A. Indian Evidence Act, 1872 (1 of 1872), Section 9 – Code of Criminal Procedure, 1973 (2 of 1974), Section 162 -- Test Identification Parade – TIP -- Principles which have emerged from the precedents of Supreme Court can be summarized as follows:

(i) The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye-witness to the crime;

(ii) There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP;

(iii) Identification parades are governed in that context by the provision of Section 162 of the CrPC;

(iv) A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held;

(v) The identification of the accused in court constitutes substantive evidence;

(vi) Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;

(vii) A TIP may lend corroboration to the identification of the witness in court, if so required;

(viii) As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration;

(ix) Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;

(x) The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;

(xi) Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and

(xii) The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.

(Para 36)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 9 – Code of Criminal Procedure, 1973 (2 of 1974), Section 162 – Acquittal in murder case – Serious infirmity in evidence -- Refusal to go Test Identification Parade/ TIP – Effect of -- Identification in the course of a TIP is intended to lend assurance to the identity of the accused -- Finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade -- Presence of the alleged eye-witnesses at the scene of the occurrence is seriously in doubt -- Ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities -- Hence, in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence -- Prosecution has failed to establish its case beyond reasonable doubt -- Appellants are, hence, entitled to the benefit of doubt and are acquitted of the offence.

(Para 39,40)

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Murder case -- Acquittal of appellant – Conviction by Trial Court affirmed by High Court – Challenge to -- Test Identification parade unworthy  – Forensic evidence withheld – Identification of accused by wearing of lungi – Un-natural behaviour of eye-witness -- Principle in criminal law which propagates that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to their innocence, the view favourable to the accused should be adopted -- Infirmities in the prosecution evidence, made out a case for interference -- Appeal allowed, judgment of trial Court as also of High Court set aside.

(Para 1, 8-16)

B. Indian Evidence Act, 1872 (1 of 1872), Section 114(g) – Adverse inference – Co-accused acquitted -- No chemical analyst report, relevant forensic evidence for the seized shirt of co-accused withheld by the prosecution -- When such vital forensic evidence is kept away, an adverse inference will have to be drawn against the prosecution.

(Para 8.2)

C. Indian Evidence Act, 1872 (1 of 1872), Section 9 – Code of Criminal Procedure, 1973 (2 of 1974), Section 162 -- Test Identification Parade – Presence of Police – Identity by lungis -- Test Identification evidence (YIP) is not substantive piece of evidence but can only be used, in corroboration of statements in Court -- Major flaw was the presence of the police during the exercise, resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section 162 of the Code -- Pahchan patra of the TIP mentions that three lungis were presented, the related witness was shown only one lungi for identification -- Such infirmities would render the TIP unworthy of acceptance, for supporting the prosecution.

(Para 10,11)

D. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Murder case -- Unnatural behaviour of the eye-witness – He was known to the deceased and claimed to have seen the assault -- He did not take any pro-active steps in the matter to either report to the police or inform any of the family members -- Such conduct of the eyewitness is contrary to human nature – His testimony deserves to be discarded.

(Para 14)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 53, 67 – Code of Criminal Procedure, 1973 (2 of 1974), Section  161, 164, 173 – Indian Evidence Act, 1872 (1 of 1872), Section 25 – Constitution of India, Article 14, 20(3) and 21 – NDPS case -- Statement/ Confession made before officers under NDPS Act –

-- Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not ?

-- Whether the statement recorded by the investigating officer u/s 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer?

-- Whether such a statement is to be treated as statement u/s 161 of the Code or it partakes the character of statement u/s 164 of the Code? –

To arrive at the conclusion that a confessional statement made before an officer designated u/s 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India – Judgment in Kanhaiyalal (2008 (4) SCC 668) then goes on to follow Raj Kumar Karwal (1990 (2) SCC 409) do not state the law correctly, and are thus overruled -- Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled – Judgments of Noor Aga (2008 (16) SCC 417) and Nirmal Singh Pehlwan’s case (2011) 12 SCC 298 are correct in law. Held,

(i) That the officers who are invested with powers u/s 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded u/s 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

(Para 2, 152-155)

(Majority judgment)

Reference answered.

Provisions of the Cr.P.C do not apply to an inquiry/investigation under the NDPS Act except to the limited extent provided in Section 50(5) and 51 -- Section 173 of the Cr.P.C has not been made applicable to the NDPS Act -- Judgment in Raj Kumar Karwal (1990 (2) SCC 409), which has reaffirmed the verdict of three Constitution Benches does not require reconsideration -- Nor does Kanhaiyalal (2008 (4) SCC 668) require reconsideration.

(Para 270-271)

(Minority judgment)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 4 -- Indian Evidence Act, 1872 (1 of 1872), Section 138 -- Suit for recission of agreement to sell – Plaintiff examined himself as PW-1 -- Cross-examination was being deferred on request of counsel for defendant – Cross-examination ordered to be treated as 'Nil' by impugned order -- Held, courts should be liberal in granting the prayer sought unless serious injustice or irreparable loss is likely to be caused to the other side or that the prayer sought is not a bona fide one -- A party cannot be refused the just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure -- Petitioner cannot be made to suffer for not cross-examining PW 1 because the same is necessary for the just decision of the suit -- Impugned order set aside and one effective opportunity is granted to the petitioner to cross-examine PW 1 subject to costs of Rs.10,000/-.

(Para 2-10)

Indian Penal Code, 1860 (45 of 1860), Section 302 – Arms Act, 1959 (54 of 1959), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 134 -- Murder case -- Conviction by Trial Court affirmed by High Court -- Sole eye-witness – Reliance upon -- Acquittal of accused -- There are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature – It would not be safe to convict the appellants upon the uncorroborated testimony of the sole eye witness -- Incident does not appear to have happened in the manner in which the prosecution wants the Court to believe it had happened -- Since, the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt -- Impugned orders of the Courts below set aside -- Appellants are directed to be released forthwith unless required in any other case.

(Para 32-35)

A. Testimony of witness – Previous enmity – Effect of -- If the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony -- In fact the history of bad blood gives a clear motive for the crime -- Therefore this aspect does not, aid the defence in the present matter.

(Para 22)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 148, 149 –Conviction in murder -- Some witness turned hostile -- But there are enough material evidence and trustworthy testimonies which clearly support the case against the accused and the prosecution need not fail on this count alone -- Some witness may not support the prosecution story for their own reasons and in such situation, it is necessary for the Court to determine whether the other available evidence comprehensively proves the charge -- In the case, prosecution version is cogent and supported by three eyewitnesses who have given a consistent account of the incident -- Their testimonies are corroborated by the medical evidence – Held, hostile witnesses will not affect the conviction of the appellants.

(Para 23, 24)

A. Indian Penal Code, 1860 (45 of 1860), Section 96, 100 – Murder case -- Plea of private defence -- Occurrence of 7.10.2000 -- No evidence produced by the accused to show that the complainant party was the aggressor -- No witness was examined to prove that it was the complainant party which opened the attack – Version of accused come on 9.10.2000 -- Prosecution version, which is credible and fully substantiated had been lodged immediately after the incident -- It clearly establishes that the accused were the aggressors.

(Para 35)

B. Indian Penal Code, 1860 (45 of 1860), Sections 302, 148, 149 -- Murder case -- Injuries suffered by accused – Explanation of -- No credible explanation had been given by the prosecution as to the injuries suffered by the accused, however, it is well settled that merely for non-explanation of the injuries suffered by the accused, the evidence of the prosecution witnesses cannot be rejected -- Burden can be placed on the prosecution only if the injuries sustained by the accused are serious -- Non-explanation of the injuries of the accused would not be fatal to the prosecution.

(Para 37-39)

C. Indian Penal Code, 1860 (45 of 1860), Sections 302, 148, 149 -- Murder case – Evidence of lalkara -- It is well settled that evidence of exhortation/lalkara is in the very nature of things a weak piece of evidence -- There is often a tendency to implicate some person in addition to the actual assailant by attributing to him a lalkara -- False implication cannot be ruled out – Appellant/co-accused giving lalkara, accordingly acquitted giving him the benefit of doubt.

(Para 45-47)

D. Indian Penal Code, 1860 (45 of 1860), Sections 302, 148, 149 -- Murder case -- Common intention – Two c-accused were alleged to be armed with sotas -- No injury has been attributed to them nor has any weapon been recovered at their instance --  Merely because of their presence at the time of the occurrence, it cannot be said that they shared common intention with the accused to cause death of victim – Trial Court acquitted giving them benefit of doubt -- There is no reason to interfere with the well reasoned findings of the Ld. Trial Court.

(Para 49)

A. Indian Evidence Act, 1872 (1 of 1872), Section 11 -- Circumstantial evidence – Chain of circumstances -- In case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

(Para 5.4)

B. Indian Evidence Act, 1872 (1 of 1872), Section 11 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 100(4), 166 (3)(4) – Search in violation of Section 100(4) and 166(3)(4) of Cr.P.C -- Circumstantial evidence – Role of -- Investigaiton officer received a secret information that one jeep is lying in abandoned condition on the Chandigarh road and though the distance was around 300 kilo meters, he straightway went to Chandigarh and recovered the jeep in the presence of Bhunter people brought by him and did not follow the procedure as required to be followed under Section 166 (3 & 4), Cr.P.C -- Even he did not comply with the provisions of Section 100 (4) Cr.P.C -- Non-following of the aforesaid provisions alone may not be a ground to acquit the accused -- However, considering the overall surrounding circumstances and in a case where recovery is seriously doubted, non-compliance of the aforesaid play an important role.

(Para 7)

Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will -- Attesting witness – Non-examination of -- One can appreciate that the plaintiff would not have been able to get defendant depose in his/her favour but it remains unexplained as to why the plaintiff could not examine the other attesting witness -- Testimony of the scribe cannot be substituted for testimony of an attesting witness – Court find no reason differ with concurrent finding that, plaintiff is unable to prove the genuineness of the Will.

(Para 8)

Indian Evidence Act, 1872 (1 of 1872), Section 63, 65 -- Secondary evidence -- One of the pre-conditions for leading additional evidence is that the party must establish that the original is lost, destroyed or unavailable -- Document sought to be exhibited is a public document --  DWs stated that attested copy has been brought on record but original is not available and only a photocopy is available on the record – Held, these statements would be sufficient to satisfy the ingredient of Section 65 (c) of the Evidence Act -- Mere exhibition of documents by secondary evidence perse, does not amount to proof of its execution -- Photostat copies of the documents are required to be proved in terms of their execution -- Genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.

(Para 12-15)

A. Constitution of India, Article 226, 311 – Departmental enquiry – Judicial review – Nature of – Power of judicial review discharged by Constitutional Courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority – Judicial review is an evaluation of the decision-making process, and not the merits of the decision itself – Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion – It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.

(Para 25)

B. Constitution of India, Article 226, 311 – Disciplinary proceedings -- Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority – Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice -- Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.

(Para 28)

C. Constitution of India, Article 226, 311 – Indian Evidence Act, 1872 (1 of 1872), Section 165 -- Disciplinary proceedings -- Objection on role of Enquiry officer – It must be recognized that, under Section 165, Evidence Act, judges have the power to ask any question to any witness or party about any fact, in order to discover or to obtain proper proof of relevant facts -- While strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth -- Indeed, it may be necessary to do such direct questioning in certain circumstances -- No specific malice or bias has been alleged against the enquiry officer, and even during the enquiry no request had been made to seek a replacement; thus, evidencing how these objections are nothing but an afterthought.

(Para 31)

D. Constitution of India, Article 226, 311 – Departmental enquiry – Allegation of corruption – Non-action in criminal case -- Dismissal from service -- After investigation, the CBI though did not find adequate material to launch criminal prosecution but recommended major disciplinary action – In a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances -- Appellant’s contention that he should be exonerated in the present proceedings as no criminal chargesheet was filed by the CBI after enquiry, is liable to be discarded – Employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding.

(Para 33-35)

E. Constitution of India, Article 226, 311 – Allegation of corruption -- Departmental enquiry – Dismissal from service – Interference in -- Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked -- Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society -- Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly – Dismissal order, upheld.

(Para 1, 36)

Indian Penal Code, 1860 (45 of 1860), Section 304 Part II – falsus in uno, falsus in omnibus – Applicability of -- Contention that once the witnesses had been disbelieved with respect to the co-accused, their testimonies with respect to the present accused must also be discarded -- In effect, relying on the legal maxim “falsus in uno, falsus in omnibus”, which Indian Courts have always been reluctant to apply -- Trial Court gave specific reasons for disbelieving the testimony of the witnesses with respect to the co-accused, and extending the benefit of doubt to them, while convicting the appellant on the strength of the evidence against him – Court found no infirmity in the approach of the Trial Court -- Conviction u/s 304 Part II upheld. Nisar Ali’s case AIR 1957 SC 366 and Rohtas’s case (2019) 10 SCC 554 relied.

(Para 1, 11-15)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 2(h)(o), 35, 41, 42, 43, 50, 44, 49, 51, 52(3), 53, 54, 55, 57, 57A, 58, 67, 68 -- Code of Criminal Procedure, 1973 (2 of 1974), 100,154,156, 157, 173 -- Indian Evidence Act, 1872 (1 of 1872), Section 114(e) – Constitution of India -- Article 21 – NDPS matter – Fair Investigaiton -- Informant and Investigator are same – Effect of -- Observations of Supreme Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused by Supreme Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts -- It cannot be said that in the aforesaid decisions, Supreme Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal.

(Para 12(I))

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 2(h)(o), 35, 41, 42, 43, 50, 44, 49, 51, 52(3), 53, 54, 55, 57, 57A, 58, 67, 68 -- Code of Criminal Procedure, 1973 (2 of 1974), 100,154,156, 157, 173 -- Indian Evidence Act, 1872 (1 of 1872), Section 114(e) – Constitution of India -- Article 21 – NDPS matter -- Informant and Investigator are same – Effect of -- In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor -- Question of bias or prejudice would depend upon the facts and circumstances of each case -- Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of Supreme Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.

(Para 12(II))

Indian Penal Code, 1860 (45 of 1860), Sections 379-A, 511 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 374 – Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Conviction for attempt to snatching handbag -- Appeal against conviction -- First informant failed to identify the appellant in the Court and made a significant improvement while deposing in the Court -- Merely because the mobile phone belonging to the appellant was taken into possession by the first informant and handed over to the police does not prove the involvement of the appellant – Onus to prove its case is on the prosecution – On the disclosure statement of the appellant, the motorcycle was recovered -- Mere recovery of the motorcycle does not connect the appellant to the offence, particularly when the first informant never identified the motorcycle -- Public Prosecutor did not get the motorcycle identified either from the first informant or the alleged eye witness -- Appellant is entitled to the benefit of doubt -- Judgment of conviction followed by the order of sentence is set aside.

(Para 10-14)

Indian Evidence Act, 1872 (1 of 1872), Section 117 -- Punjab Excise Act, 1914 (1 of 1914), Section 6 -- Haryana Liquor Licence Rules 1970 -- Haryana Excise Policy for the year 2020-21 – Principle of estoppel – Specific condition that liquor vend should not be allowed within 1.5 kilometre of MC limit – Challenge to -- Petitioner was fully aware of the impugned condition in excise arrangement when he participated in the auction for allotment of liquor vend in question – Held, if a person being knowing fully well of the terms and conditions of excise arrangement, at the time of the auction, he cannot lateron challenge the condition contained in it, after his bid was accepted -- Principle of estoppel prevents it from challenging the excise arrangement, after the issuance of liquor vend licence to it.

(Para 1, 14)

Indian Penal Code, 1860 (45 of 1860), Section 302, 201 – Murder – Last seen evidence -- Motive -- Homicidal death not established or that in fact victim had died -- His body has not been recovered -- No belonging of victim recovered from the accused or on his disclosure statement – Accused alleged to have made disclosure statement pursuant whereto he got recovered a kirpan buried under eucalyptus tree which was taken into possession – Circumstance of last seen does not of itself lead to the inference that the accused has committed the crime -- It does not appeal to reason that a serving Army person would murder his colleague for mere Rs.40,000/- -- Held, prosecution not able to prove the case against the accused beyond reasonable doubt -- Appeal allowed, conviction and order of sentence set aside.

(Para 36-46)

A. Indian Evidence Act, 1872 (1 of 1872), Section 65B(4) – Electronic evidence – Certification of – Authority of -- Person who gives this certificate can be anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device, as also the person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B – Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief” (Obviously, the word “and” between knowledge and belief in Section 65B(4) must be read as “or”, as a person cannot testify to the best of his knowledge and belief at the same time).

(Para 58)

B. Indian Evidence Act, 1872 (1 of 1872), Section 65B(4) -- Electronic evidence – Requirement of -- Certificate required u/s 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (2014) 10 SCC 473, and incorrectly “clarified” in Shafhi Mohammed, (2018) 2 SCC 801.

-- Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.

-- Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise.  To hold otherwise would render Section 65B(4) otiose.

-- Anvar P.V., (2014) 10 SCC 473 as clarified is law declared by Supreme Court on Section 65B -- Judgment in Tomaso Bruno, (2015) 7 SCC 178 being per incuriam, does not lay down the law correctly -- Also, the judgment reported as Shafhi Mohammad (2018) 2 SCC 801 and the judgment (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

Clarification referred to above is that the required certificate u/s 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate u/s 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

(Para 59, 72, 120)

Reference answered

C. Indian Evidence Act, 1872 (1 of 1872), Section 39 -- Information Technology Act, 2000 (21 of 2000), Section 67C – Electronic evidence – Call Details records and other records – Preservation of -- General directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period -- Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness -- This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act

-- The general directions shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage -- These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

-- Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.

(Para 62, 72, 120)

Reference answered

V. RAMASUBRAMANIAN, J.’s view

A. Indian Evidence Act, 1872 (1 of 1872), Section 65B -- It is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600] to Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473] to Tomaso Bruno vs. State of UP, (2015) 7 SCC 178] to Sonu vs. State of Haryana, (2017) 8 SCC 570 to Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801.

(Para 120)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 211  -- Framing of charge – Prima-facie -- At the stage of framing of charges, the Court has to sift and weigh the prosecution material on record only for the limited purposes to find out if it, prima-facie, discloses the necessary ingredients to constitute the alleged offence against the accused and their involvement in the crime.

(Para 9)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 211  -- Indian Penal Code, 1860 (45 of 1860), Section 307 -- Attempt to murder –Framing of charge – Intention or knowledge – Prima facie -- Intention has to be absolute and specific and cannot be confused with the recklessness of the offender -- Unless and until this necessary ingredient is present, the charge u/s 307 IPC would not be made out -- Court has to satisfy itself that at least, prima-facie, the act by accused irrespective of its result was done with such intention or knowledge and under the circumstances, as mentioned in the section.

(Para 13)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 211  -- Indian Evidence Act, 1872 (1 of 1872), Section 45 -- Medical opinion -- Framing of charge -- Medical opinion given by a doctor is only a guiding factor for the Courts and the opinion does not carry a binding effect -- Courts are free to examine and evaluate the nature of injuries independently to arrive at a just conclusion.

(Para 15)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 211 -- Indian Penal Code, 1860 (45 of 1860), Section 307, 326 – Attempt to murder – Injury on head – Relevance of -- Merely because the injury was caused on the head, this alone would not be sufficient to charge for the offence punishable u/s 307 IPC -- Nowhere mentioned that the assailants had come with an intention to commit murder -- Nature of injury does not, prima-facie, make out an offence punishable u/s 307 IPC -- Considering the nature of the weapon (Spade/kassi) used while causing grievous hurt, a prima-facie case u/s 326 IPC would be made out for charge.

(Para 15,17)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 211  -- Indian Penal Code, 1860 (45 of 1860), Section 447 -- Criminal trespass – Joint land – Framing of charge – Partition suit is still pending and rights of co-sharers are yet to eb determined -- Land in question was described as joint -- Necessary ingredients to constitute the offence of criminal trespass punishable u/s 447 IPC are not made out.

(Para 16)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Indian Evidence Act, 1872 (1 of 1872), Section 45 -- Injury case – Expert evidence -- Whole body disability -- Orthopaedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches -- Her whole body disability was medically assessed at 32% -- Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15% -- High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20% -- Held, appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined.

(Para 8, 9)

A. Indian Evidence Act, 1872 (1 of 1872), Section 65, 66 -- Secondary evidence -- Foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.

(Para 11)

B. Indian Evidence Act, 1872 (1 of 1872), Section 62, 65, 66 – Primary evidence -- Secondary evidence -- It is trite that facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence.

(Para 14)

C. Code of Civil Procedure, 1908 (V of 1908), Order 13 Rule 4 -- Exhibition of documentation – Proof of -- Merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.

(Para 17)

A. Indian Evidence Act, 1872 (1 of 1872), Section 139, 146 – Defence of accused -- Cross examination of prosecution witness on that point – Requirement of – A witness is required to be cross-examined to bring forth inconsistencies, discrepancies and to prove the untruthfulness of the witness – Party intending to bring evidence to impeach or contradict the testimony of a witness must give an opportunity to explain or answer when the witness is in the witness box.

(Para 56-63)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 364A – Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Kidnapping – Last seen evidence – Murder – Burdon of proof – When the prosecution has proved the act of kidnapping and the last seen evidence soon before the approximate time of death of victim – Prosecution has discharged the onus of proof beyond reasonable doubt – It was then for the accused to rebut the presumption of any other intervening fact before the death of the victim.

(Para 77-81)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 364-A, 34 – Kidnapping and murder – Death Sentence/ Life Sentence -- Motive of the accused to take life was to become rich by not doing hard work but by demanding ransom after kidnapping a young, innocent boy of 8 years – Considering circumstances and facts on record, case falls short of the “rarest of rare” cases where a death sentence alone deserves to be awarded to the appellants -- Death sentence converted into the life imprisonment till the end of the life, no remission till the accused completes 25 years of imprisonment.

(Para 100)

A. Indian Evidence Act, 1872 (1 of 1872), Section 58 -- Admission in written statement – Nature of -- An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein.

(Para 17, 19)

B. Indian Evidence Act, 1872 (1 of 1872), Section 101, 102, 103 -- Hindu Undivided Family/HUF – Burden of proof -- Not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus.

(Para 19)

C. Indian Evidence Act, 1872 (1 of 1872), Section 115 --  Will – Doctrine of Election -- It is trite law that a party cannot be permitted to approbate and reprobate at the same time -- This principle is based on the principle of doctrine of election -- In respect of Wills, this doctrine has been held to mean that a person who takes benefit of a portion of the Will cannot challenge the remaining portion of the Will.

(Para 24)

D. Indian Evidence Act, 1872 (1 of 1872), Section 115 --  Doctrine of election – Estoppel -- Doctrine of election is a facet of law of estoppel -- A party cannot blow hot and blow cold at the same time -- Any party which takes advantage of any instrument must accept all that is mentioned in the said document.

(Para 25)

A. Indian Evidence Act, 1872 (1 of 1872), Section 24 -- Extrajudicial confession is a weak type of evidence however, it cannot be discarded outrightly.

(Para 26)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 24 – Murder -- Extra-judicial confession – Blood on danda – Blood grouping of -- As per FSL report, human blood was detected but blood group was not ascertained, there is no result, with regard to, blood grouping -- Blood so allegedly found, on the danda, does not stand sufficiently connected to be that of deceased -- No other sufficient evidence, coming on record -- Circumstance relating to extra-judicial confession, has been rightly discarded by the trial Court.

(Para 26, 27)

C. Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder -- Injury by fall – Possibility of -- Doctor deposed possibility cannot be ruled out of suffering of the injuries, in case a person, under intoxication falls on stones or forcefully strikes against the wall and in cross-examination that injury of fracture of rib, can be result of fall on a hard surface -- Considering the same, it cannot be concluded with certainty that the injuries in question were caused by lathi of budberry tree and this also gives dent to the prosecution version.

(Para 28)

D. Indian Evidence Act, 1872 (1 of 1872), Section 8, 106 – Murder -- Circumstantial evidence -- Motive -- In case based on circumstantial evidence, motive gains importance -- Dispute, which had taken place about one and half year ago, relating to boundary wall of the fields, relating to which, compromise effected -- No satisfactory evidence, coming on record -- Even, no evidence, relating to the matter having given quietus, by the police, as such, has been led -- In the light of the same, the motive part, does not stand established.

(Para 29)

E. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 8, 24, 106 – Murder -- Extra-judicial confession – Blood on danda/ weapon of offence -- Blood grouped not connected with the blood of deceased – Doctor deposition that possibility cannot be ruled out of suffering of the injuries falls on stones or forcefully strikes against the wall and in cross-examination that injury of fracture of rib, can be result of fall on a hard surface -- Motive of previous quarrel not proved --  Prosecution version cannot be termed to be free from doubt and precisely, benefit of such doubt so arising, ought to be extended to the appellant – Appeal allowed, impugned judgment of conviction and order of sentence set aside.

(Para 26-31)

A. Indian Evidence Act, 1872 (1 of 1872), Section 137 – Cross-examination of plaintiff -- Plaintiff had not appeared for cross-examination, to substantiate the averments made in the plaint -- On this ground only, his suit is bound to fail.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Partition of joint property -- Partition of all properties has not been sought – Suit for partial partition of the properties was not maintainable.

(Para 7)

A. Indian Evidence Act, 1872 (1 of 1872), Section 68, 73 -- Agreement to sell – Execution of -- Proof of -- Evidence led on file by the plaintiff in the form of stamp vendor and the attesting witness has duly proved the execution of the agreement – Not only this, the plaintiff has also proved on record that he was present before the Sub-Registrar twice, once on the original target date fixed in the agreement and second time; after he had issued notice to the defendant for execution of the sale deed -- Courts below have not committed any illegality in holding that the plaintiff has been successful in proving the execution of the agreement.

(Para 7)

B. Limitation Act, 1963 (36 of 1963), Article 19 -- Recovery suit – Limitation -- In case of a suit for recovery of money; per se, the limitation is to start from the date of the payment of the money, however, that limitation is applicable only in cases of pure money transaction of advancement of loan or otherwise.

(Para 8)

C. Limitation Act, 1963 (36 of 1963), Article 55 – Agreement to sell -- Recovery suit for earnest money – Limitation would start from the date of refusal of the execution of the agreement; as defined under the agreement; or from the date of knowledge of the fraud, if any, found committed in the alleged agreement.

(Para 8)

Code of Criminal Procedure, 1973 (2 of 1974), Section 273, 482 -- Indian Penal Code, 1860 (45 of 1860) -- FIR u/s 406, 498-A – Application for examining of prosecution witness through video conferencing – Held, JMIC clearly erred in dismissing the application -- Impugned order set aside, application for examination through video conferencing allowed -- Accused would be allowed all adequate opportunity to cross examine the witness.

(Para 7)

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 8 -- Murder – Common intention – Motive – Relation of parties -- Overt Act – Prosecution mainly rests on the evidence of PWs 14 and 15, who were the eye-witnesses of the incident : 

-- Accused No.3 had a motive to commit the murder of the deceased, inasmuch as he was eyeing the property which was being cultivated by the deceased on a Batai basis. Murder was committed through the overt acts of the two accused other than the appellant.

-- Moot question, whether the appellant also participated in the offence, especially since he has not been shown to be a friend or relative of the other accused, or to have any specific motive for murdering the deceased.

-- Post-mortem report and the evidence of the doctor made amply clear that the death was caused due to incised injuries, of such a nature which could have been caused by the axe and sickle carried by the other two accused.

-- Other two injuries, being a laceration and an abrasion, which could possibly be attributed to the appellant, may even have been a result of the deceased falling to the ground, since injuries such as bruises, abrasions and lacerations may very well be sustained as a result of a fall -- Thus, there does not appear to be strong evidence of the active participation of the appellant in the offence.

-- In their examination-in-chief, witnesses deposed that the appellant assaulted the deceased with a lathi on his knee and head, it was proved in the cross-examination that these statements made before the Court were “improvements” -- If these improvements are excluded from consideration from the evidence of PWs 14 and 15, it can be safely said that the prosecution has not proved its case beyond reasonable doubt about the active involvement of the appellant in the offence in question through any overt act.

Proceeding on the basis that the appellant was present on the spot of the offence -- Court did not find that the commission of the offence of murder stands proved as against the appellant with the help of Section 34, IPC, either.

(Para 6-10)

B. Indian Penal Code, 1860 (45 of 1860), Section 34 -- Common intention -- Principle of joint criminal liability -- In order to invoke the principle of joint liability in the commission of a criminal act, the prosecution should show that the criminal act was done by one of the accused persons in furtherance of the common intention of all -- If this is shown, the liability for the offence may be imposed on any one of the persons in the same manner as if the act was done by him alone -- It may be difficult to procure direct evidence to prove the intention of an individual, and in most cases it has to be inferred from the facts and relevant circumstances of the case – Totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted.

(Para 12,13)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Indian Evidence Act, 1872 (1 of 1872), Section 8 -- Murder – Common intention – Motive – Relation of parties -- Appellant had no specific motive to participate in the commission of the offence, did not have any rivalry with the deceased or his family, and has not been shown to be a friend, relative or hireling of the other two accused – Prosecution has failed to prove any common intention on the appellant’s part, inasmuch as there is no hint of any motive or reason for him to have either participated in pre-planning the murder of the deceased, or to develop the common intention to do so while present at the spot of the offence -- Evidence against the appellant is shaky and insufficient to bring home guilt against him, benefit of doubt must enure to him -- Judgment of conviction passed by the Trial Court and confirmed by the High Court as against the appellant stands set aside -- Appellant is acquitted from the charges levelled against him.

(Para 13,14)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 155 – F.I.R. – Delay in -- Complaint was written immediately after the occurrence -- FIR is based only on this complaint and it does not contain anything more or less than the complaint -- Contents of the FIR cannot be said to be interpolated.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 157 – Procedure of investigation – Compliance of -- Mere delay in compliance of Section 157 by itself is not fatal to prosecution -- Even if prosecution has failed to prove that Section 157 Cr.PC was complied with then also the effect thereof has to be assessed.

(Para 11)

C. Indian Penal Code, 1860 (45 of 1860), Sections 147, 148, 149, 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 134, 136 -- Interested witness – Evidential value -- Six persons heavily armed, two of them with guns, killed the deceased in broad day light -- While leaving the place of occurrence they threatened all gathered there by saying that anybody who tried to interfere would meet the same fate -- In such a situation no other villager who may have been present would turn up to give evidence – Two of the witnesses have spoken up and their evidence has been corroborated on all counts -- Evidence does not show that the enmity or dispute between these two witnesses and the accused was of such a nature that these two witnesses would make false statements only to settle scores with the appellants thereby leaving the real culprits to go scot-free -- Merely because these witnesses are interested witnesses their testimony cannot be discarded.

(Para 19)

D. Indian Penal Code, 1860 (45 of 1860), Sections 147, 148, 149, 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 134, 136 – Direct ocular evidence – Medical evidence – Non-examination of Ballistic expert -- Report of the ballistic experts have not been proved and all the bullets recovered from the spot have not been sent to the ballistic expert -- Guns seized may or may not be the guns used – Held, when the ocular evidence is direct and clear in this regard, and this ocular evidence is fully supported by the medical evidence, the negligence of the investigation team cannot be used by the defence in support of their case.

(Para 21)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 207 -- Investigaiton report u/s 173 Cr.P.C. – Magistrate’s power – Nature of Magistrate’s duty u/s 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section.

(Para 16)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 207 – Constitution of India, Article 21 -- Furnishing of documents – Fair trial -- Furnishing of documents to the accused u/s 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution.

(Para 18)

C. Indian Evidence Act, 1872 (1 of 1872), Section 3, 65-B – Electronic record – Document – Admissibilty of -- Electronic record produced for the inspection of the Court is documentary evidence u/s 3 of the 1872 Act -- Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision.

(Para 21-25)

D. Indian Evidence Act, 1872 (1 of 1872), Section 3 – Indian Penal Code, 1860 (45 of 1860), Section 29 -- General Clauses Act, 1897 (10 of 1897), Section 3(18) – Memory Card – Document – Held, contents of the memory card would be a “matter” and the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”.

(Para 26-31)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 327(2) – Indian Penal Code, 1860 (45 of 1860), Section 228-A -- Disclosure of identity of the victim – Effect of -- Explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the chargesheet/police report filed before the Magistrate.

(Para 34)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 327(2) – Indian Penal Code, 1860 (45 of 1860), Section 228-A – Constitution of India, Article 21 – Memory Card – Pen Drive – Copy of -- Privacy of victim – Right of Accused:

--       Accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

--       Considering that this is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights.

–       Court is duty bound to issue suitable directions -- Even the High Court, in exercise of inherent power under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.

--       If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial.

--       If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen-drive in any manner.

Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.

(Para 38-43)

G. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 207,  327(2) – Indian Penal Code, 1860 (45 of 1860), Section 228-A – Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Constitution of India, Article 21 – Memory Card – Pen Drive – Copy of – Inspection of -- Fair Trial – Right of -- Held, contents of the memory card/pen drive being electronic record must be regarded as a document -- If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial -- However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial -- Court may issue suitable directions to balance the interests of both sides.

(Para 44)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 145 -- Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Complaint in cheque bounce case – Evidence of accused by way of affidavit – Permissibility of -- Accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not competent to tender his evidence through affidavit.

(Para 8)

Indian Penal Code, 1860 (45 of 1860), Sections 304-A, 279, 337, 338, 427 – Death by rash and negligent driving – Acquittal of -- Testimony of PW-3 which includes his cross-examination does not make out a case that he had seen the accident with his own eyes and he had not seen the accused on the spot – There was no 'Test Identification Parade' of the accused and even during trial, he has not been able to identify the accused person – He was unable to note-down complete number of the offending vehicle as well -- Testimony of remaining witnesses more or less becomes formal in nature -- Apart from that, there was no material evidence available -- Revision accepted. impugned judgment of conviction and order of sentence are set-aside.

(Para 9-10)

A. Indian Penal Code, 1860 (45 of 1860), Section 306 – Indian Evidence Act, 1872 (1 of 1872), Section 61, 62, 63 – Abetment to suicide -- Photocopy of dying declaration – Reliance upon -- Original dying declaration not brought on record -- Trial court never made any effort to ensure proving of documents by even secondary means by resorting to the provisions of Sections 61, 62 and 63 of the Evidence Act – Mere photostat copy cannot be allowed to be exhibited and read into evidence and therefore, by no stretch of imagination such a document exhibited can be a legal piece of evidence.

(Para 5)

B. Indian Penal Code, 1860 (45 of 1860), Section 306 – Code of Criminal Procedure, 1973 (2 of 1974), Section 313 -- Abetment to suicide -- Onus to prove -- Stand in statement u/s 313 Cr.P.C that deceased had given birth to two children at different point of times and who died soon after birth and therefore, was cause of depression for the deceased and compelled her to take this step on account of this stress -- Prosecution has not proved any particulars with cogent evidence of previous history of physical torture/beatings by the husband and the onus is on the prosecution to show the circumstances which compelled the deceased to take an extreme step to bring to an end her life – When the wife put herself on fire, the husband came to her rescue and after putting off the fire, rushed her to a hospital is a conduct which goes to establish and show that the husband had taken every possible step to save life of the wife, therefore, improbalizes the theory of the prosecution that the husband abetted to this suicide.

(Para 7)

A. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13(3)(a)(i) – Bonafide need – Pleadings for not occupying -- Landlord is required to plead only in respect of his not occupying another building and non-vacation of such building without sufficient cause – Legislature in its wisdom has not obligated the landlord to state about building(s) owned by him in the urban area concerned.

(Para 10)

B. Law of Evidence – Witness deposition -- Testimony of a witness is to be read as a whole -- A single sentence in the statement of a witness cannot be read in isolation as the same may lead to miscarriage of justice.

(Para 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Family settlement – Nature of relations -- For the purpose of family settlement, the family is not to be narrowly construed -- For the purpose of family settlement, the family is to be considered as a larger family and even if one member of the family is not closely related that would not make a family settlement bad in the eyes of law.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Registration Act, 1908 (16 of 1908), Section 17 -- Family settlement – Compromise judgment and decree – Registration – Requirement of -- Judgment and decree is not an instrument of transfer of the property -- A judgment and decree acknowledging family settlement which had been arrived at before the filing of the suit is passed on the basis of consent of the parties under Order 12 Rule 6, Civil Procedure Code, 1908 -- Once the judgment and decree is not instrument of transfer, it does not require registration.

(Para 13)

C. Registration Act, 1908 (16 of 1908), Section 17 -- Indian Evidence Act, 1872 (1 of 1872), Section 101, 114 -- Registered sale deed – Disputing payment before Registrar -- Challenge to -- Registered sale deed has a presumption of correctness and the onus is very heavy on the plaintiff to prove otherwise -- Plaintiff has failed to prove that there was no payment – A sale deed cannot be set aside on the ground that the payment of the sale consideration is not before the Sub-Registrar.

(Para 15,16)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case -- Standard of proof -- Preponderance of probability -- In motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal’s role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties -- Standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.

(Para 20)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Witness – Non-examination of -- Inability of the witness to identify the age of the pillion rider cannot, per se, be a militating factor to discard his entire version -- Approach in examining the evidence in accident claim cases is not to find fault with non-examination of some “best” eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability -- Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident.

(Para 30, 31)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Indian Evidence Act, 1872 (1 of 1872), Section 116 -- Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Landlord-tenant relationship – Mutation in favour of tenant – Eviction of tenant -- Estoppel -- Additional evidence – Tenant without surrendering possession of the property to his own landlord will be estopped from contending by operation of Section 116 of the Indian Evidence Act that he had acquired larger right and, therefore, he cannot be evicted – Sanction of mutation neither relevant nor material for deciding the instant controversy.

(Para 19)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15 – Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Additional evidence – Non-disposal by Appellate Authority -- Effect of – There is no enunciation that non-disposal of an application for additional evidence by the Appellate Authority would automatically vitiate final order or warrant remittance of the matter to the court below for decision afresh along with application for additional evidence --  If Revisional Court considers the application and finds it meritless or inconsequential for decision of the controversy, no useful purpose would be served by remand of the case and decision afresh.

(Para 19)

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Indian Evidence Act, 1872 (1 of 1872), Section 116 -- Landlord-tenant relationship – Question of title -- Estoppel to -- In view of earlier decision that there exists relationship of landlord and tenant between the parties that has attained finality, it is not open for the petitioner to raise any such issue nor can he be permitted to raise the question of title before the Rent authorities with limited jurisdiction.

(Para 19)

D. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Eviction of tenant – Pleadings -- Section 13(3)(a)(ii) (b) and (c) of the Act makes it imperative for the landlord to specifically plead all the ingredients in clauses (b) and (c) i.e. that he/she is not occupying another residential building and has not vacated such building without sufficient cause.

(Para 22)

E. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Cease to occupy – Electricity usage -- Eviction application was filed on 20.11.2000 – It evident that meter reading from 13.3.2000 till November 2000 records consumption of units more than 100 on each interval of two months – Findings of the courts ordering eviction on the ground of cease to occupy suffer from illegality and perversity and accordingly set aside.

(Para 23-26)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 7, 12 – Void marriage – Decree of – Husband stating that photographs of marriage clicked by ‘P’ and ‘M’ – ‘M’ has not been examined, ‘P’ examined however, after tendering his affidavit towards his examination-in-chief, he never turned up for his cross-examination and thus his statement remained incomplete – Nor is there any scientific evidence to establish that the aforesaid photographs are genuine -- Affidavit of wife before Human right Commission within a week stating that she never agreed for so-called marriage and that she is living happily with her parents causes a dent in case of husband -- No date of marriage is mentioned in the certificate -- Held, husband has been unable to establish performance of ceremonies of the marriage especially the ceremony of Saptapadi -- Neither the photographs relied upon by the appellant stand proved, nor there is any testimony of the Priest who had allegedly performed ceremonies of the marriage – Finding of Ld. Lower court to the effect that there was not a valid marriage between the parties, upheld.

(Para 8-10)

B. Indian Evidence Act, 1872 (1 of 1872), Section 137 – Cross-examination of witness – Requirement of -- A statement bereft of cross-examination is an incomplete statement and cannot be read in evidence.

(Para 8)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 8 – Special Marriage Act, 1954 (43 of 1954), Section 15 -- Marriage Registration Certificate – Whether proof of valid marriage -- Marriage Registration Certificate would be of no consequence when the appellant has been unable to establish the essential ceremonies of the marriage -- When factum of marriage is disputed, then registration of marriage under the Hindu Marriage Act or the Special Marriage Act cannot constitute proof of a valid marriage.

(Para 10)

Indian Evidence Act, 1872 (1 of 1872), Section 63, 65, 65A, 65B -- Admissibility of the electronic evidence -- Requirement of certificate -- Applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party -- In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded -- In such case, procedure under the said Sections can certainly be invoked -- Requirement of certificate under Section 65B(h) is not always mandatory -- Applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

(Para 11, 12)

Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will -- Proof of -- Will proved for the following reasons;

--       First, the Will dated 12.03.1980 is a registered Will.

--      Second, it was executed by none other than the father in favour of his minor daughter and minor son born from first wife.

--      Third, when the father bequeathed his property to his minor children then nothing unnatural in it -- It is a natural bequeath out of love and affection.

--      Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property.

--      Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrar’s office.

--      Sixth, this explanation was rightly accepted by the High Court.

--      Seventh, since the original Will was not in plaintiff's possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence.

--     Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will -- Such evidence was sufficient to prove the Will.

--      Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so.

--      Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997, it was not binding on her.

--      Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will.

(Para 17)

Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 – Sale deed – Attesting witness – Role of -- Decree for possession on the strength of sale deed – Execution of the sale deed does not need any attesting witness like the gift deed -- Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.

(Para 20-22)

A. Indian Evidence Act, 1872 (1 of 1872), Section 73 – Thumb impression – Comparison by court – Permissibility of -- Standard thumb impressions of plaintiff were taken in the presence of counsel for the parties and the Presiding Judge in the Court – As per Section 73, the Court can direct any person present in the Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person -- This provision also applies with necessary modification to finger impressions also.

(Para 8-11)

B. Specific Relief Act, 1963 (47 of 1963), Section 34 – Joint land -- Suit for declaration without seeking possession – Maintainability of -- Whether the suit of the plaintiff can be dismissed on the ground that he has not sought possession of the suit land even though he is a co-sharer with the defendant – Held, plaintiff could not have filed a suit for possession as he is co-owner in the property and only remedy available to the plaintiff is to file proceedings for partition of the property in accordance with the provisions of Punjab Land Revenue Act, 1887 -- Question is answered in favour of the plaintiff.

(Para 15-19)

Indian Evidence Act, 1872 (1 of 1872), Section 65 -- Secondary evidence -- In case of loss of original document, the party should be granted leave to lead secondary evidence -- Grant of leave to lead secondary evidence does not mean that the document is admitted in evidence, nor it is a finding of the existence of any of the conditions indicated under Section 65 of the Act -- It only amounts to holding of an inquiry regarding existence of a document and its loss under some circumstances -- Failure or success to prove the existence of document or its loss cannot be pre-judged that too without providing any opportunity to the parties -- Whether the document is proved or not, is to be seen after grant of leave and evidence produced is evaluated by the Court.

(Para 6)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Cheque bounce case -- Acquittal in criminal case – Civil liability to pay -- Claim of the plaintiff was not based on dishonour of the cheques -- It was based on the basis of transaction of supply of poultry feed to the company and the bills raised therefore -- Merely, because defendant has been acquitted in criminal proceeding that does not mean that the claim of the plaintiff in civil proceedings ipso facto stand disproved.

(Para 6)

B. Indian Evidence Act, 1872 (1 of 1872), Section 34 – Books of accounts -- Bills and entries of accounts maintained in ordinary course of business can be proved by deposition on oath of the plaintiff -- Sales man and the other witnesses have also been produced to support the transaction and to prove the bills and accounts entries -- Company has been making payment from time to time and have never denied the supply of the material or the existence of the bills -- This tantamounts to acknowledgment.

(Para 7)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100, Order 41 –Liability of Company -- Appeal – Right of -- Company or the Managing Director of the company has never come forward to dispute their liability or to dispute the transactions of supply of the material by the plaintiff to the company -- They have not even challenged the liability fastened upon them by the trial court – Appellant, who do not even claim to be authorised representative of the company cannot question the liability against the company by filing the present appeal -- She can at the best question her liability in her personal capacity -- Appellant was a Director of the company and also a share holder, therefore, whatever liability the company law imposes upon her she cannot escape that by filing a appeal even her personal capacity -- She would always remain liable qua the liability of the company but subject to the extent of her liability according to the prevalent company law.

 (Para 8)

Indian Evidence Act, 1872 (1 of 1872), Section 65B -- Primary evidence – Certificate u/s 65-B of the Evidence Act – Requirements of – Original cassette in evidence – Cassette containing conversation by which ransom call was made on the landline phone was handed over by the complainant in original to the Police – The tape recorded conversation was not secondary evidence which required certificate under Section 65B, since it was the original cassette by which ransom call was tape-recorded

(Para 24)

A. Limitation Act, 1963 (36 of 1963), Section 3 – Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 -- Civil Suit -- Limitation – Framing of issue – Requirement of – Though no issue on whether the plaintiffs’ suit was within limitation or not was ever framed by the learned Sub Judge in the suit, and no objection thereto is ever seen to be raised, however, limitation being a basic issue, this Court would not discard that question.

(Para 52)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will – Proof of -- Even a registered will, unlike any other registered document, has to be proved first strictly in terms of Section 63 of the Indian Succession Act, and then as per Section 68 of the Indian Evidence Act, with at least one of the attesting witnesses examined, if such witness be alive, and if not, then by taking recourse to Section 69 of the Evidence Act.

(Para 53)

C. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Registered Will -- Death of witnesses – Proof of -- Two conditions are required to be fulfilled; the first being that in the absence of an attesting witness, the attestation is recognized to be in the hand of that witness and the second being that the signature of the person executing the document is in the hand writing of that person.

(Para 58)

D. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Registered Will -- Death of witnesses – Proof of -- Signatures of the attesting witness and of the Sub-Registrar duly identified by persons who would normally recognize those signatures -- No evidence led by the defendants to disprove that the thumb impressions on the will were not those of testatrix, their only substantive contention that such thumb impressions, even if taken, were so taken by undue influence  -- Held, conditions necessary to prove the authenticity of the will in terms of Section 63 of the Indian Succession Act, 1925 and Section 68 read with Section 69 of the Indian Evidence Act, 1872, the will was duly proved by the plaintiff.

(Para 59-61)

E. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will -- Testatrix died, 28 years after the execution of Will -- Delay of 3 year in showing the Will – Effect of -- Suit land was in possession of the plaintiff either in the capacity of a mortgagee or otherwise, during the entire life time of testatrix -- It was only when the defendants, i.e. the daughters of testatrix, got a mutation entered in their own favour qua the suit land, that the plaintiff actually instituted the suit seeking a declaration and permanent injunction in his favour, on the basis of the will -- Thus, though the delay in producing the will is not fatal to the plaintiffs' case.

(Para 63)

F. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will – Undue influence -- Testatrix did not disclose factum of undue influence to her daughter for 28 years -- With the thumb impression of testatrix on the will not having been disproved in any manner by the defendants, and the will being a registered document, also more than 30 years old, with the signatures of two attesting witnesses and of the Sub-Registrar having been duly proved in terms of Section 69 of the Evidence Act, it cannot be held to be a fabricated document.

(Para 64)

G. Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will – Unsound mind -- Defendants' own witness admitted that she was in a fully sound mind right till her death – In view of the lack of any medical or other evidence to the contrary it has to be held that she was in a healthy state of mind.

(Para 66)

H. Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will in favour of nephew – Ignorance of natural succession -- Good reason for diverting natural succession have been given; to the effect that with two daughters of the testatrix having pre-deceased her, and two having been married off with enough given to them on their marriage and other occasions and the marriages also having been performed with the help of the plaintiffs' father; with the father having looked after every need of the testatrix, and the plaintiff also having looked after her – Held, the diversion from natural succession would be for sufficient cause shown.

(Para 67)

I. Limitation Act, 1963 (36 of 1963), Article 58, 65 – Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will – Limitation – Suit after 3 year of death of Testatrix – Suit was held to be within limitation.

(Para 71)

J. Code of Civil Procedure, 1908 (V of 1908), Order 7, Rule 1,3,5,7,8, -- Non-pleadings in suit – Maintainability of suit -- Claim made simply in the head note and prayer clause of a plaint, cannot be accepted to be sufficient compliance of Order 7 Rules 1, 3, 5, 7 and 8 of the CPC, even with a list of documents in support of such prayer, accompanying the plaint in terms of Rule 14 of Order 7.

(Para 81, 82)

Indian Evidence Act, 1872 (1 of 1872), Section 85 – Civil Rule of Practice, Rule 22 – Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 – General Power of Attorney --  No issue was framed with regard to GPA -- No issue of maintainability of the suit on the basis of GPA -- Finding recorded by the Appellate Court discarding the GPA holding it to be of dubious origin are perverse and are not sustainable in law -- In the absence of framing of proper issues, no evidence was led by the respondents-defendants and no opportunity to rebut any evidence regarding genuineness of GPA has been made available to the appellant-plaintiff -- Judgment passed by the Lower Appellate Court cannot be sustainable.

 (Para 24)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 – Cheque bounce case – Notice by registered post – Presumption of -- Once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected -- Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner -- However, the drawer is at liberty to rebut this presumption -- Notice sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed

(Para 13-15)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce case – Second notice – Meaning of -- First notice was effective and notice was deemed to have been served on the first respondent -- Second notice could be construed as a reminder of respondent’s obligation to discharge his liability -- As the complaint, was filed within the stipulated time contemplated under Clause (b) of Section 142 of the N.I. Act, therefore Section 138 r/w 142 of N.I. Act is attracted.

(Para 16)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Indian Evidence Act, 1872 (1 of 1872), Section 115 -- Award of Tribunal – Doctrine of estoppel -- Death of cleaner of truck no. HR-38P-8270 and in award, the Tribunal had held that accident had taken place due to rash and negligent driving of driver of the offending truck No. HR-73-0804 – No appeal by insurance company -- That judgment operates as estoppel against the Insurance company.

(Para 3)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case -- Future prospects -- Concept of future prospects envisages chances or opportunities for success and further progress in life which is a normal course of event for every human being involved in any avocation -- Even if, keeping in view his ability, capacity etc., one may not be in a position to rise in life, there is another aspect that justifies the grant of addition in the income of the deceased, which is the 'inflationary trend' in which we all are living -- Amount of compensation is required to be just and reasonable keeping the inflationary trend in view, where the prices of the basic amenities of life are likely to increase further – Award of 50% towards future prospects, upheld.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Indian Evidence Act, 1872 (1 of 1872), Section 63, 66 -- Subsequent document – Secondary evidence – Permissibility of -- Amendment in written statement -- Agreement dated 14.6.2010 came into existence after filing of written statement on 28.4.2010 -- Meaning thereby, this plea could not be taken in the pleading by way of written statement -- It is also settled law that parties can be allowed to lead evidence in support of their pleadings -- As there was no pleading qua agreement dated 14.6.2010, there was no question of allowing of application for leading secondary evidence -- In fact he was required to move an application for amendment of written statement on the basis of subsequent agreement dated 14.6.2010 and thereafter, such an application for leading secondary evidence should have been filed.

(Para 4)

A. Indian Evidence Act, 1872 (1 of 1872), Section 3 – Exhibition of documents -- Proved -- Mere exhibition of the documents would not dispense with its proof.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1, 2 -- Issue of fact – Non-framing of issue -- Since there was no issue of adoption, there was no need for the plaintiff to prove the adoption.

(Para 6)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Cross-examination -- Only one line of the cross-examination has not to be read in isolation, but the cross-examination in whole has to be read.

(Para 6)

D. Indian Evidence Act, 1872 (1 of 1872), Section 45, 47 – Expert evidence -- Trial Court could not have stepped into the shoes of the Handwriting Expert, who compared the signatures as the Handwriting Expert.

(Para 6)