Indian Evidence Act, 1872 (1 of 1872), Section 65 -- Secondary evidence – Photocopy of insufficiently stamped document – Permissibility of -- Photocopy cannot be admitted as secondary evidence even on payment of fee and penalty -- Impounding could be done only with regard to original document and not its copy -- Application filed by the plaintiff/ respondent No.1 to prove one agreement to sell by way of secondary evidence, was allowed by Trial Court -- Impugned order being not passed in accordance with law, deserves to be set aside – Revision allowed, order set aside. Hariom Agrawal’s case 2007(4) RCR (Civil) 548 relied.

(Para 1, 9, 10)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Section 151 -- Additional evidence -- Original sale deeds were handed over to the counsel who failed to produce and prove the same whereas photostat copies of sale deeds were produced -- Said evidence is necessary for doing complete justice to the parties – Trial Court allowed the application -- No infirmity in the order passed by the court below, revision petition dismissed.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 20 -- Constitution of India, Article 227 -- Closing of evidence in suit – One opportunity to lead evidence -- Petitioner admits that there is some inaction on her part but proving of the Will is necessary -- Petitioner-defendant No.1 wants to examine only two witnesses, Lambardar and Record Clerk of DC Office -- Petitioner should not be non-suited merely on procedural technicalities -- No prejudice would be caused to other side if one opportunity is granted to the petitioner to lead remaining evidence -- Petition disposed with a direction to the trial Court to give one opportunity subject to payment of costs of Rs.10,000/-.

(Para 2-7)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 24 -- Murder -- Extra-judicial confession -- Extra judicial confession before PW-2 and PW-3/ real brothers of deceased -- It is not brought on record by the prosecution that the appellant/ accused had any relationship with both of them -- Normally, an accused would make a confessional statement before a person in whom he has implicit faith -- In the normal course, an accused would not make a confessional statement before the real brothers of the deceased -- When prosecution relies upon the evidence of extra judicial confession, normally, the Court will expect that the evidence of the persons before whom extra judicial confession is allegedly made, must be of sterling quality – Theory of extra judicial confession discarded – Appellant acquitted.

(Para 7, 8, 11)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Murder – Acquittal -- Blood stains on clothes of different Blood Group – Recovery of axe – Not believed -- Serology Report on record that the clothes on the person of the deceased were having blood stains of 'O' group -- As regards the trouser of the appellant, the opinion was inconclusive but as regards the other two items of clothes, it was found that the blood was of 'A' group -- This militates against the case of the prosecution that the blood stains on the clothes of the appellant were of the blood of the deceased -- Recovery of the axe at the instance of the appellant is of no relevance, as according to PW-2 and PW-3, the appellant was carrying a stick -- Appellant acquitted.

(Para 9-11)

A. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Recovery during police custody – Admission of guilt -- Evidential value -- It is only the factum of recovery of the articles which can be taken into account and the statement made, if any, while getting the articles recovered which is to the effect of admission of guilt is to be discarded.

(Para 21)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 27, 106 -- Murder – Circumstantial evidence – Knowledge of PW/ Lambardar is in the nature of hear-say evidence that he had actually overheard some persons naming appellant as the murderer -- PW-3 with whom extra-judicial confession made stepped into the witness box did not support the case of the prosecution and was declared hostile -- Recovery of the auto-rickshaw on its own cannot be said to be an incriminating piece of evidence – Nothing on record either to show that the blood stain found on the recovered ‘datar’ and on the cardigan were of the same blood group or that the same matched with the blood group of the deceased – Appellant acquitted.

(Para 21-25)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Circumstantial evidence -- Law postulates two-fold requirements before reliance can be placed upon the same :

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

(Para 22)

A. Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Dying declaration -- A conviction can be solely recorded on the basis of dying declaration -- Court must come to a conclusion that the dying declaration is trustworthy, reliable and one which inspires confidence.

(Para 10)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32 -- Dying declaration -- Dying declaration recorded by Executive Magistrate -- Deceased received burn injuries on 5th November 1991 but the dying declaration recorded on 8th November 1991 after an application was made by the relatives of the deceased to the SDM -- Boys, who had brought the application containing the order of the SDM had told him that the statement of the deceased should be recorded and that she was in a position to make the statement -- Those boys told him that whatever they had to tell the deceased, they had told her -- Those 2-3 boys related to the deceased and some other persons were also in the room in which he recorded the statement of the deceased – There is a grave doubt as to whether the dying declaration recorded was a voluntary one or tutored -- Executive Magistrate had recorded the dying declaration of the deceased on 8^th November 1991 at 04.40 p.m. whereas the opinion with regard to her fitness was given by him at 06.00 p.m. on 8th November 1991 – It cannot be said that the dying declaration is free from doubt.

(Para 11-14)

C. Indian Penal Code, 1860 (45 of 1860), Section 304-B -- Indian Evidence Act, 1872 (1 of 1872), Section 32 – Dowry death – Acquittal -- Dying declaration -- High Court disbelieved the dying declaration insofar as father-in-law of the deceased is concerned – Court failed to understand as to how the same dying declaration could have been made basis for conviction of the appellant when the same was disbelieved insofar as another accused is concerned -- For harassment with regard to non-fulfillment of demand of dowry, except the vague allegation, there is nothing in their evidence to support the prosecution case -- No evidence to prove beyond reasonable doubt that the deceased was harassed on account of non-fulfillment of demand of dowry -- Case u/s 304-B of IPC is not made out by the prosecution – Judgment of conviction set aside -- Appeal allowed.

(Para 15-18)

Indian Evidence Act, 1872 (1 of 1872), Section 137 -- Recovery suit – Cross-examination of witness -- Plaintiff’s evidence has been closed on the request of the plaintiff himself -- Cross-examination of plaintiff is necessary for the proper and just adjudication of the issue involved without causing prejudice to the rights of any of the parties to lis -- Plaintiff directed to produce witness before the learned trial Court for the purpose of cross-examination.

(Para 8-10)

Indian Evidence Act, 1872 (1 of 1872), Section 114(e) -- Exhibition of documents – Not signed by Presiding Officer – Effect of -- In case any document was left to be signed by the then Presiding Officer, it can be signed by the subsequent Presiding Officer -- Document exhibited on the basis of the statement of a witness recorded in the Court and no adverse inference can be drawn if any statement or exhibited document was left to be signed by the then Presiding Officer.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 20 -- Constitution of India, Article 227 -- Closing of evidence in suit – One opportunity to conclude evidence -- 10 effective opportunities were granted to the petitioner-defendant No.1 but only three witnesses were examined -- On a couple of occasions, the Bar was abstaining from work -- Trial Court did not commit any illegality in closing the evidence – However, matters should be decided on merits and parties should not be non-suited on technicalities -- One opportunity granted to the petitioner-defendant No.1 to lead his evidence subject to payment of costs of ?5,000/- to be paid to the plaintiff – Revision allowed.

(Para 6, 7)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce petition -- Burdon of proof – Nature of evidence -- Degree of probability is not one beyond reasonable doubt, but of preponderance.

(Para 10)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Cruelty – Long separation – Allegation of adultery -- Marriage solemnized in the year 2002 -- Disputes started between the parties from 2006 onwards -- Appellant–Wife registered a complaint u/s 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 -- Respondent-Husband had questioned the character of the appellant-Wife -- Respondent-Husband also demanded a medical examination of the appellant–Wife, alleging she was living in adultery and had given birth to a child during the period of non-cohabitation -- Said request was nullified by the Order of the High Court – For a decade and half, the parties have been living separately -- Marriage does not survive any longer, and the relationship was terminated otherwise except by a formal decree of divorce – Status quo continues, awaiting an approval from the Court – Decree of divorce allowed.

(Para 16-20)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 391 – Cheque bounce complaint – Additional evidence at appellate stage -- Cheque dishonoured as drawer had closed the account and not on account of the difference in signature of the drawer -- Petitioner/ accused did not respond to the legal notice – Signature not disputed in statement u/s 313 Cr.P.C. – Thereafter 6 opportunities to lead defence evidence but he did not produce any witness – Defence evidence closed on the statement of the counsel for the petitioner and not by a Court order – Application for additional evidence by examining fingerprint and handwriting expert dismissed by Appellate Court -- No illegality or impropriety in the order – Revision dismissed.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 391 – Additional evidence at appellate stage -- Section 391 Cr.P.C. vests a discretion in the Appellate Court to permit additional evidence, if it is necessary, in order to enable it to give a correct finding -- Test is that such evidence should be necessary for the just and proper decision of the case -- Provision is not intended to remedy the negligence or latches of a party -- Not desirable to exercise power u/s 391 Cr.P.C. to enable the petitioner to fill in the lacunae.

(Para 8)

Indian Penal Code, 1860 (45 of 1860), Section 468 – Indian Evidence Act, 1872 (1 of 1872), Section 65 -- Forgery -- Secondary evidence -- To establish forgery it is imperative that the original document is produced or the existence and the destruction of the same is proved beyond doubt -- In the alternative, the party which wishes to lead secondary evidence with respect to the document must prove that it cannot possibly possess the primary original document as the same is in possession of the opposite party -- Original agreement to sell on which the complainants allegedly forged signatures had been affixed not brought on record but the complainant has also not been able to prove that the original had ever been executed but was in possession of the opposite party or had been destroyed -- Offence of forgery not made out.

(Para 12)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 311, 311A – Cheque bounce complaint -- Expert evidence in rebuttal -- Respondent/ accused disputed his signatures on the cheque from the very beginning -- If the complainant knowing fully well that the accused has denied his signatures on the cheque, did not choose to examine an expert, he cannot be permitted to examine such expert by way of rebuttal to defence evidence – Application dismissed by Trial court – Order upheld.

(Para 1, 8-10)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – POCSO case -- Sodomy with minor boy – Acquittal -- Blood group of accused matched with the semen found on underwear of victim -- Affirmative incriminatory opinion recorded against the accused – Held, existence of semen stains on the underwear of the victim-boy, did require that the blood group of the victim also being collected by the investigating officer – In the event similarity of blood group of the accused and the victim conclusion would become sparked from the DNA specialist – Investigating officer did not collect the blood sample of the victim -- Resultantly, the opinion would beget thereto an exculpatory effect -- No apposite DNA profiling made – Benefit of doubt is to be accorded to the appellant-convict -- Victim completely resiling from his statements – Appeal allowed, convicting and sentence set aside -- Appellant acquitted.

(Para 17-19)

A. Indian Evidence Act, 1872 (1 of 1872), Section 3A, 7 – Document -- Pen-drive -- Recording (audio-video) contained in the pen-drive is documentary evidence being an electronic record and can even be treated as an admission u/s 7, however, subject to proof of its genuineness.

(Para 8)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Indian Evidence Act, 1872 (1 of 1872), Section 3A, 7, 65-B -- Arrears of rent -- Eviction petition – Voice sample comparison – Permissibility of -- Admission relating to payment of rent in pendrive -- Pendrive was permitted to be played in Court in the presence of both the parties under the orders of the Rent Controller which was never challenged by the respondent-landlord -- Same was put to respondent while he appeared as PW-1 and was made part of record as Ex.-R-1/A along with an affidavit/ certificate submitted by the petitioner-tenant as Ex. R-2 -- PW-1 disputed the voice therein to be that of petitioner-tenant -- Petitioner-tenant permitted to send his voice sample to the Central Forensic Science Laboratory for comparison with the audio/video recorded in the pendrive Ex.R1/A.

(Para 9-11)

A. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 -- Will -- Death of attesting witnesses – Proof of -- Sections 68 and 69 of Evidence Act are with regard to the procedure to be followed in order to prove any Will -- Section 69 of Evidence Act will be applicable as both the attesting witnesses of Will are stated to have died and as per the said provision of law the Will in question could be proved by examining witnesses who are able to identify the signatures/ attestation of one attesting witness atleast on the Will in question.

(Para 5)

B. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Code of Civil Procedure, 1908 (V of 1908), Section 151 -- Will -- Death of attesting witnesses – Examination of son of attesting witness – Respondent intend to examine son of one of the attesting witness of the Will to identify the signatures of said attesting witness on will in question as per the provisions of Section 69 of Evidence Act -- Said evidence is necessary for the just decision of the case -- Request for the same was made at the belated stage and for that the learned trial Court rightly burdened the respondents with cost of Rs.10,000/- -- No ground to interfere -- Revision petition dismissed.

(Para 6-8)

Indian Evidence Act, 1872 (1 of 1872), Section 45 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Recovery suit -- Expert opinion -- Specimen signature/ Handwriting of plaintiff -- Respondent/ plaintiff himself admitted in his cross-examination that he is ready to give his specimen signatures and handwriting -- No prejudice would be caused to him -- Revision allowed, respondent/ plaintiff directed to give his specimen signatures and handwriting for comparison from the handwriting expert engaged by the petitioners/ defendants.

(Para 5)

A. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification Parade (TIP) -- If the accused are already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful.

(Para 13)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 9, 106 -- Circumstantial evidence – Appellants already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful -- Call Detail Records (CDRs) of the mobile used by the accused to show that their location was at the place of incident -- Mobile numbers alleged to have been used by accused is not in his name but one person resident of Kanpur -- No evidence placed on record to show as to how the said SIM came to be in possession of the accused – Apart from that, if at the time of the incident both accused were at the same place and according to the prosecution inside the house of the deceased, and they were talking to each other on telephone, this itself creates a doubt on the prosecution version -- Evidence with regard to last seen theory is totally unreliable -- Appellants acquitted.

(Para 14, 15, 22)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Guilt of accused – Circumstantial evidence -- Circumstances concerned “must or should” and not “may be” established -- Facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty -- Circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused -- It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt.

(Para 18, 19)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Acquittal – Non-examination of Viscera – Consumption of tranquillizer -- Post-mortem report refrains to give any opinion about the cause of demise on the premise that the report of the chemical examiner upon the viscera of the deceased is awaited – Non-making of examination(s) thereof, cannot lead to an opinion, that the deceased had died on account of his either voluntary consuming or becoming forcibly administered rather any tranquillizer -- When no candid material exist(s) on record suggestive about the cause of demise of the deceased, irrespective of the fact that the body of the deceased was found in the premises of the convict-appellant,  no conclusion can be made that the convict-appellant had any incriminatory role in the demise of the deceased -- Appellant acquitted.

(Para 19, 29)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Acquittal – Report of the pathologist – Report states that the condition of the lungs of the deceased showed mild congestion and the said fact is also spoken by PW-16 in his cross-examination -- Cause of demise of the deceased was owing to a lung infection, which may have remained untreated -- Consequently, the demise of the deceased appears to be natural than homicidal -- Appellant acquitted.

(Para 21, 29)

A. Registration Act, 1908 (16 of 1908), Section 17 -- Pre-existing rights – Declaration of -- Registration of document -- If document is regarding declaration of the pre-existing rights, the same is not compulsorily registerable in view of Section 17 of the Registration Act, 1908.

(Para 9)

B. Registration Act, 1908 (16 of 1908), Section 17 – Indian Evidence Act, 1872 (1 of 1872), Section 65 -- Objection to insufficiently stamped document – Evidence to prove – Secondary evidence -- Court can allow the document to be read with the condition to pay the stamp duty along with some penalty -- If the Court finds at the final stage that the objection so raised is sustainable, the Court can keep such evidence excluded from consideration -- There is no illegality in adopting such a course -- If the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further -- Application moved by the plaintiff-petitioner seeking permission to lead secondary evidence by producing a photocopy of settlement (Iqrarnama) regarding domestic oral partition allowed, subject to proof of its existence and not in his possession.

(Para 9, 10)

Code of Civil Procedure, 1908 (V of 1908), Order 11 Rule 1 and 2 -- Interrogatories -- Proposed interrogatories are held to be nothing else but in the nature of cross-examination and would impact the evidence already led by the parties -- Held purpose of Order XI Rules 1 and 2 CPC is not aimed at to fill up the lacuna at a belated stage.

(Para 13)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6, 33(5) -- Indian Penal Code, 1860 (45 of 1860), Section 376, 506 – Rape with minor – Re-summoning of POCSO victim for cross-examination -- Bar u/s 33(5) POCSO Act may not be absolute and balance of rights needs to be maintained u/s 33(5) of POCSO Act and Section 311 of Cr.P.C. -- Court’s discretion in exercising its power to re-summon a witness for cross-examination has to be exercised with circumspection, caution and utmost sensitivity – Crucial word used in Section 33(5) of POCSO Act is “called repeatedly” -- This Section thus has to be interpreted to balance and applied with the right u/s 311 Cr.P.C. of accused and right to fair trial of an accused depending on facts and circumstances of each case.

(Para 10)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6, 33(5) -- Indian Penal Code, 1860 (45 of 1860), Section 376, 506 – Rape with minor -- Re-examination of POCSO victim for cross-examination – Change of counsel -- Victim was only seven years of age at the time of incident in the year 2016 -- Child victim re-lived the trauma of perverse sexual assault upon her at a very tender age of seven years, once, when she was sexually assaulted, thereafter while recording her statement before the police and u/s 164 Cr.P.C. before the Magistrate and thereafter before the learned Trial Court while recording her evidence – Victim cannot be directed to appear once again after six years to depose about the same incident, only on the ground that the previous counsel had cross-examined the witness in a manner which the new counsel does not find sufficient or appropriate -- Change of counsel cannot be a ground for re-summoning of the witnesses -- Though the accused has to be granted and ensured a fair trial, it cannot mean being afforded unjustified repeated opportunities of cross-examination in every case to indicate fair trial.

(Para 13-21)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- POCSO Act is not gender based and is neutral as far as victim children are concerned.

(Para 14)

D. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Misuse of POCSO law – Ground of -- Any law, whether gender based or not, has the potential of being misused -- Legislature cannot stop enacting laws nor judiciary can stop applying such laws since they have been enacted to curb the larger menace of commission of such offences and getting justice to genuine victims.

(Para 15)

A. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Proof of -- A person propounding the Will has to prove that the Will was duly and validly executed -- That cannot be done simply by proving that the signatures on the Will were that of the testator but it must also be proved that attestations were also made properly as required by Section 63 of the Act, 1925 -- One attesting witness so examined should be in a position to prove the execution of Will – Such witness in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove due execution of the Will.

(Para 14)

B. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Proof of -- Test to be applied is test of satisfaction of a prudent mind -- What is required to be seen is whether the propounder of the Will has produced satisfactory evidence that the Will was signed by the testator who at the relevant time was in a sound or disposing state of mind, understood the nature and effect of the disposition and had put his signatures/thumb impressions with his own free Will.

(Para 14)

C. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Onus on propounder -- A person challenging the Will alleging fabrication, fraud, undue influence or coercion has to prove such pleas but it is also well settled that even in the absence of such pleas, it is a part of initial onus of the propounder to remove all reasonable doubt in the matter.

(Para 15)

D. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Suspicious circumstances -- A circumstance is suspicious when it is not normal or is not normally expected in a normal situation -- While applying the test of satisfaction of judicial conscience, with regard to execution of a Will, the Court has to address itself to the solemn question as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of dispositions of the Will.

(Para 15)

E. Indian Evidence Act, 1872 (1 of 1872), Section 65, 68 -- Will -- Secondary evidence -- As per Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition and contents of a document, when the original has been lost or when the party offering evidence of its contents cannot, for any other reason not arising from his/her own default or neglect, produce it in reasonable time -- Once the appellant was allowed to prove the Will by way of secondary evidence and once she had examined the attesting witness of this Will as a witness, the requirement of law for formal proof of this document had been fulfilled.

(Para 16)

Motor Vehicles Act, 1988 (59 of 1988), Section 163A – Compensation in motor vehicle accident case – Doctor’s evidence -- Head injury and other grievous injuries – After framing of issues the petitioner availed three opportunities to adduce his evidence – In order to examine the concerned doctor the petitioner had already deposited diet money but he failed to procure the presence of said witness and finally the evidence of petitioner was closed by order – Very foundation of the claim petition is dependent on the testimony of treating/ attending doctor – Held, impugned order is not sustainable and accordingly set aside -- One more opportunity granted to the petitioner to conclude his evidence.

(Para 3-5)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Indian Penal Code, 1860 (45 of 1860), Section 366 -- Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 10 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 164 -- Penetrative sexual assault – Marriage with minor girl – Acquittal -- In statement u/s 164 of the Cr. PC, the victim deposed that she was in love with the appellant, had consumed poison, and had even been hospitalized because she was adamant to live with the appellant -- No doubt, she resiled from her statement, yet, the medical evidence indicated that the victim had a ruptured hymen; there was no external injury at her private parts – Prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion on the part of the appellant – Held, M’s statement u/s 164 of the Cr. PC contained a truthful narration of the events -- Impugned judgment set aside the charge u/s 366 IPC against the appellant -- Charges u/s 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act, cannot be sustained -- Conviction and sentence set aside.

(Para 20-22)

Indian Penal Code, 1860 (45 of 1860), Section 299 , 302, 304A -- Code of Criminal Procedure, 1973 (2 of 1974), Section 313 -- Murder – Culpable homicide – Death by Fire arm -- Gross negligence -- When the incident occurred, the change lever was not kept in a safety position by the appellant and therefore, SAF got cocked which resulted in the firing of five bullets -- Appellant must take the blame for not taking the elementary precaution of keeping the change lever in the safety position -- U/s 313 of CrPC, the case of the prosecution that he intentionally opened fire by aiming at the deceased was not put to the appellant -- Theory of the prosecution that the appellant fired intentionally has not been established – Accidental fire took place and that is how the appellant became responsible for the death – Not a case of culpable homicide as defined u/s 299 of IPC -- Gross negligence on the part of the appellant which led to a loss of human life -- Appellant is guilty of a lesser offence punishable u/s 304A of IPC, conviction u/s 302 of the IPC set aside.

(Para 14-20)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 6 – Indian Penal Code, 1860 (45 of 1860), Section 375, 376 -- Aggravated penetrative sexual assault -- Prosecutrix aged 17 years and 5-6 months – Consensual relationship – Rape with minor – Acquittal -- A provision which does not take into consideration our societal realities and proceed on an assumption, that every sexual indulgence with a minor, irrespective of whether she was capable of being an equal participant in the act, has definitely created a situation, resulting in acquittal of the accused in cases of consensual sexual relationship, where the gap in the age of accused and that of victim is small.

(Para 27)

B. Indian Penal Code, 1860 (45 of 1860), Section 363 – Kidnapping -- Prosecutrix aged 17 years and 5-6 months – Accused and the prosecutrix were indulged in a love affair and in cross-examination, she specifically admitting about the same -- Girl on her own, left her house and accompanied the accused, where she travelled in distinct States and made no attempt to flee away and rather addressed letters to the concerned police stations about she willingly accompanying the accused and referring to “Nikah”, being performed with the accused -- Ld. Special Judge has rightly derived a conclusion that there is no evidence, establishing that the accused had taken away or enticed her and, therefore, an offence under Section 363 of IPC is not made out.

(Para 28)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 6 – Indian Penal Code, 1860 (45 of 1860), Section 375, 376 -- Aggravated penetrative sexual assault -- Consensual relationship – Rape with minor – Acquittal – Prosecutrix continued to stay with the accused and physical relationship was established between them, considering that she was aged 17 years and 5-6 months, a conclusion was derived by Ld. Special Judge that the act of the accused amounted to an offence of rape as, she being minor, sexual relationship maintained with her, either with or without consent, would amount to rape – Evidence on record has clearly made out a case for consensual sex -- Held, ld. Special Judge has erred in convicting the appellant u/s 376 of IPC and u/s 4 and 6 of the POCSO Act – Appellant acquitted.

(Para 28-30)

Indian Penal Code, 1860 (45 of 1860), Section 306 – Abetment of suicide – Acquittal -- Deposition only pointed out that the deceased was over burdened with work; he was not satisfied with the performance of subordinate staff in discharging the official duties; he had an apprehension that the subordinate staff along with RBI official conspired against him and planted the counterfeit currency in cash chest -- Deposition of the complainant and her son had not proved abetment of suicide – Trial court acquitted the accused -- No case made out for interference.

(Para 8, 9)

A. Oaths Act, 1969 (44 of 1969), Section 4(1) – Child witness -- In case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness.

(Para 7)

B. Oaths Act, 1969 (44 of 1969), Section 4(1) – Indian Evidence Act, 1872 (1 of 1872), Section 118 – Child witness -- In the deposition of PW-1, it is mentioned that his age was 12 years at the time of the recording of evidence -- Proviso to Section 4 of the Oaths Act will not apply -- However, in view of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him -- The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth.

(Para 7)

C. Indian Evidence Act, 1872 (1 of 1872), Section 118 – Child witness -- Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence -- A child witness of tender age is easily susceptible to tutoring -- However, that by itself is no ground to reject the evidence of a child witness -- Court must make careful scrutiny of the evidence of a child witness -- Scrutiny of the evidence of a child witness is required to be made by the Court with care and caution -- It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.

(Para 8, 9)

D. Indian Penal Code, 1860 (45 of 1860), Section 302, 324, 449, 34 – Murder – Acquittal -- Investigation Officer did not make investigation by recording the statements of the elder brothers of PW-1/ Minor for verifying whether they were away from the house on the date of the incident -- Shoes of the appellant did not match the moulds of the imprint of the shoe taken by the prosecution -- Possibility of the PW-1/ minor witness, being tutored cannot be ruled out -- There is no support or corroboration to the testimony of PW-1, apart from other deficiencies in the prosecution case -- It will not be safe to base the conviction only on the testimony of PW-1/ Minor which does not inspire confidence – Appeal allowed, impugned judgments aside and the appellant is acquitted of the offences.

(Para 10,11)

A. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Circumstantial evidence -- Strong suspicion -- It cannot take place of a proof beyond reasonable doubt.

(Para 8)

B. Indian Evidence Act, 1872 (1 of 1872), Section 24 -- Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder -- Extra-judicial confession -- No reason as to why the accused persons would go 100 kms. away and confess to PW-2 -- Conduct also appears to be unnatural, though IO (PW-11) was known to PW-2 and the telephone which was installed in his house was in a working condition, he did not find it necessary to inform him through telephone -- Courts below have erred in relying on the extra-judicial confession.

(Para 13)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder – Acquittal -- Circumstantial evidence -- According to PW-11, the gun which was recovered from the car had two empty cartridges (Ex. P10 and P11) -- Evidence of Doctor (PW-5), who had conducted the post-mortem of the deceased, would show that there was no external exit wound, and wad and pellets were preserved and sealed – No evidence collected as to whether the said gun belonged to the appellant MK, even the Ballistic Expert has not been examined to show that the wad and pellets were fired from the empty cartridges (Ex. P10 and P11)

-- In view of the serious doubt with regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examine Ballistic Expert would be a glaring defect in the prosecution case.

Held, prosecution has failed to prove the case beyond reasonable doubt and, as such, the accused are entitled to benefit of doubt -- Judgment of the Trial Court quashed and set aside, appellants shall stand discharged.

(Para 22-27)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Indian Evidence Act, 1872 (1 of 1872), Section 45 -- Specific performance of contract -- Regular Second appeal – Handwriting expert – Witness of scribe and marginal witness -- Report of the handwriting and finger print expert is an opinion which is not binding on the court -- Handwriting and finger print expert was engaged by the defendants -- Direct evidence namely the statement of the marginal witness as well as scribe proved the execution of the agreement to sell – In such circumstances, conclusion of the courts below while disbelieving the opinion does not require interference.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Indian Evidence Act, 1872 (1 of 1872), Section 59, 60, 91 -- Regular Second appeal – Specific performance of contract -- Proof of payment of earnest money – Written agreement – Witness -- As regards the argument that there is a difference in the statement of the plaintiff and the scribe with regard to the payment of the amount, it may be noted that with the passage of time, the memory of a human is bound to get blurred -- There is a written contract between the parties acknowledging receipt of Rs.2,40,000/- -- Such written contract in the absence of any other evidence is required to be accepted -- Moreover, on appreciation of evidence, both the courts have already returned a finding of fact – Appeal dismissed.

(Para 6-8)

Indian Evidence Act, 1872 (1 of 1872), Section 65 – Secondary evidence -- Secondary evidence can be led if it is shown that the original document existed or is accounted for anywhere -- Merely by saying that the same is in possession of defendant, which fact is also denied, would not absolve defendant of the duty to prove that the original existed – Defendant failed to prove existence and execution of the original Will – Trial Court allowed the application to lead secondary evidence -- Order is perverse and suffers from material irregularity, set aside.

(Para 1, 7-12)

A. Indian Penal Code, 1860 (45 of 1860), Section 376 – Rape – Acquittal -- Delay of 28 days in giving the complaint – To commit the offence punishable u/s 376 IPC no sane person would take two accomplices, that too after committing a similar offence earlier -- Complainant was not present on both the occasions -- There is no attempt to recover the knife from the appellant as it is a specific case of the prosecution that he committed the offence by threatening to harm the prosecutrix -- No reason as to why the sole eye-witness has not been examined – Appellant acquitted.

(Para 8-13)

B. Indian Evidence Act, 1872 (1 of 1872), Section 134 -- Indian Penal Code, 1860 (45 of 1860), Section 376 – Rape – Statement of prosecutrix -- Evidence of the prosecutrix will have to be kept at a higher pedestal but then, such a testimony will have to satisfy the conscience of the Court -- It has to be seen contextually in the light of the other evidence available.

(Para 10)

A. Indian Penal Code, 1860 (45 of 1860), Section 489C – Fake currency -- Recovery of two fake currency notes of Rs.100 each – Acquittal by Trial Court -- Judgment of acquittal strengthen the presumption of the innocence of the accused -- Articles recovered in Dharamshala were not sealed on the spot – No independent witness examined -- Prosecution has neither disclosed the name of the manager and the staff of the said Dharamshala, in whose presence the alleged recovery is said to have taken place, nor the signature of any of them is on the recovery memo, nor the register of Dharamshala has been produced by the prosecution – Acquittal order by the Trial Court, upheld -- Appeal dismissed.

(Para 13-24)

B. Indian Evidence Act, 1872 (1 of 1872), Section 25, 26 -- Section 25 of the Act, 1872 is broadly worded and it excludes from evidence a confession made by the accused to a police officer under any circumstances and a confession made by a person while he was in the custody of the police is also inadmissible u/s 26 of the Indian Evidence Act, 1872 unless made in the immediate presence of a Magistrate.

(Para 15)

A. Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3(1)(x) – Offence under SC/ST Act -- Mens rea -- Delay of two days in FIR -- Except abusing the complainant with her caste name, there is no allegation that the appellant with a view to intentionally insult or intimidate or humiliate the complainant, abused her and that too in a place within the public view -- To attract the offence punishable u/s 3(1)(x) of the SC & ST Act, the mens rea is the essential ingredient -- If in the course of a quarrel or due to some other grouse, the accused abused the complainant by using the caste name, the said act by itself does not automatically attract the offence Section 3(1)(x) of the SC & ST Act -- Appellant acquitted.

(Para 10-14)

B. Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3(1)(x) – Offence under SC/ST Act -- Public view -- The expression “public view” as enshrined in Section 3(1)(x) of the SC & ST, has to be interpreted to mean that the public persons present (howsoever small number it may be), should be independent and impartial and not interested in any of the parties.

(Para 10)

C. Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3(1)(x) – Code of Criminal Procedure, 1973 (2 of 1974), Section 154 -- Offence under SC/ST Act -- Incident of 08.00 PM on 22.05.2005 -- Complainant had ample opportunity to report the matter to the police, still the report was lodged at about 7:30 PM on 24.05.2005, after a delay of about two days and there is no explanation for the said delay -- Prosecution did not lead any evidence to indicate the sufficient reasons for reporting the matter so late -- Lodging of the complaint after an unexplained and inordinate delay is also a strong circumstance to doubt the commission of offence.

(Para 11)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 243 -- Defence witness – Evidential value -- Deposition of a defence witness cannot be discarded or disbelieved only on the ground that he was supporting the case of the accused -- Every defence witness has to be treated at par with a prosecution witness and if the deposition of a defence witness is found to be creditworthy, the same can always be believed and relied upon by the courts.

(Para 12)

A. Evidence law – Sale deed – Proof of -- It is trite that a registered sale deed is not a public document but a private document and production of the sale deed does not dispense with need for proof of execution of the document.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence – Application is totally bereft of any reason or even a whisper as to why the evidence now sought to be produced could not be led earlier -- First Appellate Court, treating the sale deeds as if they were per se admissible in evidence, has allowed the additional evidence which cannot be permitted in law -- A sale deed would have to be proved in accordance with the provisions of law -- Since the discretion exercised is not in accordance with law, revision petition allowed and the impugned order set aside.

(Para 8, 9)

Specific Relief Act, 1963 (47 of 1963), Section 38 – Suit for permanent injunction – Possession of suit property – Burden of proof -- In a suit filed u/s 38 of the Specific Relief Act, 1963, permanent injunction can be granted only to a person who is in actual possession of the suit property -- Burden of proof lies upon the plaintiff to prove that he was in actual and physical possession of the suit property on the date of suit -- Possession of the plaintiff cannot be based upon inferences drawn from circumstances -- Plaintiff has to prove actual possession for grant of permanent injunction.

(Para 7)

Indian Evidence Act, 1872 (1 of 1872), Section 45 -- DNA test – Suit for declaration that plaintiff is daughter of defendant no.1 – Application by plaintiff for DNA test -- Parties have already led their evidence -- Defendant No.1-petitioner cannot be compelled to adduce evidence in support of the case set up by the plaintiff – Burden lies on the litigating party to prove his or her case by adducing evidence -- A DNA test cannot be ordered so as to lead to a roving enquiry -- Plaintiff-respondent No.1 failed to make out a strong prima facie case for ordering the DNA test alongwith that of the defendant No.1-petitioner -- Revision petition allowed, the impugned order ordering the DNA test set aside and the application for DNA test stands dismissed.

(Para 7)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Denial of execution of agreement to sell by defendant – Readiness and willingness -- Forged and fabricated document alleged by defendant – Best course open to the plaintiff was to examine hand writing expert -- It was incumbent upon the plaintiff to get the disputed signatures of defendant on the agreement compared with his specimen/admitted signatures -- Without such examination, the case of the plaintiff suffered a big jolt – Suit dismissed.

(Para 11-20)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 118(a) – Complaint for dishonor of cheque – Presumption – Rebuttal -- There is a difference between an ‘ordinary criminal case’ and a ‘complaint under Section 138 of NI Act’ -- In ordinary criminal case, presumption of innocence is in favour of accused, whereas in a case in complaint under NI Act, presumption is in favour of complainant with reverse onus upon the accused.

(Para 20)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 – Code of Criminal Procedure, 1973 (2 of 1974), Section 251, 258 – Complaint for dishonor of cheque – Notice of accusation – Discharge of accused – Quashing of criminal proceedings -- In case ingredients for filing complaint u/s 138 of NI Act are in existence, then presumption is there, as provided under law, and to rebut the same, definitely, evidence would be required, which would be possible only in the trial Court, but in case essential ingredients are lacking, then the trial Court, at the time of framing of charge/putting notice of accusation, can quash the criminal proceedings.

(Para 21)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Complaint for dishonor of cheque – Security Cheque -- Presumption is in favour of the complainant and against the petitioner/accused – No illegality or perversity in the order passed by the Magistrate for summoning the petitioner – Petitioner shall have every right to rebut the presumption by placing on record relevant material before the Trial Court at appropriate stage during trial -- Quashing petition dismissed.

(Para 22, 23)

A. Indian Evidence Act, 1872 (1 of 1872), Section 165 -- Duty of trial judge -- A trial judge has tremendous powers to “ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant” -- It is in fact the duty of the Trial Judge to do so if it is felt that some important and crucial question was left from being asked from a witness -- Duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial “by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.”

(Para 11)

B. Indian Evidence Act, 1872 (1 of 1872), Section 8, 27, 101, 106 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Acquittal -- Circumstantial evidence – Last seen theory -- When the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen and the time of death of the deceased, Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case -- Discovery u/s 27 of the Act, is the discovery of ‘Parna’ and watch of the deceased -- This evidence in itself is not sufficient to fix guilt on the appellant -- Appellant acquitted.

(Para 2-16)

Indian Penal Code, 1860 (45 of 1860), Section 336, 506 – Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Act endangering life or personal safety of others -- Acquittal -- Test identification Parade (TIP) -- When it is established from the testimony of witnesses that occurrence took place at about 10:30 p.m., with no source of light, it is highly doubtful as to how the two police officials identified the accused, particularly when there is no evidence on record that they knew the accused earlier -- No Test Identification Parade was ever conducted -- Complainant and alleged eye-witness have not supported the prosecution case – Appeal accepted, impugned judgment of conviction and order of sentence are set aside.

(Para 12)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 134 -- Murder – Eye witness turned hostile -- Two purported ocular witnesses to the occurrence PW-1 and PW-2 did not support the prosecution case, turned hostile -- In a grilling cross-examination, rather both completely denied making their respective previous statements in writing to the police officer nor did they make any affirmative answer to any incriminatory affirmative suggestion put to each of them by the Public Prosecutor -- Thus stems an inference that prosecution has been unable to invincibly substantiate the charge(s) drawn against the accused.

(Para 15)

B. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Indian Penal Code, 1860 (45 of 1860), Section 302 -- Murder – Acquittal -- Test Identification Parade (TIP) in Court – Reliance upon -- Injured eye witness (PW-15) made a previous statement to the police officer discloses;

“…. That person was with muffled face and he said to shoot me because I am the person of that party. In between the person who having gun, shooted me. I can identify that voice and face thoroughly if he was produced before me, because that person was faced me prior somewhere. The person, who shooted me, I can identify him. if he was produced before me because his face was uncovered. After hitting of bullet shot, I became unconscious…….”

Held, unless the investigating officer during the course of his carrying investigations into the crime FIR, had held a valid identification parade with the participation thereins of PW-15 to enable to identify the accused, the identification of the accused by PW-15 in Court was a frail and uncreditworthy -- PW-15 was legally incapacitated to identify for the first time the accused in Court --  Therefore, no evidentiary vigour can be assigned thereto -- Prosecution case which becomes rested, upon the deposition of PW-15, thus cannot succeed.

(Para 17-20)

C. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Murder – Acquittal -- Disclosure statement – Recovery of revolver and three live cartridges -- Ballistic expert’s opinion --  Report of the ballistic expert is of grave importance -- No conclusive opinion was made by the ballistic expert with respect to lead bullet mark CB/1 contained in parcel ‘D’ becoming fired from 0.32 inch revolver – Held, the inconclusivity of opinion leads to an inference that the recovery of 0.32 inch revolver was a recovery not related to the crime event nor also the accused can be conclusively said to make user of the said recovered fire arm in his committing the fatal assault upon deceased -- Impugned verdict of conviction and sentence(s) of imprisonment as well as of fine required to be quashed and set aside – Appeal allowed, appellant acquitted.

(Para 23-28)

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 201, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 105 – Murder -- Last seen theory -- Presence of two accused persons missing in FIR – Had the complainant been aware of the narrative as put forward by PW-14, before registration of FIR, there was no reason for him, who is a father who lost his son, to conceal such essential information -- Non-disclosure of vital information qua presence of accused with the looted goats and sheep of complainant and names of two accused persons, clearly establishes that PW14 is an introduced witness, who was examined just to complete the chain of circumstances -- Story of last seen stands badly contradicted by the contents of FIR.

(Para 25, 26)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 201, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 45 – Murder -- FSL Report reveals that human blood was detected on the stick, and, knife (Chhura), however, the report is inconclusive qua ‘Human Blood Group’ – It was imperative for the Investigation Officer to have made efforts to collect the finger print impressions from the recovered stick, knife (Chhura), liquor bottle, and, the two glasses, and thereafter, to get them compared with the finger print impressions of the accused persons – However, the Investigation Officer concerned has evidently not carried out any such exercise -- The omission of the prosecution proves fatal to the prosecution story.

(Para 30)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 201, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 27 – Murder -- Disclosure statement – Demarcation of places – Relevance -- Nothing recovered from appellant/ accused, in pursuance of his disclosure statement except demarcation of certain places, vis-à-vis, the place where liquor was consumed by accused persons, the place of occurrence, the place from where the dead body was thrown into canal, and, the place where accused persons had left the looted goats and sheep -- Such a disclosure statement does not establish the guilt of the appellant/accused, as the disclosures made therein were already in the knowledge of the Investigation Officer.

(Para 34, 35)

D. Indian Penal Code, 1860 (45 of 1860), Section 302, 201, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 45 – Murder -- FSL Report unveils matching of the POP casts of foot and footwear impressions of respondent/accused with the ones lifted from the crime scene -- Whether the acquittal of respondent/ accused can be converted into conviction, solely on the basis of the FSL report, answer is in negative – Samples of foot prints of the accused persons were not taken in the presence of any Magistrate -- Except the FSL Report, there is no other corroborative incriminating evidence available on record -- As such, in the absence of any corroborative evidence, wherefrom the FSL Report may gain vigor, a finding of acquittal cannot be turned into a finding of guilt.

(Para 45, 46)

A. Indian Evidence Act, 1872 (1 of 1872), Section 8 – Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder -- Subsequent conduct -- Conduct of accused in going to the Police Station and surrendering before the Police can be taken into consideration.

(Para 17)

B. Indian Evidence Act, 1872 (1 of 1872), Section 8, 106 – Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder – Last seen theory -- Prosecution established that the deceased and the accused persons left the house of P.W.5 together and soon thereafter the death of the deceased had occurred -- As such, the burden to show as to what happened after leaving the house would shift on the accused in view of Section 106 of the Indian Evidence Act.

(Para 18)

C. Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder – Death penalty – Commuted to life imprisonment – No criminal antecedents -- Appellant-D has been sentenced to capital punishment, was a young boy of about 25 years at the time of the incident -- Medical evidence would further reveal that the appellants have not acted in a brutal manner, inasmuch as there is only single injury inflicted on both the deceased -- As such, it cannot be considered to be ‘rarest of rare’ case -- Report of the Probation Officer as well as the Superintendent, Central Prison would show that the appellant-D has been found to be well-behaved, helping and a person with leadership qualities -- He is not a person with criminal mindset and criminal records – Sentence of capital punishment commuted to life imprisonment.

(Para 28-31)

Indian Stamp Act, 1899 (2 of 1899), Section 36, 61 -- Exhibition of insufficiently stamped documents – Evidential value -- Documents already having been exhibited without any objection from the respondents-defendants as also in view of the bar contained in Section 36 of the Act and no recourse having been taken u/s 61 of the Act, impugned order holding the documents Ex.P-3 and P-4 as not readable in evidence, set aside.

(Para 8)

Indian Penal Code, 1860 (45 of 1860), Section 302, 397, 450 – Indian Evidence Act, 1872 (1 of 1872), Section 27, 106, 114(a) -- Murder – Recovery of stolen goods – Circumstantial evidence – Conviction of appellants:

-- A2 was found in possession of a bag carrying some of the stolen ornaments and, speaks against him, in terms of Section 114 (a) of the Indian Evidence Act, 1872 -- It was for A2 to explain as to how he came to be in possession of those stolen ornaments, u/s 106 of the Indian Evidence Act, 1872 -- However, no explanation was offered by him.

-- It is the prosecution’s case that A1 confessed to commission of the crime and upon being questioned as to the stolen gold ornaments, he himself went into the other room in his house and brought out a bag containing the gold ornaments -- This part of his confession admissible u/s 27 of the Indian Evidence Act, 1872, as it led to the recovery of the stolen gold ornaments.

Recovery of this stolen property from the accused would not be sufficient in itself to convict them for murder -- Inescapable fact remains that PWs 4, 6, and 10, who were witnesses independent of each other and who had no animosity or enmity with the accused, spoke in unison about seeing them running away from the house of PW-1 of the fateful night with bags in their possession -- No explanation is forthcoming as to why three separate witnesses would choose to implicate the accused falsely.

Sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them -- Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario.

Conviction order upheld.

(Para 23-27)

A. Indian Penal Code, 1860 (45 of 1860), Section 304B, 498A – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Acquittal -- Presumption regarding dowry death -- Mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A IPC.

(Para 23)

B. Indian Penal Code, 1860 (45 of 1860), Section 304B, 498A – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Acquittal -- Presumption regarding dowry death -- Cruelty or harassment has to be soon before the death.

-- None of the witnesses stated about the cruelty or harassment to the deceased by the appellant or any of his family members on account of demand of dowry soon before the death or otherwise. Rather harassment has not been narrated by anyone. It is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident. The aforesaid evidence led by the prosecution does not fulfil the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act. Even the ingredients of Section 498A IPC are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death.

-- DW-1, who was head of the village at the time of incident, stated that the information about the death was given to the parents of the deceased and other family members and belongings of the deceased were handed over to her maternal grandmother and uncle after cremation -- His statement is in line with the admission made by (PW-3)/ maternal grandmother, PW-2/ maternal uncle of the deceased -- Meaning thereby that there was no suspicion regarding the death of the deceased.

On a collective appreciation of the evidence led by the prosecution, prerequisites to raise presumption u/s 304B IPC and Section 113B of the Indian Evidence Act having not been fulfilled, the conviction of the appellant cannot be justified.

(Para 16-23)

A. Unlawful Activities (Prevention) Act, 1967 (37 of 1967), Section 18, 19, 20, 39, 43D(5) – Explosive Substances Act, 1908 (6 of 1908), Section 4, 5 -- Indian Penal Code, 1860 (45 of 1860), Section 120-B, 302 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Murder – Offence under UAPA – Regular bail – No reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true -- Hence, the embargo on the grant of bail under proviso to sub-section (5) of Section 43D will not apply in the case -- Charge not framed, prosecution proposes to examine more than 140 witnesses -- Some of the accused are absconding -- Thus, no possibility of the trial commencing in the near future – Special Judge directed to release the appellants on bail on appropriate conditions determined by him after hearing the appellants and respondent.

(Para 21)

B. Indian Evidence Act, 1872 (1 of 1872), Section 25, 27 – Confession – Discovery of fact – Section 27 of the Evidence Act is an exception to the general rule under Section 25 that a confession made by an accused to a police officer is not admissible in evidence -- The first condition for the applicability of Section 27 is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information -- Only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused.

(Para 14)

Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 173, 48 – Indian Evidence Act, 1872 (1 of 1872), Section 65A, 65B -- Criminal trial – False implication -- Preservation of CDRs and telecom record -- A case of chance recovery, so preservation or production of the electronic record is not going to affect the source of secret information – As per the notification dated 21.12.2021 issued by Ministry of Communication, Govt. of India, the telecommunication company shall maintain all call details record etc. for at least two years for scrutiny and two years has not lapsed till date of recovery -- Investigating Officer and Telecommunication Company directed to preserve the CDRs of the Police Officials, private persons and petitioner and co-accused with liberty to the petitioner to summon the same at the appropriate stage of trial, for the purpose of putting the same to confront the prosecution witnesses or to produce it in defence evidence -- Admissibility and relevance of said electronic record will be subject to the provisions of Section 65A and Section 65B of Evidence Act.

(Para 7-13)