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)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 304-B -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Indian Evidence Act, 1872 (1 of 1872), Section 113-B -- Dowry death – Regular bail -- Plea in bail application that the deceased was “suffering from severe headache and was mentally disturbed since the past nine months” and that she was taken to a doctor by the first respondent -- Medical prescription, would prima facie indicate that there was no serious ailment -- Medical prescription of the Ayurvedic doctor and the remedies prescribed belie such a claim -- Prima facie, there are serious allegations in the FIR in regard to the harassment suffered by the deceased in close proximity to her death over demands for dowry by the accused -- In view of the provisions of Section 304-B of the IPC, as well as the presumption which arises u/s 113-B of the Evidence Act, the High Court was clearly not justified in granting bail.

(Para 9)

B. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 304-B -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Dowry death – Regular bail – Setting aside of -- Order of the High Court granting bail contains absolutely no reasons at all -- High Court has merely recorded the submissions and in the extract proceeded to grant bail without any evaluation of the rival submissions – Seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry; and that a telephone call was received from the accused in close-proximity to the time of death, making a demand -- An order without reasons is fundamentally contrary to the norms which guide the judicial process – Order of the High Court granting bail set aside.

(Para 10-13)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Dying declaration -- A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872 -- It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence -- If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused -- Therefore much shall depend on the facts of a case -- There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.

(Para 9)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 304-B -- Indian Evidence Act, 1872 (1 of 1872), Section 32 – Dowry death – Murder -- Three dying declaration – Acquittal of accused -- First statement of the deceased is based on hearsay that she was set  on fire by respondent no. 2 and no reference of respondent no. 1 and anything about dowry demand -- Next statement blaming respondent no.1 alone, which is not signed by anybody and the Doctor who recorded the statement has not been examined and merely because his signature has been identified P.W.19 cannot establish the correctness of its contents -- Next statement of the deceased blaming respondent no.1 alone without any allegation against respondent no.2, and on the contrary states that she was brought to the hospital by respondent no.2, it again does not disclose any dowry demand -- Considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect -- It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.

(Para 10-13)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 376(3) -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 53-A, 173 -- POCSO matter -- Blood sample for DNA test -- Investigaiton report already filed – Permissibility of -- Petitioner is facing a charge of committing repeated rape on the prosecutrix, who was less than 16 years of age and also for committing penetrative sexual assault upon her – Trial Court allowed the application for DNA test – Revision challenging the order -- Held, mere fact that application has been filed after submission of report u/s 173 Cr.P.C. is no ground to entertain revision petition as charges are yet to be framed.

(Para 6-8)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Summon to witness – Stage of – Scope of -- Section 311 Cr.P.C. empowers any Court at any stage of enquiry or trial or other proceedings to summon any person as witness or re-call or examine any person if it appears to be necessary for just decision of the case -- Power u/s 311 Cr.P.C. can be exercised at any stage -- There is no bar that the order for examination of the witnesses cannot be passed after the defence evidence is over.

(Para 7-9)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Indian Evidence Act, 1872 (1 of 1872), Section 65-B -- Summon to witness – Speedy trial -- Nodal Officers of Mobile Companies were mentioned in the list of witnesses and the record of calls etc., was available on the file yet they were not examined due to inadvertence of the Public Prosecutor -- Certificate u/s 65-B of the Indian Evidence Act, 1872 with regard to Customer Application Form and tower location was part of record – No inordinate delay to move application -- Held, it is the satisfaction of the court that examination of the witnesses is necessary for arriving at a just decision -- Direction to conclude the trial within six weeks itself cannot be a reason to dismiss the application u/s 311 Cr.P.C -- Speedy conclusion of trial cannot be at cost of just and fair decision –Application allowed – Revision against dismissed.

(Para 4, 12, 13)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 --  Indian Evidence Act, 1872 (1 of 1872), Section 118(a) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 313 -- Cheque bounce case – Acquittal by trial court – Conviction by High Court -- Appellant has only recorded her statement u/s 313 of the Code, and has not adduced any evidence to rebut the presumption that the cheques were issued for consideration -- Once the facts came on record remained unrebutted and supported with the evidence on record with no substantive evidence of defence of the appellant to explain the incriminating circumstances appearing in the complaint against her – Appellant has been rightly convicted.

(Para 12)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce case -- Object of introducing Section 138 and other provisions of Chapter XVII in the Act appears to be to enhance the acceptability of cheques in the settlement of liabilities -- Drawer of the cheque be held liable to prosecution on dishonour of cheque with safeguards provided to prevent harassment of honest drawers.

(Para 13)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 -- Indian Evidence Act, 1872 (1 of 1872), Section 118(a) -- Cheque bounce case – Presumption of consideration – Onus to rebut – Scope of evidence -- There is a mandate of presumption of consideration in terms of the provisions of the Act and the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act  -- To rebut this presumption, facts must be adduced by the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved.

(Para 14, 15, 17)

D. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque  bounce case – Principle of acquittal in criminal cases -- Applicability of -- Proceedings u/s 138 of the Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act.

(Para 16)

E. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 --  Indian Evidence Act, 1872 (1 of 1872), Section 118(a) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 313 -- Cheque bounce case – After cheques being bounced, two separate legal notices were served, even after receiving the said notices, the appellant neither responded to the notices nor made any payment within the statutory period of fifteen days – When the complainant exhibited all documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement u/s 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence -- Statement of the accused recorded u/s 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused -- No evidence to rebut the presumption -- Held, High Court, has not committed any error in recording the finding of guilt of the appellant and convicting her for an offence being committed u/s 138 of the Act, which needs no further interference -- Appeals being without any substance, dismissed.

(Para 21-24)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Multiple dying declarations -- When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits.

(Para 8)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 32 – Second Dying declaration – Reliance upon – Defence that while putting the kerosene into the stove, accidentally the kerosene had fallen on the ground and also on her clothes, and thereafter when the candle fell on the ground, the same had come in contact with her clothes and kerosene -- If that is the case, there would have been injuries to her feet also -- However, no burn injuries are found on her feet -- No stove was found at the place of occurrence -- On the contrary, this evidence speaks otherwise -- Main injuries are found on the upper limbs of the body can be possible when the kerosene is poured on the deceased – Exhibit P5 (Second dying declaration) is corroborated by other surrounding circumstances and evidence and after independent evaluation of Exhibit P5 and Exhibit D2 (First dying declaration), when the High Court has found that Exhibit P5 is reliable and inspiring confidence and thereafter when the High Court has convicted the accused, it cannot be said that the High Court has committed any error – Appeal dismissed.

(Para 7, 8, 11)

C. Indian Penal Code, 1860 (45 of 1860), Section 300, 302 – Murder -- Imminent dangerous act -- After pouring kerosene on the deceased and thereafter setting her ablaze -- It was imminently dangerous which, in all probability, will cause death -- Merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC – High Court has rightly convicted the accused for the offence under Section 302 IPC – Appeal dismissed.

(Para 10, 11)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Murder – Dying declaration -- Deceased suffered 90 per cent injuries and was in a fit condition to make a declaration -- JMIC recorded the statement and in her dying declaration, she has clearly stated that the appellant has poured Kerosene Oil on her and set her ablaze -- Though the family members of the deceased were in the hospital, they were sent out, when the dying declaration was recorded by the Magistrate – If the dying declaration is considered along with the depositions of PW-5, PW-6 and other witnesses, who were examined on behalf of the prosecution, it clearly establishes the guilt of the appellant, beyond reasonable doubt – Conviction order upheld.

(Para 13, 14)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Dying declaration – Presence of parents and relatives – Effect of -- Held, merely because the parents and other relatives of the deceased were present in the Hospital, when the statement of the deceased was recorded, it cannot be said that the said statement was a tutored one -- Same is no ground to disbelieve the dying declaration, recorded by the Magistrate.

(Para 16)

A. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Indian Penal Code, 1860 (45 of 1860), Section 300, 302, 306 -- Suicide – Homicidal death -- No marks on the body which would suggest violence or struggle -- Medical expert himself has not ruled out the possibility of suicidal death -- On the contrary, the Post-Mortem Report shows, that the cause of death was ‘asphyxia due to hanging’ -- In the light of this evidence, trial court as well as the High Court have erred in holding, that the prosecution has proved that the death of the deceased was homicidal.

(Para 18)

B. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Husband-wife -- Circumstantial evidence – Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased.

(Para 22)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Circumstantial evidence – Burdon of proof – Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt -- It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.

(Para 22)

D. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Circumstantial evidence – Explanation by accused -- It is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused -- However, it cannot be used as a link to complete the chain.

(Para 24)

E. Indian Evidence Act, 1872 (1 of 1872), Section 8, 106 – Circumstantial evidence – Motive -- Though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances -- Prosecution has utterly failed to prove motive beyond doubt -- As such, an important link to complete the chain of circumstances is totally absent in the case.

(Para 26-30)

F. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Circumstantial evidence – Burdon of proof -- Prosecution has failed even to prove a single incriminating circumstance beyond reasonable doubt -- As such, the conviction and sentence passed by the trial court as affirmed by the High Court is set aside -- Appellant is acquitted of all the charges.

(Para 34)

A. Indian Penal Code, 1860 (45 of 1860), Section 302/34 -- Evidence law -- Murder -- Common intention – Conviction u/s 302 IPC with the aid of Section 34 – Firearm injury established and proved by the prosecution -- Use of firearm by the appellant-accused also established and proved – As per the doctor injuries were, abrasion wound on right-hand elbow joint; several wounds of pallets on right hand and wound on little finger of right hand – As the injury on little finger was simple in nature, it was possible for P.W.27 to give complaint/Fardbeyan in writing -- Appellant ran away and he absconded for approximately 15 years, he surrendered/was arrested after another accused was convicted – It cannot be said that, the ld. Trial Court as well as the High Court, have committed any error in convicting the appellant-accused u/s 302 read with Section 34 IPC.

(Para 6.1, 6.2)

B. Evidence law – Contradiction in deposition – Appellant/accused absconded for 15 years -- Deposition was recorded after a period of approximately 15 years, there are bound to be some minor contradiction/contradictions.

(Para 6.1)

C. Indian Penal Code, 1860 (45 of 1860), Section 302/34 – Evidence law -- Murder – Use of fire-arm – Non seizure of -- Use of firearm by the appellant-accused has also been established and proved -- Merely because the weapon is not seized cannot be a ground to acquit the accused when his presence and his active participation and using firearm by him has been established and proved.

(Para 6.2)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 11 -- Murder – Circumstantial evidence – PW-2-aunt of the deceased called the deceased and asked her what had happened, she replied that her husband had beaten her up with a wooden log -- It was the appellant/husband himself who took her to the hospital and made a false statement that she suffered a cardiac arrest but after the autopsy was conducted on the body of the deceased, it was opined that she died out of shock and haemorrhage due to thoracic injuries – Injury nos. 1 to 6 were caused with blunt weapon which resulted into death of the deceased -- Ocular evidence of PW 2-aunt of the deceased is corroborated with the medical evidence of Doctor (PW 7) – Conviction u/s 302 upheld.

(Para 4, 10-18)

B. Indian Evidence Act, 1872 (1 of 1872), Section 11 -- Circumstantial evidence -- In a case based on circumstantial evidence, the settled principles of law are that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and such circumstances should be conclusive in nature and moreover the circumstances should be complete and there should be no gap left in the chain of events -- However, the circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence.

(Para 13)

A. Negotiable Instruments Act, 1881 (26 of 1881), Sections 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 118 – Admission of signatures on cheque -- Legal enforceable liability – Presumption of -- Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative -- Obligation shifts upon the accused to discharge the presumption imposed upon him – Held, once the 2nd Appellant had admitted his signatures on the cheque and the Deed of undertaking, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt -- Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay -- Such approach of the trial Court was directly in the teeth of the established legal position and amounts to a patent error of law.

(Para 14, 15)

B. Negotiable Instruments Act, 1881 (26 of 1881), Sections 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 118 – Legal enforceable liability – Presumption of – Rebuttal of -- Presumptions raised u/s 118 and Section 139 are rebuttable in nature – A probable defence needs to be raised, which must meet the standard of “preponderance of probability”, and not mere possibility -- Bare denial of passing of consideration would not aid the case of accused.

(Para 16)

C. Indian Evidence Act, 1872 (1 of 1872), Section 118 – Deed of undertaking – Denial of genuineness – Relevance of -- Appellants’ mere bald denial regarding genuineness of the Deed of Undertaking, despite admitting the signatures of Appellant No. 2 thereupon, does not cast any doubt on the genuineness of the said document.

(Pare 17)

D. Negotiable Instruments Act, 1881 (26 of 1881), Sections 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 118 – Blank signed cheque and stamp papers – Legal enforceable liability -- Presumption of – Rebuttal of -- Even if the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated.

(Para 18)

E. Negotiable Instruments Act, 1881 (26 of 1881), Sections 138, 139, Chapter XVII – Cheque bounce matters – Criminal and civil liability – Redressal of -- Object of Chapter XVII of the NIA is not only punitive but also compensatory and restitutive -- Provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realisation of the cheque amount -- There needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the Courts should uniformly levy fine up to twice the cheque amount along with simple interest at the rate of 9% per annum.

(Para 20)

F. Negotiable Instruments Act, 1881 (26 of 1881), Sections 138, 139 –Cheque bounce case – Sentence and compensation -- Neither did the respondent ask for compensation before the High Court nor has he chosen to challenge the High Court’s judgment -- Since, he has accepted the High Court’s verdict, his claim for compensation stands impliedly overturned -- Respondent, in any case, is entitled to receive the cheque amount of Rs.11.20 lakhs which the appellant has already deposited with the Registry of Court -- Appellant No.2 shall not be required to undergo the awarded sentence -- Registry is directed to transfer the amount of Rs.11.20 lakhs along with interest accrued thereupon to the respondent within two weeks.

(Para 21, 22)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), -- Indian Evidence Act, 1872 (1 of 1872), Section 65-B – Whatsapp Messages – Evidential value -- NCB placed reliance on Whatsapp messages by which the petitioner could be implicated -- Certificate u/s 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record – Certificate not shown, said message would be of no evidentiary value as on date -- Narcotics Bureau would be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B Evidence Act. Arjun Panditrao Khotkar’s case  (2020) 7 SCC 1 relied.

(Para 11)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 8, 21, 22, 29, 37 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Commercial quantity – Regular bail -- Total 57000 tablets i.e. 20,000 tablets of Tramadol Hydrochloride 100 mg (Trade Name Clovidol-100 SR) from “PK” and 37,000 from “BK” – On disclosure of statement “PK”, petitioner was named as a person who had sent the contraband to her for its onwards dispatch to other “BK” – After notice u/s 67 of Act, petitioner was arrested on 14.06.2020 – Investigation complete and the challan stands presented -- No useful purpose would be served in keeping the petitioner behind bars -- Petition allowed and the petitioner is directed to be released on regular bail on execution of adequate personal/ surety bond of an amount of Rs.10 Lakhs.

(Para 3, 11)

A. Indian Evidence Act, 1872 (1 of 1872), Section 35 --  Date of birth -- Recitals of the admission and withdrawal register are admissible in evidence, as per Section 35 of the Indian Evidence Act.

(Para 18)

B. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Indian Penal Code, 1860 (45 of 1860), Section 376(3) -- Indian Evidence Act, 1872 (1 of 1872), Section 154, 155 -- Hostile witness – Evidential value -- Reliance upon other evidence -- Simply on the score that witnesses did not support the prosecution version in the Court, does not ipso facto lead to the conclusion that no such occurrence had taken place -- Their testimonies, as such, cannot be discarded in toto – Testimony of the hostile witnesses can be relied upon by the prosecution, to the extent to which it supports the prosecution version and cannot be treated as washed off the records -- There is no legal bar to base conviction of the accused, upon such kind of testimony, if corroborated by other reliable evidence.

-- While facing cross-examination, the prosecutrix has identified her signatures on Ex.P1 and Ex.P2 and she has also admitted about having undergone medical examination.

-- Though, she had stated about the statement Ex.P4 before the Magistrate, to be an outcome of pressure of the police but however, no reason, as such, has been assigned, as to why the police intend to falsely implicate the appellant by making the prosecutrix as tool.

-- No bitterness or animosity at the behest of the police, towards the accused-appellant, as such, is coming forth -- Neither the accused, in his statement u/s 313 Cr.P.C., has stated about the reason for false implication.

-- MLR, opinion has been given that-'possibility of sexual assault cannot be ruled out and depends on semen and DNA analysis of supplied cloth and swabs.'

-- As per conclusion in DNA report-The Autosomal STR analysis indicates that DNA profile of seminal stains on source of item no.3B (Cotton Swab) and item No.4 (Salwar) is matching with the DNA Profile of Irshad (Source of item No.6).

Result of genuine DNA test is scientifically adequate and reliance upon the same can be laid to establish the connectivity of the wrong doer -- Thus, in the light of such medical evidence brought on record, sexual assault upon the prosecutrix, as such, and the role of the appellant, is established -- When linkage of the appellant, as such, through scientific manner is coming forth, it was incumbent upon the appellant, to lead sufficient evidence to rebut the legal presumption u/s 29 of the POCSO Act, operating against him -- Convection u/s 4 POCSO Act and Section 376 (3) IPC, upheld.

(Para 22-30)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 42 -- Indian Penal Code, 1860 (45 of 1860), Section 376(3) -- Section 376(3) – Retrospective effect of penal provisions -- Sentence awarded u/s 376(3) IPC, while considering the same to be greater in degree than Section 4 of the POCSO Act -- Amendment in the IPC, thereby, adding Section 376(3) IPC, received assent of Hon'ble President of India on 11.08.2018 and in the light of the same, it is submitted that no retrospective effect can be given to this provision, in view of the occurrence in question (allegedly) having taken place on 02.06.2018 – Held, submission so made is not tenable, as the Criminal Law (Amendment) Act, 2018, was deemed to have come into force on 21.04.2018 and that being so, it was in force at the time of taking of place of occurrence in question on 02.06.2018 – Ld. trial Court has imposed the minimum sentence (20 years RI), so provided in the aforesaid Section 376(3) IPC and the same is just and reasonable.

(Para 30)

A. Indian Penal Code, 1860 (45 of 1860), Section 396 -- Dacoity with murder -- Acquittal in – No test identification parade – Accused identified first time in court – Finger prints at place of occurrence – Value of – Child eye witness 5 years old (PW5) -- Both accused were unknown faces to PW5, and were not subjected to any Test Identification -- Apart from identification by PW5 in Court for the first time, there is no other material to establish their presence -- Thus, even if Court accept that fingerprints lifted from the house of the deceased could be associated with the said two accused, that by itself, in the absence of any substantive piece of evidence, cannot be made the basis of their conviction -- These accused are therefore entitled to the benefit of doubt -- Orders of conviction and sentence recorded against them set aside.

(Para 16, 35)

B. Indian Evidence Act, 1872 (1 of 1872), Section 8, 27, 118, 134 -- Child witness – Corroboration of -- Perspective from which the evidence of a child witness is to be considered -- “corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence” is a well-accepted principle.

(Para 22)

C. Indian Penal Code, 1860 (45 of 1860), Section 396 -- Indian Evidence Act, 1872 (1 of 1872), Section 8, 27, 118, 134 -- Dacoity with murder -- Acquittal in – 5 year old Child eye witness -- A chhuri or knife was said to have been recovered upon being pointed by accused/HO -- In the absence of any memorandum, the trial court rejected the theory that such recovery would be admissible u/s 27 of the Act -- It was however observed that such recovery would be admissible u/s 8 of the Act -- Not enough to sustain the finding of guilt -- PW-2 in his cross-examination reveals that he made no attempts to talk to the police though he asserted in his examination-in-chief that in the morning he was sure that the culprits were accused/ HO and his associates, version given by PW2 is, therefore, not free from doubt -- Evidence of PW2 also contains inherent inconsistencies -- Sample fingerprints of accused H.O. did not match with any of the fingerprints taken from the house of the deceased -- With the acquittal of all the accused in respect of offences punishable u/s 412 IPC and under the Arms Act, there is no other material pointing towards the involvement of accused/HO – Court do not find the material on record sufficient to record conviction of accused/ HO for the offence u/s 396 IPC -- Benefit of doubt given.

(Para 26-28)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Indian Evidence Act, 1872 (1 of 1872), Section 116 -- Death of landlord – Petition by one of LR -- Tenant-landlord relationship -- Maintainability of ejectment petition -- It is settled principle that the tenant is no one to raise the question of title, in view of the presumption u/s 116 of the Indian Evidence Act, 1872 -- Any legal heir of the original landlord is entitled to file the eviction petition.

(Para 10, 11)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Bonafide need of landlord – Prima facie case -- Presumption of -- It is not for the tenant to dictate terms to the landlord as to how he can adjust himself as to which portion of the tenanted premises he is to set up his business -- Only a prima facie case is to be taken into consideration by the Rent Controller to draw the presumption that the requirement is bona fide.

(Para 12)

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Long occupation of tenanted premises – Ejectment of tenant -- Merely because the tenant is carrying business since 1995 would not entitle him to continue in the premises for all times to come.

(Para 12)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Indian Evidence Act, 1872 (1 of 1872), Section 137, 139, 145  -- Compensation in motor vehicle accident case -- FIR author not examined – Non-reporting of accident to police by eye-witness -- Adverse inference -- Eye witness (AW-3) accompanied deceased to hospital in his car -- It is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR -- High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police -- Failure of the respondents to cross examine the solitary eye-witness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part -- They did not even suggest the witness that he was siding with the claimants -- High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness -- Statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance -- Tribunal rightly relied upon his statement and decided in favour of the claimants.

(Para 17-24)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Principle of evidence -- Strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases -- Standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt -- One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.

(Para 22)

C. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Indian Evidence Act, 1872 (1 of 1872), Section 101, 102 -- Compensation in motor vehicle accident case -- Burdon of proof -- Rash and negligent driving by other vehicle – Defence of – Non-examination as witness – Effect of -- Adverse inference -- If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the other vehicle driver’s carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place -- Fact that he chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault -- High Court, therefore, ought not to have shifted the burden of proof.

(Para 23)

D. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case -- Future prospects -- Deceased was 34 year old – Appellants are held entitled to compensation as awarded by the Tribunal, besides 40% addition in the annual income of the deceased towards ‘future prospects’ -- Motor Accident Claims Tribunal, is directed to recalculate the compensation amount accordingly -- Appellants are held entitled to interest @ 8.5%, as per the Tribunal’s award, on the entire amount of compensation.

(Para 4, 26)

A. Indian Evidence Act, 1872 (1 of 1872), Section 134 -- Hostile witness – Consideration of other evidence for conviction -- No doubt large number of witnesses turned hostile and the Trial Court was also not happy with the manner of prosecution conducted the case -- In the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.

(Para 20)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 313, 433, 433-A -- Murder of wife – Circumstantial evidence – Conviction of husband – Appeal against – Commutation of sentence -- Death by asphyxia due to strangulation -- Minimum five minutes of forceful pulling to cause the death -- Most important aspect is where the death was caused and the body found -- It was in the precincts of the house of the appellant/husband where there were only family members staying – No possibility of somebody from outside coming and strangulating the deceased – Appellant/ husband is alleged to have caused the death of his wife by strangulation -- No explanation has been given as to how the wife could have received the injuries -- This is a strong circumstance indicating that he is responsible for commission of the crime -- Appellant was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded u/s 313 of the Cr.P.C. and mere denial could not be the answer in such a situation – Appeal dismissed -- Respondent/State directed to examine for release of appellant on completion of 14 years of actual sentence in accordance with norms.

(Para 23-27)

A. Indian Evidence Act, 1872 (1 of 1872), Section 3 – Evidence in Civil dispute – Standard of proof -- It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt.

(Para 80)

B. Limitation Act, 1963 (36 of 1963), Section 17 – Fraud – Limitation -- Though the discrepancies in the GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further -- Testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants -- That evidence dispels the doubt if any; and tilt the balance in favour of the defendants – Since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation.

(Para 80, 81)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Power of -- Trial Court and the first appellate Court appreciated the evidence properly – The view was possible view – High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures – Appeals allowed and the impugned judgment and decree passed by the High Court set aside – Judgment and decree passed by the first appellate Court is hereby restored.

(Para 83)

Adoption deed – Challenge to -- Evidence without pleadings -- It is fairly well settled that in absence of pleading, any amount of evidence will not help the party -- When the adoption ceremony, which had taken place on 14.11.2001, is mentioned in the registered adoption deed, which was questioned in the suit, there is absolutely no reason for not raising specific plea in the suit and to file application at belated stage to summon the record to prove that the second respondent was on duty as on 14.11.2001 -- There was an order from the High Court for expeditious disposal of the suit and the application which was filed belatedly is rightly dismissed by the Trial Court and confirmed by the Revisional Court and High Court.

(Para 7)

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)