to the suit property issued by the City Surveyor, Bijapur. This shows that the property was
in the name of the first plaintiff in the year 1965. The defendants could not produce any
satisfactory evidence to prove their title or possession of this property. The defendants
sought to place reliance on a book written by T.W. Arnold which states about saint ‘Peer’
Mahabare Khandayat but the statements made in such books cannot be relied on unless
supported by any contemporaneous records and the trial Court as well as the High Court
rightly declined to take cognizance of the statements made in the said book. As regards suit
property in O.S. No. 4 of 81 also, the plaintiff succeeded in proving the title and
possession.
Appeal dismissed

252
 Documentary Evidence and exclusion of Oral Evidence

Section s 91-99
State Bank of India and Another v Mula Sahakari Sakhar Karkhana Limited
2006 Indlaw SC 1463, AIR 2007 SC 236197
Principle- Contract & Commercial - Banking & Finance - Practice & Procedure - Indian
Evidence Act, 1872, s. 92 - Document indemnifying loss
Issue- Whether the Document is an Indemnity or a Guarantee?
Facts:
The Respondent is a cooperative society. It has a sugar factory. It entered into a contract for
installation of a paper plant at village Sonai on turnkey basis so as to enable it to utilize the
left-over material called ‘bagasse’ of the sugarcane with M/s. Pentagon Engineering Pvt.
Ltd. (for short ‘Pentagaon’). The total value of the contract was Rs. 3,40,00,000/-.
Pentagon furnished a performance guarantee in regard to the machinery supplied by it. The
said contract contained a clause for retention of 10% of the contract price by the
cooperative society (Terms and Conditions are questioned before the Court of Law)
THE DISPUTE
Disputes and differences arose by and between the cooperative society and Pentagon. The
contract of Pentagon was terminated by the cooperative society by a notice dated 17th July,
1987. A claim of Rs.3,23,28,209.10 was also raised. Pentagon not only denied and disputed
its liability to pay the said sum but also, on the other hand, asserted that an amount of
Rs.4,66,73,300/- was due and owing to it by a letter dated 18th July, 1987.
The Bank Guarantee was thereafter invoked by the cooperative society. The demand of the
cooperative society invoking the said Bank Guarantee met resistance from the Appellant
stating that it had executed an agreement of indemnity pursuant whereto or in terms
whereof only losses, claims, damages, actions and costs which might have been suffered by
it, were covered and the transaction in question does not constitute Bank Guarantee. It was,
therefore, contended that unless the cooperative society proved any loss or damage for
design, performance, workmanship or supply of any defective material through a
competent court or authority, the Appellants were not liable to pay the said amount. Suit
filed before the Court of Civil Judge, Senior Division, Ahmednagar

97 S. B. Sinha, J.
253
ORDER OF THE COURT
The matter relating to passing of an interim order went up to the High Court. The High
Court by an order dated 23rd February, 1988 directed that the said amount be retained by
the Appellant subject to the condition that in the event, the suit is decreed the said amount
would be paid with interest @ 12% per annum. The suit was dismissed. An appeal was
preferred there against by the cooperative society before the High Court. The High Court
construing the said agreement dated 25.9.1983 to be a Bank Guarantee decreed the suit
directing Appellant to pay the said sum of Rs.34,00,000/- with interest @ 14% per annum.
The Appellant appeals before the SC.
Submissions by the Counsels
Mr. G.E. Vahanvati, learned Solicitor General appearing on behalf of the Appellants
submitted that:
1. On a true construction of the document dated 4th September, 1985, it would be seen
that the same is a contract of indemnity and not a Bank Guarantee.
2. The High Court committed a manifest error in considering the oral evidence
adduced by the parties in construing the said document dated 4th September, 1985.
3. Interest awarded @ 14% per annum is contrary to and inconsistent with the
directions of the High Court as contained in its order dated 23rd February, 1988.
Mr. Naphade, learned Senior Counsel appearing on behalf of the cooperative society, on
the other hand, submitted that:
i. The substance of the matter must be considered in the backdrop of events in which
the Bank Guarantee was furnished by the Appellant and for that purpose
surrounding circumstances were relevant. As the terms of contract need not
necessarily be gathered from one document, the relevant circumstances could also
be considered, they being:
a. The document in question is by way of a letter. It refers to the original
agreement dated 29.5.1983 in terms whereof the cooperative society agreed
to purchase from Pentagon the paper plant on turnkey basis. The said
agreement stipulates that final payment should be made to the supplier on
his furnishing a Bank Guarantee to the cooperative society for design,

254
 performance, workmanship or against defective materials or equipment
supplied.
b. Pantagon was a client of the Appellant and it had approached it for
furnishing the Bank Guarantee.
The Cases Referred and Relied by Parties
1. S. Chattanatha Karayalar v The Central Bank of India and Others, [1965 (3) SCR
318]; 1965 Indlaw SC 5
2. P.L. Bapuswami v N. Pattay Gounder, [1966 (2) SCR 918].
3. New India Assurance Company Ltd. v Kusumanchi Kameshwara Rao and Another,
(1997) 9 SCC 179
4. Hindustan Construction Co. Ltd. v State of Bihar and Others, (1999) 8 SCC 436
5. Daewoo Motors India Ltd. v Union of India and Others, (2003) 4 SCC 690
Question before the Court? Has the High Court, despite noticing the said document in
extenso, committed a manifest error in opining?
“The recital in the preamble in question itself cannot be the foundation to interpret the
document in question as a document of indemnity”
Although it was opined that the same was intended to be a contract of indemnity, the High
Court wrongly observed:
“There was no objection of any kind referred to or placed on the record by the appellants.
The Officer of the Bank stated before the Court that the document in question was intended
to be a contract of guarantee and not a contract of indemnity. The written document
(Exhibit-46) as quoted above lays emphasis on the preamble as under”
Yet again, in the said paragraph, the operative portion of the document was erroneously
described as a preamble stating:
“The preamble of the document in question creates an impression that the said document is
a contract of indemnity and not a contract of guarantee”.
The High Court, furthermore, inserted some words in the said document, which in fact
were not there, as for example, in paragraph 31 of the impugned judgment it added the term
“unequivocal condition” which term did not find place in the document in question.
Similarly, in paragraph 34, it was stated:

255
“The appellants are entitled to their claimed money without any delay or demur. The nature
and need of such commercial contracts and documents need to be respected by the parties
concerned”
Yet again, it was stated:
“If the terms and conditions of the Bank Guarantee are unconditional and absolute, the
respondents have no choice but to honour the same” (Emphasis added)
High Court furthermore considered the oral evidence adduced by the parties despite the bar
contained in Ss. 91 and 92 of the Indian Evidence Act holding:
i. The testimony of these witnesses, in no way, derogates the document in question.
On the contrary, the evidence supports the purpose and object of the execution of
the Bank Guarantee in question. It also supports that the parties, specially the
appellants are the creditors-beneficiaries, the respondents Bank are the guarantors
the surety and the supplier is M/s Pentagon the principal debtor. As we have noted
and as contemplated u/s. 124 of the Contract Act, such Bank Guarantee should have
three ingredients, i.e., creditor, guarantor and principal debtor. On a bare reading of
this document, it is nothing but a tripartite agreement between the parties. M/s.
Pentagon submitted the said Bank Guarantee by its letter dated 7th September, 1985
to the appellants. The appellants, as noted above, without any demur or objection,
accepted this document as a Bank Guarantee and based upon the same, the amount
was released. There is no evidence to support that in absence of this bank guarantee,
the amount would not have been released by the appellants”.
ii. Therefore, according to us, the express terms of the written agreement in question,
supported by the testimony of the respondent Bank's Officer itself, apart from the
appellants, some statements in the cross-examination or raising doubts about the
nature of the agreement by one of the Bank witness, that itself would not affect the
written agreement in question”
iii. In this background, we cannot overlook the circumstances under which the
particular words were used and/ or misused”
The Supreme Court observed and decided- allowing the Appeal Held that:
In this case, we have no doubt in our mind that the document in question constitutes a
contract of indemnity and not an absolute or unconditional bank guarantee. The High

256
Court, therefore, erred in construing the same to be an unconditional and absolute bank
guarantee.
RATE OF INTEREST
Contention of Mr. Vahanvati as regards the rate of interest is also incontrovertible. The
order dated 23rd February, 1988 clearly states that the amount would be repaid with an
interest @ 12% and in that view of the matter, the High Court could not have directed
payment of interest @ 14%.
Judgment
For the reasons aforementioned, the impugned judgment cannot be sustained which is set
aside accordingly. The decree of the trial court is restored. The appeal is allowed with
costs. Counsel's fee assessed at Rs. 5000/-.

257
 Proof of Documentary Evidence when Document Present
Joseph John Peter Sandy v Veronica Thomas Rajkumar & Anr.
2013 Indlaw SC 133; (2013) 3 SCC 80198
Cases Referred
Section 26 of the Specific Relief Act, 1963
1. Subhadra & Ors. v Thankam, AIR 2010 SC 3031
2. State of Karnataka & Anr. v K. K. Mohandas & etc, AIR 2007 SC 2917
Undue influence - S. 16 of Contract Act, 1872
1. Bishundeo Narain & Anr. v Seogeni Rai & Jagernath, AIR 1951 SC 280
2. Poosathurai v Kannappa Chettiar, AIR 1920 PC 65
3. Ladli Prashad Jaiswal v The Karnal Distillery Co. Ltd., Karnal & Ors, AIR 1963
SC 1279
4. Subhash Chandra Das Mushib v Ganga Prasad Das Mushib & Ors. AIR 1967 SC
878
5. Afsar Shaikh & Anr v Soleman Bibi & Ors, AIR 1976 SC 163
ADMISSIBILITY OF A DOCUMENT
1. State of Bihar & Ors. v Radha Krishna Singh & Ors., AIR 1983 SC 684
2. Madan Mohan Singh & Ors v Rajni Kant & Anr, AIR 2010 SC 2933
3. H.Siddiqui (dead) by Lrs. v A.Ramalingam AIR 2011 SC 1492
4. Laxmibai (dead) thr. Lrs. & Anr v Bhagwantbuva (dead) thr Lrs. & Ors, 2013(2)
SC 362
ONUS OF PROOF
1. Thiruvengada Pillai v Navaneethammal & Anr, AIR 2008 SC1541
2. K. Laxmanan v Thekkayil Padmini & Ors., AIR 2009 SC 951
3. Krishna Mohan Kul @ Nani Charan Kul & Anr. v Pratima Maity & Ors. AIR 2003
SC 4351
Facts of the Case:
A. The contesting parties are the son and the daughter of late B.P. Sandy. Though late B.P.
Sandy had several children, considering his old age, he decided to transfer/settle his two

98 Balbir Singh Chauhan and Fakkir Mohamed Ibrahim Kalifulla

258
houses bearing nos.22 and 23, Peria Palli Street, Raja Annamalai Puram, Chennai-28 in
favour of his youngest son and daughter (the contesting parties herein) respectively.
Therefore, the father of the parties executed two registered settlement deeds on 27.8.1981
bearing nos. 1690/81 and 1691/81 at the office of Sub-Registrar, Mylapore, Chennai,
transferring House No. 23 in the name of his daughter (Respondent No. 1) and House No.
22 in the name of his son (Appellant).
B. It is alleged by the appellant that the father of the parties had only at a later point of time
realised that the House No. 23 which was given to the daughter, ought to have been given
to him and House No. 22 to the daughter. Thus, the parties to give effect to the real
intention of their father decided to exchange the properties given to them, and in
furtherance thereof, executed an Agreement Deed to exchange the same on 1.6.1982.
The said document was witnessed by Sheila Doss and Mrs. Mary Doss, who were
neighbours and teachers and colleagues of the daughter - respondent no.1. Since, the said
agreement dated 1.6.1982 (Ex.A-3) had not been given effect to by the respondent no.1, the
appellant filed O.S.No. 6331 of 1983 on 12.9.1983 in the court of City Civil Judge,
Chennai, for issuance of direction to the defendant/respondent no.1, to execute a Deed of
Rectification and further to restrain her from interference with the appellant's possession of
the suit property.
During the pendency of this suit, Shri B.P. Sandy and the appellant executed a Rectification
Deed (Ex.A- 6) on 8.10.1983 by which property in Door No.23 was given to the appellant.
The said deed was signed by two witnesses Susan Muthu and A. Bernard. The respondent
no.1/defendant filed suit O.S. No. 415 of 1984 before the same court for declaration that
the agreement dated 1.6.1982 (Ex.A-3), an unregistered document, was null and void,
being a forged document, and that she has under undue influence put her signature on the
blank non-judicial stamp papers.
C. The trial court decided both the suits together vide judgment and decree dated 21.8.1986
by way of which the appellant's suit was decreed and that of respondent no.1 was
dismissed. D. Aggrieved, the respondent no.1 filed an appeal before the learned District
Judge, however, it was subsequently transferred to the High Court and the High Court has
allowed both the appeals filed by respondent no.1.

259
It may also be pertinent to mention here that during the pendency of the appeals, the
appellant got the Trial Court decree executed through the court and subsequently sold the
property no.23 to the respondent no.2.
Hence, these appeals are filed.
Arguments of the Counsels
R. Balasubramanian, learned senior counsel appearing for the appellant, has submitted that
the High Court has committed an error in interpreting the statutory provisions of law and it
was not necessary, that the agreement between the parties, tantamount to an agreement to
sell, may be a registered document as required u/s. 17 of the Registration Act or by any
provision of the Transfer of Property Act and, therefore, the High Court erred in holding
the Ex.A-3 was inadmissible and inoperative in law. Once the document (Ex.A-3) had been
admitted in the evidence without any objection being raised, its contents were bound to be
admitted and relied upon. In fact, the said document had been executed by the parties in
order to give effect to the real intention of their father. Therefore, the question of undue
influence could not have been inferred. The judgment of the trial court ought not to have
been reversed by the appellate court. The parties having jointly taken a loan, an agreement
was reached between the parties that in consideration for the appellant paying the entire
loan taken for the marriage and maintenance of the respondent no.1, she would transfer the
property stood in her name. Thus, the appeals deserve to be allowed
Argument of the Respondents Counsel
Shri Shyam D. Nandan, learned counsel appearing on behalf of the respondent No.1, has
submitted that the High Court has rightly reversed the judgments and decree of the trial
court interpreting and applying the statutory provisions in correct perspective. It was a
clear-cut case of undue influence. The Rectification Deed (Ex.A-6) executed by the father
and appellant ought not to have been given effect to. In the instant case, as the respondent
no. 1 was not a party to the document Ex.A-6, she was not bound by it. Also, the appellant
could not have file the suit for rectification of settlement deed- Ex.A-1, as there was no
mistake in the understanding or execution by the parties. The father of the parties was
neither impleaded, nor examined before the trial court, though he was still alive at the time
of institution of the suit. Even the appellant failed to examine the witnesses to the

260
document Ex.A-3. He examined only Shri A. Bernard, the witness of document (Ex.A-6),
who had no bearing to the instant case.
Thus, the appeals lack merit and are liable to be dismissed.
Legal Issues
Sec 26 of the Specific Relief Act / Sec 16 of the ICA
Judgment with Reasons
In view of the above, we reached the following inescapable conclusions:
i. Neither of the party has examined the attesting witness to document Ex.A-3. As such
a witness could have explained the conduct of the parties and deposed as to who had
prepared the document Ex.A-3.
ii. It is evident from the language of the deed (Ex.A-3) that it has been prepared either
by a lawyer or a deed writer.
iii. The said document (Ex.A-3) does not bear either the signature, or the address of the
scribe. The appellant has also not examined the scribe, nor has he disclosed who such
person was. This would have revealed the correct position with respect to whether the
respondent no.1 had signed blank papers, or whether she had come to him for the
execution of the document with the attesting witnesses and appellant. Additionally,
the scribe could have explained who had bought the non-judicial stamp paper for the
document Ex. A-3.
iv. The consideration for executing document (Ex.A-3) seems to be the redemption of
the property mortgaged jointly by both the parties, to one Advocate Krishnaswamy,
with whom the deeds of title Ex.A1 and Ex.A2 had been kept as security. The said
mortgagee has not been examined by the appellant to show as to whether the
respondent No.1 was also a party to the mortgage and who had placed the title deed
of her property with him.
v. In his examination-in-chief, the appellant had made a false statement that he was not
made aware of the settlement deed Ex.A-1 till 26th June of 1982, as it was given to
him by his mother on that date before her death. Such a statement stands completely
falsified, as the document Ex.A-1 reveals, that he had been put in possession by his
father, with the permission of respondent No.1 , as the property in Door No.23 had

261
 been given to her and it was made clear that the respondent No. 1 had absolute right
of enjoyment to the said property.
vi. Document Ex. B3 dated 29th July 1983 is subsequent to document Ex.A-6, wherein
settlor Mr. Sandy had written to respondent No.1 that he had given Door No.23 to
her. Thus, the settlor never intended otherwise.
vii. The document Ex.A3 shows that the mistake was discovered in the last week of May
1982. So, it was agreed to rectify the error, therefore the parties undertook the same
as a rectification under S. 26 of the Act. In the written statement filed by the
appellant, in the suit filed by the respondent No.1, Paragraph no. 7 & 9 refers to the
mistake and also, the rectification. Thus, the document Ex.A-3 cannot be read as an
“agreement to exchange”. It can be read only as a rectification deed, which could
have been done only by the settlor and not by the contesting parties.
viii. Considering the respective area of the properties bearing nos.22 and 23, the contract
can definitely be held “unconscionable”.
In view of the above, we are of the considered opinion that appeals are devoid of any merit.
The same are accordingly dismissed. No costs. Civil Appeal Nos. 2184-2185 of 2004
These appeals are squarely covered by the aforesaid decision in the main matters i.e. C.A
No. 2178-2179 of 2004. The Appeal is accordingly, dismissed.

262
 Section 73 and Article 20(3) of the Constitution
Ritesh Sinha v The State of Uttar Pradesh & Anr.
2012 Indlaw SC 524; (2013) 2 SCC 357; AIR 2013 SC 113299
S. 73 of the Evidence Act does not empower the court to direct the accused to give his
specimen writings during the course of investigation. Obviously, S. 73 applies to
proceedings pending before the court. They could be civil or criminal. In view of the
suggestion made by this Court by Act 25 of 2005 with effect from 23.6.2006, Section 311A
was added in the Code empowering the Magistrate to order a person to give specimen
signature or handwriting during the course of investigation or proceeding under the Code.
Cases Referred
1. State of U.P .v Ram Babu Misra, (1980) 2 SCC 242
2. S.N . Sharma v Bipen Kumar Tiwari, (1970) 1 SCC 653).
3. Adalat Prasad v Rooplal Jindal, (2004) 7 SCC 338
4. State of West Bengal v Swapan Guha, (1982) 1 SCC 561
5. Regional Provident Fund Commissioner v Hooghly Mills Co . Ltd. and others,
(2012) 2 SCC 489
6. Sakiri Vasu v State of Uttar Pradesh, (2009) 2 SCC 409; 2008 Indlaw SC 1959
7. State of Bombay v Kathi Kalu Oghad & Ors., (1962) 3 SCR 10
8. New Delhi v Abdul Karim Ladsab Telgi and others, 2005 Crl. L.J. 2868; 2004
Indlaw MUM 319
9. R.M. Malkani v State of Maharashtra, (1973) 1 SCC 471
10. M.P . Sharma v Satish Chandra & Ors., 1954 SCR 1077
11. State of U.P. v Boota Singh, (1979) 1 SCC 31
12. Shyamlal Mohanlal v State of Gujarat 1965 2 SCR 457
13. Kuttan Pillai v Ramakrishnan & Anr . (1980) 1 SCC 264
14. Bindeshwari Prasad Singh v Kali Singh (1977) 1 SCC 57
15. Amrit Singh v State of Punjab (2006) 12 SCC 79
16. Nilesh Paradkar v State of Maharashtra (2011) 4 SCC 143
17. Mohan Singh v State of Bihar (2011) 9 SCC 272
18. Murlidhar Meghraj Loya v State of Maharashtra AIR 1976 SC 1929

99 P.K. Balasubramanyan, R.C. Lahoti and C.K. Thakker

263
 19. Kisan Trimbak Kothula & Ors. v State of Maharashtra AIR 1977 SC 435
20. State of Maharashtra v Natwarlal Damodardas Soni AIR 1980 SC 593
21. State of Bombay v Kathi Kalu Oghad & Others100, [1962] 3 SCR 10 1961 Indlaw
SC 144
22. Selvi and others v State of Karnataka101 (2010) 7 SCC 263 2010 Indlaw SC 340
23. State of West Bengal v Swapan Guha 1982 Indlaw SC 203
24. State of Uttar Pradesh v Ram Babu Misra (1980) 2 SCC 343
Facts of the Case
On 7/12/2009, one Prashant Kapil, In-charge, Electronics Cell, P.S. Sadar Bazar, District
Saharanpur lodged a First Information Report alleging that one Dhoom Singh in
connivance with the appellant was collecting money from people on the pretext that he
would get them recruited in the police department. After his arrest, one mobile phone was
seized from Dhoom Singh. As the police wanted to verify whether the recorded
conversation, which is in their possession, is between accused Dhoom Singh and the
appellant, they needed voice sample of the appellant. The police, therefore, filed an
application before learned Chief Judicial Magistrate, Janpad Saharanpur, praying that the
appellant be summoned to the court for recording the sample of his voice.
Questions before the Court
In my view, two important questions of law raised in this appeal, which we need to address,
are as under:
“(i) Whether Art. 20(3) of the Constitution of India, which protects a person accused of an
offence from being compelled to be a witness against himself, extends to protecting such an
accused from being compelled to give his voice sample during the course of investigation
into an offence?
(ii) Assuming that there is no violation of Art. 20(3) of the Constitution of India, whether in
the absence of any provision in the Code, can a Magistrate authorize the investigating
agency to record the voice sample of the person accused of an offence?”

100 An eleven (11) Judges' Bench decision

101Selvi and others v. State of Karnataka (2010) 7 SCC 263, In Selvi, it was contended that the phrase
“modern and scientific techniques including DNA profiling and such other tests” should be liberally
construed to include narco-analysis test, polygraph examination and the BEAP test. These tests could be read
in with the help of the words “and such other tests”, because the list of “modern and scientific techniques”
contemplated was illustrative and not exhaustive. Held that “taking voice sample of an accused by the police
during investigation is not hit by Art. 20 (3) of the Constitution”

264
Contention of the Counsels
We have heard, at considerable length, Mr. Siddhartha Dave, learned counsel for the
appellant, Mr. Aman Ahluwalia, learned amicus curiae and Mr. R.K. Dash, learned counsel
for the respondent - State of Uttar Pradesh.
Mr. Dave, learned counsel for the appellant, at the outset, made it clear that he was not
pressing the challenge that the order passed by the Magistrate violates the appellant's
fundamental right of protection from self-incrimination as guaranteed under Art. 20(3) of
the Constitution. Counsel submitted, however, that there is no provision in the Code or in
any other law which authorizes the police to make an application for an order directing the
accused to permit recording of his voice for voice sample test. Counsel submitted that a
Magistrate has no inherent powers and, therefore, learned Magistrate could not have given
such a direction. Counsel submitted that because there is no other provision providing for a
power, it ought not to be read in any other provision. Counsel pointed out that in Ram Babu
Misra, this Court restricted the scope of S. 73 of the Indian Evidence Act and took-out from
the purview of S. 5 of the Identification of Prisoners Act, 1920, handwritings and
signatures. As suggested by this Court, therefore, the Code was amended and Section 311A
was inserted. Counsel submitted that S. 5 of the Prisoners Act is inapplicable to the present
case because it is enacted only for the purpose of keeping a record of the prisoners and
other convicts and not for collection of evidence (Balraj Bhalla v Sri Ramesh Chandra
Nigam AIR 1960 All 157. Counsel submitted that this is supported by S. 7 of the Prisoners
Act, which provides for destruction of photographs and records of measurement on
acquittal. This would clearly exclude voice test on the principle of ejusdem generis.
Counsel submitted that in Selvi and others v. State of Karnataka (2010) 7 SCC 263 2010
Indlaw SC 340 this Court has held that S. 53 of the Code has to be given a restrictive
interpretation and not an expansive one. Counsel submitted that the decision of this Court
in Sakiri Vasu v State of Uttar Pradesh, (2009) 2 SCC 409 2008 Indlaw SC 1959 is
inapplicable since to do an act under ancillary power the main power has to be conferred,
which has not been conferred in this case. Therefore, there is no question of resorting to
ancillary power. Counsel submitted that the High Court fell into a grave error in refusing to
quash the order passed by learned Magistrate summoning the appellant for the purpose of
giving sample of his voice to the investigating officer.

265
Mr. Aman Ahluwalia learned Amicus Curiae has submitted a very detailed and informative
note on the issues involved in this case. Gist of his submissions could be stated. Counsel
submitted that voice sample is only a material for comparison with something that is
already in possession of the investigating agency. Relying on 11 Judges’ Bench decision of
this court in State of Bombay v. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10; 1961 Indlaw
SC 144 counsel submitted that evidence for such identification purposes would not attract
the privilege under Art. 20(3) of the Constitution. According to learned counsel, there is no
specific provision enabling the Magistrate to direct an accused to give his voice sample.
There are certain provisions of the Code in which such power can be read into by the
process of implication viz. S. 2(h), Section 53, Section 311A and Section 54A. So far as
Section 311A of the Code is concerned, counsel however, fairly pointed out that in Rakesh
Bisht v . C.B.I .2007 (1) JCC 482 It is, therefore, reasonable to assume that where the
person is not actually in the physical custody of the police, the investigating agency could
approach the Magistrate for an order directing the person to submit himself for examination
under S. 53 of the Code. Counsel also submitted that in Sakiri Vasu , this Court has
referred to the incidental and implied powers of a Magistrate during investigation. Counsel
submitted that in Selvi, Explanation to S. 53 has been given a restrictive meaning to include
physical evidence. Since voice is physical evidence, it would fall within the ambit of S.53
of the Code. The Magistrate has, therefore, ancillary or implied powers under S. 53 of the
Code to direct a person to give voice sample in order to aid investigation. Counsel
submitted that the most natural construction of the various statutes may lead to the
conclusion that there is no power to compel a person to give voice sample. However, the
administration of justice and the need to control crime effectively require the strengthening
of the investigative machinery. While considering various provisions of law this angle may
be kept in mind.
Counsel for the State
Mr. Dash learned counsel for the State of Uttar Pradesh submitted that the definition of the
term ‘investigation’ appearing in the Code is inclusive. It means collection of evidence for
proving a particular fact. A conjoint reading of the definition of the term ‘investigation’ and
Ss. 156 and 157 of the Code would show that while investigating a crime, the police have
to take various steps (H.N. Rishbud & Anr. v State of Delhi, AIR 1955 SC 196; 1954

266
Indlaw SC 14). Counsel pointed out that in Selvi, meaning and scope of the term
‘investigation’ has been held to include measures that had not been enumerated in the
statutory provisions. In this connection, in Selvi, this Court took note of Rajasthan High
Court judgment in Mahipal Maderna & Anr. v State of Rajasthan, 1971 Cr.L.J. 1405 1970
Indlaw RAJ 4 and Allahabad High Court judgment in Jamshed v State of U.P., 1976
Cri.L.J. 1680; 1976 Indlaw ALL 112, Relying on Kathi Kalu Oghad & Ors., counsel
submitted that taking of thumb impressions, impression of palm or foot or fingers or
specimen writing or exposing a part of the body by an accused for the purpose of
identification is not furnishing evidence in the larger sense because Constitution makers
never intended to put obstacles in the way of effective investigation
Judgment
Should the Court still insist that voice sample is included in the definition of
“measurements” under the Identification of Prisoners Act and in the Explanation to S. 53 of
the Code of Criminal Procedure? I would answer in the negative.
93. In light of the above discussion, I respectfully differ from the judgment proposed by my
sister Desai J. I would allow the appeal and set aside the order passed by the Magistrate and
affirmed by the High Court. Let copies of this judgment be sent to the Union Law Minister
and the Attorney General and their attention be drawn to the issue involved in the case.
In view of the difference of opinion between us, let this case be listed for hearing before a
bench of three Judges after obtaining the necessary direction from the Honourable the
Chief Justice of India. Order accordingly

267
 Certified Copy and admissibility
Jaswant Singh v Gurdev Singh and others
2011 Indlaw SC 691, (2012) 1 SCC 425102
Principle- Indian Evidence Act, 1872, ss. 74, 76, 77 - Compromise decree - Admissibility
as evidence - Whether the decree passed in terms of a compromise between the parties was
admissible as evidence - Held, judgment and decree in question were passed as per the
terms and conditions of compromise placed on file - Compromise had merged into a decree
and had become part and parcel of it - Hence, such decree was a public document in terms
of s. 74 of the Act and certified copy of the public document prepared u/s. 76 of the Act
was admissible in evidence u/s. 77 of the said Act - A certified copy of a public document
was admissible in evidence without being proved by calling witness - Inasmuch as the
decree was passed and drafted in the light of the compromise entered into between the
parties, viz., the plaintiff and the defendants, the certified copy of such document which
was produced before the Court, there was presumption as to the genuineness of such
certified copy u/s. 78 of the Act - Hence, compromise decree in question in the instant case
was therefore admissible as evidence
Facts of the Case
A) Jaswant Singh - appellant herein filed a Civil Suit being No. 3 of 1997 in the court of
Civil Judge, (Jr. Division) Hoshiarpur for declaration to the effect that he was the owner
and in possession of land measuring 101 kanals 16 marlas situated in village Simbli, H.B.
No. 272, Tehsil and District Hoshiarpur and for correction of the revenue entries in Column
No. 4 of Jamabandi Register wherein the respondents herein had been wrongly shown to be
the owners. It was claimed in that suit that one Shri Hazara Singh, s/o Shri Nihal Singh was
the owner of the properties in village Simbli, Bajraur and Chabbewal and after his death on
06.12.1972, by virtue of a Will dated 05.12.1971, he transferred his properties in favour of
the appellant herein and the names of the respondents mentioned in the Jamabandi Register
were wrong, illegal and liable to be corrected.
B) Even as early as on 05.06.1972, a civil suit was filed by the appellant herein in the court
of sub-Judge, First Class, Hoshiarpur seeking permanent injunction against one Amar Kaur

102 P. Sathasivam and J.Chelameswar, JJ

268
and others restraining them from interfering in the land situated in Simbli. During the
pendency of the suit, the parties entered into a compromise dated 27.11.1972 and on that
basis the suit was decreed on 08.12.1972 and Mutation No. 1536 was sanctioned in favour
of the appellant herein with respect to 12-1/2 acres of land and the same was delivered to
him which he had been in possession since 16.02.1973. Respondent No. 1 herein and others
considered Jaswant Singh to be the owner of 8 acres and regarding the remaining 4-1/2
acres of land, he was considered to be in mere permissive possession as it was given to him
in lieu of his father’s share in village Simbli, Chabbewal and Bajrawar for the purposes of
cultivation only. The appellant took various steps to change the names in the revenue
entries but during this whole period, the revenue entries remained unchanged in the name
of Hazara Singh and hence the appellant herein filed civil suit for correction of those
entries in Jamabandi.
C) Gurdev Singh-Respondent No. 1 herein, s/o Shri Karnail Singh filed a civil suit being
RBT CS No. 145 of 1998 in the same Court and the matter was clubbed with Civil Suit No.
3 of 1997 alleging therein that he was co-sharer in 1/4th share of land of Hazara Singh in
village Simbli, = share in village Chabbewal and 1/4th share in village Bajraur as Hazara
Singh was brother of their grandfather. Vide order dated 20.04.2001, the civil Judge
decreed the suit filed by Jaswant Singh-appellant herein and dismissed the suit filed by
Gurdev Singh-Respondent No. 1 herein.
D) Aggrieved by the order dated 20.04.2001, Respondent No. 1 herein filed RBT Civil
Appeal Nos. 68 & 75 of 07.06.2001/04.06.2004 before the court of Additional District
Judge (Ad-hoc), Fast Track Court-II, Hoshiarpur. Vide order dated 28.09.2004, the
Additional District Judge set aside the judgment and order dated 20.04.2001 passed by the
Civil Judge (Jr. Division), Hoshiarpur and allowed the appeal filed against Civil Suit No. 3
of 1997 to the extent that Jaswant Singh-appellant herein is the owner of 8 acres of land
and in possession of 4-1/2 acres of land at village Simbli, in view of compromise dated
27.11.1972. Feeling aggrieved, Jaswant Singh-appellant herein filed RSA Nos. 4473 and
4776 of 2004 before the High Court of Punjab & Haryana at Chandigarh whereby vide
common judgment and order dated 24.09.2007, the High Court dismissed both the appeals.
The said order is under challenge before this Court in these appeals by way of special
leave.

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Contention of the Counsels
Mr. A.V. Palli, learned counsel for the appellant and Shri Chinmay Khaladkar, learned
counsel for the respondents contented that the other question which remains to be decided
is whether the compromise Ex. D3 is admissible in evidence or not?
The compromise dated 27.11.1972 has become the basis of the decree dated 08.12.1972
passed by the Sub-Judge, Hoshiarpur. The perusal of Ex. D4 i.e., judgment and decree were
passed as per the terms and conditions of compromise placed on file. As rightly observed
by the courts below, the compromise has merged into a decree and has become part and
parcel of it. To put it clear, the compromise had become a part of the decree which was
passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in
terms of Section 74 of the Indian Evidence Act, 1872 (in short 'the Act') and certified copy
of the public document prepared under Section 76 of the Act is admissible in evidence
under Section 77 of the said Act. A certified copy of a public document is admissible in
evidence without being proved by calling witness. Inasmuch as the decree was passed and
drafted in the light of the compromise entered into between the parties, viz., the plaintiff
and the defendants, the certified copy of such document which was produced before the
Court, there is presumption as to the genuineness of such certified copy under Section 78 of
the Act. We have already noted that the appellant-Jaswant Singh has not challenged the
genuineness of certified copy in any manner. Although the record of the Court has been
proved to be burnt in a fire in Judicial Record Room, Hoshiarpur on 16.06.1998, but the
certified copy of the compromise (Ex.D3), which is the part of the decree was obtained
from the record room on 24.08.1988 and the Decree Ex.D4 was got issued on 12.09.1984.
In those circumstances, there is no reason to doubt the authenticity of compromise (Ex.D3).
Even otherwise, as rightly observed by the courts below, the appellant-Jaswant Singh had
not filed any other substitute of the document Ex.D3, on the basis of which the decree
(Ex.D4) had been said to be passed. As stated earlier, in view of the fact that the decree
dated 08.12.1972 clearly says that the suit is partly decreed in favour of the plaintiff as per
the terms of the compromise placed on file, there can be no other way to interpret the
decree except in terms and conditions of the compromise (Ex.D3).

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Judgment
Dismissing the appeal, the court held that the decree dated 08.12.1972 is to be read and
interpreted in terms of the compromise (Ex.D3) dated 27.11.1972. We are satisfied that the
judgment and decree passed by the lower appellate Court as affirmed by the High Court is
based upon proper appreciation of the terms of compromise (Ex.D3) and do not find any
illegality or irregularity for interference. Consequently, the appeals fail and are accordingly
dismissed. There shall be no order as to costs.

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 Concept on Questioned Documents
Shashi Kumar Banerjee and Others v Subodh Kumar Banerjee since Deceased and
after Him His Legal Representatives and Others
1963 Indlaw SC 414’ AIR 1964 SC 529103
Facts of the Case
An appeal on a certificate granted by the Calcutta High Court. The appellants are the sons
of Ramtaran Banerjee deceased (hereinafter referred to as the testator). They had been
appointed executors under a will purported to have been executed by the testator on August
29, 1943. The testator was about 97 years old when he died on April 1, 1947. The
appellants applied for probate of the will in the Court of the District Judge in June 1947.
Their case was that the will in dispute was the last will and testament of the testator and
had been duly executed. The petition was opposed by Subodh Kumar Banerjee and
Sukumar Banerjee who are also sons of the testator as well as by the descendants of Sushil
Kumar Banerjee and Sanat Kumar Banerjee, two other sons of the testator who had
predeceased him. The main ground of opposition was that the will had not been properly
executed and attested, though it was also contended that it was not genuine, and the testator
did not have testamentary capacity at the time of signing the alleged will and that the
execution of the will had been obtained by undue influence, fraudulent misrepresentation
and coercion.
Four main issues arose on these pleadings, namely, -
1. Is the will genuine?
2. Has the will been properly executed and attested?
3. Had the testator testamentary capacity at the time of the signing of the
alleged will?
4. Was the execution of the will obtained by undue influence, fraudulent
representation, and coercion, as alleged?
The District Judge held on the evidence that though the testator might have been enfeebled
in body, he retained a sound and disposing mind almost up to the last moment of his life,
and one of the last documents executed by the testator which was attested by one of the
caveators himself, was dated March 3, 1947. The issue as to undue influence, fraudulent
103 Kailas Nath Wanchoo, Pralhad Balacharya Gajendragadkar, K. Subba Rao, N. Rajagopala Ayyangar and
J.R. Madholkar

272
misrepresentation and coercion was abandoned and was thus answered in favour of the
appellants. The District Judge also held that due execution and attestation of the will had
been proved and that the will was genuine. In consequence he granted probate with a copy
of the will attached to the appellants.
This brings us to the main question which has been debated before us, namely, the due
execution and attestation of the will. The respondents’ case in this connection appears to be
that the date which appears on the will as the date of execution thereof is not the date on
which the will was executed by the testator but that it was executed at a much later date and
was thus not duly executed and attested. We have therefore to examine the evidence of the
attesting witnesses in this connection and what the learned counsel for the appellants calls
intrinsic evidence in the will itself to show that it must have been executed and attested on
August 29, 1943 as it purports to be, for the fact that the will is in the handwriting of the
testator and bears his signature is not in dispute. The respondents mainly relied on the
evidence of the handwriting expert and their case as based on that evidence was that in
1943, 1944 and 1945 there was no. tremor in the handwriting of the testator and that tremor
appeared in his handwriting from 1946 and went on increasing till his death in 1947. The
expert's evidence further is that the writing the body of the will is without tremor while the
signature at the bottom of it and initials in the margin on the corrections showed tremor and
therefore the will must have been signed after 1945 and not in August 1943, as it purports
to be. We shall deal with the evidence of the expert later; but it is pertinent to point out here
that we cannot understand when the testator admittedly signed the will even according to
the respondents, though sometime in 1946 why he should have antedated it to August 1943.
It is in this connection that the finding of the District Judge that the testator was possessed
of full testamentary capacity almost up to the moment of his death, certainly up to March
1947, which does not appear to have been challenged before the High Court, assumes great
importance. If the testator had not signed this will in 1943 as it purports to be and if he was
possessed of full testamentary capacity in 1946 as he must in our opinion be held to be and
was in fact signing this will in 1946, we fail to see why he should not put on it the date in
1946, on which according to the respondents he actually signed the will and get it attested
on that date. The whole argument therefore based on the theory of tremor put forward by
the handwriting expert appears to us to be of no. help to the respondents; for the testator

273
having retained full mental capacity and power of judgment till almost the last moment of
his life, it does not stand to reason that he would antedate the will if he really signed it late
in 1946. Once therefore it is admitted that the signature on the will is that of the testator,
the theory that it is antedated by him can be accepted only if the expert's evidence is so
convincing that the extreme improbability attaching to the said theory can be safely
rejected.
Turning now to the intrinsic evidence in the will itself, to which reference has been made
on behalf of the appellants, we find that there are as many as six circumstances which go to
show that the date on which the will purports to have been executed, namely, August 29,
1943, must be the correct date and that a will containing the provisions which this will
contains could not have been executed late in 1946. The first circumstance to which
reference may be made is that it makes provision for the wife of the testator and provides
for consultation with her in case there is any dispute between the three executors. Now it is
not in dispute that the wife of the testator died in 1945; as such it would certainly be
strange – if not impossible -to find a provision in the will for the wife and also a provision
to the effect that the wife should be consulted whenever there was a dispute between the
executors appointed under the will.
Main question before the Court of Law
The main question that has been debated before us, namely, the due execution and
attestation of the will. The respondents’ case in this connection appears to be that the date
which appears on the will as the date of execution thereof is not the date on which the will
was executed by the testator but that it was executed at a much later date and was thus not
duly executed and attested. We have therefore to examine the evidence of the attesting
witnesses in this connection and what the learned counsel for the appellants calls intrinsic
evidence in the will itself to show that it must have been executed and attested on August
29, 1943 as it purports to be, for the fact that the will is in the handwriting of the testator
and bears his signature is not in dispute. The respondents mainly relied on the evidence of
the handwriting expert and their case as based on that evidence was that in 1943, 1944 and
1945 there was no. tremor in the handwriting of the testator and that tremor appeared in his
handwriting from 1946 and went on increasing till his death in 1947. The expert's evidence
further is that the writing the body of the will is without tremor while the signature at the

274
bottom of it and initials in the margin on the corrections showed tremor and therefore the
will must have been signed after 1945 and not in August 1943, as it purports to be. We
shall deal with the evidence of the expert later; but it is pertinent to point out here that we
cannot understand when the testator admittedly signed the will even according to the
respondents, though sometime in 1946 why he should have antedated it to August 1943. It
is in this connection that the finding of the District Judge that the testator was possessed of
full testamentary capacity almost up to the moment of his death, certainly up to March
1947, which does not appear to have been challenged before the High Court, assumes great
importance. If the testator had not signed this will in 1943 as it purports to be and if he was
possessed of full testamentary capacity in 1946 as he must in our opinion be held to be and
was in fact signing this will in 1946, we fail to see why he should not put on it the date in
1946, on which according to the respondents he actually signed the will and get it attested
on that date. The whole argument therefore based on the theory of tremor put forward by
the handwriting expert appears to us to be of no. help to the respondents; for the testator
having retained full mental capacity and power of judgment till almost the last moment of
his life, it does not stand to reason that he would antedate the will if he really signed it late
in 1946. Once therefore it is admitted that the signature on the will is that of the testator,
the theory that it is antedated by him can be accepted only if the expert's evidence is so
convincing that the extreme improbability attaching to the said theory can be safely
rejected
Judgment
Finally, it was pointed out that the expert admitted in his evidence that it was only by a
chemical test that it could be definitely stated whether a particular writing was of a
particular year or period. He also admitted that he applied no. chemical tests in this case.
So, his opinion cannot on his own showing have that value which it might have had if he
had applied a chemical test. Besides we may add that Osborn on “Questioned Documents”
says even with respect to chemical tests that “the chemical tests to determine age also, as a
rule, are a mere excuse to make a guess and furnish no. reliable data upon which a definite
opinion can be based”. In these circumstances the mere opinion of the expert cannot
override the positive evidence of the attesting witnesses in a case like this where there are
no. suspicious circumstances. On the whole therefore it seems to us that it has not been

275
established by the evidence of the expert that the signature at the bottom of the will could
not be made on August 29, 1943 as deposed to by the attesting witnesses. In the
circumstances of this case, the view taken by the District Judge of the evidence of the
expert, namely, “it would be indeed dangerous to base a decision upon such inconclusive
data” appears to us to be correct. We hold therefore on a review of the entire evidence that
due execution and attestation of the will in dispute has been proved as alleged by the
profounder and so the appellants are entitled to probate with a copy of the will attached.
We therefore allow the appeal, set aside the order of the High Court and restore that of the
District Judge. The appellants will get their costs throughout.
Appeal allowed.

276
 Section 91 and 92- Exclusion of Oral Evidence for Documentary Evidence and
Exceptions
Shri Najmuddin & Ors v Union Of India & Ors.
2008 Indlaw SC 2013; (2009) 2 SCC 720; AIR 2009 SC 1429104
Facts of the Case
Appellant is before us aggrieved by and dissatisfied with a judgment and order dated
25.8.2006 passed by a Division Bench of the High Court of Judicature at Delhi in CM
No.7244 of 2005 and Writ Petition No.2068 of 1985. 3. Appellants who are three in
number filed the aforementioned writ petition in the year 1985 questioning the validity
and/or legality of a notification issued by the Union of India seeking to acquire lands
bearing Khasra No.186, admeasuring 3 Bigha 6 Biswas pertaining to Khewat No.50/50,
Khatoni No.100 and Khasra no.334/206 admeasuring 3 bigha 6 biswas as per Khewat
No.92/96, Khatoni No.174, both situated at Village Begumpur, Tehsil Mehrauli, Delhi
purported to be in terms of the Resettlement of Displaced Persons (Land Acquisition) Act,
1948 (for short, 'the Act'). Indisputably, the said Act was enacted in the wake of partition of
the country as a result whereof there was a large-scale migration to and from India. Md.
Sheruddin whose name was said to have been recorded in Jamabandi in the year 1948-1949
shifted to Meerut in the State of Uttar Pradesh. He was declared an evacuee in terms of the
Administration of Evacuee Property Act in the year 1953. He prayed for restoration of the
said land and allegedly an order in his favour was passed on 28.7.1956 by the Additional
Custodian of Evacuee Property (Rural). Yet again after the death of Md. Sheruddin which
took place on 9.4.1958, the property was declared to be an evacuee property and yet again
an order restoring the land in question in favour of the appellants herein was passed on
10.10.1958 by the appropriate authority accepting their claim of entitlement to the extent of
1/3rd share of said Md. Sheruddin.
Contention of the Parties
Appellants contend that although a purported notification in terms of the provisions of the
said Act was issued in 1948 but they were not aware thereof. They came to know of the
said notification while some officials of the Delhi Development Authority (DDA) came on
the said land representing that the same had been transferred in its favour and, thus, were

104 S.B. Sinha and Cyriac Joseph

277
required to take possession thereof. An application for injunction was also filed in the said
suit. Thereafter a suit was filed. An interim order was passed restraining the defendant from
forcibly dispossessing them. Indisputably, an ad-interim order dated 30.8.2005 was passed
by the High Court in terms whereof dispossession was directed to remain stayed. The said
ad interim order was made absolute on or about 20.9.1985. Before the High Court, the
Delhi Development Authority filed a counter affidavit, inter alia, contending that they had
all along been in possession of the lands in question pursuant to an award made in the
proceedings initiated in terms of the notification of 1948. The said writ petition was listed
for hearing in 2002. Appellants were taking adjournments. The writ petition was ultimately
dismissed for default on 11.2.2005.
Mr. Mukul Rohtagi, learned senior counsel appearing on behalf of the appellant, would,
inter alia, contend:
1. The High Court committed a serious error in passing the impugned judgment in
so far as it failed to take into consideration that the appellants had been pursuing
their remedies in the writ application bona fide.
2. While considering an application for restoration of the writ petition, the High
Court should not have considered the merit of the writ petition itself.
3. In any event, the writ petition having not been disposed of on merit, the same
should be directed to be heard on merit on such terms as the court may think fit
and proper.
Contention of petitioners
The submissions of Harish Malhotra, learned senior counsel for the petitioners. The
challenge in the writ petition is to a notification dated 7th May, 1962 Mr. Malhotra was
unable to give any satisfactory explanation as to why the present writ petition filed on
2.8.1985 should not be dismissed on the ground of laches alone. Further in the counter
affidavit filed by the DDA, it was pointed out that the petitioners had filed a suit against
the DDA in respect of the same land and a stay order obtained in the said proceedings
stood vacated. Following this the possession of the land in question was handed over to the
DDA. It was pointed out that the petitioner was no longer in possession of the said land.
Mr. Malhotra was unable to explain why these facts had been suppressed in the writ
petition. He also fairly stated that no rejoinder had been filed denying these submissions in

278
the counter affidavit. Mr. Malhotra attempted to point out that the acquisition of the land
in question under Section 3 of the Resettlement of Displaced Persons (Land Acquisition)
Act, 1948 was wholly illegal because no notice as contemplated under Section 4 of the Act
was served on the petitioners. In our view this plea no longer is available to be urged by
the petitioners 23 years after the notification, particularly considering the fact that the
original notification was issued on 16th September, 1948 and the impugned notification on
7th May, 1962, Clearly, the challenge is barred by laches”.
Contention of DDA
Krishna Kumar, learned counsel appearing on behalf of Delhi Administration and Mr.
Saharya, learned counsel appearing on behalf of DDA, on the other hand, supported the
impugned judgment.
Judgment
In his affidavit filed on 13.03.2006, appellant No.1 stated that he never intended to sell the
property in favour of the said Sanjeev Singh and others. If the said constituted attorney had
been in possession of the property in question for a long time, as has been averred in
paragraph 25 of the General Power of Attorney, evidently the appellant had not been in
possession thereof and consequently, the story that they came to know about the said
notification issued in the year 1962 cannot be accepted as correct. As the constituted
attorney of appellants had been in physical possession of the property and had been
pursuing the writ petition before the High Court, the averments made in the subsequent
affidavits cannot be accepted as correct. Even the said stand taken by the appellant No.1
cannot be accepted in view of Section 91 of the Indian Evidence Act. The High Court,
therefore, in our opinion, cannot be said to have committed any error in refusing to exercise
its discretionary jurisdiction in favour of appellants. The impugned order, therefore, does
not warrant any interference by us in exercise of our discretionary jurisdiction under Article
136 of the Constitution of India. The appeal is, therefore, dismissed with costs. Counsel's
fee assessed at Rs.50,000/-. Appeal dismissed

Section 91- Best Evidence Rule

279
 Roop Kumar v Mohan Thedani
2003 Indlaw SC 319; (2003) 6 SCC 595; AIR 2003 SC 2418105
Cases Referred
1. R. Antulay v R.S. Nayak and Ors., AIR 1988 SC 1531; 1988 Indlaw SC 467.
2. State of Maharashtra v Ramdas Shrinivas Nayak and Anr., 1982 (2) SCC 463; 1982
Indlaw SC 36.
3. Bhavnagar University v Palitana Sugar Mill Pvt. Ltd. and Ors., (2002 AIR SCW
4939; 2002 Indlaw SC 1454
4. Bai Hira Devi and Ors. v Official Assignee of Bombay, AIR 1958 SC 448; 1958
Indlaw SC 23
5. Delta International Ltd. v Shyam Sundar Ganeriwalla and Anr., AIR 1999 SC
2607; 1999 Indlaw SC 1559
Facts of the Case
Respondent-plaintiff No.1 was a tenant in respect of the aforesaid premises on a monthly
rent w.e.f. 15.8.1962. The shop was registered under the Shops and Commercial
Establishments Act (in short the 'Establishment Act') in the name of M/s Esquire, of which
respondent-plaintiff No.1 was the proprietor. Later on, the name of the concern was
changed to M/s Purshotams. For all intents and purposes there was no change of
proprietorship. Plaintiff No.2, Tahil Ram is the father of respondent plaintiff No.1 and his
power of attorney holder. Tahil Ram entered into an agency-cum-deed of license with the
appellant-defendant on 15.5.1975 and the terms of such agency-cum-license agreement was
incorporated in an agreement dated 15.5.1975.Earlier, the appellant-defendant was having
his business as tailors and drapers at A-7, Prahlad Market, Deshbandhu Gupta Road, New
Delhi. He had approached respondent-plaintiff No.1 for use of his premises in question
under his tenancy as a show room on license-cum- agency basis. As per the agreement,
plaintiffs were to receive their commission @ 12% on tailoring business and @ 3%
commission on the sale of materials of all kinds as conducted by the appellant-defendant.
Possession of the shop continued with the plaintiffs along with the tenancy rights. The
agreement was initially for a period of five years, with option of extension by mutual
consent. The agreement expired on 14.5.1980 and was never renewed thereafter. In terms

105 Arijit Pasayat and Shivaraj V. Patil, JJ

280
of clause 5 of the agreement, the appellant-defendant was to keep separate accounts of the
tailoring and cloth materials; and therefore, he was an accounting party. The agreement was
duly acted upon and at no point of time possession was delivered to the defendant and as
noted above, remained with the plaintiffs. Later on, for his own convenience, defendant
brought his tailors for tailoring business. Defendant has trespassed by destroying all traces
of evidence of possession and has started displaying the signboards and other
advertisement materials, as if M/s Roop Tailors and Drapers are conducting business in the
suit premises. Accounts were rendered up to 30.6.1976. Payments were made by cheques
and by other modes. Accounts were also rendered up to 31.3.1978 by the defendant under
his own hand and signatures. After that date, defendant neither rendered accounts nor made
any payment in spite of repeated reminders and requests. Legal notice was served through
registered post for payment of commission, and a demand was made for true and faithful
rendition of accounts. After 14.5.1980, defendant was asked to vacate the premises, but he
forcibly continued to occupy the premises. This led to initiation of proceedings under
Section 145 of the Code of Criminal Procedure, 1973 (in short, the 'Cr.P.C.'). Defendant to
frustrate the legal demands of the plaintiffs filed a suit for injunction. Though, the period of
the agency-cum-license deed expired on 15.5.1975, the defendant continued to remain in
possession. On the ground of limitation, the plaintiffs claimed what is due from 1.10.1977
to 31.3.1978 which came to be Rs.7,000/- and from 1.4.1978 to 14.5.1980 the commission
was estimated to be about Rs.70,000/-. Claim of damages at Rs.6,000/- from 14.5.1980 to
14.10.1980 was made for a period of five months. Plaintiffs also claimed a decree for
possession of the shop along with a decree for damages and for payment of the commission
and rendition of accounts.
Contention of the Counsels/parties
Primary stand of the defendant in reply was that he was in lawful occupation and
possession as tenant under the plaintiffs. Some documents on false representation had been
obtained from him giving the wrong impression that they were to be produced for fixing of
standard rent in a case of eviction, and these documents were never intended to be acted
upon otherwise. The purported agreement was not acted upon, and was a sham document
and there was no agreement relating to commission and, therefore, the question of rendition
of any accounts did not arise. It was further stated that due to litigation between plaintiff

281
No.1 and his landlords, the defendant was made a victim though with a spirit of good faith
and to help the plaintiffs, he had signed some documents which were not intended to be
acted upon, but have been maliciously relied upon to his disadvantage. There was no
relationship of principal and agent as claimed. A suit for injunction had been filed and the
same is pending adjudication. Additional plea was taken that as per averments in the plaint,
defendant is alleged to have committed act of criminal trespass on 2.5.1980 after
surrendering possession to the plaintiffs, so the suit on the basis of agreement dated
15.5.1975 or on the basis of termination of agency-cum-license deed is not maintainable.
Contention of Parties
In appeal, learned counsel for the appellant has taken various pleas. Essentially they are as
follows: The High Court was not justified in hearing the appeal as if it was the Trial Court
having come to the conclusion that the premises on which the Trial Court proceeded were
erroneous. That amounts to denial of a forum of appeal which was statutorily provided and
in essence amounted to deprivation of such a right. Reliance was placed on a decision of
this Court in A.R. Antulay v R.S. Nayak and Ors., AIR 1988 SC 1531; 1988 Indlaw SC 467.
The High Court has not considered the true import of Sections 91 and 92 of the Indian
Evidence Act, 1872 (‘Evidence Act’) in its proper perspective. It is not as if a party is not
entitled to lead oral evidence to show that the agreement was not intended to be acted upon
and the terms were really not reflective of intention of the parties. In fact, the agreement
was not acted upon. The High Court proceeded on an erroneous basis as if some of the
issues were not pressed before the Trial Court and the High Court.
Question for Consideration
Before the High Court the parties agreed that the basic question which required
consideration was whether relationship between the respondent and the appellant was that
of licensor and licensee or it was that of lessor or lessee. The Trial Judge had held that the
transaction between the respondent and appellant evidenced by an agreement dated
15.5.1975 amounts to license and not sub- letting. There was a finding recorded by the
Trial Court to the effect that the appellant was a party to earlier ejectment proceedings
which was not factually correct. Since the Trial Court nurtured this wrong notion which
runs through the entire judgment, it was held that the reasoning given by the Trial Court in
support of its findings on various issues and particularly issues Nos. 1, 6, 7 and 10 cannot

282
be sustained. The High Court with consent of parties exercised powers conferred by Order
41 Rules 30, 32 and 33 of the Code of Civil Procedure, 1908 (in short the 'Code').
Arguments were heard on the merit of the issues framed in the suit.
Judgment
Scope of Section 91 and 92 discussed
Per contra, learned counsel for the respondent submitted that after having agreed before the
High Court that it may take up the whole matter for adjudication on merits, on
consideration of the evidence on record, it is not open to the appellant to take a stand that
there was no such concession when in fact the High Court has specifically recorded about
such concession in detail. The stand that the appellant was a sub-tenant, being a tenant
under the plaintiffs is clearly untenable in view of the documentary evidence to which the
High Court has referred in detail. The scope and ambit of Sections 91 and 92 of the
Evidence Act have been rightly considered by the High Court. The stand that the agreement
was intended to be a protection of the plaintiffs in proceedings between plaintiffs and their
landlords is falsified because of the fact that the suit for eviction was filed after about 7
months of execution of the agreement. There is no dispute that the agreement was
executed. Therefore, the appellant was bound by it. In any event, there is no question of
sub-tenancy in view of the clear bar provided under Section 16 of the Delhi Rent Control
Act, 1958 (‘Rent Control Act’) which prohibits sub-tenancy without a consent of the
original landlord. It has not been shown that the original landlord had consented to the sub-
tenancy. The High Court has rightly therefore discarded the plea. Not only issue No.12 but
also several other issues were given up before the Trial Court and the High Court and it is
not open to the appellant to make a grievance that these issues were not considered. So far
as enhancement of the damages is concerned, the High Court had exercised powers under
Order 41 Rule 33 with the consent of the parties and when the claim was for damages, it
was open for the High Court to accept the claim as made by the respondent-plaintiff No. 1
in the Trial Court by fixing damages at Rs.1200/-p.m. It would be logical to first deal with
the plea relating to absence of forum of appeal. It is to be noted that the parties agreed
before the High Court that instead of remanding the matter to trial Court, it should consider
materials on record and render a verdict. After having done so, it is not open to the
appellant to turn round or take a plea that no concession was given. This is clearly a case of

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sitting on the fence, and is not to be encouraged. If really there was no concession, the only
course open to the appellant was to move the High Court in line with what has been said in
State of Maharashtra v Ramdas Shrinivas Nayak and Anr., 1982 (2) SCC 463; 1982 Indlaw
SC 36. In a recent decision Bhavnagar University v Palitana Sugar Mill Pvt. Ltd. and Ors.,
(2002 AIR SCW 4939; 2002 Indlaw SC 1454 the view in the said case was reiterated by
observing that statements of fact as to what transpired at the hearing, recorded in the
judgment of the Court, are conclusive of the facts so stated and no one can contradict such
statements by affidavit or other evidence. If a party thinks that the happenings in Court
have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter
is still fresh in the minds of the Judges, to call the attention of the very Judges who have
made the record. That is the only way to have the record corrected. If no such step is taken,
the matter must necessarily end there. It is not open to the appellant to contend before this
Court to the contrary. It is likewise a general and most inflexible rule that wherever written
instruments are appointed, either by the requirement of law, or by the contract of the
parties, to be the repositories and memorials of truth, any other evidence is excluded from
being used either as a substitute for such instruments, or to contradict or alter them. This is
a matter both of principle and policy. It is of principle because such instruments are in their
own nature and origin, entitled to a much higher degree of credit than parol evidence. It is
of policy because it would be attended with great mischief if those instruments, upon which
men’s rights depended, were liable to be impeached by loose collateral evidence. (See
Starkie on Evidence p. 648). In Section 92 the legislature has prevented oral evidence being
adduced for the purpose of varying the contract as between the parties to the contract; but,
no such limitations are imposed under Section 91. Having regard to the jural position of
Sections 91 and 92 and the deliberation omission from Section 91 of such words of
limitation, it must be taken note of that even a third party if he wants to establish a
particular contract between certain others, either when such contract has been reduced to in
a document or where under the law such contract has to be in writing, can only prove such
contract by the production of such writing. Sections 91 and 92 apply only when the
document on the face of it contains or appears to contain all the terms of the contract.
Section 91 is concerned solely with the mode of proof of a document which limitation
improved by Section 92 relates only to the parties to the document. If after the document

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has been produced to prove its terms under Section 91, provisions of Section 92 come into
operation for the purpose of excluding evidence of any oral agreement or statement for the
purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92
in effect supplement each other. Section 91 would be inoperative without the aid of Section
92, and similarly Section 92 would be inoperative without the aid of Section 91. The two
sections are, however, differ in some material particulars. Section 91 applies to all
documents, whether they purport to dispose of rights or not, whereas Section 92 applies to
documents which can be described as dispositive. Section 91 applies to documents which
are both bilateral and unilateral, unlike Section 92 the application of which is confined to
only to bilateral documents. (See: Bai Hira Devi and Ors. v Official Assignee of
Bombay, AIR 1958 SC 448; 1958 Indlaw SC 23. Both these provisions are based on “best
evidence rule”. In Bacon’s Maxim Regulation 23, Lord Bacon said “The law will not
couple and mingle matters of specialty, which is of the higher account, with matter of
averment which is of inferior account in law”. It would be inconvenient that matters in
writing made by advice and on consideration, and which finally import the certain truth of
the agreement of parties should be controlled by averment of the parties to be proved by the
uncertain testimony of slippery memory. The grounds of exclusion of extrinsic evidence
are
(i) to admit inferior evidence when law requires superior would amount to
nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is
conclusively presumed, between themselves and their privies, that they intended
the writing to form a full and final statement of their intentions, and one which
should be placed beyond the reach of future controversy, bad faith and
treacherous memory.
In Delta International Ltd. v Shyam Sundar Ganeriwalla and Anr., AIR 1999 SC 2607;
1999 Indlaw SC 1559 several principles were culled out by this Court in relation to
disputes on the issue whether the agreement was for one of lease or license in a particular
case. Six conclusions were recorded in paragraph 15. Conclusion No.5 reads as follows:
“Prima facie, in absence of a sufficient title or interest to carve out or to create a similar
tendency by the sitting tenant, in favour of a third person, the person in possession to

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whom the possession is handed over cannot claim that the sub- tenancy was created in his
favour, because a person having no right cannot confer any title of tenancy or sub-tenancy.
A tenant protected under statutory provisions with regard to occupation of the premises
having no right to sublet or transfer the premises, cannot confer any better title. But, this
question is not required to be finally determined in this matter”.
In the background of Section 16(2) of the Rent Control Act, the principles set out above
clearly negate the appellant’s case. One plea which is urged with some amount of emphasis
was increase of the damages from Rs.500/-p.m. to Rs.1200/- p.m. As noted supra, with the
consent of the parties, the High Court had exercised powers under Order 41, Rules 30, 32
and 33. It took note of the ground realities which were not disputed before us. High Court
recorded a positive finding that in the normal course the appellant would have paid at least
Rs.1200/-p.m., though the amount payable was more than, even for the period for which
accounts were rendered or were to be rendered. It was fairly accepted by learned counsel
for the appellant before us that the rentals in the area have increased by leaps and bounds
after 1980. That being so, the specious plea that there was no scope for enhancement of the
quantum of damages fixed by the Trial Court is indefensible. Judged from any angle, the
appeal is devoid of merit and deserves dismissal with costs which we direct. In a case of
this nature, waiver of costs would be acting with leniency on a person who deserves none.
Costs fixed at Rs.25,000/-. Appeal dismissed

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 Questioned Document and Genuineness of Document of a will
Shivakumar and others v Sharanabasappa and others106
Citation: 2020 Indlaw SC 309
Principles of Law and Established
Documentary evidence; Genuieness of Will etc
Facts of Case
The plaintiff-appellants have challenged the judgment and decree dated 26.10.2007
passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 910 of
2001 whereby, the High Court reversed the judgment and decree dated 12.09.2001
passed by the Court of Civil Judge (Senior Division), Koppal in Original Civil Suit No.
56 of 1994.
The civil suit aforesaid was filed by the plaintiff-appellants for declaration and
injunction, essentially with the submissions that they had acquired ownership rights in
the suit properties (described in Schedules A to D attached to the plaint) on the basis of a
Will dated 20.05.1991 executed by the owner of the said properties Sri Sangappa son of
Pampanna Shettar of Koppal; and that a trust created by the defendants on 28.05.1994,
in the name "Shri Sangappa Pampanna Gadagshettar Trust, Koppal" in relation to the
suit properties, was illegal, void and not binding on the plaintiffs. The contesting
defendants i.e., defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while
questioning the genuineness of the alleged Will dated 20.05.1991. The defendant No. 7,
one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim
of the plaintiffs.
After framing necessary issues and after taking the oral and documentary evidence
adduced by the parties, the Trial Court, in its judgment dated 12.09.2001, decided the
principal issue relating to the said Will dated 20.05.1991 in favour of the plaintiffs and,
while also returning its findings on other necessary issues in favour of the plaintiffs,
proceeded to decree the suit with declaration that the trust created by the defendants on
28.05.1994 was not binding on the plaintiffs, particularly in relation to the suit

106 Bench : Dinesh Maheshwari, A.M. Khanwilkar, Hemant Gupta The Judgment was delivered by :
Dinesh Maheshwari, J.

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properties; and that the plaintiffs were owners of the suit properties as claimed. The
Trial Court also issued injunction against defendant Nos. 1 to 5 that they shall not
interfere with the plaintiffs' peaceful possession and enjoyment of the suit properties.
Appeal to the HC
The judgment and decree so passed by the Trial Court were questioned by the contesting
defendants in the High Court by way of the said first appeal. The High Court, in its
impugned judgment dated 26.10.2007 proceeded to allow the appeal while reversing the
decision of Trial Court on the principal issue relating to the genuineness of the Will in
question. The High Court found several unexplained suspicious circumstances as also
discrepancies in the Will in question and held that the alleged Will dated 20.05.1991
was not a genuine document. Being aggrieved, the plaintiffs have preferred the instant
appeal.
Appeal to the SC
THE LEAD PERSONS, PARTIES, WITNESSES AND DOCUMENTS AS ALSO THE
PROPERTIES INVOLVED
It is but apparent that genuineness of the Will dated 20.05.1991, said to have been
executed by Sri Sangappa son of Pampanna Shettar of Koppal, allegedly bequeathing
the suit properties to the plaintiffs, is in question in this case.
For comprehension of the subject-matter and for effective determination of the questions
raised in this appeal, we may take note of the principal persons involved in the matter
with their respective roles as also the documents and the properties in question as infra:
The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal.
He was a businessman and was also the Chairman of Sri Gavisiddeshwara V.V. Trust,
Koppal (which is different than the trust questioned in the suit). Late Smt. Mahantamma
was his wife.
Undisputedly, both the testator and his wife died in a car accident on 20.05.1994. The
testator and his wife did not have any surviving children, as their children had died in
infancy and they were issueless on the date of their death.
The plaintiffs (the appellant Nos. 1 to 3 herein):
The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj, all sons of Basetteppa,

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claim to be the legatees under the Will in question. They are full-brothers and are grand-
nephews of the testator's wife. According to the plaintiffs, they were brought up by the
testator and his wife and they were staying with the testator.
The contesting defendants (Respondent Nos 1 to 4 herein):
The defendant No. 1 Sri Sharanabasappa son of Pampanna is the younger brother of the
testator; the defendant Nos. 2 and 3 Smt. Basavannemma and Smt. Siddama are the
sisters of the testator; the defendant No. 4 Sri Pampanna son of Basappa and defendant
No. 5 Sri Siddanna son of Fakirappa are the nephews of the testator.The defendant No. 2
Smt. Basavannemma expired during the pendency of the suit and the fact was noted on
the cause-title.-The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired
during the pendency of this appeal and his legal representatives were brought on record
by the order dated 30.03.2015.
The defendant Nos. 6 to 8:
The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa and No. 8 Dr.
N.S.Gaikwad were joined in the suit for being the members of the trust created by other
defendants, which was questioned by the plaintiffs. The defendant No. 7 Sri
Veerabasappa was said to be a close associate of the testator in running Gavisiddeshwar
College of which, the testator was the Chairman of Governing Body. This defendant was
not related to either of the parties; he, however, filed a separate written statement,
admitting and endorsing the claim of the plaintiffs. The defendant No. 6 Gurushantappa
expired on 13.10.2001. He was a trustee of the trust in question and no substitution was
made in his place. The name of defendant No. 7 Veerabasappa was deleted from the
array of parties before the High Court on 24.07.2006. The defendant No. 8 has remained
on record as respondent No. 5 in this appeal.
The trust in question: Sri Sangappa Pampanna Gadagshettar Trust: The defendants
created this trust on 28.05.1994 (in the name of the testator) with inclusion of the
properties in question, to pursue philanthropic and charitable purposes. The creation of
this trust was challenged in the suit.
Special mention: Sri Gavisiddeshwara Swami, Koppal (Swamiji): According to the
plaintiffs, the testator was a philanthropic and a devotee of Sri Gavisiddeshwara Swami,
Koppal Hereinafter also referred to as 'Swamiji'.; and the contested Will was opened in

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the presence of Swamiji. However, Swamiji was not examined as a witness in this case.
The key witnesses:
PW-1 Sri Basetteppa:
He is father of the plaintiff Nos. 1 to 3. He allegedly used to assist the testator in his
business.
PW-3 Sri Radhakrishnarao and PW-4 Sri Ayyanagowda Hiregowdar:
They are claimed to be the attesting witnesses of the contested Will.
PW-8 Sri Bhusnoormath, Advocate:
He was a friend and advocate of the testator. Allegedly, the testator handed over the
contested Will to him in a sealed cover with the instructions that the same was to be
opened after his death, only in the presence of Swamiji. The contested Will was
allegedly opened after the sudden demise of the testator and his wife in the presence of
Swamiji on 29.05.1994.
Relevant exhibited documents:
Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testator cancelled an earlier
Will executed by him in the year 1974.
Ex. P.3: Handwritten draft of the Will said to have been prepared by the testator and
kept in the sealed cover with the executed Will.
Ex. P.4: The contested Will dated 20.05.1991.
3.8. Suit properties:
Schedule A: Consisting of the parcels of land in Sy. No. 631 and Sy. No. 632. These
were in the name of the testator's wife as per the relevant records.
Schedules B, C & D: Consisting of shops and houses; admittedly they belonged to the
testator. The testator owned several other properties too that were not mentioned in the
Will, and hence, are not a part of the suit properties.
Pleadings before the Trial Court, Issues and Evidence
Summary of Pleadings of the parties, the issues framed by the Trial Court, and the
evidence led by the parties for appreciating the respective findings of the Trial Court and
the High Court.
The plaint: The plaintiff-appellants filed the suit aforesaid seeking declaration and
injunction with the averments, inter alia, that Schedule A to D properties were owned

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and possessed by the testator Sri Sangappa Shettar of Koppal; that Schedule A
properties, being the parcels of land, were standing in the name of the testator's wife
Mahantamma but were purchased by him. It was averred that on 20.05.1994, the testator
Sangappa Shettar and his wife died in a car accident on the National Highway between
Hubli-Shiggoan. It was also averred that both of them died issueless as the children born
to them had died in infancy. The plaintiffs further pointed out the relations of the parties
with the testator and alleged that the testator was earlier joint with his family but, in or
around the year 1964, a partition took place and thereafter, he remained separate until
his demise. The plaintiffs asserted that their mother Mahadevamma was the sister of the
wife of testator; that the testator Sri Sangappa, out of love and affection, brought up the
plaintiffs by keeping them in his house; that the marriage of the plaintiffs' father (PW-1)
was performed by the testator in the year 1972; and that the deceased testator also
requested the father of the plaintiffs to assist him in the business. The plaintiffs further
averred that the deceased testator executed a Will in the year 1974 but, being
disillusioned by the behaviour of legatees, he cancelled the same on 26.09.1990. The
plaintiffs pointed out that the deceased testator was the Chairman of Sri
Gavisiddeshwara V.V. Trust, Koppal and ardent devotee of Sri Gavisiddeshwara
Swamiji of Koppal. The plaintiffs also averred that the deceased testator changed the
name of the business from Gurukrupa Stores to Gurukrupa Traders.
The plaintiffs further averred that on 20.05.1991, the testator Sri Sangappa Shettar
executed a Will bequeathing Schedule A properties in favour of the plaintiffs jointly;
Schedule B property in favour of the plaintiff No. 1; Schedule C property in favour of
the plaintiff No. 2; and Schedule D property in favour of the plaintiff No. 3 whereas his
remaining properties were directed to be kept intact and plaintiffs were directed to apply
those properties for charitable purposes. The plaintiffs asserted that the deed of the Will
in question was executed by the deceased voluntarily and in sound state of mind; and
after due execution, he kept the Will in a sealed cover and deposited the same with Sri
Bhusanoormath, Advocate (PW-8) with directions to open the same after his death in the
presence of Swamiji. According to the plaintiffs, after the death of the testator
Sangappa, PW-8 Bhusanoormath, Advocate intimated about the Will and the same was
opened on 29.05.1994 in the presence of Swamiji.

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The plaintiffs maintained that the relationship between the deceased testator and the
defendants was not cordial until his death; however, the deceased bequeathed a house to
defendant no. 3 so that she may reside therein. The plaintiffs alleged that the defendants
were well aware about the Will executed by the testator and yet created the trust in
question which was, in any case, not of any adverse effect on the rights of the plaintiffs
who had become owners of the suit properties by virtue of the Will executed by the
testator. With these averments, the plaintiffs sought declaration against the trust so
created by the defendants as also on their ownership rights over the properties in
question and further for injunction against the defendants.
The written statement by defendant No. 1 as adopted by defendant Nos. 2-6 and 8:
The contesting defendants refuted the plaint averments and contended, inter alia, that the
suit was not maintainable under the provisions of Section 92 of the Code of Civil
Procedure, 1908 ('CPC.); that the trust in question was not impleaded as party; and that
the description of suit properties was not correct.
While stating that both Sri Sangappa and his wife died in the vehicular accident that
took place at about 3:15 p.m. on 20.05.1994, these defendants stated that their dead
bodies were identified after about 18 hours; and that the defendant Nos. 1 to 3
performed their last rites. The allegation regarding partition was denied.
The contesting defendants further denied the assertions that the plaintiffs were brought
up by Sangappa and maintained that the plaintiffs were living with their father and
mother in a rented house. The contesting defendants alleged that the relations between
the deceased and the father of the plaintiffs were strained; and that father of the plaintiffs
was, in fact, running the business in the name of Sri Karibasavashwar Trading
Co.opposite to the place of business of the deceased Sangappa that was running in the
name of Gurukrupa Traders.
While questioning the Will propounded by the plaintiffs, the contesting defendants
alleged that the plaintiffs are interested in the properties of the deceased and had forged
the Will with ulterior motives. These defendants denied that the deceased prepared the
Will and kept the same in the sealed cover and deposited it to the Advocate with
instruction to open the same in the presence of Swamiji. The contesting defendants
recounted various suspicious circumstances concerning the Will in question while

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alleging, inter alia, that the Will did not bear the signature of deceased Sangappa; that
there was a mismatch in Hindi Calendar date with that of English Calendar; that the past
events were stated in the Will in such a way that they would happen in future; that
various blanks were left in the description of the properties and even otherwise, the
description was incorrect; that the amount bequeathed to Rajeshwari and Siddabasemma
was not shown; and that the description of the properties under the Will was
inconsistent, incorrect and incomplete.
The contesting defendants also alleged that after the death of Sangappa and his wife,
they became the Class II heirs of the deceased Sangappa according to Hindu Succession
Act and the trust was created for implementation of the noble thoughts of the deceased.
The contesting defendants also alleged that the declaration of the trust on 28.05.1994
was prior to the creation of the deed of disputed Will, which was allegedly opened on
29.05.1994. It was also alleged that the defendant No. 7 started acting against the
interest of the trust and he was removed from the trust by way of a resolution.
The written statement by defendant No. 7-supporting the plaintiffs
The defendant No. 7 filed a separate written statement, essentially admitting the claim of
the plaintiffs. This defendant stated that he was a close associate of the deceased in
running Gavisiddeshwar College; and that he was acquainted with the handwriting of
the deceased. According to this defendant, after the demise of Sri Sangappa, the
advocate met him and informed about the trust with religious and charitable objects to
be formed out of the properties not bequeathed. Further, one day he stopped for paying
respect to Swamiji near the house of Principal Mallikarjun Somalapur; and the advocate
informed Swamiji about the Will left by the deceased; and Swamiji instructed that the
Will be given effect to, which may give peace to the departed soul.
The defendant No. 7 further stated that the advocate handed him over a xerox copy of
the Will and he was convinced about its genuineness after examining the same and after
enquiring from the attesting witnesses; and he also found that the draft was in the
handwriting of the deceased. This defendant also referred to the proceedings of the
meeting of the trust on 10.06.1994, where a suggestion was made that the legatees under
the Will should go and establish their claim in the Court of Law but he asserted that the
Will should be given effect to as, according to him, litigating against the plaintiffs was

293
equivalent to asserting a false case that the deceased had not executed his Will and
therefore, he disassociated himself from the trust.
Issues
On the pleadings of the parties, the Trial Court framed the following issues for
determination of the questions involved in the matter:-
"1. Whether the plaintiffs prove that the deceased Sangappa bequeathed the suit
properties in their favour under the will deed dt: 20.05.1991?
2. Whether the defendants 1 to 5 prove that the Commission Agency shop business was
kept joint in the partition of 1954, held during the life time of father of deceased
Sangappa?
3. Whether the suit is not maintainable for not impleading Sri Sangappa Pamapnna
Gadadshettar Trust, Koppal, as a party to the suit?
4. Whether the suit is not properly valued and court fee paid is not correct?
5. Whether the plaintiffs are entitled for the relief of declaration that the trust created
under the name Sri Sangappa Pampanna Gandshettar Trust, Koppal, is illegal, void and
not binding on them?
6. Whether the plaintiffs 1 to 3 are entitled for the relief of declaration that they are the
joint owners of suit A schedule properties?
7. Whether the plaintiff No. 1 is entitled for the relief of declaration that he is the owner
of suit B schedule properties?
8. Whether the plaintiff No. 2 is entitled for the relief of declaration that he is the owner
of suit C schedule properties?
9. Whether the plaintiff No. 3 is entitled for the relief of declaration that she is the owner
of suit D schedule properties?
10. Whether the plaintiffs are entitled for the consequential relief of perpetual injunction
against the defendants?
11. Whether the defendants are entitled for exemplary costs of Rs. 30,000?
12. What decree or order?"
Evidence
In order to prove their case, the plaintiffs examined as many as 8 witnesses, the material
among them being their father Sri Basetteppa (PW-1); the two attesting witnesses of the

294
Will in question Sri Radhakrishnarao (PW-3) and Sri Ayyanagowda Hiregowdar (PW-
4); and the advocate Sri Bhusnoormath (PW-8), to whom the Will was allegedly handed
over in a sealed cover and who opened the cover in the presence of Swamiji. The
plaintiffs also produced 17 documents including Ex. P.2: the Will cancellation deed
26.09.1990 whereby, the testator cancelled the earlier Will executed by him in the year
1974; Ex. P.3: handwritten draft of the Will said to have been prepared by the testator
and kept in the sealed cover with the executed Will; and Ex. P.4: the contested Will
dated 20.05.1991. The defendants examined 2 witnesses and produced 16 documents.
FINDINGS OF THE TRIAL COURT
It is but apparent that the pivotal question in this case had been as to whether the
deceased Sangappa bequeathed the suit properties in favour of the plaintiffs under the
Will dated 20.05.1991? The Trial Court took up issue Nos. 1 and 6 to 10 together and
found that Will in question was executed in accordance with Section 63 of the Indian
Succession Act, 1925 Hereinafter referred to as 'the Succession Act' and the same was
proved as per the requirements of Section 68 of the Indian Evidence Act, 1872
Hereinafter referred to as 'the Evidence Act'; and the plaintiffs got the rights as claimed
thereunder. The relevant aspects of the findings of the Trial Court could be summarised
as follows:
The Trial Court held that all the circumstances establishing that PW-8 was handed over
the cover containing the Will in question and its draft and of his opening the same
before Swamiji on 29.05.1994 cannot be suspected as he had no personal gain from the
plaintiffs and had no enmity with the defendants.
The Trial Court further held that PW-3 and PW-4 have given the details about the Will
but it was not necessary that they would meticulously know the contents of the Will; that
both have unanimously spoken about the deceased Sangappa having shown them the
typed Will, himself having read out the contents, and having signed before them. The
Trial Court yet further observed that neither the Will was drafted nor it was got typed in
the presence of the attesting witnesses and everything was ready for execution and
therefore, any more details regarding typing of Will of the deceased were not expected.
The Trial Court found that the Will in question was duly identified by the said witnesses
as Ex. P. 4 and the signatures of Sangappa were also identified as Ex. P. 4 (a), (b) and

295
(c); the signature of PW-3 was at Ex. P.4 (d) and that of PW-4 at Ex. P. 4 (f). The
signatures of other two witnesses were also identified as Ex. P. 4 (e) and Ex. P. 4 (g).
Thus, according to the Trial Court, the mode of proof as provided under Section 68 of
the Evidence Act stood duly complied with.
The Trial Court also noticed and recounted various features which, in its opinion, lend
credence to the factum of existence of the Will in question. The Trial Court observed,
inter alia, that the draft of the Will was prepared in the handwriting of the deceased as
Ex. P.3; that PW-1 was a relative of the deceased who had been helping the deceased in
business and was acquainted with the handwriting and signature of deceased; and thus,
the handwriting and signature were identified as per Section 47 of Evidence Act. The
Trial Court also observed that the draft was in the cover containing the executed Will
and there was no chance to open the sealed cover; and that even if the Will did not
contain all what was written in Ex. P.3, it was not a ground to raise any suspicion.
The Trial Court further observed that the fact that the deceased had taken help of PW-1,
a distant relative, in presence of close relative like defendant No. 1 and his sons, was
sufficient to hold that there was no love lasting between the deceased and the defendant
No. 1 and his sons. The Trial Court observed that indisputably, the earlier Will, executed
in the year 1974, was cancelled in the year 1990 but therein too, the defendant No. 1 and
his family had not been given anything; and the intention of the deceased was clear that
he was not willing to give anything to the defendant No. 1 and his family. The Trial
Court also referred to the fact that defendant Nos. 2 & 3, the sisters of the deceased, did
not come before the Court to speak against the Will in question.
As regards connectivity of the deceased with the plaintiffs, the Trial Court referred to
the fact that in the admission forms of the plaintiff No. 1 pertaining to the years 1991-92
and 1993-94 for I.U.C. classes in Gavisidddeshwar College, Koppal, the deceased had
signed in place of the guardian; and as per the address given in those applications, he
was staying in Warkar Galli C/o Sangappa Gadedshetter. Hence, the allegations of the
defendants that the plaintiffs were staying separately were rejected. The Trial Court
observed that even if father and mother of the plaintiffs were later on staying separately
due to difference of opinion in women-fold, the fact remained that, prior to the year
1993, the plaintiffs and their parents were staying with the deceased as seen by the voter

296
lists (Exs. P.12-16) of Koppal Town pertaining to years 1975 to 1993.
As regards the state of mind of the deceased, the Trial Court observed that the deceased
was in sound state of mind at the time of execution of Will; and he died 3 years after
making of Will and, on the day of his demise, had gone to attend the marriage 100 kms
away, which showed that he was capable of managing himself. The Trial Court also
observed that some of the discrepancies indicated by the defendants had essentially
arisen because of self-scribing of the Will and it cannot be said that the deceased was a
feeble person.
Discrepancies/Suspicions Answered by the Trial Court:
The Trial Court also proceeded to deal with some of the discrepancies pointed out by the
defendants in the Will in question and answered the same as follows:
The Trial Court observed that the discrepancy in Hindi and English Calendar dates as
found in Ex. P.3 cannot be made a ground to disbelieve the entire Will, particularly
when the date mentioned in the Will i.e., 20.05.1991 was falling on Monday and the
same had been the statements of PW-3 and PW-4. This discrepancy, according to the
Trial Court was of no bearing on the substance of the matter.
The Trial Court further observed that absence of property numbers cannot be a ground
to hold that the Will was a forged one; and that the location of house property either in
Warkar Galli or Katarki road was inconsequential so far as giving effect to the Will, as
the deceased wanted to give the property with the boundaries mentioned therein.
Similarly, the property shown as item number 2 in Schedule D was available with
municipal number and was admittedly belonging to the deceased Sangappa. Therefore,
according to the Trial Court, any discrepancy in particulars was of no bearing; and the
blanks were also not casting any doubt or suspicion on the Will in question. The Trial
Court further observed that certain inconsistencies or certain improper directions may
not be called as suspicious circumstances; and that though the description of property in
para 5 of the Will did not disclose the name of the legatee to whom it was bequeathed
but, that too was not a circumstance to disbelieve the entire Will.
The Trial Court yet further observed that non-registration of Will cannot raise the
presumption of forgery and fabrication. The Trial Court also observed that the reason for
keeping the Will secret was that the legatees under the earlier Will were not respecting

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the feelings of the deceased and hence, the deceased kept everybody guessing about the
contents of his last Will.
As regards the suspicious circumstance asserted by the defendants that deceased had not
left anything for his wife in the Will executed in the year 1991, the Trial Court observed
that when, apart from the properties shown in the Will, the deceased was leaving other
properties too, definitely those properties would have gone to his wife and hence, not
making the provision for wife in the Will was not a ground that could be raised as
suspicion. The Trial Court also observed that in para 3 of the Will, 4 acres of the land of
Irkalgada was given to Gopur Basaveshwara Temple, which clearly showed that the
deceased had given properties to charitable purposes also.
As regards entering of the names of the legatees in the Will by the deceased by filing an
application to municipality on 04.09.1993 during his life time, the Trial Court observed
that such entries were of no legal effect and do not operate against the Will in question.
As regards the question raised by the defendants that even the past events were stated in
the Will as if to happen in future, the Trial Court observed that in para 4 of the Will, the
deceased had stated that Sangappa Uttangi had promised to vacate the shop and godown
in the year 1990 and though the wording should have been different when the Will was
written in the month of May 1991, but such a fact was irrelevant because Uttangi was a
tenant and even if he had continued, that would not have affected the rights of legatees
under the Will.
In relation to the suspicious features pertaining to the documents in question i.e., the
draft of the Will Ex. P.3 and the deed of Will Ex. P.4, the Trial Court observed that only
the strong suspicious circumstances were required to be explained by the propounder of
the Will; and proceeded to dismiss the suspicions suggested by the defendants, with the
observations and findings, inter alia, as follows :
The Trial Court observed that the loose sheets were removed from the exercise note
book and used by the deceased to write the draft but, there was no evidence to show that
the entire draft was made on one day; and the deceased might have written some pages
on some day and some pages on some other day. After noticing that chronological
numbers were not available on such loose sheets, the Trial Court observed that the draft
could be used to read the intention and to interpret the Will Ex. P.4 but, it cannot be used

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to nullify the intention of the deceased. In this sequence, the Trial Court also observed
that the persons challenging the Will were not expected to get any property through
succession because, in the event of the demise of Sangappa alone, the properties would
have gone to his wife.
As regards non-examination of the typist, the Trial Court observed that it was not at all a
suspicious circumstance because the Will was a secret document and nobody, including
the propounders, knew as to where the Will was typed.
Though the very opening recital in the Will in question mentioned about the likelihood
of an accident but in this regard, the Trial Court observed that none except deceased
himself could give explanation as to what was the intuition for him to write in the Will
about accident and death in the accident.
As regards the document itself (Ex. P.4), the Trial Court noticed that page numbers 1, 2
and 5 of the Will were green coloured, whereas the colour of page numbers 3 and 4 was
not the same but observed that different coloured sheets might have been used by the
typist.
The Trial Court, of course, noted the features that the signature of the testator on page
number 1 of the document in question (Ex. P.4) was made with an ink pen whereas
ballpoint pen was used on the next page but, observed in this regard that one of the
witnesses had spoken that the ink pen did not write properly so the ballpoint pen was
used. The Trial Court further observed that so far putting the signatures before the
witnesses was concerned, there was no doubt that Ex. P. 4 (a) (b) & (c) were the
signatures of the deceased, as proved in the testimonies of the attesting witnesses. The
Trial Court yet further observed that the Will was kept by the deceased in sealed cover
and this was a strong circumstance to show that the execution of Will by the deceased
cannot be suspected.
In its conclusion, the Trial Court held that from every angle, the Will in question was
natural; and the plaintiffs had discharged their burden of proving the same and also
dispelled the suspicious circumstances stated by the defendants. The Trial Court,
accordingly, held that overall reading of the Will indicated that the deceased had written
the same with an intention of bequeathing the properties to the legatees. Issue Nos. 1 and
6 to 10 were, therefore, decided in favour of the plaintiffs.

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The Trial Court also returned the findings on other issues in favour of the plaintiffs and,
accordingly, decreed the suit with declaration and injunction as noticed hereinbefore.
REVERSAL BY THE HIGH COURT
In appeal by the contesting respondents against the judgment and decree so passed by
the Trial Court, the High Court took note of the material on record as also the rival
contentions and framed two points for determination as follows:
"(i) Whether the plaintiffs proved that the deceased Sangappa bequeathed his properties
in their favour under the will dated 20.5.1991?
(ii) Whether the trial Court was justified in holding the will dated 20.5.1991 executed by
Sangappa as genuine or not?"
In relation to both the points aforesaid, which essentially revolved around the question
of genuineness of the Will in question, the High Court took note of the principles
exposited by this Court in the cases of Smt. Indu Bala Bose and Ors. v. Manindra
Chandra Bose and Anr.: (1982) 1 SCC 20 1981 Indlaw SC 324 and Smt. Jaswant Kaur
v. Smt. Amrit Kaur and Ors.: (1977) 1 SCC 369 1976 Indlaw SC 262 and thereafter,
proceeded to examine the basic contentions of the defendants that by its very nature, the
Will appeared to be a fabricated document. After taking note of the discrepancies in the
document itself and other unnatural circumstances as also after analysing the evidence
of the star witnesses PW-4 and PW-8, the High Court found that the Trial Court had
erred in deciding the relevant issue in favour of the plaintiffs and, while reversing the
findings of the Trial Court, held that the contested Will was not a genuine one. As the
consequence, the judgment and decree passed by the Trial Court were set aside. Of
course, as regards the question of possession, the High Court left it open for the
contesting defendants to take recourse to appropriate remedies in accordance with law.
As regards discrepancies in the document in question, about the difference of the colour
of the three sheets used and in the alleged signatures of the testator, the High Court
meticulously examined the document and recorded its observations and findings as107

107 "24. Keeping the observations of the Hon'ble Supreme Court in view, the WILL would have to be
looked into since it has been strenuously contended by the learned senior counsel for the appellant that the
very sight of the WILL would indicate that the same has been fabricated. The original of the WILL dated
20.5.1991 is marked as Ex.P4 which is available in the records secured from the Court below. The same is
typed in Kannada script on three sheets which are normally used for typing papers which are submitted to
Court. The colour of the three sheets are not similar. The first sheet is light green, the second sheet is very
light in colour (almost white) and the third sheet is darker among the three. At the outset, it is clear that all

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follows108: After taking note of the aforesaid inexplicable features, unnatural
circumstances, unreliability of the witnesses of the plaintiffs and the fact that no steps
were taken by the plaintiffs to get recorded the statements of a material witness, namely
the said Swamiji, the High Court also took note of the approach of the Trial Court and
did not approve the same while observing, inter alia, as under109:
In view of the above, the High Court allowed the appeal and set aside the judgment and
decree of the Trial Court. Hence, the unsuccessful plaintiffs have preferred this appeal.
the three sheets are not from the same stock and if the same was got typed from a typist in a normal course
as claimed, the sheets could not have been different from one another. The alleged signature of the testator
is found at the bottom of each page on the facing side only. Though there is typed matter on the reverse
side at pages 2 and 4 the same does not contain signatures. Even the signatures found on the facing sheet
are not uniformly affixed. On first page the signature is more than one inch below the last line of the typed
matter and has the appearance of a prefixed signature. The second sheet (page-3) contains signature near
to the typed matter. The last sheet (page 5) has the signature which is at a distance of about an inch below
the last line of the typed matter. The name of the alleged testator typed below the signature has all
indications of the same being typed below an existing signature. This is evident from the fact that the
name would not have been typed so low from the typed matter, particularly when the place 'Koppal' and
date typed on the left side of the sheet is at a lesser distance from the typed matter and are not in
alignment with each other. The space provided for signature of four witnesses seems very unnatural and
even in that circumstance the name of the alleged testator would not have been typed so low if it was a
natural typing on a blank sheet. The first page and last page have been signed using fountain ink pen but
the pen used is not similar to one another. The second sheet is signed by a ballpoint pen. The pattern of
signatures if compared with the earlier admitted WILL dated 29.6.1990 which was registered but later
revoked, which is marked as Ex.P1 would indicate uniform pattern immediately below the written matter
without any gap and even a small correction has been attested, whereas in the propounded WILL, blanks
have been left. It does not require a detective like Sherlock Holmes to notice these discrepancies which
are visible to naked eye and the very sight of the WILL does not inspire confidence that it could be
genuine."
(emphasis supplied)
108 6.3. The unusual feature of the use of different instruments while making three signatures on the
same document came up for its fuller exposition when the High Court proceeded to examine the
explanation sought to be furnished by PW-4. While rejecting the testimony of this witness PW-4, the High
Court observed and found, inter alia, as under: The High Court also rejected the contentions of the
plaintiffs that the alleged discrepancies could not take away the validity of the Will as it was produced by
PW-8 and the sealed envelope was opened in the presence of Swamiji. The High Court pointed out that
the very assertion, about availability of the handwritten draft of the proposed Will EX. P.3 in the sealed
envelope along with the alleged executed Will EX. P.4, was that of another unnatural feature because if
the testator had himself completed and executed the Will in the presence of witnesses, there was no reason
to place the incomplete handwritten draft in the envelope. The High Court proceeded to observe that such
feature gave strong indication that the plaintiffs had been able to place their hands on an incomplete draft
and have fabricated the Will using blank sheets signed by the testator at different times; and only to make
it appear authentic, the story of the envelope containing the draft was weaved. While rejecting the story
about the availability of the sealed envelope with the advocate PW-8 and its opening before Swamiji, the
High Court also pointed out that the advocate concerned, PW-8, was known to the testator as also to the
father of the plaintiffs PW-1 inasmuch as he had indeed appeared in his professional capacity on behalf of
PW-1. Moreover, and as noticed, in regard to the assertion of the plaintiffs and the witnesses that the
cover containing the Will was opened before Swamiji, the High Court observed that the said Swamiji was
a very important and material witness in this case but the plaintiffs never took any steps to get his
statement recorded.
109 "28. The said discrepancies though noticed have been sought to be explained by the learned Judge of
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RIVAL CONTENTIONS
Assailing the judgement of the High Court, learned senior counsel for the plaintiff-
appellants has strenuously argued that the High Court has seriously erred in setting aside
the findings of the Trial Court, which were based on due appreciation of the consistent
evidence of the material witnesses. The learned counsel has contended that the facts are
amply established on record that on 20.05.1991, the testator executed the Will in
question in accordance with the provisions of Section 63 of the Succession Act and
Section 68 of the Evidence Act with his signatures and with attestation by more than two
witnesses who had seen the testator signing the Will. According to the learned counsel,
the testator was in sound and disposing state of mind while voluntarily executing the
Will, as required by Section 59 of Indian Succession Act. PW-3 and PW-4 deposed
before the Trial Court that the testator himself showed the typed Will and put his
signatures on the same; and the Will was duly attested by PW-3 and PW-4. Hence, the
requirements of Section 68 of the Evidence Act are fulfilled. The learned counsel has
referred to the decision in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma
and Ors: AIR 1959 SC 443 1958 Indlaw SC 127 and has contended that with all the
legal requirements being fulfilled and there being no reason to ignore or disbelieve the
Will, the Trial Court had rightly decreed the suit and the High Court has not been
justified in upsetting the considered decision of the Trial Court.
The learned senior counsel has contended that the appellants have dispelled all
suspicious circumstances qua the Will in question; that as per Section 74 of the
Succession Act, it is not necessary that technical words be used in the Will; and what is
necessary is only that the intention of the testator ought to be set out in the Will.
According to the learned counsel, Ex. P3, the handwritten draft, makes the intention of
the testator clear that he wanted to bequeath his properties to the appellants. Further,
PW-5 and defendant No. 7 have clearly identified the signature of the testator. The
learned counsel would urge that with the intention of the testator having been amply

the Court below in a manner as though to overcome the same wherein the learned Judge states that the
difference in the colour of the papers cannot be suspected because it could have been used by the typist.
The learned Judge further holds that it cannot be suspected since the said papers contain the signatures and
the signatures have been identified by the witnesses. As noticed by us above, the very signatures itself are
doubtful that it has been affixed after the matter was typed and the explanation given by the witnesses are
even more doubtful and as such the learned Judge could not have lightly brushed aside these aspects."

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established on record, some blanks in the Will or some other minor inconsistencies
cannot take away the substance thereof, particularly when the properties could be
identified with the help of the boundaries. The learned counsel has referred to the
decisions in Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr.: (1982)
1 SCC 20 1981 Indlaw SC 324 and P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar and Ors: 1995 Supp (2) SCC 664. The learned counsel has further contended
that exclusion of any legal heir from the Will is not a suspicious circumstance and has
referred to the decision in Uma Devi Nambiar and Ors. v. T.C. Sidhan: (2004) 2 SCC
321 2003 Indlaw SC 1185.
The learned senior counsel has further strenuously argued that it had not been the
contention of the respondents that the document in question was drawn on blank signed
papers and the observation of the High Court that the document in question was drawn
on blank signed papers does not find support in the evidence and pleadings on record. In
this regard, the learned counsel has relied upon the decision in Mahesh Kumar (dead) by
LRs v. Vinod Kumar and Ors: (2012) 4 SCC 387 2012 Indlaw SC 97.
In the last and in the alternative, the learned senior counsel has argued that if at all the
High Court found the want of requisite evidence, the proper course was to exercise the
power of remand under the provisions of Order XLI Rule 23-A CPC. The learned
counsel has contended that the High Court being the first Court of Appeal, ought to have
given the opportunity to the appellants to adduce proper additional evidence,
considering the fact that the findings were being made on suspicious circumstances
other than those raised by the defendants in their pleadings and evidence. The learned
counsel has referred to and relied upon the decision in the case of Mohan Kumar v. State
of Madhya Pradesh and Ors.: (2017) 4 SCC 92 2017 Indlaw SC 179.
Arguments of the Counsel for the Respondents
Per contra, learned counsel for the contesting respondents has duly supported the
judgement of the High Court with reference to the reasonings and observations therein.
The learned counsel has also argued that right from the beginning, it had been the case
of the respondents that the propounded Will was nothing but a fabricated document and
it is incorrect to say that particular objection had not been taken by the respondents. The
learned counsel has referred to the decision in K. Laxmanan v. Thekkayil Padmini and

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Ors.: (2009) 1 SCC 354 2008 Indlaw SC 1905.
POINTS FOR DETERMINATION
In view of the submissions made, the following points essentially arise for determination
in this case:
1. As to whether the High Court was right in reversing the decision of the Trial Court
and in holding that the contested Will was not a genuine document?
2. As to whether the High Court ought to have considered remanding the case to the
Trial Court?
WILL - PROOF AND SATISFACTION OF THE COURT
As noticed, the basic point for determination in this case is as to whether the High Court
was justified in taking a view contrary than that of the Trial Court and in holding that the
Will propounded by the plaintiffs is not the genuine Will of the deceased Sangappa.
Determination of this point, obviously, revolves around the legal principles applicable to
the making of a testamentary document like Will, its proof, and its acceptance by the
Court.
The Will being a rather solemn document that comes into operation after the death of the
testator, special provisions are made in the statutes for making of a Will and for its proof
in a Court of law. Section 59 of the Succession Act provides that every person of sound
mind, not being a minor, may dispose of his property by Will. A Will or any portion of a
Will, the making of which has been caused by fraud or coercion or by any such
importunity that has taken away the free agency of the testator, is declared to be void
under Section 61 of the Succession Act; and further, Section 62 of the Succession Act
enables the maker of a Will to make or alter the same at any time when he is competent
to dispose of his property by Will. Chapter III of Part IV of the Succession Act contains
the provisions for execution of unprivileged Wills (as distinguished from privileged
Wills provided for in Chapter IV). Section 63 of the Succession Act, relevant for the
present purpose, reads as under110: -

110 "63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition
or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his
Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed
that it shall appear that it was intended thereby to give effect to the writing as a Will.

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Elaborate provisions have been made in Chapter VI of the Succession Act, in Sections
74 to 111, for construction of Wills which, in their sum and substance, make the
intention of legislature clear that any irrelevant misdescription or error is not to operate
against the Will; and approach has to be to give effect to a Will once it is found to have
been executed in the sound state of mind by the testator while exercising his own free
will. However, when the Will is surrounded by suspicious circumstances, the Court
would expect that the legitimate suspicion should be removed before the document in
question is accepted as the last Will of the testator.
As noticed, as per Section 63 of the Succession Act, inter alia, requires that the Will
ought to be attested by two or more witnesses. Hence, any document propounded as a
Will cannot be used as evidence unless at least one attesting witness has been examined
for the purpose of proving its execution, if such witness is available and is capable of
giving evidence as per the requirements of Section 68 of the Evidence Act, that reads as
under111:
Learned Counsel for the appellant has referred to the decision in the case of H.
Venkatachala Iyenger (supra). It is noticed that in paragraphs 18 to 22 of the said
decision, this Court has synthesised and condensed almost the entire panorama relating
with execution and proof of a Will and the guiding principles for a Court while
examining the document which is propounded as a Will. These passages in the said 3-
Judge Bench decision of this Court could be usefully reproduced as under112: -

(c) The Will shall be attested by two or more witness, each of whom has seen the testator sign or affix his
mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal acknowledgment of his signature or mark, or the
signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator,
but it shall not be necessary that more than one witness be present at the same time, and no particular form
of attestation shall be necessary."
111 "68. Proof of execution of document required by law to be attested.-If a document is required by law
to be attested, it shall not be used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the
Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any
document, not being a Will, which has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been
executed is specifically denied."
112 "18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of
wills presents a recurring topic for decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is
no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to
the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are

305
Learned Counsel for the appellant has referred to paragraphs 7 and 8 of the decision of
this Court in the case of Indu Bala Bose (supra) which may also be taken note of as
under113: -
In the case of P.P.K. Gopalan Nambiar (supra), the Will in question was a registered one
and the endorsement made by the Registrar showed that the testator was in a sound
disposing state of mind and the Will was executed out of the testator's free will. It was
also found that the testator died 8 years after registration of the Will and though legatee

relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the
signature of the said person must be proved to be in his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution
of the document required by law to be attested; and it provides that such a document shall not be used as
evidence until one attesting witness at least has been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof which must be satisfied by the party who
relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this section indicate what is meant by the expression "a
person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to
the will or it shall be signed by some other person in his presence and by his direction and that the
signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the
writing as a will. This section also requires that the will shall be attested by two or more witnesses as
prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will
of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the decision of these questions which determines the
nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will
has to be proved like any other document except as to the special requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof
of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the
usual test of the satisfaction of the prudent mind in such matters. However, there is one important feature
which distinguishes wills from other documents. Unlike other documents the will speaks from the death of
the testator, and so, when it is propounded or produced before a court, the testator who has already
departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element
of solemnity in the decision of the question as to whether the document propounded is proved to be the
last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will
start on the same enquiry as in the case of the proof of documents. The propounder would be called upon
to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant
time was in a sound and disposing state of mind, that he understood the nature and effect of the
dispositions and put his signature to the document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing
state of the testator's mind and his signature as required by law, courts would be justified in making a
finding in favour of the propounder. In other words, the onus on the propounder can be taken to be
discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in
support of the propounder's case that the signature in question is the signature of the testator may not
remove the doubt created by the appearance of the signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to
be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise

306
propounded the Will in his written statement, but no plea was taken by the opposite
party to question the validity of the Will. The Will was duly proved with examination of
the attesting witness. In the given circumstances, the fact that whole of the estate was
given to one son under the Will while depriving two daughters, was not considered to be
a suspicious circumstance. On the requisite approach, this Court said as under114:-
In the case of Uma Devi Nambiar (supra), this Court reviewed the case law dealing with
the Will to a large extent and, while referring to the Constitution Bench decision of this
indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases
the court would naturally expect that all legitimate suspicions should be completely removed before the
document is accepted as the last will of the testator. The presence of such suspicious circumstances
naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would
be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging
the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such
pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in executing the will, and in such
circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If it is shown that the propounder has taken a
prominent part in the execution of the will and has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the execution of the will and the propounder is
required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that
present such suspicious circumstances that decisions of English courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is
a heritage from similar observations made by ecclesiastical courts in England when they exercised
jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context
would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that,
in determining the question as to whether an instrument produced before the court is the last will of the
testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly
executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence.
It may, however, be stated generally that a propounder of the will has to prove the due and valid execution
of the will and that if there are any suspicious circumstances surrounding the execution of the will the
propounder must remove the said suspicions from the mind of the court by cogent and satisfactory
evidence. It is hardly necessary to add that the result of the application of these two general and broad
principles would always depend upon the facts and circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in
Harmes v. Hinkson:(1946) 50 C.W.N. 895, "where a will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even
in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close
his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering
truth even in such cases the judicial mind must always be open though vigilant, cautious and
circumspect." (emphasis supplied)
113 "7. This Court has held that the mode of proving a Will does not ordinarily differ from that of
proving any other document except to the special requirement of attestation prescribed in the case of a
Will by Section 63 of the Succession Act. 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 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

307
Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and
Ors.: AIR 1964 SC 529 1963 Indlaw SC 414, observed that merely because the natural
heirs have either been excluded or lesser share had been given to them, by itself, will not
be considered to be a suspicious circumstance. This Court observed, inter alia, as
under115:-
In the case of Mahesh Kumar (supra), this Court indicated the error of approach on the

court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for
the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the
genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions 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
naturally expect that all legitimate suspicions should be completely removed before the document is
accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution
of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account,
and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder
succeeds in removing the suspicious circumstances the court would grant probate, even if the will might
be unnatural and might cut off wholly or in part near relations.: AIR 1964 SC 529 1963 Indlaw SC 414
8. Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance
would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not
expected of a normal person."(emphasis supplied)
114 "5. Under these circumstances, the suspicion which excited the mind of the District Munsif is
without any basis and he picked them from his hat without fact-foundation. The Subordinate Judge had
rightly considered all the circumstances and upheld the will. The High Court, without examining the
evidence, by merely extracting legal position set out by various decisions of this Court has upset the
finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the
propounder of the will to prove the will and to remove all the suspected features. But there must be real,
germane and valid suspicious features and not fantasy of the doubting mind."(emphasis supplied)
115 "15. Section 63 of the Act deals with execution of unprivileged Wills. It lays down that the testator
shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and
by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of
whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the
Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in
the presence of the testator. Section 68 of the Indian Evidence Act, 1872 (in short the "Evidence Act")
mandates examination of one attesting witness in proof of a Will, whether registered or not. The law
relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case
based upon a Will has been examined in considerable detail in several decisions of this Court.......A
Constitution Bench of this Court in Shashi Kumar Banerjee's case succinctly indicated the focal position
in law as follows: (AIR p. 531, para 4)
"The mode of proving a Will does not ordinarily differ from that of proving any other document except as
to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian
Succession Act. 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 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 the
court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the
onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to
doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may
be as to the genuineness of the signature of the testator, the condition of the testator's mind, the
dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances

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part of High Court while appreciating evidence relating to the Will in the following116:-
In the case of K. Laxmanan (supra), this Court, with reference to the settled principles
including those in the case of Shashi Kumar Banerjee (supra) re-emphasised on the
requirement that the propounder has to prove the legality of execution of the Will as also
the genuineness thereof by proving the testamentary capacity of the testator as also his
signatures and further by proving absence of suspicious circumstances. This Court, inter

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 naturally expect that all legitimate suspicion should be completely removed before the
document is accepted as the last Will of the testator. If the propounder himself takes part in the execution
of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account,
and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder
succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might
be unnatural and might cut off wholly or in part near relations."
16.A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound
to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass
to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will
has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact
that natural heirs have either been excluded or a lesser share has been given to them, by itself without
anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has
been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar
and Ors.: [1995] 2 SCR 585 1995 Indlaw SC 1680, it is the duty of the propunder of the Will to remove
all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of
the doubting mind. It has been held that if the propounder succeeds in removing the suspicious
circumstances, the court has to give effect to the Will, even if the Will might be unnatural in the sense that
it has cut off wholly or in part near relations. ...... In Rabindra Nath Mukherjee and Anr. v. Panchanan
Banerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684 1995 Indlaw SC 1215, it was observed that the
circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind
execution of the Will is to interfere with the normal line of succession and so, natural heirs would be
debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some
cases partly."
116 "44. The issue which remains to be examined is whether the High Court was justified in coming to
the conclusion that the execution of the will dated 10-2-1992 was shrouded with suspicion and the
appellant failed to dispel the suspicion? At the outset, we deem it necessary to observe that the learned
Single Judge misread the statement of Sobhag Chand (DW3) and recorded something which does not
appear in his statement. While Sobhag Chand categorically stated that he had signed as the witness after
Shri Harishankar had signed the will, the portion of his statement extracted in the impugned judgment
gives an impression that the witnesses had signed even before the executant had signed the will.
45. Another patent error committed by the learned Single Judge is that he decided the issue relating to
validity of the will by assuming that both the attesting witnesses were required to append their signatures
simultaneously. Section 63(c) of the 1925 Act does not contain any such requirement and it is settled law
that examination of one of the attesting witnesses is sufficient. Not only this, while recording an adverse
finding on this issue, the learned Single Judge omitted to consider the categorical statements made by DW
3 and DW 4 that the testator had read out and signed the will in their presence and thereafter they had
appended their signatures.
46. The other reasons enumerated by the learned Single Judge for holding that the execution of will was
highly suspicious are based on mere surmises/conjectures. The observation of the learned Single Judge
that the possibility of obtaining signatures of Shri Harishankar and attesting witnesses on blank paper and
preparation of the draft by Shri S.K. Agarwal, Advocate on pre-signed papers does not find even a
semblance of support from the pleadings and evidence of the parties. If Respondent 1 wanted to show that

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alia, said117,-
In K. Laxmanan (supra), this Court also explained the principles governing the
pleadings in such matters while observing, inter alia, as under 118:-We may also usefully
refer to the principles enunciated in the case of Jaswant Kaur (supra) for dealing with a
Will shrouded in suspicion, which were duly taken note of by the High Court in its
impugned judgement, as follows119: -For what has been noticed hereinabove, the
relevant principles governing the adjudicatory process concerning proof of a Will could
be broadly summarised as follows:-
1. Ordinarily, a Will has to be proved like any other document; the test to be applied
being the usual test of the satisfaction of the prudent mind. Alike the principles
governing the proof of other documents, in the case of Will too, the proof with
mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it
the will was drafted by the advocate after Shri Harishankar and attesting witnesses had signed blank
papers, he could have examined or at least summoned Shri S.K. Agarwal, Advocate, who had represented
him before the Board of Revenue. ....."
117 "18......The propounder has to prove the legality of the execution and genuineness of the said will by
proving absence of suspicious circumstances surrounding the said will and also by proving the
testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the
propounder has discharged the onus.
19. When there are suspicious circumstances regarding the execution of the will, the onus is also on the
propounder to explain them to the satisfaction of the court and only when such responsibility is
discharged, the court would accept the will as genuine. Even where there are no such pleas, but
circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious
circumstances arise due to several reasons such as with regard to genuineness of the signature of the
testator, the conditions of the testator's mind, the dispositions 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 naturally expect that all
legitimate suspicion should be completely removed before the document is accepted as the last will of the
testator....."
118 "28. It is however established in the present case that the issue of validity of the execution of both the
deed of gift and deed of will was taken up by the respondent-plaintiff and specifically denied in the
affidavits filed in respect of the injunction applications. The parties have also gone to trial knowing fully
well that execution of both these documents is under challenge. Parties knowing fully the aforesaid factual
position led their evidence also to establish the legality and validity of both the documents. In that view of
the matter, it cannot be said that the said document should be deemed to be admitted by the plaintiff as no
replication was filed by the plaintiff."(emphasis supplied)
119 "9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis
between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such
cases a matter of the court's conscience and then the true question which arises for consideration is
whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that
the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party
which sets up the will offers a cogent and convincing explanation of the suspicious circumstances
surrounding the making of the will."(emphasis supplied)

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cannot be used as evidence until at least one attesting witness has been called for the
purpose of proving its execution, if there be an attesting witness alive and capable of
giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and,
therefore, the maker thereof is not available for deposing about the circumstances in
which the same was executed. This introduces an element of solemnity in the decision of
the question as to whether the document propounded is the last Will of the testator. The
initial onus, naturally, lies on the propounder but the same can be taken to have been
primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious
circumstances stands on a different footing. The presence of suspicious circumstances
makes the onus heavier on the propounder and, therefore, in cases where the
circumstances attendant upon the execution of the document give rise to suspicion, the
propounder must remove all legitimate suspicions before the document can be accepted
as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence,
coercion et cetera in regard to the execution of the Will, such pleas have to be proved by
him, but even in the absence of such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as to whether the Will had indeed
been executed by the testator and/or as to whether the testator was acting of his own free
will. In such eventuality, it is again a part of the initial onus of the propounder to remove
all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a
normal situation or is not expected of a normal person'. As put by this Court, the
suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the
doubting mind.'
7. As to whether any particular feature or a set of features qualify as "suspicious" would
depend on the facts and circumstances of each case. A shaky or doubtful signature; a
feeble or uncertain mind of the testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the dependants; an active or leading part in
making of the Will by the beneficiary thereunder et cetera are some of the circumstances

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which may give rise to suspicion. The circumstances above-noted are only illustrative
and by no means exhaustive because there could be any circumstance or set of
circumstances which may give rise to legitimate suspicion about the execution of the
Will. On the other hand, any of the circumstance qualifying as being suspicious could be
legitimately explained by the propounder. However, such suspicion or suspicions cannot
be removed by mere proof of sound and disposing state of mind of the testator and his
signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a
document propounded as the Will of the testator is surrounded by suspicious
circumstance/s. While applying such test, the Court would address itself to the solemn
questions as to whether the testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a
matter essentially of the judicial conscience of the Court and the party which sets up the
Will has to offer cogent and convincing explanation of the suspicious circumstances
surrounding the Will.
SUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNING THE WILL IN
QUESTION
Having considered the present matter in its totality while keeping the principles
aforesaid in view, we have not an iota of doubt that the High Court has examined the
matter in its correct perspective and there had been substantial and material reasons for
which, the decision of the Trial Court could not have been upheld; and the High Court
has rightly reversed the same. In summation of the lengthy discussion of the Trial Court,
it could be noticed that some of the major factors which weighed with the Trial Court in
rejecting the objections of the contesting defendants against the Will in question had
been: (i) that the testator Sangappa was not having warmth of relations with defendant
No. 1 and his family and was not willing to give anything to them; (ii) that even in the
earlier Will of the year 1974, Sangappa had not bequeathed any property to the
contesting defendants; (iii) that the plaintiffs, the grand-nephews of testator's wife, were
residing with the testator; (iv) that the father of the plaintiffs was associated with the
testator in his business and other dealings; (v) that the attesting witnesses were only the

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customers of the testator and were naturally chosen as independent persons to stand as
witnesses to the Will; (vi) that the Will in question was in possession of PW-8 and was
opened by him in the presence of Swamiji; and (vii) that PW-8 had neither any
animosity with the defendants nor was gaining anything from the Will.
As regards the discrepancies indicated by the defendants, the Trial Court took the view
that mere misdescription of the property was of no effect, particularly when its
identification was not in doubt; and for this very reason, the Trial Court found the blank
spaces as regards the particulars of the property to be of no effect. As regards
mentioning of a past event as something to happen in future, the Trial Court found that it
had no adverse bearing on the validity of the Will because existence of a tenant in the
property was not going to affect the rights of the testator as also his legatees. As regards
the statement in the Will about likelihood of accident, the Trial Court observed that the
reason for making such a recital was known to the testator alone. On the suspicious
factors concerning the document itself, the Trial Court observed that use of the sheets of
paper of different colours could be attributed only to the typist who was not known to
propounders. The Trial Court further found that the inconsistency regarding the dates
from the Hindi Calendar and English Calendar were of no effect because the day of
execution of the Will was Monday, as stated by the witnesses. Further, the Trial Court
found that the making of signatures by the testator by different pens on different pages
was duly explained by the witness PW-4.
The High Court, on the other hand, felt dissatisfied with the document itself and found
no explanation on record about numerous unnatural circumstances dilated upon and
discussed by it in some of the passages extracted hereinbefore. Having examined the
material placed on record, in our view, the observations and findings of the High Court
remain unexceptionable.
Taking up the document itself, it is not in dispute that the same is carrying 5 typed pages
on 3 different sheets of papers, which are definitely not of the same colour. It had been
noticed by the Trial Court as also by the High Court, and it remains indisputable, that
the said papers are of different colours and have not been picked up from the same stack.
Use of 3 different sheets of paper for typing a document of Will running in 5 pages (with
first and second paper being typed on both sides) is, in any case, not a normal action by

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a normal person in normal circumstances. True it is that this aspect could have been
cleared only by the typist and the propounders are not expected to know the typist,
particularly when they had not participated in execution and attestation of the document
but, this circumstance is enough to indicate that the matter calls for closer scrutiny with
due regard to all the surrounding factors because, ordinarily, such document would be
typed in one sitting and on the papers drawn from the same stack.
Proceeding further, another feature surfaces, which was found by the High Court
(though not discussed by the Trial Court). This feature is about the placement of the
signatures of the testator on 3 pages, where it is apparent that on the first and the last
page, the distance of signatures from the typewritten contents is excessive than usual or
natural. It is not in dispute that this feature also emanates from a bare look at the
document in question.
The aforementioned two features, by themselves, may not be of material bearing but this
much is clear that they stand at contradistinction to the ordinary course of dealings and
give rise to legitimate suspicions about the genuineness of document. Now, the
suspicion arising from the aforesaid two features is confounded by another factor that
though the document carries 3 signatures of the testator, the same are not made from the
same pen. It has been noticed, and again it remains indisputable, that while the signature
of the testator at page number 1 are from an ink pen, that at page number 3 is from a
ballpoint pen and then, again at page number 5, it is from an ink pen. The witness PW-4
has attempted to say that for the ink pen being not working properly, ballpoint pen was
used. It sounds utterly unnatural and remains inexplicable that if the ink pen was not
working and the second signature was made from a ballpoint pen, as to how and why the
third signature, that is, the last one, was again made from another ink pen? It had not
been the explanation of the attesting witnesses that after making the signature at page
number 3, the ballpoint pen also stopped working and, therefore, another ink pen was
used for making the third signature. We may observe that even when the possibility of
the testator using different pens or instruments for his signatures on different pages of
the same document is not ruled out altogether and even this fact, by itself, may not be
decisive of the matter but, this much is certain that such happening cannot be
categorised as normal or natural in the course of execution of a document of Will.

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Therefore, in the present case, three features of the document Ex. P.4, carrying unusual
characteristics of their own, manifest themselves on the face of the record and nothing
but a bare look at the document is sufficient to notice them. The aforesaid three
unnatural and unusual features of the document in question, where different sheets of
paper have been used; where placement of the signatures of the testator at least at two
places is beyond normal distance from the last typed matter; and where in making of
three signatures, at least two different pens were used, make it clear that a deeper probe
is called for to find as to whether this document could at all be accepted as the last Will
of the testator.
When the exploration is pushed slightly further, another major feature comes to the fore,
which has been noticed by the High Court but which escaped the attention of the Trial
Court altogether. The document in question is said to be a Will running in 5 pages which
is typed (in kannada script) on 3 sheets of papers with the first and second sheets
carrying the typewritten contents on both sides; page number 2 being typed on the
backside of page number 1 and page number 4 being typed on the backside of page
number 3. The significant feature is that page number 2 and page number 4 of this
document Ex. P.4 do not carry any signature at all!
It is apparent on the face of the record that even when the front facing pages i.e., page
numbers 1, 3 and 5 carry the signatures of the testator, the backside pages i.e., page
number 2 and page number 4 are not signed at all and have gone unsigned. When this
material aspect is added to the above-referred three unusual features, the probative value
of this document Ex. P.4 is shaken to the core and it becomes a serious question as to
whether this document could be considered to be a Will that was got typed and signed
by the testator in the presence of the alleged attesting witnesses. In relation to this aspect
of want of signatures of the testator on page number 2 and page number 4, we may also
observe that as per the requirement of clause (b) of Section 63 of the Succession Act, the
signature or mark of the testator is to be so placed that it shall appear that by such
signature or mark, the intention was to give effect to the writing as a Will. Of course,
when no specific form of making a Will is provided, in a given case, depending on the
relevant facts and circumstances, a document drawn on several sheets but carrying
signature only at the end may also be accepted as a genuine Will where the document

315
was authenticated by only one signature. However, the scenario like the present one,
where the executant had purportedly signed 3 out 5 typewritten pages while omitting to
sign the other 2, definitely stands at contradistinction to the dealing of any normal
person in normal way. When the signatures of the testator are indeed available on page
numbers 1, 3 and 5, it is difficult to find any plausible explanation for his omission to
sign at page number 2 and page number 4 of the same document. The only explanation
could be that the testator chose to sign the front face of each paper and did not consider
it necessary to sign on the backside of the paper. However, accepting such a frail
explanation, and that too in the face of other unusual features (as noticed hereinbefore),
would tantamount to thrusting the probative value into the document while ignoring
everything that is incongruous to, and incompatible with, the normal course of
happenings.
The indisputable fact that page number 2 and page number 4 of the document in
question (EX. P.4) do not carry the signatures of the testator whereas other pages do
carry his signatures, in our view, places the document in conflict with, or at least non-
compliant with, the requirement of clause (b) of Section 63 of the Succession Act. The
document in question could be rejected outright for this reason alone. However, having
regard to the circumstances of the case, it would be appropriate to deal with other factual
aspects concerning the document in question before reaching to the final conclusion.
The discussion thus far makes it clear that at least four unusual features of the document
in question are evident on the face of the record. To recapitulate, the disturbing unusual
features of the document in question are that: (i) it is typewritten on 3 different sheets of
paper; (ii) the placement of signatures of the testator is not of uniformity and excessive
space is seen between the typewritten contents and the signatures on page number 1 and
page number 5; (iii) different pens have been used for signatures on different pages with
ink pen having been used for first and third signatures (on page number 1 and page
number 5) and ballpoint pen having been used for the second signature (on page number
3); and (iv) all the typewritten pages do not carry the signatures of the testator, with
there being no signature on page number 2 and page number It does not require any
great deal of elaboration that in the ordinary, normal and usual course, such a
typewritten document is expected to be on the sheets of paper drawn from the same

316
stack; there would be reasonable uniformity in placement of the signatures running
through the document and every signature would be placed alongside or at a reasonable
distance from the contents; a single pen or instrument would be used for signing at all
places; and, ordinarily, a maker of the Will would not leave such ambiguity in
expression of his intention as would arise by his signing 3 pages and not signing 2 other
pages of the same document. In fact, in the normal and ordinary course of dealing, the
maker of a Will is least expected to leave any page of the document unsigned. Although
existence of some such unusual features (as noticed above) cannot be ruled out during
the course of typing and signing of the document but when all such unusual features
combine together, the document becomes too vulnerable and cannot be readily accepted
as a genuine document.
While proceeding further, we may usefully reiterate the principles relating to the
examination of a document propounded as Will that the document is not approached
with doubts but is examined cautiously and with circumspection. For what has been
noticed hereinabove, the document in question carries several such features of
unusualness which travel into the realm of abnormalities. The matter does not rest with
such abnormalities only. These abnormal features get confounded with other unusual
features available in the contents of this document. Indisputably, several blank spaces
are found in relation to the particulars of the properties and even some of the properties
are not correctly described. Yet further, the dates mentioned in the document with
reference to Hindi Calendar and English Calendar do not match. Yet another curious
feature is the recital in the document of a past event (about vacating of the shop by the
tenant in the year 1990) in the manner that such event shall happen in future. Therefore,
the abnormalities relating to paper, pen and signature get magnified with blank spaces in
the document as also with incorrect and inexplicable recitals.
The problems relating to the probative value of the document Ex. P.4 do not end with
the aforementioned abnormal features and curious factors. A close examination of this
document takes us from abnormalities to mysteries too. In the opening passage of this
document, the recital is to the effect that the testator was making the Will because so
many accidents do happen. The fact remains that the testator and his wife both died in
the car accident on 20.05.1994 but, it would require travelling into an entirely mystical

317
region to accept that while making the Will on 20.05.1991, the testator had the
premonition that he would perish in a vehicular accident.
As noticed, even when a fishing enquiry with digging of the faults and lacuna is not to
be resorted to while examining a Will but, and at the same time, the real and valid
suspicions which arise because of anything standing beyond normal happening or
conduct cannot be ignored either. Ignoring or brushing aside all the features noticed in
relation to the document in question would require taking up an individual feature and
ignoring it as being trivial or minor and then, proceeding with the belief that it had only
been a matter of chance that all the abnormalities somehow chose to conglomerate into
this one document. Such an approach would, obviously, be detached from realities and
cannot be adopted. It needs hardly any emphasis that examination of a document
propounded as Will has to be on the norms of reality as also normalcy; and the overall
effect of all the features and circumstances is required to be examined.
When all the aforesaid abnormal, curious and rather mysterious circumstances are put
together, the inescapable conclusion is that the document in question cannot be accepted
as the last Will of the testator. The unexplained, unusual and abnormal features
pertaining to the document only lead to the logical deduction that the document in
question was prepared after the demise of the testator with use of blank signed papers
that came in possession of the propounders and their associates. The High Court has
stated such deduction after thorough examination of the material on record and, in our
view, rightly so. It is noticed that all the features and factors indicated hereinabove are
very much available on the face of the record. However, the Trial Court, even while
dealing with several contentions in excessive details, either failed to notice some of the
features indicated above or simply brushed aside the particular feature carrying
abnormality with the observations to the effect that the propounders were not to be
expected to remove the suspicions concerning the document when they had no role in its
execution. The Trial Court having, obviously, misdirected itself on several of the key
and pivotal factors, its decision could not have been approved.
It is sought to be contented on behalf of the appellants that using of blank papers had not
been the objection taken by the defendants. The contention remains bereft of substance
for the simple reason that the defendants indeed asserted that the document in question

318
was a fabricated one. The likelihood of it being drawn on the available blank papers
with signatures of the testator is nothing but a deduction that logically comes out of the
examination of the document in question.
Much emphasis is laid on behalf of the appellants on the submissions that execution of
the Will in accordance with the requirements of Section 63 of the Succession Act and
Section 68 of the Evidence Act has been duly established on record with the testimony
of the attesting witnesses as also the witness with whom the Will along with the
handwritten draft of the Will had been deposited by the testator. The submissions so
made on behalf of the appellants cannot be accepted for the reason that mere proof of
the document in accordance with the requirements of Section 68 of the Evidence Act is
not final and conclusive for acceptance of a document as a Will. When suspicious
circumstances exist and the suspicions have not been removed, the document in question
cannot be accepted as a Will.
Even the aspect suggested on behalf of the plaintiffs and their witnesses that the
document in question (Ex. P.4) was drawn up as a Will and was placed in a sealed cover
with the handwritten draft (Ex. P.3) has its own shortcomings and the share of
abnormalities. It remains indisputable that the said draft (Ex. P.3) had remained
incomplete. It may be assumed that the same was being drawn up by the testator in his
own handwriting for finally making his last Will after he had revoked the earlier Will
but, it had remained incomplete draft only. If the testator himself had got his Will typed
and then, took care to have it executed in the presence of 4 attesting witnesses; and if he
intended such executed document to operate as his Will; and also had the intention that
his Will be kept in a sealed cover to be opened before Swamiji, in the ordinary course of
dealings, it was least expected of him to put the said incomplete draft also in the
envelope because placing of such incomplete draft could have only created confusion in
regard to the actual Will, if there were any. Taking an overall view of the matter, the
preponderance of probability is only to the effect that the entire story about execution of
Will by the deceased Sangappa has been cooked up with use of readily available signed
papers (though of different sheets of paper and with signatures with different
instruments) and, in order to suggest some authenticity, the story of sealed envelope and
leaving of the same with PW-8 was sought to be inserted. This feature only operates

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against the plaintiffs where it carries another unexplained unusualness. The Trial Court
had largely been swayed by the fact that the deceased Sangappa was not inclined to give
any property to the defendant No. 1 and his family as had been the case of the earlier
Will executed by him in the year 1974. Admittedly, the said Will of the year 1974 was
cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular accident on
20.05.1991. Whether he intended to bequeath any property to the defendants or not is
hardly of any bearing in relation to the suspicious circumstances noticed above. Having
dilated on various major features which, individually and cumulatively, lead only to the
conclusion that the document in question cannot be accepted to be the last Will of late
Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the
case of the plaintiffs, including various other factors like that the plaintiffs never took
steps to get the statement of the said Swamiji recorded, who was otherwise referred to
by all the material witnesses as being the person before whom the document was
allegedly opened.
In our view, the document in question falls flat at the very first question indicated in the
case of H. Venkatachala Iyenger (supra) that is, as to whether the testator signed the
Will in question. The answer to this question is only in the negative. This is apart from
the fact that the document in question, propounded as a Will, is non-compliant with the
requirements of clause (b) of Section 63 of the Succession Act.
Opinion and Judgment of the SC
In the ultimate analysis, we are satisfied that the High Court was right in reversing the
decision of the Trial Court and in holding that the contested Will was not a genuine
document.
WHETHER REMAND WAS CALLED FOR
Taking up the other point for determination, the submission of learned counsel for the
appellants that the High Court ought to have considered remanding the case by taking
recourse to the provision contained in Order XLI Rule 23A CPC. in our view, remains
totally bereft of substance; this submission has only been noted to be rejected.The
procedure relating to appeals from original decrees (usually referred to as 'regular first
appeal') is provided in Order XLI of the Code of Civil Procedure, 1908 and therein,
various provisions relating to hearing of an appeal, remand of case, remitting of issues

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for trial, production of additional evidence in Appellate Court etc. are contained in Rules
16 to 29 under the sub-heading 'Procedure on hearing'. For their relevance, we may take
note of the provisions contained in Rules 23, 23A, 24 and 25 of Order XLI CPC as
follows120: -
CONCLUSION
For what has been discussed hereinabove, we are satisfied that the High Court has
rightly interfered with the decision of the Trial Court and has rightly held that the

120 "23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred
has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court
may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in
the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the
appeal is preferred, with directions to re-admit the suit under its original number in the register of civil
suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall,
subject to all just exceptions, be evidence during the trial after remand.
23A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of
the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is
considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the
evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate
Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the
judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground
other than that on which the Appellate Court proceeds….25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal
is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to
the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if
necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is
preferred, and in such case shall direct such Court to take the additional evidence required; and such Court
shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its
findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or
extended by it from time to time."….25.2. Rule 23A came to be inserted in Order XLI CPC by way of the
Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by
the Courts that although under Rule 23, an order of remand could be made only on reversal of a decree
disposing of suit on a preliminary point but, the Appellate Court has the inherent power of remanding a
case where it was considered necessary to do so in the interest of justice. Some of the High Courts had
made similar provisions by way of their respective amendments. Insertion of Rule 23A in Order XLI by
the Amending Act of 1976 makes it explicit that even when the suit has been disposed of otherwise than
on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of
remand, if a re-trial is considered necessary. Such powers of remand, as provided in Rules 23 and 23A of
Order XLI, are different than the power of the Appellate Court to remit an issue for findings under Rule
25. The power of remitting is ordinarily to be resorted to when the Trial Court has omitted to try any
material issue or to determine any question of fact. In other words, the proper procedure in a case where
the Trial Court, while disposing of the suit on merits, had failed to determine one or more of the material
issues/questions, is to remit the issue/question(s) under Rule 25 and not to remand the whole case for re-
trial. Ordinarily, in the case of an order under Rule 25 of Order XLI, the matter is retained on the file of
the Appellate Court and only the issue/question(s) are remitted to the Trial Court for findings. On the
other hand, when an order of remand is made under Rule 23 or Rule 23A, the whole case goes back for
decision to the Trial Court except on the point on which the Appellate Court has returned concluded
finding, if any. While making a remand under Rule 23 or Rule 23A, the judgment and decree of the Trial
Court is required to be set aside but it is not necessary to set aside the impugned judgment and decree
when taking recourse to Rule 25 of Order XLI…25.3. A comprehension of the scheme of the provisions

321
document in question cannot be accepted as the genuine Will of the deceased Sangappa;
and there was no reason for the High Court to remand the case to the Trial Court.
Accordingly, and in view of the above, this appeal fails and is, therefore, dismissed
while leaving the parties to bear their own costs throughout. Appeal dismissed

for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the
provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally
without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court
proceeds on a ground entirely different from that on which the Trial Court had proceeded….25.4. A
conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the
powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course
for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit
finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is
considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains
trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand
merely elongates the life of the litigation without serving the cause of justice. An order of remand only on
the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court
may not be considered proper in a given case because the First Appellate Court itself is possessed of
jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities
which may justify an order of remand or where remand would be rather necessary depending on the facts
and the given set of circumstances of a case…25.4.1. The decision cited by the learned Counsel for the
appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought
to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit
against the Government and local body seeking declaration of title, perpetual injunction and for recovery
of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that
the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents
and they were entitled to get the encroachment removed; and it was also held that the Government should
acquire the land and pay the market value of the land to the appellant. Such part of the decree of the Trial
Court was not challenged by the defendants but as against the part of the decision of the Trial Court which
resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant
preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the
appellant but proceeded to dismiss the entire suit with the finding that the plaintiff-appellant had failed to
prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the
given circumstances, this Court observed that when the High Court held that the appellant was not able to
prove his title to the suit land due to non-examination of his vendor, the proper course for the High Court
was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his title by
adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that
for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial
Court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the
encroachment removed as also to get the market value of the land. Such cases where re-trial is considered
necessary because of any particular reason and more particularly for the reason that adequate opportunity
of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases
where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It
also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to
fill-up the lacuna in its case.25.5. It gets perforce reiterated that the occasion for remand would arise only
when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the
Appellate Court….25.6. The present case had clearly been the one where the parties had adduced all their
evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were

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 Questioned Document and Proving of a Will (Documentary Evidence)
Dhanpat v Sheo Ram (deceased), through Lrs. and others 121
Citation : 2020 Indlaw SC 266
Principles and Law established
Will – Documentary Evidence
The challenge in the present appeal is to an order passed by the High Court of Punjab &
Haryana on 27th March, 2014 whereby the concurrent findings of fact recorded by both
the courts below were set aside and the suit filed by the respondent-plaintiff was
decreed.
Question before the HC as substantial questions of Law
The High Court has framed the following two substantial questions of law:
"1. Whether the Will dated 30.4.1980 Ex.D-3 was surrounded by suspicious
circumstances and due execution thereof was also not proved, in accordance with the
requirements of Section 63 of the Succession Act;
3. Whether the learned courts below have completely misread, misconstrued and
misinterpreted the evidence available on record, particularly the Will Ex.D-3, because of

denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike
reason. As noticed, there had been several suspicious circumstances surrounding the Will in question,
some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The
High Court has meticulously examined the same evidence and the same circumstances and has come to a
different conclusion that appears to be sound and plausible and does not appear suffering from any
infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial
Court. The contention in this regard is required to be, and is, rejected.
121 Bench : Hemant Gupta, L. Nageswara Rao; The Judgment was delivered by : Hemant Gupta, J.

323
which the impugned judgments cannot be sustained."
Cases Referred
 Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors. (2016) 6 SCC 157
 M. Ehtisham Ali for himself and in place of M. Sakhawat Ali, since deceased v.
Jamna Prasad, since deceased & Ors. AIR 1922 PC 56
 Aher Rama Gova & Ors. v. State of Gujarat (1979) 4 SCC 500 1979 Indlaw SC 434
 Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001) 3 SCC 1 2001 Indlaw SC
412
 Girja Datt v. Gangotri [AIR 1955 SC 346 1955 Indlaw SC 124, 351]
 Shiam Sunder Singh v. Jagannath Singh [54 MLJ 43]
 N. Kamalam (Dead) & Anr. v. Ayyasamy & Anr. (2001) 7 SCC 503
 Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 2002 Indlaw SC
1504
 Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead) by LRs. & Ors.
(1995) 4 SCC 459 1995 Indlaw SC 1215
 Ved Mitra Verma v. Dharam Deo Verma (2014) 15 SCC 578
 Leela Rajagopal & Ors. v. Kamala Menon Cocharan & Ors.(2014) 15 SCC 570
Facts of the Case
The admitted facts are that one Misri was the grandfather of the Plaintiff-Sheo Ram and
defendant No.5-Sohan Lal and defendant Nos.7-9 were his granddaughters. Chandu
Ram was the father of the plaintiff and defendant Nos.5, 7-9 and the husband of Chand
Kaur had inherited the suit land from his father, Misri. The plaintiff filed a suit for
declaration that he along with his mother, Chand Kaur and his sisters, defendants Nos.
7-9, were the owners and in possession of equal shares of the suit land measuring 489
kanals 4 marlas. He asserted that he belonged to the Jat community and was governed
by Punjab Customary Law. Further, that his brother, defendant No. 5, got a Will dated
30th April, 1980 executed in favour of his sons, from Chandu Ram. Such a Will
contravened Jat Customary Law and was the result of fraud and misrepresentation.
Defendant No.5 and his sons, the beneficiaries under the Will filed a common written
statement and asserted that the custom had been abrogated after passing of the Hindu
Succession Act, 1956 for short, 'Act' and that Chandu Ram had separated all his sons

324
during his life time and given sufficient amount to his daughters, defendant Nos.7-9, in
the shape of dowry and other ceremonial and customary festivities. In this regard,
sufficient land had also been given to the plaintiff, therefore, there was no Joint Hindu
Family. The Will had been executed by Chandu Ram out of his natural love and
affection and was without any inducement or fraud or misrepresentation.
The learned trial court framed as many as 12 issues but for the purpose of deciding the
present appeal, Issue Nos. 1, 3 and 7 are relevant which read as under:
"1. Whether the plaintiff and the proforma defendants are the owners and in possession
of the property in dispute?
xx xx xx
3. Whether the Will dated 30.4.1980 was validly executed by Chandu Ram in favour of
defendants No. 1 to 4?
xx xx xx
7. Whether deceased Chandu had separated all his sons during his life time and had
given sufficient amount to his daughters in the shape of dowry etc. and land to his sons
as alleged in preliminary objection no. 5 of the written statement? If so to what effect?"
In respect of Issue No. 7 relating to the partition of the property by Chandu Ram, the
defendants relied upon a judgment and decree in a suit filed by the Plaintiff-Sheo Ram
and defendant No.5, Sohan Lal against their father Chandu Ram. Chandu Ram admitted
the fact of partition and that a judgment (Ex.D-21) and decree (Ex.D-22) to this effect
was passed. Thereafter, a mutation was also sanctioned. Chandu Ram had filed a suit for
permanent injunction to the effect that the property in dispute fell to his share while the
defendant (present plaintiff) was given 50 acres of land situated in Village Gawar, 151/2
acres of land in Village Bairan, 10 acres of land in Village Hariawas and 6 acres of land
in Village Baliali, totaling 811/2 acres. It was also pleaded that the defendant therein
sold 50 acres of land of Village Gawar and 151/2 acres of land of Village Bairan after
this partition. The defendant therein asserted that the properties mentioned above were
purchased by him from his exclusive funds and, therefore, he has right to sell the same.
The certified copy of judgment and decree are Ex. D-17 and D-18. Therefore, the
learned trial court held that Chandu Ram had separated his sons during his life time and
had settled his daughters as well. Such findings were affirmed by the learned First

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Appellate Court.
In respect of Issue No. 3, the learned trial court held that the Will is duly proved on the
basis of statement of DW-3 Maha Singh, an attesting witness, DW-4 Advocate D.S.
Panwar, the scribe, DW-5 Sohan, the defendant and Krishan Kant, Registration Clerk as
DW 2. The Court noticed that DW-4 D.S. Panwar was Chandu Ram's advocate in the
cases before the Civil Court who had scribed the Will at his instance and Maha Singh
had put his signatures on the original Will in his presence. DW-4 D.S. Panwar deposed
that the original Will was stated to have been lost and that he was not sure as to whether
Ex. D-3 was the correct photocopy of the original Will. Chand Kaur, wife of Chandu
Ram was examined as PW-1 who had deposed that Chandu Ram had ousted her from
his house. Therefore, the Court found that it was natural for Chandu Ram to execute the
Will in favour of Defendant No.5, Sohan Lal's sons. The Court did not find any merit in
the argument that a deviation from natural succession will make the Will doubtful. It
was also held that the scribe cannot be treated as an attesting witness but that since two
attesting witnesses have signed the Will, the execution of the Will is proved by
examining one of the attesting witnesses. With the aforesaid findings, the learned trial
court dismissed the suit filed by the plaintiff.
First Appeal
The learned First Appellate Court affirmed the findings recorded by the trial court and
dismissed the suit filed by the plaintiff vide judgment and decree dated 11th May, 1987.
It was held that the Will had been executed by Chandu Ram in favour of the defendant
Nos. 1 to 4, i.e. the sons of Defendant No.5, Sohan Lal and was not surrounded by
suspicious circumstances.
Second Appeal
In second appeal, the learned High Court allowed the appeal filed by the plaintiff
holding that the Will dated 30th April, 1980 was surrounded by suspicious
circumstances. The substantial question of law framed by the High Court was only to
this effect. It was argued by the defendants that the finding that the Will stands executed
and was not surrounded by suspicious circumstances and has been illegally interfered by
the High Court.
The High Court had held that only Maha Singh was examined as attesting witness as

326
DW-3 whereas the second attesting witness Azad Singh was not produced, therefore, the
Will was not proved. It also held that the Will had been completely misread,
misconstrued and misinterpreted. The High Court found that in the Will, there was no
mention of Chandu Ram's wife and the other son i.e. the Plaintiff, and therefore, such
fact was a suspicious circumstance to doubt the genuineness of the Will. The High Court
referred to the judgment of the trial court dated 7th December, 1981 filed by Chandu
Ram to prove that the house and agricultural land were ancestral property though no
substantial question of law on the said aspect relating to the nature of land was framed.
In fact, the judgment dated 7th December 1981 (Ex-D-17) in the suit filed by Chandu
Ram, has been produced by the respondent with the present appeal. A perusal of the
judgment shows that Chandu Ram had asserted partition of the property about 8-10
years back. The Plaintiff-Sheo Ram had asserted that he is in joint possession of the
property. In the said suit, a decree for permanent injunction was passed restraining the
defendant from interfering with the disputed property after returning a finding on Issue
No. 5 that a family partition had taken place and that the property cannot be said to be
joint property of the parties. The High Court has not referred to the findings recorded in
the suit filed by the Plaintiff-Sheo Ram.
It may be noticed that in view of Constitution Bench judgment of this Court in
Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors. (2016) 6 SCC 157 2016
Indlaw SC 196, substantial question of law may not be required to be framed in Punjab
and Haryana but still, the finding of fact recorded cannot be interfered with even in
terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by
this Court in Randhir Kaur v. Prithvi Pal Singh and Others Civil Appeal No. 5822 of
2019 decided on 24th July, 2019, wherein, the scope for interference in the second
appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and
Haryana was delineated and held as under122:

122 "16. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to
interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable
the error may seem to be. The findings of fact will also include the findings on the basis of documentary
evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or
procedure and not merely an error on a question of fact.
17. In view of the above, we find that the High Court could not interfere with the findings of fact recorded
after appreciation of evidence merely because the High Court thought that another view would be a better
view. The learned first appellate court has considered the absence of clause in the first power of attorney
to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness."

327
In support of the findings recorded by the High Court, Mr. Manoj Swarup, learned
senior counsel for the plaintiff-respondent argued that in terms of Section 69 of the
Indian Succession Act, 1925, a Will is required to be attested by two witnesses who
have seen the testator and in which the testator and two of the attesting witnesses sign in
presence of each other. It is argued that Maha Singh, DW-3 had not deposed that all
three were present at the same time, therefore, the finding of the High Court has to be
read in that context, when the Will was found to be surrounded by suspicious
circumstances as the second attesting witness was not examined. It is also argued that
the original Will has not been produced and no application for leading secondary
evidence was filed. Therefore, the secondary evidence could not be led by the defendant
to prove the execution of the Will.
Section 65(c) of the Indian Evidence Act, 1872 for short, 'Evidence Act' is applicable in
the facts of the present case as the defendants asserted that the original Will is lost. The
Section 65 reads as under123:
The defendants produced a certified copy of the Will obtained from the office of the
Sub-Registrar. The defendants also produced the photocopy of the Will scribed by DW
4-D.S. Panwar.
In a judgment reported as M. Ehtisham Ali for himself and in place of M. Sakhawat Ali,
since deceased v. Jamna Prasad, since deceased & Ors. AIR 1922 PC 56, the appellants-
plaintiffs filed a suit on the basis of a sale deed. During trial, the stand of the plaintiffs
was that the original sale deed was lost but since it was registered, secondary evidence
by way of a certified copy prepared by the office of the Registrar was produced. It was
not disputed that the copy produced was not the correct copy of the registered document.
The suit was dismissed for the reason that the plaintiffs have not succeeded in

123"65. Cases in which secondary evidence relating to documents may be given. - Secondary evidence
may be given of the existence, condition, or contents of a document in the following cases:-
(a) xx xx xx
(b) xx xx xx
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) xx xx xx
(e) xx xx xx
(f) xx xx xx
(g) xx xx xx
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
xx xx xx"

328
satisfactorily establishing the loss of the original sale deed. The Court held as under124:
In another judgment reported as Aher Rama Gova & Ors. v. State of Gujarat (1979) 4
SCC 500 1979 Indlaw SC 434, the secondary evidence of dying declaration recorded by
a Magistrate was produced in evidence. This Court found that though the original dying
declaration was not produced but from the evidence, it is clear that the original was lost
and was not available. The Magistrate himself deposed on oath that he had given the
original dying declaration to the Head Constable whereas the Head Constable deposed
that he had made a copy of the same and given it back to the Magistrate. Therefore, the
Court found that the original dying declaration was not available and the prosecution
was entitled to give secondary evidence which consisted of the statement of the
Magistrate as also of the Head Constable who had made a copy from the original. Thus,
the secondary evidence of dying declaration was admitted in evidence, though no
application to lead secondary evidence was filed.
Even though, the aforesaid judgment is in respect of the loss of a sale deed, the said
principle would be applicable in respect of a Will as well, subject to the proof of the
Will in terms of Section 68 of the Evidence Act. In the present case as well, the Will
was in possession of the beneficiary and was stated to be lost. The Will is dated 30th
April, 1980 whereas the testator died on 15th January, 1982. There is no cross-
examination of any of the witnesses of the defendants in respect of loss of original Will.
Section 65 of the Evidence Act permits secondary evidence of existence, condition, or
contents of a document including the cases where the original has been destroyed or lost.
The plaintiff had admitted the execution of the Will though it was alleged to be the
result of fraud and misrepresentation. The execution of the Will was not disputed by the
plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the
evidence of the defendants is that the original Will was lost and the certified copy is
produced, the defendants have made out sufficient ground for leading of secondary
evidence.

124 "It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in
whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being
untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in
addition he was not cross-examined, this result would follow all the more. There is no doubt that the deed
was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar,
before registering, to examine the grantor, or someone whom he is satisfied is the proper representative of
the grantor, before he allows the deed to be registered."

329
This Court in Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001) 3 SCC 1 2001
Indlaw SC 412, deprecated the practice in respect of the admissibility of any material
evidence, where the Court does not proceed further without passing order on such
objection. It was held that all objections raised shall be decided by the Court at the final
stage125.
This Court in Z. Engineers Construction Pvt. Ltd. & Anr. v. Bipin Bihari Behera &
Ors.2020 SCC OnLine SC 184, held that even in respect of deficiency of stamp duty in
the State of Orissa where a question arose as to whether possession had been delivered
in pursuance of a registered power of attorney, the same was a question of fact which
was required to be decided after the evidence was led.
There is no requirement that an application is required to be filed in terms of Section
65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may
choose to file an application which is required to be considered by the trial court but if
any party to the suit has laid foundation of leading of secondary evidence, either in the
plaint or in evidence, the secondary evidence cannot be ousted for consideration only
because an application for permission to lead secondary evidence was not filed.
Now, coming to the question as to whether the defendants have proved the due
execution of the Will, reference will be made to a judgment reported as H. Venkatachala
Iyengar v. B.N. Thimmajamma & Ors.AIR 1959 SC 443 1958 Indlaw SC 127. This
Court while considering Section 63 of the Act and Section 68 of the Evidence Act laid
down the test as to whether the testator signed the Will and whether he understood the
125 The Court held as under:
"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised
during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial
court can make a note of such objection and mark the objected document tentatively as an exhibit in the
case (or record the objected part of the oral evidence) subject to such objections to be decided at the last
stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable
the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no
illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency
of stamp duty of a document the court has to decide the objection before proceeding further. For all other
objections the procedure suggested above can be followed).
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court,
during evidence-taking stage, would not be wasted on account of raising such objections and the court can
continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that
the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against
the final judgment of the trial court, can determine the correctness of the view taken by the trial court
regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We
may also point out that this measure would not cause any prejudice to the parties to the litigation and
would not add to their misery or expenses."

330
nature and effect of the dispositions in the Will. The Court held as under126:
This Court in a judgment reported as Seth Beni Chand (since dead) now by LRs. v. Smt.
Kamla Kunwar & Ors.(1976) 4 SCC 554 1976 Indlaw SC 189 held that onus probandi
lies in every case upon the party propounding a Will, and he must satisfy the conscience
of the court that the instrument so propounded is the last will of a free and capable
testator127.
In view of the aforesaid judgments, at least one of the attesting witnesses is required to
be examined to prove his attestation and the attestation by another witness and the
testator. In the present case, DW-3 Maha Singh deposed that Chandu Ram had executed
his Will in favour of his four grandsons and he and Azad Singh signed as witnesses. He
deposed that the testator also signed it in Tehsil office. He and Azad Singh were also
witnesses before the Sub-Registrar. In the cross-examination, he stated that he had come
to Tehsil office in connection with other documents for registration. He deposed that
Ex.D-4-the Will, was typed in his presence. He denied the question that no Will was
executed in his presence. There was no cross-examination about his not being present
before the Sub-Registrar. Once the Will has been proved then the contents of such
document are part of evidence. Thus, the requirement of Section 63 of the Act and
Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in

126 "18....Thus the question as to whether the will set up by the propounder is proved to be the last will
of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the decision of these questions which determines the
nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will
has to be proved like any other document except as to the special requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof
of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the
usual test of the satisfaction of the prudent mind in such matters."
127 The Court held as under:
"9. The question which now arises for consideration, on which the Letters Patent Court differed from the
learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved
satisfactorily. It is well-settled that the onus probandi lies in every case upon the party propounding a will,
and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free
and capable testator. [See Jarman on Wills (8th Edn., p. 50) and H. Venkatachala Iyengar v. B.N.
Thimmajamma, AIR 1959 SC 443 1958 Indlaw SC 127 : 1959 Supp (1) SCR 426] By "free and capable
testator" is generally meant that the testator at the time when he made the will had a sound and disposing
state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if
the propounder leads evidence to show that the will bears the signature or mark of the testator and that the
will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness
and indeed the will cannot be used as evidence unless at least one attesting witness, depending on
availability, has been called for proving its execution as required by Section 68 of the Evidence Act...."

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a parrot like manner the language of Section 68 of the Evidence Act. It is a question of
fact in each case as to whether the witness was present at the time of execution of the
Will and whether the testator and the attesting witnesses have signed in his presence.
The statement of the attesting witness proves the due execution of the Will apart from
the evidence of the scribe and the official from the Sub-Registrar's office.
Mr. Swarup referred to judgment of this Court reported as M.L. Abdul Jabbar Sahib v.
M.V. Venkata Sastri & Sons & Ors.(1969) 1 SCC 573 1969 Indlaw SC 410. The
primary issue discussed therein was a summary suit for recovery wherein an application
for leave to defend was granted on the condition of furnishing a security for a sum of Rs.
50,000/-. The question examined was whether the security bond is attested by the two
witnesses and, if not, whether it was invalid. While considering the attestation, this
Court discussed the question of attestation of witnesses as well and held as under128:
In the aforesaid case, it had been held that the person who put his name under the word
"scribe" was not an attesting witness, further that the legatees who had put their
signatures on the Will were not attesting witnesses. In the present case, Maha Singh and
Azad Singh have signed the Will as attesting witnesses not only at the time of execution
but also at the time of registration before the Sub-Registrar. Therefore, the said
judgment is not helpful to the argument raised.
Mr. Swarup relied on judgment reported as N. Kamalam (Dead) & Anr. v. Ayyasamy &
Anr. (2001) 7 SCC 503 2001 Indlaw SC 20055 that in the absence of Maha Singh
deposing that he is the attesting witness along with Azad Singh, his statement cannot be
treated to be that of attesting witness. We do not find any merit in the said argument. In
the aforesaid case, it was the scribe who was said to be the attesting witness. This Court

128 "8. "In every case the Court must be satisfied that the names were written animo attestandi", see
Jarman on Wills, 8th Edn., p. 137. Evidence is admissible to show whether the witness had the intention to
attest. "The attesting witnesses must subscribe with the intention that the subscription made should be
complete attestation of the will, and evidence is admissible to show whether such was the intention or
not," see Theobald on Wills, 12th Edn., p. 129. In Girja Datt v. Gangotri [AIR 1955 SC 346 1955 Indlaw
SC 124, 351], the Court held that the two persons who had identified the testator at the time of the
registration of the will and had appended their signatures at the foot of the endorsement by the sub-
Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". In Abinash
Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR 56 Cal 598] it was held that a person who had
put his name under the word "scribe" was not an attesting witness as he had put his signature only for the
purpose of authenticating that he was a "scribe". In Shiam Sunder Singh v. Jagannath Singh [54 MLJ 43],
the Privy Council held that the legatees who had put their signatures on the will in token of their consent
to its execution were not attesting witnesses and were not disqualified from taking as legatees."

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held as under129:
The said judgment has no applicability inasmuch as Maha Singh is the attesting witness
and has been examined as such by the defendant.
Mr. Swarup further relied upon a judgment of this Court reported as Janki Narayan
Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 2002 Indlaw SC 1504 to contend
that if one attesting witness is examined, he has to depose about the presence of the
second attesting witness by relying upon the following findings130:
We do not find any merit in the said argument as well. The statement of Maha Singh
produced on record shows that he along with Azad Singh, the other attesting witness and
the testator had signed the Will. In the cross-examination, the statement that he has
signed the Will had not been disputed nor that the testator or the other attesting witness
was not present at that time. Therefore, the ratio of the aforesaid judgment is not
applicable to the facts of the present case. In fact, it is finding of fact, recorded by the
First Appellate Court.
In respect of an argument that some of the natural heirs were not even mentioned in the
Will, therefore, the Will is surrounded by suspicious circumstances is again not tenable.
Mr. Rishi Malhotra, learned counsel for the appellant referred to the judgment of this
Court reported as Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead) by
LRs. & Ors.(1995) 4 SCC 459 1995 Indlaw SC 1215 wherein it had been held that the

129 "27....The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness
to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be
transposed in favour of the writer, rather goes against the propounder since both the witnesses are named
therein with detailed address and no attempt has been made to bring them or to produce them before the
court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the
document does not by itself be taken to be the proof of due attestation unless the situation is so expressed
in the document itself - this is again, however, not the situation existing presently in the matter under
consideration. Some grievance was made before this Court that sufficient opportunity was not being made
available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been
made to bring the attesting witnesses who are obviously available."
130 "10...The one attesting witness examined, in his evidence has to satisfy the attestation of a will by
him and the other attesting witness in order to prove there was due execution of the will. If the attesting
witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation
of the will by the other witness also it falls short of attestation of will at least by two witnesses for the
simple reason that the execution of the will does not merely mean the signing of it by the testator but it
means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where
one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the
due execution of the will then the other available attesting witness has to be called to supplement his
evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove
the attestation of the will by the other witness there will be deficiency in meeting the mandatory
requirements of Section 68 of the Evidence Act."

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Will was executed for the exclusion of the natural heirs. The suspicious circumstances
found by the High Court to deprive the natural heirs by the testatrix was not found to be
sufficient. The Court held as under131:
Mr. Malhotra referred to another judgment of this Court reported as Ved Mitra Verma v.
Dharam Deo Verma (2014) 15 SCC 578 wherein this Court held that the exclusion of
the children of the testator and execution of the Will for the sole benefit of one of the
sons by the testator, is not a suspicious circumstance. This Court held as under132:
Mr. Malhotra also referred to the judgment of this Court reported as Leela Rajagopal &
Ors. v. Kamala Menon Cocharan & Ors.(2014) 15 SCC 570 wherein it was held that it is
the overall assessment of the Court on the basis of the unusual features appearing in the
Will or the unnatural circumstances surrounding its execution, that justifies a close
scrutiny of the same before it can be accepted. Herein, the cumulative effect of the
unusual features and circumstances surrounding the Will, would weigh upon the court in
the determination required to be made by it. The judicial verdict will be based on the
consideration of all the unusual features and suspicious circumstances put together and
not upon the impact of any single feature that may be found in a Will or a singular
circumstance that may appear from the process leading to its execution. The Court held
as under133:
131 "4. As to the first circumstance, we would observe that this should not raise any suspicion, because
the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs
would be debarred in every case of will; of course, it may be that in some cases they are fully debarred
and in others only partially. As in the present case, the two executors are sons of a half-blood brother of
Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not
have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under
the will."
132 "8. The exclusion of the other children of the testator and the execution of the will for the sole benefit
of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-
acquired, it is the will of the testator that has to prevail."
133 "13. A will may have certain features and may have been executed in certain circumstances which
may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural
circumstances surrounding its execution will definitely justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of
the unusual features and circumstances which would weigh with the court in the determination required to
be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the
unusual features and suspicious circumstances put together and not on the impact of any single feature
that may be found in a will or a singular circumstance that may appear from the process leading to its
execution or registration. This, is the essence of the repeated pronouncements made by this Court on the
subject including the decisions referred to and relied upon before us.
14. In the present case, a close reading of the will indicates its clear language, and its unambiguous
purport and effect. The mind of the testator is clearly discernible and the reasons for exclusion of the sons
is apparent from the will itself..."

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In view of the above, we find that the High Court has clearly erred in law in interfering
with the concurrent findings of fact recorded by both the Courts below. The entire
judgment runs on misconception of law and is, therefore, not sustainable in law. The
same is set aside and the decree of the First Appellate Court is restored. Accordingly, the
appeal is allowed and the suit is dismissed.
Appeal allowed

Burden of Proof
The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence
Act, which reads as under:-
“Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that those
facts exist. When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person”.
Burden of proof is used in three ways :
(i) to indicate the duty of bringing forward evidence in support of a proposition at
the beginning or later;
(ii) to make that of establishing a proposition as against all counter evidence; and
(iii) an indiscriminate use in which it may mean either or both of the others. The
elementary rule is Section 101 is inflexible. In terms of Section 102 the initial
onus is always on the plaintiff and if he discharges that onus and makes out a

335
 case which entitles him to a relief, the onus shifts to the defendant to prove
those circumstances, if any, which would disentitle the plaintiff to the same.

Burden of Proof and Onus of Proof -Distinction

Anil Rishi v Gurbaksh Singh
2006 Indlaw SC 192; (2006) 5 SCC 558; AIR 2006 SC 1971134
Cases Referred-
1. Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR
2003 SC 4351
2. R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and
Anr., 2004 (6) SC 442
3. A. Raghavamma v A. Chenchamma, 1963 Indlaw SC 337
Facts of the Case
The defendant in the suit is the appellant herein. He is before us aggrieved by a judgment
and order dated 14th December, 2005 passed by the Punjab and Haryana High Court at
Chandigarh in Civil Revision No. 1077 of 2005 dismissing his revision application arising
out of an order dated 9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh. An
agreement to sell dated 26.03.1990 was entered into by and between the parties hereto in
relation to the premises bearing House No. 86, situate in Sector 18A, Chandigarh. A sale
deed was executed pursuant to the said agreement to sell on 27.03.1991. However, a suit
for declaration was filed by the respondent herein alleging that the said sale deed dated
26.3.1991 was a forged, fabricated and was a void document. The appellant filed his
written statement in the said suit denying or disputing the allegations contained therein. On
the pleadings of the parties herein, issues were framed by the learned trial Judge including
the following:-
“Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?” An
application was filed by the respondent for deletion of the said issue and reframe the same.
The learned trial Judge reframed the issue allowing the said application in terms of order
dated 9.2.2005. Reframed issue No. 2 reads as under:-

134 S.B. Sinha and P.K. Balasubramanyan, JJ

336
“Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?" The
learned Trial Judge while passing its order dated 09.02.2005 held:-
“Normally the initial burden of proving the execution of a document when it is denied must
rest upon the person alleging its execution. Here in the present case the plaintiff has denied
the execution of the sale deed. The onus to prove an issue has to be discharged affirmative.
"It is always difficult to prove the same in negative". When Onus shifts on the other side to
negate the existence of such a fact”.
A revision application filed on behalf of the appellant herein against the said order was
dismissed by the High Court by reason of the impugned order stating:-
“In the present case, it is the case of the plaintiff- respondent that he had not executed any
sale deed dated 26.3.1991 in favour of the defendant-appellant and it was a forged and
fabricated document. On the other hand, it is the case of the defendant that the said sale
deed is valid and genuine document. The sale deed itself is in possession of the defendant.
In such a situation, the defendant is in a dominating position to prove the document
affirmatively, whereas it will be difficult for the plaintiff to prove the same. Negatively, who
is not even in possession of the sale deed in question. After the defendant proves the
validity and genuineness of the sale deed, the turn will come of the plaintiff to prove the
document negatively. In this view of the matter, I am of the considered opinion that the
trial court has rightly re- framed issue No. 2 and put the onus on the defendant to prove
whether the same is valid and genuine document. There is no infirmity in the order dated
9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh”.
In the impugned judgment, the High Court proceeded on the basis that although generally it
is for the plaintiff to prove such fraud, undue influence or misrepresentation, but when a
person is in a fiduciary relationship with another and the latter is in a position of active
confidence, the burden of proving the absence of fraud, misrepresentation or undue
influence is upon the person in the dominating position….In terms of the said provision,
the burden of proving the fact rests on the party who substantially asserts the affirmative
issues and not the party who denies it. The said rule may not be universal in its application
and there may be exception thereto. The learned trial Court and the High Court proceeded
on the basis that the defendant was in a dominating position and there had been a fiduciary
relationship between the parties. The appellant in his written statement denied and disputed

337
the said averments made in the plaint. Pleading is not evidence, far less proof. Issues are
raised on the basis of the pleadings. The defendant-appellant having not admitted or
acknowledged the fiduciary relationship between the parties, indisputably, the relationship
between the parties itself would be an issue. The suit will fail if both the parties do not
adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the
burden of proof would be on the party who asserts the affirmative of the issue and it rests,
after evidence is gone into, upon the party against whom, at the time the question arises,
judgment would be given, if no further evidence were to be adduced by either side.
The fact that the defendant was in a dominant position must, thus, be proved by the
plaintiff at the first instance. The executant was more than 100 years of age at the time of
alleged registration of the deed in question. He was paralytic and furthermore his mental
and physical condition was not in order. He was also completely bed-ridden and though his
left thumb impression was taken, there was no witness who could substantiate that he had
put his thumb impression. It was on the aforementioned facts, this Court opined:- “The
onus to prove the validity of the deed of settlement was on the defendant No. 1. When
fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the
burden is on him to prove such fraud, undue influence or misrepresentation. But, when a
person is in a fiduciary relationship with another and the latter is in a position of active
confidence the burden of proving the absence of fraud, misrepresentation or undue
influence is upon the person, in the dominating position, he has to prove that there was fair
play in the transaction and that the apparent is the real, in other words, that the
transaction is genuine and bona fide. In such a case the burden of proving the good faith of
the transaction is thrown upon the dominant party, that is to say, the party who is in a
position of active confidence. A person standing in a fiduciary relation to another has a
duty to protect the interest given to his care and the Court watches with jealously all
transactions between such persons so that the protector may not use his influence or the
confidence to his advantage. When the party complaining shows such relation, the law
presumes everything against the transaction and the onus is cast upon the person holding
the position of confidence or trust to show that the transaction is perfectly fair and
reasonable, that no advantage has been taken of his position”.

338
This Court in arriving at the aforementioned findings referred to Section 111 of the Indian
Evidence Act which is in the following terms:-
“Sec. 111. Proof of good faith in transactions where one party is in relation of active
confidence. Where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of proving
the good faith of the transaction is on the party who is in a position of active confidence”.
But before such a finding is arrived at, the averments as regard alleged fiduciary
relationship must be established before a presumption of undue influence against a person
in position of active confidence is drawn. The factum of active confidence should also be
established. Section 111 of the Evidence Act will apply when the bona fides of a
transaction is in question but not when the real nature thereof is in question. The words
‘active confidence’ indicate that the relationship between the parties must be such that one
is bound to protect the interests of the other.
Thus, point for determination of binding interests or which are the cases which come within
the rule of active confidence would vary from case to case. If the plaintiff fails to prove the
existence of the fiduciary relationship or the position of active confidence held by the
defendant- appellant, the burden would lie on him as he had alleged fraud. The trial Court
and the High Court, therefore, in our opinion, cannot be said to be correct in holding that
without anything further, the burden of proof would be on the defendant. The learned trial
Judge has misdirected himself in proceeding on the premise “it is always difficult to prove
the same in negative a person/party in the suit”.
Difficulties which may be faced by a party to the Lis can never be determinative of the
question as to upon whom the burden of proof would lie. The learned Trial Judge,
therefore, posed unto himself a wrong question and arrived at a wrong answer. The High
Court also, in our considered view, committed a serious error of law in misreading and
misinterpreting Section 101 of the Indian Evidence Act. With a view to prove forgery or
fabrication in a document, possession of the original sale deed by the defendant, would not
change the legal position.
A party in possession of a document can always be directed to produce the same. The
plaintiff could file an application calling for the said document from the defendant and the
defendant could have been directed by the learned Trial Judge to produce the same. There

339
is another aspect of the matter which should be borne in mind. A distinction exists between
a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes
importance in the early stage of a case. The question of onus of proof has greater force,
where the question is which party is to begin.
“In a suit for recovery of possession based on title it is for the plaintiff to prove his title
and satisfy the court that he, in law, is entitled to dispossess the defendant from his
possession over the suit property and for the possession to be restored to him.
The essential distinction between burden of proof and onus of proof: burden of proof lies
upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such
a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a
suit for possession based on title once the plaintiff has been able to create a high degree of
probability so as to shift the onus on the defendant it is for the defendant to discharge his
onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to
have been discharged so as to amount to proof of the plaintiff's title”.
For the reasons aforementioned, the impugned judgment cannot be sustained. The order
reframing the issue is set aside thus reviving the issue originally framed. The Trial Court
will be free to frame any additional issue if it is felt necessary. The appeal is allowed as
above. Appeal allowed

340
 Burden of Proof
Amrit Banaspati Co. Limited v Union Of India And Ors.
1995 Indlaw SC 1754; (1995) 3 SCC 335; AIR 1995 SC 1340135
Cases Referred
Rice and Oil Mills and others vs. State of Andhra Pradesh etc. (AIR 1964 SC 1781)
Gauri Shanker and ors. v. Union of India ors. etc. (1994 (6) SCC 349),
Atiabari Tea Co. Ltd. v. Me State of Assam & Anr. AIR 1961SC 232
Automobile Transport Lid. etc. v. State of Rajasthan & Ors.(AIR 1962 SC 1406),
Andhra Sugars Lid. & anr. vs. State of Andhra Pradesh and-Ors. (AIR 1968 SC 599)
State of Madras vs. N.K. Nataraja Mudaliar (AIR 1969 SC 147)
M/s. Video Electronics Pvt. Ltd. v. State of Punjab & anr. (AIR 1990 SC 820).
State of Madras v. N.K Nataraja Mudaliar (AIR 1969 SC 1 47),
G.K Krishnan v. State of Tamil Nadu (AIR 1975 SC 583)
Carmichael v. Southern Coal & Coak Co., (1936) 301 US 495)
R.K Garg v. Union of India and Ors. (AIR 1981 SC 2138)
Facts of the Case
The appellant, petitioner in Civil Writ Petition No. 144 of 1972, High Court of Delhi, has
filed this appeal, on a certificate granted by the High Court u/art. 133(1) (a), (b) & (c) of
the Constitution of India, against the Judgment of the High Court dated
15.September.1972. The appellant - company has its registered office at Ghaziabad in the
State of Uttar Pradesh. It carries on the business of manufacturing and dealing in Vanaspati
and its products. It has a factory at Ghaziabad. The products are carried on by railway
and/or by road into the Union Territory of Delhi. The Delhi Municipal Corporation Act,
1957 (Act 66 of 1957), hereinafter referred to as 'the Act', was enacted by Parliament and it
came into force on 28.October.1957. S. 178 of the said Act provides for the levy of
terminal tax at the rates specified in the Tenth Schedule to the Act on all goods carried by
railway or road into the Union Territory of Delhi from any place outside Delhi. Under the
said provision, the Delhi terminal tax agency realised a sum of Rs. 2,95,396.01 for the
years 1969, 1970 & 1971 as terminal tax from the petitioner on vanaspati products carried
by railway and/or road into the Union Territory of Delhi. Alleging that s. 178 of the Act

135 K.S. Paripoornan and J.S. Verma

341
directly and immediately impedes the movement of goods from one place to another,
restricts trade, commerce and intercourse and also discriminates between goods
manufactured within the Union Territory of Delhi and the goods manufactured outside the
said territory, the appellant - company prayed for a declaration that s. 178 of the Act is
ultravires of Art. 301 of the Constitution of India, and for the issuance of a writ of
prohibition or direction directing the respondents to forebear from realising any terminal
tax from the petitioner, and for a refund of the aforesaid sum of Rs. 2,95,396.01 realised by
the respondents as terminal tax from the petitioner. The petitioner stated that the terminal
tax chargeable under S. 178 was not referable to any service rendered or to be rendered by
any railway or road transport and was not protected by Articles 302, 303 and 304 of the
Constitution of India. It is alleged that the petitioner wrote letters on 18.November.1971
and 20.December.1971, requesting the respondents the Union of India and others, to refrain
from levying and/or collecting any terminal tax u/s. 178. Since there was no response, the
appellant was constrained to file the writ petition and seek appropriate reliefs. A Division
Bench of the Delhi High Court by Judgment dated 15.September.1972, held that the levy of
tax under s. 178 of the Act is a direct and immediate restriction on trade and offends Art.
301 of the Constitution of India, It further held that the levy is neither regulatory nor
compensatory. The Division Bench also held that the said provision is saved by Art. 302 of
the Constitution of India. Though the scope of Arts. 303 and 305 was also discussed; the
Court did not consider it necessary to express any final view on the various pleas raised in
that behalf. The Court held that though s. 178 of the Act contravened Article 301, it is
saved by Art. 302 and the writ petition was dismissed. It is from the aforesaid Judgment
dated 15.September.1972, the petitioner has filed this Civil Appeal by certificate granted by
the High Court.
Contentions of the Counsels for the parties
We heard counsel for the appellant Sri, S. Ganesh and also counsel for the respondents Sri.
N. N. Goswami. Counsel for the appellant referred to the averments in paragraphs 3 and 7
of the writ petitions and the reply thereto by the respondents in paragraph 8 of its counter,
and contended that S. 178 of the Act discriminates between goods manufactured within the
Union Territory of Delhi and the goods manufactured outside the said territory. The goods
manufactured outside the said territory alone has to pay the terminal tax under the Act.

342
This, according to counsel for the appellant, is an impediment on the movement of goods
from the State of Haryana into the Union Territory for Delhi and discrimination is writ
large in the aforesaid provision.
Contention of the Respondent counsel
On the other hand, counsel for the respondent vehemently contended that apart from a
vague and general plea that the appellant is placed in a position of great disadvantage as
compared to other manufactures of vanaspati in Delhi, there is no proper pleadings and
proof or particulars on that score. It was also submitted that even on the hypothesis that s.
178 of the Act contravenes Art. 301 of the Constitution, it is saved by Art. 302 and there is
no infirmity as alleged….The first rule is that there is always a presumption in favour of
the Constitutionality of a statute and the burden is upon him who attacks it to show that
there has been a clear transgression of the Constitutional principles. This rule is based on
the assumption, judicially recognised and accepted, that the legislature understands and
correctly appreciates the needs of its own people. its laws are directed to problems made
manifest by experience and its discrimination are based on adequate grounds. The
presumption of constitutionality is indeed so strong that in order to sustain it the Court
may take into consideration matters of common knowledge matters of common reports the
history of the times and may assume every state of facts which can be conceived existing at
the time of legislation."
(a) there is always a presumption in favour of the Constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
Constitutional principles;
(b) it must be presumed that the Legislature understands and correctly appreciates the need
of its own people to problems made manifest by experience and that its discriminations are
based on adequate grounds
(c) in order to sustain the presumption of constitutionality the Court may take into
consideration matters of common knowledge, matters of common report, the history of the
times and may assume every state of facts which can be conceived existing at the time of
legislation.

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We scanned the entire pleadings in this case. Tested in the light of the above principles, we
are of opinion that there is no sufficient or specific or definite pleadings with particulars, to
state that s. 178 of the Act violates Art. 301 of the Constitution or is discriminatory.
Moreover, on facts, the presumptions which are applicable in the instant case as stated
above, have not been rebutted. On this short ground, the writ petition filed in the High
Court by the appellant should fall. There is also no doubt that exercise of the power to tax
may normally be presumed to be in the public interest. In this case the impugned tax law is
enacted by Parliament. There is a presumption that the imposition of the tax is in public
interest. That has not been offset by any contra material
Therefore, the Court must be aware of its own remoteness and lack of familiarity with the
local problems. Classification is dependent on peculiar needs and specific difficulties of
the community, The needs and the difficulties of a community are constituted out of facts
and information beyond the easy ken of the court." The above perspective has been restated
by the Constitution Bench in R.K Garg v. Union of India and Ors. (AIR 1981 SC 2138)
1981 Indlaw SC 372, which we have adverted to, in the earlier portion of this Judgment.
There is no merit in this appeal. It is dismissed. There shall be no order as to costs. Appeal
dismissed.

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 Burden of Proof
Narcinva V. Kamat and Anr. Etc. v Alfred Antonio Doe Martins and Ors.
1985 Indlaw SC 210; (1985) SCC (Cr) 274; (1985) 2 SCC 574136
Statement- A monopoly avoided its legally incurred liability on the wholly untenable
ground. That is the scenario in these appeals.
Facts of the Case
Oriental Fire and General Insurance Company Ltd., a nationalized company having the
monopoly of general insurance is the Fifth Respondent in the first appeal and the second
respondent in the second appeal. It would be referred to and 'insurance company'
hereinafter. An accident occurred on Praca de Jorge Barrete Road, Margao on May 17,
1976 around 10.30 A.M. in which one Sita Gomes and her sister-in-law Ida Menezes were
injured. Ida succumbed to her injuries and Sita Gomes recovered. The offending vehicle
was a pick-up van belonging to M/s. Narcinva V. Kamat, a firm carrying on business at
Margao, Goa. The vehicle was insured with the insurance company. Two petitions claiming
compensation came to be filed; one by the heirs of Ida and the other by Sita. The Motor
Accident Claims Tribunal (Tribunal for short) held that the driver of the van was
responsible for the accident as the van was being driven at the relevant time, rashly and
negligently. The Tribunal awarded Rs. 75,000 as compensation to the heirs of Ida and Rs.
3,000 to Sita. In the proceedings before the Tribunal, the Insurance Company, appeared and
contended that according to the terms of the contract of insurance as evidenced by the
policy of insurance, the vehicle can be driven either by a driver in the employment of the
insured or with the permission of the insured by one who holds a valid driving license. In
respect of this contention the Tribunal framed issue Nos. 7 and 8 in both the petitions in the
following terms;
“7. Whether the respondent No. 6 (insurance company) proves that there is no liability on
them as the respondent No. 2 Narcinva Kamat who was driving the vehicle involved in the
accident was not holding any effective driving license?
8. Whether the respondent No. 6 proves that under the provisions of Sec. 95 of the Motor
Vehicles Act and the policy in force their liability in any event is limited to the extent of Rs.

136 D.A. Desai and R.B. Misra, JJ

345
50,000 in all both in respect of this Claim Petition as well as other Claim Petition filed in
the same Tribunal on account of the same accident being Claim Petition Nos. 22-23/76
filed in the Tribunal on account of the same accident”.
The Tribunal answered both the issues in favour of the insurance company observing that
at the time of the accident the vehicle was being driven by appellant No. 2, the partner of
the firm, which was the owner of the vehicle and as the driver did not produce his driving
license, it must be held that the driver did not have a valid driving license.
Conclusion of the Tribunal:
In the absence of a valid driving license, there was a breach of the contract of insurance and
the insurance company was absolved from the liability under the policy of insurance.
Appeal to the High Court
The firm and its partner preferred two appeals before the Panaji Bench (Goa) of the High
Court of Bombay.
A Division Bench of the High Court agreed with the findings of the Tribunal and dismissed
the appeals.
Special leave before Supreme Court:
The scope of the appeals is very limited. The appeals are by the firm, owner of the vehicle
which was involved in the accident and one of its partner who it was alleged was shown to
be driving the vehicle at the time of the accident and while granting leave it was limited to
the question: whether both the Tribunal and the High Court were justified in holding that
the insurance company was not liable to satisfy the award under the contracts of insurance.
The undisputed facts are that the pick-up van-motor vehicle bearing No. GDT-9510
belongs to the first appellant firm, and the second appellant is the partner of the firm. This
vehicle was involved in an accident that occurred on May 17, 1976 at around 10.30 a.m.
There is a concurrent finding that the vehicle was driven rashly and negligently by the
partner who was then driving the vehicle and that in this accident, Sita and Ida suffered
injuries. Ida’s injuries proved fatal. The amount of the compensation awarded in both the
petitions is no more open to dispute. The question is whether the insurance company under
the contract of insurance is liable to satisfy the award?
Before the Tribunal and the High Court, it was contended on behalf of the appellants that at
the relevant time, it was not appellant No. 2 but one Pandu Lotlikar, who was respondent

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No. 4 before the Tribunal was driving the vehicle. It has been concurrently found that it
was appellant No. 2 who was driving the vehicle. The concurrent finding must be accepted
as correct. Appellant No. 2 is none other than the partner of the first appellant-firm which is
the owner of the vehicle. The High Court has extracted a term in the schedule of the policy
of insurance pertaining to the pick-up van which may be reproduced from the judgment of
the High Court.
Now would the insurance company be discharged from the liability under the contract of
insurance if as contended by it, at the relevant time, appellant No. 2 was driving the
vehicle. Appellant No. 2 is the partners of the firm. All the partners of the firm if they have
a valid driving licence would be entitled to drive the vehicle. Each partner of the firm is an
agent of the firm as well as the other partner as provided by Sec. 18 of the Partnership Act.
Every partner is entitled to attend diligently to his duties in the conduct of the business as
provided in Sec. 12 of the Partnership Act. Sec. 26 provides that where by the wrongful act
or omission of a partner acting in the ordinary course of the business of a firm, or with the
authority of his partners, loss or injury is caused to any third party, or any penalty is
incurred, the, firm is liable therefor to the same extent as the partner. A conspectus of these
provisions shall show that where the pick-up van belonging to the firm is being driven by a
partner, it can be said that it is done with the permission of the owner namely, the firm or
with its implied authority. The next question is whether the partner had a valid driving
licence at the relevant time. Unfortunately, while dealing with this aspect of the case, both
the Tribunal and the High Court fell into an error which resulted in giving a clean chit to
the insurance company. It is admitted that this pick-up van could be used as a private
carrier. It is also admitted that the insurance company had issued a comprehensive
insurance policy in respect of this van and at the relevant time it was in force.
Contention of the counsel for Insurance Company
It is contended on behalf of the insurance company that the second appellant did not have a
valid driving licence. It is the insurance company which complains that there has been a
breach of one of the important terms of the contract of insurance as evidenced by the policy
of insurance (the whole of which was not shown to us) and that the second appellant who
was shown to be driving the vehicle at the relevant time, did not have a valid driving
licence to drive the pick-up van. The insurance company complaints of breach of a term of

347
contract which would permit it to disown its liability under the contract of insurance. If a
breach of a term of contract permits a party to the contract to not to perform the contract,
the burden is squarely on that party which complains of breach to prove that the breach has
been committed by the other party to the contract. The test in such a situation would be
who would fail if no evidence is led. The language and the format in which issues Nos. 7
and 8 have been cast by the Tribunal clearly casts the burden of proof on the insurance
company. Not an iota of evidence has been led by the insurance company to show that the
second appellant did not have a valid driving licence to drive the vehicle.
Contention of the counsel for the Appellant
Mr. J. Sharma, learned counsel who appeared for the appellant urged that a question was
asked in the cross- examination of the second appellant whether he would produce his
driving licence, and that as he failed to produce the same an adverse inference must be
drawn against him that he did not have a valid driving licence. The High Court has
recorded a finding in this behalf. The High Court took no notice of the fact that the van
belonged to the firm and every partner for that reason would be the owner of the property
of the firm because the firm is not a legal entity in the sense in which the company under
the Companies Act has a juristic personality. Firm is a compendious name for the partners.
And the High Court limited its enquiry to ascertain whether the first part of the condition is
satisfied viz. whether the driver was in the employ of the insurer. It completely overlooked
the second clause that the driver appellant No. 2 was driving with the permission of the
insured, the firm in this case. Two clauses are disjointed by a disjunctive ‘or’. On a proper
analysis and interpretation of the term of contract of insurance, the insurance company
cannot escape the liability if
1. the insured himself was driving the vehicle or
2. the driver is in the employment of the insurer and is driving on the order of the
insurer or
3. he is driving with his permission.
The words with his permission do not qualify the expression 'is in the insurer's employ'.
The clause can be properly read thus: ‘any other person with insurer’s permission’. The
second appellant was under no obligation to furnish evidence so as to enable the insurance
company to wriggle out its liability under the contract of insurance. Further the R.T. which

348
issues the driving licence keeps a record of the licenses issued and renewed by it. The
insurance company could have got the evidence produced to substantiate his allegation.
Applying the test who would fail if no evidence is led, the obvious answer the insurance
company.
Judgment
To some up of insurance company failed to prove that there was a breach of the term of the
contract of insurance as evidenced by the policy of insurance on the ground that the driver
who was driving the vehicle at the relevant time did not have a valid driving licence. Once
the insurance company failed to prove that aspect, its liability under the contract of
insurance remains intact and unhampered and it was bound to satisfy the award under the
comprehensive policy of insurance.
Accordingly, both these appeals must succeed and are partly allowed. The award of the
Tribunal as well as the judgment of the High Court are modified directing the Oriental Fire
and General Insurance Co. Ltd. to satisfy the award with interest at 12 percent from the
date of the accident till payment, and full costs in favour of the original claimants. The full
payment to satisfy the award shall be made within a period of two moths from today.

349
 Burden of Proof, Exceptions under the Penal Law and Plea by Accused
Paul v State of Kerala137
Citation: 2020 Indlaw SC 50
Principles and Law established
Ss 302.304 I or II , 498A; 300 Exception 4 , Section 84, Section 86 and Section 105 and
106 of the IEA
Cases Referred
 Partap v. State of Uttar Pradesh1976(2) SCC 798
 Periasami and Another v. State of Tamil Nadu 1996 (6) SCC 457
 State of U.P. v. Lakhmi 1998(4) SCC 336
 Basdev v. State of Pepsu AIR 1956 SC 488
 State of Andhra Pradesh v. Rayavarapu Punnayya and Another 1976(4) SCC 382
Facts of the Case
By the impugned judgment the High court has affirmed the Judgment of the learned
Principal Sessions Judge, Ernakulam convicting the appellant under section 302 of the
Indian Penal Code (for short "IPC.) and sentencing him to rigorous imprisonment for
life and a fine of Rs. 10,000/-. The deceased was the wife of the appellant.
The appellant and his mother were charge-sheeted under Sections 498-A and 302 read
with Section 34 of the IPC.alleging cruelty and for causing the death of the appellant's
wife. By order dated 18.2.2005, the accused were acquitted. Thereafter, the mother of
the appellant expired. A Division Bench of the Kerala High Court vide judgment dated
29/03/2012 however, allowed the criminal appeal filed by the State against acquittal and
set aside the acquittal insofar as it related to the appellant and the matter was remanded
back with a direction to dispose of the case by continuing proceedings from the stage of
examination under Section 313 Cr.PC. It is after the remand that the Principal Sessions
Judge, Ernakulam, convicted the appellant under Section 302 of the IPC.as we have
already noted. The High Court by the impugned judgment has concurred with the view
taken by the trial Court.
We heard Mr. Renjith B. Marar, learned counsel for the appellant and learned counsel

137 Bench: K.M. Joseph, Sanjay Kishan Kaul; The Judgment was delivered by : K.M. Joseph, J.

350
appearing on behalf of the respondent. Notice was issued in the SLP noticing that the
counsel for the appellant has confined the submission to the plea of alteration of the
conviction under Section 302 of the IPC.to under Section 304 Part-II of the IPC.
Learned counsel for the appellant would point out that this is a case where the deceased
though conceived a child there was an abortion. She had depression. The appellant was
given to drink on the fateful night. According to the prosecution case there was a
quarrel. He would point out that though it is true that the appellant may have set up a
case that his wife has committed suicide that should not detract the court from
considering the case as per law. Expatiating he contended that appellant must be
extended the benefit of exception 4 to Section 300 of the IPC.which declares that
culpable homicide is not murder if it is committed in a sudden fight without their being
pre-meditation and in the heat of passion upon a sudden quarrel without the offender
taking undue advantage and acting in a cruel and unusual manner. The explanation to
Exception 4 to Section 300 undoubtedly provides that it is immaterial in such a case
which party offers the provocation or commits the first assault. Learned counsel would
point out that according to the prosecution version, appellant in fact, on that evening
went to the house of PW 7 to PW9 with whom he had drinks. The deceased went there
on account of his drinks. He had to be supported back home by the wife. He relied on
the following judgments:
He would also submit that the Court has found that the appellant has suffered injuries.
This strengthened the appellant's case based on their being a quarrel and therefore this is
a fit case where the conviction must be altered from Section 302 of the IPC.to Section
304 Part II of the IPC. He points out that the court has acquitted him of the charge under
Section 498A which means there was no matrimonial cruelty practised by the appellant
on his late wife.
Per contra, the learned counsel for the respondent-State strenuously supported the order
of the High Court. He would point out that this is a clear case of murder by throttling.
PROSECUTION CASE
The appellant married Jessy on 31.8.1997. Ever since marriage, it is the case of the
prosecution that Jessy was being subjected to physical and mental cruelty in the hands of
appellant and his mother. On 11.10.1998, the fateful day, the mother of the appellant

351
created scene at their home. Being depressed, the deceased due to unbearable
harassment, left the home in search of her husband and found him consuming liquor
with his friends. The appellant assaulted his wife in front of them. Thereafter, on the
same night at about 11.00 p.m., the appellant throttled her to death. 21 witnesses were
examined on the side of the prosecution. P-1 to P-18 were the documents which were
marked. C-1 is the chemical analysis report. In the judgment rendered by the High Court
in the first round of litigation where the trial court had acquitted the appellant and his
mother, the Division Bench of the High Court noticed that all the occupants of the
matrimonial home of the deceased turned hostile. PW2 to PW6, PW12 and PW14 are
the brothers and sisters-in-law of the appellant. PW7 to PW9 were the neighbours. These
witnesses turned hostile. PW1, the brother of the deceased and PW 10, the mother of the
deceased undoubtedly abided by the prosecution version. The appellate Court noted that
the appellant did not deny the fact that he and his wife were available in the bed room in
the night. He did not take up any definite stand as to how the injuries were sustained by
the deceased. At this point of time, it is apposite to refer to the injuries. The following
are the ante-mortem injuries which are noted in Exh.P9 post-mortem certificate which
stood proved by PW16, Dr. Siva Sudan (see the original judgment)138 :
Resuming the narrative, the High Court in the earlier round found that appellant toed the
line taken in the convenient statements of PW2 and PW 3 which were contrary to their
case diary statements that the deceased has committed suicide by hanging. It was noted
further by the High court that when the evidence of the PW2 and PW3 was put to him he
agreed with the statement that the deceased has committed suicide. The judgment further
reveals that the High Court found that a proper examination under Section 313 Cr.PC
had not been conducted by the Sessions Judge. It is accordingly that the judgment
setting aside the acquittal was made. The High Court also directed that the trial Judge
must pointedly consider the play of Section 106 of the Evidence Act. The Sessions
Judge was directed to dispose of the matter by continuing proceeding afresh from the
stage of 313 Cr.PC. examination of the accused. We may further notice that when the
Principal Sessions Judge took up the matter after remand, he has entered the following
findings inter alia. It was found that the death was an immediate result of the blunt force

138 Contusion and abrasions

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applied on the neck of the deceased. The learned Judge went on to find that a case under
Section 498A was not made out. The appellant and the deceased-wife were living in a
separate bed room. PW1 noted marks of physical violence on the body of the deceased.
PW1, in his chief examination deposed that the brother of the appellant and two others
informed that his sister was hospitalised due to sore throat. Later he was informed that
she died due to hanging. He has testified that he saw swelling on the forehead, contused
abrasion on the left cheek of his sister apart from marks of throttling on the neck and
nail marks on those regions. It was found by the learned Judge that there was no cross
examination of these aspects by PW1. The court proceeded to question the appellant
under Section 313 Cr.PC. He made a written statement. He maintained that he was
innocent. He and his wife were living a happy marital life. His wife had dejection and
objection about his drinking habit. She was desperate for not having a child. The Court
finds an admission by the appellant that on 11.10.1998 PW7 to PW9 and himself
consumed liquor at the house of PW7. At about 7.00 pm his wife came there in search of
him and he went with her. His version that he was heavily drunk, and it was his wife
who fully supported him and he was finding it difficult to walk under the influence of
alcohol. He admitted to having a separate bed room. An altercation between his mother
and his wife is noticed. Since he was under intoxication, he could not separate the two.
His mother beat him and he sustained injuries on lips. He fell fast asleep. In the early
morning he got up for urinating and at that time only he saw the deceased hanging by a
shawl tied to the railings in the window and on his crying PW 2 and 3 came to his room.
They untied the shawl and the body of Jessy was laid on the bed. This version was noted
by the learned Principal Sessions Judge to be a new version and not made at the time of
the original questioning under Section 313 Cr.PC or in the cross examination of the
prosecution witnesses. The learned Judge went on to notice the swelling on the middle
of the forehead, abrasion on the left cheek given in the inquest report. Nail clippings and
blood samples was taken from the dead body. Nail clippings was also collected from the
appellant. According to the appellant blood in nail clippings was on account of an
attempt by the deceased and the appellant to untie the noose around her neck. However
the court noted that PW14 doctor has mentioned that the once ligature has fastened
firmly around her neck, the victim would become unconscious and he or she would not

353
be able to lift his/her upper limbs to loosen the ligature. The Court further noted that in
the written statement under 313 Cr.PC given after remand, it was stated that PW1 and
PW3, brothers of appellant, untied the shawl alleged to have been used by the deceased
for committing suicide. PW15 also testifies that if the victim scratches the assaultor,
blood and part of skin would be present underneath his nail clippings. The version
sought to be introduced in the written statement after remand by the appellant that there
was a fight between his mother and his wife on the date of occurrence when he was also
assaulted by his mother, was found to be an embellished version and unacceptable. The
Court also noticed that the incident happened in the bed room of the appellant and that
too during night and there was no other person in the room. Therefore, the appellant had
a responsibility under Section 106 of the Evidence Act. The appellant was found as
having committed murder by throttling and the theory of suicide was found
unacceptable. The High Court also noted the case of the appellant that his wife
committed suicide at 1.30 a.m. by hanging on the window grill of their room. The High
Court agreed that only hypothesis possible was homicide by the appellant.
The observation and analysis of Court
We can safely conclude on the basis of the material and findings which has been
rendered by the courts concurrently that the case of suicide set up by the appellant was a
completely false plea. It is clear as day light that the appellant caused the death of his
wife by throttling. We have already noticed the injuries. Apart from injuries to the neck,
we noticed contusion on the forehead in the midline, upon the mid of the nose, an
abrasion on the left side of the face (the cheek). There is contusion on the outer aspect of
the left arm and there is an abrasion on the back of the inner aspect of left elbow,
contusion on the back of the right forearm. This is apart from injuries 2 and 3 which
clearly has been appreciated as indicating death by throttling. 10. In Partap v. State of
Uttar Pradesh 1976 (2) SCC 798 1975 Indlaw SC 510, there was an exchange of hot
words between two persons in regard to water. The dispute escalated and a state of
acrimony was attained. A gun was fired. The victim of the gun shot injury lost his life.
The plea of the appellant was that deceased was about to strike him with the balla and he
fired a shot in self defence. Justice M.H. Beg wrote a concurring judgment agreeing with
Justice R.S. Sarkaria that the appellant had established a case that he has acted in his self

354
defence (See the original Judgment) …. XXX
Provisions of Section 105 of the Evidence Act, which are applicable in such cases,
contain what are really two kinds of burden of the accused who sets up an exception:
"firstly, there is the onus laid down of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Penal Code, 1860, or, within any
special exception or proviso contained in any other part of the same Code, or in any law
defining the offence," and, secondly, there is the burden of introducing or showing
evidence which results from the last part of the provision which says that "the Court
shall presume the absence of such circumstances". The effect of this obligatory
presumption at the end of Section 105 of the Evidence Act is that the Court must start by
assuming that no facts exist which could be taken into consideration for considering the
plea of self-defence as an exception to the criminal liability which would otherwise be
there. But, when both sides have led evidence of their respective versions, the accused
can show, from any evidence on the record, whether tendered by the prosecution or the
defence, that the mandatory presumption is removed. The last mentioned burden is not
really a burden of establishing the plea fully but of either introducing or of showing the
existence of some evidence to justify the taking up of the plea. The burden resulting
from the obligatory presumption is not difficult to discharge and its removal may not be
enough for an acquittal." ….The cases like Periasami and Another v. State of Tamil
Nadu1996 (6) SCC 457 and the legal position has been succinctly stated by Subbarao, J.
(as he then was) in a case where an accused pleaded the exception under Section 84 IPC.
(Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563. ( See the
original Judgment) …..The Court found that the circumstances were more than enough
to install a reasonable doubt that the accused would have picked up a quarrel with the
second appellant and other events followed and on this basis they were held liable for
culpable homicide not amounting to murder. (See State of U.P. v. Lakhmi 1998(4) SCC
336)
Judgment
We, therefore, have no hesitation in holding that a statement made by the accused under
Section 313 Cr.PC even it contains inculpatory admissions cannot be ignored and the
Court may where there is evidence available proceed to enter a verdict of guilt. In the

355
aforesaid case he specifically stated that he murdered his wife with a Kunda and not
with Phali. The Court noted further that there was no merit in the defence sought to be
set up under Section 84 of the penal code. However, the Court noted as follows:
.....However, we have noticed that the accused had adopted another alternative defence
which has been suggested during cross-examination of prosecution witnesses i.e. his
wife and PW 2 (Ramey) were together on the bed during the early hours of the date of
occurrence. If that suggestion deserves consideration we have to turn to the question
whether the benefit of Exception I to Section 300 of the IPC.should be extended to him?
The law is that burden of proving such an exception is on the accused. But the mere fact
that the accused adopted another alternative defence during his examination under
Section 313 of the IPC.without referring to Exception I of Section 300 of IPC.is not
enough to deny him of the benefit of the exception, if the Court can cull out materials
from evidence pointing to the existence of circumstances leading to that exception. It is
not the law that failure to set up such a defence would foreclose the right to rely on the
exception once and for all. It is axiomatic that burden on the accused to prove any fact
can be discharged either through defence evidence or even through prosecution evidence
by showing a preponderance of probability.
In the above context, we deem it useful to ascertain what possibly would have prompted
the accused to kill his wife. The prosecution case as noted above, is that the accused was
not well-disposed to his wife as she was always speaking against his drinking habits. We
are inclined to think that, while considering the manner in which he had suddenly
pounced upon his young wife who bore two children to him and smashed her head
during the early hours, he would have had some other strong cause which probably
would have taken place within a short time prior to the murder. Certain broad features
looming large in evidence help us in that line of thinking."
The Court went on to hold on analysing the evidence that the features show that the
appellant had seen something lascivious between his wife and PW2. This led the Court
to find that the respondent was entitled to benefit of Exception I to Section 300 IPC.and
the respondent was convicted under Section 304 Part I of IPC. There can be no quarrel
with the principles which have been laid down. Principles of law however cannot be
appreciated or applied irrespective of the facts obtaining in a particular case. There can

356
be no doubt that the burden to prove that the case is made out in a particular case is on
the prosecution unless the law declares otherwise. To be murder within the meaning of
Section 302 undoubtedly, the offence must be culpable homicide. In order that it is
culpable homicide it must fall under Section 299 of the IPC.but all acts which amount to
culpable homicide do not constitute murder.
There can be no doubt that the burden of proving that the case fall within the four
corners of any of the exceptions under Section 300 of the IPC.is on the accused. It is
equally true that even without adducing any defence evidence it may be possible for the
accused to discharge the said burden with reference to material appearing by virtue of
the prosecution evidence which includes the cross examination of prosecution witnesses.
The test is one of preponderance of probability.
The fact that a false case is set up by itself may not deprive an accused of the right to
establish the fact that the case against him would still be embraced within any of the
exceptions under Section 300 IPC. The law does not taboo adopting of the alternate
pleas. Ultimately, the question would fall to be decided, no doubt, on the basis of
appreciation of evidence and the requirements of law flowing from the particular
provision of law. The accused may also be entitled to the benefit of reasonable doubt.
Applying the principles, let us examine the facts of this case. It is true, no doubt,
evidence was tendered by PW2 and PW3, who it may be noted are the brothers of the
appellant, that the wife of the appellant committed suicide. In the original 313
questioning the appellant also took the stand that it is a case of suicide. After the matter
was remanded, in the 313 statement the appellant continued to persevere with the stand
and set up the case that he was beaten up by his mother following a quarrel between her
and his wife and then he fell fast asleep. When he got up for urination in the early
morning he saw the deceased hanging. He has categorically stated that PW2 and PW3
came, untied the shawl used by her for committing suicide. It was accepting the plea of
the appellant that the High Court in the earlier round had found that he had not been
questioned under Section 313 Cr.PC in regard to circumstances which were addressed
by the prosecution as evidence of his complicity. The case which is sought to be set up
before us revolves around the applicability of exception 4 to Section 3000 IPC.which
involves inter alia a sudden fight following a quarrel. What is conspicuous by its

357
absence is a plea despite the opportunity he had of indicating about any such quarrel
between him and his wife. The case sought to be set up was though is that he was
heavily drunk: He was at the residence of PW7: The quarrel ensued between his mother
and his wife: She-(deceased) came to the residence of PW7: She has escorted him back.
He was beaten by his mother when they reached home following a quarrel between the
mother-in-law and daughter-in-law; He fell fast asleep.
The evidence including the medical evidence is clear and has been correctly appreciated
by two courts. It leads to the only irresistible inference that it was not a case of suicide
but an unambiguous case of homicide. The death was caused by throttling. Appellant
and his wife were occupying a separate bed room. There is reference to the nail
clippings containing blood. The attempt at explaining the same has been correctly
dispelled by the trial court.
There is a case for the appellant that there were injuries on the appellant. It is to be noted
that when there is throttling unless the victim is asleep or unconscious there would be
resistance. Injuries on the aggressor are not uncommon. In this case we have also noted
the injuries on other parts of body apart from the neck. They indicate acts of violence by
the aggressor. In this case we are not even called upon to pronounce on where there is
anybody else who would be the aggressor. It is the appellant and appellant alone who
can be attributed with the acts which resulted in the death of his wife.
Valiant attempt is made by Mr. Renjith B. Marar, learned counsel for the appellant to
bring the case within the scope of Section 304 Part-I. He emphasised that proceeding
that it is culpable homicide and that he had the intention also to cause the death of his
wife, it could still be brought under Section 304 Part-I as the Legislature expressly
declares that be it a culpable homicide, it is not the inexorable opening of the doors to an
offence under Section 302 IPC.but it could despite the intention to cause death being
present, be culpable homicide not amounting to murder.
In this regard, it must be noticed that the prosecution case about there being a quarrel is
about the mother of the appellant creating a scene on 11.10.1998 compelling the
deceased to leave home and search her husband out. There is also mention about ill
treatment given by the appellant to his wife in front of his friends and it is thereafter in
the night the act of the appellant throttling her took place. We are unable to see how

358
exception I to Section 300 IPC.which is also pressed into service by the learned counsel
for the appellant apply. Exception I requires deprivation of power of control by the
accused by virtue of grave and sudden provocation. The grave and sudden provocation
must be given by the deceased. No doubt, if death is caused of any other person by
virtue of the sudden provocation, by mistake or accident, exception I may apply.
Nothing is brought out before us in the evidence to even faintly establish the giving of
any provocation leave alone a grave and sudden provocation. Equally, there is no such
case undoubtedly set up in the written statement under 313 Cr.PC even after the remand.
The case of exception 4 is no different in our view in its inapplicability to the facts.
There is no material for us to come to the conclusion that there occurred a sudden
quarrel leading to a sudden fight going by the version furnished by the appellant in his
written statement under 313 Cr.PC which statement also recites that he fell fast asleep.
Till such time there is no hint even of any sudden fight or sudden quarrel. It must also be
appreciated that under Section 106 of the Evidence Act facts within the exclusive
knowledge of the appellant as to what transpired within the privacy of their bed room
even must be established by the appellant. The fact that appellant went about setting up
of a palpably false case even at the late stage of filing the written statement under 313
after remand trying to attribute death by hanging by his wife falsely.
(Read Section 86 of IPC)… Section 86 of the IPC.enunciates presumption that despite
intoxication which is not covered by the last limb of the provision, the accused person
cannot ward off the consequences of his act. A dimension however about intoxication
may be noted. Section 86 begins by referring to an act which is not an offence unless
done with a particular knowledge or intent. Thereafter, the law giver refers to a person
committing the act in a state of intoxication. It finally attributes to him knowledge as he
would have if he were not under the state of intoxication except undoubtedly, in cases
where the intoxicant was administered to him either against his will or without his
knowledge. What about an act which becomes an offence if it is done with a specific
intention by a person who is under the state of intoxication? Section 86 does not
attribute intention as such to an intoxicated man committing an act which amounts to an
offence when the act is done by a person harbouring a particular intention. This question
has engaged the attention of this Court in the decision in Basdev v. State of Pepsu AIR

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1956 SC 488 1956 Indlaw SC 72. In the said case the appellant, a retired military
official went to attend a wedding. The appellant was very drunk. He asked a young boy
to step aside a little so that he could occupy a convenient seat. The boy did not budge.
The appellant fired from a pistol, he had with him, in the abdomen of the boy which
proved fatal.
In this case there is no evidence about how drunk the appellant was or whether the
drunkenness in any way stood in the way of the appellant forming the requisite
intention. There is also gap between the time when he was allegedly found drinking and
the time of the crime. Moreover, in his 313 statement, according to him, he has stated
that he fell fast asleep and he got up to see his wife hanging. The principle that would
apply therefore is that appellant can be presumed to have intended the natural
consequences of his act.
As far as the contention that appellant should be handed down conviction under Section
304, Part-I, we are not impressed by the said argument. As to what constitutes murder
under Section 300 of the IPC.and what constitutes culpable homicide amounting to
murder has been a vexed issue and the subject matter of a large body of case law.
Section 300 of the IPC.declares that except in those cases which are specifically
excepted culpable homicide is murder in situations which have been specifically laid
down. There are commonly referred to as firstly, secondly, thirdly and fourthly under
Section 300 of the IPC. If the intention of the Legislature was that culpable homicide
would amount to murder if it did not fall in any of the five exceptions enumerated in
Section 300 of the IPC. What was the need for the Legislature to 'waste words' as it were
by declaring that culpable homicide is murder if the act fell within any of the 4 clauses
in Section 300 of the IPC. In order that an act is to be punished as murder, it must be
culpable homicide which is declared to be murder. Murder is homicide of the gravest
kind. So is the punishment appropriately of the highest order. Murder requires
establishment of the special mens rea while all cases of culpable homicide may not
amount to murder. This Court in the judgment in State of Andhra Pradesh v. Rayavarapu
Punnayya and Another 1976(4) SCC 382 1976 Indlaw SC 192 inter alia held as follows:
From the above conspectus, it emerges that whenever a court is confronted with the
question whether the offence is 'murder' or 'culpable homicide not amounting to murder',

360
on the facts of a case, it will be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done
an act by doing which he has caused the death of another. Proof of such causal
connection between the act of the accused and the death, leads to the second stage for
considering whether that act of the accused amounts to "culpable homicide" as defined
in Section 299. If the answer to this question is prima facie found in the affirmative, the
stage for considering the operation of Section 300 of the Penal Code, is reached. This is
the stage at which the court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the four clauses of the definition of
"murder" contained in Section 300. If the answer to this question is in the negative the
offence would be "culpable homicide not amounting to murder", punishable under the
first or the second part of Section 304, depending, respectively, on whether the second
or the third clause of Section 299 is applicable. If this question is found in the positive,
but the case comes within any of the exceptions enumerated in Section 300, the offence
would still be "culpable homicide not amounting to murder", punishable under the first
part of Section 304, of the Penal Code.(emphasis supplied)
As far as this case is concerned, there can be no doubt that the act which led to the death
has been committed by the appellant. We can safely proceed on the basis also that it
amounts to culpable homicide. Going by the circumstances present in this case and in
particular injuries suffered, it is quite clear that the act would fall within the scope of
Section 300 of the IPC. If the act results in culpable homicide which does not amount to
murder, then and then alone the question arises of applying Section 304 Part-I or Part-II
as the case may be. Appellant cannot extricate himself from the consequence of his act
attracting the ingredients of murder by pointing out Section 304 Part I which also
contains the expression, "the act with the intention to cause death'. The implications are
vastly different. Section 304 of the IPC.would apply only in a case where culpable
homicide is not murder. If the act amounting to culpable homicide satisfies any of the
four criteria to bring it under the offence of murder, being mutually exclusive, there can
be no scope for applying Section 304 of the IPC. On the other hand, if the act is culpable
homicide as falling in any of the five exceptional circumstances mentioned in Section
300 and then it would amount to culpable homicide not amounting to murder. In cases

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where the accused is able to establish he is entitled to the benefit of any of the
exceptions under Section 300 then his case may be considered under Part-I or Part-II of
Section 304 of the IPC.depending on whether the act which caused the culpable
homicide was done with the intention of causing death or with knowledge that it is likely
to cause death. That apart cases of culpable homicide which do not attract any of the
four situations under Section 300 would still be culpable homicide to be dealt with under
Section 304 of the IPC. However, if the case falls under any of the four limbs of Section
300, there would be no occasion to allow Section 304 to have play. If the act which
caused the death and which is culpable homicide is done with the intention of causing
death, then it would be murder. This is however subject to the act not being committed
in circumstances attracting any of the 5 exceptions. Appellant's contention that it would
be culpable homicide not amounting to murder and reliance placed on the words 'done
with the intention of causing death' in Section 304 Part-I is wholly meritless.
The act of the appellant in the facts of this case clearly show that he has throttled his
wife. None of the exceptions in Section 300 are attracted. The act amounts to murder
within the meaning of Section 300 of the IPC. The upshot of the above discussion is, we
see no reason to interfere with the impugned judgment. The appeal stands dismissed.
Appeals dismissed

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 Estoppel 115-117
Union of India and others v Joginder Singh139
Citation 2019 Indlaw MEG 19
Cases referred

1. M/s Motilal Padampat Sugar Mills Co. Ltd. v State of Uttar Pradesh & ors, (1979) 2
SCC 409

Facts of the Case

From perusal of the record and rival submissions of learned counsel for the parties what
emerges is that admittedly the petitioner was enrolled in Assam Rifles on 05.09.1998 as
Rifleman (General Duty). During the period of his training, an opportunity was provided
by the authority of Assam Rifles to the interested armed personnel's having requisite
qualification for remonstration into nursing trade. Petitioner possessing the requisite
qualification availed the opportunity as such applied for remonstration of trade from
General Duty category to Nursing Assistant. Director General Assam Rifles vide Signal
No. unclass A.3550 dated 12.06.2000 attached the petitioner with 31st Battalion MI
Room for practical knowledge till detailment of Nursing Assistant Class IV and Class III
courses and vide Signal No. unclass A.4438 dated 06.06.2000 had assured the petitioner
that after completion of Nursing Assistant course he will be remustered from Rifleman
(General Duty) to Rifleman (Nursing Assistant) at the earliest. In pursuance whereof,
petitioner successfully completed the following courses:-

“a. Nursing Assistant Clas-IV from No.-2, Tech.Trg.Bn. AMC Centre & School,
Lucknow-2 in the year 2000.

b. Nursing Assistant Class-III from No.-2, Tech.Trg.Bn. AMC Centre & School,
Lucknow-2 in the year 2002”.

139 Mohammad Yaqoob Mir, H.S. Thangkhiew

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On the recommendation of the Command Hospital (EC), Calcutta vide order
No.130019/Coy/2002 dated 04.01.2002 published the Nominal Roll of Nursing Assistant
Class-III, Assam Rifles wherein the name of the petitioner figured at serial No.30. Vide
order dated 21.08.2008, Director General Assam Rifles attached the petitioner with
Assam Rifles Administrative Support Unit for working with ARASU Hospital, Happy
Valley but did not take step for conversion of his trade as a result whereof, petitioner
filed WP (C) No.3399 of 2010 which was disposed of by the High Court of Gauhati as it
then was vide order dated 16.06.2010 directing the respondents therein (appellants
herein) to dispose of the representation submitted by the petitioner by passing a speaking
order with further liberty to the petitioner to invoke jurisdiction under Article 226 of the
Constitution of India, if aggrieved. Vide order dated 30.09.2010 representation of the
petitioner was rejected so petitioner again filed WP (C) No.383 of 2013 in this Court.

Contention of the Petitioner

The contention as raised before the learned Single Judge is again raised today to the
effect that applicable rules did not permit conversion of trade from Rifleman (General
Duty) to Rifleman (Nursing Assistant). Considering the same submission, learned Single
Judge has made it clear that the rules are relaxable, has quoted from the annexure of the
counter affidavit relevant portion regarding relaxation of the rule same reads as under:-

“Power of relaxation: The power to relax any of the eligibility criteria will rest with the
Director General of Assam Rifles”.

Learned Single Judge has observed that since there is power to relax the rules, therefore,
the authority concerned cannot backtrack has to keep the promise and to give it effect. In
support of the said opinion has relied upon the judgment rendered in the case of M/s
Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & ors reported in (1979)
2 SCC 409 1978 Indlaw SC 56. The following portion of para-24 of the said judgment
shall be advantageous to be quoted hereunder:-

“24. ..... Where the Government makes a promise knowing or intending that it would be
acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his
position, the Government would be held bound by the promise and the promise would be
enforceable against the Government at the instance of the promisee, notwithstanding

364
that there is no consideration for the promise and the promise is not recorded in the
form of a formal contract as required by Article 299 of the Constitution. It is elementary
that in a Republic governed by the rule of law, no one, howsoever high or low is above
the law. Everyone is subject to the law as fully and completely as any other and the
Government is no exception. It is indeed the pride of constitutional democracy and rule
of law that the Government stands on the same footing as a private individual so far as
the obligation of the law is concerned: the former is equally bound as the latter. It is
indeed difficult to see on what principle can a Government, committed to the rule of law,
claim immunity from the doctrine of promissory estoppels. Can the Government say that
it is under no obligation to act in a manner that is fair and just or that it is not bound by
considerations of "honesty and good faith"? Why should the Government not be held to
a high “standard of rectangular rectitude while dealing with its citizens”?...”

Contention of the Respondent

The contention of learned CGC that the respondent was placed in low medical category,
therefore, trade was not permissible to be changed. The said argument is totally baseless
and unacceptable. Such a contention is refuted by the appellants themselves as it is the
appellants who have issued the order dated 21.08.2008 as quoted by the learned Single
Judge in the judgment where-under, the Director General Assam Rifles has attached the
petitioner with ARASU, Happy Valley for working with ARASU Hospital, Happy
Valley. It is further added that the individual (respondent) is a qualified Nursing
Assistant Class-IV and Class-III for all purposes including pay and allowances. We have
not been persuaded to take a different view than the one taken by the learned Single
Judge, appeal being devoid of merit is dismissed. Appeal dismissed.

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 Estoppel
Rajasthan Small Industries Corporation Limited v Ganesh Containers Movers
Syndicate
Citation: 2019 Indlaw SC 59140
Cases Referred
1. Union of India and Others v Uttar Pradesh State Bridge Corporation Limited,
(2015) 2 SCC 52
2. Indian Oil Corporation Limited and Others v Raja Transport Private Limited,
(2009) 8 SCC 520
3. Yashwith Constructions (P) Ltd. v Simplex Concrete Piles India Ltd. and Another,
(2006) 6 SCC 204
4. Board of Control for Cricket in India v Kochi Cricket Private Limited and others,
(2018) 6 SCC 287
5. TRF Limited v Energo Engineering Projects Limited (2017)
6. Aravali Power Company Private Limited v Era Infra Engineering Limited, (2017)
15 SCC 32.
7. Raj Kumar and others v Union of India and another, (2006) 1 SCC 737
8. Ashok Kumar Gupta and another v State of U.P. and others, (1997) 5 SCC 201
Brief facts of the Case
The appellant-Rajasthan Small Industries Corporation Limited invited tender for
“Handling and Road transportation of ISO containers and Cargo between Inland container
Depots at Jaipur, Jodhpur and Ports”. Respondent-Contractor participated in the said
tender and Letter of Intent was issued in favour of the respondent-Contractor on
21.01.2000. The agreement was executed on 28.01.2000 between the parties. Initially, the
contract period was of three years; but it was extended for another two years from
31.01.2003 by consent of both the parties. Dispute arose between the parties regarding
imposition of transit penalty by the appellant upon the respondent for delay in
transportation of containers, non-payment of handling charges of containers for various
period of time and several other disputes. The terms of the contract Clause 4.20.1 of
Schedule-4 (General Conditions) provided for arbitration by the Managing Director
140 R. Banumathi and Indira Banerjee; The Judgment was delivered by : R. Banumathi, J.

366
himself or his or her nominee for the sole arbitration. The respondent-Contractor
requested for appointment of the arbitrator in terms of Clause 4.20.1 of Schedule-4
(General Conditions). One I.C. Shrivastava, IAS (Retd.) was appointed as the sole
arbitrator on 21.02.2005. Since the progress of the sole arbitrator was not satisfactory in
disposing the matter, the said sole arbitrator was removed on 26.03.2009 and in his place,
Chairman-cum-Managing Director of the appellant-Corporation was appointed to act as
the sole arbitrator by the consent of both the parties. For one reason or other, the
arbitration proceedings could not be concluded. According to the appellant, the matter was
adjourned repeatedly vide orders of the Arbitral Tribunal dated 10.02.2010, 11.02.2010,
15.02.2010, 18.02.2010 and 10.03.2010 as no one appeared on behalf of the respondent-
Contractor. On 16.03.2010, the respondent raised its doubts regarding impartiality of the
newly appointed sole arbitrator. The sole arbitrator passed the order dated 06.04.2010
stating that the agreement Clause 4.20.1 of Schedule-4 (General Conditions) provides for
arbitration by the Chairman-cum-Managing Director of the Corporation or his nominee
and that only at the joint request of both the parties, the Chairman-cum-Managing Director
has taken up the arbitration to resolve the dispute between the parties. The proceedings
further continued fixing date of hearing on various dates till 17.08.2011. On 07.02.2013,
the respondent-Contractor sent a legal notice to the appellant stating that even after so
many requests, the sole arbitrator has not passed the award and called upon the appellant
to pay the amount of Rs. 3,90,81,602/- said to have been settled, along with the statutory
interest within one month. The appellant sent a reply dated 19.03.2013 stating that since
the Chairman-cum-Managing Director has been transferred, award could not be passed
and there is no question of payment to the respondent-Contractor. On 13.05.2015, the
respondent-Contractor filed an application under Section 11(6) and Section 15 of the
Arbitration and Conciliation Act, 1996 before the High Court seeking for appointment of
an independent arbitrator for adjudication of dispute between the appellant and the
respondent in respect of agreement dated 28.01.2000. On 18.12.2015, it was brought to
the notice of the arbitrator that an arbitration application has been filed before the High
Court. On 05.01.2016, the Arbitral Tribunal adjourned the matter to 13.01.2016 as a last
opportunity of hearing to the parties. On 13.01.2016, the arbitrator rejected the application
of the respondent-Contractor and his request to adjourn the matter till hearing and final

367
disposal of the arbitration application pending before the High Court and held that the
arbitration proceedings would be finalized on the basis of available facts and therefore,
adjourned the matter to 21.01.2016. The sole arbitrator passed an ex-parte award on
21.01.2016. The High Court vide impugned order allowed the arbitration application
thereby appointing Mr. J.P. Bansal (Retd.), District Judge as the sole arbitrator. The High
Court held that the respondent-Contractor had to approach the High Court due to
prolongation of the matter before the sole arbitrator who kept on changing one after
another and only after the notice of the arbitration petition was served upon the appellant-
Corporation, the arbitrator speeded up the proceedings and the ex-parte award was passed
on 21.01.2016 without hearing the respondent-Contractor. The High Court was of the
view that the arbitrator hurried up to conclude the proceedings with a view to frustrate the
arbitration application.
Contention of the Appellant
Mr. A.D.N. Rao, learned counsel for the appellant-Corporation submitted that the High
Court erred in not keeping in view of Clause 4.20.1 of Schedule-4 (General Conditions)
that the respondent could not have moved the application under Section 11 and Section 15
of the Arbitration and Conciliation Act, 1996 in the light of the agreement between the
parties and the competence of the arbitral tribunal to adjudicate the dispute between the
parties. It was further submitted that though the arbitrator was ready to proceed with the
matter, the arbitrator could not make progress since the respondent was either not present
or continually taking adjournments and when the arbitrator was proceeding with the
matter in right earnest, the respondent could not have approached the High Court seeking
appointment of an arbitrator. It was urged that in the light of the fact that a final arbitral
award has been passed by the arbitral tribunal, the respondent could only challenge the
same by way of an appeal under Section 34 of the Arbitration and Conciliation Act, 1996
and the impugned order of the High Court is liable to be set aside.
Counsel for the Respondent
Ms. Mishra, learned counsel for the respondent-Contractor submitted that in view of
Section 12 of the Arbitration and Conciliation (Amendment) Act, 2015, if the arbitrator is
an employee/advisor or has any past or present business relation or being the
Manager/Director then he cannot be appointed as an arbitrator and not qualified to decide

368
the dispute and therefore, the High Court has rightly appointed the fresh independent
arbitrator. It was submitted that the disqualification of the person to hold the post of an
arbitrator as enumerated in Seventh Schedule of Arbitration and Conciliation
(Amendment) Act, 2015 is a legal right conferred upon the respondent-Contractor and
there cannot be any promissory estoppel against the statute by alleging that in the
agreement dated 28.01.2000, the respondent agreed that the dispute and differences shall
be referred to the Managing Director himself or his nominee for the sole arbitration.
Placing reliance upon Union of India and Others v Uttar Pradesh State Bridge Corporation
Limited, (2015) 2 SCC 52, it was contended that when there is failure on the part of the
arbitral tribunal to act and unable to perform its functions, it is open to a party to the
arbitration proceedings to approach the court for termination of the mandate of the
arbitrator and seek appointment of the substitute arbitrator. The learned counsel for the
respondent further submitted that in the present case, since for a long period of about ten
years, no award has been passed and that the arbitrators were kept on changing for one
reason or other, the respondent was justified in approaching the High Court for
substitution or appointment of fresh arbitrator. It was submitted that only after the
respondent approached the High Court, the proceedings were accelerated and award came
to be passed. Contending that the sole arbitrator/Chairman-cum-Managing Director, by
virtue of 2015 amendment, has become ineligible to act as the arbitrator, the learned
counsel for the respondent placed reliance upon, the facts of the said case are entirely
different from the case in hand. In the said case, when notice invoking arbitration was
issued on 28.12.2015, after the Amendment Act, 2015 came into force with effect from
23.10.2015, by virtue of which the person named in the agreement became ineligible to
act as the arbitrator. In the case in hand, the arbitration proceedings started way back in
2009 long before 2015 Amendment Act came into force and therefore, 2015 Amendment
Act is not applicable to the case in hand. The statutory provisions that would govern the
matter are those which were then in force before the Amendment Act.
Contention of the Respondent
In support of his contention, the learned counsel for the respondent relied upon the
decision in Union of India and others v Uttar Pradesh State Bridge Corporation Limited,
(2015) 2 SCC 52 counsel for the respondent contended that the arbitrator failed to

369
conclude the proceedings even after four years and the High Court rightly appointed the
substitute arbitrator departing from the arbitration clause in the agreement between the
parties. In the said case, since the Arbitral Tribunal did not pass award in spite of expiry of
four years, the respondent thereon filed Request Case No.10/2010 and the High Court
passed order dated 09.03.2011 giving the last chance to the Arbitral Tribunal to complete
the arbitral proceedings within a period of three months. In para (6) of the judgment, this
Court pointed out that the High Court took note of the various dates and hearings that are
fixed by the Tribunal between 25.03.2011 and 25.06.2011 and came to the conclusion that
the delay caused in the arbitral proceedings was intentional. After referring to Union of
India v Singh Builders Syndicate, (2009) 4 SCC 523; 2009 Indlaw SC 337 and other
judgments, this Court observed that the delays and frequent changes in the Arbitral
Tribunal defeat the process of arbitration and therefore, the appointment of the arbitrator
by the court of its own choice departing from the arbitration clause has become an
acceptable proposition of law which can be termed as a legal principle which has come to
be established by a series of judgments of this Court. Having regard to the facts of the said
case, observing that the delay in arbitral proceedings was intentional, in para (6) of Uttar
Pradesh State Bridge Corporation Limited, it was held as under: -
“6. The High Court took note of the various dates of hearings that are fixed by the
Tribunal between 25-3-2011 and 25-6-2011 and came to the conclusion that delay
caused in the arbitral proceedings was intentional. So much so, the members of the
Arbitral Tribunal were continuing their dilatory tactics in deciding the matter before it
since 2007 and four years had passed in the process. The Tribunal had faltered even
after giving specific directions to conclude the matter within three months and long
adjournments were granted thereby violating the specific directions of the High Court.
Terming this attitude of the members of the Tribunal as negligent on their part towards
their duties with no sanctity for any law or for the orders of the High Court, the High
Court allowed the petition of the respondent herein and set aside the mandate of the
Tribunal with the appointment of sole arbitrator by the Court itself”.
Points for Consideration
We have carefully considered the contentions of both the parties and perused the
impugned judgment and materials on record. The following points arise for

370
consideration:-
1. In the light of the proceedings before the sole arbitrator on various dates and
when the proceedings before the arbitrator was pending, whether the respondent
was right in filing arbitration petition approaching the High Court under Section
11 and Section 15 of the Arbitration Act, 1996 for appointment of a substitute
arbitrator?
2. When by virtue of arbitration agreement Clause 4.20.1 of Schedule-4 (General
Conditions), parties have agreed that the dispute, differences between the parties
to be resolved by the Managing Director or his nominee, whether the High Court
was right in deviating from the terms of the agreement between the parties and
appointing an independent Arbitrator?
3. Whether by virtue of Section 12 of the Arbitration and Conciliation (Amendment)
Act, 2015, the Chairman-cum-Managing Director has become ineligible to act as
the arbitrator?
4. Whether the High Court was right in terminating the mandate of the arbitrator
whom the parties have agreed and appointing substitute arbitrator on the ground
that there was delay in passing the award?
In deviation from the terms of the agreement,
whether the respondent was right in filing arbitration petition under Section 11 of the
Arbitration Act:-
Admittedly, the parties entered into an agreement dated 28.01.2000 for handling on road
transportation of ISO containers and cargo between the Inland Container Depot at Jaipur,
Jodhpur and Ports. The agreement was to remain in force for a period of three years
starting from 10.04.2000. The abovementioned agreement was extended for another
period of two years starting from 31.01.2003. For want of reconciliation of records of the
parties and certain clarifications, by order dated 24.03.2011, the arbitrator directed both
the parties to appear before him on 18.04.2011 along with complete records relating to the
claim and counter claim. On the next hearing dates i.e. 20.04.2011 and 21.04.2011, there
were detailed discussions between the parties and the sole arbitrator and accordingly, the
respondent-Contractor agreed to withdraw certain claims. By various correspondence
dated 21.04.2011, 18.05.2011, 20.05.2011 and 24.05.2011, the arbitrator required certain

371
clarifications from both the parties to finalise the award and replies were also received. On
17.08.2011 the arbitral tribunal passed the order.

Whether the High Court was right in terminating the mandate of the arbitrator
appointed as per the agreement:-
The main question falling for consideration is whether the High Court was right in
terminating the mandate of the arbitrator appointed as per the agreement and appointing a
substitute arbitrator in the application filed under Section 11(6) and Section 15 of the
Arbitration Act. As pointed out earlier, the proceedings before the Arbitral Tribunal
proceeded till 17.08.2011 and thereafter, no progress was made. The respondent issued
legal notice on 07.02.2013 calling upon the appellant to pay Rs. 3.90,81,602/- alleging
that the said amount was settled during the course of proceedings before the Arbitral
Tribunal. Reiterating the demand, the respondent has again sent the legal notice on
07.03.2013. However, no award came to be passed. The respondent filed application
under Sections 11 and 15 of the Act of 1996 on 13.05.2015 seeking appointment of an
independent arbitrator for adjudication of the disputes and differences between the
appellant and the respondent.
Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given
further opportunity to the respondent to put forth his case. The proceedings of the Arbitral
Tribunal were pending for quite some time from 2009 till 2015 and after the respondent
approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed
the award. It is pertinent to note that the respondent was repeatedly praying for
adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the
final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated
17.08.2011 that the chronological events need to be ascertained and reconstruction will be
required. It is not known whether the same was ascertained or not and whether
reconstruction was done before passing the final award on 21.01.2016. The respondent has
made number of claims under various heads. The respondent has to be given an
opportunity to substantiate its claim under various heads. In order to do complete justice
between the parties and in exercise of power under Article 142 of the Constitution of
India, the award dated 21.01.2016 is to be set aside.

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The phrase “complete justice” engrafted in Article 142(1) is the word of width couched
with elasticity to meet myriad situations created by human ingenuity or cause or result of
operation of Statute law or law declared under Articles 32, 136 and 141 of the
Constitution. (Vide Ashok Kumar Gupta and another v State of U.P. and others, (1997) 5
SCC 201; 1997 Indlaw SC 1096) In the case in hand, to relegate the respondent to
challenge the award under Section 34 of the Act, it would further prolong the litigation
between the parties. Considering the facts of the case and in order to do complete justice
between the parties, in exercise of power under Article 142 of the Constitution, the award
dated 21.01.2016 is set aside.

Judgment
In the result, the impugned order of the High Court dated 22.04.2016 is set aside and this
appeal is allowed. The present Managing Director of the appellant-Rajasthan Small
Industries Corporation Limited shall be the sole arbitrator and the Managing Director is
directed to take up the matter and continue the proceedings and afford sufficient
opportunity to both the parties to adduce further evidence and to make oral submissions
and pass the final award within a period of four months. It is made clear that the arbitrator
may not be influenced by any of the views expressed by the High Court. Appeal allowed

373
 Estoppel
Ritika Jain and others v Guru Gobind Singh Indraprastha University and another
Citation:2019 Indlaw DEL 926141
The petitioner (Ritika Jain) is a student studying in the 4th semester in the Maharaja
Agrasen Institute of Technology (hereinafter referred to as the “MAIT”), which is
affiliated to the Guru Gobind Singh Indraprastha University (‘GGSIPU’). She is pursuing
her B. Tech. Course, which commenced with the academic session 2017-2018. She has
successfully completed her first year, comprising the first and second semesters, of the
said course, in the discipline “Electronics and Communication Engineering (ECE)”. The
other streams/disciplines, in which B.Tech programmes are conducted by the MAIT,
leading to award of B.Tech degrees by the University, are the streams of Computer
Science and Engineering (CSE), Information Technology (IT), Electricals and Electronics
Engineering (EEE), and Mechanical and Automation Engineering (MAE). All these
courses stand approved by the All India Council for Technical Education (AICTE). The
petitioner was admitted to the B.Tech Course in the ECE Discipline, consequent to
clearing the Common Entrance Test (CET) conducted by the University for the said
process and undergoing counselling thereafter. The MAIT conducts the B.Tech Courses in
two shifts. The first shift is from 07:00 AM to 01:30 PM and the second shift is from
02:00 PM to 08:30 PM. The second shift has been operating on the basis of the permission
granted, for the said purpose, by notification dated 28th April, 2009, issued by the
Directorate of Higher Education, Government of NCT of Delhi. It is not denied that the
petitioner has cleared all the papers of her first and second semesters and has no back
papers left to clear.
On 9th August, 2018, the University issued the following notice:
NOTICE… SUBJECT: Migration (Change of Shift Mutual Migration, Intra University,
Inter University) of the students admitted in 1st Semester in the Academic Session 2017-
18. In pursuance of Provisions in Ordinance 7 (Migration of Students) GGSIPU Act, No.
9 of 1998, Candidates seeking Migration (Change of Shift, Mutual Migration, Inter
university, Inter University) in various programmes in Guru Gobind Singh Indraprastha
University are required to submit the following:

141 C. Hari Shankar

374
 1. Migration Application
2. No Objection Certificate (NOCs) from both the Institutes
3. Copy of Result of first year (both semesters)
4. Copy of Result of class 12th qualifying examination documents as per the eligibility
criteria.

The above documents may be submitted between 09th August 2018 to 17th August, 2018
(11 am to 3 pm) only on University working days in Admissions Branch, Administrative
Block, GGSIPU Dwarka. Candidates desirous of seeking Migration should also fulfil the
eligibility Criteria for programme applying for Migration as laid down in the
Admissions Brochure for the Academic Session 2017-18. As per Amended provision of
Migration Ordinance 7: No migration is permitted into the Medical Colleges of the
Guru Gobind Singh Indraprastha university from any Institution/College…., It only
means consent for migration given by the College. Submission of Migration application
does not imply that migration will be carried out. Migration will be effective from 3rd
Semester for the Academic Session 2018-19.

Ordinance 7 of the Ordinances governing the University, to which the afore-extracted

notice dated 9th August, 2018 refers, reads thus : ”ORDINANCE 7: MIGRATION OF
STUDENTS ( To be Read from the Full Judgment)… as per sec 27 of the Guru Gobind
Singh Indraprastha University Act 1998 (9 of 1998), the Board of Management of the
Guru Gobind Singh Indraprastha University, hereby makes the revised Ordinance 7
relating to Migration of students. Aggrieved by the communication, dated 2nd
November, 2018, the petitioner has invoked the extraordinary jurisdiction of this Court,
conferred by Article 226 of the Constitution of India, by means of the present writ
petition. It has been pointed out, in the writ petition, that there could be no question of
obtaining NOC from two institutes, as the change of shift, being sought by the petitioner,
was from the morning shift, to the evening shift, of the same Institute. Though the
morning and evening shifts, of the MAIT, had been allotted different Institute codes, the
authorised signatories of the two shifts were the same, and the signature of such
authorised signatory having been appointed on the NOC, it was fallacious to contend that
the NOC was only of one Institute. It is also sought to be urged that the GGSIPU is

375
estopped from contending that change of shift/branch was not permissible under
Ordinance 7, in view of the notice, dated 9th August, 2018, which specifically invited
applications for change of shift. The GGSIPU could not, therefore, it is sought to be
contended, argue that Ordinance 7 applies only to migration across different institutions.
In any event, the GGSIPU was considering the morning and evening shifts as separate
institutes, so that this objection, too, could not sustain on facts. Mr. Talwar further
sought to submit that Ordinance 7 of the Ordinances applicable to the GGSIPU, properly
understood, did not allow change of shift and that, therefore, even if, in the past, they
had been allowing change of shift, treating it as migration, that could not create any
estoppel against the GGSIPU, as there could be no estoppel against the statute. Equally,
he submitted, the principles of promissory estoppel and legitimate expectation would
also not apply. Mr. Talwar reiterated the stance, of the GGSIPU in its counter-affidavit,
to the effect that the petitioner, and as also the petitioners in the other writ petitions, were
seeking, by a circuitous “backdoor” route, to secure upgradation to a discipline, to which
they could not obtain admission on merit, for want of requisite SGPA. This, he submits,
could not be tolerated at all. Mr. Talwar submits, therefore, that the writ petitions are
totally devoid of merit, and warrant dismissal.

Contention of the Petitioner

Upgradation, it is sought to be contended by the petitioner, covered cases of change of
discipline/branch in the same shift, whereas, in the present case, the change of
discipline/branch, as sought, was accompanied by a request for change of shift. The
requisite conditions, entitling the petitioner for the said request, as contained in the
Admission Brochure for the 2017-2018 academic session, as well as the notice, dated 9th
August, 2018 supra, inviting applications for change of shift, it is contended, stand
fulfilled by the petitioner. The petitioners have, finally, sought to contend that, in earlier
years, the GGSIPU had been acceding to requests for change of shift and
branch/discipline and that, therefore, there was no justification for the GGSIPU adopting
a contrary stance in the present year.
Contention of the Respondent
In its counter-affidavit, the GGSIPU has categorically reasserted its stand that change of

376
branch amounts to upgradation/change of discipline within an institution, and is only
allowed under the upgradation policy of the GGSIPU and the Regulations applicable in
that regard, which permit upgradation only on the basis of the marks, i.e. the Semester
Grade Point Average (SGPA) obtained by the students in the first Semester of the
B.Tech. Programme. The petitioner, it is submitted, did not possess the requisite SGPA,
for upgradation to the CSE Branch, and was indirectly attempting to obtain such
upgradation by the present writ petition, under the guise of change of shift. This, it is
asserted, was completely impermissible. It is further asserted, in the counter-affidavit,
that, in fact, vide notice dated 10th May, 2018, the GGSIPU had invited applications for
upgradation/change of Branch in the B.Tech. Programmes, from students who would be
promoted to the third Semester in the 2018-2019 academic year. The said notice, it is
pointed out, specifically stated that upgradation/change of Branch would be done strictly
on the basis of the SGPA obtained by the students in the first semester of the said
programme, subject to availability of vacancies. It was also pointed out, in the said
notice, that, up to a maximum of 5% of the sanctioned intake of the 2017-2018 academic
session, in which the students had been admitted, would be filled on the basis of
upgradation/change of Branch, subject to availability of vacancies. A copy of the said
notice, dated 10th May, 2018, issued by the GGSIPU, has been annexed to its counter-
affidavit, and merits reproduction, in extensor. The petitioner, it is pointed out, applied
for upgradation/change of Branch. It is seen that, in the said application, the petitioner
gave, as her first preference for upgradation/change of Branch, “CSE - 1st shift”, and, as
her second preference, “IT - 1st shift”. The petitioner, being low on merit on the basis of
her SGPA in the first semester, the GGSIPU submits, in its counter-affidavit, which her
request for change of branch/upgradation could not be acceded to. Having thus failed to
secure upgradation to the CSE Branch, of her choice, on merit, for want of requisite
SGPA, the petitioner has chosen, the GGSIPU alleges, to obtain such upgradation by the
circuitous route of filing the present writ petition, relying on the notice, dated 9th
August, 2018, issued by the GGSIPU inviting applications for migration, in terms of
Ordinance 7. The GGSIPU also reiterates the decision, taken in the meeting of the Sub-
Committee of the Academic Council, to the effect that requests for change of shift could
not be regarded as requests for ‘migration’. This, it is submitted, was highlighted by the

377
requirement, in Ordinance 7, for obtaining of NOCs from both the Institutes, where
migration was sought. Clearly, this implied that migration could only be between
institutes, and not within one Institute/College. Detailed arguments were advanced on
behalf of the petitioners by Mr. Mukesh Gupta, learned counsel, on behalf of the
respondent college, by Mr. R.K. Saini, learned counsel and on behalf of respondent
University, by Mr. Mukul Talwar, learned Senior counsel, instructed by Ms. Anita
Sahani, learned counsel. Learned counsel of either side essentially reiterated the
contentions advanced in their respective pleadings, to which detailed allusion already
stands made hereinabove. Learned counsel for the petitioners emphasized the fact that, in
the past, applications for change of shift and branch/discipline, simultaneously, had been
entertained, and invited attention, in this regard, to a communication dated 5th October,
2016, addressed by GGSIPU, to the Director, MAIT, informing the latter that,
consequent to their migration to MAIT, the said students named therein had been allotted
new university Enrollment Numbers. A list of as many as 154 students followed, of
which several were cases in which there was change of shift as well as branch/discipline.
It was emphasized that, having thus entertained requests for change of shift and branch
in the immediately preceding year, if a decision had been taken, not to entertain such
applications in the 2018-2019 academic session, the said decision ought to have been
made known to students clearly and unambiguously. Else, the student had a legitimate
expectation that, they were entitled to apply, in respect of the notice, dated 9th August,
2018 (supra) for change of shift and branch. The observation, that NOC from both
institutions had not been taken, was, it was submitted, totally vitiated by non-application
of mind, as the migration that was sought was from the morning to the evening shift of
the same institution, the authorized signatory for both the shifts being one and the same.
As such, the question of taking two NOCs did not arise. Insofar as the stand, of the
GGSIPU, to the effect that ‘migration’ did not include change of shift, was concerned,
learned counsel for the petitioners disputed the very right of GGSIPU to urge such a
stand, which, according to them, flew in the face of the Notice dated 9th August, 2018
(supra), which clearly invited applications for change of shift, treating it as migration.
Learned counsel for the petitioners sought to capitalize on the submission, of learned
Senior counsel for GGSIPU, to the effect that the change in branch/discipline amounted

378
to upgradation, which could take place only in the same shift. Learned counsel for the
petitioners would seek to contend that this submission, of the GGSIPU, indicated, in fact,
that, inasmuch as the change of branch had been sought, by the petitioners, across shifts,
it could not be treated as upgradation. Further, regarding the submission of learned
counsel for the GGSIPU, to the effect that the petitioner had failed to secure the requisite
SGPA for change of branch from ECE to CSE, learned counsel for the petitioners would
submit that the SGPA obtained was relevant only to requests for change of branch in the
same shift. Where, on the other hand, change of branch was being sought across shifts,
as in the present case, the petitioners were already placed in disadvantage in having to
move from the evening to the morning shift and could not, therefore, be subjected to
requirement of obtaining any minimum SGPA. Mr. Talwar submits, therefore, that the
writ petitions are totally devoid of merit, and warrant dismissal.
Judgment
…I am unable to appreciate Mr. Saini’s submission that, a distinction should be drawn
between a request for change for branch across shifts, and a request for change for
branch within the same shift. There is nothing to indicate that two such independent
concepts of change in branch existed. In fact, the notice dated 10th May, 2018 (supra)
provides for change in branch only within the same shift. It also clarified, leaving no
scope for uncertainty, which all such requests for change in branch came within the
ambit of the expression ‘upgradation’, and that such upgradation could only be within a
shift, and not across shifts. Be it noted, in this connection, that it is neither pleaded by the
petitioners, nor argued at the bar, that, in the said earlier years, notices, such as the
Notice dated 10th May, 2018 (supra) and 9th August, 2018 (supra), which set out,
clearly, the separate, and distinct, dispensations in respect of change of branch, and
change of shift, respectively, had been issued. In the face of the said Notices, however,
and in the absence of any other Notice, or any provision of the applicable Regulations,
permitting application for change of shift along with change of branch, i.e. permitting
change of branch across shifts, it is not possible for this court, even in exercise of its
equitable jurisdiction under Article 226 of the Constitution of India, to grant relief to the
petitioner. The GGSIPU cannot, therefore, be said to have acted illegally, in issuing the
impugned order/communication, dated 2nd November, 2018, rejecting the petitioner's

379
requests for change of shift and branch. The petitioners, in this writ petition, did not seek
any change of branch, but merely sought change of shift. Their applications stand
rejected, by an order, dated 2nd November, 2018, solely on the basis that change of shift
was not permissible, or covered by Ordinance 7 of the Ordinances governing the
GGSIPU, which dealt with ‘migration’. In view of my findings, in paras 37 to 45, that it
is not open to the GGSIPU to so contend, as the students applied consequent to the
Notice dated 9th August, 2018, which specifically invited applications for change of
shift, the decision, of the GGSIPU, to reject the petitioners applications, on the ground
that such change did not amount to ‘migration’ within the meaning of Ordinance 7 of the
Ordinances governing the GGSIPU, cannot sustain. As I have held, the issue of whether
applications for change of shift, simplicitor, would amount to seeking ‘migration’, within
the meaning of Ordinance 7, or not, is really tangential to the issue at hand. Once the
GGSIPU invited applications for change of shift, it could not reject their applications
merely on the ground that change of shift did not fall within the ambit of ‘migration’, as
conceptualised in Ordinance 7. The mere fact that, in the Notice, dated 9th August, 2018,
applications for change of shift were invited, treating change of shift as amounting to
migration, would not make any difference to this legal position. The petitioner could not
be concerned with whether change of shift amounted to migration, or did not amount to
migration. They applied, in response to the Notice dated 9th August, 2018, which invited
applications for change of shift, and their applications were, therefore, entitled to be
considered on merits, and not rejected on the ground that such applications did not fall
within the ambit of Ordinance 7. The order, dated 2nd November, 2018 (supra),
impugned in this writ petition, also sought to invoke the decision of the Sub-Committee
of the Academic Council, in its meeting dated 3rd October, 2018 (supra). The said
invocation, too, is misguided as, in the said meeting; it was recommended that, for the
2018-2019 academic sessions, if NOC had been obtained, the cases could be treated as
genuine, in order that the students were not prejudiced.
In view thereof, the decision, dated 2nd November, 2018 (supra), impugned in this writ
petition, cannot sustain in law and is, accordingly, quashed. This writ petition, therefore,
stands allowed. The petitioners would be entitled to change of shift, as applied for, by
them and, if they are presently studying in the “changed” shifts, would be entitled to

380
continue. There shall be no order as to costs.
In this writ petition, Petitioner No. 1 Kartik Kaushik sought change of shift and branch,
whereas Petitioner No. 2, Aayushi Batra, only sought change of .Following the above
discussion, therefore, this writ petition would be allowed qua Petitioner No. 2 Aayushi
Batra, but stands dismissed qua Petitioner No. 1 Kartik Kaushik. 68. There shall be no
order as to costs. The petitioner in this writ petition sought only change of branch,
without change of shift. This application was, therefore, entitled to be considered on the
basis of his SGPA, in view of the Notice dated 10th May, 2018 (supra), issued by the
GGSIPU. The writ petition does not contain any averment, to the effect that the
petitioner had scored the requisite SGPA, in his first semester, to be allowed change in
shift from EEE to IT, as sought by him. At the same time, the order, whereby the
petitioner's request was rejected, and which has been impugned in the writ petition,
merely reads “As per approval of CA (Competent Authority) and notice dated 25th
November, 2018, request was not acceded to”. No reasons, for the said decision, are
forthcoming, or have been communicated to the petitioner. For want of any reasons,
therefore, the decision cannot sustain in law and has, therefore, necessarily to be set
aside. Having done so, however, the GGSIPU would have to reconsider the case of the
petitioner, keeping in view the SGPA obtained by him in his first semester. In case, on
the basis of the said SGPA, the petitioner qualifies for change of branch, as sought by
him, from EEE to IT, he would be entitled to such change. Else, his request would be
liable to be rejected. The GGSIPU is, therefore, directed to re-examine the case of the
petitioner, Rishav Sharma, in view of the above, and take a fresh decision thereon,
within a period of one week from today. The decision, as taken, would be communicated
to the petitioner forthwith. The writ petition, therefore, stands allowed to the above
limited extent, with no order as to costs. Petition allowed

381
 Reappreciating evidence in Review and Appeal
Pawan Kumar v State of Himachal Pradesh142
Citation: 2017 Indlaw SC 351, (2017) 7 SCC 780, AIR 2017 SC 2459
Cases Referred
1. Jadunath Singh and others v. State of Uttar Pradesh (1971) 3 SCC 577 1971 Indlaw SC
613
2. Sheo Swarup v. King Emperor AIR 1934 PC 227 1934 Indlaw PC 30
3. Nur Mohammad v. Emperor AIR 1945 PC 151 1945 Indlaw PC 46.
4. Surajpal Singh v. State AIR 1952 SC 52 1951 Indlaw SC 23
5. Sanwat Singh v. State of Rajasthan AIR 1961 SC 715 1960 Indlaw SC 446."
6. Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 1973 Indlaw SC
181,
7. Girja Prasad (dead) by LRs. v. State of M.P. (2007) 7 SCC 625 2007 Indlaw SC 849
8. State of Uttar Pradesh v. Ajai Kumar (2008) 3 SCC 351 2008 Indlaw SC 183,
9. State of Rajasthan v. Sohan Lal (2004) 5 SCC 573 2004 Indlaw SC 331
10. State of Karnataka v. K. Gopalakrishna (2005) 9 SCC 291 2005 Indlaw SC 78
11. Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 2007 Indlaw SC 121
12. Gulzari Lal v. State of Haryana (2016) 4 SCC 583 2016 Indlaw SC 71
13. Laxman v. State of Maharashtra 14 (2002) 6 SCC 710 2002 Indlaw SC 1921
14. In Atbir v. Government of NCT of Delhi (2010) 9 SCC 1 2010 Indlaw SC 629
15. Gulzari Lal 2016 Indlaw SC 71
16. Vijay Pal v. State (Government of NCT of Delhi) (2015) 4 SCC 749 2015 Indlaw SC
160,
17. Mafabhai Nagarbhai Raval v. State of Gujarat (1992) 4 SCC 69 1992 Indlaw SC 55
18. Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605
2009 Indlaw SC 1078
19. Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618 2001 Indlaw SC 115
20. Praveen Pradhan v. State of Uttaranchal & another (2012) 9 SCC 734 2012 Indlaw SC
350
21. Randhir Singh and another v. State of Punjab (2004) 13 SCC 129 2004 Indlaw SC 859,

142 Bench : Dipak Misra, A.M. Khanwilkar, Mohan M. Shantanagoudar

382
 22. Amalendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707 2009 Indlaw SC
1525,
23. Kishori Lal v. State of M.P. (2007) 10 SCC 797 2007 Indlaw SC 671
24. Kishangiri Mangalgiri Goswami v. State of Gujarat (2009) 4 SCC 52 2009 Indlaw SC
77
25. Netai Dutta v. State of W.B. (2005) 2 SCC 659 2005 Indlaw SC 138
26. Deputy Inspector General of Police and another v. S. Samuthiram (2013) 1 SCC 598
2012 Indlaw SC 491
Facts of the Case
The present appeal, by special leave, depicts the sorrowful story of a young girl, in the
middle of her teens, falling in love with the accused-appellant and driven by the highest
degree of youthful fixation, elopes with him, definitely in complete trust, and after the
accused is booked for the offences punishable under Sections 363, 366 and 376 of the Indian
Penal Code (IPC), she stands behind him like a colossus determined to support which
consequently leads to his acquittal. In all possibility, she might have realized that the
accused should not be punished, for she was also equally at fault. Be that as it may, as per
the prosecution version, he was extended the benefit of acquittal. The sad story gets into a
new and different beginning. The accused feels that he has been prosecuted due to the
prosecutrix and gets obsessed with idea of threatening the girl and that continues and
eventually eve-teasing becomes a matter of routine. Here, as the exposition of the
prosecution uncurtains, a situation is created by the accused which becomes insufferable,
where the young girl feels unassured and realizes that she could no more live in peace. The
feeling gets embedded and the helpless situation compels her to think that the life is not
worth living. Resultantly, she pours kerosene on her body and puts herself ablaze but death
does not visit instantly and that is how she was taken to a nearby hospital, where in due
course of investigation, her dying declaration is recorded, but she ultimately succumbs to
her injuries and the "prana" leaves the body and she becomes a "body" - a dead one.
Question before the Court of Law and contention of the Prosecution
The question that is required to be answered is whether the accused can be convicted
under Section 306 IPC. The accused abjured his guilt and pleaded false implication. The
prosecution in order to establish the charge examined 14 witnesses. The defence shoes
not to examine any witness. The learned Sessions Judge, after hearing the arguments,
posed the following question:

383
"Whether the prosecution has successfully proved the liability of accused under Section
306 of IPC beyond the scope of all reasonable doubts?";and answered the question in the
negative and consequently acquitted the accused-appellant vide judgment and order dated
16th July, 2010.
Mr. D.K. Thakur, learned Additional Advocate General appearing for the respondent-
State, in support of the impugned judgment, would contend that the High Court has
reappreciated the evidence and on such reappraisal has found the conclusion pertaining
to medical condition of the victim is wholly incorrect and accordingly opined that the
acquittal recorded by the learned trial Judge is unsupportable and, therefore, this Court
should give the stamp of approval to the same.
The prosecution appealed for reappreciating the evidence, reversed the judgment of
acquittal rendered by the trial court and convicted the accused-appellant under Section
306 IPC and sentenced him to suffer rigorous imprisonment for seven years and to pay
fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous
imprisonment for a period of one year.
Contention of the Appellant
Mr. Sanchar Anand, learned counsel for the appellant and Mr. D.K. Thakur, learned
Additional Advocate General for the respondent-State. It is submitted by Mr. Anand,
learned counsel for the appellant that the judgment rendered by the learned trial Judge is
absolutely flawless since he has analysed the evidence in great detail and appreciated
them in correct perspective. It is his further submission that the trial court scrutinizing
the medical evidence and the burn injuries sustained by the victim has appositely
discarded the dying declaration, Ex.PW-10/A. It is further put forth that when cogent
reasons have been ascribed by the trial court for not placing reliance upon the dying
declaration and the testimony of the prosecution witnesses, the High Court, in such a
fact situation, should have been well advised not to interfere with the judgment of
acquittal. It is also canvassed by him that when the appreciation of evidence by the trial
court is not perverse and the view expressed by it is a plausible one, the High Court
should not have interfered with the judgment of acquittal. As is demonstrable, the High
Court has not reversed the judgment of acquittal solely on the basis of dying declaration.
It has placed reliance on the evidence of the parents and also other witnesses. It has also

384
treated the version of the Pradhan of the Gram Panchayat as credible. All these
witnesses have deposed that the accused after his acquittal engaged himself in
threatening and teasing the girl. He did not allow her to live in peace. The harassment
caused to her had become intolerable and unbearable. The father had deposed that the
girl had told him on number of occasions and he had complained to the Pradhan. All
these amount to active part played by the accused. It is not a situation where a person is
insulted on being asked to pay back a loan. It is not a situation where someone feels
humiliated on a singular act. It is a different situation altogether. The young girl living in
a village was threatened and teased constantly. She could not bear it any longer. There is
evidence that the parents belong to the poor strata of the society. As the materials on
record would reflect, the father could not afford her treatment when case of his daughter
was referred to the hospital at Chandigarh. The impecuniosity of the family is manifest.
It is clearly evident from the materials brought on record that the conduct of the accused
was absolutely proactive.
In a civilized society male chauvinism has no room. The Constitution of India confers
the affirmative rights on women and the said rights are perceptible from Article 15 of
the Constitution. When the right is conferred under the Constitution, it has to be
understood that there is no condescending. A man should not put his ego or, for that
matter, masculinity on a pedestal and abandon the concept of civility. Egoism must
succumb to law. Equality has to be regarded as the summum bonum of the
Constitutional principle in this context. The instant case portrays the deplorable
depravity of the appellant that has led to a heart-breaking situation for a young girl who
has been compelled to put an end to her life. Therefore, the High Court has absolutely
correctly reversed the judgment of acquittal and imposed the sentence. It has appositely
exercised the jurisdiction and we concur with the same. Consequently, the appeal, being
devoid of any merit, stands dismissed.

385
 Witness unable to communicate (Deaf and Dumb)
State Of Rajasthan v Darshan Singh @ Darshan Lal143
2012 Indlaw SC 141, (2012) 5 SCC 789, AIR 2012 SC 1973
Cases Referred
1. Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 1951
Indlaw SC 24
2. M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., AIR 1954
SC 300 1954 Indlaw SC 154
3. Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 1994 Indlaw SC 1476

Facts of the Case

Buta Singh (PW.15) lodged an oral report on 4.5.2001 at 1.00 a.m. at P.S. Hanumangarh,
District Hanumangarh stating that on intervening night between 3/4.5.2001 at about 12.15
a.m., Jaswant Singh (PW.1) received a telephone call from Dr. Amarjeet Singh Chawla
(PW.4) to the effect that Jaswant Singh's daughter was perturbed and, therefore, he must
immediately reach the house of his son-in-law Kaku Singh. Buta Singh (PW.15),
informant, also proceeded towards the house of Kaku Singh deceased, along with his son
Gurmail Singh. They met Jaswant Singh (PW.1) and Geeta (PW.16), his daughter in the
lane. The main door of the house was closed but the window of the door was open. They
went inside through the window and found two cots lying on some distance where fresh
blood was lying covered with sand. They also found the dead body of Kaku Singh in the
pool of blood covered by a quilt in the room. On being asked, Geeta (PW.16) (deaf and
dumb), wife of Kaku Singh deceased communicated by gestures that Darshan Singh,
respondent-accused, had stayed with them in the night. He had given a pill with water to

143 Bench -Balbir Singh Chauhan, Dipak Misra

386
Kaku Singh and thus he became unconscious. Two more persons, accomplice of Darshan
Singh came from outside and all the three persons inflicted injuries on Kaku Singh with
sharp edged weapons. Geeta (PW.16) got scared and ran outside. The motive for
committing the offence had been that one Chhindri Bhatni was having illicit relationship
with Kaku Singh, deceased, and about 8-10 months prior to the date of incident Kaku Singh
caused burn injuries to Geeta (PW.16) at the instigation of Chhindri Bhatni. However,
because of the intervention of the community people, Kaku Singh, deceased, severed his
relationship with Chhindri Bhatni, who became annoyed and had sent her brother Darshan
Singh along with other persons who killed Kaku Singh. On the basis of the said report FIR
No. 262 of 2001 was registered under Sections 449, 302, 201 and 120B IPC against the
respondent at P.S Hanumangarh and investigation ensued. The respondent was arrested and
during interrogation, he made a voluntary disclosure statement on the basis of which the
I.O. got recovered a blood stained Kulhari and clothes the respondent was wearing at the
time of commission of offence. After completion of the investigation, the police filed
charge sheet against the respondent under Sections 302 and 201 IPC and the trial
commenced. During the course of trial, the prosecution examined as many as 23 witnesses
and tendered several documents in evidence. However, Geeta (PW.16) was the sole eye-
witness of the occurrence, being deaf and dumb, her statement was recorded in sign
language with the help of her father Jaswant Singh (PW.1) as an interpreter. After
completion of all the formalities and conclusion of the trial, the trial court placed reliance
upon the evidence of Geeta (PW.16) and recovery etc., and convicted the respondent vide
judgment and order dated 15.1.2003 and imposed the punishment as mentioned here-in-
above. Aggrieved, the respondent preferred Criminal Appeal No. 96 of 2003 before the
High Court which has been allowed vide impugned judgment and order dated 29.5.2006.
Hence, this appeal.
Argument of the Counsels- State
Dr. Manish Singhvi, learned Additional Advocate General, appearing for the appellant-
State, has submitted that the prosecution case was fully supported by Geeta (PW.16),
Jaswant Singh (PW.1) and Buta Singh (PW.15) which stood fully corroborated by the
medical evidence. Dr. Rajendra Gupta (PW.17) proved the postmortem report and
supported the case of the prosecution. Therefore, the High Court committed an error by

387
reversing the well-reasoned judgment of the trial court. Thus, the appeal deserves to be
allowed.
Counsel for the Respondent
Per contra, learned counsel appearing for the respondent has opposed the appeal contending
that the deposition of Geeta (PW.16) cannot be relied upon for the reason that she is deaf
and dumb and her statement has not been recorded as per the requirement of the provisions
of Section 119 of the Evidence Act, 1872. The deposition of Jaswant Singh (PW.1) cannot
be relied upon as he was having an eye on the property of Kaku Singh, deceased. The High
Court has considered the entire evidence and re-appreciated the same in correct
perspective. There are fixed parameters for interfering with the order of acquittal which we
do not fit in the facts and circumstances of the case, therefore, the appeal is liable to be
dismissed. We have considered the rival submissions made by the learned counsel for the
parties and perused the records. The only question that remains for consideration is whether
the respondent could be held responsible for causing the death of Kaku Singh, deceased.
Geeta (PW.16) is the star witness of the prosecution. According to her at 6.30 p.m. on the
day of incident, respondent- accused came to her house. The accused and her husband
consumed liquor together. The respondent-accused had mixed a tablet in the glass of water
and the same was taken by her husband Kaku Singh. She served the food to both of them
and subsequently, all the three persons slept on cots in the same room. During the night two
persons also joined the respondent-accused.
Reappreciation of the evidence by HC
The High Court re-appreciated the entire evidence and came to the following conclusions:-
(I) There were major contradictions in ocular evidence and medical evidence. As per the
statement of Geeta (PW.16), Kaku Singh, deceased and Darshan Singh, respondent-
accused had consumed liquor in the evening but this was not corroborated from medical
evidence. Dr. Rajendra Gupta (PW.17) has admitted that there was nothing to show that
deceased Kaku Singh had consumed liquor. Her version of giving a pill for intoxication of
deceased could not be proved by medical evidence. The viscera were sent to Forensic
Science Laboratory but the report did not show that any sort of poison had been
administered to the deceased.
(II) The version of Geeta (PW.16) did not appear to be trustworthy as she deposed that

388
Darshan Singh accused, Kaku Singh deceased and the witness had slept in the same room.
It was natural that a husband and wife would not allow a stranger to sleep with them, even
if Darshan Singh, accused, was known to them. In view of the fact that relationship
between Geeta and Chhindri Bhatni had never been cordial, it could not be believed that
Geeta (PW.16) would permit the brother of Chhindri Bhatni to sleep with them.
(III) Geeta (PW.16) had admitted in her cross-examination that Chhindri Bhatni had 10
brothers and none of them had ever visited her house. Chhindri Bhatni was living in the
same house with deceased and Geeta. She further admitted that she had never seen Darshan
Singh, respondent-accused, prior to the date of incident. Even, she could not disclose the
features of the accused to the police.
(IV) There could be no motive for Darshan Singh, respondent- accused, to kill Kaku Singh,
deceased for the reason that even as per deposition of Geeta (PW.16), Kaku Singh had
severed the relationship with Chhindri Bhatni long ago.
(V) The name of Darshan Singh, respondent-accused, did not find place in the FIR. The
accused persons had been mentioned therein as Chhindri Bhatni and her brother.
(VI) So far as the recovery of kulhari (Ext. P-12) is concerned, even if believed, did not
lead to any interference for the simple reason that FSL report (Ext. P-64) revealed that
there was no human blood found on kulhari. Therefore, the evidence of recovery of kulhari
could not be used as incriminating circumstance against the accused.
(VII) The evidence on record revealed that Geeta (PW.16) and Jaswant Singh (PW.1) were
apprehending that Kaku Singh deceased would alienate his irrigated land to Chhindri
Bhatni and, therefore, it became doubtful whether Darshan Singh, respondent/accused
could have any motive to kill Kaku Singh, deceased.
(VIII) The evidence of Geeta (PW.16) was recorded in sign language with the help of her
father Jaswant Singh (PW.1). Admittedly, neither she nor her father while acting as her
interpreter had been administered oath. The signs have been recorded along with its
interpretation. There was possibility of misinterpretation of the signs made by her, as her
father could do it purposely, the statement of Geeta (PW.16) did not inspire confidence.
(IX) Deposition of Geeta (PW.16) could not be relied upon as it was not safe for the court
to embark upon the examination of deaf and dumb witness, on her information without the
help of an expert or a person familiar of her mode of conveying ideas to others in day to

389
day life. Further, such a person should not be an interested person.
In the instant case, Jaswant Singh (PW.1) had participated in the investigation and was an
interested person.
We have also gone through the entire evidence and concur with the findings recorded by
the High Court. Basic argument which has been advanced by both the parties before us is
on the admissibility and credibility of sole eye-witness Geeta (PW.16). Admittedly, Geeta
(PW.16) had not been administered oath, nor Jaswant Singh (PW.1), her father who acted
as interpreter when her statement was recorded in the court. In view of provisions of
Sections 4 and 5 of the Oaths Act, 1969, it is always desirable to administer oath or
statement may be recorded on affirmation of the witness. This Court in Rameshwar S/o
Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 1951 Indlaw SC 24, has
categorically held that the main purpose of administering of oath to render persons who
give false evidence liable to prosecution and further to bring home to the witness the
solemnity of the occasion and to impress upon him the duty of speaking the truth, further
such matters only touch credibility and not admissibility. However, in view of the
provisions of Section 7 of the Oaths Act, 1969, the omission of administration of oath or
affirmation does not invalidate any evidence.
In M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., AIR 1954 SC
300 1954 Indlaw SC 154, this Court held that a person can "be a witness" not merely by
giving oral evidence but also by producing documents or making intelligible gestures as in
the case of a dumb witness (See Section 119 of the Evidence Act) or the like.
The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf
and dumb persons were earlier contemplated in law as idiots. However, such a view has
subsequently been changed for the reason that modern science revealed that persons
affected with such calamities are generally found more intelligent, and to be susceptible to
far higher culture than one was once supposed. When a deaf and dumb person is examined
in the court, the court has to exercise due caution and take care to ascertain before he is
examined that he possesses the requisite amount of intelligence and that he understands the
nature of an oath. On being satisfied on this, the witness may be administered oath by
appropriate means and that also be with the assistance of an interpreter. However, in case a
person can read and write, it is most desirable to adopt that method being more satisfactory

390
than any sign language. The law required that there must be a record of signs and not the
interpretation of signs.
In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 1994 Indlaw SC 1476, this
Court has considered the evidentiary value of a dying declaration recorded by means of
signs and nods of a person who is not in a position to speak for any reason and held that the
same amounts to a verbal statement and, thus, is relevant and admissible. The Court further
clarified that verbal' statement does not amount to 'oral' statement. In view of the provisions
of Section 119 of the Evidence Act, the only requirement is that witness may give his
evidence in any manner in which he can make it intelligible, as by writing or by signs and
such evidence can be deemed to be oral evidence within the meaning of Section 3 of the
Evidence Act. Signs and gestures made by nods or head are admissible and such nods and
gestures are not only admissible but possess evidentiary value.
Language is much more than words. Like all other languages, communication by way of
signs has some inherent limitations, since it may be difficult to comprehend what the user
is attempting to convey. But a dumb person need not be prevented from being a credible
and reliable witness merely due to his/her physical disability. Such a person though unable
to speak may convey himself through writing if literate or through signs and gestures if he
is unable to read and write.
A case in point is the silent movies which were understood widely because they were able
to communicate ideas to people through novel signs and gestures. Emphasised body
language and facial expression enabled the audience to comprehend the intended message.
To sum up, a deaf and dumb person is a competent witness.
If in the opinion of the Court, oath can be administered to him/her, it should be so done.
Such a witness, if able to read and write, it is desirable to record his statement giving him
questions in writing and seeking answers in writing.
In case the witness is not able to read and write, his statement can be recorded in sign
language with the aid of interpreter, if found necessary. In case the interpreter is provided,
he should be a person of the same surrounding but should not have any interest in the case
and he should be administered oath. In the instant case, there is sufficient material on
record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial
court when she wrote the telephone number of her father. We fail to understand as to why

391
her statement could not be recorded in writing, i.e., she could have been given the questions
in writing and an opportunity to reply the same in writing.
Be that as it may, her statement had been recorded with the help of her father as an
interpreter, who for the reasons given by the High Court, being an interested witness who
had assisted during the trial, investigation and was examined without administering oath,
made the evidence unreliable. In such a fact-situation, the High Court has rightly given the
benefit of doubt and acquitted the respondent. We are fully aware of our limitation to
interfere with an order against acquittal. In exceptional cases where there are compelling
circumstances and the judgment under appeal is found to be perverse, the appellate court
can interfere with the order of acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the trial Court's acquittal bolsters
the presumption of his innocence. Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for interference. If we examine
the judgment of the High Court in light of the aforesaid legal proposition, we do not find it
to be a fit case to interfere with the order of acquittal. The appeal lacks merit and, is
accordingly, dismissed.

392
 Section 112 and 114
144
Dipanwita Roy v Ronobroto Roy
Citation: 2014 Indlaw SC 711, AIR 2015 SC 418
Principles and Law Established
Hindu Marriage Act, 1955, s. 13 - Indian Evidence Act, 1872, s. 114 -Proof of Adulterous
life style - DNA test Whether HC was justified in directing to conduct DNA test for
substantiating allegation of infidelity of appellant - Also section 112 of the IEA ( Appeal –
SLP)
Facts of the case
The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were
married at Calcutta. Their marriage was registered on 9.2.2003. The present controversy
emerges from a petition filed u/s. 13 of the Hindu Marriage Act, 1955 (hereinafter
referred to as the 'Act') by the respondent, inter alia, seeking dissolution of the marriage
solemnised between the petitioner-wife and the respondent-husband, on 25.1.2003. One
of the grounds for seeking divorce was, based on the alleged adulterous life style of the
petitioner-wife145.

144 Bench : Jagdish Singh Khehar, R.K. Agrawal- The Judgment was delivered by : J. S. Khehar, J
145 For his above assertion, the respondent-husband made the following allegations in paragraphs 23 to 25
of his petition:
"23. That since 22.09.2007 the petitioner never lived with the respondent and did not share bed at all. On a
very few occasion since then the respondent came to the petitioner's place of residence to collect her things
and lived there against the will of all to avoid public scandal the petitioner did not turn the respondent
house on those occasion.
24. That by her extravagant life style the respondent has incurred heavy debts. Since she has not disclosed
her present address to bank and has only given the address of the petitioner. The men and collection agents

393
The above factual position was contested by the petitioner-wife in her reply ….( See the
Original Judgment)
A perusal of the written statement filed on behalf of the petitioner-wife reveals that the
petitioner-wife expressly asserted the factum of cohabitation during the subsistence of
their marriage, and also denied the accusations levelled by the respondent-husband of her
extra marital relationship, as absolutely false, concocted, untrue, frivolous and vexatious.
In order to substantiate his claim, in respect of the infidelity of the petitioner-wife, and to
establish that the son born to her was not his, the respondent-husband moved an
application on 24.7.2011 seeking a DNA test of himself (the respondent-husband) and the
male child born to the petitioner-wife. The purpose seems to be, that if the DNA
examination reflected, that the male child born to the petitioner-wife, was not the child of
the respondent-husband, the allegations made by the respondent- husband in paragraphs
23 to 25 of the petition, would stand substantiated.
The petitioner-wife filed written objections thereto, categorically asserting, that the
factual position depicted in the application filed by the respondent-husband was false,
frivolous, vexatious and motivated. It was asserted that the allegations were designed in a
sinister manner, to cast a slur on the reputation of the petitioner-wife. The petitioner-wife
strongly denied and disputed the statement made at the behest of the respondent-husband
to the effect, that she was leading a fast life in extra marital relationship with Mr. Deven
Shah, and had given birth to a child as a result of her cohabitation with the said Mr.
Deven Shah. She also asserted, that she had a continuous matrimonial relationship with
the respondent-husband, and that, the respondent-husband had factually performed all the
matrimonial obligations with her, and had factually cohabited with her. The petitioner-
wife accordingly sought the dismissal of the application filed by the respondent-husband,
for a DNA test of himself and the male child born to the petitioner-wife. The respondent-
husband filed a reply affidavit reiterating the factual position contained in the application,
and thereby also repudiating the assertions made by the petitioner-wife in her written

of different banks are frequently visiting the petitioner's house and harassing the petitioner. They are
looking for the respondent for recovery of their dues. Notice from Attorney Firms for recovery of due from
the respondent and her credit card statements showing heavy debts are being sent to the petitioner's address.
The respondent purchased one car in 2007 with the petitioner's uncle, Shri Subrata Roy Chowdhary as the
guarantor. The respondent has failed to pay the installments regularly.
25. That the petiitoner states that the respondent has gone astray. She is leading a fast life and has lived in
extra marital relationship with the said Mr. Deven Shah, a well to do person who too is a carrier gentlemen
and has given birth to a child as a result of her cohabitation with Shri Deven Shah. It is reported that the
respondent has given birth to a baby very recently. The respondent is presently living at the address as
mentioned in the cause title of the plaint."
(emphasis is ours)

394
objections.
The Family Court by an order dated 27.08.2012 dismissed the prayer made by the
respondent-husband, for conducting the afore-mentioned DNA test.
Dissatisfied with the order passed by the Family Court on 27.8.2012, the respondent-
husband approached the High Court at Calcutta (hereinafter referred to as the 'High
Court') in its civil revisional jurisdiction by filing CO No.3590 of 2012 u/art. 227 of the
Constitution of India. The High Court allowed the petition filed by the respondent-
husband vide an order dated 6.12.2012. The operative part of the impugned order dated
6.12.2012 is being extracted146 hereunder ( See FN)
Arguments of the counsel for the appellants
Learned counsel for the appellant-wife, in the first instance, invited our attention to S.
112 of the Indian Evidence Act…..Based on Sec 112, learned counsel for the appellant-
wife drew the attention to decision rendered by the Privy Council in Karapaya Servai v.
Mayandi, AIR 1934 PC 49 1933 Indlaw PC 96, wherein it was held, that the word 'access'
used in S. 112 of the Evidence Act, connoted only the existence of an opportunity for
marital intercourse, and in case such an opportunity was shown to have existed during the
subsistence of a valid marriage, the provision by a fiction of law, accepted the same as
conclusive proof of the fact that the child born during the subsistence of the valid
marriage, was a legitimate child. It was the submission of the learned counsel for the
appellant-wife, that the determination of the Privy Council in Karapaya Servai's case
1933 Indlaw PC 96 (supra) was approved by this Court in Chilukuri Venkateshwarly vs.

146 "CO No.3590 of 2012 is disposed of by setting aside the order impugned and by directing the DNA
test of the son of the wife to be conducted at the Central Forensic Science Laboratory on December 20,
2012. The wife will accompany her son to the laboratory at 11 am when the petitioner herein will also be
present and the DNA samples of the child and the husband will be obtained by the laboratory in presence of
both the husband and wife. The expenses for the procedure will be borne by the husband and the result will
be forwarded by the laboratory as expeditiously as possible to be husband, the wife and the trial Court. The
expenses for such purpose will be obtained in advance by the laboratory from the husband.
In addition, prior to December 20, 2012 the husband will deposit a sum of Rs.1 lakh with the trial court
which will stand forfeited and made over to the wife in the event the paternity test on the basis of the DNA
results shows the husband to be the father of the child. In the event the result reveals that the petitioner is
not the father of the child, the money will be refunded by the trial Court to the petitioner herein.
The wife has sought to file an affidavit, but such request has been declined. The wife seeks a stay of
operation of this order, which is refused. CO No.3590 of 2012 is disposed of without any order as to costs.
A copy of this order will immediately be forwarded to the laboratory by the husband such that the
laboratory is ready to obtain the DNA sample on the specified date." (emphasis is ours)
Aggrieved with the order passed by the High Court on 6.12.2012, the petitioner-wife has approached this
Court by filing the instant special leave petition. Notice was issued by this Court on 15.2.2013. The
respondent-husband has entered appearance. Pleadings are complete.

395
Chilukuri Venkatanarayana, 1954 SCR 424 1953 Indlaw SC 121. Learned counsel for the
appellant-wife also invited our attention to a decision rendered by this Court in Goutam
Kundu vs. State of West Bengal and another, (1993) 3 SCC 418 1993 Indlaw SC 1165147.
The Opinion of the Court
We may remember that S. 112 of the Evidence Act was enacted at a time when the
modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic
Acid (RNA) tests were not even in contemplation of the legislature. The result of a
genuine DNA test is said to be scientifically accurate. But even that is not enough to
escape from the conclusiveness of S. 112 of the Act, e.g., if a husband and wife were
living together during the time of conception but the DNA test revealed that the child was
not born to the husband, the conclusiveness in law would remain unrebuttable. This may
look hard from thepoint of view of the husband who would be compelled to bear the
fatherhood of a child of which he may be innocent. But even in such a case the law leans
in favour of the innocent child from being bastardized if his mother and her spouse were
living together during the time of conception. Hence the question regarding the degree of
proof of non-access for rebutting the conclusiveness must be answered in the light of
what is meant by access or non-access as delineated above......Its corollary is that the
burden of the plaintiff-husband should be higher than the standard of preponderance of
probabilities. The standard of proof in such cases must at least be of a degree in between
the two as to ensure that there was no possibility of the child being conceived through the

147wherein this Court, inter alia, held as under:

"(1) That Courts in India cannot order blood test as a matter of course.
(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood
test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to
dispel the presumption arising under S. 112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the consequence of ordering the blood test;
whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give samle of blood for analysis."
Reliance was also placed on the decision rendered by this Court in Kamti Devi and another v. Poshi
Ram, AIR 2001 SC 2226 2001 Indlaw SC 8, wherefrom, the following observations made by this Court,
were sought to be highlighted:
"10. But S. 112 itself provides an outlet to the party who wants to escape from the rigour of that
conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the
time when the child could have been begotten the presumption could be rebutted. In other words, the
party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did
not have the opportunity to approach his wife but that she too did not have the opportunity of
approaching him during the relevant time. Normally, the rule of evidence in other instances is that the
burden is on the party who asserts the positive, but in this instance the burden is cast on the party who
pleads the negative. The raison d'etre is the legislative concern against illegitimatizing a child. It is a
sublime public policy that children should not suffer social disability on account of the laches or lapses of
parents.

396
plaintiff-husband. " (emphasis is ours)
Lastly, learned counsel for the appellant-wife, placed reliance on the decision rendered by
this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009) 12 SCC 454
It was, therefore, the vehement contention of the learned counsel for the appellant-wife,
that the impugned order passed by the High Court directing, holding of a DNA test, of the
respondent-husband and the male child born to the appellant-wife, may be set aside.
All the judgments relied upon by the learned counsel for the appellant were on the
pointed subject of the legitimacy of the child born during the subsistence of a valid
marriage. The question that arises for consideration in the present appeal, pertains to the
alleged infidelity of the appellant-wife. It is not the husband's desire to prove the
legitimacy or illegitimacy of the child born to the appellant. The purpose of the
respondent is, to establish the ingredients of S. 13(1)(ii) of the Hindu Marriage Act, 1955,
namely, that after the solemnisation of the marriage of the appellant with the respondent,
the appellant had voluntarily engaged in sexual intercourse, with a person other than the
respondent. There can be no doubt, that the prayer made by the respondent for conducting
a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous
behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the
issue of legitimacy will also be incidentally involved. Therefore, insofar as the present
controversy is concerned, S. 112 of the Indian Evidence Act would not strictly come into
play. A similar issue came to be adjudicated upon by this Court in Bhabani Prasad Jena
vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC
633 2010 Indlaw SC 574…
In our view, when there is apparent conflict between the right to privacy of a person not
to submit himself forcibly to medical examination and duty of the court to reach the truth,
the court must exercise its discretion only after balancing the interests of the parties and
on due consideration whether for a just decision in the matter, DNA test is eminently
needed. DNA test in a matter relating to paternity of a child should not be directed by the
court as a matter of course or in a routine manner, whenever such a request is made. The
court has to consider diverse aspects including presumption under S. 112 of the Evidence
Act; pros and cons of such order and the test of "eminent need" whether it is not possible
for the court to reach the truth without use of such test.
There is no conflict in the two decisions of this ourt, namely, Goutam Kundu vs. State of
West Bengal (1993) 3 SCC 418 1993 Indlaw SC 1165 and Sharda vs. Dharmpal (2003) 4
SCC 493 2003 Indlaw SC 306. In Goutam Kundu, it has been laid down that courts in
India cannot order blood test as a matter of course and such prayers cannot be granted to
have roving inquiry; there must be strong prima facie case and the court must carefully
examine as to what would be the consequence of ordering the blood test. In Sharda, while
concluding that a matrimonial court has power to order a person to undergo a medical

397
test, it was reiterated that the court should exercise such a power if the applicant has a
strong prime facie case and there is sufficient material before the court. Obviously,
therefore, any order for DNA test can be given by the court only if a strong prima facie
case is made out for such a course.
Insofar as the present case is concerned, we have already held that the State Commission
has no authority, competence or power to order DNA test. Looking to the nature of
proceedings with which the High Court was concerned, it has to be held that the High
Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court
overlooked a very material aspect that the matrimonial dispute between the parties is
already pending in the court of competent jurisdiction and all aspects concerning
matrimonial dispute raised by the parties in that case shall be adjudicated and determined
by that court. Should an issue arise before the matrimonial court concerning the paternity
of the child, obviously that court will be competent to pass an appropriate order at the
relevant time in accordance with law. In any view of the matter, it is not possible to
sustain the order passed by the High Court. " (emphasis is ours)
It is therefore apparent, that despite the consequences of a DNA test, this Court has
concluded, that it was permissible for a Court to permit the holding of a DNA test, if it
was eminently needed, after balancing the interests of the parties. Recently, the issue was
again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik
and another, (2014) 2 SCC 576 2014 Indlaw SC 5, wherein this Court held as under:
Here, in the present case, the wife had pleaded that the husband had access to her and, in
fact, the child was born in the said wedlock, but the husband had specifically pleaded that
after his wife left the matrimonial home, she did not return and thereafter, he had no
access to her. The wife has admitted that she had left the matrimonial home but again
joined her husband. Unfortunately, none of the courts below have given any finding with
regard to this plea of the husband that he had not any access to his wife at the time when
the child could have been begotten.
As stated earlier, the DNA test is an accurate test and on that basis it is clear that the
appellant is not the biological father of the girl child. However, at the same time, the
condition precedent for invocation of S. 112 of the Evidence Act has been established
and no finding with regard to the plea of the husband that he had no access to his wife at
the time when the child could have been begotten has been recorded. Admittedly, the
child has been born during the continuance of a valid marriage. Therefore, the provisions
of S. 112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the
appellant. At the same time, the DNA test reports, based on scientific analysis, in no
uncertain terms suggest that the appellant is not the biological father. In such
circumstances, which would give way to the other is a complex question posed before us.
We may remember that S. 112 of the Evidence Act was enacted at a time when the

398
modern scientific advancement and DNA test were not even in contemplation of the
legislature. The result of DNA test is said to be scientifically accurate. Although S. 112
raises a presumption of conclusive proof on satisfaction of the conditions enumerated
therein but the same is rebuttable. The presumption may afford legitimate means of
arriving at an affirmative legal conclusion. While the truth or fact is known, in our
opinion, there is no need or room for any presumption. Where there is evidence to the
contrary, the presumption is rebuttable and must yield to proof. The interest of justice is
best served by ascertaining the truth and the court should be furnished with the best
available science and may not be left to bank upon presumptions, unless science has no
answer to the facts in issue. In our opinion, when there is a conflict between a conclusive
proof envisaged under law and a proof based on scientific advancement accepted by the
world community to be correct, the latter must prevail over the former.
We must understand the distinction between a legal fiction and the presumption of a fact.
Legal fiction assumes existence of a fact which may not really exist. However, a
presumption of a fact depends on satisfaction of certain circumstances. Those
circumstances logically would lead to the fact sought to be presumed. S. 112 of the
Evidence Act does not create a legal fiction but provides for presumption.
The husband's plea that he had no access to the wife when the child was begotten stands
proved by the DNA test report and in the face of it, we cannot compel the appellant to
bear the fatherhood of a child, when the scientific reports prove to the contrary. We are
conscious that an innocent child may not be bastardised as the marriage between her
mother and father was subsisting at the time of her birth, but in view of the DNA test
reports and what we have observed above, we cannot forestall the consequence. It is
denying the truth. "Truth must triumph" is the hallmark of justice." (emphasis is ours)
This Court has therefore clearly opined, that proof based on a DNA test would be
sufficient to dislodge, a presumption under S. 112 of the Indian Evidence Act.
It is borne from the decisions rendered by this Court in Bhabani Prasad Jena 2010 Indlaw
SC 574 (supra), and Nandlal Wasudeo Badwaik 2014 Indlaw SC 5 (supra), that
depending on the facts and circumstances of the case, it would be permissible for a Court
to direct the holding of a DNA examination, to determine the veracity of the allegation(s),
which constitute one of the grounds, on which the concerned party would either succeed
or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it
should be so avoided. The reason, as already recorded in various judgments by this Court,
is that the legitimacy of a child should not be put to peril.
The question that has to be answered in this case, is in respect of the alleged infidelity of
the appellant-wife. The respondent-husband has made clear and categorical assertions in
the petition filed by him u/s. 13 of the Hindu Marriage Act, alleging infidelity. He has
gone to the extent of naming the person, who was the father of the male child born to the

399
appellant-wife. It is in the process of substantiating his allegation of infidelity, that the
respondent-husband had made an application before the Family Court for conducting a
DNA test, which would establish whether or not, he had fathered the male child born to
the appellant-wife. The respondent feels that it is only possible for him to substantiate the
allegations levelled by him (of the appellant-wife's infidelity) through a DNA test. We
agree with him. In our view, but for the DNA test, it would be impossible for the
respondent-husband to establish and confirm the assertions made in the pleadings. We are
therefore satisfied, that the direction issued by the High Court, as has been extracted
hereinabove, was fully justified. DNA testing is the most legitimate and scientifically
perfect means, which the husband could use, to establish his assertion of infidelity. This
should simultaneously be taken as the most authentic, rightful and correct means also
with the wife, for her to rebut the assertions made by the respondent-husband, and to
establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is
right, she shall be proved to be so.
We would, however, while upholding the order passed by the High Court, consider it just
and appropriate to record a caveat, giving the appellant-wife liberty to comply with or
disregard the order passed by the High Court, requiring the holding of the DNA test. In
case, she accepts the direction issued by the High Court, the DNA test will determine
conclusively the veracity of accusation levelled by the respondent-husband, against her.
In case, she declines to comply with the direction issued by the High Court, the allegation
would be determined by the concerned Court, by drawing a presumption of the nature
contemplated in S. 114 of the Indian Evidence Act, especially, in terms of illustration (h)
thereof. S. 114 as also illustration (h), referred to above, are being extracted hereunder:
"114. Court may presume existence of certain facts - The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in
their relation to the facts of the particular case.
Illustration (h) - That if a man refuses to answer a question which he is not compelled to
answer by law, the answer, if given, would be unfavourable to him."
This course has been adopted to preserve the right of individual privacy to the extent
possible. Of course, without sacrificing the cause of justice. By adopting the above
course, the issue of infidelity alone would be determined, without expressly disturbing
the presumption contemplated under S. 112 of the Indian Evidence Act. Even though, as
already stated above, undoubtedly the issue of legitimacy would also be incidentally
involved.
The instant appeal is disposed of in the above terms.
Appeal disposed of

400
 Maneka Sanjay Gandhi and Another v Rani Jethmalani148
1978 Indlaw SC 109, (1979) 4 SCC 167, AIR 1979 SC 468
When Transfer of Case Allowed and its grounds. There has to be compelling reasons
and not mini grievances to protect fair trial and public justice (confidential
communication and protection of the interest of parties and witness v Public Justice)
Cases Referred
G. X. Francis v. Banke Bihari Singh, A.I.R. 1958 S.C. 809 1957 Indlaw SC 175
Facts of the Case
Mrs. Maneka Gandhi figures as an accused a prosecution launched against her and others
by Miss. Rani Jethmalani for an offence of defamation in the Court of the Metropolitan
Magistrate, Bombay. The former is the editor of a monthly called "Surya" and is the wife
of Shri Sanjay Gandhi and daughter-in-law of Smt. Indira Gandhi, former Prime
Minister. The latter is a young advocate and is the daughter of a leading advocate and
currently an important Member of Parliament. The present petition has been made for a
transfer of the criminal case from Bombay to Delhi, and a string of grounds has been set
out to validate the prayer. We decline the transfer and proceed to give our reasons
without making the least reflection on the merits of the case.
Assurance of a fair trial is the first imperative of the dispensation of justice and the
central criterion for the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy availability of legal services or
like mini grievances. Something more substantial, more compelling, more imperiling,
from the point of view of public justice and its attendant environment, is necessitous if
148 Bench : V.R. Krishna Iyer, P.S. Kailasam, A.D. Koshal

401
the Court is to exercise its power of transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case. We have to test the petitioner's
grounds on this touch-stone bearing in mind the rule that normally the complainant has
the right to choose any court having jurisdiction and the accused cannot dictate where
the case against him should be tried. Even so, the process of justice should not harass the
parties and from that angle the court may weigh the circumstances.
One of the common circumstances alleged in applications for transfer is the avoidance of
substantial prejudice to a party or witnesses on account of logistics or like factors,
especially when an alternative venue will not seriously handicap the complaint and will
mitigate the serious difficulties of the accused. In the present case the petitioner claims
that both the parties reside in Delhi and some formal witnesses belong to Delhi; but the
meat of the matter, in a case of defamation, is something different. The main witnesses
are those who speak to having read the offending matter and other relevant
circumstances flowing therefrom. They belong to Bombay in this case and the
suggestion of the petitioner's counsel that Delhi readers may be substitute witness and
the complainant may content herself with examining such persons is too presumptuous
for serious consideration.
Now to the next ground the sophisticated processes of a criminal trial certainly require
competent legal service to present a party's case. If an accused person, for any particular
reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a
certain court the whole Bar, for reasons of hostility or otherwise, refuses to defend an
accused person-an extra-ordinary situation difficult to imagine, having regard to the
ethics of the profession-it may well be put forward as a ground which merits this Court's
attention. Popular frenzy or official wrath shall not deter a member of the Bar from
offering his services to those who wear unpopular names or unpalatable causes and the
Indian advocate may not fail this standard. Counsel has narrated some equivocal
episodes which seem to suggest that the services of an efficient advocate may not be
easy to procure to defend Mrs. Maneka Gandhi.
Such glib allegations which involve a reflection on the members of the Bar in Bombay
may not be easily accepted without incontestable testimony in that behalf, apart from the
ipse dixit of the party. That is absent here. It is difficult to believe that a person of' the

402
position of the petitioner who is the daughter-in-law of the former Prime. Minister, wife
of a consequential person and, in her own right, an editor of a popular magazine, is
unable to engage a lawyer to defend her, while, as a fact, she is apparently represented in
many legal proceedings quite competently.
A more serious ground which disturbs us in more ways than one is the alleged absence
of congenial atmosphere for a fair and impartial trial. It is becoming a frequent
phenomenon in our country that court proceedings are being disturbed by rude hoodlums
and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with
menaces, noises and worse. This tendency of toughs and street roughs to violate the
serenity of court is obstructive of the course of justice and must surely be stamped out.
Likewise, the safety of the person of an accused or complainant is an essential condition
for participation in a trial and where that is put in peril by commotion, tumult or threat
on account of pathological conditions prevalent in a particular venue, the request for a
transfer may not be dismissed summarily. It causes disquiet and concern to a court of
justice if a person seeking justice is unable to appear, present one's case, bring one's
witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious
conditions which conduce to comparative tranquility at the trial.
'Turbulent conditions putting the accused's life in danger or creating chaos inside the
court hall may jettison public justice. If this vice is peculiar to a particular place and is
persistent the transfer of the case from that place may become necessary. Likewise, if
there is general consternation or atmosphere of tension or raging masses of people in the
entire region taking sides and polluting the climate, vitiating the necessary neutrality to
hold a detached judicial trial, the situation may be said to have deteriorated to such an
extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J.
Observed:".... But we do feel that good grounds for transfer from Jashpurnagar are
made out because of the bitterness of local communal feeling and the tenseness of the
atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere
would be seriously undermined, particularly among reasonable Christians all over India
not because the Judge was unfair or biased but because the machinery of justice is not
geared to work in the midst of such conditions. The calm detached atmosphere of a fair
and impartial judicial trial would be wanting, and even if justice were done it would not

403
be "seen to be done".( G. X. Francis v. Banke Bihari Singh, A.I.R. 1958 S.C. 809 1957
Indlaw SC 175 at 810).
Accepting this perspective, we must approach the facts of the pre sent case without
excitement, exaggeration or eclipse of a sense of pro portion. It may be true that the
petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in
public life that their presence in a public place gathers partisans for and against, leading to
cries and catcalls or 'Jais' or 'zindabads'. Nor is it unnatural that some persons may have
acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory,
which may make them the cynosure of popular attention when they appear in cities even in
a court. And when unkempt crowds press into a court hall it is possible that some pushing,
some nudging, some brash ogling or angry starting may occur in the rough and rumble
resulting in ruffled feelings for the victim. This is a far cry from saying that the peace
inside the court has broken down, that calm inside the court is beyond restoration, that a
tranquil atmosphere for holding the trial is beyond accomplishment or that operational
freedom for the Judge parties, advocates and witnesses has ceased to exist.
None of the allegations made by the petitioner, read in the pragmatic light of the counter-
averments of the respondent and understood realistically, makes the contention of the
counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but it
subsided, and it was a storm in the tea cup or transient tension to exaggerate which is
unwarranted. The petitioner's case of great insecurity or molestation to the point of threat to
life is, so far as the record bears out, difficult to accept. The mere word of an interested
party is insufficient to convince us that she is in jeopardy or the court may not be able to
conduct the case under conditions of detachment, neutrality or uninterrupted progress. We
are disinclined to stampede ourselves into conceding a transfer of the case on this score, as
things stand now.
Nevertheless, we cannot view with unconcern the potentiality of a flare-up and the
challenge to a fair trial, in the sense of a satisfactory participation by the accused in the
proceedings against her. Mob action may throw out of gear the wheels of the judicial
process. Engineered fury may paralyze a party's ability to present his case or participate in
the trial. If the justice system grinds to a halt through physical man oeuvres or sound and
fury of the senseless populace the rule of E law runs aground. Even the most hated human

404
anathema has a right to be heard without the rage of ruffians or huff or toughs being turned
against him to unnerve him as party or witness or advocate. Physical violence to a party,
actual or imminent, is reprehensible when he seeks justice before a tribunal. Manageable
solutions must not sweep this Court off its feet into granting an easy transfer but
uncontrollable or perilous deterioration will surely persuade us to shift the venue. It
depends. The frequency of mobbing maneuvers in court precincts is a bad omen for social
justice in its wider connotation. We, therefore, think it necessary to make a few cautionary
observations which will be sufficient, as we see at present, to protect the petitioner and
ensure for her a fair trial. The trial court should readily consider the liberal exercise of its
power to grant for the accused exemptions from personal appearance save on crucial
occasions. Shri Tarkunde, for the respondent fairly agreed that it was the right thing to do
and explained the special reason for its first rejection. If the application is again made, the
magistrate will deal with it as we have indicated. This will remove much of the unsavory
sensationalism which the hearing may suffer from The magistrate is the master of the
orderly conduct of court proceedings and his authority shall not hang limp if his business is
stalled by brow-beating. It is his duty to clear the court of confusion, yelling and nerve-
racking gestures which mar the serious tone of judicial hearing. The officials whose duty is
to keep the public peace shall, on requisition, be at the command of the court to help it run
its process smoothly. When the situation gets out of hand the remedy of transfer surgery
may be prescribed. Every fleeting rumpus should not lead to a removal of the case as it
may prove to be a frequent surrender of justice to commotion. The magistrate shall take
measures to enforce conditions where the court function free and fair and agitational or
muscle tactics yield no dividends. If that fails, the parties have freedom to renew their
motion under s. 406 of the Criminal Procedure Code. For, where tranquil court justice is a
casualty the collapse of our constitutional order is inevitability. We dismiss, for the nonce,
this transfer petition.

405
 State of Haryana v Ram Mehar and others149
2016 Indlaw SC 623, (2016) 8 SCC 762, AIR 2016 SC 3942
Fair Trial, Transfer of cases and importance of examination and cross-examination
Cases Referred
1. Hoffman Andreas v. Inspector of Customs Amritsar [(2000) 10 SCC 430] 1999
Indlaw SC 2059,
2. P. Chhaganlal Daga v. M. Sanjay Shaw [(2003) 11 SCC 486 2001 Indlaw SC
21162],
3. P. Sanjeeva Rao v. State of Andhra Pradesh [(2012) 7 SCC 56 2012 Indlaw SC
161],
4. Natasha Singh v. Central Bureau of Investigation (State) [(2013) 5 SCC 741 2013
Indlaw SC 300]
5. State (NCT of Delhi) v. Shiv Kumar Yadav and another [(2016) 2 SCC 402] 2015
Indlaw SC 619
6. Maneka Sanjay Gandhi and another v. Rani Jethmalani [(1979) 4 SCC 167] 1978
Indlaw SC 109
7. Ram Chander v. State of Haryana [(1981) 3 SCC 191 1981 Indlaw SC 35],
8. Nellore v. Intha Ramana Reddy [1972 Cri LJ 1485 1971 Indlaw AP 98
9. Rattiram and others v. State of Madhya Pradesh [(2012) 4 SCC 516] 2012 Indlaw
SC 43
10. Gurnaib Singh v. State of Punjab [(2013) 7 SCC 108] 2013 Indlaw SC 727
11. J. Jayalalithaa and others v. State of Karnataka and others [(2014) 2 SCC 401] 2013
Indlaw SC 646
12. Bablu Kumar and others v. State of Bihar and another [(2015) 8 SCC 787] 2015
Indlaw SC 488

149 Bench : Dipak Misra, Uday Umesh Lalit

406
 13. Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1]
2010 Indlaw SC 296,
14. State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715] 1999 Indlaw SC 529
15. Mangal Singh v. Kishan Singh[(2009) 17 SCC 303] 2008 Indlaw SC 1790
16. Mohanlal Shamji Soni v. Union of India and another [AIR 1991 SC 1346] 1991
Indlaw SC 22
17. Rameshwar Dayal and others v. State of Uttar Pradesh[(1978) 2 SCC 518] 1978
Indlaw SC 326,
18. State of West Bengal v. Tulsidas Mundhra [(1963) 2 SCJ 204 1962 Indlaw SC 284],
19. Jamatraj Kewalji Govani v. State of Maharashtra [AIR 1968 SC 178] 1967 Indlaw
SC 122
20. Rajendra Prasad v. Narcotic Cell [(1999) 6 SCC 110] 1999 Indlaw SC 865
21. U.T. of Dadra & Nagar Haveli and another v. Fatehsinh Mohansinh Chauhan
[(2006) 7 SCC 529] 2006 Indlaw SC 376
22. Rajaram Prasad Yadav v. State of Bihar and another [(2013) 14 SCC 461] 2013
Indlaw SC 404
23. Vinod Kumar v. State of Punjab [(2015) 3 SCC 220] 2015 Indlaw SC 125
Facts of the Case
The prosecution case before the trial court is that on 18.07.2012 about 7 p.m. the accused
persons being armed with door beams and shockers went upstairs inside M1 room of the
Manesar Factory of Maruti Suzuki Limited, smashed the glass walls of the conference room
and threw chairs and table tops towards the management officials, surrounded the
conference hall from all sides and blocked both the staircases and gave threats of doing
away with the lives of the officials present over there. As the allegations of the prosecution
further unfurl, the exhortation continued for quite a length of time. All kind of attempts were
made to burn alive the officials of the management. During this pandemonium, the entire
office was set on fire by the accused persons and the effort by the officials to escape became
an exercise in futility as the accused persons had blocked the staircases. The police officials
who arrived at the spot to control the situation were assaulted by the workers and they were
obstructed from going upstairs to save the officials. Despite the obstruction, the officials
were saved by the police and the fire was brought under control by the fire brigade. In the
incident where chaos was the sovereign, Mr. Avnish Dev, General Manager, Human
Resources of the Company was burnt alive. The said occurrence led to lodging of FIR No.
184/2012 at Police Station Manesar. After completion of the investigation, the police filed

407
charge sheet against 148 workers in respect of various offences before the competent court
which, in turn, committed the matter to the court of session and during trial the accused
persons were charged for the offences punishable under Sections 147/ 148/ 149/ 452/ 302/
307/ 436/ 323/ 332/ 353/ 427/ 114/ 201/ 120B/ 34/ 325/ 381 & 382 IPC. The evidence of the
prosecution commenced in August, 2013 and was concluded on 02.03.2015. Recording of
statements of the accused persons under Section 313 CrPC was concluded by 13.04.2015.
After the statements under Section 313 CrPC were recorded, the defence adduced its
evidence by examining number of witnesses. Be it noted, when an application for bail was
filed before the trial court and it was rejected upto the High Court, some accused persons
moved this Court by filing Special Leave Petition. To continue the narrative in chronology,
on 13.02.2015, Salil Bihari Lal, PW-8, was recalled for further examination and on
20.02.2015, DSP Om Prakash, PW-99, was recalled. On the same day, the prosecution
concluded its evidence. As has been indicated earlier, the statements of the accused persons
under Section 313 CrPC were recorded and thereafter the defence examined fifteen
witnesses. When the matter stood thus, on 30.11.2015, two petitions under Section 311
CrPC were filed by different accused persons. In the first petition filed by Ram Mehar and
others, recall was sought of Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep
Kumar Roy, PW-3, Birendra Prasad, PW-5, Salil Bihari Lal, PW-8, Vikram Sarin, PW-10,
Deepak Anand, PW-29 and DSP Om Prakash, PW-99. In respect of Deepak Anand, PW-29,
it was stated that he was required to be recalled to establish that he is not a reliable witness.
As regards Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3,
Birendra Prasad, PW-5, Salil Bihari Lal, PW-8 and Vikram Sarin, PW-10, it was averred
that they are required to be recalled in order to prove the manner and circumstances
pertaining to how the incident took place. That apart, it was stated, certain important
questions and suggestions pertaining to the injuries received by the prosecution witness and
other persons were also required to be put to them. With regard to DSP Om Prakash, PW-
99, it was asserted that recalling of the said witness was required to enable the accused
persons to put forth certain aspects of the investigation, particularly with regard to the type
of weapons used and injuries allegedly caused to various prosecution witnesses and other
persons.
The learned trial Judge referred to the authorities and came to hold that when the

408
material questions had already been put, there was no point to entertain the application
and mere change of the counsel could not be considered as a ground to allow the
application for recalling the witnesses for the purpose of further cross-examination. It is
worthy to note that two separate orders were passed by the trial court but the analysis is
almost the same. Dissatisfied with the aforesaid orders, the accused persons preferred
CRM-M No. 482 of 2016 and CRM-M No. 484 of 2016 before the High Court under
Section 482 CrPC. The High Court took note of the common ground that the leading
counsel for the defence was critically ill during the trial and due to inadvertence, certain
important questions, suggestions with respect to the individual roles and allegations
against the respective accused persons, the injuries sustained by the witnesses, as well as
the alleged weapons of offence used, had not been put to the said witnesses. It also took
note of the fact that the senior lawyer had been engaged at the final stage and such
inadvertent errors were discovered by him and they needed to be rectified in order to
have a meaningful defence and a fair trial. The High Court thereafter adverted to the
contentions raised by the learned counsel for the petitioners therein, analysed the
grounds of rejection that formed the bedrock of the order passed by the trial Judge,
referred to certain decisions by this Court including the recent decision in Shiv Kumar
Yadav 2015 Indlaw SC 619 (supra) came to hold that a case for recalling had been made
out to ensure grant of fair opportunity to defend and uphold the concept of fair trial. It
further expressed the view that when 148 accused persons are facing trial together,
wherein the prosecution has examined 102 witnesses regarding different roles, weapons
and injuries attributed to various accused qua various victims on the day of occurrence
stretched over a period of time within a huge area of factory premises, does raise a
sustainable inference that there was confusion during the conduct of the trial leading to
certain inadvertent omissions and putting proper suggestions on material aspects, which
are crucial for the defence in a trial, inter alia, for an offence under Section 302 IPC,
although the accused were represented by battery of lawyers with Sh. R.S. Hooda,
Advocate being the lead lawyer. The High Court proceeded to opine that the accused-
petitioners were charged with heinous offences including one under Section 302 IPC and
recalling is not for the purpose of setting up a new case or make the witnesses turn
hostile but only to have a proper defence as it is to be judicially noticed that for lack of

409
proper suggestions by the defence to the prosecution witnesses, the trial courts at times
tend to reject the raised defence on behalf of the accused. It was observed that some of
such omissions and suggestions by way of illustration had been spelt out in the body of
the petitions and some had been stated to be withheld for avoiding any prejudice to the
defence, nevertheless the stated purpose was not to render the prosecution witnesses
hostile to the case of prosecution and, therefore, such inadvertent omissions and lack of
suggestions deserve to be accepted to be bonafide and constituting a valid reason
requiring the approach of the Court to be magnanimous in permitting such mistakes to be
rectified, more so when the prosecution, concededly, were permitted twice to lead
additional evidence by invoking the provisions under Section 311 Cr.PC on no objection
of the defence, after the closure of the prosecution evidence. We have referred to the
contents of the applications, delineation by the trial court and the approach of the High
Court under Section 482 CrPC in extenso so that we can appreciate whether the order
passed by the High Court really requires to be unsettled or deserves to be assented to.
Argument of the Counsel for State
Mr. Tushar Mehta, learned Additional Solicitor General appearing for the appellant-State
of Haryana, criticizing the order of the High Court, submits that Section 311 CrPC
despite its width and broad compass can only be made applicable keeping in view the
factual score of the case and not to be entertained in a routine manner. It is his contention
that the High Court has been wholly misguided by the idea of fair trial and the concept of
magnanimity of the court without really remaining alive to the factual matrix of the case
at hand. The concept of "fair trial", submits Mr. Mehta, cannot be stretched too far to
engulf situations which the said conception really does not envisage. Additionally, it is
argued by him, neither the plea taken with regard to illness of earlier counsel nor the
accused persons being in custody can constitute legitimate grounds for exercise of
jurisdiction under Section 311 CrPC.
Arguments of the counsel for the Respondents
Mr. R.S. Cheema, learned senior counsel along with Mr. Sanjay Jain, learned counsel
appearing for the respondents in his turn has emphasized basically on four aspects,
namely, a fair trial is a facet of Article 21 of the Constitution and the principles of its
applicability should not be marginalized; that Section 311 CrPC confers enormous

410
powers on the court for grant of permission for recalling of witnesses so that in the
ultimate eventuality justice is done and injustice in any form is avoided and for the said
purpose, the stage of the trial may be an aspect to be taken into consideration in certain
cases but cannot be regarded as the sole governing factor to deny the prayer for recall;
that when the prayer was confined for recalling of small number of witnesses because of
critical illness of the defence counsel who was not in a position to put all relevant
questions to the accused persons, there was no justification to refuse the prayer of recall
of witnesses; and that when the accused persons are already in custody the question of
prolonging and procrastinating the trial by adopting dilatory tactics does not arise.
Learned senior counsel would further submit that the High Court has passed a guided
order and the accused persons are bound by it and they do not intend to take more than a
day or two for the purpose of further cross examination and thus, there is no warrant on
the part of this Court in exercise of power under Article 136 of the Constitution of India
to interfere with the impugn order.
Before we advert to the ambit and scope of Section 311 CrPC and its attract ability to the
existing factual matrix, we think it imperative to dwell upon the concept of "fair trial".
There is no denial of the fact that fair trial is an in segregable facet of Article 21 of the
Constitution. This Court on numerous occasions has emphasized on the fundamental
conception of fair trial as the majesty of law so commands.
The aforesaid principle has been stated in the context of transfer of a case but the Court
has laid emphasis on assurance of fair trial. It is worthy to note that in the said case, the
Court declined to transfer the case and directed the Magistrate to take measures to
enforce conditions where the court functions free and fair and agitational or muscle
tactics yield no dividends. However, liberty was granted to the appellant therein to renew
prayer under Section 406 CrPC. Stress was laid on tranquil court justice. It was also
observed that when the said concept becomes a casualty there is collapse of our
Constitutional order.
In and other decisions and came to hold that keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the community and the duty of the court, it
can irrefragably be stated that the court cannot be a silent spectator or a mute observer
when it presides over a trial. It is the duty of the court to see that neither the prosecution

411
nor the accused play truancy with the criminal trial or corrode the sanctity of the
proceeding. They cannot expropriate or hijack the community interest by conducting
themselves in such a manner as a consequence of which the trial becomes a farcical one.
It has been further stated that the law does not countenance a "mock trial". It is a serious
concern of society. Every member of the collective has an inherent interest in such a
trial. No one can be allowed to create a dent in the same. The court is duty-bound to see
that neither the prosecution nor the defence takes unnecessary adjournments and take the
trial under their control. We may note with profit though the context was different, yet
the message is writ large. The message is - all kinds of individual notions of fair trial
have no room.
Judgment with reasons
Having dwelled upon the concept of fair trial we may now proceed to the principles laid
down in the precedents of this Court, applicability of the same to a fact situation and
duty of the court under Section 311 CrPC.
In Rajaram Prasad Yadav v. State of Bihar and another [(2013) 14 SCC 461] 2013
Indlaw SC 404, the Court after referring to Section 311 CrPC and Section 138 of the
Evidence Act observed that Section 311 CrPC vest widest powers in the court when it
comes to the issue of summoning a witness or to recall or re-examine any witness
already examined. Analysing further with regard to "trial", "proceeding", "person already
examined", the Court ruled that invocation of Section 311 CrPC and its application in a
particular case can be ordered by the court, only by bearing in mind the object and
purport of the said provision, namely, for achieving a just decision of the case. The Court
observed that the power vested under the said provision is made available to any court at
any stage in any inquiry or trial or other proceeding initiated under the Code for the
purpose of summoning any person as a witness or for examining any person in
attendance, even though not summoned as witness or to recall or re-examine any person
already examined. Insofar as recalling and re-examination of any person already
examined is concerned, the court must necessarily consider and ensure that such recall
and re-examination of any person, appears in the view of the court to be essential for the
just decision of the case. The learned Judges further ruled that the paramount
requirement is just decision and for that purpose the essentiality of a person to be

412
recalled and re-examined has to be ascertained. It was also stated that while such a
widest power is invested with the court, exercise of such power should be made
judicially and also with extreme care and caution. The Court referred to the earlier
decisions and culled out certain principles which are to be kept in mind while exercising
power under Section 311 CrPC. Respectfully agreeing with the above principles and case
laws and the exposition of law and keeping in mind the principles stated in the aforesaid
authorities the defensibility of the order passed by the High Court has to be tested. We
have already reproduced the assertions made in the petition seeking recall of witnesses.
We have, for obvious reasons, also reproduced certain passages from the trial court
judgment. The grounds urged before the trial court fundamentally pertain to illness of the
counsel who was engaged on behalf of the defence and his inability to put questions with
regard to weapons mentioned in the FIR and the weapons that are referred to in the
evidence of the witnesses. That apart, it has been urged that certain suggestions could not
be given. The marrow of the grounds relates to the illness of the counsel. It needs to be
stated that the learned trial Judge who had the occasion to observe the conduct of the
witnesses and the proceedings in the trial, has clearly held that recalling of the witnesses
were not necessary for just decision of the case. The High Court, as we notice, has
referred to certain authorities and distinguished the decision in Shiv Kumar Yadav 2015
Indlaw SC 619 (supra) and Fatehsinh Mohansinh Chauhan 2006 Indlaw SC 376 (supra).
The High Court has opined that the court has to be magnanimous in permitting mistakes
to be rectified, more so, when the prosecution was permitted to lead additional evidences
by invoking the provisions under Section 311 CrPC. The High Court has also noticed
that the accused persons are in prison and, therefore, it should be justified to allow the
recall of witnesses. The heart of the matter is whether the reasons ascribed by the High
Court are germane for exercise of power under Section 311 CrPC. The criminal trial is
required to proceed in accordance with Section 309 of the CrPC. This court in Vinod
Kumar v. State of Punjab [(2015) 3 SCC 220] 2015 Indlaw SC 125, while dealing with
delay in examination and cross-examination was compelled to observe thus:-
"If one is asked a question, what afflicts the legally requisite criminal trial in its
conceptual eventuality in this country the two reasons that may earn the status of
phenomenal signification are, first, procrastination of trial due to non-availability of

413
witnesses when the trial is in progress and second, unwarranted adjournments sought by
the counsel conducting the trial and the unfathomable reasons for acceptation of such
prayers for adjournments by the trial courts, despite a statutory command under Section
309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by
this Court. What was a malady at one time, with the efflux of time, has metamorphosed
into malignancy? What was a mere disturbance once has become a disorder, a diseased
one, at present”? And again: -
"The duty of the court is to see that not only the interest of the accused as per law is
protected but also the societal and collective interest is safeguarded. It is distressing to
note that despite series of judgments of this Court, the habit of granting adjournment,
really an ailment, continues. How long shall we say, "Awake! Arise!". There is a
constant discomfort. ...
" Yet again, in Gurnaib Singh v. State of Punjab [(2013) 7 SCC 108] 2013 Indlaw SC 727,
the agony was reiterated in the following expression:- "We have expressed our anguish,
agony and concern about the manner in which the trial has been conducted. We hope and
trust that the trial courts shall keep in mind the statutory provisions and the interpretation
placed by this Court and not be guided by their own thinking or should not become mute
spectators when a trial is being conducted by allowing the control to the counsel for the
parties. They have their roles to perform. They are required to monitor. They cannot
abandon their responsibility. It should be borne in mind that the whole dispensation of
criminal justice at the ground level rests on how a trial is conducted. It needs no special
emphasis to state that dispensation of criminal justice is not only a concern of the Bench
but has to be the concern of the Bar. The administration of justice reflects its purity when
the Bench and the Bar perform their duties with utmost sincerity. An advocate cannot
afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges
for procrastinating the same."
There is a definite purpose in referring to the aforesaid authorities. We are absolutely
conscious about the factual matrix in the said cases. The observations were made in the
context where examination-in-chief was deferred for quite a long time and the
procrastination ruled as the Monarch. Our reference to the said authorities should not be
construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a

414
prominent one, the courts cannot ignore the factual score. Recalling of witnesses as
envisaged under the said statutory provision on the grounds that accused persons are in
custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel
was ill and magnanimity commands fairness should be shown, we are inclined to think, are
not acceptable in the obtaining factual matrix.
The decisions which have used the words that the court should be magnanimous,
needless to give special emphasis, did not mean to convey individual generosity or
magnanimity which is founded on any kind of fanciful notion. It has to be applied on the
basis of judicially established and accepted principles. The approach may be liberal but
that does not necessarily mean "the liberal approach" shall be the rule and all other
parameters shall become exceptions. Recall of some witnesses by the prosecution at one
point of time, can never be ground to entertain a petition by the defence though no
acceptable ground is made out. It is not an arithmetical distribution. This kind of
reasoning can be dangerous. In the case at hand, the prosecution had examined all the
witnesses. The statements of all the accused persons, that is 148 in number, had been
recorded under Section 313 CrPC. The defence had examined 15 witnesses. The
foundation for recall, as is evincible from the applications filed, does not even remotely
make out a case that such recalling is necessary for just decision of the case or to arrive
at the truth. The singular ground which prominently comes to surface is that the earlier
counsel who was engaged by the defence had not put some questions and failed to put
some questions and give certain suggestions. It has come on record that number of
lawyers were engaged by the defence. The accused persons had engaged counsel of their
choice. In such a situation recalling of witnesses indubitably cannot form the foundation.
If it is accepted as a ground, there would be possibility of a retrial. There may be an
occasion when such a ground may weigh with the court, but definitely the instant case
does not arouse the judicial conscience within the established norms of Section 311
CrPC for exercise of such jurisdiction. It is noticeable that the High Court has been
persuaded by the submission that recalling of witnesses and their cross-examination
would not take much time and that apart, the cross-examination could be restricted to
certain aspects. In this regard, we are obliged to observe that the High Court has failed to
appreciate that the witnesses have been sought to be recalled for further cross-

415
examination to elicit certain facts for establishing certain discrepancies; and also, to be
given certain suggestions. We are disposed to think that this kind of plea in a case of this
nature and at this stage could not have been allowed to be entertained.
At this juncture, we think it apt to state that the exercise of power under Section 311
CrPC can be sought to be invoked either by the prosecution or by the accused persons or
by the Court itself. The High Court has been moved by the ground that the accused
persons are in the custody and the concept of speedy trial is not nullified and no
prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it
to say, a criminal trial does not singularly centres around the accused. In it there is
involvement of the prosecution, the victim and the victim represent the collective. The
cry of the collective may not be uttered in decibels which is physically audible in the
court premises, but the Court has to remain sensitive to such silent cries and the agonies,
for the society seeks justice. Therefore, a balance has to be struck. We have already
explained the use of the words "magnanimous approach" and how it should be
understood. Regard being had to the concept of balance, and weighing the factual score
on the scale of balance, we are of the convinced opinion that the High Court has fallen
into absolute error in axing the order passed by the learned trial Judge. If we allow
ourselves to say, when the concept of fair trial is limitlessly stretched, having no
boundaries, the orders like the present one may fall in the arena of sanctuary of errors.
Hence, we reiterate the necessity of doctrine of balance.
In view of the proceeded analysis we allow the appeals, set aside the order passed by the
High Court and restore that of the learned trial Judge. We direct the learned trial judge to
proceed with the trial in accordance with the law. Appeals allowed

416
 Witnesses, Dying Declaration, Doctor and Expert Witness
Purshottam Chopra and another v State Governmentof (NCT of Delhi)150
Citation: 2020 Indlaw SC 6
Principles and Law established
Testimony of witnesses, Doctors Evidence, Dying Declaration
Cases Referred
 State of Punjab v. Gian Kaur and Anr.: AIR 1998 SC 2809
 Uka Ram v. State of Rajasthan: JT 2001 (4) SC 472,
 Dalip Singh and Ors. v. State of Punjab: AIR 1979 SC 1173,
 Gopal Singh and Anr. v. State of Madhya Pradesh and Anr.: AIR 1972 SC 155
 Thurukanni Pompiah and Anr. v. State of Mysore: AIR 1965 SC 939

150 Bench : Dinesh Maheshwari, A.M. Khanwilkar; The Judgment was delivered by : Dinesh
Maheshwari, J.

417
  Sharad Birdhi Chand Sarda v. State of Maharashtra: (1984) 4 SCC 116
 Laxman v. State of Maharashtra: (2002) 6 SCC 710
 Vijay Pal v. State (Government of NCT of Delhi): (2015) 4 SCC 7
 Mafabhai Nagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69 49
 State of M.P. v. Dal Singh: (2013) 14 SCC 159
By way of these appeals, the appellants have called in question the judgment and order
dated 23.05.2011 in Criminal Appeal No. 121 of 1999 and Criminal Appeal No. 139 of
1999 whereby, the High Court of Delhi has affirmed the judgment and order dated
30.01.1999 in Sessions Case No. 2 of 1998 by the Additional Sessions Judge, Delhi; and
has upheld the conviction of the appellants for the offence punishable under Section 302
read with Section 34 of Indian Penal Code ('IPC.).
Facts of the Case
In a brief outline of the material aspects, it could be noticed that in the present case, the
appellants are accused of causing death of one Sher Singh by putting him on fire. There
had been no eye-witness to the incident but the prosecution has relied upon two
statements said to have been made by the deceased after the incident: one when he was
admitted to the hospital with 100% burns and another when he was under treatment,
respectively to a doctor and to a police officer. The Trial Court as also the High Court
have accepted these statements as being his dying declarations wherein the appellants
were named as the assailants. Therefore, the appellants stand convicted essentially on
the basis of the dying declarations of the victim. The reliability of such dying
declarations has been assailed in these appeals apart from other contentions concerning
the surrounding factors. The relevant facts and background aspects of the matter could
be noticed, keeping in view of the points arising for determination in these appeals.
The prosecution’s case , had been that on 18.12.1997, at about 3.00-3.15 p.m., hearing
the screams of a person and noticing smoke coming from plot no. 17 situated near
Goverdhan Park, Uttam Nagar, Delhi, a lot of people gathered at the spot and saw that a
man was ablaze with his entire body covered with fire; and the people so gathered made
efforts to put out the flames by throwing water over the said person. The information as
regards this incident was received in the Police Control Room ('PCR') through a phone
call from some unknown person at 3.28 p.m. by Ct. Anju (PW-7), who made an entry
bearing No. 467 in Form I (Ex. PW-7/A) and passed on the information to the nearest
Police Station. The concerned officers from PCR reached the spot and shifted the
injured person to Safdarjung Hospital for treatment, where Dr. Sushma (PW-8) prepared
the MLC (Ex. PW-8/A). While preparing the MLC, the injured person identified himself
as Sher Singh and gave his address; and narrated the incident that had led to his current
condition while accusing one Purshottam and another Suresh (telwala), both residents of
A-block, Uttam Nagar, Delhi as his assailants These persons Purshottam and Suresh are

418
the appellants herein.
Simultaneously, SI Rajesh Kumar (PW-16) and Ct. Vijay Parkash (PW-13) reached the
site of incident and were apprised that the injured person had been shifted to the
hospital. SI Rajesh Kumar left Ct. Vijay Parkash on the spot and himself reached the
hospital, only to find that the injured person was admitted in ICU. SI Rajesh Kumar
collected the MLC prepared for the injured person; and moved an application (Ex. PW-
16/A) before the concerned doctor to take the statement of the injured person. When Dr.
Rajesh Verma (PW-17) certified that the patient was fit to make the statement, SI Rajesh
Kumar recorded his statement (Ex. PW-16/B) wherein the injured person - Sher Singh -
gave out his name and address and then stated that he had purchased half a bottle of
liquor from one Suresh (telwala), who had an oil depot; that he drank such liquor; that
Purshottam also had an oil depot; and that while Suresh poured the kerosene oil over
him and lit him aflame, Purshottam was present. The contents of this statement (Ex.
PW-16/B) as also the MLC (Ex. PW-8/A) are taken as the dying declarations of the
victim and shall be referred in detail hereafter later. Thereafter, the SHO and Additional
SHO of Police Station Vikas Puri reached the hospital. After recording the statement of
injured, SI Rajesh Kumar left the hospital, only to arrive back at the site of incident and
sent Ct. Vijay Parkash to register a complaint for the offence punishable under Section
307 read with Section 34 IPC and hence, FIR No. 780 of 1997 came to be registered.
During this time, SI Rajesh Kumar got the site photographed; prepared the site plan;
seized one piece of burnt cloth (white colour), one half bottle of liquor, one white colour
container, one burnt sweater, one match box which contained match sticks; prepared
seizure memo of the articles; and deposited the same with the Police Station at Vikas
Puri. On the basis of statement made by the injured Sher Singh, the appellants
Purshottam and Suresh were arrested in the night intervening 18/19.12.1997 from their
respective houses. In the morning hours of 19.12.1997, the information of Sher Singh's
death was received which resulted in the case being converted to one under Section 302
read with Section 34 IPC and the investigation of the case was taken over by Inspector
Om Prakash, Additional SHO, Police Station Vikas Puri, who conducted inquest
proceedings over the dead body of Sher Singh before sending it for post-mortem on
19.12.1997. Dr. Arvind (PW-14) conducted the post-mortem and opined that the cause
of death was due to shock consequent to 100% ante-mortem flame burns.
The investigating officer then prepared a scaled map; sent the articles seized to office of
CFSL, Chandigarh and thereafter collected the report; and filed the charge-sheet before
the Magistrate, who committed the case to the Court of Sessions.
The evidence
After committal, the case was tried as Sessions Case No. 2 of 1998 in the Court of
Additional Sessions Judge, Delhi. In prosecution evidence, a total of 19 witnesses. ( Few

419
Formal witnesses as to procedures)
PW-1 Raju, the elder brother of the deceased Sher Singh, led in evidence, inter alia, to
the effect that the appellants were the residents of same locality as that of his brother;
that the appellants were having separate kerosene depots; that they were workers for
BJP; and that prior to the murder of Sher Singh, dispute had taken place between his
brother and Purshottam but no police complaint was filed due to fear. In his cross-
examination, this witness stated that he came to know about the quarrels of deceased
with Purshottam Chopra from his mother. PW-2 Paali, also the brother of Sher Singh,
led in evidence to the effect that he had visited the mortuary to identify the dead body of
his brother. This witness stated that the deceased was living with him in the same
premises; that he was not aware if deceased used to consume liquor but denied the
suggestion that the deceased was a drunkard.
PW-6 Rajesh, having a shop across the road where the incident had taken place, in his
examination-in-chief deposed that on hearing the screams and seeing the smoke, he
rushed to the spot; that other people from the market had also reached there; that he saw
a person burning on fire; that they threw water from a nearby tap on the burning body of
the victim who identified himself as Sher Singh; and that someone from the market
telephoned at number 100 whereupon the police reached the spot.
In his cross-examination carried on behalf of the accused Purshottam, this witness PW-6
Rajesh deposed that one has to pass from the street in front of his shop to reach plot No.
17 and there was no other way/gali to reach plot No. 17 nor there was any other exit.
This witness further stated that upon hearing the screams, himself as also his
neighbourers Daljit Singh and Vicky from Ravindra Auto and one Rinku rushed to the
spot; that he had not seen any person running or going from the spot. This witness
further pointed out that they threw water on the victim, who stated his name and also
gave out his address. This witness, inter alia, stated,-
".....Some public persons had enquired from the victim as to who had put him on fire. He
had told them that since he was dropped from the tempo, he had set himself on fire....."
This witness further attributed knowledge about some of the facts to one Daljit and
alleged that Daljit had seen the victim carrying kerosene oil in polythene towards the
plot. The witness stated, inter alia, as under:
".....Daljit had told me in the evening that he had seen the victim carrying the kerosene
oil in a polythene towards that plot. (Objected to by Ld. Addl. P.P.) Police had recorded
my statement and the statement of Rinku and Daljit in the same evening. Volunteered
the police had also recorded statement of 10/12 persons. Daljit Singh and Rinku had not
made these statement to the police in my presence.
After 2/3 days of the incident, the T.V. persons had come at plot no. 17 and had

420
prepared a cassette. They had enquired about the incident from me and Daljit Singh. My
interview was taken by City Cables. Interview of Daljit was taken by City Cables. Daljit
Singh had told city cables in his interview that he had seen the victim carrying kerosene
oil in the polythene to that plot. (Objected to by Ld. Addl. P.P.)"
On being subjected to cross-examination on behalf of the accused Suresh, this witness
stated that he was not present at the time when Sher Singh told the public that he had put
himself on fire after being dropped from the tempo. The relevant portion of his
statement in this cross-examination reads as under:
"....The victim Sher Singh had not told the public persons in my presence that he had put
himself on fire as he was dropped from the tempo. About 100 or 120 persons had
gathered at the place of incident within 5 minutes. Police had interrogated Tony and one
other person from the same locality in my presence on the next day and had recorded
their statements. Tony had stated to the police in his statement that victim was telling
that he had put himself on fire as he was dropped from the tempo. (objected to) Tony
had given the statement to police in my presence....."
In all, four medical officers were examined in this matter. PW-9 Dr. H.K. Sharma had
been working in the Burns Ward of Safdarjung Hospital where the victim was admitted
on 18.12.1997 and expired in the early hours of 19.12.1997. He got prepared the death
summary/discharge slip (Ex. PW-9/A). The statement made by this witness in cross-
examination as regards the critical condition of the victim and preparation of OPD slip
have been referred in the contentions on behalf of the appellants and hence, it would be
apposite to take note of his testimony in the cross-examination that reads as under:
"It is correct that the patient was in a very critical condition right from the time of
admission. It is correct that the condition of the patient went on deteriorating since time
of his admission. It is correct that the patient remained admitted throughout in ICU.
Death summary Ex. PW-9/A was prepared on the basis of the recording in the patient
file. First document prepared at the time of the patient was OPD slip. The name of the
informer was mentioned on the opd slip. I mentioned the informant in Ex. PW-9/A to be
'police' from the OPD card."
PW-14 Dr. Arvind had conducted post-mortem over the dead body of the victim Sher
Singh. In the external examination recorded by him, it had been recorded as under:
"...Burns injuries: (1) Cut down wound was present on the lower end of right upper arm.
(2) Dermo-eprdermai burns superficial to deep in nature were present all over the body.
The total percentage of burns area was about 100%. The area of redness was present on
four (sic) arms and front of chest. The area of blackening of skin was present on face,
front of the chest. Peeling of skin was present on dorsome (sic) of hands, Front of legs.
Heat split lecerations were present on front of left shoulder....No mark of violence of

421
leg, signs of struggle were present on the body. Smell of kerosene was present in scalp
hair."
PW-17 Dr. Rajesh Verma deposed that he had declared the patient to be fit for giving his
statement and an endorsement was made by him on the requisition Ex. PW-16/A
provided by the Investigating Officer at mark 'X'. In his cross-examination, this witness
stated that after admission, the condition of the patient was continuously deteriorating;
that he was under continuous medical watch; and that he ultimately died at 4.00 a.m.
This witness also stated that the patient was under continuous medical attendance at ICU
but denied the suggestion that the certificate regarding fitness to make statement was
obtained from him by the police in a routine manner.
PW-8 Dr. Sushma, one of the members of the Plastic and Burns Ward had attended on
the injured Sher Singh when he was admitted to the hospital. She deposed, in her
examination-in-chief, that Sher Singh was initially brought to the burns causality; that
Sher Singh himself gave the alleged history that he had sustained burn injuries when
Purshottam and Suresh (telwala) threatened him and then poured kerosene on him and
set him on fire. She also stated that on examination, the patient was found conscious and
oriented, though his general condition was critical, being that the entire surface area of
his body was found with 100% deep burns. The relevant contents of the statement made
by this witness PW-8 Dr. Sushma in her cross-examination may also be taken note of in
requisite details as under:
"I do not know if the patient was removed earlier to the main casuality of Safdarjang
hospital. Burns patient are brought directly to the casuality of burns ward. Victim Sher
Sg. was not accompanied by any relative/attendant. Police had brought the patient in the
casuality.
Death summary is prepared if the patient expires. Ex. PW-8/A is the first document
prepared by me.
I do not remember if the patient was crying in agony when he was brought at the
casuality. As soon as the patient arrives at the casuality, OPD slip is prepared by the
Junior Resident. On the OPD card it is decided if the patient is to be admitted or to be
sent back. MLC is prepared after the preparation of OPD card. OPD card was before me
when I prepared the MLC Ex. PW-8/A. I have not recorded the fact in the MLC Ex.
PW-8/A that the patient was brought by the police. I remember this fact by memory. It is
possible that some relations might have accompanied the patient. The OPD card remains
in the patient file. It is incorrect to suggest that the patient had not given any alleged
history or that later at the suggestion of the police I have prepared this MLC. No mark of
identification of the patient was obtained on the MLC Ex. PW-8/A. The whole of the
body of the patient including his thumbs were burnt."

422
The testimonies of five police personnel related with this matter also need to be taken
note of. PW-7 L/Ct. Anju deposed that on 18.12.1997, she received information through
a telephone call that some unknown person had set himself on fire near Uttam Nagar bus
stand and thereafter, she filled in the PCR form regarding this information at Serial No.
467. The statement of this witness was deferred for want of original record and she was
further examined alongwith the original proforma of PCR, photocopy whereof was
taken on record as Exhibit PW-7/B.
PW-13 Ct. Vijay Parkash in his examination-in-chief stated that at the relevant time, he
was on emergency duty at Police Station Vikas Puri and reached the spot with SI Rajesh
Kumar after receiving information about an injured person lying at Dal Mill Road,
Goverdhan Park; and on reaching the said spot, they were informed that the injured had
already been shifted to the hospital by PCR Van. Thereafter, SI Rajesh instructed him to
remain at the spot and left for the hospital. Upon his return from the hospital at about
09.50 p.m., SI Rajesh handed him one rukka for registration of an FIR at the police
station whereupon he got recorded FIR at No. 780/97 and returned to the spot with a
copy of FIR and thereafter assisted the Investigating Officer to collect/seize certain
articles from the spot, which were later sealed in an envelope. In his cross-examination,
this witness deposed as under:
"...There is a distance of about 1 1/2 Km. between the PS and the spot. About 15/20
public persons were already present at the spot when we reached there. Insp. Rajesh had
not recorded the statement of any person on reaching at the spot. After Insp. Rajesh had
returned at the spot at 9.50 P.M. from the hospital, he did not record statement of any
person in my presence....I.O. had not called any public person at the time of sealing the
case property...."
PW-18 ASI Harish Ram stated in his examination-in-chief that at the relevant time on
18.12.1997, he was posted in PCR West Zone when they received a wireless message at
around 3.30 p.m. that a person was in burnt condition near scooter market, Uttam Nagar
and on receiving this information, they immediately reached the spot in the Van and
found one male person in burnt condition at plot No. 17 Goverdhan Park where about
20-30 persons had gathered; that they lifted the burnt person in the PCR Van and
removed him to Safdarjung Hospital; that the name of victim came to be known as Sher
Singh; that no public person accompanied them from the spot in PCR Van; and that the
patient was crying in pain on the way, he did not have any talk with them. In his initial
cross-examination, this witness stated that they did not make any effort to talk to the
burnt person as he was not in a condition to speak; and that no relative of the patient met
them at the hospital. In his further cross-examination, the witness admitted the fact that
the first message as received had been about the person having set himself on fire
whereupon they reached the spot. The witness pointed out that it took them about 5-7

423
minutes to put the victim in the PCR Van but denied the suggestion that the people
present there informed that the patient put on the fire himself. The witness stated that at
the time of admitting the victim to hospital, he had given the name of victim as Sher
Singh, as was gathered from the persons present there; and repeated the assertion that
the victim was not in a position to speak so long as he remained in the hospital and that
the doctor had not enquired about the address of the victim in his presence.
PW-16 SI Rajesh Kumar, in his examination-in-chief deposed that after a copy of DD
No. 21A was handed over to him, he left with Ct. Vijay Parkash for carrying out
investigation; upon his reaching the site, he was informed that the injured had been
shifted to the hospital in a PCR Van; he then left Ct. Vijay Parkash at the site and
reached the hospital only to find that the injured was admitted in the ICU and thus had
sought permission through requisition Ex. PW-16/A from the concerned doctor to record
the statement of the injured. At about 7.50 p.m. the same day, he was informed that the
patient was fit for giving statement whereupon he recorded the statement Ex. PW-16/B
verbatim and obtained the left thumb impression of Sher Singh. It was also stated by this
witness that after recording the statement of Sher Singh, he went back to the spot to
carry out investigation and handed over rukka to Ct. Vijay Parkash for registration of
FIR. Thereafter, the site plan was drawn, the site was photographed and certain articles
were seized and sealed. He further stated that he had effected arrest of the two accused
persons named by Sher Singh in the night intervening 18/19.12.1997; and that after
receiving information that Sher Singh had passed away in the morning of 19.12.1997,
the investigation was handed over to the Inspector Om Parkash, Additional SHO.
In his cross-examination, this witness stated that when he had gone to arrest the accused
persons in the night and apprised them of the statement made by Sher Singh, the accused
persons denied any involvement in the commission of the said offence. He also deposed
as under151:
PW-16 also stated that on reaching the hospital at about 5.45 to 6 p.m., he collected the
MLC of Sher Singh and came to know that Sher Singh had held Purshottam and Suresh
responsible for his condition; he started recording the statement of the patient at about 8
p.m. and that no other doctor or nurse was with them at the time of recording the
statement. Though PW-16 stated that he did not put in any efforts to call for SDM or
MM to record the statement of Sher Singh, yet he volunteered to state that he had sought
opinion of the concerned doctor that if he could summon SDM or MM to record the
statement but the doctor stated that the condition of the injured had become critical. He

151 "...On reaching at the spot, I did not make any investigation regarding the information recorded in
DD No. 21A that one person had set himself on fire. I did not investigate this fact till the investigation
remained with me.*** *** ***
...I had made enquires from the public persons present there during my stay for about 20 or 25 minutes at
the spot. At that time, no evidence had come to show that injured Sher Singh had put on fire by someone."

424
also stated that the injured Sher Singh had stopped talking by that time.
More specifically, in the cross-examination conducted on behalf of the accused Suresh,
PW-16 stated that the whole body of Sher Singh was wrapped in bandages except his
eyes, nose and mouth. He denied the suggestion that the thumb impression on the
statement was forged and that the deceased was not in a position to put his thumb
impression on the statement recorded152.
PW-16 also stated that he did not get the statement of other witnesses from the spot or
the nearby residential houses nor did he make efforts to find out as to who had called the
police to inform about the incident.
PW-19 Inspector Om Prakash had been the Additional SHO, Police Station Vikas Puri
who took over the case from SI Rajesh Kumar on 19.12.1997. He prepared the inquest
report in the presence of the brothers of the deceased and sent the dead body for post-
mortem and after post-mortem handed over the same to his family members. This
witness further pointed out that he recorded the statement of Rajesh at the spot and made
further enquiries but no other person gave the statement. This witness, inter alia, stated
that on 18.12.1997, he along with SHO Police Station Vikas Puri had reached the
hospital on getting the information about the critical condition of victim and SI Rajesh
Kumar met them; at that time the victim was lying in adjoining room of ICU. The
witness further stated that when the doctor concerned was asked to attest the statement
of injured Sher Singh as recorded by SI Rajesh Kumar, the doctor pointed out that the
facts had already been mentioned in the MLC and there was no need to attest the
statement recorded by SI Rajesh Kumar. In cross-examination the witness admitted the
fact that in the related DD entry, the information recorded had been that one person had
put himself on fire. In the other part of cross-examination, this witness was given the
suggestions that when he was in-charge PP Matiala, hot words were exchanged with
accused persons and further hot words were exchanged with them when he was in-
charge PP East Uttam Nagar regarding some demonstration of workers. It was yet
further suggested that one week prior to the incident, he had an altercation with the

152 The relevant part of his testimony in this regard could also be usefully taken note of as under:
"The patient came out of the ICU at about 7.45 P.M. of 8 P.M..... When I had moved an application for
recording statement of the patient, one doctor and one nurse were present beside the patient. I had not
requested the doctor and nurse in writing to remain present at the time of recording dying declaration of
the patient. (Volunteered I had requested them orally)...... I had not informed the doctor and nurse about
the consequences for not joining the investigation. (Volunteered at that time I was not aware that the
patient will be dying). When the patient was brought out of ICU I had seen him burnt all over the body.
The whole body of the patient excluding eyes, nose and mouth was wrapped with bandages. The ears were
also not wrapped with bandage. It is incorrect to suggest that Patient Sher Singh did not make any dying
declaration and I had forged and created falsely the dying declaration Ex. PW-16/B to be that of deceased
Sher Singh. It is incorrect to suggest that the thumb impression at point A on Ex. PW-16/B has been
forged afterwards and deceased was not in a condition to put his thumb impression. It is also incorrect to
suggest that deceased Sher Singh had died in the ICU itself and was dead when brought out of ICU."

425
accused persons. The witness, of course, denied such suggestions.
As noticed, the contents of two documents, namely, the MLC report said to have been
prepared by PW-8 Dr. Sushma (Ex. PW-8/A) and the statement said to have been
recorded by PW-16 SI Rajesh Kumar (Ex. PW-16/B), form the core of this case
inasmuch as the prosecution has relied upon them as being the last statements made by
Sher Singh after the incident and few hours before his demise. Hence, the contents of
these documents also need to be taken note of.
In the MLC Ex. PW-8/A, said to have been prepared by PW-8 Dr. Sushma at 4.35 p.m.
on 18.12.1997, the particulars of the patient were stated as Sher Singh son of Ganpat
Ram age 23 years M and address as H-603, Pankha Rd. N. Delhi. While stating that the
time of burning was approximately 3.30 p.m. and time of admission was 4.35 p.m., it
was also stated therein that the informant was the patient himself. The doctor noticed
that the patient was 'conscious, oriented' and that he had suffered 'burn injuries involving
whole of the body surface area-100% deep burn'.
The statement of the injured Sher Singh (Ex. PW-16/B) is said to have been recorded by
PW-16 SI Rajesh Kumar in the hospital in Hindi language
Another relevant document for the present purpose is the PCR form (Ex. PW-7/B)
wherein it was recorded in Part-I that the information was received that 'near scooter
market, Prem Nagar Bus Stand, Dall Mill Road, Uttam Nagar, one person has put
himself on fire'. In Part-II, the information recorded had been that the victim was found
to have suffered 100% burn injuries; he was being taken to the hospital; and was
identified as 'Sher Singh s/o Ganpat Ram age 23/24 years R/o 603 Pankha Road, Uttam
Nagar'. In Part III, it was recorded that the patient was admitted in the hospital in 100%
burn condition and he was not saying anything. However, in the last part of this
document, it came to be recorded that as per the patient's statement to the doctor, 'Suresh
and Purshottam threatened him and then put him on fire after pouring kerosene oil'.
In their statements under Section 313 of the Code of Criminal Procedure ('CrPC'), both
the appellants denied their involvement in the commission of the offence i.e., putting
Sher Singh on fire.The relevant portions of appellant Purshottam's statement read as
under153:

153 "Q.3 It is further in evidence against you that you are active worker of BJP. On two or three
occasions, prior to the incident quarrels/disputes had taken place of yours with deceased Sher Singh. No
report was got lodged with the police about the quarrels due to fear. What have you to say?
Ans. It is correct that I am an active member of BJP. Second part is incorrect.*** *** ***
Q.20 It is further in evidence against you that patient Sher Singh (since deceased) had further stated in his
statement to PW-16 SI Rajesh Kumar that co-accused Suresh had put him on fire with match stick and
both of you were residing at A Block, Uttam Nagar. What have you to say?
Ans. It is correct that I am residing at A Block, Uttam Nagar. Rest is denied.*** *** ***
Q.43 Do you want to say anything else?
Ans. That being politically known person, I have been falsely implicated by certain persons adversely

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The Trial Court found the appellants guilty
After conclusion of the trial and after having heard the parties, the Trial Court proceeded
to determine the questions involved in the matter in its impugned judgment dated
30.01.1999. The Trial Court found that there was no direct evidence about the
commission of offence; and that the entire prosecution case was hinging upon the two
dying declarations said to have been made by the deceased Sher Singh. The Trial Court
accepted the genuineness of the evidence led in by PW-8 Dr. Sushma that the victim
Sher Singh himself had informed her the reason and cause behind his injuries; that she
had found the victim to be conscious and oriented though his general condition was
critical; and that the veracity of the MLC Ex. PW8/A prepared by her could not be
doubted….. The Trial Court also accepted the testimony of PW-16 SI Rajesh and the
statement of the victim said to have been recorded by him as the dying declaration (See
Original Judgment)......
Nothing has come on record to show if any relative of the deceased was present at the
time when injured Sher Singh was brought at hospital or when his MLC Ex.PW-8/A was
prepared or when statement Ex.PW-16/B was recorded by PW-16 SI Rajesh. No motive
has been imputed by the prosecution to this witness to falsely fabricate the statement of
the deceased. At the time of recording the statement Ex.PW-16/B, there was nothing in
the mind of SI Rajesh to show that injured Sher Singh would expire soon. SI Rajesh got
recorded the case u/s 307/34 IPC against both the accused persons. Rukka was sent from
the spot at 9.55 P.M. The FIR was registered thereafter at 10.20 P.M. The names of both
the accused persons were mentioned in the MLC Ex.PW-8/A and in the statement
Ex.PW-16/B. The death of injured Sher Singh had not occurred by that time. So it
cannot be imagined that SI Rajesh Kumar would get the case registered giving the
names of the accused persons at that time. The case had been registered on 18.12.97.
The intimation about the death of injured Sher Singh was received at PS Vikas Puri on
19.12.97 in the morning. The accused persons admittedly were arrested on the
intervening night of 18/19.12.97 from their respective houses even before the death of
the deceased. All these facts clearly rule out the possibility of any manipulations or
fabrications...."
The Trial Court also did not find any adversity in the situation that no statement was
interested against me."
11.2. The accused Suresh also submitted that he had been falsely implicated in the case and that the
evidence led in against him was false. He gave out his version in the following:-
"Q.42 Do you want to say anything else?
Ans. I am innocent. I am running a business of hardware under the name and style of "M/S NEW DELUX
PANTS and at no point time I have kerosene oil depot. The police has implicated me in this case falsely
and I was picked up from my residence by the police of PS Vikas Puri on the false pretext that certain
enquiries are to be made and they assured me to release on the same day. But after taking me forcely from
my residence the police involved me in this case. I do not know the deceased."

427
made to PW-18 ASI Harish by Sher Singh when he was being transported to the
hospital. The Trial Court also rejected the other contentions urged on behalf of the
accused appellant and held that even if the victim had suffered 100% burn injuries, the
dying declaration made by him was not to be rejected as there was nothing to show that
the mental condition of injured Sher Singh was such that he was unable to speak and,
inter alia (See Oroginal Judgment)
One of the principal submissions on behalf of the accused persons had been that as per
the testimony of PW-6 Rajesh, the victim had at the first point of time made the
statement to the effect that he had put himself on fire. The Trial Court rejected this part
of the statement made by PW-6 Rajesh in his cross-examination …..
The Trial Court found that the two dying declarations inspired confidence and were
worthy of reliance while observing that the same were recorded at the earliest; that none
of the relatives of the victim were present at that time; and that there was nothing to
suggest if the deceased was influenced by any consideration to falsely name the accused
persons while letting the real culprits go scot free. The Trial Court, though found that the
prosecution had failed to establish the motive of the accused persons for setting the
deceased Sher Singh on fire, but observed that merely for want of proof of motive, the
prosecution case could not be discarded (See original judgment)….
The Trial Court also referred to the contention that no overt act was attributed to the
accused appellant Purshottam but opined that in the proven circumstances, he could not
escape liability while observing ….
In the ultimate analysis, the Trial Court found proved the prosecution case beyond
reasonable doubt and hence, convicted the accused-appellants for the offence under
Section 302/34 IPC and sentenced them to life imprisonment.
The High Court affirmed the conviction and sentence
Present Appeal
Assailing the order of conviction, the accused persons preferred separate appeals, being
Criminal Appeal Nos. 121 of 1999 and 139 of 1999 before the High Court of Delhi. The
High Court reappreciated the evidence and concurred with the decision of the Trial
Court while holding that the statement made by the deceased Sher Singh to Dr. Sushma
(PW-8) and recorded by her in the MLC (Ex. PW-8/A) as also the statement made by
him to SI Rajesh Kumar (PW-16) in Ex. PW-16/B, which were considered to be the
dying declarations, clearly established the crime alleged against the appellants.
The High Court particularly referred to the fact that in the PCR Form (Ex. PW-7/A) the
entries came to be made by PW-7 Ct. Anju not only as regards the information received
at the initial stage but further to that about the nature of injuries as also the particulars of
the victim with his name and address and the fact that he was admitted to the hospital.

428
The High Court, in a comprehension of the material on record, found that PW-18 ASI
Harish had not been truthful in his assertion that the victim did not say anything to him
because the subsequent entries in the PCR Form (Ex. PW-7/A) could not have been
made by PW-7 Ct. Anju but for the information passed on to her by PW-18 ASI Harish,
who, in turn, ought to have gathered all such particulars from the victim only…..
The High Court further proceeded to analyse the description appearing in MLC Ex. PW-
8/A and found that such entries were obviously made by PW-8 Dr. Sushma on the
information divulged by the victim himself. ( See Original Judgment)
The High Court also referred to the contents of the dying declaration…..
After rejecting the contention urged on behalf of the appellants as regards the reliability
of the dying declarations recorded by PW-8 Dr.Sushma and PW-16 SI Rajesh Kumar,
the High Court accepted the case of prosecution…..
While rejecting the contentions urged on behalf of the appellants that the statement
allegedly made by the victim Sher Singh to PW-6 Rajesh that for being dropped from
the tempo he had set himself on fire may be accepted as the first dying declaration and,
while approving the findings of the Trial Court in paragraphs 29 ….
Therefore, the High Court, rather in its independent analysis of the evidence on record,
concurred with the conclusion of guilt of the appellants and dismissed the appeals.
Rival Contentions
Arguments of the counsel for the Appellants
Assailing the conviction and sentencing in the impugned judgment, it has been
contended on behalf of appellant No. 1 that the conviction of this appellant is based only
on speculations and the prosecution had even failed to prove his identity. As regards
value and worth of the alleged dying declarations of the deceased, learned counsel
would argue that such dying declarations are not reliable for various reasons and counts.
The learned counsel has elaborated that the assertion occurring in the dying declaration
Ex. PW-16/B that the deceased had consumed liquor is falsified by the post-mortem
report Ex. PW-14/A stating that there were no traces of alcohol in the body of the
deceased. Learned counsel has also argued that as per PW-8 Dr. Sushma, the deceased
was suffering 100% deep burns involving whole of the body and the nature of the injury
was grievous; and she had also testified that thumbs of the deceased were burnt. Thus,
according to the learned counsel, in the given status of burns, including the thumbs,
assertion of PW-16 about having obtained the thumb impressions of the deceased is
clearly falsified; and dying declaration alleged to have been recorded by PW-16 appears
to be a doctored and manipulated document. It has also been argued that PW-16 had
ample opportunity to call for a Magistrate for recording the dying declaration as he was
allegedly declared fit by the Doctor, but PW-16 did not do so and purportedly recorded

429
the dying declaration himself that further casts serious doubt on the correctness of such
alleged dying declaration. Learned counsel has referred to Chapter 13-A of the Delhi
High Court Rules to submit that as per the requirements therein, PW-16 ought to have
requested the Magistrate to record such dying declaration and in any case, ought to have
taken the attestation from medical or para-medical staff in attendance but he did not do
so, and this creates further doubt on the correctness of such statement. Learned counsel
has argued that for various infirmities and inconsistencies as also for want of
corroboration, the alleged dying declarations cannot be relied upon; and that being the
sole basis of conviction, the impugned judgments deserve to be set aside. The learned
counsel has, inter alia, referred to and relied upon the decisions in State of Punjab v.
Gian Kaur and Anr.: AIR 1998 SC 2809 1998 Indlaw SC 2146, Uka Ram v. State of
Rajasthan: JT 2001 (4) SC 472, Dalip Singh and Ors. v. State of Punjab: AIR 1979 SC
1173 1979 Indlaw SC 531, Gopal Singh and Anr. v. State of Madhya Pradesh and Anr.:
AIR 1972 SC 1557 1972 Indlaw SC 625 and Thurukanni Pompiah and Anr. v. State of
Mysore: AIR 1965 SC 939 1964 Indlaw SC 450.
The learned counsel has further argued that there being no eye-witness and the entire
matter resting upon circumstantial evidence, the appellants could not have been held
guilty before establishment of the entire chain of circumstances and cogent
corroboration of the alleged dying declarations. The learned counsel has contended that
the place of incident was a crowded market and there were many shops in the area; and
then, there was only one exit from the place of incident. Thus, according to the learned
counsel, it was impossible for the accused to escape the place of incident without being
spotted by any of the shopkeepers or people in the market; and they having not being
spotted so, the prosecution case cannot be relied upon.
The learned counsel has further relied upon the testimony of PW-6 Rajesh to submit that
in the very first instance, the victim made the statement to the effect that he was dropped
from the tempo he was working with and had set himself on fire. The learned counsel
would contend that PW-6 having not been declared hostile, the statement made by the
deceased to PW-6 ought to be considered as the first dying declaration and therein, the
cause of incident having been stated by the deceased as self-immolation, the prosecution
case ought to fail on this count alone. The learned counsel has also contended that the
prosecution has failed to examine the other persons Rinku and Daljeet whose names
have occurred in the testimony of PW-6 and who were present at the site when the
deceased made his statement about self-immolation.
The learned counsel has also referred to the fact that as per PW-18, who took the
deceased in his PCR Van from the place of incident to the hospital, the deceased was
crying the whole way and was unable to speak and this version, according to the learned
counsel, contradicts the testimony of PW-16 that the deceased was in a fit state of mind

430
and was conscious to give his statement.
It has also been contended that the prosecution proved only Part I of the document Ex.
PW-7/A but not Parts II, III and IV thereof and such other parts appear to be doctored
and manipulated. The learned counsel has also argued that the prosecution has failed to
prove any motive on part of appellant No. 1 to commit the alleged offence and the
hearsay testimony of PW-1 about his having heard from his mother about the quarrel
between appellant No. 1 and the deceased is not of any value or substance. Learned
counsel would also contend that deceased himself had nowhere mentioned in any of the
alleged dying declarations about the motive behind the crime; and the prosecution also
having failed to prove any such motive, the prosecution case cannot be said to have been
established beyond reasonable doubts. It has also been argued that the appellant No. 1
being shorter in height than the deceased, there was no likelihood of him throwing
kerosene on the head of the deceased. Lastly, with reference to the decision in Sharad
Birdhi Chand Sarda v. State of Maharashtra: (1984) 4 SCC 116 1984 Indlaw SC 432,
learned counsel has contended that when two views are possible on evidence, one
pointing to the guilt of the accused and another to his innocence, the accused is entitled
to the benefit of the one which is favourable to him. While assailing the conviction and
sentencing, learned counsel for the appellant No. 2 has argued that the alleged dying
declarations are not reliable and conviction could not have been based thereupon. It has
been contended that the dying declarations are unreliable for various reasons that: (a) the
OPD Card which was the first document prepared by the Hospital was not produced on
record; (b) the tone and tenor of the language used in Ex. PW-8/A shows that it could
not have been the statement of the deceased since he was in critical condition; (c) that
the document Ex. PW-16/B, recorded almost three hours after the alleged first statement
could not have been more detailed when the condition of deceased was critical and as
per the treating Doctor PW-9, the condition of the deceased was continuously
deteriorating; (d) that the thumb impression of the deceased on the dying declarations is
entirely doubtful when he had suffered 100% burns all over the body; (e) that there were
no indication of liquor consumption in MLC or post-mortem report; (f) that if the
deceased had consumed half bottle of liquor, his making long narrative with intelligible
and coherent statement remains doubtful; (g) and that no effort was made to requisition
the services of Magistrate for the purpose of recording the dying declarations. Thus,
according to the learned counsel, the dying declarations do not pass through the test of
truthfulness and reliability and cannot be acted upon.
The learned counsel for appellant No. 2 has also strongly relied upon the testimony of
PW-6 Rajesh who was not declared hostile; and has contended that the entire
prosecution case fails when it is noticed that his version about self-immolation by the
deceased is in sharp contrast to the contents of the alleged dying declarations.

431
The learned counsel for the appellant No. 2 has further contended that the prosecution
has failed to establish any motive for commission of crime by this appellant and, with
reference to the decision in Kalabai v. State of Madhya Pradesh: 2019 SCC ONLINE SC
621, has argued that motive having not been proved, conviction under Section 302 IPC
is not sustainable.
Learned counsel has also urged in the alternative that in the given set of facts and
circumstances, even if the conviction of the appellant No. 2 is to be maintained, the
same may be altered to the one under Part II of Section 304 IPC.
Arguments of the Counsel for the Respondent
Per contra, the learned senior counsel for the respondent has strenuously argued that the
prosecution case clearly stands established by the two dying declarations independently
recorded, one by PW-8 Dr.Sushma and another by PW-16 SI Rajesh. Learned counsel
has referred to the Constitution Bench decision of this Court in the case of Laxman v.
State of Maharashtra: (2002) 6 SCC 710 2002 Indlaw SC 1921 as also other decisions of
this Court in State of Madhya Pradesh v. Dal Singh: (2013) 14 SCC 159 2013 Indlaw
SC 337 and in Bhagwan v. State of Maharashtra: (2019) 8 SCC 95 to submit that on the
settled principles relating to acceptability of a dying declaration, the contentions urged
on behalf of the appellants deserve to be rejected. The learned counsel would submit that
the two dying declaration are consistent on material points and features and the same
have rightly been accepted by the Trial Court as also by the High Court. The learned
counsel would also submit that at the time of recording of Ex. PW-8/A, no relative or
acquaintance of the victim was present and any possibility of tutoring is totally ruled
out. According to the learned counsel, there was no occasion for PW-8 Dr.Sushma to
record the particulars of the deceased and other information of her own imagination; and
such particulars and information could have occurred in Ex. PW-8/A only when
divulged by the victim himself. Learned counsel further submitted that even the question
regarding thumb impression pales into insignificance when it is noticed that there is no
such thumb impression on Ex. PW-8/A.
In regard to the thumb impression on Ex. PW-16/B, the learned senior counsel has
contended that even if the victim had allegedly suffered 100% burns, the evidence is not
to the fact that inner side of the hand/palm was also burnt to the extent that the victim
could not have put his thumb impression; and post-mortem report would also show that
dorsum of the hand was burnt and therefore, taking of thumb impression on Ex. PW-
16/B is not ruled out. The learned counsel has contended that, again, there was no
occasion for PW-16, to record all the particulars of the victim as also the offenders
including their addresses, unless given out by the victim himself; and there is no reason
to discard this dying declaration Ex. PW-16/B either.
As regards the possibility of the victim having set himself on fire and the want of

432
evidence of other persons named by PW-6, the learned senior counsel has contended
that such theory of self-immolation as also the names of other persons essentially came
to be introduced in the cross-examination of PW-6 Rajesh and therefore, the burden was
on the accused persons to establish such theory and to examine such alleged persons;
and no fault could be fastened on prosecution if such persons were not examined.
According to the learned counsel, the defence having failed to establish the theory of
self-immolation, the contentions urged on behalf of the appellants deserve to be rejected.
The learned senior counsel has further argued that so far as the question of motive is
concerned, though the possibility of motive has come on record in the testimony of PW-
1 Raju but in any case, even if the prosecution has not been able to lead cogent evidence
as regards motive, the accusations against the appellants do not fail, particularly in view
of the facts occurring in the two dying declarations.
Thus, according to the learned counsel for the respondent, the dying declarations have
rightly been accepted in this case and the conviction of the appellants on that basis calls
for no interference.
Observation of the Court
Having given thoughtful consideration to the rival submissions and having examined the
record, we find no reason to consider interference in the conviction of the appellants
and, in our view, these appeals must fail. Admission and acceptability of dying
declaration: the principles. The principles relating to admission and acceptability of the
statement made by a victim representing the cause of death, usually referred to as a
dying declaration, are well settled and a few doubts as regards pre-requisites for
acceptability of a dying declaration were also put at rest by the Constitution Bench of
this Court in the case of Laxman v. State of Maharashtra: (2002) 6 SCC 710 2002
Indlaw SC 1921.
In the said case of Laxman, conviction of the appellant was based on dying declaration
of the deceased which was recorded by the Judicial Magistrate. The Session Judge and
the High Court found such dying declaration to be truthful, voluntary and trustworthy;
and recorded conviction on that basis. In appeal to this Court, it was urged with
reference to the decision in Paparambaka Rosamma and Ors. v. State of Andhra
Pradesh: 1999 CriLJ 4321 that the dying declaration could not have been accepted by
the Court to form the sole basis of conviction since certification of the doctor was not to
the effect that the patient was in a fit state of mind to make the statement. On the other
hand, it was contended on behalf of the State, with reference to the decision in Koli
Chunilal Savji and Anr. v. State of Gujarat: 1999 CriLJ 4582, that the material on record
indicated that the deceased was fully conscious and was capable of making a statement;
and his dying declaration cannot be ignored merely because the doctor had not made the
endorsement about his fit state of mind to make the statement. In view of these

433
somewhat discordant notes, the matter came to be referred to the Larger Bench. The
Constitution Bench summed up the principles applicable as regards the acceptability of
dying declaration (Juristic theory of DD- Read from the original judgment) …. The
Constitution Bench affirmed the view in Koli Chunilal Savji (supra) while holding that
Paparambaka Rosamma (supra), was not correctly decided…In the case of Dal Singh
(supra), this Court has pointed out that the law does not provide as to who could record
dying declaration nor is there a prescribed format or procedure for the same. All that is
required is the person recording dying declaration must be satisfied that the maker is in a
fit state of mind and is capable of making such a statement. This Court also pointed out
that as to whether in a given burn case, the skin of thumb had been completely burnt or
if some part of it will remain intact, would also be a question of fact…. Undoubtedly,
the subject of the evidentiary value and acceptability of a dying declaration, must be
approached with caution for the reason that the maker of such a statement cannot be
subjected to cross-examination. However, the court may not look for corroboration of a
dying declaration, unless the declaration suffers from any infirmity. So far as the
question of thumb impression is concerned, the same depends upon facts, as regards
whether the skin of the thumb that was placed upon the dying declaration was also
burnt. Even in case of such burns in the body, the skin of a small part of the body i.e. of
the thumb, may remain intact. Therefore, it is a question of fact regarding whether the
skin of the thumb had in fact been completely burnt, and if not, whether the ridges and
curves had remained intact."
In the case of Bhagwan (supra), this Court accepted the dying declaration made by a
person having suffered 92% burn injury and whose continued consciousness was
certified by the doctor. This Court referred to the decision in Vijay Pal v. State
(Government of NCT of Delhi): (2015) 4 SCC 749 2015 Indlaw SC 160, where the
statement made by the victim having suffered 100% burn injury was also accepted.
Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would
not stand in the way of patient giving a dying declaration which otherwise inspires the
confidence of the Court and is free from tutoring, and can be found reliable."
In the case of Gian Kaur (supra), the dying declaration was disbelieved on the ground
that though as per medical evidence the deceased had 100% burn injuries but the thumb
mark appearing on the dying declaration had clear ridges and curves. The benefit of
doubt extended by the High Court was found to be not unreasonable and hence, this
Court declined to interfere …
In the case of Gopal Singh (supra), the Court found that the dying declaration did not
contain complete names and addresses of the persons charged with the offence and it
was found that conviction could not be based on such dying declaration alone without
corroboration. Essentially, for the infirmity carried by such dying declaration, this Court

434
found lesser justification for the High Court's interference ….
In the case of Dalip Singh (supra), the alleged dying declaration turned out to be
doubtful for it contained such facts which could not have been in the knowledge of the
deceased and hence, this Court found it unsafe to rely on the same ….
In the case of Thurukanni Pompiah (supra), this Court held that while a truthful and
reliable dying declaration may form the sole basis of conviction, even without
corroboration but the Court must be satisfied about its truthfulness and reliability; and if
the Court finds that the declaration is not wholly reliable and a material portion of the
deceased's version of the occurrence is untrue, the Court may, in the circumstances of a
given case, may consider it unsafe to convict the accused on the basis of the declaration
alone without further corroboration. ( read from the original judgment). In the case of
Uka Ram (supra), this Court again emphasised on the requirement that the Court should
be satisfied about trustworthiness of the dying declaration, its voluntary nature and
fitness of the mind of the deceased and it was held that:
…however, the Court found that the deceased was a mental patient and there existed a
doubt about mental condition of the deceased at the time of making the dying
declaration. In the given circumstances, this Court found that to be a fit case to extend
the benefit of doubt to the accused. For what has been noticed hereinabove, some of the
principles relating to recording of dying declaration and its admissibility and reliability
could be usefully summed up as under:-
(i) A dying declaration could be the sole basis of conviction even without corroboration,
if it inspires confidence of the Court.
(ii) The Court should be satisfied that the declarant was in a fit state of mind at the time
of making the statement; and that it was a voluntary statement, which was not the result
of tutoring, prompting or imagination.
(iii) Where a dying declaration is suspicious or is suffering from any infirmity such as
want of fit state of mind of the declarant or of like nature, it should not be acted upon
without corroborative evidence.
(iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state
to make the statement, the medical opinion cannot prevail.
(v) The law does not provide as to who could record dying declaration nor there is any
prescribed format or procedure for the same but the person recording dying declaration
must be satisfied that the maker is in a fit state of mind and is capable of making the
statement.
(vi) Although presence of a Magistrate is not absolutely necessary for recording of a
dying declaration but to ensure authenticity and credibility, it is expected that a
Magistrate be requested to record such dying declaration and/or attestation be obtained

435
from other persons present at the time of recording the dying declaration.
(vii) As regards a burns case, the percentage and degree of burns would not, by itself, be
decisive of the credibility of dying declaration; and the decisive factor would be the
quality of evidence about the fit and conscious state of the declarant to make the
statement.
(viii) If after careful scrutiny, the Court finds the statement placed as dying declaration
to be voluntary and also finds it coherent and consistent, there is no legal impediment in
recording conviction on its basis even without corroboration.
Applying the relevant principles to the facts of the present case, we have not an iota of
doubt that the appellants have rightly been convicted on the basis of the statements of
the victim Sher Singh, as recorded by PW-8 Dr. Sushma and PW-16 SI Rajesh Kumar.
Testimony of PW-8 and the contents of Ex. PW-8/A
As noticed, it is clearly established on record that the victim Sher Singh, when found
engulfed in fire, information was received in PCR and its Van reached the place of
incident within minutes of incident; and the victim was immediately placed in the Van
and was taken to Safdarjung Hospital. Though it appears from the testimony of PW-9
Dr. H.K. Sharma as also of PW-8 Dr. Sushma that the first document prepared at the
time of admission of the patient is OPD slip; and such OPD slip in this matter has not
been produced on record. However, such omission of the prosecution, in our view, has
no bearing on the substance of the matter because immediately after preparation of the
OPD slip, the victim was taken to the Burns Ward and detailed Medico-Legal Case
Report was prepared by PW-8 Dr. Sushma. The incident had taken place at about 3.00-
3.15 p.m. and the MLC report (Ex. PW-8/A) was prepared by Dr. Sushma at 4.35 p.m.
There had not been unnecessary time gap between the occurrence and the preparation of
MLC particularly when major part of time was spent in the process of transportation.
The significant feature of the case is that in the said MLC report (Ex. PW-8/A), PW-8
specifically mentioned the particulars and information as given out by the victim
himself. As noticed, in the information particulars, this doctor clearly stated the version
of the victim that he sustained burn injury 'when some Purshottam & Suresh (telwala)
threatened him & then poured kerosene on him & set him on fire'. It is noticed that in
Ex. PW-8/A the word 'telwala' came to be mentioned within brackets and was written in
Hindi (being vernacular expression), although other contents of this document were
filled up in English. PW-8 had been categorical in her assertion that the patient had
himself informed her about the alleged history behind his sustaining burn injuries. There
is absolutely nothing on record to disbelieve or even doubt the statement of PW-8 Dr.
Sushma. On the contrary, such recording of the expressions verbatim by the doctor lends
credence to her testimony and the document prepared by her. In our view, with this
testimony of PW-8 it is established beyond doubt that in his first version in the hospital,

436
the victim Sher Singh asserted that Purshottam and Suresh poured kerosene oil on him
and set him on fire. It is also established that Suresh was identified by the victim as
'telwala' and it has not been doubted that in the slang expressions, the reference had been
to the one dealing in some kind of oil business. These are the first traces with names and
slight particulars of the assailants. As shall be noticed hereafter, in the sequence of
circumstances, the expressions have rightly been fastened on the appellants.
It is also noteworthy that in Ex. PW-8/A, the doctor PW-8 Sushma mentioned all other
features relating to the medical condition of the patient and recorded that he had suffered
'burn injuries involving whole of the body surface area-100% deep burn'. However and
even while mentioning that the general condition of the patient was 'critical', it was also
recorded in Ex. PW-8/A that the patient was 'conscious, oriented'. It is but clear from the
contents of Ex. PW-8/A about the condition of the victim Sher Singh that though the
doctor found him to be in critical condition with 100% deep burns yet, he was conscious
and oriented. In other words, he was neither unconscious nor disoriented. In yet other
words, he was neither insensate nor confused. Such significant noting about the mental
faculties of the victim at the time of giving out the narratives to the doctor makes it clear
that even when he was suffering from the agony of 100% deep burns, he was not in an
unfit state of mind; and there appears no reason to disbelieve his first version as
recorded in Ex. PW-8/A.
Testimony of PW-16 and the contents of Ex. PW-16/B
The statement (Ex.PW-16/B) said to have been made by the victim Sher Singh to PW-16
SI Rakesh Kumar, as recorded in hospital in Hindi language, has in fact been the pivot
of the prosecution case. This statement as also the testimony of PW-16 SI Rakesh
Kumar has undergone thorough scrutiny by the Trial Court as also by the High Court, as
noticed in the extraction hereinbefore. We have yet again examined the testimony of
PW-16 as also the contents of Ex. PW-16/B and find no reason to take any view
different. The presence of PW-16 in that hospital at the relevant point of time has not
been questioned and it is clearly established on record that before recording the
statement of the victim, he moved the application Ex. PW-16/A whereupon PW-17 Dr.
Rajesh Verma declared the patient fit for making statement. Thereafter, PW-16
proceeded to record the statement of victim and it has not been shown on record if
anyone related with deceased was present at the time of recording of his statement by
PW-16. Any possibility of tutoring or prompting is totally ruled out. As noticed, in the
statement, the victim even stated the registration number of the vehicle he was employed
and gave out the names and addresses of the appellants while stating their respective
roles in the incident in question. At the time of making the said statement, the victim
Sher Singh was suffering from 100% deep burn injuries and was in a critical condition.
In the given state, elaboration on the motive etc., was least expected from him. PW-16

437
appears to have recorded whatever was given out by the victim; and there appears
nothing of any manipulation by him.
The two statements Ex. PW-8/A and Ex. PW-16/B are dying declarations
For what has been observed hereinabove, it is but clear that in his first version before the
doctor, the victim Sher Singh named Purshottam and Suresh as his assailants and
particulars of these persons were fully described by him in the statement made to PW-16
only a few hours before his demise. It has not been disputed that particulars and
addresses as stated by the victim in his statement Ex. PW-16/B had been of the
appellants only. It, therefore, emerges that the victim, before his demise, alleged that the
appellant No. 2 had put him on fire and the appellant No. 1 was his accomplice. While
recording his version in Ex. PW-8/A, the doctor PW-8 mentioned that he was conscious
and oriented. On the other hand, before recording the statement of the victim (Ex. PW-
16/B), PW-16 obtained the certification from PW-17 Dr. Rajesh Verma that the patient
was fit to give his statement. In the given set of circumstances, we find no infirmity that
the Trial Court and the High Court accepted that the victim was in a fit state of mind to
give the statement. It has also not been established on record that the statements of the
victim were an outcome of tutoring or figment of imagination. In other words, the
statements appear to be voluntary and were given in a fit state of mind. In the given set
of circumstances, the statements so made by the victim could be acted upon as dying
declarations. However, before reaching to the conclusion on the basis of these
statements, it would be appropriate to deal with the criticism offered on behalf of the
appellants.
It has been contended that the statement Ex. PW-16/B cannot be accepted for the same
having not been recorded by or in the presence of Magistrate nor any attestation having
been obtained. Chapter 13-A of Delhi High Court Rules has also been referred. In our
view, the said rules as regards the expected manner of recording of dying declaration, by
their very nature, could only be considered directly and it cannot be laid down that want
of compliance of any of the expectation therein would result in discarding of a recorded
dying declaration. The expectations in the said rules that the dying declaration be
recorded by a Judicial Magistrate; the fitness of the declarant be examined; the statement
be in the form of simple narrative; signature or thumb impression of the declarant be
obtained etc. are all, obviously, intended to ensure that the dying declaration is recorded
in the manner that its credence does not remain questionable. However, a particular
statement, when being offered as dying declaration and satisfies all the requirements of
judicial scrutiny, cannot be discarded merely because it has not been recorded by a
Magistrate or that the police officer did not obtain attestation by any person present at
the time of making of the statement. Even in this regard, the witness PW-19 Inspector
Om Prakash has pointed out that when asked to attest the statement of Sher Singh as

438
recorded by SI Rajesh Kumar, the doctor pointed out that the facts had already been
mentioned in the MLC and there was no need to attest the statement. Taking an overall
view of the matter, we find no reason that the statement Ex. PW-16/B be discarded only
for want of its recording by a Magistrate or for want of attestation.
Another emphasis laid on behalf of the appellants is on the fact that the victim Sher
Singh had suffered 100% burns and he was already in critical condition and further to
that, his condition was regularly deteriorating. It is, therefore, contended that in such a
critical and deteriorating condition, he could not have made proper, coherent and
intelligible statement. The submissions do not make out a case for interference. As laid
down in Vijay Pal's case and reiterated in Bhagwan's case (supra), the extent of burn
injuries - going beyond 92% and even to 100% - would not, by itself, lead to a
conclusion that victim of such burn injuries may not be in a position to make the
statement. Irrespective of the extent and gravity of burn injuries, when the doctor had
certified him to be in fit state of mind to make the statement; and the person recording
the statement was also satisfied about his fitness for making such statement; and when
there does not appear any inherent or apparent defect, in our view, the dying declaration
cannot be discarded. Contra to what has been argued on behalf of the appellants, we are
of the view that the juristic theory regarding acceptability of statement made by a person
who is at the point of death has its fundamentals in the recognition that at the terminal
point of life, every motive to falsehood is removed or silenced. To a fire victim like that
of present case, the gravity of injuries is an obvious indicator towards the diminishing
hope of life in the victim; and on the accepted principles, acceleration of diminishing of
hope of life could only obliterate the likelihood of falsehood or improper motive. Of
course, it may not lead to the principle that gravity of injury would itself lead to
trustworthiness of the dying declaration. As noticed, there could still be some inherent
defect As had been in Dalip Singh's case (supra) for which a statement, even if recorded
as dying declaration, cannot be relied upon without corroboration. Suffice would be to
observe to present purpose that merely for 100% burn injuries, it cannot be said that the
victim was incapable to make a statement which could be acted upon as dying
declaration.
The suggestions have also been made that the victim was in 100% burnt condition and
therefore, the alleged statements Ex. PW-8/A and PW-16/B are manipulated and
manufactured. We find nothing of substance in such suggestions for there had not been
shown any reason for which PW-8 Dr.Sushma and PW-16 SI Rajesh Kumar would
manufacture any such document. Interestingly, certain suggestions were made to PW-19
Inspector Om Prakash in his cross-examination about his previous exchange of hot
words or altercation with the accused persons. However, there was no such suggestion to
PW-16 or to PW-8. For the same reason, the doubts sought to be suggested about

439
availability of thumb impression of the victim on the statement Ex. PW-16/B deserve to
be rejected. In the case of Dal Singh (supra), this Court has pointed out that in the case
of burns, the skin of a small part of the body like thumb may remain intact; and it is
essentially a question of fact as to whether skin of thumb had also been burnt
completely. In this regard, it is also noticeable that even when the victim was carrying
100% deep burns, as per the post-mortem report, peeling of skin was noticed on dorsum
of hands and therefore, taking of thumb impression on Ex. PW-16/B is not ruled out.
The concurrent findings of the Trial Court and the High Court in accepting the thumb
impression on Ex. PW-16/B do not appear calling for any interference. It gets, perforce,
reiterated that there appears no reason for PW-16 to go to the extent of manufacturing
the document with a false thumb impression.
Another contention urged on behalf of the appellants has been that the victim, as per his
statement, had allegedly consumed half bottle of liquor before being put on fire but, as
per post-mortem report, no such liquor was found in the dead body. This apart, if he had
consumed liquor, there was less probability of his talking coherently. We find these
contentions also lacking in substance. It had been a case of fire injury and as per the
post-mortem report, the liver, spleen, kidney and other body-parts were found
congested. In such fire injury case, no adverse conclusion can be drawn against the
statement made by the victim about his having consumed some liquor and for this
reason, the reliability of all other facts stated in his statement cannot be doubted. As
noticed, he had given his complete including address at the time of admission to the
hospital and it has not been shown if such particulars were narrated by anyone else. He
had stated in his statement Ex. PW-16/B even the vehicle registration number on which
he was employed and then had given the names and addresses of both the appellants
while stating that appellant No. 2 Suresh poured kerosene on him and appellant No. 1
Pushottam was also there; and the appellant No. 2 set him on fire by lighting of match. It
is difficult to say that victim was unable to make the statement coherently.
For what has been discussed hereinabove, we are clearly of the view that the two
statements Ex. PW-8/A and Ex. PW-16/B have rightly been accepted as dying
declarations of Sher Singh, as made few hours before his demise and there is no reason
to discard the same. In the given set of facts and circumstances, where these two dying
declarations inspire confidence, we are clearly of the view that they could be relied and
acted upon even without corroboration.
Testimony of PW-6
A great deal of emphasis has been made in this case with reference to the testimony of
PW-6 Rajesh and it has been contended on behalf of the appellants that as per this
testimony, the victim had at the first point of time made the statement about self-
immolation for the reason of himself having been dropped from tempo. It is contended

440
that such statement by the victim ought to be taken as his first dying declaration. Having
closely scrutinized the testimony of this witness PW-6 Rajesh, we are satisfied that the
version as attempted to be given by him in the cross-examination has rightly been
rejected by the Trial Court and by the High Court.
Noticeable it is that this witness PW-6, in the examination-in-chief deposed that on
hearing the screams and having seen the smoke, he reached the spot; that other people
from market also reached the spot; that he saw a person burning on fire; that water was
thrown on the burning body of the victim from a nearby tap and the victim identified
himself as Sher Singh; and that someone from the market telephoned at number 100
whereupon the police reached the spot. This witness did not state anything in his
examination-in-chief about the victim having told anyone about self-immolation and
therefore, there was no occasion for the prosecution to declare him hostile and to
confront him with his previous statement. Moreover, though the story about the victim
having asserted that he had set himself on fire came to be introduced by this witness in
his cross-examination on behalf of the appellant No. 1 but the value and worth of such
suggestion was effectively demolished by this witness himself in his further statement in
cross-examination on behalf of the appellant No. 2 where he categorically stated that
"victim Sher Singh has not told the people present in my presence that he had put
himself on fire". In this cross-examination, the witness attempted to impute the
knowledge about such statement to one Tony. Obviously, the suggestion as occurring in
the statement of PW-6 about self-immolation by the victim had been of a remote hearsay
and is not of any worth at all. In the same sequence, the contentions urged on behalf of
the appellants about want of examination of other persons named by PW-6 falls to the
ground because such names and their roles came to be introduced only in the statement
made by PW-6 in his cross-examination. In the given context, it has rightly been
contended on behalf of the respondent that the theory of self-immolation as also the
names of the other persons, who allegedly reached the spot, having come up by way of
cross-examination of PW-6, the burden was on the accused persons to establish such
theory by cogent evidence. No such attempt was made on behalf of the accused-
appellants to prove any such fact or to examine any such named person.
As noticed, the appellant No. 1 attempted to suggest in his statement under Section 313
CrPC that he was a politically known person and was falsely implicated by certain
persons 'adversely interested' against him. No such evidence is placed on record as to
who were such persons and as to why they would be falsely implicating him in a murder
case. Thus, the incomplete and uncertain defence theory has rightly been rejected and
we have no hesitation in endorsing the findings recorded in the impugned judgments in
that regard.
Other Contentions

441
Although we have found that the two statements made by the victim and recorded in Ex.
PW-8/A and Ex. PW-16/B could be relied upon as his dying declarations and thereby
the complicity of appellants in the crime is established; and we have also rejected the
contentions urged with reference to the testimony of PW-6 yet, the other contentions
urged on behalf of the appellants need to be examined before reaching to a final
conclusion.
It has been argued that the prosecution has not been able to establish the identity of
assailants in this crime. The submission has no substance when the particulars as
occurring in the two statements Ex. PW-8/A and Ex. PW-16/B are examined and
analysed, wherein occupation of at least one of the assailant and then the names and
addresses of both the appellants came to be mentioned. For this very reason, the other
contention that the incident took place in a crowded market place and the appellants
were not seen by anyone also pales into insignificance.
The submission that prosecution has not been able to establish the motive for crime is
also of no effect because, in the first place, in a death case, the motive remains
essentially known to the deceased and to the offender; and a prosecution case cannot fail
only for want of proof of motive. This apart, in the present case, the indications of an
existing dispute of the deceased with appellant No. 1 do appear in the testimony of the
brother of the deceased, PW-1 Raju. It is also noticed that the deceased and the accused
persons were the residents of the same locality.
The contention that only Part I of the PCR is proved and not the other parts is also not
correct. It is noticed from the record that PW-7 Ct. Anju was examined on 12.08.1998
when her statement was deferred for summoning the concerned record and then, her
statement was further recorded on 31.08.1998 when she brought the original proforma
of PCR and the photocopy of the same was taken on record as Ex. PW-7/B. In our view,
the High Court has rightly relied upon the information reflected in Parts II, III and IV of
PCR form, which clearly show that not only the initial information was recorded about
the victim being on fire but further information were recorded from time to time during
the course of transporting and admitting the victim to hospital, where not only his
address came to be mentioned but the names of the assailants also surfaced. The said
document having been produced before the Court and its copy having been taken on
record, with PW-7 having proved that same, it would not be justified to discard the
same.
A substantial deal of argument had been with reference to the statement of PW-18 ASI
Harish who asserted that the victim, while being taken to hospital in PCR Van and even
in hospital, did not speak to him and was only crying in pain. The High Court has made
scathing remarks about this witness PW-18. Some of the remarks appear justified,
particularly when PW-18 attempted to say that he came to know the name of the victim

442
in the hospital from the persons present there. No such persons were otherwise shown on
record and from the testimony of PW-8 Dr. Sushma, it is established that the particulars
in MLC report came to be mentioned by her as per the information divulged by the
victim himself. For the reasons best known to him, PW-18, who had taken the victim to
hospital, attempted to say that the victim was not in a condition to speak and thereby,
attempted to disown whatever information that was given by the victim during the
process of transportation. However, this aspect does not require further dilation for the
other facts established on record, including the fact that the victim was conscious and
oriented at the time of admission to the hospital and made the statements in a fit state of
mind.
Another contention urged on behalf of the appellants about converting the present case
to that under Section 304 Part II for the offence of culpable homicide not amounting to
murder has only been noted to be rejected. The act of pouring kerosene over a person
and then putting him on fire by lighting a match has all the ingredients of doing an act
with the intention of causing death of a person in a gruesome manner. The conviction of
the appellants for the offence of murder appears justified and we find no reason to
convert the same into any offence of lesser degree. Therefore, the submissions made on
behalf of the appellants with reference to the decisions in Sharad Birdhi Chand Sarda
and Kalabai (supra) also deserve to be, and are, rejected.
Another suggestion on behalf of the appellant No. 1 that in any case, he has not been
assigned the role of pouring the kerosene or lighting the fire also deserves to be rejected
for the facts and circumstances noticed above and particularly when it has come on
record that he was with the appellant No. 2 when the victim was threatened and was put
on fire. The conviction of this appellant under Section 302/34 IPC remains
unexceptionable. For what has been noticed hereinabove, the suggestion of no likelihood
of appellant No. 1 throwing kerosene on the head of the deceased deserves to be rejected
without much dilation.
Conclusion
For what has been discussed hereinabove, we are clearly of the view that the appellants
have rightly been held guilty of causing death of Sher Singh by putting him on fire and
have also rightly been convicted for the offence under Section 302/34 IPC. No case for
interference is made out. Accordingly, and in view of the above, these appeals fail and
are, therefore, dismissed.
Appeals dismissed
Veracity of the Witnesses
Major Som Nath v Union of India and Another154

154 Bench : P. Jaganmohan Reddy, C.A. Vaidyialingam, G.K. Mitter

443
 Citation: 1971 Indlaw SC 797, (1971) 2 SCC 387, AIR 1971 SC 1910
Cases Refereed
1. Bhagat Ram v. State of Punjab 1954 Indlaw SC 188,
2. Madan Mohan Singh V. State of U. P., Privy Council 82.
3. Gokulchand Dwarkadas Mordrka v. The King, 1948 Indlaw PC 39
4. Jaswant Singh v. The State of Puniab 1957 Indlaw SC 59
Facts of the Case
The facts of the case in brief are that in view of the Chinese invasion Air Field at Sirsa
required to be extended for which purpose the Ministry of Defence, Govt. of India took
steps to acquire some lands of agriculturists pursuant to which a Notification dated
November 27, 1962 was issued under Section 4 of the Land Acquisition Act 1894 for
acquiring 51.79 acres of land situated in the State of Ahmedpur. On the next day another
Notification was issued under Section 6 of the Land Acquisition Act on November 28,
1962 and in view of the emergency action under Section 17 was taken for obtaining
possession of the land With a view to its development. The lands which were acquired
belonged to several land holders including Moti Ram and P.W. 12 Kewal Chand. The
Collector gave his award on 26-2-63 in respect of these lands, which actually measured
49.47 acres, at Rs. 1350 per acre amounting to Rs. 66,784.50 np. Apart from this amount
compensation was also awarded for standing crop amounting to Rs. 11,073.13 np.
Before the land was actually acquired the Appellant who was a Major in the Military
Engineering-Service was working as a Garrison Engineer and was inching of the
extension. He had in anticipation of acquisition and execution of the work appointed A.
B. Ranadive, P.W. 14 as Assistant Garrison Engineer who was to be responsible, for all
the matters connected with the acquisition of land, demarcation of boundaries as an
Engineer Inching for execution of the contract and responsible for the maintenance of the
Air Field. The work of the extension of aerodynamic was entrusted to one Telu Ram,
P.W. 8 Contractor, with whom the trusted to M.E.S. Department entered into an
agreement on December 3, 1962. This agreement was signed both by the Appellant and
P.W. 14. The work according to that agreement was to be done in 2 phases-first phases
was to commence on 10th January 1963 and was to be completed by 9th October 1963.

444
After the completion of the first phase the second phase was to start on 10th October
1963 and completed by 9th May 1964. Pursuant to this agreement it is said that
-symbolic possession of the land which was acquired was taken over by the Tehsildar on
1st February 1963, after which at any rate it appears from Ex. P. 24 that actual
possession of this land was handed over by the said Tehsildar on 13th February 1963 to
the appellant. The receipt Ex.P.24. 24 bears the signature of N. L. Handa, the Tehsildar
and of Sukhchain Lal jain, P.W. 11 on behalf of the Military Estate Officer and the
Appellant. From this receipt it is evident that possession of 50.12 acres was handed over
by the Tehsildar and taken over by the Appellant and the Military Estate Officer
Sukhchain Lal Jain.
Contention of the Appellant
The learned Advocate for the Appellant has meticulously taken us through the entire
documentary and oral evidence and commented at length upon the various contradictions
and incongruities in the case of the prosecution with a view to establishing that when the
Appellant took possession of the land there was no crop standing on it-that tile
possession of the land 'was in fact delivered to Telu Ram, Contractor on 10-1-1963; that
the said Contractor had admitted 'that possession of the entire land was received by him;
that he carried on the construction work in extending the Aerodrome; that 200/250
donkeys were also used for doing the work by reason of which the crop was damaged
before Tehsildar had put the Appellant in possession of the land and as a matter of fact
there was no crop thereon when he got the possession of the land. It was also contended
that the High Court had not considered the contradictions in the earlier statement made
by some of the witnesses to the Military authorities and that it relied on many of the
documents for affirming the conviction of the Appellant without their actually being put
to, him under Section 342. Before we consider these contentions it is necessary to
determine another submission of the learned Advocate for the Appellant which goes to
the root of the jurisdiction of the Court to try the offence, under Section 5(1)(c). If this
contention is valid then the conviction of the accused cannot stand and therefore it is
necessary to deal with this matter first. It may be mentioned that though a complaint was
made in the application for a certificate for leave to appeal to this Court that the learned
Single Judge of the High Court should have acquitted the Appellant on the sole ground

445
that there was no proper sanction for the prosecution of the Appellant under Section 5(1)
(c) of the Prevention of the Corruption Act, this question does not seem to have been
urged before the High Court. In any case we do not think that there is any validity in the
submission that the sanction given by the Govt. of India does not cover the trial of the
charge under Section 5(1)(c) of the Prevention of Corruption Act. For a sanction to be
valid it must be established that the sanction was given in respect of the facts constituting
the offence with which the accused is proposed to be charged. Though it is desirable that
the facts should be referred to in the sanction itself, nonetheless if they do not appear on
the face of it, the prosecution must establish aliunde by evidence that those facts were
placed before the sanctioning authorities. It is therefore necessary to first examine the
order of sanction to ascertain on what facts it has been accorded.
Contention of the Respondent
Referring to various cases the Respondent's advocate in support of the contention that
the trial of two offences requiring sanction was not valid. The cases referred instead of
supporting the contention of the learned Advocate amply demonstrate that the facts
which formed the basis of the sanction and which was accorded after the sanctioning
authority had fully applied its mind to them, should be correlated to the particular
offence or offences with which the accused is charged or convicted. In our view there is
no justification for holding that the conviction under Section 5(1)(c) read with 5(2) is
bad for want of the requisite sanction. Now on the merits of the case as we said earlier
the learned Advocate for the appellant has referred to the evidence in meticulous detail
and has commented thereon, at length but this Court ordinarily does not reappropriation
the evidence with a view to arriving at its own finding as if it was a Court of fact and
does not ordinarily upset the findings of the High Court which has on an evaluation of
the evidence affirmed the trial court's conviction and sentence. It has been contended
firstly that the High Court was in error in relying on certain evidence for convicting the
accused which was not put to him. Secondly the evidence that was necessary to unfold
the story of the prosecution has not been produced by the prosecution but the Trial Court
and the High Court ignored this lacuna in the prosecution case. Thirdly the Judgments
show that there was utter confusion in respect of the date on which possession of the
acquired land was given to the Appellant and the date on which it was given to the

446
Contractor for carrying on the work, as also in respect of the fact whether there was any
crop standing when the Appellant took possession of the land and at what period of time
the crop was cut and the work commenced. It is lastly contended that certain witnesses
who would be necessary to unfold the prosecution story have not been called and in spite
of the Court directing the production, of the usufruct register it was not produced.

The fact that notwithstanding overwhelming evidence particularly of his own admission
at the time he denies that there were ever any crops when delivery of possession of the
land acquired was taken by him, further reinforces the conclusion that he allowed the
crops to be cut away with dishonest or fraudulent motive. We do not think in these
circumstances there is any justification whatever for interfering with the concurrent
findings of the Trial Court and the High Court that the Appellant is guilty of an offence
under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and
consequently the appeal is dismissed.

Improper admission or rejection of evidence section 167

447
 State of Rajasthan v Islam155
2011 Indlaw SC 373, (2011) 6 SCC 343, AIR 2011 SC 2317,
Cases Referred
1. State of U.P. v. Sahai [AIR 1981 SC 1442 1981 Indlaw SC 52]
2. State of M.P. v. Bachhudas [JT 2007 (2) SC 607]
3. State of Punjab v. Parveen Kumar [2005 (9) SCC 769 2004 Indlaw SC 1689])
4. Rajesh Kumar v. Dharamvir [JT 1997 (3) SC 525 : 1997 (4) SCC 496 1997
Indlaw SC 2235
5. State of U.P. v. Abdul [JT 1997 (5) SC 265 : 1997 (10) SCC 135 1997 Indlaw SC
3233
6. State of U.P. v. Premi [JT 2003 (2) SC 2322003 Indlaw SC 157
7. State of T.N. v. Suresh [JT 1997 (9) SC 647 : 1998 (2) SCC 372 1997 Indlaw SC
1381
8. State of M.P. v. Paltan Mallah [JT 2005 (1) SC 531 : 2005 (3) SCC 169 2005
Indlaw SC 27])
9. Arunachalam v. Sadhanatham [1979 (2) SCC 297 1979 Indlaw SC 584
10. Gaurishanker Sharma v. State of U.P. JT 1990 (1) SC 6 : AIR 1990 SC 709 1990
Indlaw SC 875
11. State of Maharashtra v. Pimple AIR 1984 SC 63 1983 Indlaw SC 313
Facts of the case leading to this appeal
The State of Rajasthan is in appeal before us impugning the judgment dated 19.2.2003
passed by the High Court whereby the High Court by its judgment disposed of two
appeals, being Criminal Appeal No. 401 of 1997 and Criminal Appeal No. 380 of 1997.
The appeal of the State is in respect of Criminal Appeal No. 401 of 1997. By the
judgment of acquittal rendered by the High Court in the aforesaid criminal appeal, it
inter alia, confirmed the conviction of the other accused, namely, Rujdar, Ilias, Muvin,
and Manna u/s. 323 IPC but modified their sentence awarded to them by enhancing the
fine instead of imposing imprisonment. The appeal of the accused Asru, Guncheri,
Mohammada, Kalto, Roshan and Titta was allowed and they were acquitted from the

155 Bench : A.K. Ganguly, Deepak Verma

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charges u/s.s 148 and 336/149 IPC. So far as Islam is concerned, the High Court set
aside his conviction u/s. 302 and converted it u/s. 304 Part II IPC considering that Islam
had already undergone detention for more than six years. The High Court also imposed a
fine of Rs. 30,000 (Rupees Thirty Thousand) on Islam and held that the same would
meet the ends of justice.
The purpose of examination here is confined to the question whether in passing the order
of conversion of sentence from S. 302 IPC to S. 304 Part II IPC in respect of respondent
no. 1, the High Court exercised its judicial discretion poorly. It may be mentioned in this
connection that the Trial Court, namely, Court of Additional District & Sessions Judge,
Deeg convicted respondent no. 1 u/s. 302 IPC and convicted him to undergo life
imprisonment and a fine of Rs. 1000/-, in default, to further undergo imprisonment of six
months.
Argument of the counsel for appellant
Learned counsel for the appellant while taking us though the judgment of the Trial Court
drew our attention to the evidence of PW 7, PW 9, PW 12, PW 16 ad PW 17 and
submitted that these are all eye-witnesses and there is consistent evidence of these
eyewitnesses about the involvement of respondent no. 1 in the commission of crime,
namely, the murder of Jenu. The material facts relevant for our consideration are that on
the date of the incident, i.e. 18.3.1988, a meeting was held in the morning for raising
some funds for repairing the mosque and in the said meeting, an altercation took place
between respondent no. 1 and various other sons of the area who assembled for the
meeting. One of the sons assembled there told PW 7 that he had been treacherous in
misappropriating public funds for repair of the mosque. There was a minor shuffle
amongst those who had assembled there. It is the consistent evidence of the witnesses
mentioned above that after that, respondent no. 1 along with others went home and came
back armed with a 'Farsa'. It is also the consistent evidence that respondent no. 1 hit Jenu
thrice on his head with the Farsa. This evidence has been consistently repeated by PW 7,
PW 9, PW 16 and PW 17. PW 12 said that Islam hit Jenu with Farsa on his head but the
number of times had not been mentioned by him. Appreciating the evidence of these
witnesses, the Trial Court reached the finding that respondent no. 1 can be held guilty
under S. 302 IPC and accordingly found him guilty under S. 302 IPC and sentenced him

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for life imprisonment. The High Court has noted the injuries on the deceased. In the
context of this evidence, the judgment of the High Court is rather surprising. The High
Court while converting the conviction of the respondent no. 1 from S. 302 IPC to S. 304
Part-II in paragraph 12 held that the relations between respondent no. 1 and the deceased
Jenu were cordial and only one blow was caused by Islam on the head of the deceased
and that proved fatal. The High Court further said that the injury inflicted by respondent
no. 1 was not pre-meditated and the respondent no. 1 did not take any undue advantage
or nor acted in a cruel manner and as such, the case of respondent Islam is covered by
Explanation IV appended to S. 300 IPC and could only be held guilty under s. 304 Part II
IPC.
We fail to appreciate the aforesaid reasoning by the High Court in the context of the
consistent evidence discussed above. It cannot be said that respondent no. 1 had no
intention to kill the deceased. After attending the assembly in which there was a minor
scuffle, respondent no. 1 Islam admittedly went to his house and came back armed with a
Farsa which is a deadly weapon. Thereafter, he hit the deceased repeatedly on the head, a
vital part of human body, with Farsa and caused very grievous injuries. It may be true
that initially there was no pre-mediation or intention of the respondent no. 1 but it is well
settled that intention can develop on the spot and in the instant case, there is some
amount of premeditation on the part of respondent no. 1 when he had gone to his house
and came back to the place of occurrence armed with a deadly weapon and in
furtherance of that intention struck the deceased with that weapon repeatedly and at a
vital part of his body. In the background of this consistent evidence against respondent
no. 1, this Court is of the opinion that the conversion of the conviction of respondent
Islam from s. 302 IPC to s. 304 Part II IPC cannot be sustained and the entire approach
of the High Court is misconceived, if not verse. The finding of the High Court that the
act of the respondent no. 1 is coming under the fourth exception cannot be sustained at
all. It is clear that respondent no. 1 did not strike the deceased at the first instance, but he
struck him after an interval of time since he left the place of occurrence, went to his
home and then came back armed with a Farsa. In order to bring a case under exception
(4) to s. 300 IPC, the evidence must show that the accused acted without any pre-
mediation and in a heat of passion and without having taken undue advantage and he had

450
not acted in a cruel or unusual manner. Every one of these circumstances is required to
be proved to attract exception (4) to s. 300 IPC and it is not sufficient to prove only some
of them. In the facts of this case, none of above ingredients have been proved from the
evidence to bring the case under exception (4) to S. 300 IPC. The High Court's finding to
the contrary is totally against the evidence on record.
Argument of the Counsel for the Respondent
The learned counsel for respondent no. 1 has urged that this Court should not interfere in
exercise of its jurisdiction u/art. 136 of the Constitution when an order of acquittal was
granted by the High Court and respondent no. 1 had suffered imprisonment for 6 years.
There is no such absolute proposition in law as has been said to be advanced by the
learned counsel for respondent no. 1. When this Court exercises its jurisdiction u/art.
136, it definitely exercises a discretionary jurisdiction but such discretionary jurisdiction
has to be exercised in order to ensure that there is no miscarriage of justice. If the
consideration by the High Court is misconceived and verse as indicated above, there is
nothing in law which prevents this Court from exercising its jurisdiction u/art. 136
against an order of acquittal when such acquittal cannot be sustained at all, in view of the
evidence of record. The golden thread which runs through the administration of justice in
criminal cases is that if two views are possible, one pointing to the guilt of the accused
and the other to the 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 a conviction of an innocent. The principle to be followed by appellate
court considering an appeal against an order of acquittal is to interfere only when there
are compelling and substantial reasons to do so. Thus, in such cases, this Court would
usually not interfere unless, the finding is vitiated by some glaring infirmity in the
appraisal of evidence. In reversing an acquittal, this Court keeps in mind that
presumption of innocence in favour of the accused is fortified by an order of acquittal
and if the view of the High Court is reasonable and founded on materials on record, this
Court should not interfere. However, if this Court is of the opinion that the acquittal is
not based on a reasonable view, then it may review the entire material and there will be

451
no limitation on this Court's jurisdiction u/art. 136 to come to a just decision quashing
the acquittal (See [1985 (4) SCC 476 1985 Indlaw SC 384]; [JT 1996 (4) SC 608 1996
Indlaw SC 3301]). For the reasons aforesaid, this Court cannot approve the judgment of
the High Court insofar as conversion of conviction in respect of respondent no. 1 from S.
302 to S. 304 Part-II is concerned. This Court approves the judgment and order of
conviction passed by the Trial Court and restores the same. The bail bonds of respondent
no. 1 are discharged. He is directed to immediately surrender before the Trial Court and
serve out the sentence imposed on him by the Trial Court. The appeal of the State is thus
allowed.

NOTE
 The above material is ONLY for orientation of case law method of learning
 The students to carry their Bare Act to the Class
 The Research Paper referred in curricula also to be read for further reading
 Prescribed reference and textbooks to be read and referred in addition to this
material
 The scope of evaluation will include study material and beyond as suggested by
the faculty
 In case law method it is mandatory to participate in the class with preparation
and the same will be considered during evaluation
 The list is tentative only, the complete law of evidence cannot be
comprehensively taught with only few judgments. This is an attempt to make
the case law method be imbibed in the students
 Kindly refer the original judgments for better understanding. The citations are
mentioned
 Any errors can be notified to the faculty for corrections
 For Educational Purposes only (not to be shared outside the University)

Study Material Prepared by

Dr Nandini C P
Associate Professor of Law

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DSNLU

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