Indian Evidence Act, 1872 (1 of 1872), Section 115 – Doctrine of estopple -- Withdrawal of NOC to commence Ayurvedic Medical College and Hospital – Held, there can be no indefeasible right claimed on the basis of the grant issued, which is illegal -- There is no promise offered by the State or the Government by reason of the invalid order issued by the Department -- When officers of the government acts outside the scope of authority, the plea of promissory estoppel would not be available, especially since the doctrine of ultra vires comes into operation and the government cannot be held bound by the unauthorised actions of its officers – Withdrawal of NOC, upheld.

(Para 1, 10-13)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 162 – Indian Evidence Act, 1872 (1 of 1872), Section 106, 145 -- Contradiction in statement – Circumstantial evidence – Acquittal -- Significant improvements and omissions in the evidence of PW-3 -- Omissions are so relevant that they become contradictions in view of the Explanation to Section 162 of the CR.P.C. -- Thus, it is very difficult to accept the testimony of PW-3 as reliable -- PW-1 is not a witness to the theory of last seen together -- Therefore, it is not possible to hold that the theory of last seen together was proved by the prosecution beyond a reasonable doubt -- When the prosecution case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established -- There must be a chain of circumstances so complete as not to leave any ground for any conclusion inconsistent with the innocence of the accused -- Two significant circumstances forming the chain have not been established -- Conviction and sentence set aside

(Para 10-12)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 162 -- Indian Evidence Act, 1872 (1 of 1872), Section 145 -- Contradiction in statement – Proof of -- Portion of the prior statement shown to the witness for contradicting the witness must be proved through the investigating officer -- Unless the said portion of the prior statement used for contradiction is duly proved, it cannot be reproduced in the deposition of the witnesses -- The correct procedure is that the Trial Judge should mark the portions of the prior statements used for contradicting the witness -- The said portions can be put in bracket and marked as AA, BB, etc. -- The marked portions cannot form a part of the deposition unless the same are proved.

(Para 11)

Indian Evidence Act, 1872 (1 of 1872), Section 115 – Doctrine of estopple -- Appellant acted upon clause 49.5 and sought an extension of time on three occasions – Claim in the letter dated 25th January, 2017 was made by the appellant after giving solemn undertaking on 14th January, 2015 not to make any claim other than escalation in respect of delays in the completion of work, the claim made was contrary to the undertakings -- By the undertakings, the appellant agreed not to make a claim contrary to what is provided in clause 49.5; and therefore, by conduct, the appellant was estopped from challenging the validity of clause 49.5.

(Para 19)

Indian Evidence Act, 1872 (1 of 1872), Section 112 -- Legitimacy/ Paternity of child – Presumption – DNA Test -- Issue hinges on two primary prongs requiring detailed analysis: (i) the difference between legitimacy and paternity, and consequently, the circumstances under which the presumption of legitimacy is displaced to permit an enquiry into paternity; and (ii) the exercise of ‘balancing of interests’ and evaluating the eminent need for a DNA test -- Legitimacy determines paternity u/s 112 of the Indian Evidence Act, 1872, until the presumption is successfully rebutted  by proving ‘non-access’.

(Para 9, 70(i))

Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Evidence -- In order to render any witnesses’ testimony as unreliable, the inconsistencies shall be material ones and of such a nature that they create substantive doubts in the mind of the court towards the story or the chain of events as sought to be established by the prosecution -- Mere conjectures or hypothetical inconsistencies cannot form the basis for acquittal when the evidence, viewed as a whole, points to the guilt of the accused.

(Para 38)

A. Criminal jurisprudence – Conviction of accused -- It is a fundamental principle that a court can convict an accused only if their guilt is established beyond reasonable doubt and not merely on the possibility of guilt -- The gap between “may be guilty” and “must be guilty” is significant, separating uncertain speculations from definitive conclusions -- Thus, it is the duty of the prosecution to elevate its case from the realm of ‘may be true’ to ‘must be true’.

(Para 15)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Murder –Circumstantial evidence -- Conviction on a charge of murder may be based purely on circumstantial evidence, provided that such evidence is deemed credible and trustworthy --  In cases involving circumstantial evidence, it is crucial to ensure that the facts leading to the conclusion of guilt are fully established and that all the established facts point irrefutably towards the accused person’s guilt -- The chain of incriminating circumstances must be conclusive and should exclude any hypothesis other than the guilt of the accused.

(Para 15)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Murder – Acquittal -- Circumstantial evidence -- Prosecution failed to conduct the Test Identification Parade (TIP) of the recovered articles, thereby, bringing the identification of the material objects in Court for the first time, is under a cloud of doubt -- Material omission on part of the Investigating Officer in not conducting a Test Identification Parade (TIP) of the recovered articles, more particularly when the case of prosecution is based solely upon recoveries of these articles, has created holes in the fabric of the prosecution story, which are impossible to mend -- Chain of circumstantial evidences in the case cannot be held to be so complete, so as to lead to the only hypothesis of the guilt of the accused which is totally inconsistent with their innocence – Conviction set aside.

(Para 22-27)

A. Indian Penal Code, 1860 (45 of 1860), Section 300, Exception 1 – Culpable homicide not amounting to murder -- Sudden provocation -- The provocation must be both grave and sudden -- In order to invoke the benefit of the exception, it must be established that the act committed by the accused was a simultaneous reaction of grave as well as sudden provocation which deprived him of the power of self-control -- If the provocation is grave but not sudden, the accused cannot get the benefit of this exception -- Likewise, he cannot invoke the exception where the provocation though sudden is not grave.

(Para 20)

B. Indian Penal Code, 1860 (45 of 1860), Section 300, Exception 1 – Culpable homicide not amounting to murder -- Sudden provocation -- In order to bring the case within Exception 1, the following conditions must be complied with:

(i) The deceased must have given provocation to the accused;

(ii) The provocation must be grave;

(iii) The provocation must be sudden;

(iv) The offender, by reason of the side provocation, shall have been deprived of his power of self-control;

(v) He should have killed the deceased during the continuance of the deprivation of the power of self-control; and

(vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

(Para 22)

C. Indian Penal Code, 1860 (45 of 1860), Section 300, Exception 1 – Culpable homicide not amounting to murder -- Sudden provocation -- Accused must establish the following circumstances:

(i) there was a provocation which was both grave and sudden;

(ii) such provocation had deprived the accused of his power of self-control; and

(iii) whilst the accused was so deprived of his power of self-control, he had caused the death of the victim.

(Para 23)

D. Indian Penal Code, 1860 (45 of 1860), Section 300, Exception 1 – Indian Evidence Act, 1872 (1 of 1872), Section 105 -- Culpable homicide not amounting to murder -- Sudden provocation – Burden of proof -- It is for the accused who seeks to reduce the nature of his crime by bringing his case under Exception 1, to prove that the provocation received by him was such as might reasonably be deemed sufficient to deprive him of self-control, and that the act of killing took place whilst that absence of control was in existence and may fairly be attributed to it.

(Para 27, 28)

E. Indian Penal Code, 1860 (45 of 1860), Section 300, Exception 1, 304 Part 1 – Culpable homicide not amounting to murder -- Sudden provocation – Deceased is said to have uttered some bad words and it appears that he also raised his hand & slapped the appellant -- However, that by itself may not be sufficient to bring the case within the ambit of grave and sudden provocation -- The incident occurred at a spur of a moment -- The act was not pre-planned or pre-meditated -- What is important to note is that the appellant had no weapon in his hands -- He picked up a cement stone which was lying beneath the bridge and hit the same on the head of the deceased -- Therefore, it could be said that the appellant did not take any undue advantage or acted in a cruel or unusual manner – Conviction u/s 304 Part 1 of the IPC, upheld – Sentence reduced to already  undergone.

(Para 30-33)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 (4) -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 – Maintenance to wife -- Decree of restitution of conjugal rights – Effect of -- Mere passing of a decree for restitution of conjugal rights at the husband’s behest and non-compliance therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4) Cr.P.C -- It would depend on the facts of the individual case and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree.

(Para 29)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 (4) -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 – Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023), Section 34, 35, 36, 37 – Indian Evidence Act, 1872 (1 of 1872), Section 40, 41, 42, 43 -- Maintenance to wife -- Decree of restitution of conjugal rights – Effect of -- Contention that the findings in the judgment for restitution of conjugal rights by the Family Court, being a Civil Court, would be binding on the Court seized of the petition u/s 125 Cr.P.C, as they are to be treated as criminal proceedings – Held, even if non-compliance with an order for payment of maintenance entails penal consequences, as may other decrees of a Civil Court, such proceedings would not qualify as or become criminal proceedings.

-- Section 41 of Evidence Act specifically deals with instances where an earlier judgment, order or decree constitutes conclusive proof whereas Section 42 provides that an earlier judgment is relevant if it relates to matters of public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.

-- Two proceedings are altogether independent and are not directly or even indirectly connected, in the sense that proceedings u/s 125 Cr.P.C. do not arise from proceedings for restitution of conjugal rights.

(Para 30-34)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 (1) -- Hindu Marriage Act, 1955 (25 of 1955), Section 9, 13 – Maintenance to wife -- Decree of restitution of conjugal rights – Effect of -- A wife, who suffered a decree of divorce on the ground of deserting her husband, would not be entitled to maintenance u/s 125 Cr.P.C. as long as the marriage subsisted, but she would be entitled to such maintenance once she attained the status of a divorced wife, in the light of the definition of a ‘wife’ in Explanation (b) to Section 125(1) Cr.P.C. Rohtash Singh’s case (2000) 3 SCC 180, relied.

(Para 38)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder – Evidence law -- Non recovery of the weapon of crime is not fatal to the prosecution case and is not sine qua non for conviction, if there are direct reliable witnesses. Rakesh’s case (2021) 7 SCC 188 relied.

(Para 70)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder -- Evidence law -- Testimony of police personnel involved in recovery of articles need not be disbelieved and testimony of police personnel is to be treated similarly as testimony of any other witness. Karamjit Singh’s case (2003) 5 SCC 291 relied.

(Para 71)

C. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 154 – Murder -- Hostile witness -- Merely because the witnesses turn hostile does not necessarily mean that their evidence has to be thrown out entirely and what is supportive of the prosecution certainly be used. Gangadhar Behera’s case (2002) 8 SCC 381 relied.

(Para 76)

D. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 101 – Murder – Burden of proof -- Prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.

(Para 78)

A. Indian Evidence Act, 1872 (1 of 1872), Section 25 -- Extra-judicial confession before Village Police Patil – Admissibility of – Village Police Patil cannot be said to be a Police Officer – Same is not hit by Section 25 of the Evidence Act -- However, such extra-judicial confession should be found to be true & trustworthy before it is relied upon by the Court to hold the accused guilty.

(Para 36, 42)

B. Indian Evidence Act, 1872 (1 of 1872), Section 137, 154 -- Discovery panchnama – Proof of -- Witness turned hostile -- If the panch witnesses are declared hostile then the prosecution is obliged to prove the contents of the said discovery panchnama through the evidence of the Investigating Officer -- Just because the panch witnesses have turned hostile does not mean that such discovery should be disbelieved -- From the plain reading of the oral evidence of the Investigating Officer if the discovery is believable and inspires confidence, the same can definitely be looked into as one of the incriminating pieces of evidence against the accused.

(Para 47-49)

C. Indian Evidence Act, 1872 (1 of 1872), Section 8 – Indian Penal Code, 1860 (45 of 1860), Section 302 – Motive -- Murder -- Motive is a double-edged weapon -- Motive cannot be the sole basis for convicting the accused and that too for a serious offence like murder -- Motive may be considered along with other pieces of reliable evidence in the form of incriminating circumstances.

(Para 51)

D. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder -- Circumstantial evidence – Burden to establish innocence -- Prosecution has to prove its case beyond reasonable doubt & that too on its own legs -- The initial burden of proof is always on the prosecution -- However, in cases where husband is alleged to have killed his wife in the night hours & that too within the residential house, then undoubtedly the husband has to offer some explanation as to what had actually happened and if he fails to offer any plausible explanation, this can go against him -- However, Section 106 of the Evidence Act is subject to one well-settled principle of law -- The prosecution has to first lay the foundational facts before it seeks to invoke Section 106 of the Evidence Act -- If the prosecution has not been able to lay the foundational facts for the purpose of invoking Section 106 of the Evidence Act, it cannot starightaway invoke the said Section and throw the entire burden on the accused to establish his innocence.

(Para 55)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Indian Penal Code, 1860 (45 of 1860), Section 363, 366, 376, 342, 506 -- POCSO – Rape – Acquittal -- Prosecutrix 16 years and four months old -- In medical examination no injuries were detected on the body of the prosecutrix though her hymen was torn -- Prosecutrix in her examination-in-chief as well as in cross-examination has stuck to the fact that she was raped by the accused but the fact remains that she has contradicted her statement at more than one place -- She stated statement u/s 164 CrPC that she hit the accused on his head by Danda whereas in her examination-in-chief she stated that she hit the accused on his foot -- When the accused had surrendered none of these injuries were noticed on the body of the accused -- When a person can be convicted on the testimony of a single witness the Courts are bound to be very careful in examining such a witness -- Testimony of the prosecutrix does not inspire confidence, under these circumstances, Acquittal order, upheld.

(Para 9-12)

Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Circumstantial evidence -- Principles that courts must adhere to while appreciating and evaluating evidence in cases based on circumstantial evidence, as follows:

(i). The testimony of each prosecution and defence witness must be meticulously discussed and analysed. Each witness's evidence should be assessed in its entirety to ensure no material aspect is overlooked.

(ii). Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact. Thus, the reasonable inferences that can be drawn from the testimony of each witness must be explicitly delineated.

(iii). Each of the links of incriminating circumstantial evidence should be meticulously examined so as to find out if each one of the circumstances is proved individually and whether collectively taken, they forge an unbroken chain consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

(iv). The judgment must comprehensively elucidate the rationale for accepting or rejecting specific pieces of evidence, demonstrating how the conclusion was logically derived from the evidence. It should explicitly articulate how each piece of evidence contributes to the overall narrative of guilt.

(v). The judgment must reflect that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.

(Para 30)

A. Criminal trial -- Interested witness – Evidence of -- Merely because a witness is an interested witness, it cannot be a ground to discard the testimony of such a witness -- However, the testimony of such a witness has to be scrutinized with greater caution and circumspection.

(Para 13)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder -- Acquittal – Deposition of witness – Parity for all accused -- High Court comes to a conclusion that it is difficult to believe that the witness could have witnessed the incident in the manner narrated by him and granted benefit of doubt to co-accused persons then conviction of accused on the basis of the evidence of the very same witness only on the basis of conjectures and surmises is not permissible -- Seizure of knife, testimony of Inspector of police would show that the recovery was made from an open place accessible to one and all -- As such, only on the basis of the circumstance of such a recovery, the conviction could not have been based – Appeal allowed, impugned judgment and order passed by the High Court quashed and set aside -- Appellant acquitted.

(Para 14-17)

A. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Circumstantial evidence – Onus on accused -- Onus to explain would shift on to the accused only after the prosecution succeeds in establishing the basic facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused – If the prosecution fails to establish a complete chain of circumstances in the first place, then the accused's failure to discharge the burden under Section 106 of the Evidence Act becomes irrelevant.

(Para 17)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 – Acquittal -- Murder -- Circumstantial evidence – Last seen theory -- Onus on accused -- One of son of deceased’s testimony remotely suggest that any or all of the three accused persons were present in the house or that they had quarrelled with his mother when he left for school -- None of the neighbours had seen the accused present with deceased or that they were seen fleeing away on the fateful morning – Prosecution has not explained as to where the girl child was on the date of the incident -- Likewise, the prosecution also failed to provide any explanation, as to why the other son was not examined in evidence -- Failure to examine them in evidence calls for drawing of adverse inference thereby, further denting the credibility of the prosecution case -- Prosecution failed to prove the chain of incriminating circumstances against the accused-appellants by convincing evidence and beyond the shadow of doubt, so as to affirm their guilt -- Accused-appellants acquitted of the charges by giving them the benefit of doubt – Appeal allowed.

(Para 18-38)

A. Indian Evidence Act, 1872 (1 of 1872), Section 8 – Motive -- Motive on its own cannot make or break the prosecution case.

(Para 25)

B. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Last seen evidence – Time gap – Relevant factor – It is a vital link in the chain of other circumstances but on its own strength it is insufficient to sustain conviction unless the time-gap between the deceased being last seen alive with the accused and recovery of dead body of the deceased is so small that possibility of any other person being the author of the crime is just about impossible -- Where the time-gap is large, intervening circumstances including act by some third person cannot be ruled out -- In such a case, adverse inference cannot be drawn against the accused merely because he has failed to prove as to when he parted company of the deceased.

(Para 26)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Last seen evidence – Walking in public street -- Time gap – Effect of -- No evidence led by the prosecution to demonstrate that the place where the deceased was last seen alive with the accused was near the place from where deceased’s body was recovered -- Further, the time gap between 4.30 PM of 2.2.1997 and 8.30 AM of 3.2.1997 (i.e., when the dead body was recovered) is so large that third party hand in the crime cannot be ruled out -- If two or more persons are seen walking on a public street, either side by side, or behind one another, it is not such a circumstance from which it may be inferred with a degree of certainty that those were together or in company of each other -- Likewise, a person may exchange pleasantries with another person walking on the path, but that by itself is not sufficient to infer that the two are in company of each other – Last seen circumstance not of a definite tendency unerringly pointing towards the guilt of the accused-appellants – Appellants acquitted.

(Para 27, 41)

D. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Disclosure Statement – Recovery -- Disclosure statement not admissible in evidence because the alleged discovery was not made pursuant to that statement -- Disclosure statement was recorded at the police station whereas recovery was made from the place pointed out by the accused enroute to the police station -- It was, therefore, a case of recovery from the place allegedly pointed out by the accused and not based on a disclosure statement.

(Para 37)

A. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Circumstantial evidence -- Recovery of currency note from accused -- Nothing on record to show that the money belonged to the deceased -- Currency notes are commonly available and there is nothing in the statement of the witness to show that the currency notes shown to him during his examination had any distinguishing mark which would enable him to identify them; hence, his testimony that the currency notes handed over by him to the deceased were the same currency notes, which were shown to him in the Court is not acceptable.

(Para 20, 21)

B. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Recovery on disclosure statement – Exclusive knowledge – Requirements of -- Disclosure statement shows that the stone was not concealed anywhere and was lying in the open -- Where the recoveries were effected from a place accessible, the same cannot be relied upon -- Since, there is no evidence of the exclusive knowledge of the accused, therefore, the stone cannot be connected to the accused.

(Para 25, 26)

C. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Other articles and stick was recovered from the spot at a distance of 200 metre from the dead body by I.O. -- As per the statement of the accused recorded u/s 27, he had thrown the stone and the stick at the same place -- It is difficult to believe that the investigating officer would not have discovered the stone when he had inspected the spot and found other articles on the spot – These circumstances cast reasonable doubt on the recovery of the stone at the instance of accused.

(Para 27-29)

D. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder -- Disclosure statement -- Statement u/s 27 of the Indian Evidence Act cannot be used to prove that the accused had killed the deceased.

(Para 39)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 3 -- Rebuttal evidence – Onus of proof – Effect of -- Onus of issue no. 1 was cast upon the plaintiff-petitioners and hence it was incumbent upon the plaintiff-petitioners to have led their evidence in the affirmative -- A party cannot be permitted to lead evidence in rebuttal the onus of which was cast upon the said party.

(Para 7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Constitution of India, Article 21 -- Fair trial -- Right of accused – Preservation of call details – Right to privacy of police officials -- Legislative intent behind enactment of Section 91 Cr.P.C. is to ensure that no cogent material or evidence involved in the issue remains undiscovered in unearthing the true facts during investigation, enquiry, trial or other proceedings -- While passing the appropriate direction for preserving and production of call details/ tower location details u/s 91 Cr.P.C. would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India in ensuring free and fair investigation/ trial would prevail over the right to privacy of the police officials.

(Para 7)

B. Indian Penal Code, 1860 (45 of 1860), Section 304-A, 427, 279 – Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Constitution of India, Article 21 -- Indian Evidence Act, 1872 (1 of 1872), Section 65A, 65B -- Death by rash and negligent driving -- Fair trial – Right of accused -- Preservation of call details – Denial of an adequate opportunity to the accused by non-production of the electronic record, which is admissible u/s 65-A and 65-B of the Indian Evidence Act in criminal trial, would amount to miscarriage of justice -- Power u/s 91 Cr.P.C. must be exercised for production of such evidence, which would assist the Court in discovering the truth in the pursuit of justice -- Learned trial Court directed to pass necessary directions u/s 91 Cr.P.C. for preserving and production of the call details/ tower location details of the phone numbers mentioned in the application filed u/s 91 Cr.P.C

(Para 8-10)

Code of Civil Procedure, 1908 (V of 1908), Order 17, 18 – Cross-examination of plaintiff – Deliberate delay – Trial court declined prayer to cross-examine the plaintiff – Deliberate attempt on the part of petitioner-defendant No.2 to delay the proceedings -- Impugned order passed by the trial Court cannot be said unjustified -- Although, there is no justification for setting aside the impugned order, in the interest of justice, trial Court directed to provide one opportunity to him to cross-examine PW1/ plaintiff subject to costs of Rs.50,000/- payable to plaintiff-respondent.

(Para 5, 6)

Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Recovery suit – Pronote – Proof of -- Non-appearance of defendant – Adverse inference -- Defendant having not entered the witness box, adverse inference is liable to be drawn against him that he did not want to face the cross-examination -- In the presence of the testimony of the two attesting witnesses of the pronote as well as receipt proving due execution of the same by the defendant, no reliance could have been placed upon the statement of an expert witness disputing the signature of defendant, particularly when defendant himself had not entered into the witness box, to deny his signature.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Recovery suit – Bahi khatta entries -- Only reliance of the plaintiff-appellant was on the bahi khatta entries -- Defendant-respondent had denied the bahi khatta entries and hence the onus lay on the plaintiff-appellant to prove the signatures in the bahi khatta entries -- Neither the details of the cheques nor the account number/ account statement was produced by the plaintiff-appellant -- It was incumbent upon the plaintiff-appellant to prove his case by leading affirmative evidence -- Onus to prove that the loan was taken by the defendant-respondent lay heavily on the plaintiff-appellant who failed to discharge the same – Suit dismissed.

(Para 7)

A. Evidence law -- Injured eye-witnesses -- Sworn testimonies provided by injured witnesses generally carry significant evidentiary weight -- Such testimonies cannot be dismissed as unreliable unless there are pellucid and substantial discrepancies or contradictions that undermine their credibility -- If there is any exaggeration in the deposition that is immaterial to the case, such exaggeration should be disregarded; however, it does not warrant the rejection of the entire evidence.

(Para 12)

B. Indian Penal Code, 1860 (45 of 1860), Section 34 -- Common intention -- There cannot be a fixed timeframe for formation of common intention -- It is not essential for the perpetrators to have had prior meetings to conspire or make preparations for the crime -- Common intention to commit murder can arise even moments before the commission of the act -- Since common intention is a mental state of the perpetrators, it is inherently challenging to substantiate directly -- Instead, it can be inferred from the conduct of the perpetrators immediately before, during, and after the commission of the act.

(Para 19)

C. Indian Penal Code, 1860 (45 of 1860), Section 34, 302 – Murder -- Common intention -- Appellants are related by blood, arrived at the crime scene armed with a 12 bore double-barrel gun, dangs, and lathis within 15 minutes of the initial altercation, and subsequently attacked P.W.3, P.W.4, P.W.5, and the victims -- During this attack, A-4, the father of A-1, raged by the incident of P.W.3 slapping his adult son A-1 and the pursuant altercation, fired with his gun at P.W.3, P.W.4, P.W.5 and the victims -- Thereafter, all the appellants fled together carrying their weapons -- It is evident that the appellants acted with a common intention to kill, seeking to avenge the slapping incident.

(Para 20)

D. Indian Penal Code, 1860 (45 of 1860), Section 34, 149 -- Common intention – Common object -- Determination of common intention or common object should primarily be within the domain of the trial courts, and at the most the high courts -- It should not be the role of Supreme Court to directly adjudicate issues of common intention and common object.

(Para 21)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 216, 464 – Non-framing of charge -- Failure of justice -- No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in an appeal, confirmation or revision, a claim of "failure of justice" has been substantiated.

-- Law is well-settled that in order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself.

(Para 24, 25)

F. Evidence law – Independent witness -- It is settled law that examination of independent witness is not an indispensable requisite if the testimonies of other witnesses are deemed trustworthy and reliable --  Prosecution's case cannot be dismissed solely on the ground of the absence of independent witness.

(Para 29, 30)

Indian Evidence Act, 1872 (1 of 1872), Section 65B – Primary evidence -- Original mobile tendered in evidence -- Certificate u/s 65B of Evidence Act – Requirement of -- Once the plaintiff offered to tender original mobile-phone which is a primary evidence, there was no requirement for certification under Section 65-B of the Evidence Act as the same is contemplated in a situation wherein electronic evidence is being led by way of secondary evidence.

(Para 14)

Indian Penal Code, 1860 (45 of 1860), Section 302, 304 Part-I – Murder – Culpable homicide not amounting to murder -- There is a possibility of deceased and (PW-1) coming to the shop of accused no.2 and a fight taking place between the two groups -- Nothing on record to establish that there was any pre-meditation --  Possibility of the offence being committed by the appellants without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel cannot be ruled out -- Nothing on record to show that the appellants have taken undue advantage or acted in a cruel or unusual manner -- Appellants are entitled to the benefit of doubt -- Case would be covered under Part-I of Section 304 of IPC --  Appellants have undergone the sentence of more than 8 years without remission – Appeals partly allowed, appellants sentenced to the period already undergone.

(Para 3, 15-18)

A. Expert evidence – Conviction -- Without independent and reliable corroboration, the opinion of the handwriting experts cannot be solely relied upon to base the conviction.

(Para 13)

B. Passports Act, 1967 (15 of 1967), Section 12(2) – Facilitating second passport – Acquittal -- Abetment – Burden of proof -- Burden is cast on the prosecution to prove that the accused had knowingly furnished false information or supressing known material information with the intent of securing a passport or travel document to a person and thereby had abetted in the commission of offence punishable under Section 12(1) and thereby punishable under Section 12(2) of the Passports Act – Prosecution failed to prove guilt beyond reasonable doubt – Appellants acquitted.

(Para 2, 14-16)

Indian Penal Code, 1860 (45 of 1860), Section 304B, 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death -- Suicide with in seven years of marriage -- Deceased faced cruelty and harassment at the hands of her husband which compelled her to commit suicide -- However, witnesses did not state that such cruelty and harassment was in connection with the demand for dowry -- With respect to the demand for dowry, witnesses have just made some general statements -- It has not been proved by the prosecution that the deceased was subjected to cruelty soon before her death in connection with the demand of dowry -- Trial court erred in raising a presumption under Section 113B of the Indian Evidence Act, even though the demand for dowry was not established.

-- A case of abetment of suicide u/s 306 of IPC and cruelty u/s 498A of IPC made out against the husband, although the offence u/s 304B is not made out and consequently, conviction u/s 304B of IPC set aside – Appellant/ husband convicted u/s 306 and 498A of IPC, sentenced to three years of R.I. and a fine of Rs. 25000/- on each count -- Both the sentences ordered to run concurrently.

(Para 4-8)

Code of Civil Procedure, 1908 (V of 1908) -- Additional evidence in  Rebuttal -- The fact concerning which, additional evidence being sought to be led, was already pleaded in the plaint -- In fact, it was the foundational fact -- Plaintiffs were required to lead evidence in affirmative on the facts pleaded in the plaint -- They cannot be allowed to lead such evidence in rebuttal -- Application dismissed.

(Para 4, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Section 100 – Application for additional evidence – Decision upon – Mandate of -- When an application under Order 41 Rule 27 CPC is moved during pendency of the appeal, it is incumbent on the part of the appellate Court to consider the same at the hearing of the appeal on merits so as to find out whether the documents for evidence proposed to be adduced have any relevance/ bearing on the issues involved or not -- Appellate Court directed to dispose of the application in accordance with law and then decide the appeal accordingly.

(Para 9, 10)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 161, 162 -- First Information Report (FIR) -- First version of the incident as narrated by the Police Constable would be required to be treated as the FIR -- FIR was lodged much later based on the statement of PW-11, it would be relegated to the category of a statement u/s 161 CrPC -- Same could not have been treated to be the FIR as it would be hit by Section 162 CrPC -- Prosecution is guilty of concealing the initial version from the Court and hence, an adverse inference deserves to be drawn against the prosecution on this count.

(Para 21)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 120B -- Indian Evidence Act, 1872 (1 of 1872), Section 27 – Code of Criminal Procedure, 1973 (2 of 1974), Section 154 -- Murder – Acquittal -- Daily diary report  (Roznamcha) -- Since the Police Constable (PW-12) claiming to be an eyewitness to the heinous assault had reported at the police station with the crime weapons, there was no reason whatsoever as to why his statement would not have been recorded immediately on his arrival at the police station -- A reasonable doubt is created in the mind of the Court that the statement of (PW-12) would definitely have been recorded in the daily diary (roznamcha) but his version may not have suited the prosecution case and that is why, the daily diary entry was never brought on record -- Non-production of the daily diary is a serious omission on part of the prosecution -- Neither the disclosure statements made by the accused were proved as per law nor the same resulted into any discovery which could be accepted as incriminating inasmuch as the requisite link evidence was never presented by the prosecution so as to establish that the recovered articles remained in the self-safe condition from the date of the seizure till the same reached the FSL -- Court gave the benefit of the doubt to the appellant-accused and acquitted them of the offence charged.

(Para 20, 48)

C. Indian Evidence Act, 1872 (1 of 1872), Section 21, 26, 27 – Admission to doctors – Confession to Medical officer -- Admissibility of -- Confessions are ex-facie inadmissible in evidence for the simple reason that the accused persons were presented at the hospital by the police officers after having been arrested -- As such, the noting made by the Medical Officer (PW-2) in the injury reports of accused/ appellant would be clearly hit by Section 26 of the Indian Evidence Act, 1872 – Court not inclined to accept the said admissions of the accused as incriminating pieces of evidence relevant under Section 21 of the Evidence Act.

(Para 40. 41)

D. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Disclosure statement -- Identification of crime place -- The circumstance regarding identification of place of incident at the instance of the accused is inadmissible because the crime scene was already known to the police and no new fact was discovered in pursuance of the disclosure statements -- This disclosure is irrelevant.

(Para 41, 45)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce complaint – Examination of Handwriting expert – Application for -- Holder in due course -- Burdon of proof -- A burden lies heavy on the person issuing the cheque particularly the accused who does not dispute the authenticity of the signatures to furnish a justifiable explanation as to how such cheque came into the hands of the complainant -- Mere fact that body writing on the cheque in question has not been made by the accused would not offer any kind of defence to the accused – Trial court declined application --  No infirmity in the impugned order,  and the same is upheld.

(Para 1, 11, 12)

A. Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 4 – Provincial Small Cause Courts Act, 1887 (9 of 1887), Section 25 -- Transfer of Property Act, 1882 (4 of 1882), Section 106 -- Termination of lease – Suit for eviction, and recovery of rent and damages for use and occupation -- Ex-parte proceedings -- In ex-parte proceedings the Court is required to test the case of the plaintiff and not merely believe whatever has been stated in the plaint.

-- Impugned order records that the Defendants/Revisionists had filed written statement however, at the stage of evidence did not file any evidence in support of his written statement or in rebuttal of the plaint nor examined the plaintiff witnesses.

-- Defendants/ Revisionists also did not appear at the time of arguments and the case in such circumstances proceeded ex-parte against the Defendants/ Revisionists.

– Plaintiff/ Respondent filed the certified copy of the registered Lease Agreement executed between the parties.

-- Notice u/s 106 of the Transfer of Property Act, Postal receipts showing service of the Notice upon the Defendants/ Revisionists, photocopies of the cheques along with the Bank return memos showing insufficient funds in the Bank account of the Defendants/ Revisionists.

Evidence of the Plaintiff/ Respondent stood unrebutted -- Taking note of the above in the absence of any contest from the Defendants/ Revisionists learned Judge Small Causes Court proceeded to decree the suit of the Plaintiff/Respondent -- No illegality in the procedure adopted by the learned Judge Small Causes Court in decreeing the Suit of the Plaintiff/Respondent -- Findings recorded by the learned JSCC calls for no interference.

(Para 25-28, 39-41)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63(2)(3), 65, 74 -- Registration Act, 1908 (16 of 1908), Section 57 -- Certified copy of registered lease deed – Admissibility in evidence –  Certified copy of the Lease Agreement will fall under the category of secondary evidence – Certified copy of the Lease Agreement is a Public Document, as contemplated u/s 74 and in terms of the 3rd Proviso to Section 65(e) or 65(f) the certified copy is admissible in evidence -- Sub Section 5 of Section 57 of the Registration Act provides that certified copy given u/s 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document -- Rightly relied while decreeing the Suit.

(Para 29-34)

A. Indian Penal Code, 1860 (45 of 1860), Section 304B – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Presumption -- Offence u/s 304-B IPC is such wherein presumption of guilt under Section 113-B of the Indian Evidence Act may be drawn against the accused and the onus to establish innocence shifts upon the accused -- The necessary ingredients of Section 304-B IPC may be spelt out as follows:

(i) that deceased died due to burning or bodily injury or any other un-natural death;

(ii) that the deceased died within seven years of her marriage;

(iii) that the deceased was subjected to cruelty or harassment by her husband or his relatives;

(iv) that such cruelty or harassment was in connection with demand of dowry;

(v) that such cruelty or harassment was soon before her death.

(Para 13)

B. Indian Penal Code, 1860 (45 of 1860), Section 304B – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Presumption – Death within 7 years of marriage – Proof of -- Nikahnama assailed by the accused on the ground that the same has not been duly proved, but no such objection as regards exhibiting of said document was raised when the same was exhibited -- Although the DW examined by the accused has attempted to project that the marriage of deceased was solemnized more than 7 years prior to date of death, but there is no documentary evidence to support the said assertion – Nikahnama accepted so as to hold that death occurred within less than 7 years of marriage of the deceased.

(Para 14)

C. Indian Penal Code, 1860 (45 of 1860), Section 498A – Cruelty by father-in-law – Acquittal -- A perusal of the FIR would show that when the husband had come to take back his wife from her parental home, it was he who raised the demand of Rs.10,000/- -- Whenever any mishap occurs, it is very common that parents and relatives of the deceased-girl, would name not only her husband who would be the prime accused, but other members of the family also so as to wreak vengeance -- Father-in-law given benefit of doubt, his conviction for offence u/s 498-A set aside.

(Para 21, 26, 27)

D. Indian Penal Code, 1860 (45 of 1860), Section 498A – Demand of cash post marriage – Whether qualify as dowry -- Demands of cash would qualify to be termed as ‘demand of dowry’ and that any such demand even if made post marriage would not lose the character of ‘demand of dowry’.

(Para 23)

E. Indian Penal Code, 1860 (45 of 1860), Section 304B – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Presumption -- Marriage had taken place barely about 4 years prior to the death -- As per the testimony of the witnesses, whenever the deceased/ husband used to come to her parental home she used to disclose the demand of Rs.10,000/- by the accused -- It is further borne out from the testimony of PW-2 and PW-4 that the deceased had last visited her parental home about 2 months back and even at that time she had disclosed about the demand of dowry made by the accused -- Demand of dowry which were raised even two months prior to her death cannot escape from his liability on account of unnatural death of the deceased in matrimonial home on account of poison which will fully qualify to be termed as a ‘dowry death’.

(Para 24-26)

A. Indian Evidence Act, 1872 (1 of 1872), Section 45 -- DNA test of defendant – Permissibility of -- Plaintiff has to stand on her own legs by producing cogent evidence to prove her assertions -- Defendant of the case, cannot be compelled by plaintiff to undergo the DNA test.

(Para 8)

B. Indian Evidence Act, 1872 (1 of 1872), Section 45 -- DNA test -- The Court cannot order a DNA test as a matter of course and such a prayer cannot be granted so as to lead to a rowing inquiry so as to collect the evidence for the plaintiff.

(Para 8)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Murder – Acquittal -- Test identification parade (TIP) – TIP not done during investigation -- All the prosecution witnesses who identified the accused in the Court were not known to the appellant -- They had not seen the appellant prior to the said incident -- TIP had become necessary particularly when both the accused, who are alleged to have committed this murder were arrested within two days -- Inspite of being questioned as to what the reasons were for not holding TIP in this case, no satisfactory reply was given by him -- Identification of the accused before the court ought to have been corroborated by the previous TIP which has not been done -- Appellant could not have been convicted on the basis of a very doubtful evidence as to the appellant’s identity -- Appeal allowed.

(Para 10-16)

B. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test identification parade (TIP) – TIP is only a part of Police investigation -- The identification in TIP of an accused is not a substantive piece of evidence -- Not conducting TIP in a given case may prove fatal for the prosecution.

(Para 12)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32 – Dying declaration – Circumstances related to death -- Victim did not give any history of the consumption of the poison and the Medical Officer could not find any symptom of the poisoning --  Therefore, he did not treat the victim for poisoning --  Statement made by the victim nowhere states that the accused had forced her to consume the poison -- She stated that one black pill was taken from the bag of accused, which was consumed -- She fell asleep thereafter -- She has not specifically stated whether the victim had herself taken the medicine or it was administered to her -- There is no proof that the pill consumed by the victim was aluminium phosphide -- Statement made by the victim cannot constitute the circumstances relating to her death and the same cannot be admitted as a dying declaration.

(Para 26)

B. Indian Penal Code, 1860 (45 of 1860), Section 376(2)(g) – Rape with  minor – Acquittal -- Medical evidence does not show that the victim was subjected to recent sexual intercourse -- Heavy reliance was placed upon the human semen detected on the bed sheet -- However, the same was not subjected to further examination to find out whether it belonged to accused or not -- Further, no semen was detected on the clothes of the victim or the accused -- Therefore, nothing much can be made out of the human semen detected on the bed sheet -- Thus, the learned Trial Court had taken a reasonable view by holding that no case of commission of an offence punishable under Section 376(2)(g) of IPC was made out.

(Para 28-30)

C. Indian Penal Code, 1860 (45 of 1860), Section 305 -- Abetment of suicide of child -- No evidence to show when the poison was taken by the deceased -- Her statement does not show that the accused had created any circumstance forcing her to consume poison -- There is no evidence that the deceased had consumed poison while she was with the accused -- Hence, the offence punishable u/s 305 of IPC is not made out against the accused.

(Para 31)

D. Indian Penal Code, 1860 (45 of 1860), Section 363, 366 – Kidnapping -- Birth certificate – Age of victim -- Mere fact that the entry was not made immediately but was made subsequently as per the order of the SDM will not take away their effect -- The entries were made ante litem mortem and are to be treated as correct -- Entry was based on the Panchayat certificate, which was not brought will not take away the effect of the entry which was made before the dispute had arisen – Age of victim was about 14 years on the date of the incident, proved.

(Para 33)

E. Indian Penal Code, 1860 (45 of 1860), Section 363 – Kidnapping -- Victim was going to Nahan from where she was taken to the house of SR -- No evidence that the consent of her guardian was taken -- Hence, the offence of kidnapping was duly established.

(Para 37)

F. Indian Penal Code, 1860 (45 of 1860), Section 363, 366 – Code of Criminal Procedure, 1973 (2 of 1974), Section 216 -- Kidnapping – Charge u/s 366 of IPC – Punishment u/s 363 IPC – Permissibility of -- Accused was not charged with the commission of an offence punishable u/ 363 of the IPC but with Section 366 of the IPC, which is an aggravated form of Section 363 of the IPC -- Hence, the accused can be convicted of the commission of offence punishable under Section 363 of IPC despite the absence of charge as no prejudice has been caused to him.

(Para 38)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 34  -- Indian Penal Code, 1860 (45 of 1860), Section 376D – POCSO – Gang rape -- Victim’s age – Birth and death register of Gram Panchayat -- Proof of -- Victim’s date of birth was recorded as 28.10.2002 -- During cross-examination of the victim, on the suggestion given to her, she had specifically stated that her date of birth was 28.10.2002, which corroborates the entry in the birth and death register of the concerned Gram Panchayat – Held,  the evidence led by the prosecution is conclusive to prove that the date of birth of the victim was 28.10.2002.

(Para 12)

B. Indian Evidence Act, 1872 (1 of 1872), Section 134 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 34  -- Indian Penal Code, 1860 (45 of 1860), Section 376D – POCSO – Gang rape -- Sole witness of prosecutrix -- Conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence -- If the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence direct or circumstantial which would lend assurance to her testimony.

(Para 14)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 34  -- Indian Penal Code, 1860 (45 of 1860), Section 376D – POCSO – Gang rape – Victim travelled a long distance in the company of accused persons throughout the night and had many opportunities to disclose her fate to the world at large --  As per her statement recorded u/s 164, Cr.PC, a police man met her at some place at Una-Hoshiarpur road, however, she had not disclosed anything to the police man also -- This conduct of the victim is unusual -- Statement of victim u/s 164 Cr.P.C. is not in consistence with her deposition before the Court -- Her deposition does not inspire confidence.

(Para 21, 39)

D. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification Parade (TIP) -- It is not a substantive piece of evidence and such tests are meant for the purpose of helping the investigating agency in order to ensure that their progress with the investigation into the offence is proceeding in the right direction -- The Test Identification Parade is not a substantive evidence but it can only be used in corroboration of the statements in Court

(Para 32)

E. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification Parade (TIP) -- When the accused persons were produced before the ACJM, the photographs of the accused persons were annexed to the conviction slip -- Thus the possibility of the victim having seen the photographs of accused persons during their custody with the police and also subsequently before the TIP cannot be ruled out -- There is no record to suggest that non-suspected selected for the parade were of the same age, height, general appearance and position as that of the accused persons -- Moreover, there is a delay in conducting the TIP as the accused persons were taken in custody on 13.02.2018, but the application for conducting of TIP was moved by the Investigating Officer on 16.02.2018, which delay the prosecution has failed to explain -- Father of the victim, in his cross-examination, admitted that a lady police having two stars on her shoulders, was also present at the time of TIP -- Thus, it cannot be said the TIP was conducted in accordance with the guidelines -- As such, it cannot be held to be sustainable in the eyes of law and no reliance could be placed upon the Test Identification Parades.

(Para 33-37)

F. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 34  -- Indian Penal Code, 1860 (45 of 1860), Section 376D – POCSO – Gang rape -- Acquittal of accused – Disciplinary action against Investigation Agency -- Investigation in the case was conducted in a casual and perfunctory manner -- Prosecution has withheld the CCTV footage, SFSL reports with respect to the medical examinations of the victim as well as the accused persons and also with respect to the articles which were seized from the vehicles allegedly involved in the commission of the crime in order to connect the accused persons with the commission of the offence -- Director General of Police directed to take appropriate disciplinary and departmental inquiry against the erring police officials for having conducted a shoddy investigation, that eventually led to the acquittal of the appellants herein.

(Para 46)

A. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Circumstantial evidence -- Last seen theory -- Provisions of Section 106 of the Evidence Act are not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt -- Mere fact that the dead body of the deceased was found two kilometers back from place where the appellant had left him, could not be a ground to doubt the statement -- False explanation cannot be used as an additional link to fortify the prosecution case -- Suspicion, howsoever strong, it may be, cannot take the place of proof -- A moral conviction, however, strong or genuine cannot amount to a legal conviction supportable in law -- The cardinal principle of criminal jurisprudence in a case can be stated to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction – Findings recorded by the learned trial Court are perverse and do not in any manner re-concile with the evidence on record -- Appellant acquitted.

(Para 17, 19-24)

B. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Circumstantial evidence -- If the prosecution case rests on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused -- Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence -- Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

(Para 23)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Dying declaration -- Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration -- However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring.

(Para 25)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Dying declaration -- Unless the evidence tendered is tested by cross-examination, it is not creditworthy -- Section 32(1) of the Evidence Act is an exception to this general rule.

(Para 29)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Murder -- Dying declaration -- Attending doctor certified that the deceased was capable of narrating her statement -- Substance of the dying declaration is also borne out by the medical history of the patient recorded by the doctor which has also been proved in evidence -- Though there are inconsistencies and improvements in the version of the prosecution witnesses, there is however convergence with the core of the narration of the deceased made in the dying declaration and the medical history recorded by the doctor -- No reason to doubt the correctness of the dying declaration -- Evidence on record, particularly Ex. 59/ dying declaration clearly establishes the guilt of the appellant beyond all reasonable doubt -- Appellant held guilty.

(Para 35-37)

Will -- Examination of Scribe of Will – Video conferencing -- One of the attesting witness has expired and the other attesting witness has been summoned several times who is not coming forward to depose – Examination of scribe living abroad through video conferencing allowed -- Petitioner would not be in a position to get a Co-ordinator at the remote point -- Trial Court would give a direction in its order regarding appointment of a Coordinator at the remote point in accordance with the rules so that the petitioner is in a position to pursue his matter with the concerned consulate/ embassy/ High Commission.

(Para 8, 9)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 299 – Indian Evidence Act, 1872 (1 of 1872), Section 33 -- Statement of complainant u/s 161 of Cr.P.C. – Exhibited by Investigation Officer – Accused/ appellant remained absconding for a period of nearly 10 years -- Complainant left his house where he used to reside earlier -- Despite ample efforts being made by the Investigating Agency to summon and examine complainant, he could not be traced out and produced in the witness box for deposition during trial after the accused had been arrested -- Viewed in light of the provisions of Section 299 CrPC read with Section 33 of the Indian Evidence Act, 1872, the trial Court was justified in holding that the statement of complainant recorded in these proceedings was fit to be read as a piece of substantive evidence.

(Para 23, 38, 39)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 – Murder of wife -- Circumstantial evidence – Last seen together – Circumstances leading to murder were in the exclusive knowledge of the appellant -- He has offered no explanation as to the manner in which deceased was strangled to death within the confines of the room where only he and the deceased were present -- Bald plea of denial offered by the accused by way of an explanation to this gravely incriminating circumstance is not sufficient to absolve him of the burden cast upon him by virtue of Section 106 of the Indian Evidence Act, 1872.

(Para 46)

C. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Murder -- Incriminating circumstances -- Prosecution has established the following links in the chain of incriminating circumstantial evidence: (i) Motive; (ii) Last seen together; (iii) Medical evidence establishing that the cause of death of the deceased was homicidal. (iv) Confessional note; (v) Abscondence for nearly 10 years; (vi) Wrong explanation given by the accused in his statement under Section 313 CrPC; (vii) Failure of the accused to offer explanation for the homicidal death of his wife in the night time when only the accused and deceased were present in the house leading to the interference of guilt by virtue of Section 106 of the Indian Evidence Act, 1872 -- Conviction of appellant confirmed – Appeal dismissed.

(Para 47-51)

Code of Civil Procedure, 1908 (V of 1908), Section 151 -- Additional evidence -- By proposed additional evidence, the petitioner intends to produce copy of Registration, Memorandum and Article of Association, pertaining to Gaushala --  Application moved at the stage of rebuttal and arguments -- Nowhere, in the pleadings as well as in the testimony of witnesses, any reference was made to the aforesaid documents -- These documents were very much in the active knowledge of the petitioner, at the time of recording of the evidence -- Application for additional evidence dismissed.

(Para 9, 10)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Cheque bounce complaint – Production of Bank Account statement of complainant from Bank – Locus standi of accused -- Trial Court dismissed the application by observing that power to summon any document on file is vested with the Court or the Officer In-charge of the Police Station and thus, the application moved at the instance of petitioner-accused could not be entertained -- Held, power u/s 91 of CrPC can be exercised either by the Court on its own or even on an application moved by either of the parties to the trial – Impugned order set aside, matter remanded back to trial court to adjudicate afresh.

(Para 3-6)

Indian Penal Code, 1860 (45 of 1860), Section 302, 149 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Murder – Acquittal – Last seen together theory -- The theory of last seen together is helpful to the prosecution if the deceased was seen in the company of the accused in the proximity of the time at which the dead body is found -- Deceased on the day he was found dead, after he was allegedly seen with the accused, attended a meeting of the Congress Party -- Involvement of other persons in the offence is not ruled out – Appellant no. 2 was found in the company of the deceased is not sufficient to link him with the commission of the offence of murder – Conviction of appellants u/s 302/ 149 of IPC set aside.

(Para 17, 18)

Indian Contract Act, 1872 (9 of 1872), Section 11 -- Sale deed by minor – Challenge to – In school record plaintiff’s name is P.K -- In the Jamabandi/ revenue record, plaintiff’s name is P.K. daughter of K – In both the sale deeds assailed by the plaintiff her name is mentioned as P.K. and she claimed herself to be major -- Birth certificate (Ex.P1/A), on which the plaintiff placed reliance, pertains to R.K -- Plaintiff failed to produce any document to reveal that apart from P.K., she was ever known by the name of R.K. -- Mother and two brothers of plaintiff not examined – Held, it cannot be stated that birth certificate of R.K. pertains to the plaintiff – Suit dismissed.

(Para 2, 10-13)

Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Admission – Photocopy of sale  deed – Evidential value -- Once the defendants had categorically admitted that plaintiff was the owner of the land on which she had raised the construction of a building, there was no question to doubt the title of the plaintiff in this regard simply for the reason that only the copy of the sale deed was produced and not the original sale deed.

(Para 13)

Indian Evidence Act, 1872 (1 of 1872), Section 45 – DNA test of witness – Permissibility of -- Suit for declaration with consequential relief of permanent injunction -- When the person is not a party to the lis and is deposing in the Court, as only witness, his/her DNA examination cannot be allowed -- Application for seeking DNA examination, dismissed.

(Para 7, 11, 12)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Additional evidence -- Section 311 Cr.P.C. confers wide power, the said power is to be exercised only for strong and valid reasons with great caution and circumspection.

(Para 8)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Indian Evidence Act, 1872 (1 of 1872), Section 65, 65B – Code of Criminal Procedure, 1973 (2 of 1974), Section 311  -- Screen shots of mobile – Secondary evidence -- Copies of the  screen shots being secondary evidence is admissible in evidence subject to requirement of certificate as per provisions of Section 65-B of the Evidence Act -- Electronic documents ordered to be admitted in evidence subject to provisions of Section 65-B of the Evidence Act with liberty to the petitioner to cross-examine the complainant -- Evidentiary value and relevancy of the said electronic documents will be adjudicated by the learned trial Court at the time of final disposal of the case.

(Para 9)

Code of Criminal Procedure, 1973 (2 of 1974), Section 391 -- Additional evidence at Appellate stage -- Certified copy issued by Private Bank -- Application for bringing on record the certified copy issued by the private bank -- Certified copy issued by the private bank is not per-se admissible, rather the same is required to be proved by way of evidence -- In the absence of any prayer for proving such document, even if application is allowed, such document would not be admissible as an evidence -- Application dismissed.

(Para 6, 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 29, 31 – Indian Evidence Act, 1872 (1 of 1872), Section 30 -- NDPS case – Acquittal – Leave to appeal – Confession/ Disclosure of co-accused -- Prosecution failed to prove beyond reasonable doubt that the money allegedly recovered from the possession of respondent-accused i.e. Rs.7,500/- had been derived from the sale of narcotics -- Confession made by one accused cannot serve as a substantive piece of evidence against a co-accused -- Its admissibility is limited only for corroborative purposes -- Acquittal order, upheld.

(Para 5)

A. Right to Manage property – Electricity connection in name – Relevancy of -- Electricity bill at the most shows that there is an electric connection issued by the Electricity Board or Supply Company in favour of an individual -- However, it does not establish the rights to manage the property of the religious institution.

(Para 5.2)

B. Indian Evidence Act, 1872 (1 of 1872), Section 114 – Withholding of evidence -- Adverse inference – Presumption -- Failure of the plaintiff to step into the witness box to testify may enable the court to draw adverse inference if sufficient evidence has not been led -- Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it -- However, it is not necessary to draw adverse inference in each and every case, even when sufficient evidence has been led.

(Para 5.3)