Indian Penal Code, 1860 (45 of 1860), Section 302, 201 – Indian Evidence Act, 1872 (1 of 1872), Section 24, 27 -- Murder – Acquittal – Extra-judicial confession – Recovery from accused -- PW-7 turned hostile, trial court disbelief the alleged recovery of the incriminating material allegedly recovered at the instance of the respondent-accused – Court only leaves with the alleged extra-judicial confession – High Court held that extrajudicial confession was a weak piece of evidence and unless there was some corroboration, the conviction solely on the basis of extra-judicial confession could not be sustained – Held, view taken by the High Court cannot be said to be either impossible or perverse meriting interference -- Appeal dismissed.

(Para 9-11)

A. Constitution of India, Article 136 – Special leave to Appeal – Nature of -- Article 136 of the Constitution of India is an extraordinary jurisdiction which Supreme Court exercises when it entertains an appeal by special leave and this jurisdiction, by its very nature, is exercisable only when this Court is satisfied that it is necessary to interfere in order to prevent grave or serious miscarriage of justice -- Terms and powers conferred under the said Article is not hedged by any technical hurdles -- Overriding and exceptional power is, however, to be exercised sparingly and only in furtherance of cause of justice -- Thus, when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or misreading of evidence or by ignoring material evidence then Supreme Court is not only empowered but is well expected to interfere to promote the cause of justice.

(Para 14, 15)

B. Constitution of India, Article 136 – Special leave to Appeal – Finding of fact – Interference on -- It is not the practice of Supreme Court to re-appreciate the evidence for the purpose of examining whether the finding of fact concurrently arrived at by the Trial Court and the High Court are correct or not -- It is only in rare and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice on account of misreading or ignoring material evidence, that this Court would interfere with such finding of fact.

(Para 16)

C. Evidence law – Criminal trial -- Testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omission.

(Para 22)

D. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Conviction for murder -- Facts and evidence squarely analyzed by both Trial Court as well the High Court that prosecution discharged its duties in proving the guilt of the appellant for the offence under Section 302 IPC beyond reasonable doubt -- When there is ample ocular evidence corroborated by medical evidence, mere non-recovery of weapon from the appellant would not materially affect the case of the prosecution -- If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony -- Deceased has been attacked by the appellant in broad daylight and there is direct evidence available to prove the same and the motive behind the attack is also apparent considering there was previous enmity between the appellant and PW-1 – Held, Trial Court as well as the High Court were right in convicting the appellant for the offence u/s 302 IPC – No ground warranting interference with the findings of the Trial Court and the High Court -- Appeal dismissed.

(Para 24-26)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce case -- Opportunity to cross-examine witness -- Petitioner adopting delaying tactics and wants to prolong the adjudication -- Be that as it may, in the interest of justice, one and last opportunity grated to the petitioner to cross examine subject to payment of cost of Rs.1 lakh to be paid to complainant.

(Para 6-10)

A. Constitution of India, Article 136 -- Criminal appeal -- Scope and width of appeal in Supreme court -- Following principles emerge:

(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.

(ii) It is open to this Court to interfere with the findings of fact recorded by the High Court if the High Court has acted perversely or otherwise improperly.

(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.

(iv) When the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.

(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.

(Para 23)

B. Indian Evidence Act, 1872 (1 of 1872), Section 60 -- Evidence law -- Criminal case -- Appreciation of ocular evidence – Scope of – Appreciation of ocular evidence is a hard task -- There is no fixed or straight-jacket formula for appreciation of the ocular evidence -- The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

(Para 27)

C. Evidence law -- Criminal case – Value of eyewitness – Assessment of -- In assessing the value of the evidence of the eye-witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence -- In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence -- Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence -- Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.

(Para 28, 29)

D. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Criminal case -- Discovery Panchnama – Reading over of it – Exhibition of – A panchnama which can be used only to corroborate the panch has to be read over to the panch and only thereafter it can be exhibited – If the panch has omitted to state something which is found in the panchnama, then after reading over the panchnama the panch has to be asked whether that portion of the panchnama is correct or not and whatever reply he gives has to be recorded – If he replies in the affirmative, then only that portion of the panchnama can be read into evidence to corroborate the substantive evidence of the panch – If he replies in the negative, then that part of the panchnama cannot be read in evidence for want of substantive evidence on record – It is, therefore, necessary that care is taken by the public prosecutor who conducts the trial that such a procedure is followed while examining the panch at the trial – It is also necessary that the learned trial judge also sees that the panchnama is read over the panch and thereafter the panchnama is exhibited after following the procedure as indicated above.

(Para 39)

E. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Discovery Panchnama/ Memo – Conditions necessary for the applicability of Section 27 of the Act are broadly as under:

(1) Discovery of fact in consequence of an information received from accused;

(2) Discovery of such fact to be deposed to;

(3) The accused must be in police custody when he gave informations and

(4) So much of information as relates distinctly to the fact thereby discovered is admissible.

Two conditions for application –

(1) information must be such as has caused discovery of the fact; and

(2) information must relate distinctly to the fact discovered.

(Para 42)

F. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Discovery Panchnama/ Memo – Value of – Involvement or usage of weapon -- Statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon -- Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon -- He could have derived knowledge of the existence of that weapon at the place through some other source also -- He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it.

(Para 45)

G. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Discovery Panchnama/ Memo – Recovery of weapon – Contents of Panchnama/ Memo – Proof of -- In the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Investigating Officer in his evidence, and also without proving the contents of the panchnamas, the trial Court was not justified in placing reliance upon the circumstance of discovery of weapon.

(Para 47)

H. Indian Evidence Act, 1872 (1 of 1872), Section 8, 27 – Conduct of accused – Disclosure statement – Recovery of – Reliance upon -- While discarding the evidence in the form of discovery panchnama the conduct of the accused would be relevant u/s 8 of the Act -- Evidence of discovery would be admissible as conduct u/s 8 of the Act quite apart from the admissibility of the disclosure statement u/s 27 -- Although the conduct of an accused may be a relevant fact u/s 8 of the Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder -- Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect – Held, conduct of the accused alone, though may be relevant u/s 8 of the Act, cannot form the basis of conviction.

(Para 48-50)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Constitution of India, Article 32, 226 – De facto complainant – Transfer of investigation to CBI -- If a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high Government officials or influential persons, prays before a Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking -- In an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like the CBI.

(Para 44-46)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 482 – Constitution of India, Article 32, 226 – Chargesheet filed in criminal case – Transfer of investigation to CBI – Permissibility of -- After the filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent agency like the CBI.

(Para 46)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 340 -- Indian Penal Code, 1860 (45 of 1860), Section 191, 192, 193, 195 -- Perjury -- There are two conditions, on fulfillment of which, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court -- The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him – There should be something deliberate -- A statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise.

(Para 72-78)

D. Indian Penal Code, 1860 (45 of 1860), Section 191 – Perjury -- False evidence -- Affidavit -- An affidavit is ‘evidence’ within the meaning of Section 191 of the IPC and a person swearing to a false affidavit is guilty of perjury.

(Para 79)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 340 -- Indian Penal Code, 1860 (45 of 1860), Section 191, 192, 193, 195 -- Perjury -- Before initiating the proceedings for perjury, the court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution – Court has to see that the false statement was deliberate and conscious and the conviction is reasonably probable or likely -- In other words, before sanctioning the prosecution there must be a prima facie case of a falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

(Para 79)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 340 -- Indian Penal Code, 1860 (45 of 1860), Section 211 – False charge of offence made with the intent to injure -- Meaning of charge -- Essential ingredients for invoking Section 211, I.P.C. are that the complaint must have falsely charged a person with having committed an offence -- Complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person -- This complaint must have been given with an intention to cause injury to a person – A false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning, of a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion.

(Para 91)

G. Code of Criminal Procedure, 1973 (2 of 1974), Section 195, 340 -- Indian Penal Code, 1860 (45 of 1860), Section 211, 120-B – False charge of offence made with the intent to injure – FIR/ First information reports lodged at the different police stations -- At the end of the investigation, the investigating agency reached to the conclusion that the police force had no role to play, rather Naxals were responsible for the massacre – Prima facie, it could be said that false information was given by the first informants to the police as regards the alleged massacre by the police force – Essential ingredient of an offence u/s 211 IPC is to institute or cause, to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge – “falsely charges” in this section, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial -- “To falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial -- The words “falsely charges” have to be, read along with the expression “institution of criminal proceeding” -- Statement in order to constitute the “charges” should be made with the intention and object of setting criminal law in motion – Court left it to the State /CBI to take appropriate steps in accordance with law -- It shall not be limited only to the offence under Section 211 of the IPC -- A case of criminal conspiracy or any other offence under the IPC may also surface – Court left it to the better discretion of the State /CBI to act accordingly keeping in mind the seriousness of the entire issue -- Having regard to the facts of the present case the bar of Section 195 CrPC would not apply if ultimately the State/ CBI decides to take appropriate action in accordance with law.

(Para 90-96)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Dying declaration – Corroborative evidence – Requirement of -- A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuinity or veracity -- Court has, therefore, to subject it to close scrutiny -- But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon -- However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises.

(Para 21)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Nemo moriturus praesumitur mentire -- Dying declaration – Nature of -- Whole idea of accepting a statement in the name of dying declaration comes from a maxim “Nemo moriturus praesumitur mentire” which means that a man will not meet his maker with a lie in his mouth -- It is believed that when a man is at the point of death and when every expectation of this world is gone, it hushes away every motive of lie.

(Para 24)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Murder – Dying declaration – Corroborative evidence – Conviction by trial Court, affirmed by High Court – Challenge to -- On the day of occurrence, PW2 was working in his agricultural field -- His presence in his field could be said to be natural -- Not the case of the accused-appellant that PW2 had some axe to grind against him, including the other co-accused and, therefore, fabricated the entire story of an oral dying declaration -- Oral dying declaration of the deceased made before PW2 stands corroborated with the medical evidence on record -- Burn injuries were suffered by the deceased as the accused persons are said to have poured hot lali (raw material used for preparing liquor – Appellant arrested almost after about 8 days from the date of incident, he was absconding was not available at his house -- Appellant in his statement recorded u/s 313 of the CrPC has not explained where he was till the date of his arrest -- From the nature of the oral evidence, something went wrong while the deceased and the accused persons were inside the liquor factory -- It appears to be a case of sudden fight -- Held, no fundamental or basic infirmity in the impugned judgment of the High Court going to the root of the matter calling for any interference – Appeal dismissed.

(Para 1, 25-29)

Prevention of Food Adulteration Act, 1954 (37 of 1954), Section 7, 16(1)(a)(i) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 401 – Adulterated milk –  Sample contains 6.30% of Milk Solids not fat against the minimum specified limit of 8.5% laid down for Mixed Milk -- Ex.PW-3/A is report by the Public Analyst to which Ex.PF is assigned – Despite the petitioner becoming intimated with respect to an adversarial opinion being pronounced qua the purchased from him adulterated food item, he did not choose, to controvert it, through his asking, within the statutorily stipulated period, rather qua it becoming re-analysed by the Central Food Laboratory concerned – Abandonment of a statutory right, does estop him, to rear the above contention before High Court, hence the report of the Public Analyst, obviously acquires the completest conclusivity – It is not open for the petitioner to argue, that the sample was not properly analysed – Conviction of petitioner, upheld.

(Para 4-11)

A. Indian Penal Code, 1860 (45 of 1860), Section 34 -- Common intention – Rule of evidence -- There has to be adequate material to fasten the constructive liability as Section 34 IPC is nothing but a rule of evidence.

(Para 14)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Murder – Test identification Parade – Evidence of -- Witnesses had already been exposed to the accused in the police station -- Test identification parade is only a part of an investigation, and therefore, nothing more can be attached to it -- Both the Courts made reliance upon the non-cooperation on the part of the accused to undergo the test identification parade by drawing an adverse inference -- Evidence available on record was not looked into as it is the duty of the prosecution to prove its case beyond reasonable doubt -- Both the Courts have fixed the onus on the accused – Evidence as deposed by the prosecution witnesses itself would demonstrate that the version of the prosecution may not be correct -- Conviction rendered by both the Courts can not be sustained in the eye of law – Appeal allowed, appellants are directed to be set at liberty.

(Para 14)

A. Indian Penal Code, 1860 (45 of 1860), Sections 302, 34, 392 -- Indian Evidence Act, 1872 (1 of 1872), Section 27 – Robbery -- Murder -- Loot of Rs.5 lacs – Conviction based upon recovery – Legality of --  Prosecution is required to establish and prove that the amount which is recovered from the accused is the very amount which the complainant/the person from whom the amount is looted -- When the prosecution has failed to prove that the complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter and it was the very looted amount which was recovered from the accused, the accused cannot be convicted on the basis of recovery of some cash.

(Para 2, 6.1)

B. Indian Penal Code, 1860 (45 of 1860), Sections 302, 34, 392 -- Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Robbery -- Murder -- Test Identification parade in Court room -- Prior thereto no TIP conducted by the Investigating Agency – When no TIP was conducted the first version of the complainant reflected in the FIR would play an important role -- Nothing has been mentioned in his first statement that he had seen the accused earlier and that he will be able to identify the accused -- In the deposition before the Court, complainant tried to improve the case by deposing that he had seen the accused in the city on one or two occasions -- The aforesaid was not disclosed in the FIR -- Even in the cross-examination as admitted by PW1 he did not disclose any description of the accused -- PW1 has specifically and categorically admitted in the cross-examination that it is incorrect that the accused were known earlier -- It would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court -- Conviction u/s 302 read with Section 34 and Section 392 IPC quashed and set aside -- Accused acquitted from the charges.

(Para 6, 6.2-6.7, 8)

Indian Stamp Act, 1899 (2 of 1899), Section 36, 61 -- Specific performance of agreement to sell – Deficient stamp duty – De-exhibition of document – Permissibility of -- Section 36 provides that once a document has been admitted in evidence without any objection from the other party, such document shall not, except as provided in Section 61 of the 1899 Act, be called in question, at any stage of the suit on the ground that the instrument has not been properly stamped --  Agreement to sell dated 07.03.2000, Entry No.5 of the Indian Stamp (Punjab Amendment) Act, 2001 was notified on 21.12.2001, whereas entry No. 23 was amended by the Indian Stamp (Punjab Amendment) Act 2007 w.e.f. 25.01.2008 -- Revision petition allowed, trial Court directed to proceed with the matter without insisting on the payment of deficient stamp duty or the penalty.

(Para 4-7)

A. Indian Penal Code, 1860 (45 of 1860), Sections 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 – Indian Evidence Act, 1872 (1 of 1872), Section 105 – Right of private defence -- Burden of proof -- Burden rests with the accused who takes up the plea of self defence -- In the absence of proof, the Court will not be in a position to assume that there is any truth in the plea of self defence -- It would be for the accused to adduce positive evidence or extract necessary information from the witnesses produced by the prosecution and place any other material on record to establish his plea of private defence.

(Para 12)

B. Indian Penal Code, 1860 (45 of 1860), Sections 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 – Indian Evidence Act, 1872 (1 of 1872), Section 105 – Right of private defence – Nature of -- It is a defensive right which is available only when the circumstances so justify it -- Circumstances are those that have been elaborated in the IPC -- Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid -- At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended -- Not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court – Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc.-- Underlying factor should be that such an act of private defence should have been done in good faith and without malice.

(Para 21)

C. Border Security Force Act, 1968 (47 of 1968), Section 46 -- Indian Penal Code, 1860 (45 of 1860), Sections 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 300 Exception 2, 302, 304 – Murder – Culpable homicide not amounting to murder -- CT H (PW-1) and appellant were on patrolling in the area, they had seen three persons crossing the international border from Bangladesh side -- On noticing the intruders, they had challenged them to stop at a distance of 50 meters -- But the intruders ran away in the direction of Bangladesh -- At this, PW-1 and the appellant had turned back and while continuing with their patrolling duty, they saw 6-7 persons rushing towards them from the side of Bangladesh, carrying weapons like ‘Dah’, ‘Bhala’ and ‘Lathi’ in their hands -- They managed to surround the appellant, who was closer to them -- Held, right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in favour of the appellant -- In a fact situation, he was left with no other option but to save his life by firing at them from his rifle and in the process two of the shots had pierced through the deceased, causing his death -- Appellant ought not to have been convicted for having committed the murder of the deceased -- Rather, the offence made out is of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby attracting the provisions of Section 304 IPC – Appellant already suffered incarceration for a period of over eleven years, considered sufficient punishment for the offence -- Appellant accordingly set free for the period already undergone.

(Para 24-2)

A. Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Long years living as husband and wife – Birth of child – Presumption of -- It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock -- Such a presumption could be drawn under Section 114 of the Evidence Act -- Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 – Partition suit – Preliminary Decree – Final Decree – Role of -- Preliminary decree declares the rights or shares of the parties to the partition -- Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed.

(Para 29, 30)

C. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 – Preliminary decree -- Final decree – Limitation – Nature of -- Final decree proceedings can be initiated at any point of time -- There is no limitation for initiating final decree proceedings -- Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose -- By mere passing of a preliminary decree the suit is not disposed of.

(Para 31)

D. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 -- Preliminary decree – Final decree – Directions issued to Trial Courts -- Once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu -- After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC -- The courts should not adjourn the matter sine die -- There is also no need to file a separate final decree proceedings -- In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree – Suit comes to an end only when a final decree is drawn – Directions given to Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

(Para 32, 33)

A. Indian Evidence Act, 1872 (1 of 1872), Sections 136, 137 – Code of Criminal Procedure, 1973 (2 of 1974), Sections 231, 242 -- Criminal trial -- Witnesses – Reliance upon their testimony – Nature of – Corroboration in material particulars -- Requirement of -- Witnesses are of three types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable -- When the witness is “wholly reliable”, the Court should not have any difficulty inasmuch as conviction or acquittal could be based on the testimony of such single witness -- Equally, if the Court finds that the witness is “wholly unreliable”, there would be no difficulty inasmuch as neither conviction nor acquittal can be based on the testimony of such witness -- It is only in the third category of witnesses that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.

(Para 13)

B. Indian Evidence Act, 1872 (1 of 1872), Sections 136, 137 – Code of Criminal Procedure, 1973 (2 of 1974), Sections 233, 243 -- Criminal trial – Defence witnesses – Value of -- It is a settled law that same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es).

(Para 20)

C. Indian Evidence Act, 1872 (1 of 1872), Section 8 -- Criminal trial -- Motive – Value of – it is well settled that only because motive is established, the conviction cannot be sustained.

(Para 23)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – More than one dying declaration – Reliance upon -- Each one of them must be examined with care and caution and only after satisfying itself as to which of the dying declarations appears to be free from suspicious circumstances and has been made voluntarily, should it be accepted -- It is not necessary that in every case, a dying declaration ought to be corroborated with material evidence, ocular or otherwise -- It is more a rule of prudence that courts seek validation of the dying declaration from attending facts and circumstances and other evidence brought on record -- For the very same reason, a certificate by the doctor that the declarant was fit to make a statement, is treated as a rule of caution to establish the truthfulness of the statement made by the deceased.

(Para 19)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Dying declaration – Infirmity in -- Reliance upon -- If a dying declaration suffers from some infirmity, it cannot be the sole basis for convicting the accused -- In those circumstances, the court must step back and consider whether the cumulative factors in a case make it difficult to rely upon the said dying declaration.

(Para 22)

C. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Indian Penal Code, 1860 (45 of 1860), Section 302 – Acquittal in murder case -- Oral dying declaration – Reliance upon -- PW-2 and PW-12 have deposed that in her oral dying declaration, the deceased had referred to the dowry demands made on her by the appellant and the fact that he had suspected her character, which led to the alleged incident -- Nowhere in their testimonies is there any reference made to the prosecution version that the appellant was having an illicit relation with a widow residing in the neighbourhood, which was the main cause of acrimony between the couple and had resulted in the incident -- Diametrically different version of the reasons that led to the alleged incident casts a shadow on the entire testimony of PW-2 and PW-12, making it unsafe to rely on them and indict the appellant for the charge framed against him – Held, prosecution has failed to discharge the obligation cast on it of leading trustworthy corroborative evidence to back-up the testimonies of PW-2 and PW-12 – Their evidence cannot be treated as stellar enough to hold the appellant guilty for the offence of murdering his wife -- Hence, he is entitled to being granted benefit of doubt -- Appellant acquitted.

(Para 37-39)

Code of Criminal Procedure, 1973 (2 of 1974), Section 228, 240, 313 -- Indian Evidence Act, 1872 (1 of 1872), Section 65-B, 137 -- Framing of charges -- Call detail reports not part of challan – Right of accused – Stage of -- Petitioner, at the stage of framing of charges does not have a right to have access to the documents which are not part of challan -- Accused has to build up his defence right from the very inception after charges are framed -- Court does not see any rationale in depriving accused access to such documents at the stage of cross-examining prosecution witnesses so as to build up his defence -- Petitioner would be entitled to the aforesaid call detail record and tower location record once the charges are framed -- Petitioner would be at liberty to confront the PWs with the said documents, but the same would admissible in evidence only after such documents are duly proved during the course of defence evidence by recording statements of witnesses concerned and also in accordance with provisions of Section 65-B of Indian Evidence Act.

(Para 8-12)

A. Indian Evidence Act, 1872 (1 of 1872), Section 65 – Secondary evidence -- As a general rule, the parties must prove documents by leading primary evidence except in cases covered by Section 65 of the Act.

(Para 6)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63, 65 – Secondary evidence -- Roznamcha – Roznamcha is a document maintained by the revenue officials, therefore, the original of this document could have been produced only by the officials concerned – Original document is not available and only the photocopy of the same is available on record, which does not bear the signatures of any competent officer – Nothing to suggest that the photocopy available in the records of the office of the Deputy Commissioner, was ever made or compared with the original -- Photocopy of such a copy would not fall within the ambit of 'secondary evidence' – Order of Trial Court dismissing application for leading secondary evidence, upheld.

(Para 1, 6-13)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 304-B -- Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Acquittal u/s 304-B IPC – Conviction u/s 498-A IPC -- Dying declaration – Reliance upon – Test for admissibility is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved -- Rather, the test appears to be that the cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the ‘circumstances of the transaction’ relating to the death -- In some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible in a trial for a charge u/s 498A of the IPC u/s 32(1) of the Evidence Act -- However, certain necessary pre-conditions that must be met before the evidence is admitted -- The first condition is that her cause of death must come into question in the matter, however the charge relating to death is proved or not is immaterial with respect to admissibility -- The second condition is that the prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death -- How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case.

(Para 11, 17-22)

B. Indian Penal Code, 1860 (45 of 1860), Section 498-A – Indian Evidence Act, 1872 (1 of 1872), Section 136, 137 -- Mental cruelty -- Deceased’s wife was being harassed is clear from the evidence of PW-3 (mother of the deceased) -- She had specifically stated in her chief-examination that within few days of their marriage, the appellant brought the deceased back to her parental home with the threat that if extra dowry was not given, he would leave her and marry another “beautiful” girl -- As a result of such harassment, the deceased allegedly attempted suicide for the first time by consuming poison -- While she was being treated in the hospital, a settlement was reached between the parties, to which appellant was also a part, wherein it was agreed that no further demands for dowry would be made -- Further, it was stated by PW-3 in her chief-examination that even after the settlement, the appellant had continued to illtreat the deceased -- Deceased, due to the ill-treatment faced by her had ultimately committed suicide by hanging herself with a saree -- Conviction of the appellant u/s 498A of the IPC and sentencing him to undergo rigorous imprisonment for one year, upheld.

(Para 25, 26)

C. Indian Evidence Act, 1872 (1 of 1872), Section 136, 137 -- Interested witness – Evidence by mother of the deceased – Value of -- It is a settled principle of law that the evidence tendered by the related or interested witness cannot be discarded on that ground alone -- However, as a rule of prudence, the Court may scrutinize the evidence of such related or interested witness more carefully.

(Para 26)

A. Evidence law -- Circumstantial evidence -- In order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent -- 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 -- Circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

(Para 10)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder of children of A-1 -- Proximity between A-1 and A-2 – Circumstantial evidence -- Prosecution has not even established the motive of the crime beyond reasonable doubt -- A1 and A2 talked on call, only proves that they shared a close relationship -- However, what these records do not prove, is that the murder was somehow in furtherance of this alleged proximity between A1 and A2 -- High Court’s inference in this regard was a mere dubious conclusion in absence of any cogent or concrete evidence -- High Court itself based its inferences on mere probability when it held that “It is quite probable that A2 would have through that the minor children had been a hurdle for his close proximity with A1” -- Prosecution has also failed to establish by evidence the supposed objective of these murders and what was it that was sought to be achieved by such an act -- Court observed that the act of A2 was inspired by the desire to “exclusively possess” A1 -- However, it seems improbable that A2 would murder the minor children of PW5 and A1 to increase or protect his intimacy to A1 rather than eliminate the husband of A1 himself -- Conviction cannot be upheld.

(Para 13)

C. Indian Evidence Act, 1872 (1 of 1872), Section 65A, 65B – Call records – Certification of electronic evidence – Requirement of -- Electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law -- Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.

(Para 21)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 3 -- Additional evidence – Rebuttal evidence -- Plaintiffs intended to examine HS as witness in their additional evidence which was dismissed – Plaintiffs then moved application to examine the same person in their rebuttal evidence -- Plaintiffs have left no stone unturned to fill up the lacunae in their affirmative evidence and now, under the garb of seeking permission to examine the said plaintiff as witness in their rebuttal evidence, they have made another attempt for this purpose which is not permissible.

(Para 7)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Non-examination of driver – Adverse inference – Tribunal awarded compensation to claimants -- Sole argument of appellant-Insurance Company is that the accident never took place and a false claim had been filed in order to grab the compensation -- Not disputed that the deceased was taken to the hospital with the history of a road accident – Statements of RW-1 Dr. AK and RW-2 Dr. R would support the version put forth by the claimants and it has been deposed by both the witnesses that the deceased was brought to the hospital with a history of a road-side accident – Rider of the motorcycle/ respondent no. 7 while reporting the matter to the Police had got his statement recorded to the effect that the accident had taken place when a bull came on the road and struck into the motorcycle and the deceased received grievous injuries, which eventually proved fatal – Driver of the vehicle, respondent No.7, did not step into the witness box to rebut the evidence led by the claimants, since he chose not to step into the witness box, an adverse influence was drawn against him -- It is well settled that in such like cases the claimants are merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied while dealing with the motor accident cases -- Approach of the Tribunal should be a holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability, which stands satisfied in the present case -- Appeal by Insurance company dismissed.

(Para 8-13)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Dying declaration – As per the dying declaration recorded by Assistant Divisional Transport Officer, six/seven persons attacked the deceased -- Even in the F.I.R., lodged by PW-5, it was specifically mentioned that six persons attacked his brother, who assaulted him with hockey stick and knife -- PW-5-informant turned hostile, however, no reason to doubt the dying declaration.

(Para 6)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Dying declaration – Recording of -- Danger to life – Serious condition -- Extreme emergence – Requirement of -- As the deceased was having a stab injury by a knife, there was a possibility of danger to his life and therefore, by way of prudence, if the dying declaration was recorded, there is no reason to doubt the dying declaration, which was recorded by Assistant Divisional Transport Officer.

(Para 6.1)

C. Indian Penal Code, 1860 (45 of 1860), Section 141, 149 -- Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Unlawful assembly – Proof of – Dying declaration – Reliance upon -- From the dying declaration it emerges that six to seven persons attacked the deceased including respondent -- Prosecution held to be successful in establishing and proving that respondent was present at the time of the incident; he was part of the unlawful assembly and that he participated in the commission of offence.

(Para 6.1)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 228, 464 – Indian Penal Code, 1860 (45 of 1860), Section 141, 146, 148, 149 -- Framing of charge – Defective framing of charge – Effect of -- Respondent/ accused was not specifically charged u/s 302 r/w Section 149 IPC -- Ingredients for the offence u/s 302 r/w Section 149 and Section 148 of IPC were specifically brought to the notice of the accused -- At the most, it can be said to be a defective framing of the charge by not specifically charging u/s 149 IPC -- Therefore, section 464 Cr.P.C. is attracted to the case -- Ingredients of Section 149 IPC are satisfied -- It cannot be said that the accused is prejudiced by non-mention of Section 149 IPC in the charge.

(Para 7, 8)

E. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Dying declaration – Non recovery of weapon – Effect of -- Merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration, which was recorded before the Executive Magistrate, which has been proved by the prosecution.

(Para 9)

F. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Indian Penal Code, 1860 (45 of 1860), Section 141, 149 – Dying declaration – Unlawful assembly – Act of other person – Liable for -- Not proved, who actually inflicted the knife blow -- Deceased sustained an injury by knife blow, which is inflicted by one of the six to seven persons, who participated in commission of the offence -- Respondent was specifically named in the dying declaration, therefore, even if the role attributed to the respondent-accused was that of hitting the deceased by a hockey stick, in that case also for the act of other persons, who were part of the unlawful assembly of inflicting the knife blow, the respondent accused can be held guilty of having committed the murder of deceased, with the aid of Section 149 IPC.

(Para 10)

G. Indian Penal Code, 1860 (45 of 1860), Section 148, 149, 302, 304 Part 1 -- Unlawful assembly -- Rioting, armed with deadly weapon -- Murder – Culpable homicide not amounting to murder -- Deceased sustained an injury by knife blow, which is inflicted by one of the six to seven persons, who participated in commission of the offence -- Role attributed to the respondent-accused was that of hitting the deceased by a hockey stick --Deceased died due to septicemia after a period of thirty days – Conviction u/s 302 r/w Section 149 IPC is not warranted -- Respondent/ accused held guilty for the offence under Section 304 Part I r/w Section 149 IPC and for the offence u/s 148 IPC – Respondent/ accused is sentenced to undergo ten years R.I. for the offence punishable under Section 304 Part I r/w Section 149 IPC with a fine of Rs. 5,000/- and in default to undergo further six months R.I. – Respondent/ accused also sentenced to undergo three years R.I. for the offence u/s 148 IPC with fine of Rs. 5,000/- and in default to undergo further two months R.I. -- Both the sentences to run concurrently.

(Para 10-13)

H. Indian Penal Code, 1860 (45 of 1860), Section 148 – Unlawful assembly of six to seven persons – Rioting, armed with deadly weapon -- Three accused charge-sheeted, charged and tried – Acquittal of two accused – Effect of -- Involvement of six to seven persons in commission of the offence has been established and proved -- Merely because three persons were charge-sheeted/ charged/ tried and even out of three tried, two persons came to be acquitted cannot be a ground to not to convict the respondent/ accused u/s 148 IPC.

(Para 12)

I. Indian Penal Code, 1860 (45 of 1860), Section 146, 148 – Unlawful assembly – Rioting, armed with deadly weapon -- Accused armed with hockey, deceased died due to knife injury – Effect of -- Six to seven persons were part of the unlawful assembly and they used force or violence and one of them used a deadly weapon, namely, knife and therefore, being a part of the unlawful assembly, the respondent/  accused can be held to be guilty for the offence of rioting and for the use of force/violence as a member of such an unlawful assembly -- Respondent was rightly convicted by the Trial Court for the offence under Section 148 IPC.

(Para 12.1)

Indian Evidence Act, 1872 (1 of 1872), Section 137 – Defer of cross-examination – Whenever witness is under cross examination, after couple of questions the matter deferred – Held, once the witness is in the witness box and is being cross examined every endeavour must be made to ensure that the cross examination is completed on that day.

(Para 2)

Indian Penal Code, 1860 (45 of 1860), Section 306 – Indian Evidence Act, 1872 (1 of 1872), Section 32(1) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – Abetment to suicide – Anticipatory bail – Dying declaration -- Holographic made dying declaration by the deceased did not name the petitioners to abet him to commit suicide -- Any subsequent statement, made by the deceased to any witness, becomes an oral dying declaration, and, its effect becomes completely subsumed besides becomes eclipsed within the realms of the scribed dying declaration -- Court does not deem it fit, and, appropriate to order for the custodial interrogation of the petitioners-bail applicants, as, thereupons their personal liberty would become unnecessarily fettered, and, curtailed -- Bail applicants-petitioners are admitted to anticipatory bail.

(Para 3, 4)

Indian Penal Code, 1860 (45 of 1860), Section 279, 304A – Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Acquittal of accused – Accidental death case – Rash and negligent driving -- Offending vehicle on inappropriate side -- Best incriminating evidence withheld by prosecution -- PW-1 and PW-2 assign the relevant incriminatory role to the convict -- Both were also required to candidly speak in their respective testifications, that the convict at driving the offending vehicle, had maneuvered it to the inappropriate side of the road, and, that thereupon, he had breached the standards of due care and caution, and, consequently, committed the charged offences -- Their respective testifications, does not reveal so -- Even the investigating officer as PW-5, despite his making a communication qua his drawing the site plan carried in Ex.PW5/E, rather not in his examination-in-chief, speaking with candor, about the afore factum of the offending vehicle being driven on the inappropriate side of the road, and, nor in the site plan, there are candid underlinings, with respect to the afore -- Benefit of doubt, is to be given to the convict – Impugned verdicts, as, drawn by the both learned Court below, upon the convict, are quashed, and, set aside.

(Para 10-14)

Indian Penal Code, 1860 (45 of 1860), Section 279, 304A – Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Acquittal of accused – Accidental death case – Rash and negligent driving -- Offending vehicle on inappropriate side -- Best incriminating evidence withheld by prosecution -- It was incumbent upon the investigating officer, to both in Ex.P-3 (drawing) and upon his stepping into the witness box make, vivid disclosures suggestive of the offending vehicle occupying the inappropriate side of the road -- However, both the afore are not communicated by him in either -- Benefit has to be given to the accused -- Revision allowed, impugned verdicts, as, drawn by the both learned Court below, upon the convict, are quashed, and, set aside.

(Para 11-18)

Indian Penal Code, 1860 (45 of 1860), Sections 354, 509 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 12 – Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – POCSO case -- Recall of minor witness and parents for cross-examination – Right of -- Victim is of tender age and she has been sought to be re-called along with her parents for the purpose of cross-examination -- It has to be borne in mind that a fair opportunity of defence has to be afforded to the petitioner/ accused particularly because the counsel was in some personal difficulty -- Recall of the witnesses appears to be essential for the just decision of the case – Victim and her parents can be compensated in terms of costs -- Re-call of witnesses allowed subject to payment of cost of Rs.10,000/- to each witness.

(Para 4, 5)

Indian Penal Code, 1860 (45 of 1860), Section 279, 337, 304-A – Death due to rash and negligent driving – Eye-witness deposition – Value of -- Injured witness PW-3 was admitted in hospital and has duly identified the accused person in court as the driver of the offending canter -- In a case under Section 304-A IPC it would be extremely difficult to disbelieve the eye version account of the accident victim when he has received injuries in the occurrence because he can have no possible motive to falsely implicate an accused who is unknown to him prior to the occurrence -- Nothing to suggest Injured had received injuries in some other occurrence and not in the accident in question -- Therefore, the version of PW-2 and PW-3 regarding the manner in which the occurrence took place as also the identify of the accused cannot be disbelieved -- Conviction order confirmed by ld. lower Appellate Court upheld -- Since the petitioner is a first time offender and the occurrence is almost 10 years old – Court modified the sentence and reduce it to a period of 1-1/2 years.

(Para 13-16)

Code of Criminal Procedure, 1973 (2 of 1974), Section 275(1) – Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Evidence through video conferencing -- Petitioner residing in Canada and not fit to travel – Statement of petitioner is very material for the proper adjudication of the case – No serious objection raised by respondents – One opportunity granted to get statement recorded through video conferencing.

(Para 4-7)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Rent laws – Evidence by power of attorney -- Power attorney holder who does not have personal knowledge of the facts cannot depose in respect of the matter qua which the principal alone would have personal knowledge and in respect of which the principal is to be cross-examined -- Rent note (Ex.P-1) was drafted by the husband of the respondent-landlady i.e. her power attorney holder – It cannot thus be said that the power attorney holder did not have knowledge about the facts.

(Para 13)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Denial of relationship of landlord-tenant – Assessment of arrears of rent – Ejectment of tenant -- Since the relationship of landlord and tenant itself was denied, which stand proved by way of evidence, there was no requirement for the Rent Controller to assess the rent and the petitioner-tenant would be liable for ejectment that the relationship of landlord and tenant stood proved and that the petitioner-tenant was in arrears of rent.

(Para 17)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141, 142, 145(2) – Cheque bounce case -- Striking off evidence of complainant -- Application of the petitioners/accused for striking off the evidence dismissed by Trial Court – Challenge to -- In case the complainant is required to be re-examined, the Court needs to pass a specific order either on the application u/s 145(2) of the N.I. Act or suo motu by the Court – Trial Court has allowed the complainant for re-examination suo motu, keeping in view the peculiar facts and circumstances of the case and the stakes involved therein in view of the enunciation of law laid down by the Supreme Court in Indian Bank Association’s case 2014 (5) SCC 590 and as such the application of the petitioners for striking off the evidence has rightly been dismissed -- If the complainant is not allowed in the case at hand to file detailed affidavit, then the purpose and purport of the provisions contained in the N.I. Act would be rendered to be a nullity and the same would definitely prejudice the indefeasible rights of the complainant – Petition dismissed.

(Para 1, 10-12)

Constitution of India, Article 227 -- Indian Evidence Act, 1872 (1 of 1872), Section 63, 65 – Secondary evidence – Revisional jurisdiction -- Trial Court, keeping in view the facts of the case permitted the plaintiffs to lead secondary evidence in order to prove the alleged first rent note -- Such permission is always granted subject to the existence and proof of the document -- Trial Court has only granted permission to lead secondary evidence – Court found it not appropriate to interfere in the exercise of its jurisdiction under Article 227 of the Constitution of India -- Petition dismissed.

(Para 1, 2)

Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Material witness given up – Additional evidence for – Witness had procured the CCTV footage from the camera installed in the building, where the occurrence in question took place -- It has been submitted that the prosecution would just take one day to examine the aforementioned witness and hence it would in no way hamper or delay the proceedings before the trial Court – Trial Court directed to record the evidence of PW-8/Constable, as prayed for -- However, prosecution shall ensure that the evidence of PW8/Constable is recorded and concluded within two days.

(Para 3-5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125(4) – Maintenance u/s 125 Cr.P.C. – Wife living in adultery – DNA of son not matched – Right of -- Maintenance declined primarily on the score that petitioner No.1/wife was living in adultery and petitioner No.3/son has not been born out of the cohabitation of petitioner No.1 and the respondent -- It is evident that the DNA profile of son of petitioner No.1 had not matched with the DNA profile of the respondent – Held, in such circumstances, no error can be found with regard to the observations of the Court below that petitioner No.3 has not been born from the cohabitation of petitioner No.1 and respondent and furthermore, petitioner No.1 was living in adultery – No illegality or irregularity in the impugned order declining the claim of maintenance which may warrant any interference – Revision dismissed.

(Para 8-15)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 – Agreement to sell – Proof of -- Evidence required -- Non-examination of scribe – Effect of -- Execution of the agreement to sell proved from the evidence of the plaintiff as well as by attesting witness -- It has been proved by stamp vendor that the defendant purchased the stamp paper and signed in his note book -- Defendant failed to impeach credibility of the aforesaid witness in the cross examination – Non-examination of the scribe cannot result in dismissal of the suit particularly when the plaintiff has already led sufficient evidence to prove the execution of the agreement to sell.

(Para 9)

B. Specific Relief Act, 1963 (47 of 1963), Section 14 – Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Suit for specific performance – Ground of delay in suit -- Readiness and willingness -- Plaintiff filed the suit after a period of 1 year and 5 months from the date fixed for registration of the sale deed -- Plaintiff has pleaded that he was always ready and willing -- Defendant was given opportunity to cross examine the witness, however failed to impeach his credibility – Both the Courts, on appreciation of evidence, have recorded a finding of the fact that the plaintiff is ready and willing to perform his part of the contract -- No ground to interfere in the impugned judgments is made out.

(Para 10-12)

A. Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Question of title – Requirement of – In suit for grant of permanent injunction, where the main thing to be seen is as to whether the plaintiff has been in established possession of the suit land -- Question of title is not to be decided in such type of suit -- Nevertheless, the document of title to the suit property produced in evidence on behalf of any of the parties can certainly be taken into consideration to find out the nature of possession.

(Para 10)

B. Code of Civil Procedure, 1908 (v of 1908), Section 151 -- Exhibition of documents – Replacement by original – Permissibility of -- Plaintiff placed on record copy of the sale deed, duly attested by Notary Public, which had been exhibited, though, it was subject to objection with regard to mode of proof and admissibility raised on behalf of the defendant -- Plaintiff sought to place on record the original sale deed and to exhibit it just to remove the technical objection -- Trial Court considering all the aspects of the case, exercising powers u/s 151 CPC had allowed that application -- Such exercise of power by the trial Court can certainly be not termed as arbitrary or perverse, rather, it comes out that such power has been exercised in a judicious manner for proper adjudication of the controversy between the parties.

(Para 10)

C. Code of Civil Procedure, 1908 (v of 1908), Section 151 -- Inherent power of civil Court – Nature of -- It is a very vast power, which can be exercised by the Court for achieving ends of justice and to prevent abuse of process of the Court -- Unnecessary interference in exercise of such power by the trial Court is uncalled for.

(Para 11)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 154 – First Information Report/ FIR – Nature of -- FIR is certainly the starting point of the investigation, but it is well within the rights of the prosecution to produce witness statements as they progress further into the investigation and unearth the specific roles of accused persons -- FIR as is known, only sets the investigative machinery, into motion.

(Para 14)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 120B, 147, 148, 324 – Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Conviction in murder case – Test Identification Parade/ TIP -- Two courts have concurrently concluded that appellant’s name not being specifically mentioned in the FIR, would not justify his acquittal as he was specifically identified by PW2, PW4, & PW6 -- In view of his positive identification by the eye witnesses, the TIP not being conducted, was held to be immaterial -- Eye witnesses here have ascribed the same specific role to the appellant and narrated the events in same chronology, without material discrepancies – Court cannot lose sight of the fact that this case involves multiple persons attacking in a group with deadly weapons and it is not reasonable to expect recollection of every minute details by the eyewitnesses -- Prosecution has produced cogent evidence of the appellant being part of a conspiracy by all the accused in the assault, which led to the death of BM and injuries to PW1 and others -- As such, the conviction of the appellant by the trial court, as upheld by the High Court, cannot be faulted.

(Para 15-18)

C. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification Parade/ TIP – Requirement of -- Identity of the appellant/accused was known to the witnesses and he was specifically identified by PW1, and PW2 as the person who wielded the sword and inflicted the injuries -- TIP was unnecessary in the case -- In the face of appellant’s such identification by name in the testimony of the eye witnesses, it can, be safely concluded that the failure to conduct the TIP for the appellant will not vitiate his conviction.

(Para 17)

A. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification parade/ TIP – Object of -- Purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused.

(Para 9)

B. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Indian Penal Code, 1860 (45 of 1860), Section 395, 397 – Dacoity case -- Test Identification parade/ TIP -- FIR was registered against unknown persons -- Case of the prosecution solely rests on identification in the TIP -- A test identification parade u/s 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence -- Mere identification in the test identification parade cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification.

(Para 9)

C. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification parade/ TIP – Onus to Prove -- Onus lies on the prosecution to establish that the TIP was held in accordance with law -- It is only after the prosecution prima facie establishes a valid TIP having been held, the question of considering any objection to the same arises -- If the prosecution has failed to establish that a TIP was properly held by examining the witnesses to the same, there is nothing for the accused to disprove.

(Para 10)

D. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Indian Penal Code, 1860 (45 of 1860), Section 395, 397 – Dacoity case -- Test Identification parade/ TIP -- Magistrate conducted the TIP -- Magistrate has not been examined -- No explanation is forthcoming why the Magistrate was not examined -- Only evidence available is that of PW-4 the SHO that during the investigation the TIP was held in the District Jail and he identifies the proceedings in the Court -- Identification of the proceedings is irrelevant as he could not have been present during the TIP -- There cannot be repeated TIPs till such time that the prosecution is successful in obtaining identification of the accused -- PW-1 who is the mother of PW-2, and both of them are stated to have been present in the house when the occurrence took place, did not identify any of the appellants -- Identification by a minor boy and that too in the 3rd and 4th rounds insofar as the present appellants are concerned -- In the nature of the TIP held it is completely non est in the law and the benefit has to go to the accused.

(Para 11,12)

A. Indian Evidence Act, 1872 (1 of 1872), Section 118 -- Child witness – Reliability of -- Criminal jurisprudence does not hold that the evidence of a child witness is unreliable and can be discarded -- A child who is aged about 11 to 12 years certainly has reasonably developed mental faculty to see, absorb and appreciate -- Evidence of a child witness alone can also form the basis for conviction -- Mere absence of any corroborative evidence in addition to that of the child witness by itself cannot alone discredit a child witness -- More so when he is the sole witness, a heightened level of scrutiny is called for.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 313 – Statement u/s 313 Cr.P.C. – Value of -- Allegation that the appellant stuffed cloth in the mouth of the deceased was serious and specific against her – Held, in the absence of any question having been put to her in this regard u/s 313 Cr.P.C. the appellant has been seriously prejudiced in her defence -- Procedure u/s 313 CrPC is but a facet of the principles of natural justice giving an opportunity to an accused to present the defence -- Burden of proof on an accused in support of the defence taken u/s 313 CrPC is not beyond all reasonable doubt as it lies on the prosecution to prove the charge -- Accused has merely to create a doubt -- It will be for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused.

(Para 9, 10)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Indian Evidence Act, 1872 (1 of 1872), Section 118 – Dowry death/ Murder – Acquittal of Jethani -- PW-2/ Child witness was examined nearly one year after the occurrence -- Court has, therefore, to satisfy itself that all possibilities of tutoring or otherwise are ruled out and what was deposed was nothing but the truth -- According to PW-2, the appellant stuffed cloth in the mouth of the deceased, thereafter others tied her up and set her on fire leading to 95% burns -- He states that after the deceased had suffered burn injuries he had seen the entire scenario including the room where the burnt articles were kept including that he was a witness to his sister being put in a vehicle while being taken to the hospital -- He then states that the deceased in that condition was speaking -- At no stage has the witness deposed that the cloth was taken out from her mouth -- It stands to reason that if cloth was stuffed in the mouth of deceased she would have been unable to speak -- PW-8/ Doctor deposed that there was no cloth recovered from the mouth of the deceased -- He states that the mouth of the deceased was closed, the jaws were shut, no cloth was present in the mouth but burnt cloth was present on the whole body starting from the wrist -- More crucially he states that all the 32 teeth were intact – Blisters were present at various parts of the body but he does not talk about any blister being present in the mouth -- No injuries of any nature have been found inside the mouth neither has the cloth been found – Court not satisfied that the evidence of PW-2 attributing a specific role to the appellant is of such a sterling quality so as to inspire confidence in the court to base the conviction on the sole evidence of a child witness -- Appellant was a daughter-in-law like the deceased herself -- Nature of the evidence makes it highly unlikely that she would have engaged in such actions -- Benefit of doubt in the circumstances has to be given to the appellant.

(Para 7, 11-13)

Code of Criminal Procedure, 1973 (2 of 1974), Section 311 -- Indian Evidence Act, 1872 (1 of 1872), Section 62, 65-B(4) -- Exhibition of documents – Objection to – Sustainability of -- Court is to visualize as a determinative factor that whether the evidence in question is essential for just decision of the case or not -- Trial cannot be held up on objection at the time of tendering of documents in evidence – Document had already been exhibited in the statement of PW-14 at the time of production of certificate u/s 65-B of the Act -- Reasonable opportunity has been given to the defence counsel to examine the witness -- Having acquiesced the opportunity by cross-examining the witness, the petitioner cannot turn around and object to the tender made by the witness.

(Para 10-13)

Indian Penal Code, 1860 (45 of 1860), Section 302, 306, 328, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Challan u/s 328, 306, 34 IPC – FIR as dying declaration -- Framing of charges u/s 302 IPC – Challenge to -- FIR was lodged at the instance of the deceased himself and which in a way assumes the character of a dying declaration which is on a very higher pedestal as far as the evidentiary value is concerned -- Further it is not disputed that the cause of death was poisoning -- In these circumstances it cannot be said that any error has been committed by the trial Court at the stage of framing of charges -- Meticulous examination of the evidence is not required at the time of framing of charges -- Revision petition dismissed.

(Para 2-5)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case – Daily diary report – Evidential value --Contends that as per daily dairy report, the accident took place as a stray dog suddenly came on the road and therefore, the driver of the vehicle cannot be said to be negligent – Held, daily dairy report was entered on the statement of respondent No.6, who was, at the relevant time, driving the motorcycle he cannot be expected to admit his negligence – In support of the claim petition, eyewitness has appeared before the Court to depose, he has been thoroughly cross examined by putting searching questions -- His deposition has been found creditable by the Tribunal -- Hence, the contention is without substance.

(Para 4-6)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case – Pleadings of negligence – Requirement of -- Contention that deceased was not wearing helmet while riding on the pillion of a motorcycle, hence amount payable by the insurer is liable to be reduced on account of contributory negligence of the deceased – Held, Insurance company has neither laid any foundation in the pleadings nor led evidence in support thereof -- Insurance company while filing the written statement did not plead that deceased was not wearing the helmet -- Still further, the insurance company did not lead any evidence to prove this fact and also failed to raise this point before the Tribunal -- Still further, insurance company has failed to draw the attention of the Court to the cross examination of eye-witness on this aspect -- In such circumstances, the argument of insurance company do not deserve acceptance.

(Para 4, 7)

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Indian Evidence Act, 1872 (1 of 1872), Section 45 -- Murder case – Doctor’s evidence -- Entire evidence as a whole is required to be considered with the other evidence on record -- Mere one sentence here or there and that too to the question asked by the defence in the cross-examination cannot be considered standalone -- What is stated by the Doctor/Medical officer can at the most be said to be his opinion, he is not the eye-witness to the incident -- PW1 & PW2 have categorically stated that the other accused inflicted the blows by knives -- Same is supported by the medical evidence and the deposition of PW2 -- Injuries nos. 2 to 8 are sufficient by the sharp cutting weapon -- Injuries nos. 2 to 8 are on different parts of the body which show the intention and conduct on the part of the other accused A2 & A3 -- Therefore, they are rightly convicted for the offence punishable u/s 302 IPC with the aid of Section 34 IPC.

(Para 13)

B. Indian Evidence Act, 1872 (1 of 1872), Section 8 – Motive -- There was a prior long-time enmity between the deceased and the accused-A1 -- Even the deceased was also facing trial for the offence u/s 307 IPC at the instance of A1 -- Defence has failed to prove any circumstances by which it can be said that they are falsely implicated in the case -- Prosecution has been successful in proving the motive.

(Para 14)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Murder – Conviction -- There is a direct evidence against A-1, using the gun and shooting the deceased -- Therefore, he can be convicted for the offence punishable u/s 302 IPC, without the aid of Section 34 IPC.

(Para 15)

A. Indian Penal Code, 1860 (45 of 1860), Section 304-B – Dowry death – Object of -- It endeavors to address those situations wherein murders or suicide are masqueraded as accidents.

(Para 22)

B. Indian Penal Code, 1860 (45 of 1860), Section 304-B – Indian Evidence Act, 1872 (1 of 1872), Section 113-B – Dowry death – Presumption of -- Doctor found the smell of kerosene oil on the body of the deceased who had suffered 85% burn injuries -- As the death was relatable to burn injuries within seven years of marriage, it clearly satisfies the first two ingredients of the offence – Evidence, when the brother of the deceased visited her in the matrimonial house after one month of marriage on the occasion of Raksha Bandhan, the deceased had disclosed that the accused, husband and mother-in-law, used to physically harass her on the account of bringing insufficient dowry -- Furthermore, the accused persons had made a specific demand of a scooter -- She was brought back to her paternal house where this fact was disclosed to father -- Only a month prior to her death, the deceased had returned to her matrimonial house -- However, the accused still used to harass the deceased for dowry -- Aforesaid fact was revealed by the deceased to her father, when she had come to visit him -- Chain of circumstances proves that there existed a live and proximate link between the instances of demand of dowry and the death of the deceased -- Since the ingredients of Section 304-B, IPC stand satisfied, the presumption u/s 113-B, Evidence Act operates against the appellants, who are deemed to have caused the offence specified u/s 304-B of IPC.

(Para 23-28)

C. Indian Penal Code, 1860 (45 of 1860), Section 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113-A – Suicide by wife – Presumption of -- For the offence u/s 306, IPC the prosecution needs to first establish that a suicide has been committed -- Prosecution must also prove that the person who is said to have abetted the commission of suicide, has played an active role in the same -- With respect to this latter requirement, Section 113-A, Evidence Act creates a presumption against the husband and/or his relative with respect to the abetment of suicide of a married woman, under certain conditions -- Not going into the other conditions, a perusal of the provision indicates that such presumption shall be attracted only if the factum of suicide has been established by the prosecution first.

(Para 33)

D. Indian Penal Code, 1860 (45 of 1860), Section 304-B – Indian Evidence Act, 1872 (1 of 1872), Section 113-B – Dowry death – Presumption of -- Rebuttal of -- Section 304-B, IPC read with Section 113-B, Evidence Act can be summarized below:

i. Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

ii. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused.

iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

iv. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.

v. Due to the precarious nature of Section 304-B, IPC read with 113-B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.

vi. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.

vii. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act.

viii. Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.

ix. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused.

x. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics.

xi. Apart from the above, the presiding Judge should follow the guidelines laid down by this Court while sentencing and imposing appropriate punishment.

xii. Undoubtedly, as discussed above, the menace of dowry death is increasing day by day. However, it is also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach.

(Para 36)

A. Indian Penal Code, 1860 (45 of 1860), Section 420 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 154 -- Delay of six years in lodging the FIR – Explanation of delay – First informant deposed that he came to know that the petitioner-accused is a fraudulent person within 2/3 months of making payment -- Thus, once the first informant had come to know that the petitioner would not take steps to send his son to Italy or return the amount allegedly received, there was no occasion to wait for a period of six years before registration of the FIR -- Neither the first informant in his deposition has stated that there were several meetings for return of the amount nor detail thereof has been provided -- Hence, the prosecution has failed to explain the delay – Conviction order set aside.

(Para 17, 24)

B. Indian Evidence Act, 1872 (1 of 1872), Section 19, 21 -- Admission – Reliance upon -- It is well settled that before the alleged admission of the accused is made the basis to convict the accused, it is incumbent for the court to examine as to whether such admission is clear and categoric -- If the answer to the aforesaid question is in negative, it would not result in conviction of accused.

(Para 18)

C. Indian Penal Code, 1860 (45 of 1860), Section 420 -- Indian Evidence Act, 1872 (1 of 1872), Section 8, 19, 21 -- Admission – Mens-rea -- Petitioner while cross examining the first informant had given him suggestion that the agreement was executed at the Police Station -- Such suggestion, in the facts of the case, cannot be read as admission of the offence -- As per the case of the prosecution, in the year 2009, the amount of ? 1,00,000/- was paid to the petitioner, whereas the agreement provides for return of ? 50,000/- only -- It is against normal prudence -- Still further, if it is accepted that such suggestion does amount to admission, still the agreement does not prove that the petitioner has deceitfully induced the first informant to part with ? 1,00,000/- or the petitioner had “mens rea” at that time -- Conviction order set aside.

(Para 18, 24)

C. Indian Penal Code, 1860 (45 of 1860), Section 420 -- Indian Evidence Act, 1872 (1 of 1872), Section 3 – Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Proved -- Standard of proof -- In civil case the plaintiff is required to prove its case by a preponderance of evidence whereas in a criminal case, the prosecution is required to prove its case beyond shadow of reasonable doubt -- No doubt, ordinarily, the presiding judges are simultaneously required to decide civil as well as criminal cases and hence, the distinction gets overlooked -- However, it is expected from them that before convicting any accused, the presiding judges should keep in mind the important distinction -- Prosecution miserably failed to satisfy the aforesaid test -- Revision allowed, the judgments passed by both the Courts below, are set aside.

(Para 24)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case -- Manner of accident disputed – Counsel failed to draw the attention of the Court to such defence in the written statement and any discussion before the Tribunal on this aspect -- Driver of the offending vehicle did not appear in evidence, who could have deposed about the manner in which the accident took place -- Counsel also failed to draw attention of the Court to the cross examination of PW2, eye-witness on this aspect – Court  expresses inability to accept the argument.

(Para 7)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case -- Salary slip show deceased drew total salary of Rs.76,163/- -- Tribunal after deducting the amount towards AFPP fund subscription, AFPP refund and the amount of income tax came to income of the deceased as Rs.63,182/- per month, of which annual income works out to Rs.7,58,184/- per annum – Deceased was 39 years of age at the time of his death, therefore, 50% addition of actual salary on account of future prospects made out -- Tribunal applied 1/4th deduction towards personal expenses of the deceased, who has left behind four dependents -- Tribunal has arrived at a figure of Rs.8,52,957/- as annual dependency -- No error to interfere in the award passed by the Tribunal.

(Para 8, 9)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 163-A -- Compensation in motor vehicle accident case -- Car was on hire – Pleadings of – Non-framing of issue – Effect of -- No evidence that the car was being plied on hire at the relevant time -- Insurance Company did not plead this fact in its written statement -- Consequently, the Tribunal did not frame any issue on this aspect – Held, Insurance Company has failed to lay any foundation by pleading the aforesaid fact and thereafter, corroborate the same by leading any evidence -- Hence, the contention is rejected.

(Para 8)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 163-A -- Seven persons were travelling in the vehicle whereas the registered seating capacity of the vehicle is of five only – Held, Insurer is liable to the extent of persons permitted under the carriage permit – Vehicle was permitted to be occupied by five persons, only five claim petitions were filed -- No ground to admit the appeals. Anjana Shah’s (2007) 7 SCC 445 & KM Poonam’s case (2011) 2 PLR 477 relied.

(Para 9, 10)

A. Specific Relief Act, 1963 (47 of 1963), Section 14 -- Agreement to sell – Property already mortgage with bank – Criminal proceedings initiated – Effect on civil rights -- Merely because the plaintiff had also preferred criminal proceedings on the ground that the accused had taken bank loan from Bank but had entered into an agreement with him to sell the property, and he had been cheated, would not be a ground to deny the benefit of the decree to him – Appellant/accused acquitted by giving benefit of doubt in criminal proceedings – Suit decreed by civil court, upheld.

(Para 1, 13)

B. Evidence beyond Pleadings – Permissibility of -- It is settled principle that evidence beyond the pleadings cannot be taken into consideration.

(Para 17)

C. Specific Relief Act, 1963 (47 of 1963), Section 14, 16(1)(c) – Specific performance of agreement -- Readiness and willingness – Earnest money and additional amount of Rs.8.5 lacs paid -- Plaintiff prepared D.D. of Rs.13,50,000/-, balance consideration before the cut-off date and purchased stamp papers worth Rs.1,54,000/- -- Filing of the suit was also within a month and a half after serving a legal notice asking the appellant to execute the sale deed -- All these factors combined would go on to show that the Courts below have justifiably decreed the suit in favour of the plaintiff.

(Para 2, 18)

D. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Evidence law -- Execution of agreement to sell – Willingness of -- Wife of the appellant opposed the agreement by approaching the police -- Appellant himself applied for NOC to sell the property --  These factors would go on to show that the agreement had been entered into for the sale of the said property -- Almost 1/3rd of the amount had been received in advance and therefore, it would not lie in the mouth of the appellant to contend that the same had not been executed by him willingly.

(Para 19)

E. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Misrepresentation – Undue influence – Proof of – It is settled principle that allegations of misrepresentation or undue influence have to be given in full and precise particulars and then duly proved under Order 6 Rule 4 CPC.

(Para 20)

A. Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Proof of Will – Onus of – Framing of issue – Onus was upon the plaintiff to get the issues framed rightly if he was wanting to set up the plea that the onus of the Will should have been upon the propounder.

(Para 7)

B. Indian Succession Act, 1925 (39 of 1925), Section 61 -- Son living separately – Exclusion of son in Will -- Admission of the plaintiff that he was residing separately for the last 35 years after his marriage would be reason enough for the testator to keep him out of the zone of succession.

(Para 7)

A. Indian Penal Code, 1860 (45 of 1860), Sections 302, 364A, 376, 216, 120B – Indian Evidence Act, 1872 (1 of 1872), Section 11, 106 -- Murder -- Rape -- Kidnapping -- Out of three eye-witnesses, two witnesses, turned hostile and did not support the case of the prosecution -- Both these witnesses are close relations of the victim and there is nothing on record to indicate that they were either put under any pressure or that there was any element of suspicion -- Both these witnesses were categorical that the persons who kidnapped the victim were not before the Court in the capacity as the accused – Third witness-informant, the father of the victim, reporting made by this witness, based on which the crime was registered neither shows that he was an eye-witness to the occurrence nor does it disclose that the identity of the accused who had kidnapped the victim was in any way known at the stage when the occurrence took place -- Thus, all three witnesses who were claimed to be the eye-witnesses to the occurrence and on whose testimonies, reliance was placed by the prosecution, are of no help.

(Para 20, 21)

B. Indian Penal Code, 1860 (45 of 1860), Sections 302, 364A, 376, 216, 120B – Indian Evidence Act, 1872 (1 of 1872), Section 11, 106 -- Murder -- Rape -- Kidnapping -- Circumstantial evidence – Though the post-mortem report discloses that the victim was sexually assaulted, the FSL Report on record does not establish any connection of the accused with the sexual assault on the deceased victim -- Dead body of the victim was found lying in an open field -- Record is again not clear as to when the present appellants were arrested and how and in what manner their disclosure statements led to the recovery of the dead body – There are of course circumstances like recovery of clothing apparel as well as tiffin box etc. belonging to the victim -- However, such recoveries by themselves, in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt -- Not only those circumstances are not conclusive in nature but they also do not form a cogent and consistent chain so as to exclude every other hypothesis except the guilt of the appellants -- Held, prosecution has not been proved beyond reasonable doubt, and the appellants are entitled to the benefit of doubt -- Conviction and sentence set aside.

(Para 24-27)

Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 11, 106 -- Murder – Circumstantial evidence – Appellant was arrested in Copyright  case and was brought to the Office of the Video Piracy Cell and was kept in custody in the same room as that of the Head Constable (deceased) – Appellant made an attempt to escape from the custody by attacking the deceased on his head with an iron stool causing his death, however, he was caught by PW-1 SI and PW-2 HC while attempting to escape -- Evidence in its entirety clearly shows that the offence had taken place at the relevant point of time the accused and the deceased were alone inside the premises of the office of the Video Piracy Cell -- Under the above circumstance, it was for the accused to explain under what circumstances the deceased was dead – Appellant has failed to offer any cogent explanation in this regard -- Chain of circumstances has been completely proved and established beyond reasonable doubt – Appeal against conviction dismissed.

(Para 1, 2, 12, 13)