MANU/SC/0027/1956

Equivalent/Neutral Citation: AIR1956SC 488, 1956()ALT593(SC ), 1956C riLJ919, 1956 INSC 25, [1956]1SC R363

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 147 of 1955
Decided On: 17.04.1956
Basdev Vs. The State of Pepsu
Hon'ble Judges/Coram:
N. Chandrasekhara Aiyar and N.H. Bhagwati, JJ.
Case Note:
Indian Penal Code, ss. 302-304,86 - Murder or culpable homicide not
amounting to murder - Accused under the influence of drink but his mind not
so obscured by the drink as to cause incapacity in him to form the requisite
intention.
JUDGMENT
N. Chandrasekhara Aiyar, J.
1 . The appellant Basdev of the village of Harigarh is a retired military Jamadar. He is
charged with the murder of a young boy named Maghar Singh, aged about 15 to 16.
Both of them and others of the same village went to attend a wedding in another
village. All of them went to the house of the bride to take the midday meal on the 12th
March, 1954. Some had settled down in their seats and some had not. The appellant
asked Maghar Singh, the young boy to step aside a little so that he may occupy a
convenient seat. But Maghar Singh did not move. The appellant whipped out a pistol
and shot the boy in the abdomen. The injury proved fatal.
2 . The party that had assembled for the marriage at the bride's house seems to have
made itself very merry and much drinking was indulged in. The appellant Jamadar
boozed quite a lot and he became very drunk and intoxicated. The learned Sessions
Judge says "he was excessively drunk" and that "according to the evidence of one
witness Wazir Singh Lambardar he was almost in an unconscious condition". This
circumstance and the total absence of any motive or premeditation to kill were taken by
the Sessions Judge into account and the appellant was awarded the lesser penalty of
transportation for life.
3. An appeal to the PEPSU High Court at Patiala proved unsuccessful. Special leave was
granted by this Court limited to the question whether the offence committed by the
petitioner fell under section 302 of the Indian Penal Code or section 304 of the Indian
Penal Code having regard to the provisions of section 86 of the Indian Penal Code.
Section 86 which was elaborately considered by the High court runs in these terms :
"In cases where an act done is not an offence unless done with a particular
knowledge or intent, a person who does the act in a state of intoxication shall
be liable to be dealt with as if he had the same knowledge as he would have
had if he had not been intoxicated, unless the thing which intoxicated him was
administered to him without his knowledge or against his will".
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4 . It is no doubt true that while the first part of the section speaks of intent or
knowledge, the latter part deals only with knowledge and a certain element of doubt in
interpretation may possibly be felt by reason of this omission. If in voluntary
drunkenness knowledge is to be presumed in the same manner as if there was no
drunkenness, what about those cases where mens rea is required. Are we at liberty to
place intent on the same footing, and if so, why has the section omitted intent in its
latter part ? This is not the first time that the question comes up for consideration. It
has been discussed at length in many decisions and the result may be briefly
summarised as follows :-
So far as knowledge is concerned, we must attribute to the intoxicated man the same
knowledge as if he was quite sober. But so far as intent or intention is concerned, we
must gather it from the attending general circumstances of the case paying due regard
to the degree of intoxication. Was the man beside his mind altogether for the time being
? If so it would not be possible to fix him with the requisite intention. But if he had not
gone so deep in drinking, and from the facts it could be found that he knew what he
was about, we can apply the rule that a man is presumed to intend the natural
consequences of his act or acts.
5. Of course, we have to distinguish between motive, intention and knowledge. Motive
is something which prompts a man to form an intention and knowledge is an awareness
of the consequences of the act. In many cases intention and knowledge merge into each
other and mean the same thing more or less and intention can be presumed from
knowledge. The demarcating line between knowledge and intention is no doubt thin but
it is not difficult to perceive that they connote different things.
Even in some English decisions, the three ideas are used interchangeably and this has
led to a certain amount of confusion.
6. In the old English case, Rex v. Meakin [(1836) 173 E.R. 131; 7 Car. & P. 295 , Baron
Alderson referred to the nature of the instrument as an element to be taken in
presuming the intention in these words :
"However, with regard to the intention, drunkenness may perhaps be adverted
to according to the nature of the instrument used. If a man uses a stick, you
would not infer a malicious intent so strongly against him, if drunk, when he
made an intemperate use of it, as he would if he had used a different kind of
weapon; but where a dangerous instrument is used, which, if used, must
produce grievous bodily harm, drunkenness can have no effect on the
consideration of the malicious intent of the party."
7. In a charge of murdering a child leveled against a husband and wife who were both
drunk at the time, Patteson J., observed in Regina v. Cruse and Mary his wife (1838)
173 E.R. 610; 8 Car. & P. 541.
"It appears that both these persons were drunk, and although drunkenness is
no excuse for any crime whatever, yet it is often of very great importance in
cases where it is a question of intention. A person may be so drunk as to be
utterly unable to form any intention at all, and yet he may be guilty of very
great violence."
Slightly different words but somewhat more illuminating were used by Coleridge J., in
Reg. v. Monk-house (1849) 4 Cox. C.C. 55.

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 "The inquiry as to intent is far less simple than that as to whether an act has
been committed, because you cannot look into a man's mind to see what was
passing there at any given time. What he intends can only be judged of by what
he does or says, and if he says nothing, then his act alone must guide you to
your decision. It is a general rule in criminal law, and one founded on common
sense, that juries are to presume a man to do what is the natural consequence
of his act. The consequence is sometimes so apparent as to leave no doubt of
the intention. A man could not put a pistol which he knew to be loaded to
another's head, and fire it off, without intending to kill him; but even there the
state of mind of the party is most material to be considered. For instance, if
such an act were done by a born idiot, the intent to kill could not be inferred
from the act. So, if the defendant is proved to have been intoxicated, the
question becomes a more subtle one; but it is of the same kind, namely, was
he rendered by intoxication entirely incapable of forming the intent charged ?"
"Drunkenness is ordinarily neither a defence nor excuse for crime, and where it
is available as a partial answer to a charge, it rests on the prisoner to prove it,
and it is not enough that he was excited or rendered more irritable, unless the
intoxication was such as to prevent his restraining himself from committing the
act in question, or to take away from him the power of forming any specific
intention. Such a state of drunkenness may no doubt exist".
8 . A great authority on criminal law Stephen J., postulated the proposition in this
manner in Reg. v. Doherty (1887) 16 Cox C.C. 306 -
"..... although you cannot take drunkenness as any excuse for crime, yet when
the crime is such that the intention of the party committing it is one of its
constituent elements, you may look at the fact that a man was in drink in
considering whether he formed the intention necessary to constitute the crime".
9 . We may next notice Rex v. Meade [1909] 1 K.B. 895, where the question was
whether there was any misdirection in his summing up by Lord Coleridge, J. The
summing up was in these words :
"In the first place, every one is presumed to know the consequences of his acts.
If he be insane, that knowledge is not presumed. Insanity is not pleaded here,
but where it is part of the essence of a crime that a motive, a particular motive,
shall exist in the mind of the man who does the act, the law declares this - that
if the mind at that time is so obscured by drink, if the reason is dethroned and
the man is incapable therefore of forming that intent, it justifies the reduction
of the charge from murder to man-slaughter".
10. Darling, J., delivering the judgment of the Court of Criminal Appeal affirmed the
correctness of the summing up but stated the rule in his own words as follows :
"A man is taken to intend the natural consequences of his acts. This
presumption may be rebutted (1) in the case of a sober man, in many ways :
(2) it may also be rebutted in the case of man who is drunk, by showing his
mind to have been so affected by the drink he had taken that he was incapable
of knowing that what he was doing was dangerous, i.e., likely to inflict serious
injury. If this be proved, the presumption that he intended to do grievous
bodily harm is rebutted".
Finally, we have to notice the House of Lord's decision in Director of Public Prosecutions
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v. Beard [1920] A.C. 479. In this case a prisoner ravished a girl of 13 years of age, and
in aid of the act of rape he placed his hand upon her mouth to stop her from screaming,
at the same time pressing his thumb upon her throat with the result that she died of
suffocation. Drunkenness was pleaded as a defence. Bailhache J., directed the jury that
the defence of drunkenness could only prevail if the accused by reason of it did not
know what he was doing or did not know that he was doing wrong. The jury brought in
a verdict of murder and the man was sentenced to death. The Court of Criminal Appeal
(Earl of Reading C. J., Lord Coleridge J., and Sankey, J.) quashed this conviction on the
ground of misdirection following Rex v. Meade [1909] 1 K.B. 895, which established
that the presumption that a man intended the natural consequences of his acts might be
rebutted in the case of drunkenness by showing that his mind was so affected by the
drink that he had taken that he was incapable of knowing that what he was doing was
dangerous. The conviction was, therefore, reduced to manslaughter. The Crown
preferred the appeal to the House of Lords and it was heard by a strong Bench
consisting of Lord Chancellor, Lord Birkenhead, Earl of Reading, C. J., Viscount
Haldane, Lord Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster, and Lord
Phillimore. The Lord Chancellor delivered the judgment of the court. He examined the
earlier authorities in a length judgment and reached the conclusion that Rex v. Meade
[1909] 1 K.B. 895, stated the law rather too broadly, though on the facts there proved
the decision was right. The position "that a person charged with a crime of violence
may show in order to rebut the presumption that he intended the natural consequences
of his acts, that he was so drunk that he was incapable of knowing what he was doing
was dangerous....... " which is what is said in Meade's case, was not correct as a
general proposition of law and their Lordships laid down three rules :
(1) That insanity, whether produced by drunkenness or otherwise, is a defence
to the crime charged;
(2) That evidence of drunkenness which renders the accused incapable of
forming the specific intent essential to constitute the crime should be taken into
consideration with the other facts proved in order to determine whether or not
he had this intent;
(3) That evidence of drunkenness falling short of a proved incapacity in the
accused to form the intent necessary to constitute the crime, and merely
establishing that his mind was affected by drink so that he more readily gave
way to some violent passion, does not rebut the presumption that a man
intends the natural consequences of his acts.
11. The result of the authorities is summarised neatly and compendiously at page 63 of
Russel on Crime, tenth edition, in the following words :
"There is a distinction, however, between the defence of insanity in the true
sense caused by excessive drunkenness and the defence of drunkenness which
produces a condition such that the drunken man's mind becomes incapable of
forming a specific intention. If actual insanity in fact supervenes as the result of
alcoholic excess it furnishes as complete an answer to criminal charge as
insanity induced by any other cause.
But in cases falling short of insanity evidence of drunkenness which renders the
accused incapable of forming the specific intent essentials to constitute the
crime should be taken into consideration with the other facts proved in order to
determine whether or not he had this intent, but evidence of drunkenness which

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 falls short of proving such incapacity and merely establishes that the mind of
the accused was so affected by drink that he more readily gave way to some
violent passion does not rebut the presumption that a man intends the natural
consequences of his act".
12. In the present case the learned Judges have found that although the accused was
under the influence of drink, he was not so much under its influence that his mind was
so obscured by the drink that there was incapacity in him to form the required intention
as stated. They go on to observe :-
"All that the evidence shows at the most is that at times he staggered and as
incoherent in his talk, but the same evidence shows that he was also capable of
moving himself independently and talking coherently as well. At the same time
it is proved that he came to the darwaza of Natha Singh P. W. 12 by himself,
that he made a choice for his own seat and that is why he asked the deceased
to move away from his place, that after shooting at the deceased he did attempt
to get away and was secured at some short distance from the darwaza, and that
when secured he realised what he had done and thus requested the witnesses
to be forgiven saying that it had happened from him.
There is no evidence that when taken to the police station Barnala, he did not
talk or go there just as the witnesses and had to be specially supported. All
these facts, in my opinion, go to prove that there was not proved incapacity in
the accused to form the intention to cause bodily injury sufficient in the
ordinary course of nature to cause death. The accused had, therefore, failed to
prove such incapacity as would have been available to him as a defence, and so
the law presumes that he intended the natural and probable consequences of
his act, in other words, that he intended to inflict bodily injury to the deceased
and the bodily injury intended to be inflicted was sufficient in the ordinary
course of nature to cause death".
13. On this finding the offence is not reduced from murder to culpable homicide not
amounting to murder under the second part of section 304 of the Indian Penal Code.
The conviction and sentence are right and the appeal is dismissed.
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 MANU/SC/0552/1971
Equivalent/Neutral Citation: AIR1971SC 722, 1971C riLJ646, 1971 INSC 29, (1971)1SC C 433, (1971)SC C (C ri)189, [1971]3SC R478,
1971(III)UJ270

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 171 of 1968
Decided On: 21.01.1971
Basudev Hazra Vs. Matiar Rahaman Mandal
Hon'ble Judges/Coram:
I.D. Dua and P. Jaganmohan Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: D.N. Mukherjee, Adv
JUDGMENT
I.D. Dua, J.
1. The appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry
at Sadar Ghat on the outskirts of Burdwan town for crossing the river Damodar. This
lease was for a period of three years (August 14, 1963 to August 13, 1966) : Ex. 2. On
November 30, 1964 Matiar Rahman Mandal filed a complaint against the appellant in the
court of the Sadar Sub-Divisional Officer (Judicial), Burdwan alleging that the appellant
used to realise illegally 20 nP. per cart from the cultivators who used to drive their carts
across the dry bed of the river. The matter was reported to the S.D.O. who directed an
enquiry. This infuriated the appellant. On November 29, 1964 the appellant realised
double the amount of toll and on protest and refusal by the complainant he was
threatened with violence by the appellant.
2 . The Magistrate trying the appellant for offences under Sections 23 and 24 of the
Bengal Ferries Act, I of 1885 convicted him of both the offences. The appellant was
sentenced to a fine of Rs. 10/-under Section 23 and to fine of Rs. 20/-under Section 24:
in default of payment of fine in the former case he was to undergo simple imprisonment
for ten days and in the latter for 20 days.
3. On the appellant challenging his conviction on revision in the Court of the Sessions
Judge, the Additional Sessions Judge, Burdwan made a reference to the High Court
recommending the appellant's acquittal. It was observed by the Additional Sessions
Judge in his reference that according to the appellant's defence the complainant's party
were in fact using the landing stage and the path constructed and repaired by him and,
therefore, they were liable to pay the usual toll tax. After reproducing Section 24 he
added:
...the complainant's case as it appears from the petition of complaint and also
from the evidence of the three witnesses examined on the point, is that they do
not take advantage of any of the facilities provided by the lessee and that the
lessee demanded toll from them even though they were using their own path.
The defence as I have already stated, was that the pathway and the landing
stage belonged to the lessee and that, therefore, he was entitled to collect toll.
Forgetting the defence for the moment, it seems to me that no conviction Under
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 Section 24 can be sustained on the case of the complainant as it is.
According to him the collection of money from the people using their own pathway
might amount to extortion but it would not attract Section 24. We need not refer to the
recommendation with respect to the appellant's conviction under Section 23 as this was
accepted by the High Court and there is no appeal against acquittal under that section.
4 . The High Court accepted the recommendation with respect to the conviction under
Section 23 and acquitted the appellant of that offence. In regard to the conviction under
Section 24 the High Court observed that the trial Magistrate had found (i) that the
appellant had been realising toll charges in excess of the scheduled rate of 20 ps. per
cart and also realising such charges from persons who did not use the ferry and (ii) that
though the complainant had not availed of the ferry and had taken the cart over the
sandy bed of the river 40 ps. per cart were realised from him. These findings of fact
were held not open to re-examination on revision. The High Court added that realisation
of 40 ps. fell within the mischief of Section 24 which forbids every lessee from realising
more than lawful toll even in cases in which he is entitled to demand ferry charges.
Repelling the argument that the present was a case of extortion and it did not fall within
the purview of Section 24 the High Court, after referring to the complainant's case,
observed that it was a case of illegal realisation of toll in excess, when the appellant
was not entitled to realise it at all and not a case of extortion under the Indian Penal
Code. The amount had been illegally demanded as a toll and that also in excess of
permissible rate. The reference with respect to Section 24 was, as observed earlier,
rejected.
5 . The appellant has secured special leave to appeal under Article 136 of the
Constitution and his counsel Mr. D.N. Mukherjee has strenuously contended that the
realisation of 40 ps. per cart from those who do not use the ferry can not as a matter of
law fall within the mischief of Section 24 of the Bengal Ferries Act. His contention in
essence is that unless someone actually uses a ferry no charges realised from him for
permitting him to cross the river, even if the demand is made by way of toll, can attract
the provisions of Section 24. The contention though prima facie somewhat attractive
does not stand scrutiny. Section 24 reads as under :
Penalty for taking unauthorised tolls, and for causing delay:
Every such lessee or other person as aforesaid asking or taking more
than the lawful toll, or without due cause delaying any person, animal,
vehicle or other thing, shall be punished with line which may extend to
one hundred rupees.
It is obvious that this section does not speak, of taking toll in excess of the lawful limit
only from those persons who use the ferry. This Act was enacted for regulating ferries
but that does not mean that an illegal demand under the pretext of claim by way of toll
under this Act when it is not legally claimable was not intended by the legislature to be
prohibited and made punishable by the language of Section 24, Shri Mukherjee drew
our attention to Section 5 of the Act in which "ferry" is defined to include a bridge of
boats, pontoons or rafts, a swing-bridge, a flying bridge, a temporary bridge and a
landing stage. According to him, this definition suggests that it is only when a ferry is
used and excessive charges realised that Section 24 would be attracted. The submission
is difficult to accept. This definition which is not exhaustive does not seem to us to
control or otherwise to throw helpful light in the interpretation of Section 24. This
section seems to have been designed in effect to protect the persons crossing the river

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against harassment and abuse of the privileged position which the lessee or other
person authorised to collect the tolls of a public ferry occupies under the statute in the
matter of control over the passage or pathway for crossing, fording or ferrying across
the river. Demanding or receiving more than lawful dues and unduly delaying persons,
animals, vehicles or things in crossing the river are both rendered penal and
punishable. Whether the person from whom the amount is demanded or received is
under no obligation to pay anything by way of toll while crossing the river bed or is
bound by law only to pay 20 ps. per cart as toll would thus be immaterial when
payment is demanded or received on the pretext that it is due as toll when it is legally
not so due. In either case Section 24 would seem to be attracted : this construction
would serve to suppress the mischief at which this section appears to be aimed. The
question whether or not the appellant's case falls within the mischief of extortion as
defined under the Indian Penal Code is not strictly relevant to the point arising in the
controversy because if the appellant's case is covered by Section 24 of the Act then he
is liable to be punished thereunder. His liability to be prosecuted under the Indian Penal
Code cannot by itself in law exclude the applicability of Section 24 to his case. The
Additional Sessions Judge was, in our opinion not quite right in observing that the
defence that the accused was entitled to claim the toll may be ignored, because defence
of an accused person can legitimately be taken into consideration while assessing the
value of the evidence and judging the guilt or innocence of the accused. The appellant's
defence in this case would clearly tend to support the complainant's case that the
amount received was demanded as toll which was an unlawful demand. To exclude
cases like the present from the operation of Section 24 would unduly restrict its
effectiveness and would indeed facilitate illegal recoveries prohibited by it. To that
extent it would defeat the object and purpose which this section is intended to achieve.
When the appellant's counsel took us through the evidence we found that the appellant
had also delayed the prosecution witnesses without due cause in crossing the river in
violation of Section 24. It is, however, unnecessary to pursue this aspect. Finally it may
be pointed out that Article 136 of the Constitution does not confer a right of appeal on a
party. It only confers a discretionary power on this Court to be exercised sparingly to
interfere in suitable cases where grave miscarriage of justice has resulted from illegality
or from misapprehension or mistake in reading evidence or from ignoring, excluding or
illegally admitting material evidence. The present case suffers from no such infirmity.
6. The appeal accordingly fails and is dismissed.
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 MANU/SC/1463/2002
Equivalent/Neutral Citation: III(2002)C C R291, (2003)24OC R171, [2002]SuppSC R67

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 921 of 2000, 791-92 and 837 of 2001
Decided On: 03.09.2002
Bodhraj and Ors. Vs. State of Jammu and Kashmir
Hon'ble Judges/Coram:
Ruma Pal and Dr. Arijit Pasayat, JJ.
Case Note:
Criminal - Conviction - Section 302 r/w 120-B of Indian Penal Code, 1860 (I.
P.C.) - Division Bench affirmed order of conviction passed by trial Court
against Accused No. 1,2,6 and acquittal order of Accused No. 8, 9 - However
High Court set aside acquittal order of Accused No. 3, 4, 5, 7 passed by Trial
Court and convicted them - Hence, this Appeal - Whether order passed by
Court in relation to conviction was justified - Held evidence brought on record
show that Accused 1 and 2 left in company of Deceased - Evidence had also
been brought to establish motive i.e. indebtedness of Accused to deceased -
PW 9 had stated to have seen Deceased running while being chased and
Accused 1 and 2 giving lalkara that Deceased should be killed and should not
escape - Further evidence of eyewitnesses PWs 1 and 2 proved that both
Accused 1 and 2 were seen in company of Deceased - Further, no cogent
reason was indicated as to why same was termed to be unreliable -
Identification of Accused 5 by PW 7 was not of any consequence - Moreover
there was positive evidence that Deceased A-I and A-2 were seen together by
witnesses i.e. PWs 14, 15 and 18 in addition to evidence of PWs 1 and 2 -
Therefore order of conviction passed by High Court based on evidence of PWs
14, 15 and 18, 1, 2 against Accused No. 3, 4, 5, 7 was right - - Thus order of
conviction passed against Accused No. 1,2,6 was right Appeal dismissed.
Criminal - Acquittal - Whether order of acquittal passed in favour of Accused
No. 8, 9 was justified - Held in respect of Accused No. 8, 9 both Trial Court
and High Court recorded acquittal, it was seen that there was no acceptable
material - Further this aspect had been analysed in great detail by both Court
- However Court did not find any reason to interfere with conclusions - Hence
order of acquittal passed by both Court was justified - Appeal dismissed.
Ratio Decidendi:
"Court shall confirm conviction order if same is proved by evidence."
Case Category:
CRIMINAL MATTERS - APPEAL UNDER SECTION 2 OF THE SUPREME COURT
(ENLARGEMENT OF JURISDICTION) ACT
JUDGMENT
Dr. Arijit Pasayat, J.
1. These four appeals relate to a Division Bench judgment of the Jammu and Kashmir
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High Court dated 31-72002. While Criminal Appeals Nos. 921 of 2000, 791 and 792 of
2001 have been filed by the accused, Criminal Appeal No. 837 of 2001 has been filed by
the State.
2. Ravinder Kumar (Accused 1), Ashok Kumar (Accused 2) and Rajesh Kumar (Accused
6) were convicted by the trial court while Bodhraj (Accused 3), Bhupinder (Accused 4),
Subash Kumar (Accused 5) and Rakesh Kumar (Accused 7) were acquitted by the trial
court, but the High Court set aside their acquittal and convicted them. Rohit Kumar
(Accused 8) and Kewal Krishan (Accused 9) were acquitted by the trial Court and their
acquittal has been upheld by the High Court. Another accused i.e. Kishore Kumar was
acquitted by the trial court. He having died during the pendency of the appeal before
the High Court, the appeal against him was held to have abated. Accused Rajesh Kumar
has not preferred any appeal against the conviction as upheld by the High Court.
3. Accused 1 and Accused 2 having been convicted under Section 302 read with Section
120-B of the Indian Penal Code, 1860 (in short, "Indian Penal Code") were sentenced to
suffer imprisonment for life and pay a fine of Rs 20,000 each. It was stipulated that for
default in paying the fine, each had to suffer another year of imprisonment. Similar was
the case with Accused 6. So far as Accused 3, 4, 5 and 7 are concerned, the High Court
convicted and sentenced them on a par with the other three accused.
4. The factual scenario as highlighted by the prosecution is as follows:
Swaran Singh @ Pappi (hereinafter referred to as "the deceased") was running
a finance company. Accused 2 (Ashok Kumar) and Accused 1 (Ravinder Kumar)
had taken huge amounts as loan from the deceased. They suggested to the
deceased to enter into a financial arrangement. On the fateful day i.e. 3-8-
1994, the deceased went to his business premises. After about 10 minutes of
his arrival, accused Ravinder Kumar also reached his office. As the deceased
had brought some money from his house which was to be deposited in a bank,
Darshan Singh (PW 15), an employee was asked to make the deposit. Since no
vehicle was available, Ravinder Kumar gave the key of his car to Darshan
Singh. The registration number of the car is CHO 1 5408. Darshan Singh left
the office around 11.30 a.m. and returned around 1.30 p.m. On his return,
Darshan found the deceased in the company of accused Ravinder Kumar and
Ashok Kumar. He returned the key of the car to Ravinder Kumar. After about
10/15 minutes, the deceased told Darshan to take the food which was to come
from his house, as they were going out to have food. Accused Ashok Kumar and
the deceased went to the Hotel Asia for taking their food. Later on, accused
Ravinder Kumar joined them. All the three after taking food went to the
business premises of Gian Singh (PW 1) who was a property dealer and broker.
He was informed that they were interested in purchasing some land for setting
up a flour mill. Ravinder and Ashok Kumar persuaded the deceased to
accompany them for the selection of the site. Along with Gian Singh (PW 1),
another property dealer was also picked up. This was done as PW 1 wanted to
go the site in question along with Pratap Singh (PW 2) who was his business
partner. All of them went to village Dhiansar where the land was situated. They
went by Car No. JK 02B 566. As accused Ravinder Kumar appeared to be in
extreme haste, he told that the site has been approved and PWs 1 and 2 were
told that they would settle the matter at their business premises. When they
were returning, the deceased was attacked by some persons (later on identified
as Accused 3 to 10). Accused 1 and 2 remained silent spectators and even did
not pay any heed to the pitiful plea of the deceased to bring the car so that he
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 could escape the attacks. On the contrary, they left the scene of occurrence
leaving behind the deceased and PWs 1 and 2. They did not report the matter to
the police and even though they claimed to be friends of the deceased, did not
even inform the family members of the deceased. They owed huge amounts and
issued cheques for which they had made no provision. Ashok Kumar made use
of the cheque book of his wife and issued a cheque in respect of her bank
account, though the same was not operated for quite some time. Accused
Rajesh Kumar's presence was established as later on, a licensed revolver
belonging to accused Ravinder Kumar was recovered at the instance of Ravinder
Kumar. The license of the revolver was seized from the house of Ravinder
Kumar and the father of the said accused produced the same before the police
in the presence of witnesses. Pistol of the deceased was also recovered at his
instance. The licence in respect of the pistol was seized on a personal search of
the deceased at the spot of occurrence. One Hari Kumar (PW 18) stated that
accused Ravinder Kumar and Ashok Kumar, made a statement before him that
they had got the deceased killed because he was demanding money from them.
From the fact that the land was to be selected was only known to accused
Ravinder Kumar and Ashok Kumar, an inference was drawn that it was these
two accused who had hired the assailants and planted them well in advance for
the ultimate elimination of the deceased. The fact that accused Ravinder Kumar
left the office of the deceased earlier and joined them at the hotel was
considered significant, as the intervening period was utilized by him to inform
the assailants as to where they would be taking the deceased for the assaults
being carried out. Accused Rajesh Kumar and Subash Kumar had also suffered
bullet injury which was on account of the firing done by the deceased while he
was trying to save his life.
5 . Recoveries of various weapons used by the assailants were made pursuant to the
disclosures made by the accused Bodhraj, Bhupinder, Subash Kumar, Rajesh Kumar and
Rakesh Kumar. Recoveries were witnessed by several witnesses. Bodhraj was identified
by Jhuggar Singh (PW 6) and Santokh Singh (PW 7). Bhupinder Singh was identified by
Hari Kumar (PW 18) and Gurmit Singh. Similar was the case with accused Subash
Kumar. Rajesh Kumar was identified by Ranjit Sharma (PW 23) and Hari Kumar (PW
18). Accused Rakesh Kumar was identified by Ranjit Sharma (PW 23) and Gurmit Singh,
who was not examined in court. Accused Bodhraj, Bhupinder, Rakesh Kumar, Rohit and
KewalKrishan were identified by Nainu Singh (PW 9) while Subash Kumar and Rajesh
Kumar were identified by Santosh Singh (PW 7) and Surjit Singh (PW 8). The
identification was done on two dates Le. 11-8-1994 and 16-8-1994. Different eye
witnesses claimed to have seen the occurrence either in full or partially. PWs 1,2,7,8
and 9 were really the crucial witnesses. Santosh Singh (PW 7) was disbelieved by the
trial court as well as by the High Court.
6 . In order to establish the plea that conspiracy was hatched, reliance was placed on
the plea of Kapur Chand who was not examined in court. Several other circumstances
were highlighted by the prosecution to establish the plea of conspiracy. It was
submitted that nobody knew except PW 2 where the land was. If he was the person who
had hired the assailants, they (meaning PW I and deceased) would not have gone
empty-handed. But, knowing particularly well that the deceased was always armed,
accused Ravinder purchased a car which was used as a gateway car but never
transferred it to him name. It was, however, conceded by the learned Advocate-General
appearing before the trial court that there was no direct evidence of conspiracy. The
police seems to have proceeded to reach the spot on getting some reliable information.

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7. In order to the attach vulnerability to the judgment of the High Court several points
were urged by the Learned Counsel for the accused persons. It was pointed out that
there was no evidence of any conspiracy. The only witness Kapur Chand who is alleged
to have stated before the police about the conspiracy was not examined. Even the
investigating officer has admitted that there was no direct evidence of conspiracy. There
was no evidence collected against the accused persons to link them with the crime till
11-8-1994 when suddenly materials have been supposed to come like a floodgate.
Initiation of action by the police is also shrouded in mystery. It has not been disclosed
in either the trial court or the High Court as to how the police received information
about the killing and arrived at the spot. Though it was claimed at some point of time
that a telephone call was supposedly made, but the FIR was registered on the basis of
reliable sources. There are no independent witnesses. It is surprising that the alleged
killing took place in the evening time at a highly populated place. The so-called
identification of the witnesses is highly improbable. Additionally, having discarded the
evidence of PW 7 the courts erred in believing the evidence of PWs 8 and 9 who stand
on the same footing. The presence of these' witnesses is highly doubtful. Their behavior
was unnatural and there is no corroborative evidence. They are persons with criminal
records. Since their presence is doubtful, identification, if any, done by them becomes
ipso facto doubtful. The recoveries purported to have been done pursuant to the
disclosure made by the accused persons is highly improbable and requisite safeguards
have not been adopted while making alleged recoveries. The case against four of the
accused persons who were acquitted by the trial court rests on circumstantial evidence.
The approach to be adopted by the court while dealing with circumstantial evidence was
kept in view by the trial court. Unfortunately, the High Court did not do so. It was
further submitted that there was no complete chain of circumstances established which
ruled out even any remote possibility of anybody else than the accused persons being
the authors of the crime. The examination of the so-called eye witnesses PWs 1 and 2
was belated and, therefore, should not have been accepted. The evidence of PWs vis-a-
vis accused persons is so improbable that no credence should be put on it. The High
Court should not have disturbed the findings of innocence of the four accused persons
without any plausible reasoning.
8. On the contrary, Learned Counsel for the prosecution submitted that the background
facts and the evidence on record have to be tested with a pragmatic approach. The
situation which prevailed in the area at the relevant time cannot be lost sight of.
Accused 1 and 2 are very influential persons. The witnesses were naturally terrified. It
has come on record that witnesses PWs 1 and 2 were too terrified even to depose and
had asked for police protection. There is no reason as to why the witnesses would
depose falsely against Accused 1 and 2 who are known to them. There is nothing
irregular or illegal in the procedure adopted while effecting recovery pursuant to the
disclosure made by the accused persons.
9. Before analysing factual aspects it may be stated that for a crime to be proved it is
not necessary that the crime must be seen to have been committed and must, in all
circumstances, be proved by direct ocular evidence by examining before the court those
persons who had seen its commission. The offence can be proved by circumstantial
evidence also. The principal fact or factum probandum may be proved indirectly by
means of certain inferences drawn from factum probans, that is, the evidentiary facts.
To put it differently, circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely associated with the fact
in issue that taken together they o been observed thus: (SCC pp. 206-07, para 21) "21.
In a case based on circumstantial evidence, the settled law is that the circumstances
from which the conclusion of guilt is drawn should be fully proved and such
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circumstances must be conclusive in nature. Moreover, all the circumstances should be
complete and there should be no gap left in the chain of evidence. Further, the proved
the proved circumstances must be consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence."
12. In Padal Veera Reddy v. State of A.P. MANU/SC/0018/1990 : 1989 Supp (2) SCC
706: 1991 SCC (Cri) 407 : AIR 1990 SC 79 it was laid down that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp.
710-11, para 10) "10
(1) the circumstances from which and inference of guilt is sought to be drawn,
must be cogently and firmly established;
(2) the circumstances should be of a define tendency unerringly pointing
towards guilt of the accused;
(3) 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
(4) the circumstantial evidence in order to sustain conviction must be complete
and incapable of explanation of any other hypothesis than that of 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.
13. In State of V.P. v. Ashok Kumar Srivastav MANU/SC/0161/1992 : (1992) 2 SCC 86
: 1992 SCC (Cri) 241 : 1992 CriLl 1104 it was pointed out that great care must be taken
in evaluating circumstantial evidence and if the evidence relied on is reasonably capable
of two inferences, the one in favour of the accused must be accepted. It was also
pointed out that the circumstances relied upon must be found to have been fully
established and the cumulative effect of all the facts so established must be consistent
only with the hypothesis of guilt.
14. Sir Alferd Wills in his admirable book Will's Circumstantial Evidence (Chapter VI)
lays down the following rules specially to be observed in the case of circumstantial
evidence: (I) the facts alleged as the basis of any legal inference must be clearly proved
and beyond reasonable doubt connected with the factum probandum' (2) the burden of
proof is always on the party who asserts the existence of any fact which infers legal
accountability; (3) in all cases, whether of direct or circumstantial evidence the best
evidence must be adduced which the nature of the case admits; (4) in order to justify
the inference of guilt, the incupatory facts must be incompatible with the innocence of
the accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he
is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based soley on circumstantial evidence but
it should be tested by the touchstone of law relating to circumstantial evidence laid
down by this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar v. State of M.P. MANU/SC/0037/1952 : AIR 1952
SC 343 : 1953 Cri Lj 129 it was observed thus: (SCC pp. 345-46, para 10)
It is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances forlJ1 which the conclusion of guilt is to be drawn

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 should be in the first instance be fully established, and all the facts so
established should be consistent only with the hypothes is of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so
far complete as not to leave only reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused.
17. A reference may be made to a later decision in Sharad Birdhichand Sarda Y. State
of Maharashtra MANU/SC/0111/1984 :(1984) 4 SCC 116:1984 SCC (Cri) 487: AIR
1984 SC 1622. Therein, while dealing with circumstantial evidence, it has been held
that the onus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The
conditions precedent in the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They are: (SCC p.185, para 153)
(1) the circumstances from which the conclusion of guilt is to be drawn should
be fully established. The circumstances concerned must or should and not may
be established;
(2) the 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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved;
and (5) there must be a chain of evidence so complete 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.
18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis
of information given by the accused while in custody. The question is whether the
evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of
the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to
Sections 25 to 26 and a statement even by way of confession made in police custody
which distinctly relates to the fact discovered is admissible in evidence against the
accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal
Krishan MANU/SC/0093/1971 :(1972) 4 SCC 659 : AIR 1972 SC 3 and Mohd.
Inayatullah v. State of Maharashtra MANU/SC/0166/1975 :(1976) 1 SCC 828 : 1976
SCC (Cri) 199 : AIR 1976 SC 483. The words "so much of such information" as relates
distinctly to the fact thereby discovered, are very important and the whole force of !he
section concenetrates on them. Clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which such information is required
to relate. The ban as imposed by the preceding sections was presumably inspired by the
fear of the legislature that a person under police influence might be induced to confess
by the exercise of undue pressure. If all that is required to lift the ban be the inclusion
in the confession of information relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the police will prove equal to the
occasion, and that in practice the ban will lose it's effect. The object of the provision
i.e. Section 27 was to provide for the admission of evidence which but for the existence

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of the section could not in consequence of the preceding Sections, be admitted in
evidence. It would appear that under Section 27 as it stands in order to render the
evidence leading to discovery of any fact admissible, the information must come from
any accused in custody of. he police. The requirement of police custody is productive of
extremely anomalous results and may lead to the exclusion of much valuable evidence
in cases where a person, who is subsequently taken into custody and becomes an
accused after committing a crime meets a police officer or voluntarily goes to him or the
police station and states the circumstances of the crime which lead to the discovery of
the dead body, weapon or any other material fact, in consequence of the information
thus received from him. This information which is otherwise admissible becomes
inadmissible under Section 27 if the information did not come from a person in the
custody of a police officer or did come from a person not in the custody of a police
officer. The statement which is admissible under Section 27 is the one which is the
information leading to discovery. Thus, what is admissible being the information, the
same has to be proved and not the opinion formed on it by the police officer. In other
words, the exact information given by the accused while in custody which led to
recovery of the articles has to be proved. It is, therefore, necessary for the benefit of
both the accused and the prosecution that information given should be recorded and
proved and if not so recorded, the exact information must be adduced through
evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events. The doctrine is founded on the principle that if any
fact is discovered as a search made on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the information supplied by the prisoner
is true. The information might be confessional or non-inculcator in nature but if it
results in discovery of a fact, it becomes a reliable information. It is now well settled
that recovery of an object is not discovery of fact envisaged in the section. Decision of
the Privy Council in Pulukuri Ottaya v. Emperor MANU/PR/0049/1946 : AIR 1947 PC
6 7 : 48 Cri L J 533 : 74 IA 65 is the most quoted authority for supporting the
interpretation that the "fact discovered" envisaged in the section embraces the place
from which the object was produced, the knowledge of the accused as to it, but the
information given must relate distinctly to that effect. (See State of Maharashtra v.
Damu Gopinath Shinde MANU/SC/0299/2000 :(2000) 6 SCC 269 : 2000 SCC (Cri)
1088 : 2000 Cri L J 2301.) No doubt, the information permitted to be admitted in
evidence is confined to that portion of the information which "distinctly relates to the
fact thereby discovered". But the information to get admissibility need not be so
truncated as to make it insensible or incomprehensible. The extent of information
admitted should be consistent with understandability. Mere statement that the accused
led the police and the witnesses to the place where he had concealed the articles is not
indicative of the information given.
19. Coming to the evidence brought on record to substantiate the accusations, it is at
least clear the Accused 1 and 2 left in the company of the deceased. Some evidence has
also been brought to establish the motive i.e. the indebtedness of the accused to the
deceased. In addition to this is the evidence of P.Ws 1 and 2. So far as Accused 2 is
concerned, he almost stands on the same footing as Accused 1. Additionally, Hari
Kumar (PW 18) has stated that Accused 2 came to his shop and took sweets and left in
Car No. JK 028 566 belonging to Accused 1. He has also stated about the return of
Accused 2 to the shop and a demand for a scooter. This witness has also stated to have
seen Car No. CHO 15408 passing in front of the shop carrying seven to eight persons
out of which he identified accused Kishore Kumar (since dead). PW 9 also has stated to
have seen the deceased running while being chased and he claimed to have seen the
deceased firing. He stated about Accused 1 and 2 giving lalkara that the deceased shall
be killed and should not escape. Accused 1 had fired some shots in the air. Another
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white Car No. CH 5408 was also standing there. He had identified accused Bodhraj,
Bhupinder, Rakesh Kumar and the two acquitted accused Rohit and Kewal Krishan. It
has to be noted that Car No. CH 015408 was found discarded after it had met with an
accident. This is stated to be the gateway car.
20. As the evidence of PWs 1 and 2 are very material it is desirable to note as to what
their evidence was. On 3-8-1994, PW 1 was in his shop. At about 4.30 p.m., A-1
accompanied by the deceased and A2 came to meet him in a car. A-1 informed him that
he and his colleagues in the car were interested in setting up a flour mill. A-2 was in
hurry to proceed towards the site. On their way, PW 1 asked A-I to stop the car to pick
up PW 2. A-2 was reluctant to stop the car and only on PW 1's insistence PW 2 was
picked up. When the deceased was attacked by the assailants and was pursued by the
assailants he had started running towards the national highway. A-2 also ran after the
deceased whereas A-1 kept standing near PW 1. The deceased asked A-I to bring the
car immediately but A-I only shouted to one Shori that the deceased should not escape.
PW 1 identified A-I and A-2 who were present in the Court.
21. PW 2 stated that on 3-8-1994, he was sitting at his house when at about 4 to 4.30
to 5.00 p.m., PW 1 accompanied by A-I and A-2 came to his residence and asked him to
show some land to the persons accompanying them for the installation of rice-cum-flour
mill. They all went to Dhiansar by car. When they were still seeing the land, A-2 told
them that he approved of the land and led them to the shop. While returning, the
deceased was attacked by 4-5 persons who were armed with tokas, daggers etc. The
deceased started running away towards the canal and the assaiants followed him and
assaulted him. Then PW 1 immediately told him to inform the police, by which time the
deceased had started bleeding, and that he ran to ring up the police. PW 2, however,
noticed that while the deceased was running, he asked accused A-I to bring the car but
the latter did not move. Meanwhile. PW 2 went to the house of a contractor which was
at a distance of 200 ft from the place of occurrence to make the telephone call. When he
came back, he found the dead body of the deceased lying on the road and heard
accused A-2 telling accused A-I "kam ho gaya'' let us go to Jammu". The presence of
PWs 1 and 2 at the place of occurrence is fortified from the fact that they were
witnesses to the seizure memos Exts. PW-GS, PW-GS/1 and PW-GS/2 recorded by the
police immediately after the incident.
22. Evidence of PWs 8, 9 and 18 are also relevant and their evidence is to the following
effect. PW 8 (Surjit Singh) inter alia, stated as folIows:
On 3-8-1994, he had gone for repair of his vehicle to Dhiansar. He was at a tea
stall near the garage when he saw Vehicles Nos. 566 and 5408 parked on the
other side of the road. He saw Kishore armed with a revolver. Shots fired by the
deceased caused injuries to two assailants. Rajesh shot the deceased. The
deceased was then surrounded by the assailants and attacked by tokas, swords
etc. Accused Kishore fired in the air and the assailants ran towards Vehicle No.
5408. He had noticed accused A-I and A-2 standing near their vehicle. The
assailants reversed the other car an~ drove towards the deceased and accused
Rajesh came out of the vehicle, picked up the weapon lying near the deceased
and they Mounted on the vehicle and drove off. A-I and A-2 also drove off.
23. PW 9 (Nainu Singh) inter alia stated as follows:
On -8-1994, he was getting a vehicle repaired in a workshop at Dhiansar. He
along with Surjit Singh went towards a tea shop. They heard the sound of

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 firearms being used. They saw the deceased bleeding profusely and running
towards lammu-Pathankot Road. Six seven assailants were chasing him. They
were armed with tokas, churas and revolver. The deceased while running had
fired at the assailants. Kishore Kumar who was armed with a pistol was
runnning after the deceased. The shots fired by the deceased were fired in his
presence. Two of the accused were identified by him as Subhas Kumar and
Rajesh Kumar. When the deceased reached near the road, Rajesh Kumar fired at
him and hit on his arm. Thereafter, six to seven persons surrounded the
deceased. They were said to be armed with chakus (knives) and churas (bigger
knives) and were stabbing the deceased. Near the workshop gate, Car No. 566
was standing. This was of grey (slaty) colour. A-2 and A-I had given lalkara
that the deceased should be killed and should not escape. A-1 had fired some
shots in the air. Another white car bearing No. CH 015408 was also parked
there. He noticed the accused sitting in the car. He had identified Krishan
Kumar, A-2 and A-1. The driver reversed the car. It was stopped near the dead
body of the deceased. The revolver lying near the deceased was picked up.
After the car had left, A-1 and A-2 also left in another car. He knew the names
of the accused Bhupinder, Rohit and Rakesh Kumar because he had identified
them in the police station in the presence of the Tahsildar. He desposed that
accused Bhupinder, Rakesh, Subash and Rajesh were holding toka, kirch, sword
and revolver respectively. The witness identified the revolver, sword, kirch and
toka and stated that these were the weapons with which the accused were
armed.
24. Evidence of PW 18 (Hari Kumar) inter alia stated is as follows:
He was the owner of a halwai shop in Parade Ground, Jammu. On 3-8-1994, at
about 11.00 a.m. accused Ravi Kumar came to the shop of Hari Kumar in his
Car No. CH 015408 and left for Moti Bazar. At 1 or 1.30 p.m., accused Ashok
and the deceased came to his shop and told them that they were going to Hotel
Asia for taking meals. They took some sweets from his shop and left in Car No.
JK 02B 566 which belonged to A-1. After 10 or 15 minutes, A-2 also came to
the shop and demanded a scooter from him for going to Hotel Asia, telling him
that he needed the scooter since he had given his car to some friend. He did
not give scooter to A-2. Half an hour thereafter, he found Car No. CH 01 5408
passing in front of his office shop carrying 7-8 boys out of whom he identified
Kishore Kumar (who is now dead). The car was being driven by a dark-
complexioned boy.
25. Some factors which weighed with the High Court in upholding the conviction of the
three accused as was done by the trial court are the evidence of eyewitnesses, PWs 1
and 2. Evidence of these witnesses has been analysed in detail by both the trial court
and the High Court. Before both the said courts,,it was urged that they cannot be
termed to be truthful witnesses. By elaborate reareasoning the stand was negatived.
Additionally, it was noticed that both Accused 1 and 2 were seen in the company of the
deceased by employees of the deceased i.e. Darshan Singh (PW 15) and Rajinder Kumar
(PW ]4). Additionally, Hari Kumar (PW 18) has also spoken about having seen the
deceased in the company of Accused 1 and 2. For some time Accused 1 was not in the
company of the deceased and Accused 2. At that period of time he wanted PW 18 to
take him to Hotel Asia.
He has also stated that Accused 2 and the deceased had taken some sweets from his
shop and were travelling in Car No. JK 02B 566. He has also stated about the statement
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of Accused 1 and 2 that there was some scuffle between some boys and the deceased at
the land which tney had gone to see and in that scuffle the killing took place. The
reason for this was stated to be pressure on Accused 1 and 2 to return the money. One
of the important circumstances noticed by the trial court as well as the High Court is
that the land which was to be seen by the deceased was only known to Accused 1 and
2. Another circumstance noted was the use of Car No. CH 01 5408. There was some
amount of controversy raised about the owner of the car, as was evident from the
lengthy cross-examination made so far as the original owner, that is, L.B. Gupta,
Advocate (PW 31) is concerned.
26. The evidence of PWs 1 and 2 has rightly been accepted by the trial court and the
High Court and we find no reason to discard their evidence. So far as accused Rajesh
Kumar is concerned, as has been found by the trial court and the High Court, live pistol
belonging to Accused 1 was recovered from his house. He has sustained bullet injuries
on account of firing done by the decease while trying to proteot his life.
27. In view of the circumstances noticed and highlighted by the trial court and the High
Court and in our considered opinion rightly the appeals filed by accused Ravinder
Kumar and Ashok Kumar are devoid of merit and deserved dismissal, which we direct.
28. Coming to the appeals filed by the four Appellants who were acquitted by the trial
court but convicted by the High Court, it has been argued with that even if it is accepted
that two views are possible on the evidence, the one in favour of the accused was to be
accepted and their acquittals should not have been lightly interfered with. It is to be
noticed that the trial court placed reliance on the evidence of Hari Kumar (PW 18) for
the purpose of convicting accused Rajesh Kumar, but so far as the other four accused
are concerned, it was not held to be reliable. There was no cogent reason indicated as
to why the same was termed to be unreliable. Additionally, recoveries were made
pursuant to the disclosure made by them. Though arguments were advanced that due
procedure was not followed, in view of the evidence of the witnesses examined by the
prosecution in that regard, we find nothing illegal ruling out its acceptance. There are
certain additional features also. A pant was recovered from the house of Subash Kumar
which had holes indicating passage of bullet. However, a chemist (PW 22) was
examined to show when he had gone to purchase the medicine to be applied to the
injury. It was submitted that so far as Santokh Singh (PW 7) is concerned; his evidence
was held to be not reliable. Therefore, the identification of Accused 5 Subash Kumar by
Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating
to recovery established. by the evidence of PW 18 cannot be lost sight of.
29. The evidence of Nainu (PW 9) was also described to be unreliale and it was said
that he stood ona par with Santokh Singh. Similar was the criticism in respect of Surjit
Singh. Their evidence has been analysed in great detail by the High Court and has been
held to be reliable. It is of significance that practically there was no cross-examination
on the recovery aspect. We do no find any reason to differ with the High Court in that
regard. There can be no dispute with the proosition as urged by Learned Counsel for the
Appellant that when two views are possible, the one in favour of the accused has to be
preferred. But where the relevant materials have not been considered to arrive at a view
by the trial court, certainly the High Court has a duty to arrive at a correct conclusion
taking a view different front the one adopted by the trial court. In the case at hand, the
course adopted by the High Court is proper.
30. Judge in. the aforesaid background, conviction by the High Court of those four who
were acquitted by the trial Court does not warrant any interference.

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31. The last seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were seen last alive and when the deceased was
found dead is so small that possibility of any person other than the accused being the
author of the crime becomes impossible. It would be difficult in some cases to
positively establish that the deceased was last seen with the accused when there is long
gap and possibility of other persons coming in between exists. In the absence of any
other positive evidence to conclude that the accused and the deceased were last seen
together, it would be hazardous to come to a conclusion of guilt in those cases. In this
case there is positive evidence that the deceased, A-I and A-2 were seen together by
witnesses, i.e. PWs 14, 15 and 18, in addition to the evidence of PWs 1 and 2.
32. It was submitted that there was unexplained delay in sending the FIR. This point
was urged before the trial court and also the High Court. It was noticed by the High
Court that Showkat Khan (PW 38) was an investigating officer on 3-8-1994 for a day
only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot.
Thereafter, Gian Chand Sharma (PW 42) was asked to investigate into the matter. It was
also noticed that the road between Bari Brahamana and Samba where the court was
located was closed due to traffic on account of heavy rains. Though, the road was open
from Jammu to Bari Brahamana but it was closed from Bari Brahamana to Sambha. The
day's delay for the aforesaid purpose (the FIR had reached the Magistrate on 5-8-1994)
cannot be said to be unusual when proper explanation has ben offered for the delay.
The plea of delayed dispatch has been rightly held to be without any substance.
3 3 . Another point which was urged was the aIleged delayed examination of the
witnesses. Here again, it was explained as to why there was delay. Important witnesses
were examined immediately. Further statements were recorded subsequently. Reasons
necessitating such examination were indicated. It was urged that the same was to rope
in the accused persons. This aspect has also been considered by the trial court and the
High Court. It has been recorded that there was a valid reason for the subsequent
and/or delayed examination.
Such conclusion has been arrived at after analysing the explanation offered. It cannot
be laid down as a rule of universal application that if there is any delay in examination
of a particular witness the prosecution version becomes suspect. It would depend upon
several factors. If the explanation offered for the delayed examination is plausible nad
acceptable and the court accepts the same as plausible, there is no reason to interfere
with the conclusion.
34. As was observed by this Court in Ranbir v. State of Punjab MANU/SC/0441/1973 :
(1973) 2 SCC 444 : 1973 SCC (Cri) 858 : AIR 1973 SC 1409 the investigating officer
has to be specifically asked as to the reasons for the delayed examination where the
accused raised a plea that there was unusual delay in the examination of the witnesses.
In the instant case, however, the situation does not arise.
35. Therefore, in the aforesaid background, the appeals filed by the four Appellants
who were acquitted by the trial court but convicted by the High Court also deserve
dismissal which we direct.
36. Coming to the appeal filed by the State in respect of whom both the trial court and
the High Court recorded acquittal, it is seen that there was no acceptable material. This
aspect has been analysed in great detail by the trial court and the High Court and we do
not find any reason to interfere with the conclusions. The appeal filed by the State is
accordingly dismissed. In the ultimate result, all the four appeals are dismissed.

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 MANU/SC/0107/2025
Equivalent/Neutral Citation: 2025 INSC 111

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2220-2221 of 2022
Decided On: 16.01.2025
Deen Dayal Tiwari Vs. State of Uttar Pradesh
Hon'ble Judges/Coram:
Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shri Singh, Adv., Prateek K. Chadha, AOR, Sakshi Jain,
Malvika Awasthi, Sreekar Aechuri, Surbhi Soni and Aniket Chauhaan, Advs.
For Respondents/Defendant: Rohit K. Singh, AOR, Pritam Bishwas, Adv., Vishnu Shankar
Jain, AOR, Mani Munjal, Marbiang Khongwir, Parth Yadav and Ashish Kumar Dwivedi,
Advs.
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO CAPITAL PUNISHMENT
ORDER
1. Heard learned Counsel for the parties and perused the material placed before us.
2 . The present Criminal Appeals arise out of the impugned judgment and final Order
dated 09.05.2022 passed by the High Court of Judicature at Allahabad (Lucknow Bench)
in Capital Case No. 01 of 2014 and Criminal Appeal No. 1776 of 2016, whereby the High
Court confirmed the conviction and the sentence of death imposed upon the Appellant
by the learned Additional District & Sessions Judge, Court No. 5, Faizabad, in Sessions
Trial No. 24 of 2013 (arising out of Case Crime No. 748 of 2011, Under Section 302 of
the Indian Penal Code, 1860).
3. The relevant facts are summarized hereunder:
3.1 The Appellant, Shri Deen Dayal Tiwari, resided in village Pure Brijlal Tiwari
Moiya Kapurpur, Police Station Pura Kalandar, District Faizabad (now Ayodhya),
Uttar Pradesh. He was married to one Smt. Siyallali and had four minor
daughters, namely (i) Mani, (ii) Riya, (iii) Guddan, and (iv) Mahima.
3.2 Incident day: In the intervening night of 11/12.11.2011, at around 2:30
a.m., the Appellant's brother, PW-1 (Shri Dinanath Tiwari), and PW-1's wife,
PW-2 (Smt. Suneeta alias Anita), purportedly heard frantic cries of "bachao-
bachao" (save-save) emanating from the Appellant's house, which was adjacent
to their own. Alarmed by these cries, PW-1 and PW-2 rushed towards the
Appellant's house. They noticed that the door to the Appellant's room was
locked from inside. Despite knocking and threatening to break the door, it was
not opened.
3.3 PW-1's Version/Lodging of FIR: According to PW-1, when they continued to

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 demand that the door be opened, the Appellant emerged briefly from within,
allegedly holding a blood-stained axe, and warned them to leave or face the
risk of being killed. He then went back inside and locked the door again.
Sometime thereafter, PW-1 proceeded to the Police Station Pura Kalandar,
located about 14-15 km away, and claims to have lodged a written complaint
(Ex. Ka-1) at around 6:10 a.m. on 12.11.2011. A formal FIR (Case Crime No.
748 of 2011) Under Section 302 Indian Penal Code was registered against the
Appellant at the said police station.
3.4 Arrival of Police & Arrest of the Appellant: On receiving information about
the gruesome incident, PW-5 (Station Officer, Ajay Prakash Mishra) reached the
Appellant's house on the morning of 12.11.2011. Villagers had assembled in
large numbers. The inner room, where the Appellant allegedly remained, was
bolted. PW-5, with the help of the villagers, forced the door open and found the
Appellant inside the room, holding an axe with fresh blood stains on it. The
Appellant was immediately apprehended on the spot. Inside the same room,
five bodies- those of the Appellant's wife (Smt. Siyallali) and their four minor
daughters-were lying in pools of blood.
3 . 5 Discovery & Recovery of Weapons: According to the prosecution, the
Appellant, upon interrogation by PW-5, confessed to having killed his wife and
daughters. On the Appellant's pointing out, the police recovered two knives
from the same room. The axe, initially seen in the Appellant's hand, was also
seized. Recovery memos (Ex. Ka-7, Ka-8, and Ka-9) pertaining to the axe,
knives, blood-stained clothes, and soil samples were prepared by PW-5 in the
presence of witnesses, including PW-3 (Shri Visheshwar Nath Mishra).
3 . 6 Condition of the Deceased & Panchayatnama: PW-5 prepared separate
inquest reports (panchayatnama) for each of the five deceased. Photographs
were taken, and blood-stained soil as well as plain soil samples were collected
from the place of occurrence. The bodies were dispatched for postmortem
examination at the District Women Hospital, Faizabad, between 1:00 p.m. and
4:00 p.m. on 12.11.2011.
3 . 7 Postmortem Findings (PW-4, Dr. S.K. Shukla): Multiple incised and
lacerated wounds were found on each deceased victim-indicating that at least
one sharp-edged weapon (axe/knives) had been used. Some injuries also
suggested blunt force or wide-edged impact, but overall, the cause of death in
each case was determined to be shock and hemorrhage due to the ante-mortem
injuries. The estimated time of death for all five deceased aligned with the early
morning hours of 12.11.2011, broadly corroborating the prosecution's timeline.
3.8 Charge-Sheet & Commencement of Trial: Pursuant to the investigation, PW-
5 filed a charge-sheet against the Appellant Under Section 302 Indian Penal
Code before the competent Magistrate, who committed the case to the Court of
Sessions. The learned Additional District & Sessions Judge, Court No. 5,
Faizabad, proceeded with Sessions Trial No. 24 of 2013. During trial, the
prosecution examined five witnesses:
• PW-1, the informant and younger brother of the Appellant;
• PW-2, wife of PW-1, who was present near the scene;
• PW-3, an independent witness who reached the spot after receiving a
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 call around 2:30-3:00 a.m.;
• PW-4, Dr. S.K. Shukla, who conducted the postmortem; and
• PW-5, Investigating Officer (Station Officer).
• PW-1 and PW-2 testified about hearing the cries from the Appellant's
house and seeing the Appellant with a blood- stained axe. PW-3
corroborated the fact that the Appellant was found inside his locked
room, walking around with the axe, while the five bodies lay on the
floor.
• PW-5 deposed on the arrest of the Appellant at the spot, the recovery
of incriminating weapons, and the subsequent investigative steps.
3.9 Appellant's Defence: In his statement recorded Under Section 313 of the
Code of Criminal Procedure, the Appellant denied committing the murders. He
contended that he was sleeping in the barn (khalihan) to guard paddy on the
night of the incident and that unknown miscreants killed his wife and children.
The Appellant also alleged false implication by his brother (PW-1) and certain
villagers, ostensibly due to jealousy and property disputes.
3 . 1 0 Trial Court Verdict: By judgment and Order dated
29.01.2014/30.01.2014, the learned Additional District & Sessions Judge, Court
No. 5, Faizabad, convicted the Appellant Under Section 302 Indian Penal Code
for the murders of his wife and four minor daughters. The Trial Court awarded
the death penalty, observing that the case fell under the "rarest of rare"
category.
3.11 Appeal & Confirmation (High Court): The Appellant preferred Criminal
Appeal No. 1776 of 2016 before the High Court of Judicature at Allahabad
(Lucknow Bench). Additionally, the Trial Court made a reference (Capital Case
No. 01 of 2014) for confirmation of the death sentence. On 09.05.2022, the
High Court dismissed the Appellant's appeal, confirmed the findings of guilt,
and upheld the sentence of death, concurring with the Trial Court that the
murders were committed in an extremely brutal and diabolical manner.
4 . Aggrieved by the High Court's judgment and final Order, the Appellant approached
this Court by way of the present Criminal Appeal challenging the conviction as well as
the sentence imposed upon.
5. Mr. Shree Singh, the learned Counsel for the Appellant, submitted a broad range of
contentions challenging both the conviction and the sentence of death. The principal
arguments are summarized hereunder:
5.1. Entirely Circumstantial Evidence - It is urged that there is no direct or
ocular evidence linking the Appellant to the crime. The prosecution's case is
premised solely on circumstantial evidence. Learned Counsel contends that the
chain of circumstances is far from complete and cannot form the basis for a
conviction According to the Appellant, the prosecution failed to establish each
link of the chain in a manner that unequivocally points to the Appellant's guilt
and excludes every other hypothesis.
5.2. Contradictions & Lacunae in Ocular Evidence - The Appellant highlights

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 material inconsistencies in the testimonies of PW-1 (the informant and brother
of the Appellant), PW-2 (the wife of PW-1), and PW-3 (an independent
witness). It is argued that PW-1 gave multiple versions regarding the events of
the night and subsequent lodging of the FIR, rendering his account unreliable.
Likewise, PW-2's and PW-3's depositions are said to suffer from contradictions
about who first arrived at the scene, how the door was opened, and when the
police reached. These inconsistencies, according to learned Counsel, create
serious doubts about the veracity of the prosecution story.
5.3. FIR Allegedly Ante-Timed- The Counsel for the Appellant questions the
authenticity of the FIR (Case Crime No. 748 of 2011), contending that it was
lodged after the Appellant's arrest, yet shown to have been registered at 6:10
a.m. on 12.11.2011. Learned Counsel submits that no credible explanation has
been given as to how the police arrived at the crime scene well before the FIR
was purportedly lodged, thereby indicating that the FIR was manipulated to suit
the prosecution's narrative.
5.4. Inadmissibility of Confessional Statement- The Appellant's alleged
confession to the police is assailed as inadmissible Under Sections 25 and 26 of
the Indian Evidence Act, 1872, particularly since it was made while in police
custody. Even if such a statement had been made, learned Counsel stresses that
it must be corroborated by unimpeachable independent evidence, which is
lacking in the present case.
5.5. Unreliable Recovery of Weapons- The Appellant further contends that the
purported recovery of the axe and two knives is fraught with discrepancies. No
independent witness has credibly deposed that the Appellant led the police to
discover these items from a concealed location. Rather, the weapons were
allegedly lying in plain sight, thereby raising the possibility of planting or
fabrication. It is further emphasized that no disclosure memo bearing the
Appellant's signature has been produced, undermining the credibility of the
prosecution's recovery memos.
5.6. Gaps in Forensic Evidence- Learned Counsel submits that the prosecution
has not conclusively established that the bloodstains on the weapons or clothes
belong to the deceased. In the absence of any serological report confirming that
the blood was human and matched the victims, the link between the Appellant
and the weapons remains unproved. Moreover, the presence of certain injuries
(as noted by PW-4, the autopsy doctor) that could have been caused by a
broader instrument (like a stick) further casts doubt on the theory that only an
axe and knives were used.
5.7. Possibility of Alibi- The Appellant has consistently maintained that he was
sleeping in the barn (khalihan) to protect his paddy at the time of the murders,
and that unknown miscreants entered the house and killed his wife and
daughters. Learned Counsel argues that the prosecution failed to disprove this
defence or to show why it was impossible for the crime to have been committed
by others.
5.8. Sentencing: Death Not Warranted- Without prejudice to the plea of
innocence, learned Counsel assails the imposition of capital punishment as
violative of guidelines laid down in Bachan Singh v. State of Punjab
MANU/SC/0055/1982 : (1980) 2 SCC 684 and subsequent decisions, including

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 Machhi Singh v. State of Punjab, MANU/SC/0211/1983 : 1983:INSC:78 :
(1983) 3 SCC 470 and Manoj and Ors. v. State of Madhya Pradesh
MANU/SC/0711/2022 : 2022:INSC:606. It is urged that the Courts below
overlooked mitigating factors, such as the Appellant's age, lack of criminal
antecedents, and possibility of reformation. Death penalty is said to be an
exception, not the norm, and must be imposed only when the alternative of life
imprisonment is "unquestionably foreclosed."
6 . Learned Counsel for the State of Uttar Pradesh has opposed the appeal and
supported the concurrent findings of the Trial Court and the High Court, making the
following submissions:
6.1 Gravity and Heinous Nature of Offence- It is contended that the present
case involves an extremely grave and heinous crime, wherein the Appellant
brutally murdered his wife and four minor daughters using an axe. The very
nature of this offense, committed against helpless and vulnerable family
members, underscores the severity and depravity of the crime.
6.2 Clear Evidence of Guilt- The prosecution relies on the fact that PW-1 (the
Informant and the Appellant's own brother) and PW-2 reached the Appellant's
house upon hearing cries for help. Despite the door being locked, the Appellant
is stated to have briefly emerged with a blood-stained axe, threatened them,
and retreated inside. Subsequently, PW-1 and PW-5 (Investigating Officer)
forced the door open and found the Appellant walking in the room while
holding the axe. According to learned Counsel, the evidence on record, both
oral and documentary, amply demonstrates that the Appellant alone is
responsible for committing the murders. The Trial Court and High Court have
rightly appreciated these facts to conclude the Appellant's guilt Under Section
302 Indian Penal Code.
6.3 Recovery of Weapons & Medical Corroboration- The prosecution points out
that the murder weapon (axe), allegedly used by the Appellant, was recovered
from him at the spot, and two knives were also discovered from the same
room. These recoveries are said to be corroborated by the postmortem reports
(PW-4, Dr. S.K. Shukla), indicating that the injuries on the deceased were
consistent with the use of sharp-edged weapons. Forensic and medical evidence
collectively establish that the immediate cause of death was massive blood loss
resulting from incised wounds caused by an axe or knives, which were seized in
the presence of witnesses (PW-3 and PW-5).
6 . 4 Witness Credibility and Corroboration- Learned Counsel refutes the
suggestion that prosecution witnesses are unreliable. Minor discrepancies, if
any, are argued to be non-fatal. Relying on settled precedents, it is submitted
that minor contradictions do not vitiate the core prosecution story when the
overall version is consistent and corroborated by medical and forensic evidence.
Moreover, PW-1's version is termed natural and credible: upon discovering such
a grisly scene involving his own close relatives, PW-1 fainted, further
highlighting the horrific nature of the incident.
6.5 Concurrent Findings of Fact- Both the Trial Court and the High Court have
carried out a thorough examination of the evidence, including the testimonies
of PW-1, PW-2, PW-3, and the postmortem reports of PW-4. According to the
State, these findings cannot be characterized as perverse or contrary to law.

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 Therefore, in the absence of any new or exculpatory evidence, no interference
is warranted by this Court.
6.6 Case Falling Under 'Rarest of Rare'- Emphasizing the brutality and the sheer
number of victims: five murders committed in one night within the confines of
the Appellant's home, the State asserts that this case satisfies the guidelines
laid down in Bachan Singh (supra) and Machhi Singh (supra) guidelines for
awarding the death penalty. The High Court specifically noted that the
Appellant's conduct and the diabolical manner of execution rendered life
imprisonment insufficient. The Respondent supports this conclusion, arguing
that the Appellant's actions shock the collective conscience of society and mark
him as a menace.
6 . 7 Compliance with Manoj and Ors. v. State of Madhya Pradesh
MANU/SC/0711/2022 : 2022:INSC:606 - Learned Counsel apprises the Court
that reports from the Superintendent of District Jail and the Probation Officer
have been placed on record in compliance with the directive of this Hon'ble
Court. While the Appellant's prison conduct is reported as "satisfactory," the
State insists that these factors do not outweigh the magnitude, brutality, and
impact of the crime.
7. We have heard learned Counsel on both sides and carefully perused the evidence on
record, the findings of the Trial Court, and the impugned judgment of the High Court.
The primary question that arises at this stage is whether the prosecution has
established, beyond reasonable doubt, that the Appellant is guilty of the offence
punishable Under Section 302 of the Indian Penal Code, 1860.
8 . It is not in dispute that the prosecution case rests predominantly on circumstantial
evidence. The law on conviction based on circumstantial evidence is well-settled: the
prosecution must establish each circumstance forming a complete chain that unerringly
points to the guilt of the Accused and excludes every other hypothesis of innocence. We
have therefore tested the circumstances put forth by the prosecution to determine
whether the chain of events proves the guilt of the Appellant beyond reasonable doubt.
9 . The relevant factors in the present case include: (i) the fact that five deceased
persons (the Appellant's wife and four minor daughters) were found lying in a pool of
blood inside the Appellant's house; (ii) the prompt presence of PW-1, PW-2, and PW-3
at or near the scene; (iii) the Appellant's own presence, allegedly armed with a blood-
stained axe; (iv) the subsequent recovery of incriminating weapons; and (v) the
Appellant's failure to furnish a satisfactory explanation Under Section 106 of the Indian
Evidence Act.
10. FIR & Timing- The defense contends that the FIR was ante-timed and lodged after
the Appellant's arrest. However, from the record, including the General Diary (GD)
entries, it transpires that PW-1's written complaint was registered at around 6:10 a.m.
on 12.11.2011. That timeframe is not so delayed or unusual as to cast inherent doubt
on the entire prosecution case, especially given that the place of occurrence is about
14-15 km from the police station. It is also relevant that the witnesses had to gather
sufficient courage and assistance to even approach the house, which the Appellant had
allegedly locked from inside. Viewed cumulatively, we do not find any material or
glaring inconsistency to conclude that the FIR was fabricated or manipulated merely on
the ground of timing.
11. Presence of the Appellant and Discovery of Bodies- PW-1 (brother of the Appellant),
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PW-2 (wife of PW-1), and PW-3 (independent witness) have uniformly deposed that,
upon hearing screams from inside the Appellant's house on the night of 11/12.11.2011,
they rushed there. The door was said to be locked from inside, and when threatened
with breaking it open, the Appellant himself emerged, allegedly holding an axe stained
with fresh blood. Shortly thereafter, PW-5 (the Investigating Officer) arrived with other
police personnel. The room was forcibly opened in the presence of villagers, and the
dead bodies of the Appellant's wife and four minor daughters were found lying therein.
The Appellant was still present inside, apprehended on the spot, and allegedly in
possession of the same blood-stained axe.
Medical Evidence -PW-4 (Dr. S.K. Shukla), who conducted the postmortem
examinations, found multiple incised and lacerated injuries on each of the deceased,
consistent with weapons like an axe and knives. The stated cause of death was "shock
and hemorrhage" due to these ante-mortem injuries. It is contended on behalf of the
Appellant that the presence of certain blunt-force injuries creates a discrepancy in the
prosecution's version. However, a closer look at the postmortem findings reveals that
these blunt-force injuries can be attributed to the blunt side of the very same axe which
caused the incised wounds. Consequently, the medical evidence remains consistent with
the prosecution theory that all the injuries, including both sharp-edged and blunt
trauma, were inflicted by the same weapon recovered at the scene, thus reinforcing the
conclusion that the assault was brutal and matched the nature of the weapons seized.
1 2 . Recovery of Incriminating Material- The Appellant questions the validity of the
recovery memos, contending that the weapons could have been planted. However, the
evidence of PW-3 and PW-5 details the seizure of the blood-stained axe from the
Appellant's hand and the subsequent recovery of two knives from within the same room
on the Appellant's pointing out. While the Appellant argues that his signature on the
recovery memos is absent, such a procedural gap by itself does not necessarily vitiate
the entire process. The presence of independent witness PW-3 at the spot, as well as
the contemporaneous nature of the recovery, lends credence to the prosecution's
version.
13. Alibi & Section 106 of the Evidence Act- The Appellant's principal defense is that he
was sleeping in his barn (khalihan) at the time of the murders, thereby suggesting a
possibility that unknown miscreants killed his family. However, he has produced neither
documentary evidence nor any witness to substantiate this claim. Once it is established
that the Appellant was found at the scene and his family members were discovered
murdered in the very room to which he had access and control, the burden to explain
how the murders occurred within his locked premises shifts to him Under Section 106 of
the Evidence Act. His failure to offer a plausible explanation-particularly when there is
no material on record supporting his alibi- fortifies the prosecution's case.
1 4 . Reliability of Prosecution Witnesses- The defense asserts inconsistencies and
contradictions in the testimonies of PW-1, PW-2, and PW-3. We find that most of these
so-called contradictions are minor in nature, pertaining to peripheral or non-critical
details such as exact times or the manner in which the villagers gathered. Material
particulars, namely, that the Appellant was inside the house, armed with a blood-
stained axe, while his wife and daughters lay murdered- are consistently spoken to by
these witnesses. Minor discrepancies do not, in our view, vitiate the core narrative.
15. Motive- An additional factor that emerges from the record is the Appellant's alleged
suspicion regarding his wife's moral character. The prosecution claims that the
Appellant believed his wife was engaged in an illicit relationship, which caused frequent

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discord within the family. This suspicion is said to have motivated the Appellant to
eliminate his wife, and in the course of events, he also killed his four minor daughters
when they intervened or witnessed the assault. Though the presence of a motive is not
an indispensable requirement for conviction in every case, proof of motive here
reinforces the prosecution's version that the Appellant acted with a deliberate intention
to commit these crimes.
1 6 . Chain of Circumstances- Upon a cumulative evaluation of the circumstances, it
appears that:
• (i) the victims were last seen alive in the Appellant's exclusive custody (his
own house) on that fateful night,
• (ii) the Appellant was found inside the same house soon after the murders,
with a blood-stained axe,
• (iii) the postmortem reports confirm cause of death by repeated blows of
sharp-edged weapons, and
• (iv) no satisfactory explanation has been provided by the Appellant to
displace the inference of guilt.
We are therefore of the considered view that these circumstances form an unbroken
chain pointing unmistakably to the Appellant as the perpetrator of the crime.
1 7 . In light of the evidence in its entirety, we find no cogent basis to disturb the
concurrent findings of the Trial Court and the High Court that the Appellant committed
the murders of his wife and four minor daughters in the intervening night of
11/12.11.2011. Consequently, we hold that the conviction of the Appellant Under
Section 302 Indian Penal Code is fully justified and does not warrant any interference at
this stage.
18. The only question that remains is whether the present case falls under the rarest of
rare category so as to warrant the imposition of the death penalty. We have carefully
weighed the aggravating and mitigating circumstances, in light of the sentencing
framework delineated in the judgements of Bachan Singh v. State of Punjab (Supra),
and Machhi Singh (supra), and subsequent precedents.
19. Aggravating Factors
1 9 . 1 Brutal multiple murders: The Appellant has been found guilty of
murdering five persons-his own wife and four minor daughters. This crime, by
its very nature, is undeniably grave and horrific.
1 9 . 2 Position of trust and vulnerability of victims: The deceased were
defenseless, particularly the four minor daughters, placing a moral onus on the
Appellant to protect them. Instead, they were brutally killed in their own home.
1 9 .3 Impact on societal conscience: Undeniably, such a crime of multiple
homicides within a family can shock the collective conscience of the society.
20. Mitigating Factors
20.1 Absence of previous criminal antecedents: The record does not disclose
any prior conviction or past criminal history on the part of the Appellant.
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 2 0 . 2 Reports suggesting scope for reformation: In compliance with our
directions, the State has placed on record the report of the Superintendent of
District Jail, Ayodhya. It indicates that the Appellant's behavior in custody has
been "satisfactory" and "normal," noting that he has been performing assigned
duties (such as cleaning/sweeper tasks) without any adverse conduct. While
prison conduct alone is not determinative, it is a factor supportive of the
possibility of reformation.
20.3 Socio-economic and personal circumstances: Nothing on record suggests
that the Appellant is incapable of rehabilitation. He does not appear to be a
hardened criminal who poses an enduring menace to society.
20.4 Possibility of commutation- In several cases involving multiple homicides,
this Court has nonetheless commuted the death penalty to life imprisonment,
acknowledging the potential for reformation or considering other mitigating
factors. In State of Uttar Pradesh v. Krishna Master and Ors.,
MANU/SC/0553/2010 : 2010:INSC:471 : (2010) 12 SCC 324, the Accused
wiped out almost an entire family, six persons on the ground of saving
"honour." Despite the heinous nature of the crime, this Court commuted the
death sentence to rigorous imprisonment for life along with a fine. Similarly, in
Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, MANU/SC/0788/2001
: 2001:INSC:606 : (2002) 2 SCC 35, the Appellant therein had annihilated his
brother's entire family, but this Court held that although the crime was heinous,
it could not be classified as 'rarest of rare.' It was emphasized that there existed
a possibility of reforming the offender.
21. Guided by the above facts, we must scrutinize not only the nature of the offence
but also the totality of the offender's circumstances. In the instant case, while the
offence is undoubtedly brutal, certain mitigating factors, especially the Appellant's lack
of criminal antecedents and his reported conduct in prison, tilt the scales in favour of
commutation. There is no material demonstrating that he would remain a perpetual
threat to society or that he is beyond reform. Indeed, the Probation Officer's input and
the Superintendent of District Jail's report show a potentially reformable individual.
Further, this Court has consistently recognized that the imposition of capital punishment
is an exception and not the rule. Even where multiple murders have been committed, if
there is evidence or at least a reasonable possibility of reform, a lesser sentence must
be preferred.
22. Weighing the totality of circumstances and having regard to the legal principles
discussed above, we are of the view that while the crime is heinous and deserves the
highest degree of condemnation, it does not meet the threshold of "the rarest of rare"
so as to irrevocably foreclose the option of life imprisonment.
2 3 . This Court, while exercising its appellate jurisdiction Under Article 136 of the
Constitution of India, possesses the authority to scrutinize not only the conviction of an
Accused but also the appropriateness of the sentence imposed. As articulated in the
principles laid down in Swamy Shraddananda MANU/SC/3096/2008 : 2008:INSC:853 :
(2008) 13 SCC 767, the power to impose or modify a sentence within the prescribed
framework of the Penal Code is exclusively vested in the High Court and this Court. The
alternate punishment for offences punishable by death, such as imprisonment for a
specific term exceeding 14 years or until the natural life of the convict, remains within
the judicial conscience of this Court and the High Court. This ensures that the gravity of
the offence, the mitigating and aggravating circumstances, and the possibility of

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reformation are thoroughly assessed before irrevocable sentences such as capital
punishment are affirmed. Therefore, the commutation of a death sentence to
imprisonment for the remainder of the convict's natural life, as an alternative to death,
is well within the judicial prerogative of this Court and adheres to the constitutional
mandate of ensuring justice. The Constitution Bench of this Court in Union of India v. V.
Sriharan MANU/SC/1377/2015 : 2015:INSC:886 : (2016) 7 SCC 1 have propounded
upon these principles. The relevant paras from the same have been reproduced
hereunder:
103. In fact, while saying so we must also point out that such exercise of
power in the imposition of death penalty or life imprisonment by the Sessions
Judge will get the scrutiny by the Division Bench of the High Court mandatorily
when the penalty is death and invariably even in respect of life imprisonment
gets scrutinised by the Division Bench by virtue of the appeal remedy provided
in the Code of Criminal Procedure. Therefore, our conclusion as stated above
can be reinforced by stating that the punishment part of such specified offences
are always examined at least once after the Sessions Court's verdict by the High
Court and that too by a Division Bench consisting of two Hon'ble Judges.
1 0 4 . That apart, in most of such cases where death penalty or life
imprisonment is the punishment imposed by the trial court and confirmed by
the Division Bench of the High Court, the convict concerned will get an
opportunity to get such verdict tested by filing further appeal by way of special
leave to this Court. By way of abundant caution and as per the prescribed law
of the Code and the criminal jurisprudence, we can assert that after the initial
finding of guilt of such specified grave offences and the imposition of penalty
either death or life imprisonment, when comes under the scrutiny of the
Division Bench of the High Court, it is only the High Court which derives the
power under the Penal Code, which prescribes the capital and alternate
punishment, to alter the said punishment with one either for the entirety of the
convict's life or for any specific period of more than 14 years, say 20, 30 or so
on depending upon the gravity of the crime committed and the exercise of
judicial conscience befitting such offence found proved to have been
committed.
105. We, therefore, reiterate that the power derived from the Penal Code for
any modified punishment within the punishment provided for in the Penal Code
for such specified offences can only be exercised by the High Court and in the
event of further appeal only by the Supreme Court and not by any other court in
this country. To put it differently, the power to impose a modified punishment
providing for any specific term of incarceration or till the end of the convict's
life as an alternate to death penalty, can be exercised only by the High Court
and the Supreme Court and not by any other inferior court.
1 0 6 . Viewed in that respect, we state that the ratio laid down in Swamy
Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka,
MANU/SC/3096/2008 : 2008:INSC:853 : (2008) 13 scc 767: (2009) 3 SCC
(Cri) 113] that a special category of sentence; instead of death; for a term
exceeding 14 years and put that category beyond application of remission is
well founded and we answer the said question in the affirmative. We are,
therefore, not in agreement with the opinion expressed by this Court in Sangeet
v. State of Haryana [Sangeet v. State of Haryana, MANU/SC/0989/2012 :
2012:INSC:522 : (2013) 2 SCC 452: (2013) 2 SCC (Cri) 611] that the deprival
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 of remission power of the appropriate Government by awarding sentences of 20
or 25 years or without any remission as not permissible is not in consonance
with the law and we specifically overrule the same.
2 4 . In the result, while confirming the conviction of the Appellant for the offence
punishable Under Section 302 Indian Penal Code, we consider it appropriate to
commute the death sentence to one of life imprisonment till his last breath.
25. The Trial Court's and the High Court's concurrent finding of guilt is thus upheld.
However, the sentence of death is modified to imprisonment for life until the end of the
Appellant's natural lifespan.
26. The appeals stand partly allowed as above.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0876/2017
Equivalent/Neutral Citation: 2018(182)AIC 208, AIR2017SC 3457, 2017 (2) ALD(C rl.) 673 (SC ), 2018 (102) AC C 668, 2017(3)BomC R(C ri)593,
2018C riLJ186, 2018(2)C rimes99(SC ), 2017(165)DRJ233, 2017 INSC 658, 2017(4)J.L.J.R.75, 2017(3)KLT560, 2017(3)MLJ(C rl)452,
2017(3)N.C .C .711, 2017(3)N.C .C .761, 2017(4)PLJR91, 2017(3)RC R(C riminal)734, 2017(8)SC ALE112, (2017)15SC C 133, 2019 (1) SC J 662,
[2017]7SC R924

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1217-1219 of 2017 (Arising out of SLP (Crl.) Nos. 2640-2642 of
2016)
Decided On: 21.07.2017
Eera through Manjula Krippendorf Vs. State (Govt. of NCT of Delhi) and Ors.
Hon'ble Judges/Coram:
Rohinton Fali Nariman and Dipak Misra, JJ.
Counsels:
For Appearing Parties: Sanjay R. Hegde, (AC), Aman Sinha, Sr. Advs., Anil Kumar Misra,
Pranjal Kishore, Atul Shankar Vinod, Aishwarya Bhati, Dity Apurva, Jaideep Singh, T.
Gopal, K.L. Janjani, R.K. Rathore, P.K. Dey, Anil Hooda, B.K. Prasad, Charu Wali Khanna,
Chirag M. Shroff, Jemti Ben, AO and Siddhartha Dave, Advs.
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO SEXUAL HARASSMENT, KIDNAPPING AND
ABDUCTION
Case Note:
Criminal - Determination of age - Application of Act - Section 2(d) of
Protection of Children from Sexual Offences Act, 2012 and Section 376(2)(1)
of Indian Penal Code, 1860 - Trial Court committed case filed under Section
376(2)(1) of Code to Fast Track Court - High Court dismissed petition for
transferring case to Special Court under POSCO Act - Hence, present appeal by
Appellant - Whether mentally retarded person who had crossed 18 years could
be included under Section 2(d) of Act - Whether victim was entitled for
compensation.
Facts:
An First Information Report (FIR) was lodged against Respondent alleging
that he had committed rape on Appellant and on the basis of the FIR,
investigation was carried on and eventually charge sheet was laid for the
offence under Section 376(2)(1) of Code before the Magistrate, who, in turn,
committed the case to the special Fast Track Court. A petition was filed before
High Court praying that the matter should be transferred to the Special Court
under the Protection of Children from Sexual Offences Act (POCSO) as the
functional age of the Appellant was hardly around 6 to 8 years and there was
necessity for trial to be conducted in a most congenial, friendly and
comfortable atmosphere and the proceeding should be videographed. The
matter was finally disposed of and transfer of the case to the Special Court
established under the Act was not allowed. Hence, present appeal by
Appellant.
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15. Learned senior Counsel would submit that if mental age is read into the definition
of the "child", it will be against the manifest intention of the legislature. As an instance,
he has referred to Section 5(k) of the POCSO Act which alludes to child's mental or
physical disability in the context of aggravated penetrated sexual assault. He has
submitted that if the term "age" is interpreted to engulf mental and biological age, the
scheme of the POCSO Act shall be defeated and it will lead to inconsistencies. For the
said purpose, he has referred to the concept of "mental age" in respect of which the
scientific views and methods vary. The eventual stand of the learned senior Counsel is
that mental age with a proximate figure can never be constant and is likely to vary with
time and surrounding circumstances and, therefore, interpreting the word "age" falling
under the definition of "child" to include mental age also would breach the settled
principles of criminal jurisprudence and usher in uncertainty.
16. Having noted the rivalised submissions, I shall presently focus on the preamble, the
Statement of Objects and Reasons and the essential features of the POCSO Act. The said
piece of legislation came into effect on 19.6.2012 and has a long Preamble. The
relevant parts of the Statement of Objects and Reasons of the POCSO Act are as
follows:
1. .....
2. .....
3 . The date collected by the National Crime Records Bureau shows that there
has been increase in cases of sexual offences against children. This is
corroborated by the 'Study on Child Abuse: India 2007' conducted by the
Ministry of Women and Child Development. Moreover, sexual offences against
children are not adequately addressed by the existing laws. A large number of
such offences are neither specifically provided for nor are they adequately
penalized. The interests of the child, both as a victim as well as a witness, need
to be protected. It is felt that offences against children need to be defined
explicitly and countered through commensurate penalties as an effective
deterrence.
4. It is, therefore, proposed to enact a self contained comprehensive legislation
inter alia to provide for protection of children from the offences of sexual
assault, sexual harassment and pornography with due regard for safeguarding
the interest and well being of the child at every stage of the judicial process
incorporating child-friendly procedures for reporting, recording of evidence,
investigation and trial of offences and provision for establishment of Special
Courts for speedy trial of such offences.
5. .....
6. .....
7. .....
17. The Preamble of the POCSO Act reads thus:
An Act to protect children from offences of sexual assault, sexual harassment
and pornography and provide for establishment of Special Courts for trial of
such offences and for matters connected therewith or incidental thereto.

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 WHEREAS Clause (3) of Article 15 of the Constitution, inter alia, empowers the
State to make special provisions for children;
AND WHEREAS, the Government of India has acceded on the 11th December,
1992 to the Convention on the Rights of the Child, adopted by the General
Assembly of the United Nations, which has prescribed a set of standards to be
followed by all State parties in securing the best interests of the child;
AND WHEREAS it is necessary for the proper development of the child that his
or her right to privacy and confidentiality be protected and respected by every
person by all means and through all stages of a judicial process involving the
child;
AND WHEREAS it is imperative that the law operates in a manner that the best
interest and well being of the child are regarded as being of paramount
importance at every stage, to ensure the healthy physical, emotional,
intellectual and social development of the child;
AND WHEREAS the State parties to the Convention on the Rights of the Child
are required to undertake all appropriate national, bilateral and multilateral
measures to prevent -
a. the inducement or coercion of a child to engage in any unlawful
sexual activity;
b. the exploitative use of children in prostitution or other unlawful
sexual practices;
c. the exploitative use of children in pornographic performances and
materials;
AND WHEREAS sexual exploitation and sexual abuse of children are heinous
crimes and need to be effectively addressed.
18. The purpose of referring to the Statement of Objects and Reasons and the Preamble
of the POCSO Act is to appreciate that the very purpose of bringing a legislation of the
present nature is to protect the children from the sexual assault, harassment and
exploitation, and to secure the best interest of the child. On an avid and diligent
discernment of the preamble, it is manifest that it recognizes the necessity of the right
to privacy and confidentiality of a child to be protected and respected by every person
by all means and through all stages of a judicial process involving the child. Best
interest and well being are regarded as being of paramount importance at every stage to
ensure the healthy physical, emotional, intellectual and social development of the child.
There is also a stipulation that sexual exploitation and sexual abuse are heinous
offences and need to be effectively addressed. The statement of objects and reasons
provides regard being had to the constitutional mandate, to direct its policy towards
securing that the tender age of children is not abused and their childhood is protected
against exploitation and they are given facilities to develop in a healthy manner and in
conditions of freedom and dignity. There is also a mention which is quite significant
that interest of the child, both as a victim as well as a witness, needs to be protected.
The stress is on providing child-friendly procedure. Dignity of the child has been laid
immense emphasis in the scheme of legislation. Protection and interest occupy the
seminal place in the text of the POCSO Act.

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19. Having analysed the Statement of Objects and Reasons and the Preamble of the
POCSO Act, it is necessary to appreciate what precisely the POCSO Act projects.
20. Chapter II of the POCSO Act deals with sexual offences against children. Part A of
the said Chapter provides for penetrative sexual assault and punishment therefor.
Section 3 stipulates what is the penetrative sexual assault and Section 4 provides
punishment for such offence. Part B of the said Chapter deals with aggravated
penetrative sexual assault and punishment therefor. Section 5 copiously deals with what
can constitute aggravated penetration sexual assault. It is extremely significant to note
that Section 5(a) enumerates number of circumstances where the offence becomes
aggravated one. It includes in its ambit various situations and also certain categories of
persons. The provision is quite elaborate. Section 5(k) to which my attention has been
drawn reads thus:
(k) whoever, taking advantage of a child's mental or physical disability,
commits penetrative sexual assault on the child;
The aforesaid provision, as is evident, lays stress on the mental disability of the child.
21. Part C of Chapter II deals with sexual assault and punishment therefor. Section 7
lays down about the sexual assault. Part D deals with aggravated sexual assault and
punishment therefor. Section 9 deals with aggravated sexual assault which is akin to
Section 5. Part E deals with sexual harassment and punishment therefor. The said
harassment lays down various acts which will amount to sexual harassment.
22. On a reading of the aforesaid Chapters, it is quite manifest and limpid that the
legislature has intended to protect the child from any kind of sexual assault and
harassment. It has also laid stress upon the mental and physical disability of the child.
The child, as per the definition, is the principal protagonist and the POCSO Act protects
the child from any sexual act and also takes into consideration his mental disability.
Thus, the legislature was alive to the condition of mental disability. Chapter III of the
POCSO Act deals with using child for pornographic purposes and punishment therefor.
Chapter IV deals with abetment of and attempt to commit an offence. Chapter V deals
with the procedure for reporting of cases and Chapter VI provides for procedure for
recording statement of the child. Sections 24 to 27, which have been pressed into
service by Ms. Bhati, relate to recording of statement of a child; recording of statement
of a child by Magistrate; additional provisions regarding statement to be recorded and
medical examination of a child.
23. Section 27 stipulates that medical examination of a child in respect of whom any
offence has been committed under the Act is to be conducted in accordance with
Section 164A of the Code of Criminal Procedure. It is also significant to note that the
said examination has to be done notwithstanding an FIR or complaint has not been
registered for the offences under the POCSO Act. I shall refer to Section 164A Code of
Criminal Procedure at a later stage. Section 28 of the POCSO Act deals with Special
Courts. Section 31 provides that the Code of Criminal Procedure shall apply to the
proceedings before a Special Court. Section 32 requires the State Government to
appoint a Special Public Prosecutor for every Special Court for conducting the cases
under the provisions of the POCSO Act. Chapter VIII deals with the procedure and
powers of the Special Courts and recording of evidence. Section 35 provides for a
period for recording of evidence of child and disposal of case. Section 36 stipulates that
child should not see the Accused at the time of testifying. The said provision protects
the child and casts an obligation on the Special Court to see that the child, in no way, is

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 MANU/SC/0132/1970
Equivalent/Neutral Citation: AIR1971SC 363, (1971) 41 AWR 692, 1971C riLJ305, 1970 INSC 248, 1972--LW(C rl)1, (1970)3SC C 518,
(1971)SC C (C ri)726, [1971]2SC R917

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 55 of 1970
Decided On: 07.12.1970
Jadunath Singh and Ors. Vs. The State of U.P.
Hon'ble Judges/Coram:
I.D. Dua, S.M. Sikri and Vashishtha Bhargava, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Yogeshwar Prasad, S.K. Bagga and Sureshta Bagga,
Advs
For Respondents/Defendant: O.P. Rana, Adv.
Case Note:
Criminal - Murder - Sections 34 and 302 of Indian Penal Code, 1860 -
Appellants in furtherance of common intention murdered X by continuously
stabbing him to death - Appellants convicted for offence under Sections
302/34 - Appellant No. 1 was sentenced to death and appellant No. 2 was
sentenced to life imprisonment by Session Judge - Conviction and sentence
upheld by High Court - Hence, present appeal - Appellant contended that Trial
was vitiated as accused were denied identification and medical evidence was
in conflict with the prosecution case in respect of time of assault - He further
contended that eye witnesses were not reliable - Facts revealed that prime
witnesses knew the accused persons for about four years - Earlier it had been
held that the absence of test identification in all cases is not fatal and if the
accused person is well-known by sight - From evidence of doctor it was clear
that medical evidence was not in conflict with prosecution case - Held, no
reason to interfere with decision by High Court - Appeal dismissed.
JUDGMENT
S.M. Sikri, J.
1 . This appeal by special leave is directed against the judgment of the High Court of
Judicature at Allahabad confirming conviction of the two appellants by the Sessions
Judge, Mainpuri, under Section 302/34 of the Indian Penal Code. Appellant Jadunath
Singh was sentenced to death by the Sessions Judge and appellant Girand Singh was
sentenced to undergo imprisonment for life.
2 . In order to appreciate the paints raised before us by the learned Counsel for the
appellants it is necessary to state a few facts. It is alleged against the appellants that on
February 26, 1968, at about 7.30 a.m., in furtherance of their common intention, they
murdered one Ram Swarup Pandey by repeatedly stabbing him to death, when he was
passing on the Grand Trunk road in the town of Bewar to catch a truck. As many as 34
injuries were found on the deceased at the post-mortem conducted on his body on the
same day at about 3 p.m.
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3 . The prosecution case in brief is as follows : It is common ground that there was
great enmity between the deceased and Laturi Ahir and his sons, the two appellants.
The deceased apprehended danger to his life from them, and on November 23, 1967, he
sent an application to the Superintendent of Police, Mainpuri, alleging that Laturi and
his son, Jadunath, Brahma, Panna Lal and Anokhey, etc. were terrorising the weaker
and poorer sections of the village community and declaring openly that they would kill
the deceased to silence his opposition for ever. He prayed that an enquiry may be made
and suitable action taken against them. On February 25, 1968 the deceased came to
Bewar in the evening to meet the A.D.O. in connection with an enquiry on a complaint
made against Munshi Lal Pradhan of the village. He could not meet the A.D.O. as he was
out of station. He stayed during the night with Prem Narain, P.W. 1, who happened to
be a brother-in-law of his cousin Gulati Ram. According to Prem Narain, both of them
got up in the morning at 6.45 a.m. and since it was Shivratri that day the deceased did
not take any food and they left for the bus stand at Bewar. When they reached the bus-
stand at about 7.10 a.m. they found that the bus for Etah via Sultanganj had already
left. The next bus was due to go at 9.30 a.m. but, as the deceased thought that he
could get a seat in some truck near the Prem Hotel and the Octroi barrier, they left the
bus-stand for the Octroi barrier. When they reached the house of Kotwal Singh on the
way, both the accused attacked the deceased with chhuri and knife, respectively;
Jadunath had the chhuri and Girand Singh had the knife. Both the deceased and Prem
Narain were unarmed. On hearing the cries of the deceased Prem Narain asked the
appellants why they were attacking the deceased. Then Girand Singh, appellant,
advanced towards him and gave a knife cut at his right wrist. On the deceased falling
down both accused persons attacked him with their respective weapons. On his raising
the alarm Mahesh Chandra and Dwarka Prasad who were coming along the same road
came and they shouted at the appellants. On hearing their shouts the accused ran away.
The deceased died on the spot.
4. The First Information Report was lodged at 8 a.m., the Police Station being only two
furlongs from the scene of occurrence. In the First Information Report, in the second
column, under the heading "Name and residence of accused", it was stated as follows :
1. Jadu Nath Singh, father's name not known and
2. Girand Singh father's name not known.
Ahirs by caste, residents of Garhia Kishunpur P.S. Bewar, Distt. Mainpuri.
The accused surrendered on March 12, 1968, and it appears that an application was
filed by the advocate on their behalf that they be kept ba pardah as they might claim
identification. Another application was put in on March 25, 1968, in which it was stated
that the witnesses other than Prem Narain were strangers and they applied that there
should be an identification parade. On April 19, 1968, the then Public Prosecutor
submitted a report to the Additional District Magistrate as under :
Accused Jadu Nath Singh and Girand Singh in case Cr. No. 24 under Section
302 I.P.C., P.S. Bewar, have applied for identification, vide application herewith
attached. It may be submitted that they are named in the F.I.R. and charge
sheet against them has also been received. The applications are moved to delay
this case. Submitted for n.a.
The Additional District Magistrate (Judicial) passed the following, order on the
application, on April 20, 1968 :

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 As charge sheet has already been received and the accused have been named
by P.Ws., there appears to be no justification for ordering test identification.
Accused be informed accordingly. The jail authorities be informed not to keep
them ba parda.
5 . We have set out these facts in detail because, as will presently appear, one of the
points raised by the learned Counsel is that failure to put up the accused for
identification either vitiated the trial or, in any case, rendered the evidence of P.W. 2,
Mahesh Chandra, and P.W. 3, Dwarka Prasad, useless.
6. We may here notice that portion of the evidence of Dr. N.K. Mital, who conducted the
post-mortem examination and on which one other point is sought to be founded. He
found that the stomach was empty and the small intestines were half full and the large
intestines were also half full. In cross-examination he stated that "since the stomach
was empty, the deceased should have taken his last meal about 4 to 6 hours before the
infliction of the injuries." He was asked : "The evidence is that the deceased took puries
and vegetable at 8 p.m. on 25-2-68; and according to the case for the prosecution his
murder took place at 7.30 a.m. on 26-2-68. At the time of post mortem the stomach
was found empty and both the small and large intestines were found half full. Does it
not indicate that in all likelihood the man was murdered between 3 and 4 a.m. ?" To
this question Dr. Mital answered :
No. It is not an indication of this fact. After finishing his meal at about 8 or
8.30 p.m. on 25-2-68 the stomach could have got empty by 2 or 2.30 a.m. The
digested food material should have come in the small intestine by about 2 or
2.30 a.m. Complete digestion takes place in the small intestine.... And if he had
answered the call of nature the preceding evening fully and completely, even
then the small and large intestines might be half full and stomach empty if he
had taken puries with vegetable at 8 p.m. on 25-2-68.
7. The learned Sessions Judge believed the evidence of Prem Narain, corroborated as it
was by the injuries sustained by nun in the course of the occurrence at the hands of one
of the assailants, namely, Girand Singh. He also believed the evidence of Mahesh
Chandra, P.W. 2, and Dwaraka Prasad, P.W. 3. He relied on the fact that the appellants
had absconded immediately after the crime and had only appeared before the Court as
late as March 12, 1968, after proceedings under Sections 87 and 88 of the Cr. PC had
been taken against them. Regarding the claim of the appellants for identification the
learned Sessions Judge observed that during the course of investigation both Mahesh
Chandra and Dwarka Prasad had named the accused persons and it would indeed have
been surprising if the Additional District Magistrate (Judicial) had directed the accused
to be paraded at a test identification parade in the jail. He observed that the evidence
indicated that the accused persons were not strangers even to Mahesh Chandra and
Dwarka Prasad at the time of the occurrence. Mahesh Chandra had stated in his
evidence that he had known the accused persons for about 4 years and that they were
living at village Garhiya lying at a distance of three furlongs from Bewar, and that
Girand Singh was reading at the Amar Shaheed Inter College, Bewar. Dwarka Prasad
had stated that he had seen Girand visiting Bewar before that day. He had also seen
Jadu Nath Singh at Bewar but only once or twice before that. For all these reasons the
learned Sessions Judge held that the applications claiming identification were not bona
fide and were intended to protract the proceedings, and accordingly he was unable to
draw any adverse inference against the prosecution for the omission to parade the
accused persons at a test identification parade in the jail.

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8 . The High Court believed the three eyewitnesses, Prem Narain, Mahesh Chandra and
Dwarka Prasad. The High Court held that "Mahesh and Dwarka Prasad are wholly
independent witnesses having no affinity with the deceased and entertaining no
animosity towards the appellants." The High Court observed that these witnesses had
claimed to have known the appellants for the last six or seven years as they had been
frequently visiting the town of Bewar, and the appellant, Girand Singh, was a student in
a college at Bewar.
9. The learned Counsel for the appellants raised two principal points before us :
(1) Since the accused were denied identification the trial was vitiated;
(2) The medical evidence is in conflict with the prosecution case about the time
of the assault.
10. The learned Counsel further urged that the number and nature of injuries belie the
prosecution story, and that the application by the deceased to the Superintendent of
Police was nothing but a peshbandi. He urged that the eye-witnesses were not reliable
and the courts below had missed the point that the appellants could not have
anticipated that the deceased would be at this particular spot at that time.
11. The learned Counsel relied on the following observations of the Lahore High Court
in Sajjan Singh v. Emperor MANU/LA/0016/1943 : A.I.R. 1945 Lah. 48. :
If an accused person is already well-known to the witnesses, an identification
parade would, of course, be only a waste of time. If, however, the witnesses
claim to have known the accused previously, while the accused himself denies
this, it is difficult to see how the claim made by the witnesses can be used as a
reason for refusing to allow their claim to be put to the only practical test. Even
if the denial of the accused is false, no harm is done, and the value of the
evidence given by the witnesses may be increased. It is true that it is by no
means uncommon for persons who have been absconding for a long time to
claim an identification parade in the hope that their appearance may have
changed sufficiently for them to escape recognition. Even so, this is not in itself
a good ground for refusing to allow any sort of test to be carried out. It may be
that the witnesses may not be able to identify a person whom they knew by
sight owing to some change of appearance or even to weakness of memory, but
this is only one of the facts along with many others, such as the length of time
that has elapsed, which will have to be taken into consideration in determining
whether the witnesses are telling the truth or not.
12. State of U.P. v. Jagnoo MANU/UP/0083/1968 : AIR1968All333 . refers to Sajjan
Singh v. Emperor MANU/LA/0016/1943 : A.I.R. 1945 Lah. 48 with approval.
13. In re Sangiah MANU/TN/0098/1947 : A.I.R. 1948 Mad. 113. the decision of the
Lahore High Court in Sajjan Singh v. Emperor (Supra) was dissented from Rajamannar,
J., observed :
I am unable to find any provision in the Code which entitles an accused to
demand that an identification parade should be held at or before the enquiry or
the trial. An identification parade belongs to the stage of investigation by the
police. The question whether a witness has or has not identified the accused
during the investigation is not one which is in itself relevant at the trial. The
actual evidence regarding identification is that which is given by the witness in
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 Court. The fact that a particular witness has been able to identify the accused at
an identification trade is only a circumstance corroborative of the identification
in Court. If a witness has not identified the accused at a parade or otherwise
during the investigation the fact may be relied on by the accused, but I find
nothing in the provisions of the Code which confers a right on the accused to
demand that the investigation should be conducted in a particular way.
14. In Perkash Chand Sogani v. The State of Rajasthan Criminal Appeal No. 92 of 1956.
decided on January 15, 1957 (an un-reported decision of this Court) in connection with
the point regarding identification, it was observed :
Much is sought to be made out of the fact that no identification parade was held
at the earliest opportunity in order to find out whether P.W. 7 Shiv Lal could
have identified the appellant as the person who was at the wheel of the car and
drove it and reliance is placed upon Awadh Singh and Ors. v. The Patna State
A.I.R. 1954 Patna 483., Provash Kumar Bose and Anr. v. The King
MANU/WB/0083/1951 : AIR1951Cal475 . and also Phipson on the Law of
Evidence, 9th Ed., p. 415 to justify the contention that in criminal cases it is not
sufficient to identify the prisoner in the dock but the police should have held an
identification parade at the earliest possible opportunity to show that the
accused person had been connected with the crime. It is also the defence case
that Shiv Lal did not know the appellant. But on a reading of the evidence of
P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he
made a mistake about his name by referring to him as Kailash Chandra, it was
within the knowledge of Shiv Lal that the appellant was a brother of Manak
Chand and he identified him as such. These circumstances are quite enough to
show that the absence of the identification parade would not vitiate the
evidence. A person, who is well-known by sight as the brother of Manak Chand,
even before the commission of the occurrence, need not be put before an
identification parade in order to be marked out. We do not think that there is
any justification for the contention that the absence of the identification parade
or a mistake made as to his name, would be necessarily fatal to the prosecution
case in the circumstances.
15. In Awadh Singh v. The State A.I.R. 1954 Patna 483. it was held that "the accused
person may or may not have legal right to claim for test identification and the holding
of test identification may or may not be a rule of law, but it is a rule of prudence. Test
identification parade should be held especially when the accused persons definitely
assert that they were unknown to the prosecution witnesses either by name or by face
and they requested the authorities concerned to have the test identification parade held.
16. In Provesh Kumar Base v. The King MANU/WB/0083/1951 : AIR1951Cal475 ., a
Division Bench of the Calcutta High (Harries C.J., & Das Gupta, J.) held :
The fact that the witnesses have identified in Court the accused is of very little
consequence in a prosecution under Section 84, Penal Code, when none of the
witnesses knew the accused from before ...
the corroborative evidence which one is entitled to expect in cases of this nature is the
evidence of the witnesses having pointed the accused whom they identified in Court
from the midst of other persons with whom they were mixed up at a test identification
parade. The evidence of their having identified such persons at a test identification
parade has no substantive value, but is very important corroboration of their evidence

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in Court.
17. In Kanta Prasad v. Delhi Administration MANU/SC/0043/1958 : 1958CriL J698 . a
point was made regarding non-holding of test identification parade by the police and
this Court observed :
As for the test identification parade, it is true that no test identification parade
was held. The appellants were known to the police officials who had deposed
against the appellants and the only persons who did not know them before
were the persons who gave evidence of association, to which the High Court did
not attach much importance. It would no doubt have been prudent to hold a
test identification parade with respect to witnesses who did not know the
accused before the occurrence, but failure to hold such a parade would not
make inadmissible the evidence of identification in court. The weight to be
attached to such identification would be a matter for the courts of fact and it is
not for this Court to reassess the evidence unless exceptional grounds were
established necessitating such a course.
18. It seems to us that it has been clearly laid down by this Court in Perkash Chand
Sogani v. The State of Rajasthan G.A. No. 92 of 1956 decided on 15-1-1957 that the
absence of test identification in all cases is not fatal and if the accused person is well-
known by sight it would be waste of time to put him up for identification. Of course if
the prosecution fails to hold an identification on the plea that the witnesses already
knew the accused well and it transpires in the course of the trial that the witnesses did
not know the accused previously, the prosecution would run the risk of losing its case.
It seems to us that if there is any doubt in the matter the prosecution should hold an
identification parade specially if an accused says that the alleged eye-witnesses did not
know him previously. It may be that there is no express provision in the Cr. PC enabling
an accused to insist on an identification parade but if the accused does make an
application and that application is turned down and it transpires during the course of
the trial that the witnesses did not know the accused previously, as pointed out above
the prosecution will, unless there is some other evidence, run the risk of losing the case
on this point.
1 9 . In the present case, however, it is clear that P.W. Mahesh Chandra knew the
accused persons for about four years and said :
I know the accused persons, Jadunath Singh and Girand Singh for about 4
years. They live at village Garhiya lying at a distance of three furlongs from
Bewar. Girand Singh is reading at the Amar Shaheed Inter College, Bewar.
No cross-examination was directed on this point. P.W. 3, Dwarika Prasad, stated :
I had seen Girand visiting Bewar before that but I had seen Jadunath at Bewar
only once or twice before that day. Identifies both the accused persons in the
dock. Lays hand correctly on Jadunath; and also lays hands correctly on Girand
in the dock.
In cross-examination he stated :
I had seen Jadunath accused at Bewar at the shop of one Chhakku once or
twice before the occurrence. I had seen him two or 2 1/2 years back.

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20. It seems to us that the reason given by the Public Prosecutor in the report and the
reason given by the Additional District Magistrate (Judicial) in the order directing that
identification requested for be not held were not valid. The fact that a charge sheet had
been received and the accused had been named by P.W.s was no justification for not
having ordered the test identification. But on the facts of this case it is clear that P.W. 2
at least knew the accused from before. As regards P.W. 3, although he claims to have
known the accused it is clear that his knowledge of the accused was very scant and if it
had not been for the evidence of P.W. 2 we would not have placed reliance on the
evidence of P.W. 3 in view of the fact that the police did not ask him to identify the
appellant.
21. It is stated in Phipson on the Law of Evidence, 9th Ed., p. 415, as follows :
In criminal cases it is improper to identify the accused only when in the dock;
the police should place him, before hand, with others, and ask the witness to
pick him out. Nor should the witness be guided in any way, nor asked "Is that
the man ?
We consider that the same is the law in India, if the identity is in doubt.
22. Accordingly on the facts of this case we are of the opinion that the trial was not
vitiated because the accused persons were denied identification.
23. Regarding the second point, we have already extracted the evidence of the doctor,
and it is quite clear to us that the evidence is not in conflict with the prosecution case.
If the occurrence took place at about 7.30 a.m. and the deceased had not taken any
food in the morning, his stomach would still be empty at 7.30 a.m. If anything the
medical evidence destroys the case of the defence that the murder took place at about 3
in the morning. We are unable to think that the deceased would leave with Prem Narain
at 3 a.m. to catch a bus which was supposed to leave at about 7 a.m.
24. This appeal is by special leave and this Court does not re-appreciate the evidence.
The other points raised by the learned Counsel are of that nature, and at any rate there
is no substance in those points.
25. The appeal accordingly fails and is dismissed.
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 MANU/SC/0679/2013
Equivalent/Neutral Citation: 2015VII AD (S.C .) 92, 2013(128)AIC 106, 2013 (83) AC C 651, 2013ALLMR(C ri)2984, 2013ALLMR(C ri)2984(SC ),
2013(3)ALT(C ri)129, III(2013)C C R265(SC ), 2013(3)C rimes319(SC ), II(2013)DMC 795, 2013 INSC 458, JT2013(11)SC 152,
2013(3)RC R(C riminal)819, 2013(9)SC ALE18, [2013]13SC R764, 2013(3)UC 1643

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 763 of 2003
Decided On: 10.07.2013
Jitendra Singh and Ors. Vs. State of U.P.
Hon'ble Judges/Coram:
T.S. Thakur and Madan B. Lokur, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sushil Kumar Jain, Anurag Gohil and Ruchika Gohil,
Advs.
For Respondents/Defendant: Ameet Singh, Mukul Singh and Pragati Neekhra, Advs.
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO HARASSMENT, CRUELTY TO WOMAN FOR
DOWRY, DOWRY DEATH, EVE-TEASING, DOMESTIC VIOLENCE ETC.
Case Note:
Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 20--
Conviction and sentence--Legality--Held--If it is found that juvenile is guilty
of alleged offence, he simply cannot go unpunished--However as the law
stands, punishment is to be awarded to him/her by Juvenile Justice Board.
Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 12--Bail
to Juvenile--Permissibility--Held--Ordinarily, a juvenile in conflict with law
shall be released on bail but he may not be released if there appears
reasonable grounds that his release would defeat the ends of justice.
Juvenile Justice (Care and Protection of Children) Act, 2000 - Object of Act--
Held--Purpose of Juvenile Justice Act is to rehabilitate a Juvenile in conflict
with law with a view to re-integrate him into the society--However it is not a
easy task how successful implementation of Act, 2000 has been achieved its
object.
Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 7A(2)--
Legality of proceedings--Held--In all cases where accused was above 16 yrs.
but below 18 yrs. of age on the date of occurrence, the proceedings pending
in the court concerned will continue and be taken to their logical end but the
criminal court cannot pass sentence therein and should referred the matter to
the Board to pass an appropriate order of sentence.

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35. Finally in Vijay Singh v. State of Delhi MANU/SC/0703/2012 : (2012) 8 SCC
763 the conviction of the Appellant was upheld but the sentence was quashed since he
was about 30 years old by that time.
36. The second category of cases includes Satish @ Dhanna v. State of Madhya
Pradesh MANU/SC/0609/2009 : (2009) 14 SCC 187 wherein the conviction of the
Appellant was upheld but the sentence awarded was modified to the period of detention
already undergone. Similarly, in Dharambir v. State (NCT of Delhi)
MANU/SC/2087/2009 : (2010) 5 SCC 344 the conviction of the Appellant was
sustained but since the convict had undergone two years and four months of
incarceration, the sentence awarded to him was quashed.
3 7 . The third category of cases includes Hari Ram v. State of Rajasthan
MANU/SC/0744/2009 : (2009) 13 SCC 211 wherein the Appellant was held to be a
juvenile on the date of commission of the offence. His appeal against his conviction was
allowed and the entire case remitted to the Juvenile Justice Board for disposal in
accordance with law.
38. I n Daya Nand v. State of Haryana MANU/SC/0021/2011 : (2011) 2 SCC 224
this Court followed Hari Ram and directed the Appellant to be produced before the
Juvenile Justice Board for passing appropriate orders in accordance with the provisions
of the Juvenile Justice (Care and Protection of Children) Act, 2000.
3 9 . The fourth category of cases includes Ashwani Kumar Saxena v. State of
Madhya Pradesh MANU/SC/0753/2012 : (2012) 9 SCC 750 in which the conviction
of the Appellant was upheld and the records were directed to be placed before the
Juvenile Justice Board for awarding suitable punishment to the Appellant.
40. The sum and substance of the above discussion is that in one set of cases this Court
has found the juvenile guilty of the crime alleged to have been committed by him but he
has gone virtually unpunished since this Court quashed the sentence awarded to him. In
another set of cases, this Court has taken the view, on the facts of the case that the
juvenile is adequately punished for the offence committed by him by serving out some
period in detention. In the third set of cases, this Court has remitted the entire case for
consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt
of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In
the fourth set of cases, this Court has examined the case on merits and after having
found the juvenile guilty of the offence, remitted the matter to the jurisdictional
Juvenile Justice Board on the award of sentence.
4 1 . In our opinion, the course to adopt is laid down in Section 20 of the Juvenile
Justice (Care and Protection of Children) Act, 2000. This reads as follows:
20. Special provision in respect of pending cases.--Notwithstanding
anything contained in this Act, all proceedings in respect of a juvenile pending
in any court in any area on the date on which this Act comes into force in that
area, shall be continued in that court as if this Act had not been passed and if
the court finds that the juvenile has committed an offence, it shall record such
finding and instead of passing any sentence in respect of the juvenile, forward
the juvenile to the Board which shall pass orders in respect of that juvenile in
accordance with the provisions of this Act as if it had been satisfied on inquiry
under this Act that a juvenile has committed the offence:
Provided that the Board may, for any adequate and special reason to be
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 mentioned in the order, review the case and pass appropriate order in
the interest of such juvenile.
Explanation.-In all pending cases including trial, revision, appeal or any other
criminal proceedings in respect of a juvenile in conflict with law, in any court,
the determination of juvenility of such a juvenile shall be in terms of Clause (l)
of Section 2, even if the juvenile ceases to be so on or before the date of
commencement of this Act and the provisions of this Act shall apply as if the
said provisions had been in force, for all purposes and at ted.
42. It is clear that the case of the juvenile has to be examined on merits. If it found
that the juvenile is guilty of the offence alleged to have been committed, he simply
cannot go unpunished. However, as the law stands, the punishment to be awarded to
him or her must be left to the Juvenile Justice Board constituted under the Juvenile
Justice (Care and Protection of Children) Act, 2000. This is the plain requirement of
Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In other
words, Ashwani Kumar Saxena should be followed.
43. In the present case, the offence was committed by the Appellant when the Juvenile
Justice Act, 1986 was in force. Therefore, only the 'punishments' not greater than those
postulated by the Juvenile Justice Act, 1986 ought to be awarded to him. This is the
requirement of Article 20(1) of the Constitution. The 'punishments' provided under the
Juvenile Justice Act, 1986 are given in Section 21 thereof and they read as follows:
21. Orders that may be passed regarding delinquent juveniles.--(1)
Where a Juvenile Court is satisfied on inquiry that a juvenile has committed an
offence, then, notwithstanding anything to the contrary contained in any other
law for the time being in force, the Juvenile Court may, if it so thinks fit,--
(a) allow the juvenile to go home after advice or admonition;
(b) direct the juvenile to be released on probation of good conduct and
placed under the care of any parent, guardian or other fit person, on
such parent, guardian or other fit person executing a bond, with or
without surety as that Court may require, for the good behaviour and
well-being of the juvenile for any period not exceeding three years;
Juvenile Justice Act, 1986
(c) direct the juvenile to be released on probation of good conduct and
placed under the care of any fit institution for the good behaviour and
well-being of the juvenile for any period not exceeding three years;
(d) make an order directing the juvenile to be sent to a special home,--
(i) in the case of a boy over fourteen years of age or of a girl
over sixteen years of age, for a period of not less than three
years;
(ii) in the case of any other juvenile, for the period until he
ceases to be a juvenile:
Provided that xxx xxx xxx.
Provided further that xxx xxx xxx;

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with the options available noticed the absence of plea on the ground of juvenility and
held that even if such a plea had been raised before the High Court, the High Court
would have had to record its finding that Kalu @ Amit was guilty, confirm his
conviction, set aside the sentence and forward the case to the Board for passing an
order Under Section 15 of the Juvenile Act. The Court observed:
24. The instant offence took place on 7-4-1999. As we have already noted Kalu
alias Amit was a juvenile on that date. He was convicted by the trial court on 7-
9-2000. The Juvenile Act came into force on 1-4-2001. The appeal of Kalu alias
Amit was decided by the High Court on 11-7-2006. Had the defence of juvenility
been raised before the High Court and the fact that Kalu alias Amit was a
juvenile at the time of commission of the offence has come to light the High
Court would have had to record its finding that Kalu alias Amit was guilty,
confirm his conviction, set aside the sentence and forward the case to the Board
and the Board would have passed any appropriate order permissible Under
Section 15 of the Juvenile Act (see Hari Ram).
94. That procedure has been followed in several other cases where this Court has, after
holding the accused to be a juvenile as on the date of the commission of offence, set
aside the sentence awarded to him without interfering with the order of conviction.
(See: Pradeep Kumar and Ors. v. State of U.P. MANU/SC/0027/1994 : 1995 Supp
(4) SCC 419, Bhola Bhagat and Ors. v. State of Bihar MANU/SC/1361/1997 :
(1997) 8 SCC 720, Upendra Kumar v. State of Bihar MANU/SC/1218/2004 : (2005)
3 SCC 592, Vaneet Kumar Gupta @ Dharminder v. State of Punjab
MANU/SC/1235/2009 : (2009) 17 SCC 587).
95. In the totality of the above circumstances, there is no reason why the conviction of
the Appellant should be interfered with, simply because he is under the 2000 Act a
juvenile entitled to the benefit of being referred to the Board for an order Under Section
15 of the said Act. There is no gainsaying that even if the Appellant had been less than
sixteen years of age, on the date of the occurrence, he would have been referred for
trial to the Juvenile Court in terms of Section 8 of the 1986 Act. The Juvenile Court
would then hold a trial and record a conviction or acquittal depending upon the
evidence adduced before it. In an ideal situation a case filed before an ordinary Criminal
Court when referred to the Board or Juvenile Court may culminate in a conviction at the
hands of the Board also. But law does not countenance a situation where a full-fledged
trial and even an appeal ends in a conviction of the accused but the same is set aside
without providing for a trial by the Board.
96. With the above observations, I agree with the Order proposed by brother Lokur, J.
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 MANU/SC/0718/2011
Equivalent/Neutral Citation: 2011(3)AC R2820(SC ), 2011(104)AIC 262, AIR2011SC 2877, 2011(2)ALD(C ri)593, 2011 (74) AC C 611,
III(2011)C C R207(SC ), 2011(3)EC rN 664, 2011 INSC 437, JT2011(7)SC 94, 2011(2)N.C .C .327, 2011(II)OLR(SC )307, 2011(3)RC R(C riminal)589,
2011(6)SC ALE759, (2011)7SC C 130, (2011)3SC C (C ri)61, [2011]7SC R722, [2011]8SC R774

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1252 of 2011 (Arising out of SLP (Crl.) No. 8021 of 2009)
Decided On: 04.07.2011
Krishan Kumar Malik Vs. State of Haryana
Hon'ble Judges/Coram:
Dalveer Bhandari and Deepak Verma, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Jaspal Singh, Sr. Adv., Sanjeev Anand, Yakesh Anand,
Nimit Mathur and Vikram Anand, Advs.
For Respondents/Defendant: Roopansh Purohit, Ramesh Kumar, Advs. for Kamal Mohan
Gupta, Adv.
Case Note:
Criminal - Gang Rape after Abduction - Conviction - Sections 366 and 376 of
the Indian Penal Code, 1860 (IPC) - Single Judge of High Court while partly
allowing appeal, upheld conviction of six out of eight accused under Section
366, in addition to conviction of accused-Appellant and one more person
under Section 376(2)(g) IPC - Challenge against thereto - Hence, the present
Appeal - Whether sufficient, cogent, valid, reliable and trustworthy evidence
available to hold Appellant guilty of offence of abduction and rape on
prosecutrix - Held, number of people who were with prosecutrix during
abduction and subsequent rape, not conclusively ascertained - Omission of
non-mentioning name of accused in FIR, even though there was awareness
of, shakes credibility of prosecutrix - Medical evidence reveals no marks of
injury other than check bite - Prosecutrix failed to identify site where offence
of rape committed - Since prosecutrix was shown accused at Police Station,
hence, dock identification in Court meaningless - Solitary evidence of
prosecutrix having several lacunae does not inspire confidence without
corroboration - Prosecution failed to match semen of accused with semen
found on undergarments of prosecutrix - Conviction reversed - Impugned
judgment set aside - Appeal allowed
Law of Evidence - Res gestae Witness - Held, purpose of incorporating Section
6 in Evidence Act, 1872 was to complete missing links in chain of evidence of
solitary witness - Section 6 provides exception to general rule, where under
hearsay evidence becomes admissible - Statements said to be admitted as
forming part of res gestae must have been made contemporaneously with act
or immediately thereafter - Admittedly, prosecutrix met her mother and sister
soon after she allegedly escaped from clutches of rapists - Thus, her mother
and sister could have been best res gestae witnesses yet, prosecution failed
to get their statements recorded and complete missing link to prove beyond
doubt that it was Appellant-accused who committed offence of abduction and
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rape of prosecutrix
Criminal - DNA Test of Rapist - Held, with incorporation of Section 53-A in
Criminal Procedure Code, 1973 (Cr.P.C) from 2006, necessary for prosecution
to get DNA test for facilitating prosecution to prove its case against accused -
Prior to 2006, even without aforesaid specific provision in Cr.P.C., prosecution
could have resorted to DNA test or analysis and matched semen of Appellant-
accused with that found on undergarments of prosecutrix
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO SEXUAL HARASSMENT, KIDNAPPING AND
ABDUCTION
JUDGMENT
Deepak Verma, J.
1. Leave granted.
2 . In all, eight accused were charged and prosecuted for commission of alleged
offences under Section 366 and 376(2)(g) of the Indian Penal Code (hereinafter shall be
referred as 'I.P.C.') for abducting prosecutrix and then committing rape on her. Trial
Court after appreciation of evidence on record found all the eight accused guilty for
commission of offence punishable under Section 366 and in addition to it, found
present Appellant (accused) Krishan Kumar Malik, Vijay Dua, Krishan Takkar and
Krishan @ Kaka, guilty for commission of offences under Section 376(2)(g) of the IPC.
The said four accused were awarded a sentence of ten years R.I. and a fine of Rs.
2000/- each and in default of payment of such fine to undergo further R.I. for a period
of one year. These four convicts were sentenced further to undergo R.I. for a period of
five years for the offence punishable under Section 366 of the I.P.C and to pay a fine of
Rs. 1,000/-each and in default of payment of fine to further undergo R.I. for six
months. Two other accused were convicted solely under Section 366 of the IPC, and
being ladies, leniency was shown and they were awarded a sentence of three years R.I.
and a fine of Rs. 1000/- each, in default whereof, to undergo R.I. for six months each.
The remaining two accused, Sandeep and Dheeraj were convicted under Section 366 of
the IPC as well and the Trial Court sentenced them each to 5 years R.I., and a fine of
Rs. 1000/- in default of payment of which a further period of 6 months R.I. would come
into effect.
3 . Feeling aggrieved by the judgment and order of conviction recorded by Additional
Sessions Judge, Kurukshetra in Sessions Case No. 52 of 1994 decided on 24.04.1996,
Criminal Appeal No. 324-SB of 1996 (filed by two female accused) and Criminal Appeal
No. 338-SB of 1996 was filed by remaining six convicted accused in the High Court of
Punjab and Haryana at Chandigarh. Since both the appeals arose out of the same
judgment, they were heard analogously and were disposed off by a common impugned
judgment on 27.03.2009.
4. Learned Single Judge after going through the records and appreciating the evidence
available, partly allowed Criminal Appeal 338-SB of 1996, qua Vijay Dua and Krishan
Kumar Takkar, and acquitted them of all the charges levelled against them. They were
accordingly directed to be set at liberty. Thus out of the initial eight, only the remaining
six accused were found to have committed offences under Section 366 and, in addition,
the Appellant and Krishan @ Kaka were also found to have committed offences under
Section 376(2)(g) of the IPC, by the High Court.
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5. The present appeal has been filed by Krishan Kumar Malik only, one of the accused.
We were given to understand that on account of paucity of funds and various other
reasons, other convicted accused have not preferred any appeal. However on enquiries
being made from the office, it came to our notice that both the Special Leave Petition as
well as the Review Petition filed by one of the two female accused Hardevi were
dismissed by this Court. Thus, in the present appeal, we are only required to consider
whether there existed sufficient, cogent, valid, reliable and trustworthy evidence to hold
the Appellant guilty of the aforesaid offences. To come to the said conclusion, it is
necessary to deal with the bare facts of the prosecution.
6. Thumbnail sketch of instant case is as follows:
Prosecutrix, PW-9, was a resident of Saraswati Road, Pehowa and was said to
be aged about 17 years at the time of the commission of the said offence by the
accused. She had passed her 10th class. Her father had expired few years prior
to the date of the incident. Prosecutrix has two younger sisters by the names,
Sangeeta and Ritu. Ritu was said to be aged 8 years at the time of the incident.
She alongwith her mother, Narayani Devi, and sister, Sangeeta, was running a
small book stall from their house. As she was having vacation in her school,
she alongwith her mother and sisters, after closing the book shop, came to
Darra Khera in Thanesar to meet her maternal aunt (mausi), about 15 days
before the incident. On the date of incident, they were staying with their mausi.
7. On 23.06.1994, at about 1.00 p.m., prosecutrix went with Ritu, her Sister to Sector
13, Kurukshetra to meet her aunt Bimla, wife of Des Raj. While they were talking to
each other at about 2.00 p.m., accused Hardevi (Bua), her daughter Heena, Heena's
husband Sonu and Heena's brother Dheeraj accompanied by six boys, whose names
were not known to the prosecutrix, came to the house of her aunt, Bimla. Thereafter,
they forcibly lifted prosecutrix and put her in a blue Maruti Van. Even though, lot of hue
and cry was raised by her as well as by her aunt, her aunt's husband, neighbours and
others but no one came forward to help her. She was then taken to a vacant Kothi near
a bridge. After reaching the said Kothi, she was taken to a separate room, and was
subjected to alleged forcible sexual intercourse by a hefty man who was being called as
Kaka and by another man, who was gitta (short statured), having a beard. They
committed the alleged crime after removing her clothes. There were Six more persons
sitting in the said room, while two of them committed rape on her one after the other as
stated above. Remaining six were also allegedly fondling with her body parts. Some of
them inserted finger in her anus and some of them gave tooth bite on her cheek. The
family of her so called Bua and others were sitting in the adjoining room where the
incident had taken place.
8. Thereafter, all of them took her forcibly in the same Maruti Van to Radaur to the in
law's house of her Bua, Hardevi. All the six boys left her there. Thereafter, her Bua after
cutting prosecutrix's hair gave her a beating with sandals. As soon as she got an
opportunity, she escaped from the said house and boarded the bus by which she
reached Kurukshetra. At Kurukshetra she met her mother Narayani and sister Sangeeta.
She then narrated the whole incident to them after which they went to the Police Station
to lodge an FIR. FIR was recorded at Police Station, Manesar on 24.06.1994 at 12.30
a.m. In the said FIR, the same story was mentioned by the prosecutrix stating that ten
persons had participated in the commission of the said offence. But the name of the
Appellant was not mentioned and instead he was described as Gitta (short statured)
with a beard.

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9 . On the strength of the said FIR, investigation machinery was set into motion and
prosecutrix was sent for medical examination. On 24.06.1994, at 3.30 a.m. Prosecutrix
was examined by P.W-6, Dr. Sushma Saini, Medical Officer, LNJP Hospital at
Kurukshetra. Her medical report and evidence would be discussed at a later stage.
Statement of prosecutrix under Section 164 of the Criminal Procedure Code, (hereinafter
shall be referred to as 'Cr.PC') was recorded by Shri Jagdeep Jain, RCS, Judicial
Magistrate, 1st Class, Kurukshetra on 27.06.1994. Thereafter on 28.06.1994 her further
statement was recorded under Section 161 of Code of Criminal Procedure A perusal of
both the aforesaid statements clearly indicates that she has given the name of the
present Appellant Krishan Kumar Malik as the perpetrator, describing him as short
statured person.
10. The FIR lodged by prosecutrix was also sent to local Magistrate on 24.06.1994 at
2.20 a.m. During the course of investigation, all the accused were arrested. After
completion of investigation, the accused were put on trial for commission of the said
offence before Additional Sessions Judge, Kurukshetra. They pleaded not guilty and
requested for a judicial trial.
11. In order to bring home the charges levelled against the accused, the prosecution
had examined 14 witnesses on its behalf. Defence also examined 5 witnesses on their
behalf. On appreciation of evidence available on record, the trial court convicted the
Appellant and the remaining 7 accused mentioned hereinabove and awarded sentences
to all of them.
1 2 . Subsequently, as has been previously stated, in appeals preferred by all the 8
accused, before the High Court two of them namely Vijay Kumar and Krishan Kumar
Takkar were acquitted and conviction of remaining accused was upheld. However, this
appeal has been preferred by only Krishan Kumar Malik.
13. We have accordingly heard Mr. Jaspal Singh, learned Senior Advocate, ably assisted
by Mr. Sanjeev Anand, learned Counsel for the Appellant and Mr. Roopansh Purohit with
Mr. Ramesh Kumar learned Counsel for the Respondent State and have perused the
record.
1 4 . The basic and foremost question that arises for consideration in this appeal is
whether the present Appellant had committed the offence of abduction and rape on the
prosecutrix on 23.06.1994 or whether he has been falsely implicated.
15. With intention to proceed further and complete the journey to reach the destination,
we would first like to consider the evidence of prosecutrix threadbare. She was
examined as P.W.9. Admittedly she had not mentioned the name of the Appellant in the
FIR lodged by her promptly, instead she described him as Gitta (Short statured) with
beard, even though she was aware of his name. No explanation has been offered by her
in this regard.
16. According to the prosecutrix, only two accused had sexual intercourse with her and
other four were sitting in the room fondling with her body parts. It may be pertinent to
point out that the number of people who were with the prosecutrix during the abduction
and subsequent rape, has not been conclusively ascertained. This point has been
explored in detail in the next paragraph. This appears to be quite improbable as there
were admittedly other rooms, where they could have sat so as to allow the Appellant to
do the act in privacy. It is not her case that due to shortage of time or accomodation
this method was adopted.

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17. The Prosecutrix admitted in her cross examination that she had come to know the
names of all the accused during the course of occurrence, as they were taking each
other's names. If that be so, then why she did not name the Appellant in the FIR is a
million dollar question? These ommissions speak volumes against her and her
credibility stands shaken. It is also to be noted that initially she reported that there
were in all 10 persons but later on she deposed that there were only eight persons and
at some place she narrated that only 7 persons were there. When she had ample time to
count the number of persons then why this wavering in the number of persons. These
acts or omissions of Prosecutrix cannot be said to be minor contradictions as these are
very relevant pieces of evidence. Because of such contradictions, an agile and active
court can differentiate between genuine cases from the frivolous and concocted ones.
The role of courts in such cases is to see, whether the evidence available before the
court is enough and cogent to prove the accused guilty.
18. From the record it is established that she was member of a Musical Concert Party,
which used to perform at various functions. Her photographs and video recording fully
reflects it, yet she had the audacity to deny this fact. It is also pertinent to mention, if
she had really met her mother Narayani and sister at the Bus Stop in Kurukshetra then,
why Narayani or her sister Sangeeta was not examined by the Prosecution. Thus story
of meeting them at Kurukshetra Bus Stop is wholly unreliable and it appears to be
concocted.
19. Medical evidence shows that her Labia Majora and Labia Minora were healthy and
had no marks of injury. Hymen had old healed tear and the same was not red hot or
tender and did not bleed on touching. Vagina admitted two fingers easily. P.W.6 Dr.
Sushma Saini further opined in her cross-examination that she might be habitual to
sexual intercourse prior to 23.06.1994. Her Medico Legal Report and medical evidence
further reveal that she had not received any significant injuries on other parts of her
body and injuries on her private parts were much less as mentioned by her in the FIR,
except for the cheek bite.
20. Admittedly, she had travelled certain distance in the Maruti Van after her alleged
abduction but she did not raise any alarm for help. This shows her conduct and
behaviour during the whole process and render her evidence shaky and untrustworthy.
21. The statement of the prosecutrix that in all 11 persons were there in the Maruti Van
renders it further doubtful as it would be extremely difficult for 11 persons to be
accommodated in the Maruti Van, the seating capacity of which is only 5.
22. During the course of investigation, the prosecutrix was taken to the area, to point
out the Kothi, where she was said to have been subjected to rape, but she failed to
identify the said kothi. It may be recalled that she was alleged to have been abducted
during broad day light, thus her failure to identify the kothi, fully belies her case.
23. These are some of the salient features of the lop sided story of the prosecutrix,
more so, when it has not been corroborated by any other evidence. On the account of
various serious contradictions in the statement of prosecutrix and her actions, it could
be safely concluded that she was certainly not telling a gospel truth.
24. Needless to say the solitary evidence of the prosecutrix to bring home the charge of
abduction and commission of rape by the Appellant does not inspire confidence and is
not of sterling quality. In our opinion, it is neither prudent nor safe to hold the
Appellant guilty of commission of the said offence. We hold so, on account of many
other circumstances, which are against the prosecution, narrated hereinbelow:
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25. Admittedly, no identification parade was conducted to identify the Appellant as the
description given by prosecutrix about the details did not match with his appearance. All
through, she has been describing the Appellant as gitta (short statured) man with
beard, whereas a statement before the Bench has been made by learned Counsel for
Appellant, after verification from the Appellant's wife, that he is 5' 6" tall. This fact has
been independently corroborated by the jailor's report on this specific query. Even
though a man having height of 5' 6" cannot be said be tall but by no stretch of
imagination, he could be called a gitta (short statured) man.
26. Admittedly she was already shown the Appellant and other accused at the Police
Station, after they were arrested. Thus, her dock identification in Court had become
meaningless.
27. No spot maps were prepared either by the Naib Tehsildar or by the Investigating
Officer to show the size of the room. If the size of the room was so small then it could
not have been possible to accommodate 7 persons and also allowing the Appellant to
commit the offence of rape. If the size of the room could have been verified, then the
very genesis of commission of the offence by the Appellant would fall flat. This could
have been possible to ascertain only if spot map had been prepared. This was a lacuna
on the part of the investigating agency and prosecution, the benefit of which must
accrue to the Appellant.
28. PW-11, Sohan Singh, Inspector/SHO had not gone to see the spot at all. He has
admitted this in the following manner in his cross-examination:
Since I have never visited house No. 919/13, no site plan of that house was
prepared. Because the prosecutrix herself has not stated the number of house.
She was even unable to identify this house. I did not take the prosecutrix in
house No. 919/13 inspite of the fact disclosed by accused on 27.6.1994.
This certainly reflects and shows the casual manner in which the investigation was
conducted.
2 9 . PW-13, Sub Inspector Ramji Lal, has also admitted this fact by making the
following statements:
However, Sneh Lata was not in a position to locate the place of the incident.
Thereafter, I took her to Radaur. Even in Radaur she was not able to locate the
place where she was criminally assaulted.
This further goes to show that not only the prosecutrix but even the I.Os failed to locate
the site where offence of rape was said to have been committed.
3 0 . According to the prosecutrix, she was abducted from the house of Bimla Devi
where, apart from the above two ladies, husband of Bimla Devi, Des Raj and sons of
Des Raj and Bimla Devi were present. They had raised hue and cry for help at the time
of abduction. Many neighbours had come out of their houses but surprisingly enough
prosecution has not examined either Bimla Devi or her husband, their sons or any of
their neighbours. No plausible and valid reasons have been given for their non-
examination.
31. No doubt, it is true that to hold an accused guilty for commission of an offence of
rape, the solitary evidence of prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy, unblemished and should be of

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sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing
several lacunae, have already been projected hereinabove, would go to show that her
evidence does not fall in that category and cannot be relied upon to hold the Appellant
guilty of the said offences. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement (Code of Criminal Procedure),
FIR and deposition in Court.
32. Thus, it was necessary to get her evidence corroborated independently, which they
could have done either by examination of Ritu, her sister or Bimla Devi, who were
present in the house at the time of her alleged abduction. Record shows that Bimla Devi
though cited as a witness was not examined and later given up by the public prosecutor
on the ground that she has been won over by the Appellant.
33. As per the FIR lodged by the prosecutrix, she first met her mother Narayani and
sister at the bus stop at Kurukshetra but they have also not been examined, even
though their evidence would have been vital as contemplated under Section 6 of the
Indian Evidence Act, 1872 (for short "The Act") as they would have been Res Gestae
witnesses. The purpose of incorporating Section 6 in the Act is to complete the missing
links in the chain of evidence of the solitary witness. There is no dispute that she had
given full and vivid description of the sequence of events leading to the commission of
the alleged offences by the Appellant and others upon her. In that narrative, it is amply
clear that Bimla Devi and Ritu were stated to be at the scene of alleged abduction. Even
though Bimla Devi may have later turned hostile, Ritu could still have been examined,
or at the very least, her statement recorded. Likewise, her mother could have been
similarly examined regarding the chain of events after the prosecutrix had arrived back
at Kurukshetra. Thus, they would have been the best person to lend support to the
prosecution story invoking Section 6 of the Act.
34. We shall now deal with Section 6 of the Act, wich reads as under:
6 . Relevancy of facts forming part of same transaction ? Facts which, though
not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or
at different times and places. Black's Law Dictionary defines Res Gestae as
follows:
(Latin: "things done") The events at issue, or other events
contemporaneous with them In evidence law, words and statements
about the res gestae are usually admissible under a hearsay exception
(such as present sense impression or excited utterance).
The said evidence thus becomes relevant and admissible as res gestae under Section 6
of the Act.
35. Section 6 of the Act has an exception to the general rule where-under, hearsay
evidence becomes admissible. But as for bringing such hearsay evidence within the
ambit of Section 6, what is required to be established is that it must be almost
contemporaneous with the acts and there could not be an interval which would allow
fabrication. In other words, the statements said to be admitted as forming part of res
gestae must have been made contemporaneously with the act or immediately thereafter.
36. Admittedly, she had met her mother Narayani and sister soon after the occurrence,
thus, they could have been the best res gestae witnesses, still the prosecution did not
think it proper to get their statements recorded. This shows the negligent and casual
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manner in which prosecution had conducted the investigation then the trial. This
lacunae has not been explained by the prosecution. The prosecution has not tried to
complete this mssing link so as to prove it, beyond shadow of doubt, that it was
Appellant who had committed the said offences.
37. Learned Single Judge of the High Court, on the same set of evidence has acquitted
two accused, without assigning any cogent, valid or specific reasons for it whereas on
the same very set of evidence, the Appellant has been found guilty. Why the same
benefit could not have been bestowed to the Appellant has not been dealt with
specifically in the impugned judgment.
3 8 . Prosecution also adopted a peculiar mode in the case as the first statement of
prosecutrix was recorded under Section 164 of the Code of Criminal Procedure on
27.06.1994 before Judicial Magistrate, First Class, Kurukshetra. Only thereafter on
28.06.2004, her further statement under Section 161 of the Code of Criminal Procedure
was recorded.
39. In fact, the procedure should have been otherwise. This further shows that right
from the beginning the prosecution was doubtful on the trustworthiness of the
prosecutrix herself. Precisely that was the reason that she was first bound down by her
statement under Section 164 of the Code of Criminal Procedure .
40. The Appellant was also examined by the doctor, who had found him capable of
performing sexual intercourse. In the undergarments of the prosecutrix, male semen
were found but these were not sent for analysis in the forensic laboratories which could
have conclusively proved, beyond any shadow of doubt with regard to the commission
of offence by the Appellant. This lacuna on the part of the prosecution proves to be fatal
and goes in favour of the Appellant.
41. It is pertinent to mention here that Appellant is a physically handicapped person to
the extent of 55% as per Doctor's Report, and this fact is not controverted by the
prosecution. This much of handicap of any person would be easily noticeable, which
Appellant failed to mention at all. In fact, this would have been much better
identification of the Appellant, which the prosecutrix did not mention at all.
42. On account of aforesaid shortcomings, irregularities and lacuna on the part of the
prosecution, in our considered opinion, it will not be safe to convict the Appellant.
43. With regard to the matching of the semen, we find it from Taylor's 2 nd Edn. (1965)
Principles and Practice of Medical Jurisprudence as under:
Spermatozoa may retain vitality (or free motion) in the body of a woman for a
long period, and movement should always be looked for in wet specimens. The
actual time that spermatozoa may remain alive after ejaculation cannot be
precisely defined, but is usually a matter of hours. Seymour claimed to have
seen movement in a fluid as much as 5 days old. The detection of dead
spermatozoa in stains may be made at long periods after emission, when the
fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after
12 months and once after a period of 5 years. Non-motile spermatozoa were
found in the vagina after a lapse of time which must have been 3 and could
have been 4 months.
44. Had such a procedure been adopted by the prosecution, then it would have been a
foolproof case for it and against the Appellant.
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45. Now, after the incorporation of Section 53(A) in the Criminal Procedure Code, w.e.f.
23.06.2006, brought to our notice by learned Counsel for the Respondent-State, it has
become necessary for the prosecution to go in for DNA test in such type of cases,
facilitating the prosecution to prove its case against the accused. Prior to 2006, even
without the aforesaid specific provision in the Code of Criminal Procedure prosecution
could have still resorted to this procedure of getting the DNA test or analysis and
matching of semen of the Appellant with that found on the undergarments of the
prosecutrix to make it a fool proof case, but they did not do so, thus they must face the
consequences.
46. We have also gone through the orders of dismissal passed by this Court in Crl. M.P.
No. 9646 on 15.06.2009 as also of the Review Petition dated 05.11.2009 filed by Smt.
Hardevi. Admittedly, the said orders passed in the SLP and Review Petition by this Court
did not assign any reasons for the dismissal, thus it would not be proper and safe for us
to place reliance thereon.
47. Thus, looking to the matter from all angles, we are of the considered opinion that
the conviction of the Appellant cannot be upheld.
48. Thus, appeal is hereby allowed. judgment and order of conviction as recorded by
the trial court and confirmed by learned Single Judge of the High Court qua the
Appellant are hereby set aside and quashed. The Appellant is acquitted of all the
charges.
49. He be set at liberty forthwith if not required in any other criminal case.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/UP/3222/2022
IN THE HIGH COURT OF ALLAHABAD
Criminal Revision No. 2126 of 2021
Decided On: 13.09.2022
Minor Son of Moolchand Vs. State of U.P. and Ors.
Hon'ble Judges/Coram:
Jyotsna Sharma, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Adesh Kumar
For Respondents/Defendant: G.A. and Vivek Kumar Srivastava
JUDGMENT
Jyotsna Sharma, J.
1 . Heard Sri Adesh Kumar, learned counsel for the revisionist, Sri Vivek Kumar
Srivastava, learned counsel for the opposite party no. 2 as well as Sri O.P. Mishra,
learned AGA for the State and perused the record.
2. This criminal revision under Section 102 of the Juvenile Justice Act, 2015 has been
filed on behalf of the minor 'X' S/o Moolchand through his natural guardian/grandfather
Sri Ved Prakash S/o Late Desh Raz R/o Village-Akbarpur Shadat, Police Station
Bahsuma, District-Meerut with the prayer to admit the minor to bail alongwith the
prayer to set aside the order dated 07.07.2021 passed by the Juvenile Justice Board,
Meerut and order dated 26.08.2021 passed by the Additional Sessions Judge/Special
Judge, POCSO Act, Meerut in Criminal Appeal No. 52/2021 arising out of Case Crime
No. 34 of 2021 under Section 302 IPC, Police Station-Bahsuma, District-Meerut by
which the bail to the juvenile was declined.
3 . As per the version of the FIR, the informant's son-Nitin had gone to his college on
his bullet motorcycle to receive his report card. When he approached the gate of his
college, he found the revisionist (minor) and his brother-Arjun standing there. He got
engaged in some kind of conversation with them. Suddenly, the minor whipped out a
country-made firearm and shot at Nitin. He was referred to Meerut Hospital, where he
succumbed to his injuries and died. On the basis of the FIR lodged by deceased's father
within less than 5 hours of the incident on the same day, Case Crime No. 0034 of 2021
under Section 302 IPC, was registered and investigated upon. On finding one of the
accused person, who is the present revisionist, a minor, the matter was placed before
the Juvenile Justice Board, Meerut where an order for determination of age was passed
on 23.06.2021 and he was found of the age of little over 13 years and 6 months. The
minor applied for bail through his guardian/father namely, Mool Chand but the same
was rejected by the Board. The Appeal No. 52 of 2021 filed against the above noted
order dated 07.07.2021, was also dismissed by the learned Appellate Court below.
4. Aggrieved by the above two orders, the minor through his guardian/grandfather has
come in criminal revision.
5 . It is submitted by the revisionist that the courts below have not proceeded in
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accordance with the provisions of Section 12 of the Juvenile Justice Act, 2015 which are
mandatory in nature and have dis-entitled the minor from bail without any good reason.
The courts below failed to consider that no material has been collected to demonstrate
that there was any likelihood of juvenile being brought in association with any known
criminals or to expose him to any moral, physical or psychological danger or that his
release is likely to defeat the ends of justice. It is next submitted that the juvenile has
had no criminal history and that the learned courts below have only considered the
gravity of crime and dismissed his application on merits of the matter which clearly
goes against the statutory provisions of Section 12 of the Juvenile Justice Act.
6 . It has been submitted that gravity of the offence is not relevant consideration for
refusing bail to the juvenile as has been held by this Court in Criminal Revision No.
2732 of 2010 (Amit Kumar vs. State of U.P.) decided on 14.09.2010, Criminal Revision
No. 1266 of 2020 (Kanchan Sonkar vs. State of U.P.) decided on 01.12.2020, Criminal
Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016 and held by
the Apex Court in Prakash vs. State of Rajasthan, MANU/RH/0549/2005 : 2006 Cri.L.J.
1373.
7 . In Criminal Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on
16.03.2016, this Court referred to the earlier judgment in Vijendra Kumar Mali vs. State
of U.P., MANU/UP/0971/2003 : 2003 (1) J.I.C. 103, wherein this Court reiterated that in
a number of judgments, it has been categorically held that bail to the juvenile can only
be refused if one of the grounds as provided in proviso to Section 12(1) of the Juvenile
Justice Act, 2015 exist. So far as the ground of gravity is concerned, it is not covered
under the relevant provisions. If the bail application of the juvenile was to be
considered under the provisions of Cr.P.C., there would have been absolutely no
necessity for the enactment of the aforesaid Act. The Section 12of the Act contains a
non-obstante clause, which indicates that the general provisions of Cr.P.C. shall not
apply. Therefore, the gravity or seriousness of the offence should not be taken as an
obstacle or hindrance to refuse the bail to delinquent juvenile.
8. It is contended that there exist no material to justify rejection of bail on the grounds
envisaged in Section 12 of the Act. In view of the above provisions, the 'child in conflict
with law', who has been in custody for quite some time deserves to be released on bail
otherwise, the purpose of provisions of Section 12 of the Juvenile Justice Act shall
stand defeated. It is also contended that care of the juvenile in a child care institution
cannot be preferred over his care in his biological family.
9 . Learned AGA as well as learned counsel for opposite party no. 2 have opposed the
prayer for bail.
10. I perused the impugned orders. It appears that the Juvenile Justice Board, Meerut
took into consideration the report of the District Probation Officer and made it a sole
ground for dismissal of his bail application.
11. The learned Appellate Court below took into consideration amongst other facts, the
fact that the weapon of offence was recovered from guardian/father of the juvenile
which was bought almost a year before the incident of this case. The juvenile took that
country-made firearm out from the almirah kept in his house and used that very firearm
to carry out this frightful crime of murder. The learned Appellate Court below took into
consideration the family background and the fact that because of disturbed and not so
tranquil atmosphere in the family, he was driven to commit this kind of offence at a
tender age of 13 1/2 years and that in all probability, he is not likely to get good

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guidance from his family members and therefore, on the basis of above observations,
the learned Appellate Court below has dismissed the appeal.
12. In Om Prakash vs. State of Rajasthan and another; MANU/SC/0308/2012 : (2012) 5
SCC 201, the Hon'ble Apex Court observed that the Juvenile Justice Act was enacted
with a laudable object of providing a separate forum or a special court for holding trial
of juvenile as it was felt that the children become delinquent by force of circumstance
and not by choice and hence they need to be treated with care and sensitivity while
dealing and trying cases involving criminal offence. It was further observed that when
an accused is involved in grave and serious offence which he committed in a well
planned manner reflecting his maturity of mind the court ought to be more careful.
Thus, the Hon'ble Apex Court has brought in focus the nature of offence, the conduct of
an accused as reflected in the method employed and connected facts in the commission
of crime, in other words merits of the case, a relevant consideration while considering
the matters of bail.
13. It may be noted that the Hon'ble Apex Court gave the above view in the background
of the facts that age of the victim as determined by the courts below was not free from
doubts. In the peculiar circumstances, the Hon'ble Apex Court observed that where
accused commits grave and heinous offence and thereafter attempts to take statutory
shelter under the guise of being a minor, a casual or cavalier approach while recording
his age, is not acceptable and that the shelter of the principle of benevolent legislation
of the Juvenile Justice Act is meant for minors, who are innocent law breakers and not
otherwise. Nevertheless, in my view, the spotlight is again on the nature of crime
particularly when the alleged crime is grave and heinous and factors connected thereto.
14. In Mangesh Rajbhar vs. State of U.P. and Another; MANU/UP/2578/2018 : 2018 (2)
ACR 1941, this Court observed as under:
"13. No doubt, the Juvenile Justice Act is a beneficial legislation intended for
reform of the juvenile/child in conflict with the law, but the law also demands
that justice should be done not only to the accused, but also to the accuser."
25. It is not that this aspect of the gravity of the offence has been considered
irrelevant to the issue of grant or refusal of bail to a minor in the past and
before the present Act of 2015 came into force. In a decision of this Court
under the Juvenile Justice Act, 2000 where the interest of the society were
placed seemingly not on a level of playing field with the juvenile, this Court in
construing the provisions of Section 12 in that Act that were pari materia to
Section 12 of the Act in the matter of grant of bail to a minor held in the case
of Monu @ Moni @ Rahul @ Rohit v. State of U.P., MANU/UP/1144/2011 : 2011
(74) ACC 353 in paragraph Nos. 14 and 15 of the report as under:
"14. Aforesaid section no where ordains that bail to a juvenile is a must
in all cases as it can be denied for the reasons" ...... if there appears
reasonable grounds for believing that the release is likely to bring him
into association with any known criminal or expose him to moral,
physical or psychological danger or that his release would defeat the
ends of justice."
1 5 . In the light of above statutory provision bail prayer of the juvenile
revisionist has to be considered on the surrounding facts and circumstances.
Merely by declaration of being a juvenile does not entitle a juvenile in conflict
with law to be released on bail as a matter of right. The Act has a solemn
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 purpose to achieve betterment of juvenile offenders but it is not a shelter home
for those juvenile offenders who have got criminal proclivities and a criminal
psychology. It has a reformative approach but does not completely shun
retributive theory. Legislature has preserved larger interest of society even in
cases of bail to a juvenile. The Act seeks to achieve moral physical and
psychological betterment of juvenile offender and therefore if, it is found that
the ends of justice will be defeated or that goal desired by the legislature can
be achieved by detaining a juvenile offender in a juvenile home, bail can be
denied to him. This is perceptible from phraseology of section 12 itself.
Legislature in its wisdom has therefore carved out exceptions to the rule of bail
to a juvenile."
1 5 . This Court in Criminal Revision 2808 of 2019, Sonu (Minor) vs. State of U.P.,
clearly opined that the gravity and heinous nature of offence become relevant while
judging the entitlement of a juvenile to bail under last of the three disentitling
categories under Section 12(1) of the Act. I fully agree with the above observation of
this Court.
16. Though cases of juveniles who have allegedly committed a heinous crime and are
of the age of above 16 years have been treated differently from those who are found to
be of the age of below 16 years in the Juvenile Justice Act, 2015. However, by no
stretch of imagination, it can be said that the Courts are bound to release the juvenile
below the age of 16 years once he is found to be of that age and no more.
1 7 . Ordinarily to disentitle the juvenile from the benefits of bail, as envisaged in
Section 12 of the Juvenile Justice Act, the merits or say the allegations against him are
not important and relevant as has been consistently held by the Hon'ble Courts from
time to time. However, as said earlier the allegations may assume importance where the
Court has to form an opinion about the ends of justice. The Courts are under obligation
to address the concerns of both the sides while deciding upon whether or not the ends
of justice shall stand defeated in case the juvenile is admitted to bail.
18. In my firm view, the manner of commission of the crime, the nature thereof cannot
be ignored while striking a balance between the demands of justice of either of the
sides. It shall be impudent to hold, regardless of the age of the juvenile, that the nature
of the crime or merits of the matter are of no relevance when judging the entitlement of
a juveniles to bail in cases where heinous crimes are committed. In other words, the
nature of crime, the manner of commission, the methodology applied, the mental state,
the extent of involvement, the evidence available shall be the factors to be taken into
account in both the types of cases where the juvenile is below 16 or where the juvenile
is above 16. No artificial line can be drawn between the two categories when
considering the bail from this particular angle.
19. A word of caution may be added that no useful purpose may be served by looking
into background of the offender or as to reasons and circumstances as revealed from
social investigation report, which led him to this juncture or which brought him into
such a quagmire. They may be factors which are for a social scientist to ponder over
and to suggest the corrective action. A judge is only concerned with the facts arising
out of the commission of crime with a view to decide upon whether or not to release
him on bail. The Court is not expected to embark on inquiry going back in times and
search for reasons and justifications for commission of a dastardly crime by a person of
rather a very young and tender age and get swayed by it. From this point of view, a
social background or a social investigation report may have a very limited purpose to

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serve. The findings cannot be solely based on such reports, which are more than often
very superficial and unscientific. It is a common knowledge that social investigation
reports are usually prepared on printed formats without proper research. In my opinion,
not much reliance can be placed on such half baked reports. The Court may have to
depend on its own judicial discretion and objective assessment of the things while still
going strictly according to the provision of law as to bail and also keeping in mind that
the Act has intertwined approach reformatory as well as retributive. The judge has to
strike a precarious balance between interest of the child and interest of the victim and
also the society at large.
2 0 . The vastness of the ends of justice may pull within its sphere facts and
circumstances, which may otherwise seem quite immaterial, extraneous, irrelevant,
impertinent, not so important or even innocuous at first glance for the purpose of the
applicability of proviso to Section 12 of the Juvenile Justice Act. The provisions of the
Juvenile Justice Act though largely enacted with a reformative theories in mind do not
obliterate streaks of retributive justice in them.
21. Another dimension which sweeps in, to be weighed, when considering the bail to
juvenile, grant or refusal thereof, is the PRINCIPLE OF BEST INTEREST as described in
Chapter IV, Section 3 (iv) of the Juvenile Justice Act, 2015. And undeniably and
unarguably keeping in mind the reformative goals of the Act, the bail can definitely be
denied, where there are circumstances to arrive at a conclusion that bail should be
declined because of the fact that juvenile shall not get such conducive atmosphere as
may be needed for his own welfare and betterment, if released to his family or parents.
2 2 . Coming to the facts of present matter, this cannot be ignored that it was the
juvenile who came prepared and armed with a country-made firearm and though he
accompanied his brother, but it was he, who fired upon Nitin, killing him almost
instantaneously or sometime thereafter. Before commission of crime, he picked the
firearm from his own house indicating that this incident was not committed at a spur of
moment, rather it was planned. This fact can also not be pushed aside that the bail
application and the present revision has been filed on behalf of the minor through his
grandfather and not by his mother or father.
23. The District Probation Officer has reported that he was not properly taken care of in
his family and that he fell into bad company. It is not very clear that how a grandfather
can properly take care of a boy who is aged about 13 or 14 years. This fact is also
worth notice that he may be in specific need of supervision or intervention and that he
may be needing proper professional counseling and behavioral therapy.
24. The fact of matter is that in this case, a school going juvenile of a very tender age
of little over 13 years and 6 months, indulged in a very heinous crime in a well planned
manner, who came ready with a firearm and had a main role of shooting the victim; the
victim herein was also a school going boy; sudden loss of a young member must have
sent shock waves to victim's family members and they certainly must have gone
through emotional trauma. The Court is, in such circumstances expected to strike a
delicate balance between competing and more often than not, conflicting demands of
justice where liberty of an individual is pitted against the larger interest of the society.
In such cases, the need for specific supervision of the juvenile and wider need to
convert the juvenile into a healthy adult by giving him professional counseling and
behavioral therapy under the scheme of the Act cannot be underestimated. Moreover, it
may be necessary to keep him away from the company of elements, which he previously
had.

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25. Considering all the above facts and circumstances of the matter, I concur with the
conclusions arrived at by the Appellate Court and by the Juvenile Justice Board and am
of the opinion that the revisionist is not entitled to bail.
26. Subject to orders of the Juvenile Justice Board, in this regard, the District Probation
Officer shall sincerely attend to his duties as assigned to him in Rule 64 of Juvenile
Justice (Care and Protection) Model Rule, 2016 and prepare individual care plan, if need
arises; likewise person in charge of child care institution shall provide care and
protection to the child as per scheme of the Act.
2 7 . Accordingly, the present criminal revision is dismissed. However, the Juvenile
Justice Board is directed to expedite the hearing and conclude the same at the earliest.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/1090/2012
Equivalent/Neutral Citation: 2013(122)AIC 257, 2013(2)AJR594, 2013 (80) AC C 622, I(2013)C C R80(SC ), 2013(2)C GLJ339, 2013C riLJ637,
2013(3)EC rN 603, 2012 INSC 584, JT2012(12)SC 405, 2013(1)MLJ(C rl)198, 2013(3)RC R(C riminal)514, 2012(12)SC ALE254, (2013)2SC C 541,
[2012]13SC R777

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 634 and 635 of 2012
Decided On: 12.12.2012
Mohammad Khalil Chisti and Ors. Vs. State of Rajasthan and Ors.
Hon'ble Judges/Coram:
P. Sathasivam and Ranjan Gogoi, JJ.
JUDGMENT
P. Sathasivam, J.
1 . These appeals are directed against the common judgment and order dated
20.12.2011 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in
D.B. Criminal Appeal Nos. 189 and 188 of 2011 whereby the Division Bench of the High
Court dismissed the appeals filed by the Appellants herein and affirmed the judgment
dated 31.01.2011 passed by the Court of Additional Sessions Judge (Fast Track) No. 1,
Ajmer in Sessions Case No. 157 of 2001.
2. Brief facts
(a) The case relates to a fight between two groups of Khadim Mohalla, Jhalra, Ajmer
which culminated into the death of one Idris and registration of 2 FIRs being Nos. 90
and 91 of 1992.
(b) On 14.04.1992, an altercation took place between Khalil Chisti (A-2) and Khurshid
Pahalwan - cousin of Aslam Chisti (the complainant in FIR No. 90 of 1992) during a
function at the house of one Shabbir on account of old rivalry. On the same evening,
Khurshid had called Idris-cousin brother of Shabbir for having the matter resolved by
way of a compromise between the two parties. In pursuance of the same, Idris,
Shamim, Aslam, Mustqueem, Asif, Sagir and Javed (relatives) proceeded towards the
house of Khalil Chisti where they found Khalil Chisti (A-2), Yasir Chisti (A-1), Akil Chisti
(A-3) and Farukh Chisti (A-4) who were already present there. On entering the house,
they realized that Khalil (A-2) was having sword in his hand and Farukh (A-4) was
holding a gun whereas Yasir and Akil were having revolvers and the accused party
immediately closed the door from behind and Khalil Chisti (A-2) shouted "no one
should escape, kill all of them." On seeing their intention, the complainant party tried to
run in order to save their lives at which time Farukh (A-4) fired a shot at Idris which
resulted into injury to his right eye. Khalil (A-2) also gave a sword blow to the
complainant-Aslam Chisti which struck on his forehead and Yasir and Akil also opened
fire. Later on, considering the injured to have been shot dead, the accused persons fled
away. Subsequently, Khurshid and Shamim had taken Aslam Chisti and Idris to the
hospital where Idris succumbed to his injuries.
(c) On the same day, i.e., on 14.04.1992, Aslam Chisti lodged an FIR being No. 90 of
1992 at Police Station Ganj, Ajmer against Yasir (A-1), Khalil (A-2), Akil (A-3) and
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 preponderance of probabilities is in favour of his plea.
(emphasis supplied)
2 6 . In Babulal Bhagwan Khandare and Anr. v. State of Maharashtra
MANU/SC/1026/2004 : (2005) 10 SCC 404, this Court held that non-explanation of the
injuries sustained by the accused at about the time of occurrence or in the course of
altercation is a very important circumstance. It was further held that the right of self
defence is a very valuable right, serving a social purpose and should not be construed
narrowly.
27. It is clear that it is the duty of the prosecution to explain the injuries sustained by
the accused and establish the genesis of the incident by placing acceptable materials. In
the case on hand, we have already pointed out there is enough material to show that in
the course of the very same incident Farukh (A-4) and Akil (A-3) also sustained
injuries. In fact, Farukh sustained grievous injury by use of sharp edged weapon.
However, these injuries were not explained at all by the prosecution.
28. Mr. Jasbir Singh Malik, learned Counsel for the State by relying on a decision of
this Court reported in Mitthulal and Anr. v. The State of Madhya Pradesh
MANU/SC/0168/1974 : (1975) 3 SCC 529 submitted that evidence in cross case
cannot be relied upon. It is true that in the said decision, this Court held that it has not
accepted the procedure followed by the High Court which has based its conclusion not
only on the finding recorded in the case against the Appellants therein and the four
other accused but also taken into account the evidence recorded in the cross case
against Ganpat, Rajdhar and others. This Court held that the course adopted by the High
Court was clearly impermissible. There is no dispute about the said proposition and in
fact in the case on hand, neither the trial court nor the High Court relied on the
evidence led in the cross case but the same were tried separately and in fact appeals are
still pending before the High Court against the conviction in the cross case.
29. The other decision relied on by the State counsel is reported in Sambhu Das alias
Bijoy Das and Anr. v. State of Assam MANU/SC/0705/2010 : (2010) 10 SCC 374
which shows that this Court in exercise of its powers under Article 136 of the
Constitution will not reopen the findings of the High Court when there are concurrent
findings of facts and there is no question of law involved and the conclusion is not
perverse. The above proposition holds good. We also reiterate that Article 136 of the
Constitution does not confer a right of appeal on a party. It only confers discretionary
power on this Court to be exercised sparingly to interfere in suitable cases where grave
mis-carriage of justice has resulted from illegality or misapprehension or mistake in
reading evidence or from ignoring, excluding or illegally admitting material evidence.
Summary:
30. The analysis of the prosecution case, undoubtedly, has led two sets of evidence.
The evidence adduced suggest that the accused in the present appeals are to some
extent victims of armed aggression at the hands of the deceased and his companions.
We have pointed out that Tariq Mohammad (PW-1) deposed that he saw Idris
(deceased) with a knife in his hand, Mohd. Aslam (PW-3), Sagir (PW-6), Shamim (PW-
18) and Ors. armed with sticks left for the house of the Farukh (A-4). It was also
deposed by him that he tried to stop Idris and Ors. but in vain. Bhanwar Singh (PW-4)
and Bhanwar Lal Sharma (PW-5) -the police constables, examined on the side of the
prosecution, were present at the scene of offence. We have already dealt with the
evidence of these two witnesses which clearly show that the complainant's party, i.e.,
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64
65
66
67
68
69
 MANU/SC/0146/1976
Equivalent/Neutral Citation: AIR1976SC 1929, 1976C riLJ1527, 1976 INSC 156, (1976)3SC C 684, (1976)SC C (C ri)493, [1977]1SC R1

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 314-315 of 1976
Decided On: 19.07.1976
Murlidhar Meghraj Loya and Ors. Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
P.K. Goswami and V.R. Krishna Iyer, JJ.
Case Note:
Criminal - offence - Sections 2, 7 and 16 of Prevention of Food Adulteration
Act and Rule 44 of Prevention of Food Adulteration Rules - complaint lodged
against appellants for selling adulterated food within meaning of Section 2 (i)
read with Sections 7 (1) and 16 (1) (a) and Rule 44 (e) - judicial jurisdiction
to soften sentence arises if offence of adulteration falls only under Section 2
(i) (1) - offence does not fall under said section - Section 2 (i) (a) applies to
case and Section 16 (a) had been breached - appeal dismissed.
JUDGMENT
V.R. Krishna Iyer, J.
1 . Judicial fluctuations in sentencing and societal seriousness in punishing have
combined to persuade Parliament to prescribe inflexible, judge-proof, sentencing
minima in the Food Adulteration law. This deprivatory punitive strategy sometimes
inflicts harsher-than-deserved compulsory imprisonment on lighter offenders, the
situation being beyond judicial discretion even if prosecution and accused consent to an
ameliorative course. The two appeals, by special leave, partially illustrate this
proposition. Khurasani oil is an edible oil extracted by crushing oil seeds in mills.
Groundnut oil, also edible, is expressed likewise. A firm by name Balmukand Hiralal
Loya & Co., in a minor town in Maharashtra, runs an oil mill where Khurasani oil and
groundnut oil are manufactured by the firm. Sometimes they crush oil seeds for others
on hire who pay milling charges.
2. The appellants in Criminal Appeal No. 314 are the managing partner and the manager
of the mill and the appellant in Criminal Appeal No. 315 is the operator of the expeller
in the mill who actually sold the offending commodity. On February 16, 1972 the Food
Inspector of Bhagur Municipality walked into the sales section of the Mill, asked for 375
grams of khurasani oil from accused No. 8, appellant in Criminal Appeal No. 315. The
quantity required was supplied and, thereafter, the Food Inspector went through the
statutory exercises preparatory to an analysis by the Public Analyst. After receiving the
report of the Analyst to the effect that the sample of khurasani oil sent for analysis
contained 30% of groundnut oil which amounted to a contravention of Rule 44 (e) of
the Prevention of Food Adulteration Rules (for short, the rules), a complaint was lodged
for selling adulterated food within the meaning of Section 2(i) of the Prevention of Food
Adulteration Act (hereinafter called the Act) read with Section. 7(1) and 16(l)(a) and
Rule 44(e). Evidence was led to make out a prima facie case. The accused were
questioned under Section 342 Cr. P.C., and the appellants confidently pleaded guilty to

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the charge whereupon the trial Magistrate, perhaps agreeably to expectations, sentenced
them each to a piffling fine of Rs. 250. Although the whole process in court is strongly
suggestive of a tripartite consensual arrangement and reminds one of plea-bargaining
procedures in the United States of America, the State Government appears to have
taken a serious view of the matter, outraged as it was by the Magistrate's adroit
avoidance of those penal provisions which obligate him to inflict a minimum prison
sentence, viz., Section 2(i)(a) and Section 16(1) with a view to apply the proviso to
Section 16(1). This is, at best, a conjecture about the Magistrate and might as well be
imputed to the prosecutor and the food inspector. However, the State filed a revision to
the High Court against the illegal and ultra-lenient impost. The revisional Judge
converted the offence into one under Section 2(i)(a) read with Section 16(1) and
enhanced the sentence to the minimum of six months and Rs. 1,000 by way of fine on
the ground that the offence committed by the accused squarely fell within Section 16(1)
(a) and did not fall within the proviso of that provision which vests a guarded discretion
in the Court to soften the sentence to special cases. The appellants, shocked by this
drastic reversal of fortune at the High Court's hands, have sought restoration of the
Magistrate's conviction and sentence. If this aggravated conviction is correct, the
enhanced punishment is inescapable.
3 . The circumstances leading up to and constituting the offence have been briefly set
out already and the divergence between the trial court and the High Court turns on the
legal inference to be drawn from the factual matrix. Has there been adulteration of food,
in the sense imputed to that expression by Section 2(i)(a)? Assuming it falls under
Section 2(i)(1) of the definition, does that factor exclude it from Section 2(0)(a)? Even
if Section 2(i)(a) does apply, is the benignant proviso to Section 16(1) attracted on the
score that the crime in this case constitutes a violation of Rule 44(e) prescribing
minimum standards? These questions are crucial to the submission made by Shri
Bhandare for the appellants his argument being that the scheme of Section 2 is to erect
separate compartments for the many types of adulteration so that if a food article is
adulterated within the meaning of Section 2(0)(1) more appropriately, it falls outside
the ambit of Section 2(i)(a). Otherwise, he argues, there is no point in itemizing the
various sub-divisions even though he concedes that marginally there may be
overlapping among the Sub-clauses. He further contends that even assuming that
Section 2(i)(a) is all-comprehensive, it must be read as the genus and thereafter Sub-
clauses (b) to (1) fall under two broad categories, viz., adulteration where injurious
substances have been admixed and adulteration where innocent additions have been
made or the substances sold merely violates a standard or degree of purity prescribed.
If there were force in this submission, the culpa, according to counsel, could reasonably
fall under the non-injurious type of adulteration covered by Section 2(i)(l). The statute,
says Shri Bhandare, sensibly dichotomizes the sentence and invests a discretion in the
court in the second category to reduce the sentence below the minimum stipulated, if
special reasons exist for such clemency. Of course, counsel concedes that if the
adulteration is of the injurious brand, judicial sympathy is statutorily supplanted. This
he reasons, fits into and explains the scheme of Section 16 which is a penal provision
with dual limbs.
4 . We well examine the validity of this interpretative dissection. Indeed, if this
somewhat strained argument fails, everything fails because, otherwise, the appellants
have glibly convicted themselves, out of their own mouth, by an unusually obliging 'yes'
to every material question under Section 342 Cr. P. Code. Thus on the merits, the sole
question is about the proper offence made out on the facts admitted. This, in turn,
depends on the acceptability of the interpretative dexterity displayed by counsel for the
appellants.
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5 . It is trite that the social mission of Food Laws should inform the interpretative
process so that the legal blow may fall on every adulterator. Any narrow and pedantic,
literal and lexical construction likely to leave loopholes for this dangerous criminal tribe
to sneak out of the meshes of the law should be discouraged. For the new criminal
jurisprudence must depart from the old canons, which make indulgent presumptions
and favoured constructions benefiting accused persons and defeating criminal statutes
calculated to protect the public health and the nation's wealth.
This humanist approach and cute construction persuades us to reject Shri Bhandare's
analysis of Section 2(l). Sub-clause (a) of Section 2(i) has a wide sweep and loyalty to
the intendment of the statute forbids truncating its ambit. There cannot be any doubt
that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani
oil and 30% groundnut oil, the supply 'is not of the nature, substance or quality which
it purports or is represented to be.' The suggestion that there is no formal evidence of
representation or prejudice as stated in the section does not merit consideration being a
quibble over a trifle.
6. If we read Section 2(i)(a) spaciously and if the facts alleged are accommodated by
the definition of 'adulteration' under that Sub-clause, Section 16(l) is attracted. The first
proviso to Section 16(l) will be attracted if and only if Section 2(i)(l) applies. In the
present case the facts disclose that the offence is both under Section 2(i)(a) and under
Section 7(v) for breach of Rule 44(e). Section 2(i)(l) is repelled on the facts and it is
obvious that this is not a case where either Section 2(i)(l) or Rule A 17.12 urged by
Shri Bhandare applies. In this view it is not possible to invoke the ameliorator proviso
to Section 16(l) and the High Court is legally right in its conversion of the provision for
conviction and enhancement of the sentence.
7 . We unhesitatingly hold that if Section 2(i)(a) adequately fits in, adulteration under
that provision must be found.
8. Once this position is made plain, the penalty that the appellants must suffer is fool-
proof. Section 16 lays down the penalties and classifies them. We are particularly
concerned with Section 16(l) of the Act which itself clubs together many categories out
of which we have to pick out only two for the purposes of this case, viz., (i) sale of any
article of food which is adulterated; and (ii) sale of any article of food other than one
which is adulterated-'in contravention of any of the provisions of this Act or of any rule
made thereunder'. Ordinarily, both these clauses of offences are punishable with the
minimum prescribed 'of not less than six months' imprisonment, together with fine
which shall not be less than Rs. 1,000/-'. However, there is a kindly proviso which
confers on the court a power to be exercised for any adequate and special reasons to be
mentioned in the judgment whereby a sentence of imprisonment for a lesser term than
six months or of fine smaller than Rs. 1,000/- or of both may be imposed, but this more
moderate punitive net is conditioned by the proviso itself. We may read the proviso :
Provided that-
(i) if the offence is under Sub-clause (i) of Clause (a) and is with
respect to an article of food which is adulterated under Sub-clause (1)
of Clause (i) of Section 2 or mis-branded under Sub-clause (k) of
Clause (ix) of that section; or
(ii) if the offence is under Sub-Clause (ii) of Clause (a).
the court may for any adequate and special reasons to be mentioned in the
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 judgment, impose a sentence of imprisonment for a terms of less than six
months or of fine of less than one thousand rupees or of both imprisonment for
a term of less than six months and fine of less than one thousand rupees.
9 . Judicial compassion can play upon the situation, only if the offence is under Sub-
clause (i) of Clause l (a) of Section 16(l) and the adulteration is one which falls under
Sub-clause (1) of Clause l (i) of Section 2. Secondly, the proviso also applies if the
offence is under Sub-clause (ii) of Clause (a), that is to say, the offence is not one of
adulteration but is made up of a contravention of any of the other provisions of the Act
or of any rule made thereunder. In the present case we have already found that the
accused is guilty of an offence of adulteration of food under Section 2(i)(a). Therefore,
proviso (ii) is out. Proviso (i) will be attracted, according to Shri Bhandare, if Section
2(i)(l) applies to the species of adulteration committed. In our view, the only sensible
understanding of proviso (i) is that judicial jurisdiction to soften the sentence arises if
the offence of adulteration falls only under Sub-clause (1) of Clause (i) of Section 2 and
we have held that it does not. We cannot but deplore the clumsy draftsmanship
displayed in a statute which affects the common man in his daily bread. It is
unfortunate that easy comprehensibility and simplicity for the laity are discarded
sometimes through over sophisticated scholarship in the art of drawing up legislative
bills. It cannot be overstressed that a new orientation for drafting methodology
adopting directness of language and avoiding involved reference and obscurity is
overdue. Be that as it may, in the present case Section 2(i)(a) applies and Section
16(1)(a) has been breached. Therefore the proviso cannot be applied in extenuation and
the conviction of the High Court has to be upheld.
10. The possibility of long argument in a case where the accused has pleaded guilty
arises because the provision lends itself to adroit exercises. The court has to look at the
interpretative problem in the social setting of the statute, visualising the rough and
tumble of the market place, the finesse with which clever victuallers fob off adulterated
edibles and gullible buyers goofily fall victim. Viewed this way, chasing recondite
semantics or niceties of classification or chopping of logic has no scope for play.
1 1 . The appeals must fail, without more. But we have to take note of a few
circumstances of significance brought to our notice by counsel for the appellant with
which the State's counsel could not express serious disagreement, although he made no
concessions.
12. We now proceed to refer to these factors which do not deflect us from confirming
the conviction. The curtain has been drawn thereon.
13. To begin with, we are free to confess to a hunch that the appellants had hastened
with their pleas of guilty hopefully, induced by an informal, tripartite understanding of
light sentence in lieu of nolo contendere stance. Many economic offenders resort to
practices the American call 'plea bargaining', 'plea negotiation', 'trading out' and
'compromise in criminal cases' and the trial magistrate drowned by a docket burden
nods assent to the sub rosa anteroom settlement. The businessman culprit, confronted
by a sure prospect of the agony and ignominy of tenancy of a prison cell, 'trades out' of
the situation, the bargain being a plea of guilt, coupled with a promise of 'no jail'.
These advance arrangements please everyone except the distant victim, the silent
society. The prosecutor is relieved of the long process of proof, legal technicalities and
long arguments, punctuated by revisional excursions to higher courts, the court sighs
relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one
case less and the accused is happy that even if legalistic battles might have held out

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some astrological hope of abstract acquittal in the expensive hierarchy of the justice-
system he is free early in the day to pursue his old professions. It is idle to speculate
on the virtue of negotiated settlements of criminal cases, as obtains in the United States
but in our jurisdiction, especially in the area of dangerous economic crimes and food
offences, this practice intrudes on society's interests by opposing society's decision
expressed through predetermined legislative fixation of minimum sentences and by
subtly subverting the mandate of the law. The jurists across the Atlantic partly condemn
the bad odour of purchased pleas of guilt and partly" justify it philosophically as a
sentence concession to a defendant who has, by his plea 'aided in ensuring the prompt
and certain application of correctional measures to him',
In civil cases we find compromises actually encouraged as a more satisfactory
method of settling disputes between individuals than an actual trial. However, if
the dispute... finds itself in the field of criminal law, "Law Enforcement"
repudiates the idea of compromise as immoral, or at best a necessary evil. The
"State" can never compromise. It must enforce the law." Therefore open
methods of compromise are impossible.
(Arnold, Law Enforcement-An Attempt at Social Dissection, 42 Yale L.J. 1, 19 (1932).
14. We have no sanction, except surreptitious practice in some courts, for 'trading out'
of punitive severity although this aspect of the criminal system deserves Indian jurists'
consideration. The sole relevance of this digression in this judgment is to highlight the
fact that the appellants perhaps acted on an expectation which came to pass at the trial
level but was reversed at the appellate level and this touch of 'immorality' in the harsh
morality of the punishment is a factor counsel wants us to take note of. But we can do
nothing about it when the minimum is set by the statute, except to state that the State
must do its duty by justice to the citizen and relieve over-worked courts by more
judicial agencies and streamlined procedures instead of leaving the uninformed public
blindly to censure delayed disposals.
15. One real reason for long litigation is inaction or ineffective action of the legislature.
All knowledgeable law-men may concede that the procedures in municipal and higher
courts are ossified to the point, priced to the level, and slow to the degree where they
cannot flexibly assist disputants in early resolution of their everyday disputes. This, we
hope, will change and the source of the evil eliminated.
16. The next draft on the court's commiseration , made by counsel, is based on the
milling operation realities surrounding the commission of the crime. It is asserted by
the appellant's advocate-and not seriously controverted by his opponent that the small
town, milling practice is multipurpose, in the sense that whoever brings any edible oil-
seed for extraction of oil gets it done so that groundnut crushing may be followed by
Khurasani seed or some other oil seed may chance to take turns by rotation. Even the
miller's own oil seeds may be sometimes khurasani, at other times, some other. This
process may result in the residue of one getting mixed up with the next. May be,
innocently some groundnut oil, in the present case, got into the khurasani oil by the
same expeller handling both. Even so, the presence of 30% groundnut oil is, perhaps,
too high an admixture to be explained away this easy way. While we appreciate the
situation we must adhere to the provision. Where the law lays down an absolute
liability, alibis cancelling mens rea are out of bounds.
1 7 . The last plea, urged ex-mesericordium, ameliorative in appeal and unavailing
against conviction, is that actually groundnut oil costs more and so profit motive stands

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negatived, that the mixture of these edible oils, though technically forbidden, is in fact
non-injurious and a terrifying term of six months' rigorous imprisonment is unjust. The
facts are probably right but ex necessitate legis the court has to inflict the heavy
minimum sentence. While in stray cases a jail term even in a trivial food offence may
look harsh, Parliament, in its wider wisdom, and having regard to social defence in a
sensitive area standardised the sentence by insisting on a minimum, ignoring
exceptional cases where leniency is needed. Individual hardships deserving of lighter
sentence are sometimes exploited by counsel's persuasion and judicial horror to secure
for democrat offenders milder punishments, it is worthy of note though that in the
present case the mixing of the two oils is a motiveless act. May be. And the
circumstances above-mentioned add up to a plea for paring down the sentence and Shri
Bhandare, for the appellants, sought to wheedle us into lending credence to these
circumstances and bring down the offence to a lesser one. Logically and sociologically
and, above all, legally, such a course is impermissible. Nevertheless, there is one
circumstance which has impressed us not to the extent of undoing the sentence
imposed by the High Court but of drawing the attention of the top executive to what
may justly be done by way of remission of sentence. The appellants have sworn an
affidavit in this Court stating that khurasani oil is the same as nigar-seed oil. This is
backed by a certificate from the Maharashtra Chamber of Commerce and is evidently
correct. What is more important is that the appellants, when surprised by a modification
of their sentence to a heavier one for what they thought was undeserving, moved in the
matter of cases generally of adulteration of khurasani oil with groundnut oil. They drew
the attention of the authorities to punishment of innocents and it appears that the State
Government was satisfied about this grievance and has since withdrawn a substantial
number of cases against dealers of khurasani oil whose sales were contaminated with
presence of groundnut oil. The affidavit on behalf of the appellants states :
I further say that various cases filed by the respondents against the dealers of
khurasani oil are now being withdrawn as invariably groundnut oil is observed
in khurasani oil. I crave leave to refer to and rely on the Journal of Maharashtra
Chamber Patrika dated 21st September, 1975, when produced.
Probably, had the present case survived till the government took action, it might have
been withdrawn. Moreover, there are circumstances suggesting of innocent admixture
although it is beyond us to pronounce definitely on this aspect and it is not for us to
enquire into the matter when Section 16(1) is clear and the sentence is legal.
Nevertheless, it may be appropriate for government to consider whether in the
circumstances of this case-and in the light of the observations made by us in this
judgment-it is not a matter for exercise of commutation powers. Sentencing policy has
a punitive and a correctional role and we are sure that what is the need of the
appellants will be meted out to them if they deserve any activist administrative empathy
at all.
18. We accordingly dismiss the appeals.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0331/1991
Equivalent/Neutral Citation: AIR1991SC 1394, 1991 (Suppl.) AC 440, II(1991)BC 586(SC ), 1991C riLJ1816, 1991(2)C rimes183(SC ), 1991 INSC
89, JT1991(2)SC 86, 1991(2)RC R(C riminal)232, 1991(1)SC ALE564, (1991)2SC C 623, [1991]2SC R88

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 664 and 665 of 1979
Decided On: 03.04.1991
Narendra Pratap Narain Singh and Ors. Vs. State of U.P.
Hon'ble Judges/Coram:
S.R. Pandian and K. Jayachandra Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R.K. Garg and M.M. Kshatriya, Advs
For Respondents/Defendant: Dalveer Bhandari, Adv.
Case Note:
Criminal - breach of trust - Sections 24, 405 and 409 of Indian Penal Code -
appellants challenged their conviction under Section 409 - appellants
entrusted with fertilizers, pesticides, seeds and other items belonging to
agricultural department and meant to cater needs of cultivators - there had
been long established practice of credit sales of said articles from Government
Agricultural Seed Stores - prosecution failed to establish ingredient of
'dishonestly' against any of appellants - evidence and documents available do
not reveal any material worth mentioning for jointly fastening both appellants
with offence of criminal breach of trust punishable under Section 409 -
appellants could not be mulcted with criminality of breach of trust for
following established practice of credit sale.
ORDER
S.R. Pandian, J.
1. These two criminal appeals are preferred by the appellants, namely-Narendra Pratap
Narain Singh and Puran Singh who were arrayed as accused Nos. 1 and 2 before the
Trial Court, against the judgments dated 8.5.1979 rendered in Criminal Appeal Nos. 158
and 157 of 1977 on the file of Allahabad High Court, Lucknow arising out of Sessions
Trial Nos. A-210 and 228 of 1974 whereby the High Court by a common judgment and
order set aside the convictions and sentence under Sections 467 and 471 I.P.C. but,
however, upheld their conviction under Section 409 I.P.C. and reduced the substantive
sentence of imprisonment to the period already undergone and the sentence of fine
from Rs. 500 to Rs. 250 and in default to undergo rigorous imprisonment for six months
in each of the cases.
2. The material facts as unfolded from the records can be stated thus:
There was a Block Development Office in the district of Sultanpur known as
Dhanpatganj Block to which a seed store known as Semrauna seed store was
attached. The seed store was to cater the needs and requirements of the
cultivators for seeds and fertilisers etc. During 1964-65, the first appellant was
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 incharge of that seed store. On 2.9.65, he was relieved by the second appellant
on transfer from Kurebhar.
3. According to the prosecution, the first appellant in his official capacity was entrusted
with fertilisers, pesticides, seeds etc. which were meant to cater the needs of the
cultivators within Semrauna area. In 1965, there were several village level workers. It is
said that on 29.7.65, the first appellant prepared forged bills in the names of some
village level workers (hereinafter referred to as VLWs) bearing bill Nos. 57, 59, 60, 61,
62 and 64 of book No. 7767 as if the VLWs were supplied with articles of Agricultural
Department on credit, the total amount of which being Rs. 1591.04 and thereby
committed breach of trust, punishable under Section 409 I.P.C. The indictment against
the second appellant is that he being a public servant of the said Agriculture
Department committed breach of trust of the articles mentioned in bill Nos. 11, 17 and
18 of book No. 7767 and misappropriated a sum of Rs. 450.26. Apart from the above
charges levelled against each of them, they were individually and collectively charged
for offences punishable under Section 467 and 471 I.P.C.
4 . The defence of the first appellant was that all those bills were not fictitious and
bogus but were genuine and that the materials were supplied to the VLWs as reflected
in the concerned bills. He denied the charge of defalcation and also making bogus
entries in the records. He further stated that on transfer, he relieved the second
appellant at Kurebhar but was holding dual charge of both Semrauna and Kurebhar
simultaneously till the second appellant took charge of Semrauna area and that he used
to supply fertilisers, seeds etc. to the village workers on credit on the basis of the long
established practice and under the orders of the superiors. The defence of the second
appellant was that he received the part payment relating to bill No. 11 and deposited
the said amount in Government treasury and that he had not misappropriated any
amount. The Trial Court, repelling their defence, convicted both the appellants under all
the charges and sentenced them to various terms of imprisonment with the direction
that all the substantive sentences shall run concurrently. In addition to the sentence of
imprisonment, a fine of Rs. 500 was imposed for the conviction under Section 409
I.P.C.
5. As the High Court has now set aside the conviction of the appellants under Sections
467 and 471 I.P.C. and as the State has not preferred any appeal as against that
acquittal, we are not called upon to deal with the case relating to those two charges.
Hence, this appeal is confined only with regard to the legality of the conviction of these
two appellants under Section 409 I.P.C.
6. The learned Judge of the High Court has disposed of the appeals in a very summary
manner confirming the conviction of the appellants under Section 409 I.P.C. stating
thus:
...I have been taken through the evidence on record. All the village level
workers concerned were examined by the prosecution and their statements
show that criminally misappropriated amounts were recovered from them by the
appellants but no fertiliser was issued to them. There is no infirmity in the
statements of these witnesses. Their statements satisfactorily make out an
offence under Section 409 I.P.C. against two appellants in both the cases.... I
am, therefore, of the opinion that the conviction of the two appellants ordered
by the Trial Court under Section 409 I.P.C. is justified.
7 . By these two appeals, the appellants challenge the correctness of their conviction.

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Mr. R.K. Garg, the learned senior counsel appearing on behalf of the appellants
contended, inter alia, stating that though the Government had instructed that credit
sales from the seed stores be discontinued, yet the long established practice was
continued and in fact the Government was also well aware of this position and that it
was the reason why as late as 2.8.67, the Government had been repeatedly issuing
circulars inviting the attention of the employees concerned to stop the practice of credit
sales and warning that any official or officer issuing will be held responsible to pay the
outstanding amount and, therefore, in such circumstances there could not be any case
of misappropriation in any form since from the very beginning, the first appellant had
been stating that credit sales had been made. According to the learned Counsel, there
could not be any motive to misappropriate these goods belonging to the Agricultural
Department when such goods were available in the open market at cheaper rates and
that when the first appellant had no land in District Sultanpur. It has been further urged
that it is amply proved from the evidence of the prosecution witnesses that credit sales
had continued till 1969-70 and that the village level workers used to take goods from
the seed stores on credit after giving receipts and used to distribute the same to the
farmers according to their needs and necessity and the money was to be realised later
on.
8 . The handing over the charge by the first appellant, it is said, could not be done
before 2.9.65 because he was asked to take charge at Kurebhar without he being
relieved at Semrauna and hence he had to work at both the seed stores from 18.6.65 to
2.9.65.
9. Coming to the case of the second appellant, it was contended by the learned Counsel
that the second appellant issued only receipts and realised money and hence in the
absence of any conspiracy having been proved, he could not be guilty of any
misappropriation of money.
10. Lastly, it has been submitted that at the worst, the first appellant if at all found
guilty would be guilty of breach of Government instructions which breach would not in
any way fasten him with criminal liability and that the High Court without discussing the
evidence in the proper perspective has disposed of both the appeals on mere
speculation, conjectures and surmises and as such the judgments are liable to be set
aside.
1 1 . The fact that there had been a practice of credit sales of seeds, fertilisers,
pesticides etc. from the Government Agricultural Seed Stores is not in dispute. While it
was the practice, a circular letter No. IA-4390/Dues-129 dated 2.8.67 was issued by
Director, Agriculture, Uttar Pradesh, Lucknow to all Drawing and Disbursing Officers in
the Agriculture Department with copies endorsed to all Zonal Deputy Directors of
Agriculture, Project Officer, Aligarh, Functional Deputy Directors of Agriculture and
Horticulture, the Development Officer, Lucknow and all sections of the Directorate of
Agriculture, U.P. which letter reads thus:
From the progress report of recovery of 'Current' dues, it has been observed
that the seed store dues are mounting year to year it goes to mean that the
commodities purchased from 95-Capital outlay are still sold and credit
otherwise the dues should not increase in this office circular letter No. IA-
7250/Dues-129 dated 21.10.1964 and circular No. 4934/Dues 29.7.1965 it was
made clear that the practice of credit sales should be stopped and on your visits
to seed stores you should see that there was no credit sales and take suitable
action against official and officer responsible for such sales. It appears that

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 these instructions have not been followed vigorously. Government has taken
serious exception to the practice of credit sales despite their orders stopping
this practice.
It is therefore, impressed again that credit sales of articles from the
Government Agricultural seed stores is strictly prohibited and any official or
officer issuing stores or authority sign their issue on credit be held personally
responsible to pay the outstanding amount. At the time of handing over charge,
all credit sales be a seed store Incharge should be treated as shortage and
recovery effected from him. Suitable action including assessment of monetary
responsibility, should also be taken against supervising officials and officers
who do not report credit sales detected on their visits to seed stores to higher
authorities or who fail to recover the amounts from these who sold
commodities on credit at their own. A list of credit sales, if any should
invariably be attached to the charge certificates to be sent to the higher
officer(s) for examination, record and taking action.
It may be once again emphasized that serious action will be taken against those
who permit or over look credit sales in defiance of Government Orders.
OFFICER OF THE DISTRICT AGRICULTURE OFFICER FAIZABAD. No. 1478/IV-
Herti. General 67-68 Dated Sept. 29, 1967.
12. A Copy of this letter was forwarded with an endorsement, reading "to all Block
Development Officers and Seed store in charges of Faizabad District Officers with the
remark that contents of above circular letter may please be brought to the notice of all
the field staff of yours block working under you for strict observance. These instructions
should be adhered in all respect in regard to sale and supplies of Horticultural
Commodities viz. plants, seeds etc. and the orders should be noted by all concerned".
1 3 . Thereafter, the Directorate of Agriculture, U.P. issued another circular No. IA
3762/Dues-129(ii) dated 26th July 1968 pointing out that the orders issued under
various circulars viz Nos. IA-7259/Dues-129 dated 31.10.1964, No. IA-4934/Dues dated
29.7.1965 and No. IA-4390/Dues-120 dated 2.8.1967 should be followed carefully,
which circular of 1968 reads thus;
3 . It is again emphasized that credit sale of articles from all Agricultural
institutions if strictly prohibited. In case any credit sale is made from the
Agricultural seed store/ Horticulture institutions, this is a very serious
irregularity that needs prompt and severe action. Since inspite of orders such
irregularities are being committed, it is necessary to keep a watch over them, A
quarterly list of such credit sales, showing full details together with the name of
person responsible for the irregularity should invariably be sent to this office
with your own comments regarding punishment. If any item of credit sale is
omitted from the quarterly list and the same is detected later an entry on
account of such omission will be made in the Character Roll of the Supervisory
Officer concerned. All inspecting officers on visits to seed stores and buffer
godown and other institutions should examine the store ledgers and bill books
to ensure that no credit sales have been made and in case some such sales
have been made take action as indicated above.
4. It may please be kept in view that the receipts and recoveries under the head
95 Capital outlay should equal to the expenditure incurred thereunder. In case
the receipts and recoveries fall short in comparison to the expenditure, the
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 future allotments of funds will be reduced accordingly and the drawing and
disbursing officer responsible for drawing funds from 95 capital outlay called
upon to explain the irregularity and short fall in recovery.
5 . The above instructions should be brought to the notice of all concerned
under a registered cover for strict compliance and the quarterly report for the
quarter ending June 1968 submitted by 15.8.68.
Please acknowledge receipt of this letter.
Sd/-
R.R. Agarwal,
Director
14. The copy of the above circular was forwarded to all Functional Deputy Directors of
Agriculture and Horticulture and Jute Development Officer, Lucknow and District
Agriculture Officers and Superintendent Govt. Gardens for information and necessary
action.
15. A cursory reading of both the circulars shows that inspite of the circulars directing
the practice of credit sales to be stopped, in reality the long established practice of
credit sales was continued. Even after the circular dated 2.8.67, the circulars were not
strictly adhered to and this necessitated the issue of circular dated 26.7.68. It seems
that due to the practice of credit sales, the seed store dues were mounting year by year
and that the Government took a very serious view of the continuance of credit sales and
issued the circular dated 27.6.68. As we have pointed out albeit, the case of the first
appellant is that the old practice of credit sales was continued and that he in fact sold
the articles to the VLWs and that none of the bills was bogus and they were not
dishonestly used as genuine. Similarly, the second appellant has denied the charges.
Now the High Court has set aside the convictions of the appellants under Sections 467
and 471 I.P.C. and the State has not preferred any appeal against this part of judgment
acquitting the appellants of these two charges and, therefore, it has to be concluded
that the charges of forging valuable security and using them as genuine have to be held
not proved.
16. The first charge in Criminal Appeal No. 664 of 1979 arising out of STA No. A-210 of
1974 reads that these appellants on or about 29th July 1965 and 12th August 1965
committed breach of trust of articles mentioned in bill Nos. 57,59,60,61, 62, and 64 of
book No. 7767. The following table will give the particular amount relating to each bill,
said to have been misappropriated:

Date No. of bills Amount

29-7-65 and 12-8-65 57 138.00

" " 59 318.86
" " 60 495.94
" " 61 357.48
" " 62 155.26
" " 64 125.50
" " 1591.04

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1 7 . Thus, the total amount alleged to have been misappropriated by the appellants
under the first charge is Rs. 1591.04. This amount admittedly have been deposited by
the first appellant, NPN Singh. The Trial Court in its judgment in Sessions Trial No. A-
210 of 1974 has pointed out in more than one place about the repayment of the amount
by deposit by the first appellant towards the six bills in question based on the evidence
of Add. DAO (Ag.) examined as PW-5 as follows:
He conceded that the money of these six bills in question; 57, 59, 60, 61, 62
and 64 has been deposited before the C.I.D. Investigation commenced.
18. In yet another portion of the judgment, it is stated thus:
In this case, no bill is outstanding as all payments were made before
investigation by the C.I.D. This accused N.P.N. Singh himself admitted to have
deposited moneys for these bills Nos. 57, 59 to 62 and 64.
19. As borne out from the records, the payments with regard to the questionable bills
made between 1.9.65 to 29.6.66 were as follows:

S. No. Bill No. Amount Date and amount paid

1. 57 138.00 19-12-65 Rs. 96.40

29-7-65/12-8-65 14-2-66 Rs. 41.40
Rs. 138.00
2. 59 318.86 19-12-65 Rs. 282.06
29-6-66 Rs. 36.80
Rs. 318.86
3. 60 495.94 19-12-65 Rs. 495.94
4. 61 357.48 19-12-65 Rs. 185.48
6-1-66 Rs. 172.00
Rs. 357.48
5. 62 155.26 18.12-65 Rs. 155.26
6. 63 125.50 1-9-65 Rs. 125.50

20. The above payments clearly establish that there is no outstanding amount towards
any one of the bills by 29.6.66. PWs 1 to 3 (VLWs) have unanimously testified that they
did not purchase anything from the first appellant on credit and also did not receive
these bills in question and have further deposed that they did not make payments as
shown in the cash receipts prepared by the second appellant. On the contrary, the
specific case of the appellant is that none of the bills or cash receipts is either false,
fictitious or bogus and they are all genuine bills and receipts.
21. In this connection, it may be noted that the Block Pramukh, i.e. PW-6 made the
complaint Exh. Ka 16 dated 23.3.66 against the District Agriculture Officer to the
Director of Vigilance complaining of the irregularities and illegalities as having been
committed by the then Agriculture Officer, Sultanpur, The Vigilance Chairman referred
the matter to the Government and thereupon the CID was directed to make an enquiry
into the matter. PW-8, the Deputy Superintendent, Anti-Corruption, CID who was the
then Inspector, CID made the enquiry under the orders of the State Government and
commenced his investigation on 13.7.67. By the time the investigation started as shown
earlier, the entire amount covered by the questionable bills had been paid and there
was no outstanding. A question may arise as to whether there was any temporary

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misappropriation of the amount from 29.6.65 till the amount was repaid on 29.6.66 and
whether the bills in question were forged by the first appellant with a view to screen
himself from his misdeeds.
22. One of the factors which weighed with the Trial Court for holding that these bills
were bogus, was the absence of the signature of any of the VLWs in any of the bills.
The first appellant has attempted to show that the practice of credit sale to the VLWs
was in prevalence and the amount subsequently recovered from the cultivators would be
adjusted. The appellants under the first charge are indicted with an offence of criminal
breach of trust under Section 409 I.P.C. Section 405 defines 'criminal breach of trust'.
The essential ingredients of Section 405 are:
(1) The accused must be entrusted with property or dominion over property:
(2) The person so entrusted must use that property or
(b) dishonestly use or dispose of that property or wilfully suffer any
other person to do so in violation
(i) of any direction of law prescribing the mode in which such
trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such
trust.
23. Vide Om Prakash Gupta v. State of U.P MANU/SC/0130/1957 and C.M. Narayan v.
State of Travancore-Cochin MANU/SC/0091/1952. We do not like to swell this
judgment by citing all the decisions on this aspect.
24. In the present case, the entrustment or dominion over the property of the seed
stores was not in dispute indeed there could be none. The essential questions that
follow are; first, whether the first appellant had dishonestly misappropriated or
converted the property entrusted to him to his own use or dishonestly used or disposed
of that property in violation of any direction of law prescribing the mode in which such
trust is to be discharged; secondly whether the second appellant was also a privy to the
alleged misappropriation; thirdly whether both the appellants forged false bills and cash
receipts and then fraudulently or dishonestly used such documents as genuine; and
fourthly whether the appellants in their capacity of public servants dishonestly
misappropriated or converted that property to their own use or willfully suffered the
Department by doing any act in violation of the directions, thereby making themselves
liable to be punished for the aggravated form of criminal breach of trust under Section
409 I.P.C. The expression 'dishonestly' is defined under Section 24 of the Indian Penal
Code. It is true that the series of circulars issued by the Directorate of Agriculture have
laid down certain directions prescribing the mode in which such trust was to be
discharged.
2 5 . Notwithstanding such circulars, it appears that the long established practice of
credit sale of seeds, fertilisers, pesticides etc. from the Government Agriculture Seed
Stores continued for some time, at least till the last circular issued on 26.7.68. The
repeated issuance of the circulars indicate that inspite of these circulars, the practice of
credit sale was in vogue. A close scrutiny of the evidence and records show that the
superior officers inspite of the circulars did not take a very serious view of the credit
sale to the cultivatOrs. In fact, by circular dated 2.8.67, the Director of Agriculture, U.P.
while impressing the prohibition of credit sale, gave only a warning that the erring
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officials would be held 'personally responsible to pay the outstanding amount'. We, in
the above circumstances, feel that the appellants could not be mulcted with the
criminality of breach of trust for following the established practice of credit sale through
VLWs. Since the High Court has set aside the conviction of the appellants under
Sections 467 and 471 I.P.C., holding "There is nothing on record to show that any such
document was forged by the appellants.
2 6 . ...No such using of any forged documents was done by the appellants their
conviction under Section 467 and 471, I.P.C. is not justified", the prosecution case of
forging the bills and receipts and using them as genuine, is to be held to have been
found to be 'not true'. As stated supra, the State has also not filed any appeal against
the order of acquittal under charges 467 and 471 I.P.C. It necessarily follows that the
explanation given in defence of the appellants that the six bills in question and cash
receipts were not bogus but genuine has been accepted by the High Court. Under these
circumstances, the prosecution cannot be said to have satisfactorily proved even the
temporary misappropriation of the amount in dispute. In fact, before the Trial Court, it
was contended that there has not been any dishonest misappropriation of the property
entrusted to the appellant, but that contention was repelled by the Trial Court for the
reasons shown in its judgment which reasons, in our considered opinion, are not
convincing in view of the peculiar facts and circumstances of this case. The High Court
has not at all discussed the legal question of dishonest misappropriation as
contemplated under Section 405 I.P.C. but has summarily disposed of the case without
deeply going into the question of facts or law.
27. The charge under Section 409 is levelled against both the appellants. In our view,
this charge against both the appellants cannot be sustained for the reasons to be
presently mentioned.
28. The then D.A.O. Sultanpur passed the transfer order of certain officials inclusive of
these two appellants by his order dated 9.5.65 whereunder the first appellant was
transferred from Semrauna to block Kurebhar vice Puran Singh (second appellant) and
the latter from Kurebhar to Semrauna vice N.P.N. Singh, the first appellant. It is not in
dispute that the first appellant handed over the charge to the second appellant on
2.9.65 and till then the first appellant was incharge of both the seed stores situated in
Semrauna and Kurebhar. The first appellant submitted his compliance report on 3.9.65
which is Exh. Ka-15. If it is so, how the second appellant who had not taken charge of
seed store of Semrauna till 2.9.65 could be held to be liable for an offence under
Section 409 in respect of the amount covered by the bills in question i.e. bill Nos. 57,
59 to 62 and 64 which were all prepared between 29.7.65 to 12.8.65 i.e. earlier to the
second appellant joining the block of Semrauna. Hence the finding of the Trial Court
that both the appellants have committed breach of trust by preparing false bills has to
be rejected and the resultant conclusion made on such finding is liable to be set aside.
29. In Criminal Appeal No. 665 of 1979 arising out of Sessions Trial No. A-228 of 1974,
the first charge reads that both the appellants on 4.7.64 in their capacity as public
servants and being incharge of the seed store, Semrauna committed breach of trust of
the goods shown in bill Nos. 11, 17 and 18 of book No. 7767 to the value of Rs.
450.26. In that case also, there were charges under Section 467 I.P.C. (three counts).
We are not concerned of the offence under Section 467 as the appellants now stand
acquitted in this appeal also under those charges. The evidence now adduced by the
prosecution discloses that the first appellant prepared the fictitious and bogus bill Nos.
11, 17 and 18 dated 4.7.64 for Rs. 186.71, Rs. 132.45 and Rs. 155.46 respectively-all
totaling to Rs. 480,26-which are the subject matter of the case under Section 409
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I.P.C., and that the said amount of Rs. 480.26 was misappropriated by the first
appellant and that when the matter came up to light, he started making payments by
paying Rs. 76 on 14.4.66 and Rs. 27.60 on 7.8.66 towards bill No. 11, and left an
outstanding amount of Rs. 376.66 and that thereafter no payment was payment and the
recoveries were made later on 2.12.69. It is further stated that the second appellant
after taking charge from the first appellant on 2.9.65 made the entries of payments said
to have been made on 14.4.66 and 7.8.66. The second appellant had admitted that he
received the payment towards bill No. 11 and deposited the same amount in
Government treasury and that as he did not oblige the CID Inspector by making
statement as per his choice , he is roped into this criminal offence. The first appellant
states in his defence that the 'gram sewaks' (i.e. VLWs) concerned made only part
payment and the balance of Rs. 376.58 was realized from his salary on 1.12.69 and the
said amount was deposited in the State Bank of India, Faizabad on 2.12.69 under
challan No. 99. The Trial Court has convicted the second appellant on the ground that
the second appellant knowingly that the bills were forged by the first appellant, received
the payment and prepared the receipts Exh. Ka 4 and Ka 5 for bill No. 11 of book No.
7767 and thereby made himself liable for the commission of breach of trust. This charge
cannot be sustained both in law and facts for the reasons to be mentioned. Admittedly,
the first appellant was incharge of the block at Semrauna till 2.9.65. According to this
charge, the offence is said to have been committed on 4.7.64 when the second
appellant was working in the block of Kurebhar and, therefore, both the appellants
cannot be jointly charged on the allegation that on 4.7.64 they being the public servants
of the seed store of Semrauna committed the breach of trust. Secondly, the prosecution
has not satisfactorily established the main ingredient of 'dishonestly' against any of the
appellants, even though at the worst, it may be said that the first appellant was guilty of
dereliction of his duty in not collecting the outstanding amount by taking any
appropriate steps in that regard. When the conviction recorded by the Trial Court under
Section 467 is set aside by the High Court as against which no appeal is preferred by
the State, the second appellant cannot in any way be fastened with the criminality of
misappropriation by issuing the cash receipts in question. A close examination of the
entire evidence and documents do not reveal any material, worth mentioning for jointly
fastening both the appellants with the offence of criminal breach of trust punishable
under Section 409 I.P.C. Further, there is no evidence that there was any conspiracy,
pre-concert or concert of minds of the appellants or any pre-arranged plan between the
two appellants to commit the offence or offences complained of.
30. Though this Court normally does not interfere with the concurrent findings of the
fact except in exceptional circumstances, we for the discussion made above feel that
this is a fit case for interference at the hands of this Court since both the Courts below
instead of dealing with the intrinsic merits of the evidence of the witnesses, have acted
perversely by summarily disposing of the case, preempting the manifest errors and
glaring infirmities appearing in these cases.
3 1 . In the result, both the appeals are allowed and the conviction and sentences
awarded by the High Court are set aside and the appellants are acquitted.
32. Before parting with the judgment, we would like to observe that during the course
of the hearing, it was submitted on behalf of the appellants that in case of acquittal and
consequent re-instatement in service, the appellants would not claim their back wages.
The appellants have now filed two separate affidavits stating that they would not claim
back wages during the period they remained under suspension and later under
termination from service.

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3 3 . Based on the undertakings of the appellants not to claim back wages and
considering the facts and circumstances of the case, we would like to observe that in
case the appellants, pursuant to their acquittal, are reinstated in service by the State
Government unless for some other reason, they, although ordinarily entitled for back
wages, will not be having any claim for the back wages from the date of suspension
upto the date of reinstatement.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0622/2016
Equivalent/Neutral Citation: 2016(163)AIC 238, AIR2016SC 2418, 2016(3)AJR513, 2016 (2) ALD(C rl.) 212 (SC ), 2016(4) ALJ 266, 2016 (95) AC C
552, II(2016)C C R375(SC ), 2016C riLJ2928, 2016(2)C rimes268(SC ), 2016(4)EC rN 36, 2016(3)JC C 1836, 2016(2)RC R(C riminal)1031,
2016(5)SC ALE298, (2016)12SC C 744, [2016]2SC R1089, 2016(3)UC 1701

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 486 of 2016 (Arising out of SLP (Crl.) No. 5839 of 2013)
Decided On: 12.05.2016
Parag Bhati (Juvenile) thr. Legal Guardian-Mother-Rajni Bhati Vs. State of Uttar Pradesh
and Ors.
Hon'ble Judges/Coram:
A.K. Sikri and R.K. Agrawal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: V.P. Appan, Adv.
For Respondents/Defendant: Arachana Singh and Abhisth Kumar, Advs.
Case Note:
Criminal - Juvenility - Determination thereof - Section 7A of Juvenile Justice
(Care and Protection of Children) Act, 2000 and Rule 12 of Juvenile Justice
(Care and Protection) Rules, 2007 - Present appeal filed against order passed
by Single Judge of High dismissing Appellant/Accused's revision against
orders passed by Juvenile Justice Board and Sessions Court holding Appellants
as major - Whether Appellant was juvenile or not on date of occurrence
Facts:
The Appellant-Accused got arrested with regard to the crime in question and
was produced before the Juvenile Court and was remanded and kept in
Juvenile Home. The father of the Appellant filed an application before the
Juvenile Justice Board for claiming juvenility with support of various school
certificates. The Juvenile Justice Board concluded that date of birth, as
recorded in various School Certificates, was doubtful and the juvenile was
referred to the Medical Board for determination of age. The Chief Medical
Officer opined that the age of the Appellant was about 19 years. The Board,
placing reliance on the opinion of the Medical Board, held that the Appellant
was a major and accordingly, transferred the case before the Chief Judicial
Magistrate. The Appellant preferred an appeal before the District and Sessions
Judge which was got dismissal. Single Judge of the High Court dismissed the
revision filed by the Appellant. Hence, present appeal.
Held, while dismissing the appeal:
(i) Under Section 7A of the Act, the Court is enjoined to make an inquiry and
take such evidence as may be necessary to determine the age of the person
who claims to be a juvenile. However, under Rule 12, the Board is enjoined to
take evidence by obtaining the matriculation certificate if available, and in its
absence, the date of birth certificate from the school first attended and if it is
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also not available then the birth certificate given by the local body. In case
any of the above certificates are not available then medical opinion can be
resorted to. However, if the Board comes to the conclusion that the date of
birth mentioned in the matriculation certificate raises some doubt on the
basis of material or evidence on record, it can seek medical opinion from a
duly constituted medical board to determine the age of the accused person
claiming juvenility. [16]
(ii) The Board, on merits, conducted proceedings to register case against
father of the Appellant for producing forged evidence and giving false
statement before the Court which fact had already been proved that the
documents which were produced on behalf of the Appellant were forged. [21]
(iii) The Board did not give the benefit of one year as provided in Rule 12 of
the Rules in favour of the Appellant on the ground that the Complainant had
filed the photocopy of Panchayat Electoral Roll, according to which, the age
had been mentioned as 19 years which was issued much before the date of
the incident. Therefore, the Board rightly did not give the benefit of one year
to the Appellant under the Rules. [22]
(iv) If there is a clear and unambiguous case in favour of the juvenile Accused
that he was a minor below the age of 18 years on the date of the incident and
the documentary evidence at least prima facie proves the same, he would be
entitled to the special protection under the Act. But when an Accused
commits a grave and heinous offence and thereafter attempts to take
statutory shelter under the guise of being a minor, a casual or cavalier
approach while recording as to whether an Accused is a juvenile or not cannot
be permitted as the courts are enjoined upon to perform their duties with the
object of protecting the confidence of common man in the institution
entrusted with the administration of justice. [26]
(v) The benefit of the principle of benevolent legislation attached to the Act
would thus apply to only such cases wherein the Accused is held to be a
juvenile on the basis of at least prima facie evidence regarding his minority as
the benefit of the possibilities of two views in regard to the age of the alleged
accused who is involved in grave and serious offence which he committed and
gave effect to it in a well-planned manner reflecting his maturity of mind
rather than innocence indicating that his plea of juvenility is more in the
nature of a shield to dodge or dupe the arms of law, cannot be allowed to
come to his rescue. [27]
JUDGMENT
R.K. Agrawal, J.
1. Leave granted.
2. This appeal is directed against the final judgment and order dated 24.05.2013 passed
by the learned single Judge of the High Court of Judicature at Allahabad in Criminal
Revision No. 4377 of 2011 whereby the High Court dismissed the revision filed by the
Appellant herein against the judgments and orders passed by the Juvenile Justice Board
and the Court of District & Sessions Judge, Meerut dated 07.09.2011 and 04.10.2011
respectively.
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3. Brief facts:
(a) On 29.06.2011, one Shri Rajpal Singh (the complainant)-Respondent No. 2
herein lodged a complaint with P.S. Kasana, Dist. Gautambudh Nagar,
informing that his son-Satender, who was residing with his family at Greater
Noida, was found dead in his house.
(b) On the basis of the said complaint, a First Information Report (FIR) being
No. 360 of 2011 dated 29.06.2011 got registered Under Sections 302, 394, 504
and 506 of the Indian Penal Code, 1860 (in short 'the Code') at P.S. Kasana,
Dist. Gautambudh Nagar.
(c) During investigation, the Appellant herein got arrested on 05.07.2011 with
regard to the crime in question and was produced before the Juvenile Court and
was remanded and kept in Juvenile Home.
(d) The father of the Appellant-accused filed an application before the Juvenile
Justice Board stating that the date of birth of the Appellant-accused is
13.09.1995. The application on behalf of the Appellant-accused for proving his
juvenility was supported with various school certificates issued by the
competent authorities from time to time.
(e) The Juvenile Justice Board, after considering the evidence on record came
to the conclusion that the date of birth, as recorded in various School
Certificates, submitted by the father of the Appellant-accused on his behalf, is
doubtful and the juvenile was referred to the Medical Board for determination of
age.
(f) On 23.08.2011, the Office of the Chief Medical Officer, Meerut, opined that
the age of the Appellant-accused is about 19 years. The charge sheet in the
case was filed on 07.09.2011 before the Court of Juvenile Justice Board (in
short 'the Board'), Meerut. The Board, placing reliance on the opinion of the
Medical Board, vide order dated 07.09.2011, held that the Appellant-accused is
a major and accordingly, transferred the case before the Chief Judicial
Magistrate, Gautambudh Nagar.
(g) Aggrieved by the order dated 07.09.2011, the Appellant-accused preferred
an appeal before the District & Sessions Judge, Meerut by filing Criminal Appeal
No. 319 of 2011. Learned Additional Sessions Judge, Meerut, vide order dated
04.10.2011, dismissed the appeal filed by the Appellant-accused.
(h) Being aggrieved by the orders dated 07.09.2011 and 04.10.2011, the
Appellant-accused preferred a revision before the High Court. Learned Single
Judge of the Allahabad High Court, vide judgment and order dated 24.05.2013,
dismissed the revision filed by the Appellant-accused.
(i) Aggrieved by the order dated 24.05.2013, the Appellant-accused has
preferred this appeal by way of special leave before this Court.
4 . Heard the arguments advanced by Dr. V.P. Appan, learned senior Counsel for the
Appellant-accused and Mr. R. Dash, learned senior Counsel for the State and perused
the records.
Points for consideration:

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5 . The only point for consideration before this Court is whether in the facts and
circumstances of the present case when the date of birth mentioned in the matriculation
certificate is doubtful, the ossification test can be the last resort to prove the juvenility
of the accused?
Rival Submissions:
6 . Dr. V.P. Appan, learned senior Counsel appearing for the Appellant-accused
contended before this Court that the Appellant-accused was arrested on 05.07.2011 and
produced before the Juvenile Court and was remanded and kept in Juvenile Home. The
father of the Appellant-accused filed an application before the Board stating that the
date of birth of the Appellant-accused is 13.09.1995. He supported his claim by
producing a copy of the Secondary School Certificate for Class Xth issued by the
Controller of Examinations of Secondary School Examination (Session 2009-2011)
wherein the date of birth of the Appellant-accused was shown to be 13.09.1995 and on
the date of occurrence, i.e., on 29.06.2011, he had not attained majority or was below
18 years of age. It was further contended by learned senior Counsel that the Appellant-
accused studied from Class 1st to 5th in the Saint Joseph School, Greater Noida. He
studied in Class 6th and 7th in Kisan Vaidik Junior High School. Though the date of birth
is wrongly mentioned in the records therein as 17.09.1994, affidavit for correction of
the same had been filed with the competent authority. Learned senior Counsel for the
Appellant-accused further contended that the procedure for determination of the age is
to be followed in terms of Section 7A of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (in short 'the JJ Act') which was not scrupulously adhered to. The
courts below should have acted on the certificate issued by the Controller of
Examinations, Secondary School Examination wherein the date of birth of the Appellant-
accused is recorded as 13.09.1995. Learned senior Counsel further stressed upon the
fact that the entry relating to the date of birth entered in the marks sheet is one of the
valid proofs of evidence for determination of age of a person. Finally, learned senior
Counsel contended that the Board committed grave illegality in directing the ossification
test of the Appellant-accused for determining the age on the face of undisputed
certificates issued by the two schools wherefrom it is clear that the date of birth of the
Appellant-accused is 13.09.1995.
7. In support of his claim, learned senior Counsel for the Appellant-accused relied upon
a decision of this Court in Rajinder Chandra v. State of Chhattisgarh and Anr.
MANU/SC/0051/2002 : (2002) 2 SCC 287, wherein it was held as under:
5....on a review of judicial opinion, held that while dealing with the question of
determination of the age of the accused for the purpose of finding out whether
he is a juvenile or not, a hypertechnical approach should not be adopted while
appreciating the evidence adduced on behalf of the accused in support of the
plea that he was a juvenile and if two views may be possible on the said
evidence, the court should lean in favour of holding the accused to be a
juvenile in borderline cases.....
8. He further relied upon a decision of this Court in Hari Ram v. State of Rajasthan
and Anr. MANU/SC/0744/2009 : (2009) 13 SCC 211 in which it was held as follows:
"27. Sub-rules (4) and (5) of Rule 12 are of special significance in that they
provide that once the age of a juvenile or child in conflict with law is found to
be less than 18 years on the date of offence on the basis of any proof specified
in Sub-rule (3) the court or the Board or as the case may be the Child Welfare
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 Committee appointed under Chapter IV of the Act, has to pass a written order
stating the age of the juvenile or stating the status of the juvenile, and no
further inquiry is to be conducted by the court or Board after examining and
obtaining any other documentary proof referred to in Sub-rule (3) of Rule 12.
Rule 12, therefore, indicates the procedure to be followed to give effect to the
provisions of Section 7-A when a claim of juvenility is raised."
9 . Further, reliance was placed upon Ashwani Kumar Saxena v. State of Madhya
Pradesh MANU/SC/0753/2012 : (2012) 9 SCC 750.
10. While referring to a decision of this Court in Mahadeo s/o Kerba Maske v. State
of Maharashtra and Anr. (2013) 14 SCC 637, learned senior Counsel submitted that
only in the absence of alternative methods described under Rules (12)(3)(a)(i) to (iii),
the medical opinion can be sought for and in no other case. He further relied upon a
decision of this Court in the State of Madhya Pradesh v. Anoop Singh
MANU/SC/0710/2015 : (2015) 7 SCC 773 and contended that the decision in the case
of Mahadeo (supra) has been followed.
11. On the other hand, Shri R. Dash, learned senior Counsel for the State submitted
that in the Secondary School Examination Certificate, the date of birth mentioned is
13.09.1995 but this date of birth is not correct. In the statement given by the father of
the Appellant-accused before the Board that the Appellant-accused studied in Saint
Joseph School, Greater Noida from 1st to 5th standard, the date of birth mentioned in
the school form is 13.09.1996 and it bears father's signature. Thereafter, he studied in
Kisan Vaidic Junior High School, Latifpur wherein the date of birth is recorded as
17.09.1994, After leaving this school, the Appellant-accused again took admission in
Saint Joseph School in 8th standard. Learned senior Counsel for the State submitted
that a report from the Saint Joseph School was produced before the Board in which it
was mentioned that his date of birth was recorded in the register on the basis of
transfer certificate issued by Kisan Vaidic Junior High School. An official of the Kisan
Vaidic Junior High School was examined before the Board who stated on oath that the
Appellant-accused never studied in that school and the alleged certificate was not
issued by the School authorities. Learned senior Counsel for the State further contended
that since the transfer certificate on the basis of which entries were made in Saint
Joseph School was not found to be genuine, the date of birth mentioned in the
Secondary School Certificate was also not at all reliable.
1 2 . In support of his claim, learned senior Counsel relied upon a decision in Om
Prakash v. State of Rajasthan and Anr. MANU/SC/0308/2012 : (2012) 5 SCC 201
wherein it was held as under:
22. It is no doubt true that if there is a clear and unambiguous case in favour
of the juvenile accused that he was a minor below the age of 18 years on the
date of the incident and the documentary evidence at least prima facie proves
the same, he would be entitled for this special protection under the Juvenile
Justice Act. But when an accused commits a grave and heinous offence and
thereafter attempts to take statutory shelter under the guise of being a minor, a
casual or cavalier approach while recording as to whether an accused is a
juvenile or not cannot be permitted as the courts are enjoined upon to perform
their duties with the object of protecting the confidence of common man in the
institution entrusted with the administration of justice.
23. Hence, while the courts must be sensitive in dealing with the juvenile who
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 is involved in cases of serious nature like sexual molestation, rape, gang rape,
murder and host of other offences, the accused cannot be allowed to abuse the
statutory protection by attempting to prove himself as a minor when the
documentary evidence to prove his minority gives rise to a reasonable doubt
about his assertion of minority. Under such circumstance, the medical evidence
based on scientific investigation will have to be given due weight and
precedence over the evidence based on school administration records which
give rise to hypothesis and speculation about the age of the accused. The
matter however would stand on a different footing if the academic certificates
and school records are alleged to have been withheld deliberately with ulterior
motive and authenticity of the medical evidence is under challenge by the
prosecution.
13. Learned senior Counsel further referred to a decision in Abuzar Hossain alias
Gulam Hossain v. State of West Bengal MANU/SC/0845/2012 : (2012) 10 SCC
489, wherein a three-Judge Bench of this Court had summarized the position for
determining the juvenility of an accused. In para 39.3 of the judgment, it has been held
as under:
39.3. As to what materials would prima facie satisfy the court and/or are
sufficient for discharging the initial burden cannot be catalogued nor can it be
laid down as to what weight should be given to a specific piece of evidence
which may be sufficient to raise presumption of juvenility but the documents
referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima
facie satisfaction of the court about the age of the delinquent necessitating
further enquiry under Rule 12. The statement recorded Under Section 313 of the
Code is too tentative and may not by itself be sufficient ordinarily to justify or
reject the claim of juvenility. The credibility and/or acceptability of the
documents like the school leaving certificate or the voters' list, etc. obtained
after conviction would depend on the facts and circumstances of each case and
no hard-and-fast Rule can be prescribed that they must be prima facie accepted
or rejected. In Akbar Sheikh and Pawan these documents were not found prima
facie credible while in Jitendra Singh the documents viz. school leaving
certificate, marksheet and the medical report were treated sufficient for
directing an inquiry and verification of the Appellant's age. If such documents
prima facie inspire confidence of the court, the court may act upon such
documents for the purposes of Section 7-A and order an enquiry for
determination of the age of the delinquent.
1 4 . He further stated that in view of the documents produced by the father of the
Appellant-accused and the statement given by the concerned school, the date of birth of
the Appellant-accused is unsubstantiated, therefore, the Board rightly directed for
conducting the ossification test of the Appellant-accused. Learned senior Counsel for the
State finally submitted that the Court of Sessions as well as High Court rightly rejected
the claim of the Appellant-accused.
Statutory Provisions:
15. In view of the above, it is useful to refer certain relevant provisions of the JJ Act
which are as under:
2. Definition.--
(k) "juvenile" or "child means a person who has not completed
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 eighteenth year of age;
(l) "juvenile in conflict with law" means a juvenile who is alleged to
have committed an offence and has not completed eighteenth year of
age as on the date of commission of such offence;
[7A. Procedure to be followed when claim of juvenility is raised before
any court.-(1) Whenever a claim of juvenility is raised before any court or a
court is of the opinion that an accused person was a juvenile on the date of
commission of the offence, the court shall make an inquiry, take such evidence
as may be necessary (but not an affidavit) so as to determine the age of such
person, and shall record a finding whether the person is a juvenile or a child or
not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it
shall be recognized at any stage, even after final disposal of the case,
and such claim shall be determined in terms of the provisions
contained in this Act and the Rules made thereunder, even if the
juvenile has ceased to be so on or before the date of commencement of
this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the
offence under Sub-section (1), it shall forward the juvenile to the Board for
passing appropriate orders and sentence, if any, passed by a court shall be
deemed to have no effect.]
Juvenile Justice (Care and Protection) Rules, 2007
12. Procedure to be followed in determination of age.- (1) In every case
concerning a child or a juvenile in conflict with law, the court or the Board or
as the case may be the Committee referred to in Rule 19 of these Rules shall
determine the age of such juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making of the application for that
purpose.
(2) The Court or the Board or as the case may be the Committee shall decide
the juvenility or otherwise of the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis of physical appearance or
documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the court or the Board or, as the
case may be, the Committee by seeking evidence by obtaining-
(a)(i) the matriculation or equivalent certificates, if available; and in
the absence whereof;
(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority
or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of Clause (a)
above, the medical opinion will be sought from a duly constituted
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 Medical Board, which will declare the age of the juvenile or child. In
case exact assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the reasons to be
recorded by them may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on lower side within the
margin of one year.
and, while passing orders in such case shall, after taking into consideration
such evidence as may be available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the evidence specified in any
of the Clauses (a) (i), (ii), (iii) or in the absence whereof, Clause (b) shall be
the conclusive proof of the age as regards such child or the juvenile in conflict
with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found
to be below 18 years on the date of offence, on the basis of any of the
conclusive proof specified in Sub-rule (3), the Court or the Board or as the case
may be the Committee shall in writing pass an order stating the age and
declaring the status of juvenility or otherwise, for the purpose of the Act and
these Rules and a copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia in
terms of Section 7A, Section 64 of the Act and these rules, no further inquiry
shall be conducted by the court or the Board after examining and obtaining the
certificate or any other documentary proof referred to in Sub-rule (3) of this
rule.
(6) The provisions contained in this Rule shall also apply to those disposed of
cases, where the status of juvenility has not been determined in accordance
with the provisions contained in Sub-rule (3) and the Act, requiring
dispensation of the sentence under the Act for passing appropriate order in the
interest of the juvenile in conflict with law.
16. From a reading of the aforementioned statutory provisions, it is clear that Under
Section 7A of the JJ Act, the court is enjoined to make an inquiry and take such
evidence as may be necessary to determine the age of the person who claims to be a
juvenile. However, under Rule 12, the Board is enjoined to take evidence by obtaining
the matriculation certificate if available, and in its absence, the date of birth certificate
from the school first attended and if it is also not available then the birth certificate
given by the local body. In case any of the above certificates are not available then
medical opinion can be resorted to. However, if the Board comes to the conclusion that
the date of birth mentioned in the matriculation certificate raises some doubt on the
basis of material or evidence on record, it can seek medical opinion from a duly
constituted medical board to determine the age of the accused person claiming
juvenility.
17. It is also pertinent to mention here the order passed by the Chief Medical Officer,
Meerut with regard to the age of the Appellant-accused which reads as under:
OFFICE OF THE CHIEF MEDICAL OFFICER, MEERUT
No. M.7/CMO/11-7939

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 Dated: 23.08.11
AGE CERTIFICATE
Certified that I examined Sh. Parag Bhati S/o Anil Bhati R/o C-16, Swarn Nagar,
Greater Noida, P.S. Kasna, Gautambudh Nagar, U.P. brought by/identified Ct.
506 Kiranpal Singh, Police Line, Meerut..... referred by.... for ascertaining
his/her present age required for the purposes of Juvenile Justice Board, Meerut
vide his letter No. /endorsement No................dated.................Sh. Parag
Bhati states that his/her age is about 16 years at present. He brought no
documentary evidence to substantiate his age. He also states that he has not
obtained any certificate from anywhere about his age. On examination: Height
171 Cms., Weight 56 Kgs., Teeth 15/16 permanent.
Tiny Black mole on lateral aspect of middle bhelants of left little finger.
On X-ray Examination Plate No. 10569/70/71/72 dated 08.08.11 done at P.L.
Sharma Hospital, Meerut (report given by Dr. Deepak Saxena) Senior
Radiologist P.L. Sharma Hospital, Meerut) Shows:
1. XR (l) elbow, (r) knee-All epiphyses around the joints are fused.
2 . XR (L) wrist-epiphyses of lower end of radius and ulna are fused
visible sear.
3 . XR (r) Clavide medical end-epiphyses around joints is not fused.
Opinion: on the basis of the above, general appearance and physical
built I am of the opinion that the age of Shri Parag Bhati is about 19
years.
Chief Medical Officer
18. The only question to be determined is whether the Appellant-accused was juvenile
or not on the date of occurrence, i.e., 29.06.2011. From the documents on record, it is
seen that the father of the Appellant-accused submitted an application stating that his
son passed High School examination from Vishwa Bharti Public School, Greater Noida
and as per the school records his date of birth is 13.09.1995. It was further informed
that the Appellant-accused studied from Class 1st to 5th in Saint Joseph School, Greater
Noida and studied Class 6th and 7th in Kisan Vaidik Junior High School, Latifpur. Again
in Class-8th , he studied in Saint Joseph School. Though the date of birth mentioned in
the records of the above school is 17.09.1994, the father of the Appellant claimed it to
be wrong and submitted that an affidavit had been filed for its correction. During cross-
examination, it was further admitted that the date of birth in the transfer certificate of
Kisan Vaidik Junior High School is recorded as 17.09.1994 whereas it is recorded as
13.09.1996 in the Saint Joseph School. In this manner, the date of birth of the
Appellant-accused is 13.09.1995 in the records of the High School and 17.09.1994 is
mentioned in the records of Kisan Vaidik Junior High School. If the date of birth
mentioned in such certificate is proved wrong then it cannot be relied upon.
19. This fact is further corroborated with the affidavit filed by the State which reads as
under:
9 . That the father of the Petitioner filed an application before the Juvenile
Justice Board stating therein that the date of birth of the Petitioner is
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 13.09.1995. The application on behalf of the Petitioner for declaring him
juvenile was supported with the following documents along with affidavit of his
father.
(i) The Secondary School Certificate for class X issued by Controller of
Examinations of Secondary School Examination for the year (2009-
2011), where the date of birth is mentioned as 13.09.1995.
(ii) The Petitioner (juvenile) had studied from class 1 to 5 in Saint
Joseph School, where his date of birth is mentioned as 13.09.1996.
And the form bears the signature of his father.
(iii) The Petitioner date of birth in Transfer Certificate of Kisan Vaidik
Junior High School is also mentioned as 17.9.1994.
(iv) The Petitioner (juvenile) alleges to had studied up to class VI in
Aster Public School, JA-1, Silver Oak estate, Delta-II, Greater Noida. In
the registration form of this school, the date of birth is mentioned as
13.09.1995.
That while considering the aforesaid documents the Juvenile Justice Board came
on the conclusion as follows:
a. In the evidence Smt. Jyotsana Bhati, Principal, Aryans Academy,
Mandi Shyam Nagar was summoned according to her statement Parag
Bhati never studied in their school. However, it has been mentioned in
the column No. 14 of T.C. of Kisan Vaidik Junior High School, that
earlier institute of Parag Bhati was Aryans Academy Mandi Shyam
Nagar. Similarly, Manohar Lal Sharma, C.W. 03, Assistant Teac her,
Kisan Vaidik Junior High School, Latifpur has stated in his statement
that the Transfer Certificate available at the case file was not issued by
their school and the same is forged. Parag Bhati never studied in their
school.
b. Smt. Rachna D/o Devender, Principal of Saint Joseph School has
sent a certificate in writing according to which Parag Bhati has studied
in their school from 04.04.2008 to April 2009 only. Before that, he
never studied in their school. However, Anil Bhati father of the juvenile
has stated in his statement that he has studied in Saint Joseph School
from class 1 to 5.
c. Therefore, on the basis of documents available at the case file, date
of birth of Parag Bhati is mentioned 13.09.1995 in the documents of
High School and 17.09.1994 is mentioned in the document of Kisan
Vedic Junior High School. On 30.08.2011, the board, has conducted
proceedings to register case against Anil Bhati for producing forged
evidence and giving false statement before the Hon'ble Chief Judicial
Magistrate, Meerut.
In view of the above facts and circumstances of the case, all the documents
before class 10th produced on behalf of applicant are forged.
20. The Board summoned Smt. Jyotsana Bhati, Principal, Aryans Academy Mandi Shyam
Nagar and she stated that the Appellant-accused never studied in their school. It may be
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mentioned here that in Column No. 14 of Transfer Certificate of Vaidik Junior High
School, the name of the earlier institute attended was Aryans Academy Mandi, Shayam
Nagar. Shri Manohar Lal Sharma, Assistant Teacher, Kisan Vaidik Junior High School,
Latifpur was also summoned who stated on solemn affirmation that the transfer
certificate available in the case file was not issued by the school and that is forged as
the Appellant-accused never studied in their school. Similarly, the Principal, Saint
Joseph School, sent a certificate in writing stating therein that the Appellant-accused
had studied in their school from 04.04.2008 to April, 2009 only and before that he
never studied in their school.
21. As the date of birth which is alleged to have been recorded in Saint Joseph School
is on the basis of the transfer certificate issued by the Kisan Vaidik Junior High School,
Latifpur and such transfer certificate has been found to be forged, therefore, the Board
came to the conclusion that the date of birth mentioned in the certificate issued by the
Secondary School Examination mentioning it as 13.09.1995 on the basis of Vishwa
Bharti Public School, Greater Noida cannot be believed. It may also be mentioned here
that the date of birth which was recorded in Vishwa Bharti Public School, Greater Noida
was on the basis of the date of birth recorded in Saint Joseph School and the date of
birth recorded in the Saint Joseph School had been found to be without having any
basis. On 30.08.2011, the Board, on merits, conducted proceedings to register case
against Anil Bhati-father of the Appellant-accused for producing forged evidence and
giving false statement before the Court which fact has already been proved that the
documents which were produced on behalf of the Appellant-accused were forged.
22. Due to this discrepancy, the Medical of the Appellant-accused got conducted by the
Medical Board wherein on 23.08.2011, his age was assessed about 19 years and the
Board fixed the age of the Appellant-accused as 18 years, 10 months and 6 days and he
was ordered to be tried by the Session Court. The Board did not give the benefit of one
year as provided in Rule 12 of the Rules in favour of the Appellant-accused on the
ground that the complainant-Respondent No. 2 herein had filed the photocopy of
Panchayat Electoral Roll 2009 Development Block Dankaur, according to which, the age
on 01.01.2009 has been mentioned as 19 years and the date of the incident is
29.06.2011. Therefore, the Board rightly did not give the benefit of one year to the
Appellant-accused under the Rules.
23. We may also mention here that before this Court, an entirely new case has been set
up by the Appellant-accused that he studied up to Class 6th in Aster Public School,
Greater Noida, and thereafter, in Mussoorie Modern School, Mussoorie and lastly
studied for Class 9th and 10th in Vishwa Bharti Public School, Greater Noida. The plea
that the Appellant-accused studied in Aster Public School and Mussoorie Modern School
was never raised before the Board for reasons best known and the Appellant cannot
take advantage of a new case being set up before this Court for determination of age
under the JJ Act.
24. While considering a similar question, this Court in Ashwani Kumar (supra) held
as under:
32. "Age determination inquiry" contemplated Under Section 7-A of the Act
read with Rule 12 of the 2007 Rules enables the court to seek evidence and in
that process, the court can obtain the matriculation or equivalent certificates, if
available. Only in the absence of any matriculation or equivalent certificates,
the court needs to obtain the date of birth certificate from the school first
attended other than a play school. Only in the absence of matriculation or
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 equivalent certificate or the date of birth certificate from the school first
attended, the court needs to obtain the birth certificate given by a corporation
or a municipal authority or a panchayat (not an affidavit but certificates or
documents). The question of obtaining medical opinion from a duly constituted
Medical Board arises only if the abovementioned documents are unavailable. In
case exact assessment of the age cannot be done, then the court, for reasons to
be recorded, may, if considered necessary, give the benefit to the child or
juvenile by considering his or her age on lower side within the margin of one
year.
33. Once the court, following the above mentioned procedures, passes an
order, that order shall be the conclusive proof of the age as regards such child
or juvenile in conflict with law. It has been made clear in Sub-rule (5) of Rule
12 that no further inquiry shall be conducted by the court or the Board after
examining and obtaining the certificate or any other documentary proof after
referring to Sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also
draws a presumption of the age of the juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act and the 2007
Rules has nothing to do with an enquiry under other legislations, like entry in
service, retirement, promotion, etc. There may be situations where the entry
made in the matriculation or equivalent certificates, date of birth certificate
from the school first attended and even the birth certificate given by a
corporation or a municipal authority or a panchayat may not be correct. But
court, Juvenile Justice Board or a committee functioning under the JJ Act is not
expected to conduct such a roving enquiry and to go behind those certificates
to examine the correctness of those documents, kept during the normal course
of business. Only in cases where those documents or certificates are found to
be fabricated or manipulated, the court, the Juvenile Justice Board or the
committee need to go for medical report for age determination.
(Emphasis supplied by us)
2 5 . I n Abuzar Hossain (supra), wherein a three-Judge Bench of this Court has
already summarized the position regarding what materials would prima facie satisfy the
court and/or are sufficient for discharging the initial burden cannot be catalogued nor
can it be laid down as to what weight should be given to a specific piece of evidence
which may be sufficient to raise presumption of juvenility but the documents referred to
in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the
court about the age of the delinquent necessitating further enquiry under Rule 12. The
credibility and/or acceptability of the documents would depend on the facts and
circumstances of each case and no hard-and-fast Rule can be prescribed that they must
be prima facie accepted or rejected and if such documents prima facie inspire confidence
of the court, the court may act upon such documents for the purposes of Section 7-A
and order an enquiry for determination of the age of the Appellant.
26. It is no doubt true that if there is a clear and unambiguous case in favour of the
juvenile accused that he was a minor below the age of 18 years on the date of the
incident and the documentary evidence at least prima facie proves the same, he would
be entitled to the special protection under the JJ Act. But when an accused commits a
grave and heinous offence and thereafter attempts to take statutory shelter under the
guise of being a minor, a casual or cavalier approach while recording as to whether an
accused is a juvenile or not cannot be permitted as the courts are enjoined upon to
perform their duties with the object of protecting the confidence of common man in the
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institution entrusted with the administration of justice.
27. The benefit of the principle of benevolent legislation attached to the JJ Act would
thus apply to only such cases wherein the accused is held to be a juvenile on the basis
of at least prima facie evidence regarding his minority as the benefit of the possibilities
of two views in regard to the age of the alleged accused who is involved in grave and
serious offence which he committed and gave effect to it in a well-planned manner
reflecting his maturity of mind rather than innocence indicating that his plea of
juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be
allowed to come to his rescue.
28. It is settled position of law that if the matriculation or equivalent certificates are
available and there is no other material to prove the correctness, the date of birth
mentioned in the matriculation certificate has to be treated as a conclusive proof of the
date of birth of the accused. However, if there is any doubt or a contradictory stand is
being taken by the accused which raises a doubt on the correctness of the date of birth
then as laid down by this Court in Abuzar Hossain (supra), an enquiry for
determination of the age of the accused is permissible which has been done in the
present case.
29. In view of the foregoing discussion, we do not find any illegality in the orders
passed by the Board and the Court of Sessions and also of the High Court which
requires our interference.
30. The appeal fails and is accordingly dismissed.
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 MANU/SC/0015/1950
Equivalent/Neutral Citation: AIR1950SC 169, 1950(86)C LJ120, 1950C riLJ1270, 1950 INSC 9, 1942-55-LW875, 1950-63-LW875, [1950]1SC R453

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. II of 1950
Decided On: 05.05.1950
Pritam Singh Vs. The State
Hon'ble Judges/Coram:
Saiyid Fazl Ali, M. Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea and Sudhi Ranjan Das,
JJ.
Case Note:
Constitution of India, 1950 Art. 136(1)-Grant of Special leave to appeal-
Guiding principles-Final hearing-Nature of.
JUDGMENT
Saiyid Fazl Ali, J.
1 . This is an appeal by one Pritam Singh against the decision of the High Court of
Punjab at Simla, upholding his conviction on the charge of murder of one Buta Singh
and confirming the sentence of death passed on him by the Sessions Judge of
Ferozepore. The prosecution case, which has been found to be substantially true by
both the trial judge and the High Court may be shortly stated as follows.
On the 28th December, 1948, Pritam Singh had made indecent overtures to one Punni,
wife of Kakarra Chamar, who had been brought into the village by Buta Singh, the
deceased, about 10 or 12 years ago. Buta Singh, on learning of this incident spoke, to
Pritam Singh, but finding that his attitude was uncompromising, he advised Kakarra to
go to the police station to report the matter. On the next day, while Kakarra was going
to the police station, Mal Singh, the first prosecution witness in the case, brought him
back telling him that Pritam Singh had apologized and the matter should not be
pursued. On the 30th December, at about 5 p.m. just when Buta Singh came out of his
house, Pritam Singh came up with a double barrelled 12-bore gun and shout him in the
abdomen, and Buta Singh died a short time thereafter. Shortly after the occurrence,
Punjab Singh and Nal Singh, who had both witnessed the occurrence, went to the police
station at Abohar, which is at a distance of 13 miles from the place of occurrence, and
lodged the first information report regarding the murder. In this report, Punjab Singh,
reported the facts as already stated, but he also added that Pritam Singh was drunk
when he fired the gun and his younger brother, Hakim Singh, who was also drunk was
standing at a short distance from him and shouting "Kill, don't' care". None of the other
witnesses however supported Punjab Singh as to the part attributed by him to Hakim
Singh or as to the drunken condition of the appellant or Hakim Singh, and the police
after due investigation of the case sent up a charge sheet against the appellant only.
The appellant was thereafter put on his trial before the Sessions Judge of Ferozepore.
The learned Sessions Judge, after hearing the prosecution witnesses, of whom five were
eye-witnesses, viz., Punjab Singh, his brother Mitta Singh, Mal Singh, Nikka Singh
(brother of Mal Singh), and Mst. Phoolan, mother of the deceased, came to the
conclusion, in agreement with 4 assessors who were present at the trial, that the
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version given by the prosecution witnesses was substantially true. In support of his
conclusion, he referred to the following facts among others :- (1) that the first
information report had been lodged at the police station without any delay, (2) that the
names of at least 4 of the alleged eye-witnesses were mentioned in the report, and (3)
that an sufficient reason had been shown as to why the prosecution witnesses should
have conspired to falsely implicate the accused in a murder case, if he had been
innocent. The High Court on appeal agreed with the Sessions Judge, and the learned
Judge who delivered the judgment of the High Court observed as follows in the
concluding part of his judgment :-
"I have given the case every consideration and I have come to the conclusion
that the learned Sessions Judge was right in holding that the case against the
appellant had been proved beyond reasonable doubt."
2. The appellant thereafter obtained special leave to appeal to this Court, and Mr. Sethi,
the learned counsel appearing for him, has in support of the appeal, addressed to us
very elaborate arguments to show that the conclusion arrived at by the Courts below is
not correct. He has argued that the alleged eye-witnesses were intimately connected
with each other and with the deceased, that they and the accused belonged to two
mutually hostile factions, that these witnesses had made discrepant statements as to the
respective places from where they claimed to have seen the occurrence, some of them
making discrepant statements about their own position before the police officer who
drew up the plan of the scene of occurrence and before the trial Court and also making
discrepant statements about the position of the other witnesses, and that they should
not be held to be truthful witnesses inasmuch as they had denied certain previous
statements made by them either before the police or before the Committing Magistrate.
Mr. Sethi also put forward the theory, which has been discredited by both the Courts
below on grounds which prima facie do not appear to be unreasonable, that the
occurrence must have taken place late at night, that there were probably no eye-
witnesses to identify the real assailant and that the appellant had been falsely
implicated on account of enmity.
3 . The obvious reply to all these arguments, advanced by the learned counsel for the
appellant, is that this Court is not an ordinary Court of criminal appeal and will not,
generally speaking, allow facts to be reopened, especially when two Courts agree in
their conclusions in regard to them and when the conclusions of facts which are
challenged are dependent on the credibility of witnesses who have been believed by the
trial Court which had the advantages of seeing them and hearing their evidence. In the
present case, the story for the prosecution, which is neither incredible nor improbable,
is supported by no less than 5 witnesses including the mother of the deceased, and
their evidence, in spite of its infirmities, has impressed 4 assessors and the two Courts
below, who, in appraising its reliability, have given due weight to certain broad features
of the case which, according to them, negative the theory of conspiracy or concoction.
In these circumstances, it would be opposed to all principles and precedents if we were
to constitute ourselves into a third Court of fact and, after re-weighing the evidence,
come to a conclusion different from that arrived at by the trial Judge and the High
Court.
4 . In arguing the appeal, Mr. Sethi proceeded on the assumption that once an appeal
had been admitted by special leave, the entire case was at large and the appellant was
free to contest all the findings of fact and raise every point which could be raised in the
High Court or the trial Court. This assumption is, in our opinion, entirely unwarranted.
The misconception involved in the argument is not a new one and had to be dispelled
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by the Privy Council in England in Ibrahim v. Rex [1914] A.C. 615 in these words :-
"... the Board has repeatedly treated applications for leave to appeal and the
hearing of criminal appeals as being upon the same footing : Riel's Case; Ex-
parte Deeming. The Board cannot give leave to appeal where the grounds
suggested could not sustain the appeal itself; and, conversely it cannot allow
an appeal on grounds that would not have sufficed for the grant of permission
to bring it."
5 . The rule laid down by the Privy Council is based on sound principle, and, in our
opinion, only those points can be urged at the final hearing of the appeal which are fit
to be urged at the preliminary stage when leave to appeal is asked for, and it would be
illogical to adopt different standards at two different stages of the same case.
6. It seems also necessary to make a few general observations relating to the powers of
this Court to grant special leave to appeal in criminal cases. The relevant articles of the
Constitution dealing with the appellate jurisdiction of the Supreme Court are articles
132 to 136. Article 132 applies both to civil and criminal cases and under it an appeal
shall lie to the Supreme Court from any judgment, decree....or final order of a High
Court, whether in a civil, criminal or other proceeding, if the High Court certifies that
the case involves a substantial question of law as to the interpretation of the
Constitution. Article 133 deals with the appellate jurisdiction of this Court in civil
matters only, and it has been drafted on the lines of sections 109 and 110 of the Civil
Procedure Code, 1908. Article 134 constitutes the Supreme Court as a Court of criminal
appeal in a limited class of cases only, and clearly implies that no appeal lies to it as a
matter of course or right except in cases specified therein. Article 135 merely provides
that the Supreme Court shall have jurisdiction and powers with respect to any matter to
which the provisions of article 133 or article 134 do not apply, if jurisdiction and
powers in relation to that matter were exercisable by the Federal Court immediately
before the commencement of the Constitution under any existing law. The last article,
with which we are concerned is article 136 and it runs thus :-
"136. (1) Notwithstanding, anything in this Chapter, the Supreme Court may, in
its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India,
(2)..............."
7. The points to be noted in regard to this article are firstly, that it is very general and
is not confined merely to criminal cases, as is evident from the words "appeal from any
judgment decree, sentence or order" which occur therein and which obviously cover a
wide range of matters; secondly, that the words used in this article are "in any cause or
matter," while those used in articles 132 to 134 are "civil, criminal or other
proceeding," and thirdly, that while in articles 132 to 134 reference is made to appeals
from the High Courts, under this article, an appeal will lie from any court or tribunal in
the territory of India.
8. On a careful examination of article 136 along with the preceding article, it seems
clear that the wide discretionary power with which this Court is invested under it is to
be exercised sparingly and in exceptional cases only, and as far as possible a more or
less uniform standard should be adopted in granting special leave in the wide range of
matters which can come up before it under this article.

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By virtue of this article; we can grant special leave in civil cases, in criminal cases, in
income-tax cases, in cases which come up before different kinds of tribunals and in a
variety of other cases. The only uniform standard which in our opinion can be laid down
in the circumstances is that Court should grant special leave to appeal only in those
cases where special circumstances are shown to exist. The Privy Council have tried to
lay down from time to time certain principles for granting special leave in criminal
cases, which were reviewed by the Federal Court in Kapildeo v. The King. It is sufficient
for our purpose to say that though we are not bound to follow them too rigidly since the
reasons, constitutional and administrative, which sometimes weighed with the Privy
Council, need not weigh with us, yet some of those principles are useful as furnishing in
many cases a sound basis for involving the discretion of this Court in granting special
leave. Generally speaking, this Court will not grant special leave, unless it is shown that
exceptional and special circumstances exist, that substantial and grave injustice has
been done and that the case in question presents features of sufficient gravity to
warrant a review of the decision appealed against. Since the present case does not in
our opinion fulfil any of these conditions, we cannot interfere with the decision of the
High Court, and the appeal must be dismissed.
9. Appeal dismissed.
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 MANU/KA/6979/2019
Equivalent/Neutral Citation: 2019(204)AIC 664, 2019(4) AKR 662, 2020(1)KarLJ317, 2020(1)KC C R649, 2019:KHC :34591,
2021(1)RC R(C riminal)780

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Appeal No. 1597/2018
Decided On: 23.09.2019
Puneet S. Vs. State of Karnataka
Hon'ble Judges/Coram:
K.N. Phaneendra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Veeranna G. Tigadi, Adv.
For Respondents/Defendant: Honnappa, HCGP
Case Note:
Criminal - Jurisdiction of Session Court - Sections 9, 15 & 18(3) of the
Juvenile Justice (Care and Protection of Children) Act, 2015 - Appeal
preferred against order passed by District and Sessions Judge, under Section 9
of Act - Whether Court has jurisdiction to pass Order under Act - Held, once
Board concluded that Board has got jurisdiction then Board shall follow the
procedure as contemplated under section 15 of Act and to proceed with trial
against accused - Board opined that there is a need for trial of child as an
adult - Accused/juvenile is between age of 16 and 18 years - Mentally and
physically competent to commit such an offence - Able to understand
consequences of offence - Board shall transfer the case to Children's'
Court/Sessions Court having jurisdiction to try such offence, as specified
under section 18(3) of the said JJ Act - Considering provisions of Sections 15
and 18 of Act, Sessions Judge, had absolutely no jurisdiction to pass order
under Section 15 of Act - Under said circumstances, order is not sustainable
either in law or on facts - Appeal allowed - Sessions Judge directed to refer
matter to Juvenile Justice Board to pass appropriate order under Section 15
and 18 of Act. [12], [13], [14]
JUDGMENT
K.N. Phaneendra, J.
1. The present appeal is preferred against the order passed by the II Addl. District and
Sessions Judge, Kolar dated 08.08.2018 under Section 9 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, (hereinafter referred to as 'JJ Act' for short).
2. The petitioner, the sole accused is charge sheeted for the offence punishable under
Sections 366A and 376 of IPC and also under Section 6 of the Prevention of Children
from Sexual Offences Act (hereinafter referred to as 'POCSO Act' for short).
3. During pendency of the proceedings, an application was filed stating that the accused
was not completed the age of 18 years as on the date of the alleged incident and he
was a Juvenile as his date of birth is 28.04.1999 and the incident happened between
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21.04.2016 to 30.04.2016, alleging that the accused has kidnapped and abducted the
victim girl from Mallasandra village to Bengaluru on his Motorcycle and he had
committed sexual intercourse with her during the above said period. The learned
Sessions Judge, on 16.01.2018 has passed an order that the accused was below the age
of 18 years and above 16 years of age and if he is aware of the consequences of the act
and committed the heinous offence, then the Sessions Court can try the appeal.
Therefore, the application filed by the accused was rejected.
4 . The said order was challenged before this Court in Criminal Appeal No. 445/2018
and this Court vide order dated 20.06.2018 has allowed the said appeal and this court
has directed that the Sessions Court has to enquire into the claim regarding the age of
the accused as to whether the matter is triable by the Juvenile Justice Board or by this
Court in view of Section 14, 15 and 18 of the JJ Act. This Court in the said judgment at
para 9 has observed that the order of the learned Sessions Judge does not reflect
proper analysis of the circumstances and document to come to a conclusion regarding
age of the appellant-accused as to whether he was below 18 years or there was any
enquiry in this connection. After the remand, the learned Sessions Judge has passed the
impugned order dated 08.08.2018. In the said order, the learned Sessions Judge has in
fact considered the age of the boy, under the provision of Section 34 of the JJ Act and
after perusal of the Aadhaar Card and also the Birth Certificate. Both shows that the
date of birth of the accused as 28.04.1999. Therefore, the trial Court has come to the
conclusion that, the accused has completed the age of 16 years and he was below the
age of 18 years and he was a minor as on the date of the alleged incident.
5. Though the learned Sessions Judge has come to the conclusion that the accused was
above the age of 16 years and below the age of 18 years, but without referring to the
provisions of Sections 15 and 18 of the JJ Act, he himself has simply stated that the
accused has committed the heinous offence and it is purely conferred on the Special
Court to decide the age u/s. 34 of the JJ Act, and therefore, the Sessions Court has got
jurisdiction to proceed with the trial of the case. Accordingly, again the said application
was dismissed. Against which order, the present appeal is preferred.
6. of course, the learned Sessions Judge has got ample power u/s. 34 of the JJ Act to
determine the age of the Juvenile as on the date of the incident. There is no dispute that
the Sessions Judge has enquired into the matter considering the Birth Certificate and
the Aadhaar Card, and came to a definite conclusion that the accused was above the age
of 16 years and below the age of 18 years. But without referring to Sections 15 & 18 of
the Act, the provisions are mechanically mentioned in the order. Further, the learned
Sessions Judge has not even cared to look into meticulously the contents of the said
provisions. Only on the ground that, the offence is heinous in nature, the Sessions
Judge has got power to proceed with the Trial.
7. In this background, it is just and necessary for this court to have the meticulous look
at Sections 15 and 18 of the JJ Act to consider whether the Sessions Judge has got any
power to pass such an order holding that the offence is heinous in nature and that the
accused can be tried by the Sessions Court itself.
8 . Sections 15 and 18 of the JJ Act have to be extracted for proper analysis with
reference to the facts of this case. The above said provisions reads thus: -
"Section 15.- Preliminary assessment into heinous offences by board- (1) In
case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a

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 preliminary assessment with regard to his mental and physical capacity to
commit such offence, ability to understand the consequences of the offence and
the circumstances in which he allegedly committed the offence, and may pass
an order in accordance with the provisions of sub-section (3) of Section 18:
Provided that for such an assessment, the Board may take the assistance of
experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary
assessment is not a trial, but is to assess the capacity of such child to commit
and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter
should be disposed of by the Board, then the Board shall follow the procedure,
as far as may be, for trial in summons case under the Code of Criminal
Procedure, 1973 (2 of 1974):
Provided that the order of the Board to dispose of the matter shall be
appealable under sub-section (2) of Section 101:
Provided further that the assessment under this section shall be completed
within the period specified in Section 14.
Section 18- Orders regarding child found to be in conflict with law- (1) Where a
Board is satisfied on inquiry that a child irrespective of age has committed a
petty offence, or a serious offence, or a child below the age of sixteen years
has committed a heinous offence, then, notwithstanding anything contrary
contained in any other law for the time being in force, and based on the nature
of offence, specific need for supervision or intervention, circumstances as
brought out in the social investigation report and past conduct of the child, the
Board may, if it so thinks fit,--
Xxxxxxxxxx
xxxxxxxxxx
(3) Where the Board after preliminary assessment under Section 15 pass an
order that there is a need for trial of the said child as an adult, then the Board
may order transfer of the trial of the case to the Children's Court having
jurisdiction to try such offences."
9 . Section 15 of the JJ Act is a procedure to conduct a Preliminary assessment to
consider this type of heinous offence. The said provision specifically says that if the
offence is heinous in nature and the accused person has completed the age of 16 years
and if he is below the age of 18 years, the Board shall conduct a preliminary
assessment with regard to the mental and physical capacity to commit such offence, and
also the ability to understand the consequences of the offence and the circumstances in
which, he allegedly committed the offence and thereafter, the Board can pass
appropriate orders under sub section (2) of section 15 or under sub section (3) of
Section 18 of the JJ Act.
10. For the purpose of analyzing and coming to a conclusion to pass order u/s. 15 of
the JJ Act, the Board has got ample power to take the assistance of an experienced
psychologists or Psycho-social workers or other experts. It is also made clear that, if

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the Board is satisfied on the preliminary assessment and arrived at a conclusion that the
Board itself can dispose of the case by following the procedure to try the accused before
the Board itself as contemplated under the provisions of the Cr.P.C. and the JJ Act. In
such on eventuality, the Board shall not send the Juvenile to the Sessions Court for
trial. Therefore, it is crystal clear that such power is exclusively vested with the Board
to pass such an order. The main object of Section 15 is to ascertain and assess the total
capacity of the accused on the basis of the facts and on the basis of the expert's opinion
if necessary as contemplated under the said provisions. It is not a mechanical power
entrusted to the Board. It should also be borne in mind that mere using of the words
that "the accused is mentally and physically capable of committing such an offence and
ability to understand the consequences and also the circumstances existed to establish
the above said factors", but, the Board has to in detail examine with reference to the
surrounding circumstances and if necessary after taking expert's opinion has to reason
out, why the Board is coming to such a conclusion. But, this has not been taken care of
by the learned Sessions Judge while passing the impugned order.
11. Be that as it may, as could be seen from the above said provision, the learned
Sessions Judge or the Special Judge or the Child Friendly Court, presided over by the
learned Sessions Judge have absolutely no power to pass any order u/s. 15 of the Act.
It is the statutory power vested with the Board. This has completely lost the sight of the
Sessions Judge as could be seen from the order itself.
12. Once the Board comes to the conclusion that the Board has got jurisdiction then the
Board shall follow the procedure as contemplated u/s. 15 of the JJ Act and to proceed
with the trial against the accused. If the Board come to the conclusion otherwise than
the above, and after inquiry, the Board is of the opinion that the accused after the
preliminary inquiry as contemplated u/s. 15, feels that there is a need for trial of the
child as an adult, then by giving reasons to the effect that the accused/juvenile is
between the age of 16 and 18 years, and he was mentally and physically competent to
commit such an offence and he was able to understand the consequences of the offence
and also the circumstances in which he has committed the offence, then only the Board
shall pass order of transfer of the case to the Children's' Court/Sessions Court having
jurisdiction to try such offence, as specified under section 18(3) of the said JJ Act.
13. Looking from the above said angle, considering the provisions of Sections 15 and
18 of the JJ Act, the II Addl. Sessions Judge, Kolar, had absolutely no jurisdiction to
pass order u/s. 15 of the JJ Act. The Sessions Court has not even cared to look into the
provisions of the Act, but in an over enthusiasm appears to have passed the above said
order. Under the above said circumstances, the order is not sustainable either in law or
on facts.
14. It is also a notable point that as on the date of the offence, the JJ Act, 2015 had
already in force, vide Gazette Notification in Extra Part II dated 1.1.2016. Therefore, all
the provisions of the 2015 JJ Act, are applicable to the present facts and circumstances
of the case.
With the aforesaid observations, the Appeal is allowed. Consequently, the order passed
by the learned II Addl. District & Sessions Judge, Kolar in SC No. 97/2016 dated
8.8.2018 is hereby set aside. The learned Sessions Judge is hereby directed to refer the
matter to the Juvenile Justice Board to pass appropriate order u/s. 15 and 18 of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0583/2015
Equivalent/Neutral Citation: 2015(3)AC R2702(SC ), 2015VI AD (S.C .) 16, 2015(152)AIC 65, AIR2015SC 2170, 2015(3)AJR521, 2015 (2) ALD(C rl.)
218 (SC ), 2015 (91) AC C 323, 2015ALLMR(C ri)2421(SC ), 2015(3)BLJ145, 2015(3)BomC R(C ri)129, II(2015)C C R392(SC ), 2015C riLJ2862,
2015(3)C rimes114(SC ), 2015 INSC 392, 2015(4)J.L.J.R.1, (2015) 2 MLJ(C rl) 747 (SC ), 2015(2)N.C .C .618, 2015(4)PLJR162,
2015(2)RC R(C riminal)965, 2015(3)RLW2586(SC ), 2015(6)SC ALE204, (2015)6SC C 652, 2015 (5) SC J 660, [2015]5SC R1112, 2015(2)UC 1113

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1439 of 2013
Decided On: 08.05.2015
Purushottam Dashrath Borate and Ors. Vs. State of Maharashtra
Hon'ble Judges/Coram:
H.L. Dattu, C.J.I., S.A. Bobde and Arun Mishra, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Charu Mathur and Shovan Mishra, Advs.
For Respondents/Defendant: Arun R. Pednekar and Aniruddha P. Mayee, Advs.
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO CAPITAL PUNISHMENT
Case Note:
Criminal - Death sentence - Maintainability thereof - Sections 120-B, 302,
376(2)(g), 364 and 404 of Indian Penal Code, 1860 - Present appeal filed
against order whereby Appellant was convicted for offence Under Sections
302, 376(2)(g), 364 and 404 read with Section 120-B of Code, 1860 and
consequently awarded death sentence - Whether sentence of death awarded
to accused-Appellants was liable to be confirmed - Held, Accused No. 1
abducted deceased with help of Accused No. 2, and subsequently they raped
and murdered her - Accused No. 1 and No. 2 did not show any regret, sorrow
or repentance at any point of time during commission of heinous offence, nor
thereafter, rather they acted in a disturbingly normal manner after
commission of crime - Manner in which commission of offence was so
meticulously and carefully planned coupled with sheer brutality and apathy
for humanity in execution of offence, in every probability they have potency
to commit similar offence in future - It was clear that both accused persons
have been proved to be menace to society which strongly negates probability
that they could be reformed or rehabilitated - Mitigating circumstances were
wholly absent in present factual matrix - Offence was committed by accused
persons not under influence of extreme mental or emotional disorder, nor was
it case where offence may be argued to be crime of passion or one committed
at spur of moment - No question of accused persons believing that they were
morally justified in committing offence on helpless and defenceless young
woman - Gruesome act of raping victim who had reposed her trust in accused
followed by cold-blooded and brutal murder of said victim would attract no
lesser sentence than death penalty - Appeal dismissed.
JUDGMENT
H.L. Dattu, C.J.I.
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1. This appeal is directed against the judgment and order, passed by the High Court of
Judicature for Maharashtra at Bombay in Confirmation Case No. 1 of 2012 and Criminal
Appeal No. 632 of 2012, dated 12.09.2012, 13.09.2012, 24.09.2012 and 25.09.2012.
By the impugned judgment and order, the High Court has confirmed the judgment of
conviction and order of sentence passed by the Court of Sessions Judge, Pune in
Sessions Case No. 284 of 2008, dated 20.03.2012, whereby the learned Sessions Judge
has convicted the accused-Appellants for the offence Under Sections 302, 376(2)(g),
364 and 404 read with Section 120-B of the Indian Penal Code, 1860 (for short, "the
Indian Penal Code") and consequently awarded death sentence.
2. The Prosecution case in a nutshell is: The deceased was residing with her brother-in-
law and sister, namely PW-12 and PW-13 respectively, along with their minor son, in a
flat in Pune City. She was serving as an Associate in the BPO Branch of Wipro Company
in Pune (for short, "the Company") for about a year, where she used to work in the
night-shift, i.e. from 11:00 p.m. to 09:00 a.m. The fateful day was to be her last day
since she had tendered her resignation one month prior. The Company had arranged for
and hired a private cab service to transport its employees from their residence to the
workplace and back at the conclusion of their respective work-shifts. Further, to ensure
the safety and security of its female employees the Company imposed a mandatory
condition, upon the owner of the cab, that a security guard be present in the said
vehicle, if a female employee was being transported.
3. On the fateful day, being 01.11.2007, the cab was deputed to pick up the deceased
from her residence at 10:30 p.m., following which the cab would collect three other
employees of the Company. As per the usual practice, at about 10:15 p.m., the
deceased received a missed call from the driver of the cab, Purushottam Borate, namely
Accused No. 1, informing her of the pick-up. The deceased called back the Accused No.
1 to pick her up in 10 minutes to take her to the workplace, upon which PW-12 and his
son went down from their flat to drop her to the cab. At the time of the pick-up,
Pradeep Kokade, namely Accused No. 2, was sitting in the rear seat behind the driver.
The next employee to be collected by the cab was one Sagar Bidkar, i.e. PW-11, and the
expected time of the said pick up was at about 10:45 p.m.
4. During the journey, between 10:30 p.m. and 11:00 p.m., the deceased received calls
on her mobile phone by one Jeevan Baral, a friend of the deceased residing in
Bangalore, namely PW-14, who heard the former questioning the Accused No. 1 as to
where he was taking the cab, why he had stopped in a jungle and what he was doing.
Thereafter, the phone call between the deceased and PW-14 was abruptly disconnected
and subsequent attempts by the latter to call the deceased were rendered futile as her
mobile phone was found to be switched off. Further, PW-14 was unable to contact
either the Pune Police or the relatives of the deceased in Pune till the following day.
5 . It is the case of the prosecution that the Accused No. 1 and 2, being aware of the
fact that the deceased would be travelling to her workplace that night and that she
would be the first to be collected, under the guise of taking the deceased to the said
workplace, hatched a conspiracy to abduct her and take her to a secluded spot. The
prosecution has alleged that, in the time period between the abrupt end to the
aforementioned phone call with PW-14 and the pick-up of PW-11 at about 12:45 a.m.,
the Accused No. 1 and 2 committed the heinous offence of gang-rape and thereafter
murdered her by means of strangulating her with her own Odhani, slashing her wrist
with a blade and smashing her head with a stone. Further, that the accused-Appellants
stripped the deceased of her possessions and money and then left her body in the field
of one Kisan Bodke.
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6. Thereafter, the cab in question, containing the Accused No. 1 and 2, arrived at about
12:45 a.m., i.e. delayed by nearly two hours, to pick up PW-11 from his residence. At
the time, the deceased was no longer present in the cab. The Accused No. 1 informed
the PW-11 that neither the deceased nor the other employees had come for work that
day and the cause of the delay was on account of a punctured tyre. The Accused No. 2
vacated the cab shortly before the Accused No. 1 brought the PW-11 to the workplace.
7. On the following morning, being 02.11.2007, one Pankaj Laxman Bodke, i.e. PW-8,
noticed the dead body of a female on the boundary of the field of Kisan Bodke and
therefore informed one Hiraman Bodke, i.e. PW-1, of the same. PW-1, after verifying the
information, informed the Police Station, Talegaon Dabhade, where an FIR was
promptly lodged. Therefore, an offence Under Section 302 of the Indian Penal Code was
registered and the spot panchanama was prepared in the presence of PW-3. Inquest
report and panchanama was also prepared in the presence of PW-2 and thereafter the
body of the deceased was sent for post-mortem examination. Furthermore, bloodstained
stone, a pair of ladies sandal, bloodstained blade, soil mixed with blood and sample soil
was seized from the spot of the incident. The clothes found on the body of the
deceased, after the post-mortem examination, were also duly seized. Dr. Waghmare,
i.e. PW-16, who performed the post-mortem examination, gave the opinion that the
cause of death was due to shock and hemorrhage due to grievous injuries to vital
organs with skull fracture involving frontal, left temporal, parietal bone with laceration
to brain with fractured ribs, right lung ruptured with strangulation. Further, on the basis
of the report of the Chemical Analyzer, PW-16 gave the opinion that the deceased was a
victim of the offence of rape prior to her death.
8 . In the meanwhile, on 02.11.2007 itself, due to the fact that the deceased had not
returned home the next day, her sister, i.e. PW-13, started to make enquiries as to her
whereabouts. PW-13 was informed by the Company that the deceased had not reported
to the workplace on the previous night. Further, PW-13 received information, from PW-
14, about the events pertaining to the telephonic conversation with the deceased
between 10:30 p.m. and 11:00 p.m. on that fateful night. Therefore, a missing persons
report was immediately filed that evening itself in the Chaturshrungi Police Station.
9 . On 03.11.2007, PW-12 and PW-13 were informed that a dead body has been
recovered within the jurisdiction of the Talegaon Dabhade Police Station. Consequently,
the said PW-12 and PW-13 reached the Police Station and on the basis of a photograph
of the body of the deceased and the clothes that were seized, they confirmed the
identity of the deceased. Furthermore, the PW-12 and PW-13 also confirmed that the
body at the morgue was that of the deceased.
10. After the aforesaid FIR, dated 02.11.2007, was registered, the Police duly initiated
an investigation and made inquires with the Company. Consequently, the Accused No. 1
and 2 were taken into custody, at about 05:30 a.m., on 03.11.2007. Thereafter, based
on confessional statements of the accused-Appellants, the police were able to recover
the stolen items belonging to the deceased, from their respective houses, namely sim
card, mobile phone, ear ring, watch, gold ring. The vehicle in which the deceased was
taken by the accused-Appellants was also seized and the panchanama was prepared.
Further, the Test Identification Parade was conducted, on 14.01.2008, wherein the PW-
12 identified the Accused No. 1 and 2 as the persons in the cab with the deceased.
1 1 . Pursuant to the investigations, a charge-sheet was duly filed by the police. On
05.03.2009, the charges were framed Under Sections 364, 376(2)(g) and 302 read with
34 and 404 read with 34 of the Indian Penal Code. On 03.04.2010, the charge was

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altered and the independent charge of conspiracy Under Section 120-B of the Indian
Penal Code was added. Additionally, the charge Under Section 120-B of the Indian Penal
Code was added with the charge Under Sections 302, 376(2)(g), 364 and 404 of the
Indian Penal Code. The accused-Appellants pleaded not guilty to the aforesaid charges
and thus, the case was committed to trial.
12. During the course of the Trial, the prosecution examined 29 witnesses of which 11
were examined on the aspect of circumstantial evidence and 2 were doctors to establish
the factum of rape and murder. PW-1, the Police Patil who registered the complaint
personally, maintained his version as stated in the FIR, dated 02.11.2007, that PW-8
was the person who found the body of the deceased and informed the complainant of
the same. PW-12, the brother-in-law of the deceased, deposed that he was the last
person to see the latter alive and that too in the company of the accused-Appellants.
The statement of PW-14, that he was the last person to talk to the deceased between
10:30 p.m. and 11:00 p.m., was supported by documentary evidence, i.e. call records.
The evidence of PW-12, PW-13 and PW-14, in respect of the whereabouts of the
deceased on the fateful night, and with regard to the identity of the accused-Appellants
was found to be consistent and trustworthy. Furthermore, based on the confessional
statements of the accused-Appellants, the police were able to recover the vehicle, the
items stolen from the body of the deceased as well as the Odhani of the deceased,
which was found to be one of the tools used to commit murder, i.e. by way of
strangulation. The Odhani and clothes of the deceased that was recovered, after
chemical analysis, was found to contain semen stains of both the accused-Appellants.
Further that, on the basis of the vaginal swab taken during the post-mortem
examination and the report of the Chemical Analyzer, it has been shown that semen of
both the accused-Appellants was found in the said swab as well.
13. The Sessions Court, upon meticulous consideration of the material on record and
the submissions made by the parties, observed that the evidence of the prosecution
formed a chain so complete that it excluded any hypothesis other than the guilt of the
accused-Appellants. It concluded that the testimonies of PW-12, PW-13, PW-14, PW-1
and PW-11 are true and reliable and that the same along with the evidence of PW-16,
the post-mortem report and the report of the Chemical Analyzer support the case of the
prosecution. The Sessions Court has noticed that the evidence of PW-12, which states
that the deceased was last seen in the company of accused-Appellants, coupled with the
lack of explanation for the same by the accused-Appellants in their statements Under
Section 313 of the Code, provides a firm link in the chain of circumstances. The
Sessions Court observed that the accused-Appellants have failed miserably in
discharging their burden of proving that the deceased was not in their company or that
their cab suffered a punctured tyre. Further, that the recoveries made at the instance of
the accused-Appellants, including the vehicle in question, the belongings of the
deceased in the respective houses of the accused-Appellants, the Odhani of the
deceased which was used as a weapon of murder along with the medical evidence and
testimony of PW-16 establish the factum of commission of the crime by the accused-
Appellants. The subsequent conduct of the accused-Appellants, where they continued to
pick-up PW-11 and lied to him about the cause of the delay and the whereabouts of the
deceased, has been found to be compatible with their guilt and in consonance with their
meticulously chalked out plan for the commission of the offence of gang-rape and
murder. Therefore, in light of the aforesaid, the Sessions Court concluded that the chain
of circumstances evince beyond any reasonable doubt that the accused-Appellants have
committed the heinous offence of rape and murder of the deceased.
14. With regard to the quantum of sentence, the Sessions Court noticed the well-settled
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principles laid down by this Court in Bachan Singh v. State of Punjab
MANU/SC/0055/1982 : (1980) 2 SCC 684;Macchi Singh and Ors. v. State of Punjab
MANU/SC/0211/1983 : (1983) 3 SCC 470;Dhananjoy Chatterjee v. State of West
Bengal MANU/SC/0626/1994 : (1994) 2 SCC 220;Devender Pal Singh v. State of NCT
of Delhi MANU/SC/0217/2002 : (2002) 5 SCC 234;Aqeel Ahmed v. State of UP
MANU/SC/8435/2008 : (2008) 16 SCC 372 andAtbir Singh v. Govt. of NCT of Delhi
MANU/SC/0576/2010 : (2010) 9 SCC 1. Further, on due consideration to the
aggravating and mitigating circumstances present in the facts of the case, the Sessions
Court observed that the balance was clearly tilting against the accused-Appellants. After
affording an opportunity of hearing to the accused-Appellants on the question of
sentence, the Sessions Court has awarded them death sentence and fine of Rs. 5,000/-
each for the offence punishable Under Section 120-B of the Indian Penal Code, death
sentence and fine of Rs. 5,000/- each for the offence punishable Under Section 302
read with Section 120-B of the Indian Penal Code; imprisonment for life and fine of Rs.
5,000/- for the offence punishable Under Section 376(2)(g) read with Section 120-B of
the Indian Penal Code; imprisonment for life and fine of Rs. 5,000/- each for the
offence punishable Under Section 364 read with Section 120-B of the Indian Penal
Code; and rigorous imprisonment for two years and a fine of Rs. 10,000/- each for the
offence punishable Under Section 404 read with Section 120-B of the Indian Penal
Code. The Sessions Court, in its order of sentence, has noticed that the accused-
Appellants committed and executed the heinous offences in a pre-planned and
meticulous manner which showed the determination of both the accused to complete
the crime and take away the life of the accused. The Sessions Court observed that the
extreme depravity with which the offences were committed and the merciless manner in
which the deceased was raped and done to death, coupled with the gross abuse of the
position of trust held by the Accused No. 1 and the lack of remorse or repentance for
any of their actions, would clearly indicate that the given case was fit to be placed
within the category of "rarest of rare" and the only punishment proportionate to the
brutality exhibited by the accused-Appellants would be the death penalty.
15. Aggrieved by the aforesaid judgment and order, the accused-Appellants filed an
appeal before the High Court which was heard along with the Reference for confirmation
of death sentence Under Section 366 Code of Criminal Procedure, 1973 (for short, "the
Code") and disposed of by a common judgment and order, dated 12.09.2012,
13.09.2012, 24.09.2012 and 25.09.2012.
16. The High Court has, vide the impugned judgment and order, elaborately dealt with
the entire evidence on record and extensively discussed the judgment and order of the
Sessions Court in order to ascertain the correctness or otherwise of the conviction and
sentence awarded to the accused-Appellants. The High Court has carefully examined the
evidence on record including testimonies of the Prosecution Witnesses and recorded the
finding that the said statements do not reflect any discrepancy or inconsistency of facts
and therefore must be considered as cogent, reliable and incontrovertible evidence.
Further, that the medical evidence and the deposition by PW-16, i.e. the doctor who
conducted the post-mortem examination, clearly indicates the commission of the
offence of rape and the brutal murder of the deceased. The High Court has taken note of
the statement of the PW-16 that the probable cause of death was shock and hemorrhage
due to grievous injury to vital organs with skull fracture involving frontal, left temporal,
parietal bone with laceration to brain, fracture to the ribs and right lung rupture with
strangulation, and further that the strangulation was committed by overpowering the
deceased suddenly from behind. On the basis of the medical report as well as the
Chemical Analyzer's report, the High Court has observed that the factum of commission
of the offence of rape by the Accused No. 1 and 2 has been conclusively proved. The
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High Court has recorded that the recovery of weapons of murder from the place where
the body of the deceased was located as well as from the house of the Accused No. 1,
the latter being at the instance of a confession by the said accused, has also been
established beyond any shadow of doubt. In light of the chain of circumstantial
evidence having been established beyond any reasonable doubt, the High Court has
concluded towards the guilt of accused-Appellants and confirmed the judgment of
conviction passed by the Sessions Court.
1 7 . With respect of the quantum of sentence, the High Court has noticed the well-
settled law laid down by this Court and concluded that the present case falls under the
category of "rarest of rare". The High Court has observed that the heinous acts have
been committed by the accused-Appellants in a diabolical and cold-blooded manner
without any hesitation and undeterred by its consequences. Further, that the manner of
commission of the offence coupled with their subsequent conduct obliterates any chance
of reformation and that there is no guarantee that the accused-Appellants would not
commit the same or similar offence if they were released. Therefore, the High Court
confirmed the death sentence awarded by the Sessions Court.
18. The accused-Appellants, aggrieved by the aforesaid confirmation of death sentence
awarded to them, are before us in this appeal.
19. At the outset, it would be pertinent to note that this Court has issued notice on the
limited issue of the sentence, by order dated 04.07.2013. Therefore, the learned
Counsel would limit her case only to the question of determination of quantum of
sentence awarded by the Courts below and seek for commutation of the said sentence.
20. Learned Counsel for the accused-Appellants would vehemently argue in favour of
commutation of the death sentence awarded to the Appellants as the case did not fall
within the purview of "rarest of rare" cases. Further, she would submit that, in the
present case, the mitigating circumstances outweighed the aggravating circumstances,
namely that the age of the accused-Appellants, the absence of any criminal antecedents
and the possibility that they could be reformed and rehabilitated would reflect that a
sentence of life imprisonment would suffice the ends of justice. Per contra, the learned
Counsel for the Respondent-State would seek to support the judgment and order passed
by the High Court and Sessions Court.
21. We have given our anxious consideration to the arguments advanced by learned
Counsel for the parties to the appeal and also carefully scrutinized the evidence on
record as well as the judgment(s) and order(s) passed by the Courts below.
22. We do not intend to saddle the judgment with the settled position of law in respect
of the sentencing policy and the principles evolved by this Court for weighing the
aggravating and mitigating factors in specific facts of the case. However, it would be
apposite to notice the decision of this Court in the case of Bachan Singh (supra),
wherein the constitutional validity of the provisions that authorize the Trial Court to
award death sentence for the offence punishable Under Section 302 of the Indian Penal
Code and other offences was upheld. However, this Court observed that there can be no
strait jacket formula which can be applied in each case and that while considering the
sentence to be awarded, the Court must look into the aggravating and mitigating
circumstances. The ratio of the decision in Bachan Singh (supra) has been followed in
the case of Machhi Singh (supra) wherein this Court held that the manner of
commission, motive for commission, anti-social nature of crime, magnitude of crime
and personality of victim ought to be kept in mind while awarding an appropriate

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sentence. It was held that a balance sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so, the mitigating circumstances have to be accorded
full weightage and a balance has to be struck.
2 3 . It is an established position that law regulates social interests and arbitrates
conflicting claims and demands. Security of persons is a fundamental function of the
State which can be achieved through instrumentality of criminal law. The society today
has been infected with a lawlessness that has gravely undermined social order.
Protection of society and stamping out criminal proclivity must be the object of law
which may be achieved by imposing appropriate sentence. Therefore, in this context,
the vital function that this Court is required to discharge is to mould the sentencing
system to meet this challenge. The facts and given circumstances in each case, the
nature of the crime, the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused and all other attending
circumstances are relevant facts which would enter into the area of consideration. Based
on the facts of the case, this Court is required to be stern where it should be and
tempered with mercy where warranted.
24. In this context, it would be profitable to notice the manner in which this Court has
considered the sentencing policy vis-à-vis certain aggravating and mitigating
circumstances.
25. In the case of Ramnaresh v. State of Chhattisgarh MANU/SC/0163/2012 : (2012)
4 SCC 257, this Court referred to the Bachan Singh case (supra) and Machhi Singh case
(supra) to cull out certain principles governing aggravating and mitigating
circumstances. It would be beneficial to refer to the same hereinbelow:
Aggravating circumstances
(1) The offences relating to the commission of heinous crimes like murder, rape,
armed dacoity, kidnapping, etc. by the accused with a prior record of conviction
for capital felony or offences committed by the person having a substantial
history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in
the public at large and was committed in a public place by a weapon or device
which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive
money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a person who had acted in lawful
discharge of his duty Under Section 43 Code of Criminal Procedure.
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 (9) When the crime is enormous in proportion like making an attempt of murder
of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of
relationship and social norms, like a child, helpless woman, a daughter or a
niece staying with a father/uncle and is inflicted with the crime by such a trusted
person.
(11) When murder is committed for a motive which evidences total depravity
and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the
judicial conscience but even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative
factor by itself.
(3) The chances of the accused of not indulging in commission of the crime
again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the
defect impaired his capacity to appreciate the circumstances of his criminal
conduct.
(5) The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental imbalance
in that given situation like persistent harassment or, in fact, leading to such a
peak of human behaviour that, in the facts and circumstances of the case, the
accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the
crime was not committed in a preordained manner and that the death resulted in
the course of commission of another crime and that there was a possibility of it
being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness
though the prosecution has brought home the guilt of the accused.
26. Further, it has been held by this Court that undue sympathy to impose inadequate
sentence would do more harm to the justice system by undermining the public
confidence in the efficacy of law [See Mahesh v. State of M.P. MANU/SC/0246/1987 :
(1987) 3 SCC 80; Sevaka Perumal v. State of T.N. MANU/SC/0338/1991 : (1991) 3
SCC 471 and Mofil Khan v. State of Jharkhand MANU/SC/0915/2014 : (2015) 1 SCC
67]. To give the lesser punishment for the accused would be to render the judicial
system of the country suspect. If the courts do not protect the injured, the injured
would then resort to private vengeance. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offence and the manner in which it
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was executed or committed etc.
27. In the case of B.A. Umesh v. High Court of Karnataka MANU/SC/0082/2011 :
(2011) 3 SCC 85, the Appellant was accused of a brutal rape and murder of a lady. It
was found, by medical evidence, that the deceased therein was a victim of a violent
rape prior to death and the death was caused due to as asphyxiation. Further, the
medical report found that the body of the deceased has several abrasions and
lacerations. This Court, noticing the brutal and violent manner of commission of the
offences confirmed the death sentence to the accused therein. It was held that:
84. As has been indicated by the courts below, the antecedents of the Appellant
and his subsequent conduct indicates that he is a menace to the society and is
incapable of rehabilitation. The offences committed by the Appellant were
neither under duress nor on provocation and an innocent life was snuffed out by
him after committing violent rape on the victim....
2 8 . In the Sevaka Perumal case (supra), the counsel for the Appellants therein
contended that considering the young age of the accused, the same would be a strong
mitigating factor in favour of commutation of death sentence. It was contended therein
that the accused were the breadwinners of their family which consisted of a young wife,
minor child and aged parents. However, this Court, finding no force in the said
contention, observed that such compassionate grounds are present in most cases and
are not relevant for interference in awarding death sentence. The principle that when
the offence is gruesome and was committed in a calculated and diabolical manner, the
age of the accused may not be a relevant factor, was further affirmed by a three-Judge
Bench of this Court in Mofil Khan case (supra).
29. In view of the aforesaid decisions highlighting the approach of this Court, we would
now consider the decision of the Courts below, in the present case. The Sessions Court
has noticed a similarity with the present case and the decision of this Court in the case
of Dhananjoy Chatterjee (supra). Therefore, in light of the same, the Sessions Court has
held that the present case would merit a sentence of death penalty and no less. The
Session Court has observed:
...In present case, accused driver alongwith co-accused committed rape and
murder of helpless and defenceless young girl who was reposing complete faith
and trust on them by carefully planning the crime and executing it in barbaric
manner. Taking the verdict in the matter of Dhananjoy Chatterjee (supra) as
yardstick, there is no hesitation to put on record that the case at hand is the
rarest of rare case warranting nothing else but the death penalty to the accused
persons....
3 0 . The High Court, by the impugned judgment and order, has concurred with the
findings recorded by the Sessions Court in respect of the chain of circumstances being
clearly and incontrovertibly established by the prosecution. With regard to the balance
sheet of aggravating and mitigating circumstances, the High Court has, in addition to
the finding and observations of the Sessions Court, held that the aggravating
circumstances far outweigh the mitigating circumstances. Therefore, the High Court has
recorded that there is no alternative but to confirm the death sentence as awarded by
the Sessions Courts.
3 1 . At this juncture, it would be pertinent to notice the Dhananjoy Chatterjee case
(supra). As noticed above, the said case has been noticed by the Sessions Court, in the
present case, as bearing great similarity to the facts herein. In the Dhananjoy Chatterjee
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case (supra), the accused was convicted for the brutal rape and murder of a young girl
aged about 18 years. The accused-therein was employed as a security guard of the
building where the deceased resided and therefore was entrusted with the noble task of
ensuring her safety and security. The reasoning therein has been instrumental in
moulding the sentencing policy of this Court and therefore it would be gainful to
reproduce the relevant paragraphs from the said case below:
15. In our opinion, the measure of punishment in a given case must depend
upon the atrocity of the crime; the conduct of the criminal and the defenceless
and unprotected state of the victim. Imposition of appropriate punishment is the
manner in which the courts respond to the society's cry for justice against the
criminals. Justice demands that courts should impose punishment befitting the
crime so that the courts reflect public abhorrence of the crime. The courts must
not only keep in view the rights of the criminal but also the rights of the victim
of crime and the society at large while considering imposition of appropriate
punishment.
16. The sordid episode of the security guard, whose sacred duty was to ensure
the protection and welfare of the inhabitants of the flats in the apartment,
should have subjected the deceased, a resident of one of the flats, to gratify his
lust and murder her in retaliation for his transfer on her complaint, makes the
crime even more heinous. Keeping in view the medical evidence and the state in
which the body of the deceased was found, it is obvious that a most heinous
type of barbaric rape and murder was committed on a helpless and defenceless
school-going girl of 18 years. If the security guards behave in this manner who
will guard the guards? The faith of the society by such a barbaric act of the
guard, gets totally shaken and its cry for justice becomes loud and clear. The
offence was not only inhuman and barbaric but it was a totally ruthless crime of
rape followed by cold blooded murder and an affront to the human dignity of
the society. The savage nature of the crime has shocked our judicial conscience.
There are no extenuating or mitigating circumstances whatsoever in the case.
We agree that a real and abiding concern for the dignity of human life is
required to be kept in mind by the courts while considering the confirmation of
the sentence of death but a cold blooded preplanned brutal murder, without any
provocation, after committing rape on an innocent and defenceless young girl of
18 years, by the security guard certainly makes this case a "rarest of the rare"
cases which calls for no punishment other than the capital punishment and we
accordingly confirm the sentence of death imposed upon the Appellant for the
offence Under Section 302 Indian Penal Code. The order of sentence imposed on
the Appellant by the courts below for offences Under Sections 376 and 380
Indian Penal Code are also confirmed along with the directions relating thereto
as in the event of the execution of the Appellant, those sentences would only
remain of academic interest. This appeal fails and is hereby dismissed.
3 2 . It would now be necessary for this Court to consider the balance sheet of
aggravating and mitigating circumstances. In the instant case, the learned Counsel for
the accused-Appellants has laid stress upon the age of the accused persons, their family
background and lack of criminal antecedents. Further, the learned Counsel has fervently
contended that the accused-Appellants are capable of reformation and therefore should
be awarded the lighter punishment of life imprisonment.
33. In our considered view, in the facts of the present case, age alone cannot be a
paramount consideration as a mitigating circumstance. Similarly, family background of
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the accused also could not be said to be a mitigating circumstance. Insofar as Accused
No. 1 is concerned, it has been contended that he was happily married and his wife was
pregnant at the relevant time. However, the Accused No. 1 did not take into
consideration the condition of his wife or his mother while committing the said offence
and, as a result, his wife deserted him and his widowed mother is being looked after by
his nephew and niece. Insofar as Accused No. 2 is concerned, he has two sisters who
are looking after his widowed mother. Lack of criminal antecedents also cannot be
considered as mitigating circumstance, particularly taking into consideration, the nature
of heinous offence and cold and calculated manner in which it was committed by the
accused persons.
34. In our considered view, the "rarest of the rare" case exists when an accused would
be a menace or, threat to and incompatible with harmony in the society. In a case
where the accused does not act on provocation or on the spur of the moment, but
meticulously executes a deliberate, cold-blooded and pre-planned crime, giving scant
regard to the consequences of the same, the precarious balance in the sentencing policy
evolved by our criminal jurisprudence would tilt heavily towards the death sentence.
This Court is mindful of the settled principle that criminal law requires strict adherence
to the rule of proportionality in awarding punishment, and the same must be in
accordance with the culpability of the criminal act. Furthermore, this Court is also
conscious to the effect, of not awarding just punishment, on the society.
35. In the present factual matrix, Accused No. 1 abducted the deceased with help of
Accused No. 2, and subsequently they raped and murdered her. They did not show any
regret, sorrow or repentance at any point of time during the commission of the heinous
offence, nor thereafter, rather they acted in a disturbingly normal manner after
commission of crime. It has been established by strong and cogent evidence that after
the commission of the gruesome crime, Accused No. 2 accompanied Accused No. 1 for
the second pick up and exited the cab only prior to reaching the gate of the Company.
Further, it has been brought on record that the Accused No. 1 attempted to create false
record of the whereabouts of the cab and the cause of the delay in arriving at the
workplace. In addition, it has been noticed that even though the accused-Appellants
were seen by PW-12, that the deceased repeatedly questioned them of the unusual
route, or that the deceased was talking to a friend on the phone during the journey,
nothing deterred them from committing the heinous offences. In fact the Sessions Court
has noticed that during the commission of the offences, the accused-Appellants were
contacted by PW-11 seeking an explanation for the delay in picking him up, however
even this did not deter them.
36. Thus, the manner in which the commission of the offence was so meticulously and
carefully planned coupled with the sheer brutality and apathy for humanity in the
execution of the offence, in every probability they have potency to commit similar
offence in future. It is clear that both the accused persons have been proved to be a
menace to society which strongly negates the probability that they can be reformed or
rehabilitated. In our considered opinion, the mitigating circumstances are wholly absent
in the present factual matrix. This appeal is not a case where the offence was committed
by the accused persons under influence of extreme mental or emotional disorder, nor is
it a case where the offence may be argued to be a crime of passion or one committed at
the spur of the moment. There is no question of accused persons believing that they
were morally justified in committing the offence on helpless and defenceless young
woman.
3 7 . Therefore, in view of the above and keeping the aforesaid principle of
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proportionality of sentence in mind, this Court is in agreement with the reasoning of the
Courts below that the extreme depravity with which the deceased was done to death
coupled with the other factors including the position of trust held by the Accused No. 1,
would tilt the balance between the aggravating and mitigating circumstances greatly
against the accused-Appellants. The gruesome act of raping a victim who had reposed
her trust in the accused followed by a cold-blooded and brutal murder of the said victim
coupled with the calculated and remorseless conduct of the accused persons after the
commission of the offence, we cannot resist from concluding that the depravity of the
Appellants' offence would attract no lesser sentence than the death penalty.
38. In addition to the above, it would be necessary for this Court to notice the impact
of the crime on the community and particularly women working in the night shifts at
Pune, which is considered as a hub of Information Technology Centre. In recent years,
the rising crime rate, particularly violent crimes against women has made the criminal
sentencing by the Courts a subject of concern. The sentencing policy adopted by the
Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent.
There are a shockingly large number of cases where the sentence of punishment
awarded to the accused is not in proportion to the gravity and magnitude of the offence
thereby encouraging the criminal and in the ultimate making justice suffer by weakening
the system's credibility. The object of sentencing policy should be to see that the crime
does not go unpunished and the victim of crime as also the society has the satisfaction
that justice has been done to it. In the case of Machhi Singh (supra), this Court
observed that the extreme punishment of death would be justified and necessary in
cases where the collective conscience of society is so shocked that it will expect the
holders of judicial power to inflict death penalty irrespective of their personal opinion.
39. It is true that any case of rape and murder would cause a shock to the society but
all such offences may not cause revulsion in society. Certain offences shock the
collective conscience of the court and community. The heinous offence of gang-rape of
an innocent and helpless young woman by those in whom she had reposed trust,
followed by a cold-blooded murder and calculated attempt of cover-up is one such
instance of a crime which shocks and repulses the collective conscience of the
community and the court. Therefore, in light of the aforesaid settled principle, this
Court has no hesitation in holding that this case falls within the category of "rarest of
rare", which merits death penalty and none else. The collective conscience of the
community is so shocked by this crime that imposing alternate sentence, i.e. a sentence
of life imprisonment on the accused persons would not meet the ends of justice. Rather,
it would tempt other potential offenders to commit such crime and get away with the
lesser/lighter punishment of life imprisonment.
40. In the result, after having critically appreciated the entire evidence on record as
well as the judgments of the Courts below in great detail, we are in agreement with the
reasons recorded by the trial court and approved by the High Court while awarding and
confirming the death sentence of the accused-Appellants. In our considered view, the
judgment and order passed by the Courts below doe not suffer from any error
whatsoever.
4 1 . Therefore, this appeal is rejected and the sentence of death awarded to the
accused-Appellants is confirmed. The judgment and order passed by the High Court is
accordingly affirmed.
42. The appeal is disposed of in the aforesaid terms.

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Ordered accordingly.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0205/1972
Equivalent/Neutral Citation: AIR1973SC 343, 1972C riLJ1260, (1972)3SC C 759, (1972)SC C (C ri)827, 1972(4)UJ898

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 88 and 89 of 1971
Decided On: 20.04.1972
Rahim Beg and Ors. Vs. State of U.P.
Hon'ble Judges/Coram:
H.R. Khanna and J.M. Shelat, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: B.S. Varshneya, Adv
For Respondents/Defendant: O.P. Rana, Adv.
Case Note:
Criminal - circumstantial evidence -Section 342 of Criminal Procedure Code,
1898, Sections 302, 376 of Indian Penal Code, 1860 - conviction based on
circumstantial evidence - no previous associates between accused and
witness to whom they made extra judicial confession - accused tried to run
away on seeing police even though according prosecution accused send
witness to police for surrender - discrepancies regarding recovery of
ornaments of decreased from accused - conviction on teeth of these
discrepancies untenable.

JUDGMENT
1. Rahim Beg (22) and Mahadeo (30) were convicted by Additional Sessions Judge Rae
Bareli under Sections 302, 376 and 404 Indian Penal Code and each of them was
sentenced to death on the first count, rigorous imprisonment for a period of 10 years on
the second count and rigorous imprisonment for a period of one year on the third count.
The conviction and sentence of the two accused were affirmed by the Allahabad High
Court. The two accused have now come up to this Court in appeal by special leave.
2 . Rahim Beg accused is a bachelor. At the relevant time he was a village chowkidar
and had a cycle repair shop. Mahadeo accused has got wife and children and at the
relevant time ran a betel shop. The two accused resided at the time of the present
occurrence in Muraika Purwa, a small hamlet at a distance of 2J furlongs from village
Amawan in district Rae Bareli. There are about 27 houses in that hamlet. Kesh Kali
deceased, who was aged about 12 to 13 years at the time of the present occurrence,
also resided in that hamlet with her father Ramjas (P.W. 1). Kesh Kali was married
about six years before the present occurrence but her Gauna ceremony had not so far
been performed. She used to put on a silver Sutya Ex. 1, a pair of silver Tarya Ex. 2 and
a pair of silver bangles Ex. 3. Some time before the present occurrence Ramjas agreed
to supply milk to Ramesh Chand of Amawan Hospital. Kesh Kali in this connection used
to take one seer of milk every morning in a Handia (earthen pot) Ex. 4 to the quarter of
Ramesh Chand. On the morning of August 3, 1969, as usual, Kesh Kali to k milk in
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Handia Ex. 4 to the quarter of Ramesh Chand and delivered the milk to Smt. Om Sri
(P.W. 17) wife of Ramesh Chand, at 7 a.m. Kesh Kali thereafter left the quarter of
Ramesh Chand with the Handia to go back to her house. At about 8 or 9 a.m. on that
day Parmeshwar Dayal (P.W. 6). liquor shop contractor, saw Kesh Kali pass in front of
the cycle repair shop of Rahim Beg accused. Rahim Beg was at that time talking to
Mahadeo accused. Rahim Beg then told Kesh Kali to stop. He also purchased 100 grams
of Andarsa (a kind of sweet) from the shop of Parmeshwar Dayal and offered it to Kesh
Kali, but she declined to take the Andarsa. Kesh Kali thereafter proceeded to her house.
About two or four minutes thereafter, Rahim Beg and Mahadeo went in that direction in
which Kesh Kali had gone. Ghazi (P.W. 2), whose field is at a distance of about 1£
furlongs from the village abadi, saw Kesh Kali with Handia Ex. 4 at about 9 a.m. on that
day going at a short distance from his field towards the village abadi. Ghazi also saw
the two accused following Kesh Kali.
3. As Kesh Kali did not arrive at her house, her mother went at about 11 a.m. to Ramjas
who was working in the field and told him that Kesh Kali had not returned after giving
milk. Ramjas then stopped ploughing field and went to Amwan Hospital. Ramjas was
told that Kesh Kali had gone away after giving milk. Ramjis then started making search
for Kesh Kali. Ghazi P.W. then told Ramjas that he had seen Kesh Kali going towards
the village abadi and that the two accused were following her. Ramjas thereupon
informed the other villagers and both he and the other villagers searched for Kesh Kali
in the bushes. At about 4 p.m. during the course of search, Birpal came and informed
Ramjas that the dead body of Kesh Kali was lying under a bush in a Bhinta. The said
Bhinta is at a distance of about one furlong from the village abadi. On arrival at the
Bhinta, Ramjas and his companions saw the dead body of Kesh Kali lying there. All the
three silver ornaments which were on the person of Kesh Kali were found to be missing.
There were black spots on her neck and bio id was coming out of her vagina. A portion
of Kesh Kali's dhoti was stuffed into her mouth. All the buttons of the front side of her
blouse were open. Ramjas then went on a cycle to police station Maharajganj, and
lodged there report Ka-6 at 6 30 p.m. After the first information report was recorded,
Sub-Inspector Sripal Singh went to the place of occurrence. On arrival there, the Sub-
Inspector prepared the inquest report and sent the dead body to the mortuary. Ramjas
went with the dead body. The Sub-Inspector also took into possession Handia Ex. 4
which was lying near the dead body.
4. Post mortem examination on the dead body of Kesh Kali was performed by Dr. V.K.
Verma at 4 p.m. on August 4, 1969 in the mortuary at Rae Bareli.
5 . On August 4, 1969 at about 10.30 a.m, it is stated, the two accused went to the
house of Mohd. Nasim Khan (P.W. 4) in village Sakunpur at a distance of one mile from
Amawan. The two accused told Mohd. Nasim Khan that they had killed the daughter of
Ramjas and Mohd. Nasim Khan should help them. On the enquiry of Mohd. Nasim Khan
the two accused stated that both of them had committed rape on the girl and had
removed her ornaments and stuffed cloth in her mouth. Mohd. Nasim Khan was also
told that the two accused had distributed the ornaments amongst themselves. The
bangles of the deceased were stated to be with Rahim Beg, while Sutya and Tarya were
stated to be with Mahadeo. According to the two accused, they had kept those
ornaments in their respective houses. Leaving the two accused at his house, Mohd.
Nasim Khan went to the village of Ramjas and told Sub-Inspector Sripal Singh about
what he had been told by the two accused. The Sub-Inspector accompanied by three
constables as well as Mohd. Nasim Khan, Chhedi and Gur Sewak went to the house of
Mohd. Nasim Khan. When the two accused saw the police party, they tried to run away,
but they were secured and put under arrest. Both the accused received injuries at the
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time of the arrest.
6 . Rahim Beg on interrogation by the Sub-Inspector stated that he had concealed the
bangles in his house and could get the same recovered. Likewise, Mahadeo accused
stated that he had concealed Sutya and Tarya in his house and could get the same
recovered. The Sub-Inspector, accompanied by Gur Sewak and others, then went to the
house of Mahadeo. Mahadeo took Sutya Ex. 1 and Tarya Ex. 2 from out of earthen
cornbin. The above ornaments were taken into possession and were put into a sealed
parcel. Rahim Beg accused then took S.I. Sripal Singh and others to his house and from
there got recovered bangles Ex. 3 by digging out the floor. The pair of bangles too were
made into a sealed parcel.
7 . On August 5, 1969, at about 5.00 p.m. Mahadeo and Rahim Beg accused were
examined in district jail hospital Rai Bareli by Dr. R.N. Katiyar Mahadeo accused was
found to have six contusions on his person. Two of these injuries were found on X-ray
to be grievous as they had resulted in the fracture of radius bone. Rahim Beg had one
abrasion on the front side of his left knee. All injuries of Mahadeo accused were 1/ 1/2
day old, while that of Rahim Beg 2/1/2 days old. The doctor also examined the male
organs of the two accused but did not find any injury or other appearance of rape on
the male organs. The dhoti and bush shirt which Mahadeo accused was wearing were
taken by the doctor into possession. The langot of Rahim Beg accused too was taken
into possession. These clothes were made into sealed parcels and were sent to the
police.
8 . The sealed parcels containing the langot of Rahim Beg, the dhoti and bush shirt of
Mahadeo as well as the dhoti of Kesh Kali deceased were sent to the Chemical Examiner
as well as to the Scrologist. Their reports showed that the Langot of Rahim Beg as well
as the dhoti of Kesh Kali deceased were stained with human semen. Human blood was
found on the bush shirt of Mahadeo and the clothes of Kesh Kali deceased.
9 . At the trial the plea of Rahim Beg accused was denial simpliciter. He, however,
admitted that his langot had been taken into possession, but he did not know that the
same was stained with semen. According to Rahim Beg, he was falsely involved in this
case Because prosecution witnesses as well as the Sub Inspector were inimical to him.
He also gave details to show that the witnesses were inimical to him. Rahim Beg added
that; he had gone to the police station at about 10 a.m. on the day of occurrence as the
pay of chowkidars was to be disbursed on that day. He was given a beating and
detained at the police station.
1 0 . Mahadeo, like Rahim Beg, denied all the prosecution allegations against him.
Mahadeo also denied that his dhoti and bush shirt had been taken into possession. No
question was put to Mahadeo that his bush shirt was stained with human blood.
According to Mahadeo, he had gone to the police station with Ramjas when the Sub-
Inspector ordered both of them to sit there. Mahadeo was given a beating by the Sub-
Inspector, as a result of which he received various injuries. In defence, the accused
examined one witness, Dr. R.H. Katiyar, regarding the injuries on their persons.
11. Learned Additional Sessions Judge held that the two accused had raped Kesh Kali
after having thrust a part of her dhoti in her mouth and had strangulated her so that she
could not narrate the occurrence to any one. It was further held that the two accused
had removed the three silver ornaments which were on the person of Kesh Kali.
12. The learned Judges of the High Court in maintaining the conviction of the accused
relied upon the evidence of Ghazi PW that he had seen the two accused following Kesh
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Kali deceased on the day of occurrence. Reliance was further placed upon the evidence
of Mohd. Nasim Khan PW that the two accused had made an extra judicial confession
before the witness. The third circumstance relied upon by the High Court was the
recovery of ornaments belonging to the deceased from the houses of the accused in
pursuance of the disclosure statements. Lastly, reliance was placed upon the fact that
the Langot of Rahim Beg had stain of human semen and the bush shirt of Mahadeo
accused was stained with human blood. It was held on the basis of the above evidence
that the two accused had committed rape upon Kesh Kali deceased and had thereafter
strangulated her to death in order to hide their detection. The accused were further
found guilty of removing the silver ornaments of the deceased.
13. Mr. Varshanya has argued on behalf of the accused in appeal that they have been
falsely involved in this case. As against that, Mr. Bana on behalf of the State has
canvassed for the correctness of the view taken by the High Court.
14. It cannot be disputed that Kesh Kali deceased, who was aged 12 or 13 years, was
the victim of a most heinous crime inasmuch as she was raped and thereafter
strangulated to death. Dr. Verma, who performed post mortem examination on the body
of Kesh Kali, found contusions on both sides of her face, neck, chest and the aims.
Abrasions were also found on both her legs as well as on the neck. There was 1/2 long
vertical bear which started from the lower portion of the junction of labia majora.
Clotted blood was present on the margin while blood was found in the vagina. Hymen
and Vagina were found to be torn. Subcutaneous tissue of the next portion was
congested. Brain and membranes too were congested. Likewise, there was congestion in
the Larynx and the lungs. Hyoid bone was fractured. Frothy blood mucus was found in
the lungs. Death, in the opinion of the doctor, was due to asphyxia as a result of
pressing the neck and the blockade in the passage of the mouth. The vaginal injuries,
the doctor added, were the result of rape.
15. According to the prosecution case, it were the two accused who had committed
rape upon Kesh Kali and thereafter strangulated her to death and removed her
ornaments. We have been taken through the evidence on record, and are of the opinion
that there are a number of circumstances which create considerable doubt regarding the
guilt of the accused. This Court does not normally reappraise evidence in an appeal
under Article 136 of the Constitution. That fact would, not, however, prevent
interference with an order of conviction resulting in death sentence to two persons if an
consideration of the vital prosecution evidence in the case this Court finds it to be
afflicted with ex facie infirmities and both the trial court and the High Court are found to
have failed to attach due importance to those infirmities.
16. The first piece of evidence relied upon by the prosecution regarding complicity of
the two accused is the evidence of Parmeshwar Dayal (P.W. 6) according to whom
Rahim Beg offered Andarsa to Kesh Kali at about 8 or 9 a.m. on the morning of the day
of occurrence after purchasing that Andarsa from the shop of the witness. Kesli Kali,
however, declined to take that Andarsa from Rahim Beg and proceeded towards her
house. The witness added that two or four minutes after Kesh Kali had gone towards
her house, Rahim Beg and Mahadeo accused, who too was with Rahim Beg, went in the
direction to which Kesh Kali had gone. Parmeshwar Dayal admits that when Ramjas was
making search for Kesh Kali, he told him (Rarajas) about the above incident regarding
the offer of Andarsa to Kesh Kali and about the two accused having followed her.
Ramjas made no mention in the first information report about his having been told
anything by Parmeshwar Dayal. There is, indeed, no reference to all to Parmeshwar
Dayal in the first information report. Had something relating to Kesh Kali transpired in
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the presence of Parmeshwar Dayal on the morning of the day of occurrence and had
Parmeshwar Dayal mentioned about it to Ramjas, the same fact must have found a
prominent mention in the first information report. The fact that there was no reference
to Parmeshwar Dayal in the first information report shows that not. much weight can be
attached to the evidence of Parmeshwar Dayal. Parmeshwar Dayal, indeed, is given a lie
by Ramjas P.W., whose evidence shows that excepting Ghazi, none else had told him
about his having seen Rahim Beg and Mahadeo accused following Kesh Kali. In the face
of the aforesaid circumstances, no reliance can be placed on the testimony of
Parmeshwar Dayal,
17. The next piece of evidence relied upon by the prosecution is the evidence of Ghazi
(P.W. 2), who has deposed that when he was working in the field on the day of
occurrence at about 9 am he saw Kesh Kali going on the chak road being followed by
the two accused. Ghazi P.W. admits that the Hub Lal was present with him at that time.
Hub Lal, however, has not been examined as a witness to corroborate Ghazi. Apart from
that we find that the previous statement of Ghazi, with which he was confronted, shows
that when he saw the two accused, they were going on the regular path towards the
village abadi. The two accused are residents of the village and if after Kesh Kali had
gone towards the village abadi by the regular path, no sinister significance can be
attached to that fact.
18. We may now deal with the evidence regarding the extra judicial confession of the
two accused to Mohd. Nasim Khan (P.W. 4) and the recovery of ornaments belonging to
the deceased from the two accused. It is primarily upon these two pieces of prosecution
evidence that the conviction of the accused has been based. So far as the confession of
Mohd. Nasim Khan is concerned, we find that, according to the said witness, the two
accused came to him at his house in Sakunpur on August 4, 1969 and told him about
their having raped and killed the daughter of Ramjas by strangulating her as well as
regarding the removal of her ornaments. Mohd. Nasim Khan belongs to another village.
There was no history of previous association between the witness and the two accused
as may justify the inference that the accused could repose confidence in him. In the
circumstances, it seems highly improbable that the two accused would go to Mohd.
Nasim Khan and blurt out a confession. It is also not clear as to why the two accused
should try to run away on seeing the police party coming with Mohd. Nasim Khan if
Mohd. Nasim Khan had gone to the police at the request of the accused. According to
Mohd. Nasim Khan, Gur Sewak P.W. was with the police Sub-Inspector when the Sub-
Inspector came with Mohd. Nasim Khan to his house and apprehended the accused. The
evidence of Ramjas P.W., however, shows that Gur Sewak P.W. went with Ramjas to the
mortuary on the night between 3rd and 4th August 1969 and that on August 4, 1969
Gur Sewak remained with Ramjas throughout the day at Rae Bareli. It was on August 5,
1969 that, according to Ramjas, he and Gur Sewak returned to their village after
throwing the dead body of Kesh Kali in Sain river. It would thus appear that Ramjas
P.W. who, being the father of the deceased, had no particular reason to damage the
prosecution case and to support the accused has contradicted Mohd. Nasim Khan on the
point that Gur Sewak P.W. was with the police Sub-Inspector on August 4, 1969. The
fact that Mohd. Nasim Khan had deposed regarding the presence of Gur Sewak with the
police Sub-Inspector with a view to support the prosecution case even though,
according to Ramjas PW, Gur Sewak was not with the police Sub-Inspector shows that
Mohd. Nasim Khan has scant regard for truth. The evidence of extra judicial confession
is a weak piece of evidence. The evidence in this respect adduced by the prosecution in
the present case is not only of a frail nature, it is lacking in probability and does not
inspire confidence.

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19. The alleged recovery of ornaments belonging to the deceased from the two accused
in pursuance of their disclosure statements consists of the testimony of Gur Sewak
(P.W. 33) & Sub Inspector Sripal Singh (P.W. 15). According to these two witnesses,
the two accused on August 4, 1969 disclosed after being apprehended at the house of
Mohd. Nasim Khan that they had kept ornaments at their houses and that they could get
the same recovered. Mahadeo accused thereafter got recovered Sutya Ex. 1 and Tarya
Ex. 2, while Rahim Beg accused got recovered pair of bangles Ex. 3 from their
respective houses As already stated above, the evidence of Ramjas PW shows that Gur
Sewak PW went with Ramjas on the night between August 3 and 4, 1969 when the latter
took the dead body to the mortuary at Rae Bareli. It is further in the testimony of
Ramjas that on August 4, 1969 Gur Sewak remained throughout the day with Ramjas at
Rae Bareli and that he and Gur Sewak returned to their village only on August 5, 1669.
If Gur Sewak remained throughout the day on August 4, 1969 with Ramjas at Rae
Bareli, the prosecution evidence regarding the recovery of ornaments from the two
accused in pursuance of their statements in the presence of Gur Sewak can obviously be
not accepted. Learned Additional Sessions Judge while dealing with the above testimony
of Ramjas observed that no clear cut statement had been obtained from Ramjas that Gur
Sewak also started from village Amawan along with the dead body and that the
statement in question of Ramjas was obtained in a some what deceptive manner. In this
connection we find that the statement of Ramjas on this point reads as under :
I started with the dead body at 4 a.m. I had started with the dead body in the
night. I have no exact idea about the time of that departure. I cannot tell
exactly if on that day I started with the dead body at 10 or 10.30 p.m. or in the
morning. Gur Sewak, Sant Prasad of my village and my brother Ramphali had
also gone with the dead body. Cart driver Ram Asrey who is also of my village
was with me. I have no idea if Chhedi and Ram Sewak of my village had also
gone with the dead body. We people reached Sadar Hospital Rae Bareli next
day at 7-8 a.m. I got the dead body after the post mortem at 6 p m. All of us
who had gone with the dead body after throwing the dead body in the Sain
river came to Krishnapur at about 8-9 p.m. There we stayed for the whole night
and there from we started next day in the morning for our village. We reached
our village at about 10 a.m. Krishnapur is at a distance of 2 miles towards West
from the Bareli. All the persons had come by bullock cart and also returned by
the same. Gur Sewak is a Murai and he is the son of Gajodhar. Gur Sewak is
my brother by village relationship. Gur Sewak remained present throughout
since his coming with the dead body and up to the return. In my village there is
no other Gur Sewak s/o Gajodhar Murai.
There is no equivocation in the above statement of Ramjas. It is clear there from that
Gur Sewak P.W. was one of those who accompanied Ramjas when the latter took the
dead body to the mortuary. No note regarding any deception practised upon Ramjas
during the recording of his testimony was made by the trial judge, and it is not clear as
to how Ramjas could make the above statement as a result of deception.
20. The learned Judges of the High Court while dealing with the above statement of
Ramjas observed that he had a lapse of memory. As mentioned earlier, the statement of
Ramjas regarding Gur Sewak being present with him throughout on Aug 4, 1969 in Rae
Bareli is unequivocal and free from ambiguity, and we find it difficult to believe that
Ramjas suffered from a lapse of memory in making that statement. Gur Sewak admits
that he went to the mortuary on August 4, 1969, but, according to him, he went there
on cycle at 3 p.m. and arrived at the mortuary at 4 30 p.m. This part of the statement of
Gur Sewak appears to have been made with a view to explain his presence at the
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mortuary. The surrounding circumstances of the case, however, make it most unlikely
that Gur Sewak would go to the mortuary at 3 p.m. The dead body of the deceased
arrived at the Rae Bareli mortuary at about 6 or 7 a.m. on August 4, 1969. Post mortem
examination, which generally takes place soon after the arrival of the dead body at the
mortuary, should normally have been performed on the morning of August 4, 1969 and,
as such, there could be no purpose for Gur Sewak to arrive at the mortuary at about
4.35 p.m. Gur Sewak while being present in the village could not anticipate that post
mortem examination of the dead body of the deceased would not be performed till 4
p.m. on August 4, 1969.
21. It has been argued by Mr. Rana on behalf of the State that the evidence of recovery
of ornaments from the accused is supported not only by the evidence of Gur Sewak but
also by that of Sub Inspector Sripal Singh. In this connection, we find that there is
inherent material on the record to show that the Sub Inspector is not a very truthful
witness. According to the Sub Inspector, he went with Ramjas after the registration of
the case from the police station on cycle. The Sub Inspector had denied that he had
gone to the spot by car. As against that, Ramj is PW has deposed that after he lodged
report as the police station, the Sub Inspector went to the spot by car, while Ramjas
returned to the spot by cycle. Ramjas had added that when he reached the spot, the Sub
Inspector was already present there as the Sub Inspector had arrived there one or two
hours earlier. It is difficult to believe that Ramjas had a lapse of memory on this point
also. In the case of the above statement of Ramjas, the evidence of Sub Inspector Sripal
Singh that both he and Ramjas went together on Cycles from the police station to the
spot and that they arrived there together cannot be accepted. The fact that the Sub
Inspector has deviated from truth even on a minor point would show that implicit
reliance cannot be placed upon his testimony. Apart from the above, we are of the
opinion that if the Sub Inspector could show Gur Sewak as a witness of recovery of the
ornaments on August 4, 1969 even though Gur Sewak could not actually witness the
recovery of the said ornaments on that day, this fact would vitiate the entire prosecution
evidence regarding the recovery of ornaments.
22. It is in the testimony of Dr. R.N. Katiyar that when Mahadeo accused was examined
by the witness on August 5, 1969 the said accused was found to have six injuries, out
of which two were grievous. It is in the prosecution evidence itself that the above
injuries were caused to Mahadeo by the police. According, however, to the prosecution
the above injuries were inflicted when Mahadeo accused tried to run away, As
mentioned earlier, it does not appear to be likely that the accused would try to run away
on seeing the police party if the police party had arrived at the house of Mohd. Nasim
Khan P.W. after that witness had been sent to the police by the accused themselves as
alleged by the prosecution. In any case, even if the accused had tried to run away, it is
not clear as to how it was necessary to cause as many as six injuries, out of which two
were grievous with a view to apprehend Mahadeo. The injuries inflicted on the persons
of the accused, in our opinion, land support to the contention advanced on behalf of the
accused appellants that there was resort to third degree methods by the police during
the investigation of the case.
23. Ghazi PW has deposed that he did not take notice of the ornaments of Kesh Kali
when he saw her going towards the village abadi on the morning of the day of
occurrence. Kesh Kali, according to the prosecution case, was returning to her house
from the quarter of Smt. Om Sri (PW 17) when the present occurrence took place. No
question was put to Om Sri as to whether Kesh Kali was on the morning of the day of
occurrence wearing the ornaments in question. The mother of Kesh Kali has also not
been examined as a witness. Birpal, who was the first to see the dead body of Kesh Kali
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and who would have been in the best position to state as to whether there were
ornaments on her body or not at the time the body was first detected, has not been
examined as a witness. The statement of Birpal was not even recorded during the
investigation. According to Sub Inspector Sripal Singh, the statement of Birpal could not
be recorded by mistake. If it was the prosecution case that Kesh Kali was wearing silver
ornaments when she left the quarter of Smt. Om Sri on the morning of the day of
occurrence and that those ornaments were found to be missing when her dead body
was detected by Birpal, it was, in our opinion, necessary to have the statement of Smt.
Om Sri in this respect as well as to examine Birpal PW. The failure of the prosecution to
do so introduces an infirmity in the prosecution case.
24. Mr. Rana has pointed out that an entry was made in the station diary of Police
station Maharajganj in accordance with regulation 295 of U.P. Police Regulations
regarding the receipt on August 4, 1969 during the investigation of this case of the
sealed parcels containing ornaments at the police station. This circumstance, in our
opinion, does not in any way connect the accused with the commission of the crime,
nor does it show that those ornaments were recovered from the houses of the accused
in pursuance of their disclosure statements.
25. We may now advert to the stains of human blood on the bush shirt of Mahadeo and
the stain of semen on the Langot of Rahim Beg. So far as the blood stains on the bush
shirt of Mahadeo are concerned, it may be stated that no question was put to Mahadeo
during the course of his statement under Section 342 of the CrPC that his bush shirt was
stained with blood. Mahadeo not having been asked to furnish an explanation regarding
the stain of human blood on his bush shirt, no inference can be drawn against Mahadeo
on that account. As regards the stain of semen on the Langot of Rahim Beg, we find that
Rahim Beg is a young man of 22. The Langot in question was dirty at the time it was
taken into possession. It cannot be said as to how old was the semen stain on the
Langot. The semen stain on the Langot of a young man can exist because of a variety of
reasons and would not necessarily connect him with the offence of rape.
26. According to Dr. Katiyar, Medical Officer of District Jail Rae Bareli, if a girl of 10 or
12 years who is virgin and whose hymen is intact is subjected to rape by a fully
developed man, there are likely to be injuries on the male organ of the man. No injury
was, however, detected by the doctor on the male organ of any of the two accused. The
absence of such injuries on the male organs of the accused would thus point to their
innocence. The examination of the two accused by Dr. Katiyar was on August 5, 1969.
The two accused, however, had been arrested, according to the prosecution, on the
morning of August 4, 1969. No cogent explanation has been furnished as to why they
were not seen thereafter got medically examined by the police.
27. Rahim Beg accused is a bachelor, while Mahadeo accused, as mentioned earlier, is
a married man with wife and children. It does not seem very likely that the two accused
would join together at a morning hour to commit a crime of most depraved nature by
committing rape on the minor daughter of one of their Go-villagers and thereafter
strangulating her to death. It also does not appear likely that they would take the
ornaments of the deceased which would have furnished proof of their guilt to their
houses. The greater likelihood appears to be that this depraved crime was the act of one
individual.
28. Looking to all the circumstances, we are of the opinion that there are a number of
circumstances which create considerable doubt regarding the complicity of the accused.
The two accused must necessarily have the benefit thereof. We accordingly accept the

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appeal, set aside their conviction and acquit them.
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 MANU/SC/0097/1985
Equivalent/Neutral Citation: AIR1985SC 766, 1985 (22) AC C 75, 1985C riLJ530, 1985(1)C rimes336(SC ), 1985 INSC 5, 1985(1)RC R(C riminal)594,
1985(1)SC ALE27, (1985)1SC C 464, [1985]2SC R573

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 575 of 1976
Decided On: 17.01.1985
Ramesh Chand Vs. State of Uttar Pradesh
Hon'ble Judges/Coram:
Ranganath Misra, V.D. Tulzapurkar and V. Khalid, JJ.
Case Note:
Criminal - Murder - Sections 34 and 302 of Indian Penal Code, 1860 - Appeal
against conviction for offence under Section 302/34 - Appellant along with
two others killed X by stabbing him with knife - Appellant was caught red
handed with knife stained with blood - Two witnesses made contradictory
statements in respect of evidence of giving knife blow to the deceased - In
view of contradictory statements of two witnesses case proceeded on basis of
circumstantial evidence - Chain of circumstantial evidence not so complete so
as to conclusively point the guilt of appellant - The evidence of appellant
holding knife at the time of apprehension raises doubt about prosecution case
- Accused could have already left the place when police arrived flashing torch
and thus it raises doubt about the evidence of two witnesses - Apex Court
does not enter into re-appreciation of evidence but when conviction appears
to be not justified in law nothing stands in way in directing reversal of
conviction - Held, conviction of appellant liable to be set aside - Appeal
allowed.
JUDGMENT
Ranganath Misra, J.
1. This appeal is by special leave and is directed against the decision of the Allahabad
High Court affirming the appellant's conviction under Section 302 read with Section 34
of the Indian Penal Code and sentence of imprisonment of life for that offence.
Prosecution alleged that between 10 and 10.15 P.M. in the night of January 2, 1970, a
little distance away from the Hindon Bridge towards Ghaziabad on the G.T. Road, the
appellant along with two others killed one Om Prakash by stabbing him with a knife. Six
eye witnesses were examined to support this charge. Of them, one was the Havildar Mir
Singh (PW. 4) and the other was a police Constable Gyan Singh (PW. 6). These two
witnesses along with one Jagdish Singh were on guard duty at the Hindon Bridge. They
were informed by some passersby that a man was being stabbed at a distance of about
two furlongs from the place where the guard room was located. On getting the
information the three police personnel ran to the spot. With the help of the torchlight
which one of them held, they saw from a distance that three persons were engaged in
stabbing the deceased but when the torch was focussed, the assailants started
decamping. They were chased. Two of them managed to escape but the appellant was
caught with the knife stained with blood. The other two were not traced. The four other
eye witnesses did not support the prosecution story and were declared hostile.

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2. The appellant in his defence took the stand that he was the driver of the taxi in which
three persons came as passengers. Soon after the bridge had been crossed, the
passengers started quarrelling among themselves. That diverted the attention of the
appellant and resulted in a cyclist being dashed against. When the car came to a
standstill the three people who were quarrelling among themselves got down and two of
them started assaulting the deceased with a knife after going a little away from the
road. The appellant went there to rescue the deceased. In that process his wearing
apparel got blood soaked. After fatally assaulting the deceased the assailants ran away
when some people started collecting there. He denied the recovery of the blood stained
knife from him. Four of the hostile witnesses supported the defence plea that the
appellant had been attempting to rescue the deceased and had not himself given any
assault. The trial Court held that the hostile witnesses were not speaking the truth; it
relied upon the two police witnesses, accepted the prosecution version that the blood
stained knife had been recovered from the appellant and drew support for the charge
from the blood stained wearing apparel to hold that it was he who had stabbed the
deceased to death along with two other unknown people. Accordingly he was convicted
under Section 302/34, IPC, and sentenced to imprisonment for life.
3 . The appellant appealed to the High Court against his conviction. Of the two police
witnesses, one had denied seeing the appellant giving any knife blow while the other
had made a firm statement that he did static act of giving the knife blow. The High
Court accepted the appellant's contention that neither had seen actual infliction of knife
blow by the appellant. Once the evidence in regard to the infliction of the blows was
discarded, the High Court proceeded to examine the circumstantial evidence to ascertain
whether the charge can be said to have been established. These circumstances as
indicated by the High Court are : (i) an attempt by the appellant to escape and his
arrest after a chase; (ii) he being found lobe in possession of the blood stained knife;
(iii) his cloths having become blood stained; (iv) if the defence version was true,
namely, that the appellant was trying to rescue the deceased, he would have received
injuries in the scuffle; and (v) if the appellant had really tried to intervene in the way he
claims, he being a well built man could have saved the life of the deceased.
4 . Law is well settled that the chain of circumstances must be complete and must
clearly point to the guilt of the accused. The circumstances indicated here, in our
opinion, do not really complete the chain so as to lead to the conclusion that the
appellant and no other could have been the assailant. Broad perspectives have to be
kept in view. The appellant was admittedly the driver of the taxi in which the others
were the passengers. From the recoveries made, it appears that two liquor bottles have
been found from the car-one from the back seat where the three passengers were
seated and the other from the front portion. There is no justification to discard the
evidence of PW. 2, the cyclist who was injured by the appellant's car.
5 . Admittedly, the incident occurred at a place which was not lighted. There is no
evidence as to whether apart from the torchlight which the police witnesses focussed, if
any other light was available. Once the car stopped and the lights of the car were no
more available to help seeing things around, a confusion must have prevailed when the
assault started. We agree with the trial Court as also the High Court that the two police
witnesses were present at the spot and in the manner indicated by them. The evidence
regarding the directions to which the three persons ran away is discrepant. While some
said that they ran away to counter directions-two to one side and the one to the other,
the appellant appears to have been apprehended from the side direction. Chase by itself
does not seem to be an important feature particularly when the total distance for which
chase is said to have been made was about 22-25 feet. It is conceivable, as Mr. Mulla
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for the appellant has argued, that he had not moved but the police witnesses ran to
reach him because they were anxious to catch hold of any one from the group who was
available. The appellant's stand had been that he volunteered to rescue the deceased. In
that process his wearing apparel being soaked with human blood is a sufficient
explanation. The allegation that the knife was seized from him has been stoutly denied.
The evidence also seems not to be very clear. It is some what unnatural that the
appellant should be holding the knife when he was caught and would continue to carry
the knife till he reached the police station quite a distance away. When he was about to
be apprehended in the dark night, he could have thrown away the knife if he had been
holding it or he could have refused to carry the knife to the police station in case he had
really been found to be with the knife when he was arrested. The evidence regarding
the appellant holding the knife at that point of time is not impressive and does not
arouse confidence in our mind, as it is against human conduct and no one would keep
holding such an incriminating material as a blood stained knife. The other two
circumstances which are indeed negative in the setting are innocuous. Merely because
the appellant, a young man of about 23 at the time of occurrence, was of stout built
was not a sufficient circumstance to give him the confidence to match against two of
whom one had an open knife in hand. The fact that no injuries have been sustained by
him while trying to rescue the deceased by itself is not an implicating circumstance
because the assailants having no reason to injure him may have not assaulted him. By
sheer chance as well the appellant may have escaped injuries. The two assailants may
be looking for a further ride in the taxi to reach their destination and if the driver was
injured that would not have been possible. These circumstances on which the High
Court has relied, therefore, are really not available to be props for the prosecution case.
6 . There are certain other features which were placed by Mr. Mulla in support of the
appeal which may be noticed in brief. The distance from the spot to the guard room is
said to be 420 places which easily works out to a furlong's distance. If the informants of
the police had noticed the assault and then proceeded to give information to the police,
the time lag between their seeing the assault and the police people leaching the spot
would at least be 15 to 20 minutes. The assailants would have been anxious to commit
the crime and get away from the spot. It is true that as many as 18 (not 16 as stated by
the High Court) injuries have been found during post-mortem examination of the dead
body. But for inflicting 18 injuries by two assailants armed with knife it need not have
taken that length of time. Again, when the police people were coming from Hindon
Bridge side they must have already been flashing their torch from a distance and when
the assailants would have noticed that light in the midst of darkness they must have
been already alerted. If they were to escape before the police people came close they
must have left the place. The presence of the liquor bottles as Mr. Mulla has
emphasised, can have some place of importance in assessing the evidence. We,
however, do not think it is necessary to enter into the field of conjecture over the
bottles of liquor. We are of the view that the prosecution has failed to establish the
charge.
7. It is pertinent to take note of the submission made by Mr. Dalveer Bhandari for the
respondent before we conclude the judgment. He contended that this Court does not, in
exercise of its jurisdiction under Article 136 of the Constitution, enter into a re-
appreciation of the evidence and, therefore, the facts found should not be interfered
with. It is well established that the powers of this Court under Article 136 of the
Constitution are plenary and restrictions in the exercise, if any, are self-imposed. We
agree with Mr. Bhandari that ordinarily this Court does not enter into re-appreciation of
evidence but where evidence is placed and the conviction appears to the Court to be not
justified in law, nothing stands in the way in directing reversal of conviction.
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8 . We allow the appeal, set aside the conviction of the appellant and direct his
acquittal. He is already on bail. We, therefore, direct cancellation of his bail bonds.
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 (2011] 1 S.C.R. 829

RAMESHBHAI CHANDUBHAI RATHOD A

v.
THE STATE OF GUJARAT
(Criminal Appeal No. 575 of 2007)
JANUARY 24, 2011
B
[HARJIT SINGH BEDI, P. SATHASIVAM AND
CHANDRAMAULI KR. PRASAD, .JJ.]

Sentence/Sentencing: Death sentence or life

imprisonment - In case of rape and murder of young girl of C
tender age - Difference of opinion between Judges on
sentencing part - Pasayat, J. observed that the case fell within
the category of the rarest of rare cases as the deceased was
a helpless child of_Jender age and the appellant, being a
watchman in the building in which she was residing was in a D
position of trust, and as the murder and rape was particularly
brutal, the death sentence was the only adequate one -
Ganguli, J. differed on this aspect and held that a sentence
of life imprisonment was proper one in the light of mitigating
circumstance particularly the young age of the appellant and E
the possibility that he could be rehabilitated and would not c
commit any offence later on - Held: There is a very thin line
on facts which separates the award of a capital sentence from
a life sentence in the case of rape and murder of a young
child by a young man - The broad principle is that the death F
sentence is to be awarded only in exceptional cases - The
appellant was a young man, only 27 years of age, it was
obligatory on the trial court to have given a finding as to a
possible rehabilitation and reformation and the possibility that
he could still become a useful member of society in case he G
was given a chance to do so - In the light of the findings
1 recorded by Ganguli, J., it would not be proper to maintain the
death sentence on the appellant - At the same time, the
gravity of the offence, the behaviour of the appellant and the
. I

829 H
168
 830 SUPREME COURT REPORTS [2011] 1 S.C.R.

A fear and concern such incidents generate in ordered society,

cannot be ignored - The death sentence awarded is
commuted to life which must extend to the full life of the > •
appellant subject to any remission or i;ommutation at the
instance of the Government for good and sufficient reasons
B - Crime against women - Penal Code, 1860 - s. 302 - Code
of Criminal Procedure, 1973 - s.235 r.w. s.354, s.433-A.

The trial court convicted the accused-appellant for

raping and murdering a girl of tender age. The High
C Court upheld the conviction order. The judgment of the
High Court was challenged by the appellant in the
Supreme Court and after the grant of special leave, the
matter was heard by Division Bench. The Bench
delivered two judgments on 25th February 2009. The two
Hon'ble Judges were of the unanimous opinion that the
D conviction of the appellant was to be maintained,
however, a difference of opinion arose on the sentencing
part. Pasayat, J. observed that the case fell within the
category of the rarest of rare cases as the deceased was
a helpless child of tender age and the appellant, being a
E watchman in the bll!_lding in which she was residing with
her parents, was in a position of trust, and as the murder
and rape was particularly brutal, the death sentence was
the only adequate one. Ganguli, J. however differed on
this aspect and held that as there was some uncertainty
F with the nature of the circumstantial evidence and that
mitigating circumstance particularly the young age of the
appellant and the possibility that he could be rehabilitated
and would not commit any offence later on, could not be
ruled out, and that the statutory obligation cast on the trial
G court under Section 235 (2) read with Section 354(3),
Cr.P.C. had been violated in as much that the appellant
was not given adequate opportunity to plead that the
sentence of life imprisonment was not proper.
Accordingly, the matter came up before this Court only
H on the question of sentence.
169
 RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 831
GUJARAT

Disposing oHhe appeal, the Court A

a
HELD: 1. There is very th.in line on facts which
separates the award of a capital sentence from a life
sentence in the case of rape and murder of a young child
by a young man and the subjective opinion of individual
8
Judges as to the morality, efficacy or otherwise of a death
sentence cannot entirely be ruled out. The broad principle
is that the death sentence is to be awarded only in
exceptional cases. Both Hon'ble Judges had relied
,extensively on .*Dhanonjoy Chatterjee's case. In that C
case, death sentence was awarded by the trial court on
similar facts and confirmed by the High Court and the
appeal too was' dismissed by this Court leading to the
execution of the accused. Ganguli J. had, however,
drawn a distinction on the facts of that case and the
instant one and held that as the appellant was· a young D
man, only 27 years of age, it was obligatory on .the trial
court to have given a finding as to a possible
rehabilitation and reformation and the possibility that he
could still become a· useful member of society in case he
was given a chance to do so. In the light of the findings E
recorded by Ganguli, J., it would not be proper to maintain
the death sentence on the appellant. At the same time, the
gravity of the offence, the behaviour of the appellant and
the fear and concern such incidents generate in ordered
society, cannot be ignored. A via-media ought to be F
· adopted in the light of the judgment of this Court in
**Ramraj's and ***Mu/la's case. In these two cases, this
Court had held that the term imprisonment for life which
is found in Section 302, IPC, would mean imprisonment
for the natural life of the convict subject to the powers of G
the President and the Governor under Articles 72 and 161
·of the Constitution of India or of the State Government
under Section 433-A, Cr.P.C. It was held that the Court
, should be free to determine the length of imprisonment
which would suffice the offence committed. Thus, despite H
170
 832 SUPREME COURT REPORTS (2011) 1 S.C.R.

A the nature of the crime, the mitigating circumstances can

allow the court to substitute the death penalty with life
sentence. In the instant case, the death sentence
awarded to him is commuted to life with directions that
the life sentence must extend to the full life of the
B appellant but subject to any remission or commutation
at the instance of the Government for good and sufficient
reasons. [Para 2] [835-E-H; 836-A-D-F; 837-B]

**Ramraj vs. State of Chhattisgarh (2010) 1 SCC 573;

***Mui/a & Anr. State of Uttar Pradesh (2010) 3 SCC 508 ·-
C relied on.

Bachan Singh vs. State of Punjab 1980 (2) SCC 684;

Machi Singh vs. State of Punjab 1993 (3) 470; Ohanonjoy
Chatterjee vs. State of West Bengal 1994 (2) SCC 220 -
D referred to.

2. Some observations were made by Ganguly, J. on

the omission of the trial court in dealing with the question
of sentence on the principles underlying Section 235 read
E with Section 354, Cr.P.C. The observations made were a
little broad based on the facts of the instant case and
would present insurmountable practical difficulties for a
trial court. Even otherwise, the facts indicated that the
appellant had been given enough time and opportunity
for pleading on the question of sentence. [Para 3] [837-
F 0-E]

Case Law Reference

1980 (2) sec 684 referred to Para 1
G 1993 (3) sec 470 referred to Para 1
1994 (2) sec 220 referred to Paras 1, 2
(201 o) 1 sec 573 relied on Para 2
(201 O) 3 sec 508 relied on Para 2
H 171
 . RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 833
GUJARAT
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
,, __.( No. 575 of 2007.

From the Judgment & Order dated 16.02.2006 of the High

Court of Gujarat at Ahmedabad in Confirmation Case No. 4 of
2005 with the Criminal Appeal No. 1221 of 2005. 8
Sudhir Kulshrehtha for the Appellant.
I. -· •
-{.. K. Enatoli Serna, Jesal, Hemantika Wahi for the
Respondent.
c
The Judgment of the Court was delivered by

HARJIT SINGH BEDl,J. 1. As the facts have been very

comprehensively given in the order of Pasayat, J., we will only
refer to such facts as are necessary for the disposal of the
reference which has been made to us. Suffice it to say that the D
,,. "f' accused-appellant Rameshbhai Chandubhai. Rathod, aged
about 28 years, was employed as a watchman in Sanudip
Apartments, Rander Road, Surat City. Flat No.A/2 was
·occupied by the complainant Nareshbhai Thakorebhai Patel,
his wife, a son Brijesh, aged 16 years, and the deceased, a E
daughter, a Class IV student in An.kur School. The accused-
appellant was residing with his wife Savita and two children in· ...
~- a one room tenement close by. On the 17th December 1999,
the complainant and his wife went to Udhana at about 8.00 p.m.
to attend a religious ceremony and on returning therefrom found F
that their daughter was missing. Frantic enquiries made by the
.. family, bore no result. The complainant thereupon lodged a FIR
at 2.30 a.m. on the 18th December 1999 with the Rander
Police Station to that effect. The complainant nevertheless
continued to search for the child and in due course ascertained G
"r from one Bipinbhai Bhandari, one of his friends, who told him
that his (Bhandari's) old servant Bishnubhai had told him that
he had seen the appellant taking the girl with him on his bicycle.
This information was conveyed to the police by the complainant.
H
172
 834 SUPREME COURT REPORTS [2011] 1. S.C.R.

A The police made a search for the appellant but he could not
be immediately found but was ultimately located the next day
i.e. on the 19th December 1999 by Chandravadan Patel who
spotted him sitting in an open space near the vegetable
market. The appellant made an extra judicial confession to him
B that he had raped and killed the child. The police was,
accordingly, informed and they took the appellant into custody.
The appellant also made a disclosure to the complainant as to
the place of incident and the dead body was recovered from
that place. On the completion of the investigation, the accused
c was charged for offences punishable under Sections 363,
366,376,302 and 397 of the IPC and brought to trial. The trial
court on a minute appreciation of the evidence which was
exclusively circumstantial in nature, held that the case against
the appellant had been proved beyond doubt, and accordingly
convicted him and sentenced him to death for the commission
0
of the offence punishable under section 302 and to various
terms of imprisonment for the other offences. The matter was,
thereafter, referred to the High Court and the accused also filed
an appeal challenging his conviction. The High Court confirmed
the reference and dismissed the appeal. The High Court also
E found that the case against the accused fell within the category
of the rarest of the rare cases, as envisaged in Bachan Singh
vs. State of Punjab 1980 (2) SCC 684 and Machi Singh vs.
State of Punjab 1993 (3) sec 470 as followed and clarified
in a series of other judgments subsequently, particularly, in
F Dhanonjoy Chatterjee vs. State of West Bengal 1994 (2) SCC
220 and observing that in the balance sheet of the aggravating
and mitigating circumstances, the former were pre-dominant,
confirmed the death sentence. The judgment of the High Court
was challenged by the appellant in this Court and after the grant
G of special leave, the matter was heard by a Division Bench. The
Bench delivered two judgments on the 25th February 2009 and
while the two Hon'ble Judges were of the unanimous opinion
that the conviction of the appellant was to be maintained, a
difference of opinion arose as to the sentence that was to be
H awarded with Pasayat,J. observing that the case fell within the
173
 RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 835
GUJARAT [HARJIT SINGH BEDI, J.]
category of the rarest of rare cases as the deceased was a A
......( helpless child of tender age and that the appellant, being a
watchman in the building in which she was residing with her
pare,nts, was in a position of trust, and as the1murder and rape
was particularly brutal, the death sentence was the only
adequate one. Ganguli, J. however differed on this aspect and 8
held that as there was some uncertainty with the nature of the
circumstantial evidence and that the mitigating circumstance
-... particularly the young age of the appellant and the possibility
that he could be rehabilitated and would not commit any offence
later on, could not be ruled out, and that the statutory obligation c
cast on the trial court under Section 235 (2) read with Section
354 (3) of the Cr.P.C. had been violated inasmuch that the
accused had not been given adequate opportunity to plead on
the question of sentence· and also citing a large number of
cases including those of rape and murder of young children,
D
" -...,, opined that a sentence of life imprison!}lent was the proper one.
This matter has, accordingly, been referred to us only on the
question of the sentence.

2. As already mentioned ab6ve, both Hon'ble Judges have

relied on a number of cases which are on almost identical facts E
in support of their respective points of view. We notice that
there is a very thin line on facts which separates the award of
~
a capital sentence from a life sentence in the case of rape and
murder of a young child by a young man and the subjective
opinion of individual Judges as to the morality, efficacy or F
otherwise of a death sentence cannot entirely be ruled out. It is
now well settled that as on today the broad principle is that the
death sentence is to be awarded only in exceptional cases.
Both Hon'ble Judges have relied extensively on Dhanonjoy
Chatterjee's case (supra). In this case the death sentence had G
~
been awarded by the trial court on similar facts and confirmed
by the Calcutta High Court and the appeal too dismissed by
this Court leading to the execution of the accused. Ganguli,J.
has, however, drawn a distinction on the facts of that case and
the present one and held that as the appellant was a young·
174 H
i
'
 836 SUPREME. COURT REPORTS [2011] 1 S.C.R.

A man, only 27 years of age, it was obligatory on the trial court

to have given a finding as to a possible rehabilitation and
reformation and the possibility that he could still become a
useful member of society in case he was given a chance to do
so. We are, therefore, of the opinion that in the light of the
B findings recorded by Ganguli,J. it would not be proper to
maintain the death sentence on the appellant At the same time
the gravity of the offence, the behaviour of the appellant and
the fear and concern such incidents generate in ordered
society, cannot be ignored. We, therefore, feel that a via-media
c ought to be adopted in the light of the judgment of this Court in
Ramraj vs. State of Chhattisgarh (2010) 1 SCC 573 and
Mui/a & Anr. State of Uttar Pradesh (2010) 3 SCC 508. In
these two cases, this Court has held that the term imprisonment
for life which is found in Section 302 of the IPC, would mean
imprisonment for the natural life of the convict subject to the
0
powers of the President and the Governor under Articles 72 and
161 of the Constitution of India or of the State Government under
Section 433-A of the Code of Criminal Procedure. In Mu/la's
case (supra), this Court has said :

E "We are in complete agreement with the above

dictum of this Court. It is open to the sentencing court to
prescribe the length of incarceration. This is especially true
in cases where death sentence has been replaced by life
imprisonment. The court should be free to determine the
F length of imprisonment which will suffice the offence
committed. Thus we hold that despite the nature of the
crime, the mitigating circumstances can allow us to
substitute the death penalty with life sentence.

Here we would like to note th.at the punishment of life

G
sentence in this case must extend to their full life, subject
to any remission by the Government for good reasons.

For the foregoing reasons and taking into account ,

all the aggravating and mitigating circumstances, we
H confirm the conviction, however, commute the death · 175
 RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 837
GUJARAT [HARJIT SINGH BEDI, J.]
sentence into that of life imprisonment. The appeal is A
... __..( disposed of accordingly."

In arriving at its conclusion, the Court relied on similar

observations made in the case of Ramraj (supra). We are,
therefore, of the opinion that the appellant herein ought to be B
awarded a similar sentence. We accordingly commute the
death sentence awarded to him to life but direct that the life
seAtence must extend to the full life of the appellant but subject
--J. to any remission or commutation at the instance of the
Government for good and sufficient reasons.
c
3. As already noticed above, Ganguli, J. has made some
observations on the omission of the trial court in dealing with
the question of sentence on the principles underlying Section
235 read with Section 354 of the Cr.P.C. We are of the opinion
that some of the observations made are a little broad based D
~ on the facts of the present case and would present
""' insurmountable practical difficulties for a trial court. Even
otherwise the facts indicate that the appellant had been given
enough time and opportunity for pleading on the question of
sentence. We accordingly dispose of this appeal in the above E
manner.

D.G. Appeal disposed of.

--~

176
 MANU/SC/0705/2010
Equivalent/Neutral Citation: 2010(95)AIC 199, AIR2010SC 3300, 2010(2)ALD(C ri)896, 2010 (71) AC C 367, 2010(4)BLJ231, I(2011)C C R23(SC ),
2010(4)EC rN 568, 2011(1)GLT(SC )28, 2010 INSC 613, JT2010(9)SC 470, 2010(4)RC R(C riminal)799, 2010(9)SC ALE558, (2010)10SC C 374,
[2010]11SC R493

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 342 of 2007
Decided On: 15.09.2010
Sambhu Das and Ors. Vs. State of Assam
Hon'ble Judges/Coram:
Mukundakam Sharma and H.L. Dattu, JJ.
Case Note:
Criminal - Conviction - Section 302/34 of Indian Penal Code, 1860 - High
Court had affirmed order passed by Sessions Judge and convicted Appellants
under Section 302/34 - Hence, this Appeal - Whether, High court was
justified to convicted Appellant for offence - Held, PW1 was wife of deceased
and out of her evidence cleared that she had seen her husband was tied by
means of rope and accused persons including Appellants were assaulting her
husband - Further, PW8 was Investigating Officer narrated that PW2 informed
him that deceased was traveling in his rickshaw and at that time, some
persons dragged him out of rickshaw and assaulted him by means of rod,
hunter - Though, PW2 turned hostile and their part of evidence supports case
of Prosecution - Therefore, evidences was trustworthy and reliable on basis of
evidence of PW1, which was corroborated by Postmortem report issued by
PW6 and evidence of PW8 - Hence, Court did not find any reason to upset
finding of High Court - Appeal dismissed.
Ratio Decidendi:
"If testimony of witness is proved by corroborated-evidences, then an accused
can be held liable for conviction."
JUDGMENT
H.L. Dattu, J.
1. This appeal is directed against the judgment and order passed by the Gauhati High
Court in Criminal Appeal No. 63 of 2005, dated 26.04.2006, whereby and where under,
the High Court has affirmed the order passed by the Sessions Judge, Hailakandi, in
Sessions Case No. 2 of 2002. The appellants are convicted under Section 302/34 IPC
and sentenced to imprisonment for life and to pay a fine of Rs. 10,000/- each, and in
default, to undergo further imprisonment for six months each.
2. The case of the prosecution is that, on 07.06.1997 at about 5.00 P.M. the deceased
Fanilal Das was returning home on a rickshaw driven by Manilal Das (PW2). The
deceased stopped the rickshaw near Shiva temple and after offering his prayer, he came
back to the rickshaw and at that point of time, the appellants and others assaulted the
deceased and, thereafter, forcibly took him to the house of Kunja Mohan where he was
assaulted by all the accused persons. It is their further case, that, one Upendra Das
informed the wife of the deceased about the assault on her husband by the appellants
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177
and on hearing the same, she came to the place of occurrence and saw the accused
persons assaulting the deceased, and on being informed by PW-3, police came to the
place of incident and took the injured to the hospital where he was declared dead. After
completing the investigation, the accused persons were charge-sheeted. Initially, four
accused persons were tried by the Sessions Judge, Hailkandi for commission of the
offence under Section 302/34 IPC. During the trial, four other persons were also
arrayed as accused and tried along with the appellants. All the accused persons pleaded
not guilty. During the course of the trial, the prosecution examined eight witnesses.
After completion of the trial, the appellants were examined under Section 313 Cr.P.C.,
wherein the appellants completely denied their involvement in the alleged offence. The
learned trial Judge convicted the appellants and two others for the offence under
Section 302/34 IPC and sentenced as stated earlier. This order of the Sessions Court is
confirmed by the Gauhati High Court by rejecting the criminal appeals filed by the
accused persons.
3. This appeal is filed only by Sambhu Das @ Bijoy Das (Accused No. 4) and Bibhu Das
@ Sekhar Das (Accused No. 5).
4 . While assailing the judgment and order of the High Court, it is contended by Shri
M.N. Rao, learned senior counsel, that admittedly, the Inquest Report was recorded by
the Investigating Officer at 9.30 PM and the FIR was lodged by the wife of the deceased
at 11.30 PM on 07.06.1997. Therefore, it is contended that the First Information Report
loses all authenticity if written after Inquest Report. In aid of his submission, reliance is
placed on the observation made by this Court in the case of Balaka Singh and Ors. v.
The State of Punjab MANU/SC/0087/1975 : 1975(4) SCC 511 and Ramesh Baburao
Devaskar and Ors. v. State of Maharashtra MANU/SC/8026/2007 : 2007 (13) SCC 501.
It is further contended that the High Court has failed to address itself to certain crucial
aspects of evidence and proceeded to dispose of the appeal on general observations and
more so, in a very casual and cavalier manner which is impermissible in law. Reliance is
placed on the observation made by this Court in the case of Badri v. State of Rajasthan
: 1995 Supp. (3) SCC 521; Ishvarbhai Fuljibhai Patni v. State of Gujarat
MANU/SC/0524/1995 : 1995 (1) SCC 178 and Lal Singh v. State of Madhya Pradesh
MANU/SC/0569/2003 : 2003 (9) SCC 464. It is further contended that the High Court
has erred in not appreciating the fact that the accused has put forward a reasonable
defence throughout the trial and as well as in their statement recorded under Section
313 of Criminal Procedure Code. While elaborating this contention, it is stated that prior
to the occurrence, the complainant's husband and her husband's younger brother
Chunnulal Das had got involved in the case regarding the murder of their brother Arun
Das and for that reason they have been implicated in the present case out of that
grudge. It is further submitted that in the instant case, the High Court has made
departure from the rule, that when an accused person puts forward a reasonable
defence which is likely to be true and in addition, when the same is supported by some
prosecution witnesses, the burden of proof on the other side becomes onerous, because
a reasonable and probable story likely to be true when pitted against a weak and
vacillating prosecution case and by that reasonable doubt, the accused must get the
benefit. It is further submitted that this Court, in the case of Hate Singh Bhagat Singh v.
State of Madhya Bharat MANU/SC/0073/1951 : AIR 1953 SC 468 has held that when
an accused person puts forward a reasonable defence which is likely to be true and in
addition is supported by two prosecution witnesses, then the burden on the other side
becomes all the heavier because a reasonable and probable story likely to be true when
pitted against a weak and vacillating case is bound to raise reasonable doubts of which
the accused must get the benefit. It is also contended that one important material
witness, namely, Upen Das, who is said to have informed PW1 that the accused person
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178
killed her husband has not been examined by the prosecution, nor has any explanation
for not examining him as a witness been given by the prosecution and, therefore, non-
examination of Upen Das is fatal to the prosecution story.
5. The learned Counsel for the State while justifying the impugned judgment and order,
would submit that the concurrent findings on facts by the Sessions Court and the High
Court need not be interfered by this Court.
6 . The question that requires to be noticed and answered is, whether this Court in
exercise of the powers under Article 136 of the Constitution of India, can upset the
concurrent findings of fact recorded by the Trial Court and the Appellate Court. Shri
M.N. Rao, learned senior counsel for the appellants, submits that this court can take a
different view and also come to different conclusion than the one arrived at by the Trial
and the Appellate Court, if this Court prima facie comes to the conclusion that the
findings of fact reached by the Trial Court and confirmed by the High Court suffers from
any patent error of law or has resulted in miscarriage of justice. In our view, the law on
this issue is now well settled by several pronouncements made by this Court.
7 . In Dhananjay Shanker Shetty v. State of Maharashtra MANU/SC/0620/2002 :
(2002) 6 SCC 596 it is stated that:
Ordinarily, after appraisal of evidence by the two courts below and recording concurrent
verdict of conviction, this Court does not interfere with the same, but where it is found
that compelling grounds exist and there would be failure of justice, a duty is enjoined
upon it to reappraise the evidence itself for doing complete justice in the case.
8. In Ravinder Parkash and Anr. v. State of Haryana MANU/SC/0861/2002 : (2002) 8
SCC 426 it is observed:
...It is true normally this Court would not substitute its subjective opinion of
the evidence with that of concurrent findings of the two courts below. However,
having considered the findings of the courts below, we have noticed that the
trial court, though by a lengthy judgment has found the appellants guilty, we
have found that finding is not supported by the material on record. Therefore,
we have considered the prosecution evidence independently and have disagreed
with the same for reasons mentioned in this judgment. We have not done this
by merely substituting our subjective satisfaction but we have done the same
for reasons based on material on record.... (Para 14)
)
9. In Bharat v. State of Madhya Pradesh MANU/SC/0074/2003 : (2003) 3 SCC 106 it is
observed that:
...The prosecution has to prove its case against the appellant beyond
reasonable doubt. The chain of circumstances, in our opinion, is not complete
so as to sustain the conviction of the appellant. There is thus no substance in
the contention urged on behalf of the State that this Court may not interfere in
the concurrent findings of fact of the courts below.
(Para 12 )
10. In Mousam Singha Roy and Ors. v. State of West Bengal MANU/SC/0605/2003 :
(2003) 12 SCC 377 it is stated:

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179
 We are also aware that this Court does not disturb the concurrent findings of
the courts below if the same are based on legal evidence merely because
another view is possible. Thus, keeping in mind the caution expressed by Baron
Alderson (supra) as also the need to respect the concurrent findings of the two
courts below, we have assessed the evidence in this case very carefully, but in
spite of the same we are unable to concur with the findings of the courts below.
In our opinion, both the courts below have departed from the rule of prudence
while appreciating the evidence led by the prosecution.
(Para 29 )
11. In Ganga Kumar Srivastava v. State of Bihar MANU/SC/0420/2005 : (2005) 6 SCC
211 it is observed:
From the aforesaid series of decisions of this Court on the exercise of power of
the Supreme Court under Article 136 of the Constitution following principles
emerge:
(i) The powers of this Court under Article 136 of the Constitution are
very wide but in criminal appeals this Court does not interfere with the
concurrent findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given
by the High Court, if the High Court has acted perversely or otherwise
improperly.
(iii) It is open to this Court to invoke the power under Article 136 only
in very exceptional circumstances as and when a question of law of
general public importance arises or a decision shocks the conscience of
the Court.
(iv) When the evidence adduced by the prosecution fell short of the test
of reliability and acceptability and as such it is highly unsafe to act
upon it.
(v) Where the appreciation of evidence and finding is vitiated by any
error of law of procedure or found contrary to the principles of natural
justice, errors of record and misreading of the evidence, or where the
conclusions of the High Court are manifestly perverse and
unsupportable from the evidence on record.
(Para 10)
12. This Court, in exercise of its powers under Article 136 of the Constitution, will not
re-open the findings of the High Court when there are concurrent findings of facts and
there is no question of law involved and the conclusion is not perverse. Article 136 of
the Constitution, does not confer a right of appeal on a party. It only confers a
discretionary power on the Supreme Court to be exercised sparingly to interfere in
suitable cases where grave miscarriage of justice has resulted from illegality or
misapprehension or mistake in reading evidence or from ignoring, excluding or illegally
admitting material evidence. See Basudev Hazra v. Matiar Rahaman Mandal
MANU/SC/0552/1971 : AIR 1971 SC 722.
13. Keeping in view the aforesaid settled legal principles, we now proceed to examine
the main contention canvassed by learned senior counsel Shri M.N. Rao, appearing for
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180
the appellant. It is submitted that in the instant case, the investigating officer (PW8)\1,
has recorded/prepared the inquest report on 7.6.1997 at 9.30 PM and at the instance of
PW1, the first information report was recorded by PW8 on 7.6.1997 at 11.30 PM under
Sections 147, 148, 149, 341, 342, 325, 326 and 302 of IPC against four persons and,
therefore, it is contended that since FIR is lodged after inquest was held, the FIR is not
reliable. Alternatively, it is contended that in a case under Section 302 read with Section
32 IPC, First Information Report cannot be lodged after the inquest has been held.
Reliance, as we have already stated, is on the decision of this Court in Balkasingh's case
(supra) and in Ramesh Babu Rao Devaskar's case (supra).
1 4 . In Balaka Singh's case, it was observed by this Court, that the names of four
accused out of nine were missing in the body of the Inquest Report and this omission
was not explained and, therefore, it lead to the probability that FIR must have been
prepared after the preparation of Inquest Report. That was a case where there were nine
accused persons and the names of five accused were mentioned in the Inquest Report.
The A.S.I. had no valid explanation for the same. It was also found by the Court that
FIR was registered subsequently. Therefore, the observation of this Court is to be
understood in that background. We do not think that this decision lays down that under
all circumstances, the First Information Report loses its authenticity, if it is filed after
Inquest Report.
15. In Ramesh Babu Rao Devaskar's case, First Information Report was lodged after
inquest was held and the same was based on the version of alleged eye witness. This
Court was of the view that there was no explanation why FIR was not lodged by eye
witness and also noticed that the name of only one accused was mentioned in the FIR.
However, in the Inquest Report statements of Panch witnesses recorded to the effect
that some unknown assailants killed the deceased. Apart from the above omission, copy
of the FIR was sent to the concerned Magistrate after four days, sharing of common
object by other accused persons with the accused who was named in the FIR was not
made out and one of the PWs turned hostile and testimony of other two PWs was not
reliable. In view of these discrepancies, this Court, on facts, held it would be hazardous
to record conviction of the accused.
16. In the present case, there is the documentary evidence in the form of G.D. entry
No. 164 recorded by PW-8 in the General Diary on 07.06.1997 at about 6.30 P.M. That
entry was made on the telephonic message/information supplied by Asabuddin
Mazumdar, PW-3. It is clearly stated therein by PW-3 that a man named Fanilal Das was
lying in a serious condition on the side of verandah of Chandan Das. It was on receipt
of this information that PW-8 went to the place of occurrence of the incident, drew up
the inquest report, made seizure of the material objects and recorded the statement of
those present, including PW-1. Admittedly, the inquest report is prepared by PW-8 at
9.30 P.M. and the formal FIR is lodged by PW-1 at 11.30 P.M. The learned senior
counsel Shri M.N. Rao, by placing his fingers on the admission made by PW-8 in his
evidence would contend, that, FIR loses its authenticity if it is lodged after the inquest
report is recorded. This submission of the learned Counsel is a general proposition and
may not be true in all cases and all circumstances. This general proposition cannot be
universally applied, by holding that if the FIR is lodged for whatever reason after
recording the inquest report the same would be fatal to all the proceedings arising out
of the Indian Penal Code.
17. The Inquest Report is prepared under Section 174 Cr.P.C. The object of the inquest
proceedings is to ascertain whether a person has died under unnatural circumstances or
an unnatural death and if so, what the cause of death is? The question regarding the
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details as to how the deceased was assaulted or who assaulted him or under what
circumstances he was assaulted, is foreign to the ambit and scope of the proceedings
under Section 174 Cr.P.C. The names of the assailants and the manner of assault are
not required to be mentioned in the inquest report. The purpose of preparing the
inquest report is for making a note in regard to identification marks of the accused. The
inquest report is not a substantive evidence. Mention of the name of the accused and
eye witness in the inquest report is not necessary. Due to non-mentioning of the name
of the accused in the inquest report, it cannot be inferred that FIR was not in existence
at the time of inquest proceedings. Inquest report and post mortem report cannot be
termed to be substantive evidence and any discrepancy occurring therein can neither be
termed to be fatal nor even a suspicious circumstance which would warrant a benefit to
the accused and the resultant dismissal of the prosecution case. The contents of the
inquest report cannot be termed as evidence, but they can be looked into to test the
veracity of the witnesses. When an officer incharge of Police Station receives
information that a person had committed suicide or has been killed or died under
suspicious circumstances, he shall inform the matter to the nearest Magistrate to hold
Inquest. A criminal case is registered on the basis of information and investigation is
commenced under Section 157 of Cr.P.C. and the information is recorded under Section
154 of Cr.P.C. and, thereafter, the inquest is held under Section 174 Cr.P.C. This Court,
in the case of Podda Narayana v. State of Andhra Pradesh MANU/SC/0182/1975 : AIR
1975 SC 1252 has indicated that the proceedings under Section 174 Cr. P.C. have
limited scope. The object of the proceedings is merely to ascertain whether a person
has died in suspicious circumstances or an unnatural death and if so, what is the
apparent cause of the death. The question regarding details as to how the deceased was
assaulted or who assaulted him or under what circumstances, he was assaulted is
foreign to the ambit and scope proceeding under Section 174. Neither in practice nor in
law was it necessary for the Police to mention these details in the Inquest Report. In
George v. State of Kerala MANU/SC/0227/1998 : AIR 1998 SC 1376 it has been held
that the Investigating Office is not obliged to investigate, at the stage of Inquest, or to
ascertain as to who were the assailants. In Suresh Rai v. State of Bihar
MANU/SC/0228/2000 : AIR 2000 SC 2207 it has been held that under Section 174
read with Section 178 of Cr. P.C., Inquest Report is prepared by the Investigating
Officer to find out prima facie the nature of injuries and the possible weapon used in
causing those injuries as also possible cause of death.
1 8 . This Court has consistently held that Inquest Report cannot be treated as
substantive evidence but may be utilized for contradicting the witnesses of the Inquest.
Section 175 Cr. P.C. provides that a Police Officer proceedings under Section 174 may,
by an order in writing, summon two or more persons for the purpose of the said
investigation. The provisions of Sections 174 and 175 afford a complete Code in itself
for the purpose of inquiries in cases of accidental or suspicious deaths.
19. Section 2(a) of the Cr.P.C. defines "Investigation" as including all the proceedings
under this code for the collection of evidence conducted by the police officer.
20. Section 157 of the Code says that if, from the information received or otherwise an
officer incharge of a police station has reason to suspect the commission of an offence
which he is empowered to investigate, he shall forthwith send a report of the same to
the Magistrate concerned and proceed in person to the spot to investigate the facts and
circumstances of the case, if he does not send a report to the Magistrate, that does not
mean that his proceedings to the spot, is not for investigation. In order to bring such
proceedings within the ambit of investigation, it is not necessary that a formal
registration of the case should have been made before proceeding to the spot. It is
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enough that he has some information to afford him reason even to suspect the
commission of a cognizable offence. Any step taken by him pursuant to such
information, towards detention etc., of the said offence, would be part of investigation
under the Code.
2 1 . In Maha Singh v. State (Delhi Administration) (1976) SCC 644 this Court
considered a case in which police officer arranged a raid after recording a complaint,
but before sending it for registration of the case. It was held in that case that "the
moment the Inspector had recorded a complaint with a view to take action to track the
offender, whose name was not even known at that stage, and proceeded to achieve the
object, visited the locality, questioned the accused, searched his person, seized the note
and other documents, turns the entire process into investigation under the Code.
22. In State of U.P. v. Bhagwant Kishore MANU/SC/0066/1963 : AIR 1964 SC 221 this
court stated that "Though ordinarily investigation is undertaken on information received
by a police officer, the receipt of information is not a condition precedent for
investigation."
23. The principles now well settled is that when information regarding a cognizable
offence is furnished to the police that information will be regarded as the FIR and all
enquiries held by the police subsequent thereto would be treated as investigation, even
though the formal registration of the FIR takes place only later.
2 4 . Assuming that some report was made on telephone and that was the real First
Information Report, this by itself would not affect the appreciation of evidence made by
the learned Sessions Judge and the conclusions of fact drawn by him. The FIR under
Section 154 Cr. P.C. is not a substantive piece of evidence. Its only use is to contradict
or corroborate the maker thereof. Therefore, we see no merit in the submission made
by learned Counsel for the appellants.
2 5 . Now we focus our attention to the merits of the appeal. The Postmortem was
conducted by Dr. Ashit Som (PW6). From the Postmortem Report of the deceased
Fanilal Das, it appears that injuries on their examination were found to be ante mortem
in nature. In his opinion, death is due to shock and haemorrhage resulting from the
injuries sustained which were caused by blunt weapons. Unfortunately, the doctor has
not stated in his report whether the injuries sustained by the deceased were of
homicidal in nature. Therefore, we have seen the report furnished by the doctor, who,
as per his post mortem report found lacerated wound over the middle of frontal region
of the scalp with fracture of frontal bone corresponding to the injury, lacerated wound
over right parietal of the scalp 6cmx2cmx2cm fracture of parietal bone, two incisor and
two canine teeth of both jaws were dislocated. Dislocation of both elbow and ankle joint
was also there. He has further opined that the injuries were fresh and caused by a blunt
object. It has come in the evidence of PW-8 that immediately after the inquest report
was prepared, the body of the deceased was sent for post mortem. This would coincide
with this evidence on this aspect. Secondly, the seizure report which is marked as one
of the exhibit in the evidence, he has clearly stated the material objects seized by him,
such as nylon rope, bamboo stick, iron chain, dao, rod and lathi etc. A little comparison
of these seized objects and the wounds found on the body of the deceased, a safe
inference can be drawn that this part of evidence of this witness can be believed, since
it corroborates with the opinion of the Doctor, PW-6. Therefore, it can be safely inferred
that the deceased died because of the injuries sustained by the assault made by other
persons and not by self inflicted wounds.

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26. The prosecution case solely rests on the evidence of PW1. She is the wife of the
deceased. PW2, though turned hostile, has spoken to a part of the incident. PW3 is the
U.D.P. Secretary of Paikan Bazar. He is alleged to have gone to Paikan Tempur Bazar to
purchase sweets and having heard from the people gathered on the side of the verandah
of Chandu Das's house at the Paikan Bazar, that Fanilal Das lying in a serious condition,
he informed the Police from Ballu Das's telephone. This version of PW3 appears to be
correct. This information, in fact, triggered the Investigating Agency to reach the place
of incident after making necessary entries in the Registers at the Police Station.
27. The evidence of PW1 requires a thorough scrutiny. PW1 is the wife of the deceased.
According to her, one Upendra Das informed her that the accused persons including the
appellants are assaulting her husband in Kunja Mohan's house and on receiving the
information, it is further stated by her, that she immediately rushed to that place and
found that the accused persons had tied the hands of her husband and were assaulting
him. It has also come in her evidence that she saw all the accused persons dragging her
husband inside their house. She has further stated around that time, the Police Party
reached the spot and took her husband in a vehicle and she also accompanied her
husband in the same vehicle and on arriving at the hospital, the doctors declared that
her husband was dead and after inquest of the dead body, she returned home with the
help of police and immediately she lodged the First Information Report (Ext.1). In her
cross-examination, suffice it to say, that nothing very striking except minor
contradiction has been elicited, which would not shake her credibility. In fact, she has
stated that immediately after the Postmortem of the dead body, she lodged the FIR with
the Police and she has further denied the suggestion that she did not tell the police that
the accused persons had assaulted her husband and killed him while he was returning
home from Hailkandi Town on a Rickshaw. Therefore, two important aspects emerge
from her evidence before the Trial Court. Firstly, she has seen that her husband was
tied by means of a rope in the house of Kunj Mohan Das and secondly, the accused
persons including the appellants were assaulting her husband. The case of the
prosecution and the fate of the accused entirely depend on her version and, therefore,
as we said earlier, it is on her testimony that the fate of these accused
persons/appellants really hinges. The reasons for not examining Upendra Das, who is
supposed to have informed PW1 about the incident, is not explained by the prosecution.
Therefore, we might have to eschew this part of the evidence of PW1, since no effort is
made by the prosecution to explain the reason for non-examination of one of the
important persons, who is said to have informed PW1 about the assault and dragging of
the deceased into the house of first accused, who is not before us. Then, the next
question that would arise is, can we believe, as has been done by both the Courts
below, the other part of the testimony of this witness. At this juncture, we intend to add
that if the prosecution fails to explain the reason for non- examination of an important
witness, who is supposed to have informed the alleged incident, should the accused
persons go scot free. It is a difficult question, sometimes difficult to answer. Since, it is
noticed by this Court time and again that in number of criminal cases, because of
sloppy attitude shown by the prosecution, the real culprit goes scot free. It is no doubt
true that when her statement was recorded under Section 161 Cr.P.C., she had not
implicated four other accused persons but certainly implicated the appellants and two
other accused persons. Merely because she has made some improvement in the FIR
lodged by her, we cannot totally discard her testimony.
28. PW8 is the Investigating Officer. He was attached to Hailakandi Police Station. He
was the one who visited the place of occurrence on being directed to do so by the
office-in-charge of the Police Station. In his evidence, he has stated that Iti Mohan Das-
PW3 took him to the place of occurrence and he found the injured Fanilal Das tied at the
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veranda of the accused persons. It has also come in his evidence that on reaching the
place of occurrence, he drew up sketch map of the place of occurrence, and seized
incriminating materials. He has also stated that he removed the injured to Hailakandi
Civil Hospital where the Medical Officer declared him dead. It has also come in his
evidence that he was the one who prepared the Inquest Report. He further narrates that
PW2 informed him that the deceased was travelling in his rickshaw and at that time,
Chandra Das@Smritikanta and two unknown persons dragged him out of the rickshaw
and assaulted him by means of rod, hunter etc. Though PW2 turned hostile, their part of
evidence supports the case of the prosecution. In his cross examination, defence has
elicited from him that Inquest Report was prepared by him at 9.30 PM and FIR was
registered at 11.30 PM. Much was made at out of this admission by learned senior
counsel arguing for the appellants, we have already answered this issue while
considering the issue that whether FIR loses all authenticity if written after Inquest
Report. The other important admission that was made by him that when he recorded the
statement of PW1, she did not mention the names of Subhash, Bela Krishna and Rajan,
but had mentioned the names of all the other accused persons. Her version that she
went to the place of occurrence on being informed to her about the assaulting of her
husband by the accused persons is corroborated in his testimony. It is also of some
importance that PW-1 for the first time, in her evidence before the Court, implicated
them and that is how, they were arrayed as co-accused and tried along with others. The
learned Trial Judge, however, has acquitted those accused persons. In our view, rightly
so. In our opinion, it is not necessary for the prosecution to examine every other
witness cited by them in the charge-sheet. Mere non-examination of some persons does
not corrode the vitality of the prosecution version, particularly, the witnesses examined
have withstood the cross-examination and pointed to the accused persons as
perpetrators of the crime. The Trial Court and the High Court have come to the
conclusion that the evidence of PW1 is trustworthy and reliable. We have also carefully
perused the evidence of PW1, whose evidence is corroborated by PW-8 and the
Postmortem report issued by PW6, we are convinced that the Trial Court and the High
Court were justified in believing the testimony the testimony of PW-1.
2 9 . Manilal Das - PW2 is declared hostile by the prosecution. However, in his
examination-in-chief, he says that he was carrying Fanilal Das in his Rickshaw and he
stopped the Rickshaw at Tepur Bazar on the request made by the deceased and it is at
that time, the deceased had a quarrel with some people and some persons assaulted
him with blunt objects. In his cross-examination by the learned Counsel for the
prosecution, he denies the suggestions put to him with reference to his statement made
under Section 161 Cr.P.C. before the Investigating Officer.
30. Md. Asaf Ali Majumdar - PW3, Md. Masuraff Ali Barbhuiya - PW4, Harmendra Das-
PW5 are brought in by the prosecution as eye-witnesses to the occurrence. But all of
them have turned hostile. Unfortunately, the trend in this country appears to be, as the
time passes, dead are forgotten and the living with a criminal record are worshipped
and adored and no witness would like to speak against them. The Trial Court and the
High Court has not given any credence to their evidence.
31. The testimony of Itimohan Das -PW7 has some relevance. He is a local tea shop
owner. He has stated that he accompanied the Police to the house of the accused and
found the deceased tied with a rope in the verandah of Kunja Mohan. He also states that
he saw some injuries on the body of the deceased person. He also confirms that the
Investigating Officer seized a chain, a lathi, one dao and a rope.
32. In our view, having carefully seen the evidence of PW1, which is corroborated by
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the postmortem report issued by PW6 and the evidence of PW8, it is trustworthy and
reliable. The Trial Court and the High Court have accepted her evidence while holding
that the accused persons in furtherance of the common intention, assaulted Fanilal Das
and killed him. We do not find any good reason to upset this finding of the Trial Court
and the High Court.
33. The learned senior counsel submitted that the High Court in a most casual manner
has rejected the appeals filed by the accused. This assertion, in our opinion, is not
justified. The High Court has arrived at its findings after examination and consideration
of the main features of evidence. It is only thereafter, the High Court has affirmed the
findings of the trial court while convicting the accused persons.
3 4 . In view of the foregoing discussion, we do not see any merit in this appeal.
Accordingly, it is dismissed.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/7067/2008
Equivalent/Neutral Citation: AIR2008SC 1184, 2008(1)ALD(C ri)510, I(2008)C C R226(SC ), 2008C riLJ1816, 2008(1)EC rN 1134, JT2008(1)SC 434,
2008N.C .C .315, (2008)39OC R662, RLW2008(3)SC 2135, 2008(1)SC ALE399, (2008)3SC C 210

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 579 of 2005
Decided On: 16.01.2008
Sattatiya Vs. State of Maharashtra
Hon'ble Judges/Coram:
G.P. Mathur and G.S. Singhvi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ajit Kumar Pandey, Adv. (A.C.
For Respondents/Defendant: Sushil Karanjkar and Ravindra Keshavrao Adsure, Advs.
Case Note:
Criminal - Circumstantial evidence - Last seen - - Sections 34, 302 of the
Indian Penal Code, 1860 (IPC, 1860) - Prosecution relied on the
circumstantial evidence of last scene, recovery of blood stained clothes, blood
stained half blade and handkerchief found near the body of the deceased to
prove the appellant's involvement in the crime - Additional Sessions Judge did
not accept the prosecution's theory regarding motive but relied on the
circumstantial evidence and convicted both the accused - On appeal, the
Division Bench of the High Court upheld the conviction of the appellant and
confirmed the sentence of life - Hence, present appeal - Held, Court can draw
an inference of guilt when all the incriminating facts and circumstances are
found to be totally incompatible with the innocence of the accused -
Circumstances from which an inference as to the guilt is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances - Serious discrepancies in the statement of prosecution
witness, who claimed to have seen the appellant with the deceased - Blood-
stained clothes and half-blade recovered were not proved to be stained with
the same blood group of - deceased - Further, it is difficult to believe that a
person engaged in the business of hawking would remember what was sold to
a customer almost two months after the transaction and that to without
identity of the goods sold having been established - Prosecution failed to
establish the chain of circumstances which could link the appellant with the
crime - Impugned judgment set aside - Appeal allowed.
Ratio Decidendi:
Circumstances from which an inference as to the guilt is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances.
JUDGMENT
G.S. Singhvi, J.
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1 . This appeal by special leave is directed against the judgment of the Bombay High
Court, which upheld the conviction of the appellant under Section 302 I.P.C. and
sentence of life imprisonment awarded to him by Additional Sessions Judge, Greater
Bombay in Sessions Case No. 28/1995.
2. On 1.10.1994, PW1 Dr. Rasiklal Dwarkadas Dani, a resident of Pratap Building 173,
Dadiseth Agyari Lane, Mumbai, telephonically informed Assistant Police Inspector (API),
PW14 R.R. Gaekwad of Police Station Tilak Nagar that a man, who was later on,
identified as Satish, was lying on the right side of the stairs of the building in a pool of
blood. API Gaekwad reached the spot and removed that person to G.T. Hospital, where
he was declared brought dead. PW14 recorded the information given by Dr. Dani as
Ex.P6 and treated the same as FIR. He then handed over the investigation to PW13
Shamsherkhan Wazirkhan Pathan, who was acting as night Police Inspector at L.T. Marg
Police Station. The latter prepared Panchnama of the dead body. From the papers found
in the pocket of the clothes of the deceased, the police contacted his brother, PW3
Rajaiyya Pochyya Bandapalli on 1.10.1994 itself and recorded his statement. After two
days, the appellant and one Devabhuma Badapatti were arrested. On the day of his
arrest i.e. 3.10.1994, the appellant is said to have made a statement and then took the
police to Room No. 45 of the third floor of the building known as 'Ganesh Bhuvan'
Dadiseth Agyari Lane, Mumbai and got recovered his pant and shirt which are said to be
having stains of blood. On 4.10.1994, the appellant was medically examined by PW10
Shiv Narain Daund, who found that the thumb and index finger of the appellant's right
hand had been injured sometime back. On the next day i.e., 5.10.1994, the appellant
took the police to PW7 Mohd. Farid Abdul Gani, who claims to have sold the
handkerchief, which was found near the body of the deceased. On 6.10.1994, the
appellant is said to have given some more information to the police and got recovered
half blade (marked as Article 7) which was lying under the wooden platform in front of
'Ganesh Bhuvan'. The clothes of the deceased, the pant and shirt belonging to the
appellant and blade were sent for chemical examination. As per the Chemical Examiner's
Report, the clothes of the deceased were having human blood of 'O' group. The pant
and shirt, allegedly recovered at the instance of the appellant also had blood stains, but
it could not be established whether the same was human blood of 'O' group. The stain
on the blade was also said to be of human blood but its identity could not be
established by the chemical examiner.
After completing the investigation, the police submitted challan in the Court of the
Metropolitan Magistrate who committed the case to the Court of the Sessions, Greater
Bombay.
3 . The prosecution examined PW1 Dr. Rasiklal Dwarkadas Dani, PW2 Dinesh Dubey,
with whom Devabhuma Badapatti is said to have worked till September 1994, PW3
Rajjaiyya (brother of the deceased), PW4 Hari Oval and PW8 Ranjit Bishram Jaiswal,
who acted as panches for recovery of the clothes from Room No. 45 of 'Ganesh
Bhuvan', PW5 Salim Sheikh, who acted as panch for recovery of half blade beneath
wooden board in front of 'Ganesh Bhuvan', PW6 Shankar Shripati Ulalkar, who was
engaged in the work of shaving and cutting hair outside shop No. 1 of 'Ganesh Bhuvan',
Dadiseth Agyari Lane, PW7 Mohd. Farid Abdul Gani, who claims to have sold the
handkerchief to the appellant, PW9 Balu Shivram Nalwada, who is said to have
witnessed the sale of handkerchief by PW7 to the appellant, PW10 Shivraj Narayan
Daund, who examined the appellant on 4.10.1994, PW11 Raju Chandu Poojari, who
claims to have seen the accused persons with the deceased on the night of the incident
i.e. 30.9.1994, PW12 Dr. Avinash Janardan Pujari, who performed the autopsy on the
dead body, PW13 PI, Shamsherkhan Vazirkhan Pathan and PW14 API, R.R. Gaikwad.
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Thereafter, the statements of the appellant and Devabhuma Badapatti were recorded
under Section 313 Cr.P.C. Both of them denied having committed the crime.
4. The motive of the crime, as projected by the prosecution, was that the appellant was
having illicit relation with Lakshmi wife of the deceased and Devabhuma Badpatti was
having animosity with the latter because of the alleged murder of his father. The
prosecution relied on the circumstantial evidence of last scene, recovery of blood
stained pant and shirt from Room No. 45, 'Ganesh Bhuvan' Building, blood stained half
blade and handkerchief found near the body of the deceased to prove the appellant's
involvement in the crime.
5 . The learned Additional Sessions Judge did not accept the prosecution's theory
regarding motive but relied on the circumstantial evidence and convicted both the
accused under Section 302 read with Section 34 I.P.C. and sentenced them to life
imprisonment. On appeal, the Division Bench of the High Court upheld the conviction of
the appellant and confirmed the sentence of life imprisonment awarded to him, but
acquitted Devabhuma Badpatti on the premise that there was no evidence to show that
he was a party to the crime.
6 . Shri Ajit Kumar Pande assailed the findings recorded by the learned Additional
Sessions Judge, which as mentioned, were confirmed by the High Court by arguing that
the entire story was fabricated by the police to falsely implicate the appellant. Learned
Counsel invited our attention to the serious discrepancies in the statement of PW 11,
Raju Poojari, who claims to have seen the appellant with the deceased at 10.45 p.m. on
30th September 1994 and argued that the deliberate attempt made by the witness to
conceal the fact that he was engaged in the business of illicit liquor and was arrested by
the police in connection with the said business should have been treated by the learned
Additional Sessions Judge and High Court sufficient for discarding his testimony. Shri
Pande then argued that the recovery of the blood stained pant and shirt from Room No.
45 of 'Ganesh Bhuvan' and half blade from under the wooden board in front of 'Ganesh
Bhuvan,' are highly suspicious and no credence should have been given to such
recoveries for holding the appellant guilty of serious offence like murder because they
were not proved to be stained with human blood of 'O' group. He lastly argued that
version of PW7 Mohd. Gani regarding sale of handkerchief to the appellant is
unbelievable because there was nothing from which he could identify the handkerchief
allegedly sold more than one month before the alleged murder. Shri Sushil Karanjakar,
learned Counsel for the State supported the judgment under challenge and argued that
the High Court rightly upheld the conviction of the appellant and the sentence awarded
to him.
7 . We have thoughtfully considered the entire matter. It is settled law that an offence
can be proved not only by direct evidence but also by circumstantial evidence where
there is no direct evidence. The Court can draw an inference of guilt when all the
incriminating facts and circumstances are found to be totally incompatible with the
innocence of the accused. Of course, the circumstances from which an inference as to
the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to
be closely connected with the principal fact sought to be inferred from those
circumstances.
8 . In Hanumant Govind Nargundkar v. State of M.P. MANU/SC/0037/1952 :
1953CriLJ129 , which is one of the earliest decisions on the subject, this Court observed
as under:

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 It is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should be in the first instance be fully established and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so
far complete as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused.
9. In Padala Veera Reddy v. State of A.P. MANU/SC/0018/1990 : AIR1990SC79 , this
Court held that when a case rests upon circumstantial evidence, the following tests must
be satisfied:
(1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused;
(3) 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
(4) 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.
1 0 . In Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984 :
1984CriL J1738 , it was held that the onus was on the prosecution to prove that the
chain is complete and falsity or untenability of the defence set up by the accused cannot
be made basis for ignoring serious infirmity or lacuna in the prosecution case. The
Court then proceeded to indicate the conditions which must be fully established before
conviction can be based on circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be drawn should
be fully established. The circumstances concerned must or should and not may
be established;
(2) the 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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved;
and
(5) there must be a chain of evidence so complete 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.

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11. In State of U.P. v. Ashok Kumar Srivastava MANU/SC/0161/1992 : [1992]1SCR37
, it was pointed out that great care must be taken in evaluating circumstantial evidence
and if the evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances relied
upon must be found to have been fully established and the cumulative effect of all the
facts so established must be consistent only with the hypothesis of guilt.
12. The above noted propositions have been reiterated in Bodhraj alias Bodha and Ors.
v. State of Jammu and Kashmir MANU/SC/1463/2002 : 2002CriL J4664 ; Bharat v.
State of M.P. MANU/SC/0074/2003 : 2003CriL J1297 ; Jaswant Gir v. State of Punjab
(2005) 12 SCC 438; Reddy Sampath Kumar v. State of A.P. MANU/SC/0559/2005 :
2005CriL J4131 ; Deepak Chandrakant Patil v. State of Maharashtra
MANU/SC/2579/2006 : AIR2006SC1708 ; Ramreddy Rajesh Khanna Reddy and Anr. v.
State of A.P. MANU/SC/8070/2006 : AIR2006SC1656 and State of Goa v. Sanjay
Thakran and Anr. MANU/SC/7187/2007 : (2007)3SCC755 .
13. In Ramreddy Rajesh Khanna Reddy and Anr. v. State of A.P. MANU/SC/8070/2006
: AIR2006SC1656 , this Court while reiterating the settled legal position, observed:
It is now well settled that with a view to base a conviction on circumstantial
evidence, the prosecution must establish all the pieces of incriminating
circumstances by reliable and clinching evidence and the circumstances so
proved must form such a chain of events as would permit no conclusion other
than one of guilt of the accused. The circumstances cannot be on any other
hypothesis. It is also well settled that suspicion, however grave it may be,
cannot be a substitute for a proof and the courts shall take utmost precaution in
finding an accused guilty only on the basis of the circumstantial evidence.
14. At this stage, we also deem it proper to observe that in exercise of power under
Article 136 of the Constitution, this Court will be extremely loath to upset the judgment
of conviction which is confirmed in appeal. However, if it is found that the appreciation
of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by
serious errors and on that account miscarriage of justice has been occasioned, then the
Court will certainly interfere even with the concurrent findings recorded by the trial
court and the High Court Bharat v. State of M.P. MANU/SC/0074/2003 : 2003CriLJ1297
.
In the light of the above, we shall now consider whether in the present case the
prosecution succeeded in establishing the chain of circumstances leading to an
inescapable conclusion that the appellant had committed the crime.
15. A careful reading of the judgments of the Additional Sessions Judge and High Court
shows that the conviction of the appellant was based on the following circumstances:
(i) that both the accused were with the deceased when he was last seen alive in
the night of 30/9/1994.
(ii) the accused had residence in the vicinity of the place where the injured was
found while the injured did not reside in the vicinity.
(iii) accused No. 1 had an injury which could be caused by user of the blade
(Art.7) and had knowledge where the piece of blade could be found by the
Police.

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 (iv) there was human blood on the piece of blade and stains of human blood on
the clothes of accused No. 1 were not explained to be the stains of blood of his
own.
(v) the handkerchief purchased by accused No. 1 was found near the injured
with stains of blood of the injured indicative of presence of accused No. 1 in
the vicinity after the injured had sustained bleeding injuries.
(vi) Accused No. 2 used to be with accused No. 1 many times and had been
sleeping at the place of accused No. 1 for three nights and accused No. 2 had
borrowed Rs. 300/- in the night of 30th September, 1994 and
(vii) they were caught when they were together.
1 6 . We shall first scrutinize the evidence of last scene, which is in the form of
statement of PW11 Raju Poojari. In the first instance, the witness denied his
acquaintance with Babu Poojari but then volunteered to admit that he knew the latter.
He gave out that he was residing in a temporary shed at Sonapur, Chandanwadi, which
was used as tailoring shop. Later on, he made an improvement by saying that he was
doing work at the tailoring shop. According to him both the accused had passed in front
of the shop on 30th September, 1994 at 10.45 p.m. He demonstrated his acquaintance
with both the accused by saying that they used to come to the tailoring shop. When two
photographs of the deceased (marked as Article 8) were shown to him, PW11 stated
that the said person had come with the accused for getting their clothes stitched from
the shop. He expressed his ignorance about the time when they came to the shop and
then stated that they came at 10.30 p.m. 2-4 days before the police came to make
enquiries from him. According to PW11 his signatures were obtained at the police
station but nothing was read out to him. He then stated that something was read out at
the police station ten days back when he was called there and was shown photographs
(marked as Article 8). He admitted the existence of a liquor shop near the tailoring
shop, but gave out that the same was owned by one John. He denied his involvement in
the business of illicit liquor. At that stage the public prosecutor sought and was granted
permission to ask questions in the nature of cross examination. In reply to the queries
put by the public prosecutor, PW11 denied the suggestion that he was doing business of
illicit liquor and expressed his ignorance about the statement given to the police that he
was engaged in such business. He also denied having stated before the police that the
accused had come to the liquor shop with the person in the photograph and that they
were offering liquor to him and also asked Babu Poojari to pour more liquor in his glass
because he was their guest. PW11 then stated that the person shown in the photograph
was totally drunk when he came with two accused and they were supporting him while
walking and this happened 4-5 days before when he was called to the police station. He
expressed his ignorance about the number of false cases registered against him. In
cross examination he denied having indulged in any activity other than tailoring work.
He also gave out that he did not know the names of the accused when they passed in
front of the tailoring shop.
1 7 . A critical analysis of the statement of PW11 shows that the same is full of
contradictions. In the examination-in-chief, he demonstrated his acquaintance with the
accused by saying that they used to come to tailoring shop but in cross examination he
admitted that he did not know their names when they were passing in front of the
tailoring shop. The second important contradiction relates to his recognition of the
person shown in the photograph. In the first instance he gave out that the said person
had come with the accused for getting their clothes stitched from the shop but, later on,
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stated that he came with the accused and was heavily drunk and was being helped by
the accused. Yet another contradiction which is apparent from the statement of PW11
relates to his acquaintance with Babu Poojari. In the beginning he flatly denied that he
knew Babu Poojari and then made a u-turn by voluntarily stating that he knows Babu
Poojari. He also denied having stated before the police that he was doing the business
of selling illicit liquor in association with Babu Poojari and that the accused offered
liquor to the deceased and also asked Babu Poojari to pour more liquor in his glass.
These contradictions are evident from the following extracts of the statement of PW11:
I know Satish Bandapalli and Devaanna Bandapalli and they were passing in
front of my shop at about 10.45 p.m. I do not know where they were going. I
had been knowing those 2 persons as they used to come to the tailoring shop.
These 2 accused had not done anything else when they passed in front of my
tailoring shop. I did not know their names at that time.
I had seen the person whose 2 photographs from Article 8 are now shown to
me, but I do not know his name. When I last saw the person in this
photograph, he had been with the 2 accused before this Court. Those 3 together
had come to my shop. Those 3 had come for getting their clothes stitched from
the shop where I used to be. I do not remember the time when they had come
to the shop. Now I say that they had come at 10.30 p.m. 2-4 days before the
police came to make enquiries from me. The police had taken me in the police
station. At the police station my signature was obtained and I was permitted to
go. The police did not read out anything to me at the time they had taken me to
the police station and obtained my signature but something was read out to me
10 days back when I had been called here. At the time my signature was taken
I was shown the photographs Article 8.
It did not happen that Babu Poojari came to me and agreed to work with me
and we both started doing the business of illicit liquor. I had not stated so to
any one at any time. I can not say why portion marked 'A' to that effect has
been so recorded. It did not happen that these 2 accused had come to my illicit
liquor business with the person in the photograph. I had not stated so to any
one at any time. I can not say why portion marked 'B' to that effect has been so
recorded in my alleged statement dated 5.10.1994. I had not seen these 2
accused offering liquor to the person in the photograph and also asking Babu
Poojari to pour more liquor in his glass as he was their guest. I had not stated
so to any one at any time. I cannot say why portion marked 'C' to that effect
has been so recorded in my alleged statement dated 5.10.1994. The person in
the photograph now shown to me Article 8 was totally drunk when he had come
with these 2 accused to our shop. The person in the photograph was so drunk
that these 2 accused had to support the person in the photograph Article 8 for
making him walk away and in that condition I last saw them walking away from
the tailoring shop 4-5 days before police took me to the police station. At
present I have been wrongly apprehended by the police in a case when there
was a raid on the illicit liquor shop in the neighbourhood. I do not know in how
many false cases I have been involved after being wrongly apprehended.
18. It is significant to note that even though PW11 denied having made statements
marked 'A', 'B' and 'C' before the police but the investigating officer, PW13 categorically
asserted that Raju Poojari did make those statements.

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1 9 . The learned Sessions Judge as also the High Court noted contradictions in the
statement of PW11 but ignored the same by describing them as minor. In the opinion of
the learned Sessions Judge the variation in the previous statement of PW11 stands
explained by his desire not to incriminate himself. He also observed that the defence
had not brought anything from the cross examination of PW11 to discredit his
testimony. The High Court adopted the same line of reasoning for placing reliance on
the evidence of last scene.
20. In our view, the testimony of PW11 is wholly untrustworthy. He appears to be a
doctored witness, who came forward to support the prosecution cause with a view to
win favour from the police in the cases registered against him in connection with the
raid of illicit liquor shop. This is the reason why he made vacillating statement
regarding the identity of two accused and the deceased and the purpose of their coming
to the so-called tailoring shop where he was residing and also working. It is difficult, if
not possible, to believe that even though the accused persons used to come to the
tailoring shop for getting their clothes stitched, where PW11 is said to be working, he
did not know their names. His attempt to conceal his acquaintance with Babu Poojari
who was his associate in the business of illicit liquor is inexplicable. The suggestive
conjecture made by the learned Additional Sessions Judge that PW11 retracted from the
statement made before the police because he did not want to incriminate himself in
offences relating to business of illicit liquor cannot be accepted because the fact of the
matter is that the witness was arrested by the police in connection with the said
business and there was every reason for him to come forward to support the police
case. The testimony of PW11 is also discredited by the fact that he made self
contradictory statements regarding the presence of the accused and the deceased at the
shop. In one breath he stated that they were passing in front of the shop and thereafter
sought to identify them by stating that they had come for stitching the clothes.
21. The next thing which is to be seen is whether the evidence relating to the recovery
of clothes of the appellant and the half blade, allegedly used for commission of crime,
is credible and could be relied on for proving the charge of culpable homicide against
the appellant. In this context, it is important to note that the prosecution did not
produce any document containing the recording of statement allegedly made by the
appellant expressing his desire to facilitate recovery of the clothes and half blade. The
prosecution case that the accused volunteered to give information and took the police
for recovery of the clothes, half blade and purchase of handkerchief is highly suspect. It
has not been explained as to why the appellant gave information in piecemeal on three
dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994. Room No. 45 of 'Ganesh Bhuvan' from
which the clothes are said to have been recovered was found to be unlocked premises
which could be accessed by any one. The prosecution could not explain as to how the
room allegedly belonging to the appellant could be without any lock. The absence of
any habitation in the room also cast serious doubt on the genuineness and bonafides of
recovery of clothes. The recovery of half blade from the road side beneath the wooden
board in front of 'Ganesh Bhuvan' is also not convincing. Undisputedly, the place from
which half blade is said to have been recovered is an open place and everybody had
access to the site from where the blade is said to have been recovered. It is, therefore,
difficult to believe the prosecution theory regarding recovery of the half blade. The
credibility of the evidence relating to recovery is substantially dented by the fact that
even though as per the Chemical Examiner's Report the blood stains found on the shirt,
pant and half blade were those of human blood, the same could not be linked with the
blood of the deceased. Unfortunately, the learned Additional Sessions Judge and High
Court overlooked this serious lacuna in the prosecution story and concluded that the
presence of human blood stains on the cloths of the accused and half blade were
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sufficient to link him with the murder.
22. The over jealous efforts made by the prosecution to link the handkerchief allegedly
found near the body of the deceased of the appellant lends support to the argument of
the learned Counsel for the appellant that the police had fabricated the case to implicate
the appellant. In his statement, PW7 Mohd. Farid Abdul Gani, who is said to have sold
the handkerchief to the appellant, admitted that he was not selling branded
handkerchiefs and that there were no particular marks on the goods sold by him. He,
however, recognized the handkerchief by saying that the accused made a lot of
bargaining and he was amused by the latter's statement that he will soon become an
actor.
23. Both the learned Additional Judge and High Court accepted the testimony of PW7
along with the statement of PW9 ignoring the admission made by the former that he did
not put any special mark on the handkerchief sold by him; that he purchased the
handkerchiefs in wholesale from the market and removed the label of manufacturer
before selling the same and that there are 4 or 5 other persons carrying on the same
business in the locality. Likewise both the courts ignored the fact that PW9 could not
confirm the exact identity of the handkerchief (marked as Article 3), he could only say
that the handkerchief of the appellant was just like Article 3.
2 4 . In our opinion it is extremely difficult to believe that a person engaged in the
business of hawking would remember what was sold to a customer almost two months
after the transaction and that to without identity of the goods sold having been
established.
On the basis of above discussion we held that the prosecution failed to establish the
chain of circumstances which could link the appellant with the crime. The learned Trial
Court and the High Court committed a serious error by relying on the circumstantial
evidence of last scene, the recovery of pant and shirt from Room No. 45 of 'Ganesh
Bhuvan' building, half blade from under the wooden board and the sale of the
handkerchief by PW7 to the appellant.
25. In the result the appeal is allowed. The judgment under appeal and the one of the
Trial Court are set aside and the appellant is acquitted. He shall be released forthwith if
not required in connection with any other offence.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/BH/0904/2017
Equivalent/Neutral Citation: 2017(180)AIC 650, 2017(4)BLJ260, 2018C riLJ2170

IN THE HIGH COURT OF PATNA

Criminal Appeal (SJ) No. 562 of 2014
Decided On: 10.10.2017
Sawal Karmakar Vs. The State of Bihar
Hon'ble Judges/Coram:
Prakash Chandra Jaiswal, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Bimal Kumar and Maruti Kumari, Advs.
For Respondents/Defendant: Bipin Kumar, A.P.P.
JUDGMENT
Prakash Chandra Jaiswal, J.
1. Heard learned counsel for the appellant and learned A.P.P. for the State.
2 . This criminal appeal has been filed against the judgment and order of conviction
dated 04.08.2014 and order of sentence dated 12.08.2014 passed by the Additional
District & Sessions Judge-I-cum-Special Judge, Katihar in Sessions Trial No. 430 of
2013, arising out of Azamnagar P.S. Case No. 128 of 2013, whereby the learned trial
Court convicted the accused Sawal Karmakar for the offence punishable under Section 4
and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter in short
referred to as the 'POCSO Act') and sentenced him to undergo rigorous imprisonment
for 10 years for the offence punishable under Section 4 of the POCSO Act and further
sentenced him to undergo rigorous imprisonment for 10 years under Section 6 of
POCSO Act. Both the sentences were directed to run concurrently.
3 . The factual matrix of the case is that Azamnagar P.S. Case No. 128 of 2013 was
initially instituted under Section 307 & 376 of the Indian Penal Code and subsequently
added Section 4 and 6 of the POCSO Act against the accused Sawal Karmakar, on the
basis of written report of one Lakhi Devi, wife of Mangal Sah, resident of village
Harlagga, P.S. Azamnagar Salmari O.P., District Katihar with the allegation in succinct
that on 16.06.2013 at around 6:30 PM when she was cooking food, Lakhi Kumari, the
daughter of Bablu Karmakar came and took her daughter Jyoti Kumari aged about 5-6
years to play with her. When she did not regress to her house by 8:30 PM, she started
searching her. During course of search, she witnessed her daughter stepping out from
the house of Sawal Karmakar weeping in nude condition and on quizzing her about
reason of weeping, she divulged that Sawal Karmakar took her to the bamboo cluster
and committed rape against her. Thereafter, he took her near the ditch and made her to
take dip in the ditch water several times. After divulging the said occurrence, her
daughter fell senseless in her lap. She found blood oozing from her private part. Then,
she rushed to the house of Sawal Karmakar making hulla. Responding hulla villagers
rushed there and seeing the congregation of the villagers Sawal Karmakar left the scene
rapping expletive. Alam alias Bhutu divulged her that he had listened the screaming
sound from near the bamboo cluster. He rushed there and took her daughter out of
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water and grilled her about her presence there. She has claimed that the accused Sawal
Karmakar committed rape against her daughter and tried to eliminate her in order to
cause the evidence of the commission of the occurrence to disappear.
4 . The aforesaid case was investigated by the police and on conclusion of the
investigation and finding the case true, the I.O. submitted chargesheet under Section
307 & 376 of the Indian Penal Code and Section 4 and 6 of the POCSO Act against the
accused Sawal Karmakar.
5 . After receiving the chargesheet and case diary and perusing the same, the learned
1st Additional Sessions Judge, Katihar took cognizance of the offence.
6. The charge against the accused was framed under Section 376 & 307 of the Indian
Penal Code and Section 4 & 6 of the POCSO Act. The charge was read over and
explained to the accused to which he pleaded not guilty and claimed to be tried.
7. To substantiate its case in ocular evidence, the prosecution has examined altogether
13 witnesses, namely, Md. Samrul as P.W. 1, Bhuto Sah as P.W. 2, Sony Devi as P.W.
3, Dr. D.N. Poddar as P.W. 4, Rustam Ali as P.W. 5, Md. Mahboob Alam as P.W. 6, Abul
Nasar as P.W. 7, Mehsul Alam @ Bhuttu as P.W. 8, Md. Shakil as P.W. 9, Dr. Lakshmi
Sen as P.W. 10, Lakhi Devi (informant) as P.W. 11, Sanjeev Kumar (I.O.) as P.W. 12
and Jyoti Kumari (victim) as P.W. 13. In documentary evidence, the prosecution has
filed several documents.
8. The statement of the accused was recorded under Section 313 Cr.P.C. The case of the
defence is complete denial of occurrence claiming himself to be innocent. In buttress of
his case, the accused has also examined three witnesses, namely, Urmila Devi as
D.W.1, Sripati Yadav as D.W.2 and Prabhash Yadav as D.W.3.
9. After hearing the parties and perusing the record, the learned trial Court passed the
impugned judgment and order of conviction and sentence as detailed in earlier
paragraph.
1 0 . Being aggrieved and dissatisfied with the impugned judgment and order of
conviction and sentence, the convict has filed this appeal.
11. The point for consideration in this case is, as to whether the prosecution has been
able to bring home the charges levelled against the appellant beyond all reasonable
doubt or not.
12. It is submitted by learned counsel for the appellant that all the witnesses examined
by the prosecution are hearsay witnesses of committing rape against the victim by the
appellant as they have not seen the aforesaid occurrence. Though the informant in her
written report has stated that she had witnessed the victim coming out of the house of
the appellant in nude condition but neither the informant in her examination-in-chief
nor any other witness have supported the aforesaid case of the prosecution. Though
some of the witnesses have stated that they have seen the victim stained in blood and
some of the witnesses have stated that they have seen the blood oozing from the
private part of the victim but that is not the conclusive proof of occurrence of
committing rape against the victim by the appellant as the victim in her cross-
examination has stated that in course of taking mango she fell down & sustained injury
from the wood. It is further submitted by learned counsel for the appellant that though
the doctor, who has examined the victim, has found injury on the private part of the
victim and in his cross-examination he has stated that such injury is not possible by fall
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on the pointed wood or by fingering but the victim herself has not supported the
occurrence of committing rape against her by the appellant rather virtually denied the
same, hence the aforesaid medical evidence standing against the ocular evidence of the
victim is of no use and is not going to extend any help to the prosecution. It is further
submitted that though the doctor has reported finding of dead spermatozoa in the
private part of the victim but she has not stated the basis of giving such finding as no
pathological test report is on record and moreover as the victim was made to take dip in
the ditch water finding of any semen in the private part of the victim is not possible. It
is further submitted that as per the statement of the victim itself there was animosity
between the parent of the victim and the appellant and the appellant has been falsely
implicated in this case out of the aforesaid animosity. Thus, the prosecution has utterly
and miserably failed to substantiate the prosecution case against the appellant and the
appellant is entitled to get benefit of doubt and be acquitted from the charges levelled
against him.
1 3 . On the other hand, it is submitted by learned A.P.P. for the State that the
prosecution witnesses examined by the prosecution have supported the occurrence of
finding the victim stained with blood and some of them have seen the blood oozing
from the private part of the victim. The informant has also supported the prosecution
case and the victim too in her examination-in-chief has supported the prosecution case
by divulging the committing of rape against her by the appellant by thrusting some hard
substance in her private part. The aforesaid ocular evidence also stands corroborated by
the medical evidence as the doctor has found the offence of sex committed against the
victim and mark of injury on her private part. The learned lower Court correctly
appreciating the facts and evidence available on record has passed the impugned
judgment and order of conviction and sentence which is liable to be upheld and this
appeal has no substance in it and is liable to be dismissed.
14. From perusal of the F.I.R., it appears that it is the case of the prosecution that at
the time and date of occurrence Lakhi Kumari took the daughter of the informant,
namely, Jyoti Kumari aged about 5-6 years to play with her and when her daughter did
not regress to her house even after two hours, the informant made search for her and
during the course of search she witnessed her daughter coming out of the house of the
appellant Sawal Karmakar in nude condition and weeping. On quizzing about her
predicament, she divulged her that Sawal Karmakar taking her to the bamboo cluster
committed rape against her. Then he took her to the ditch and made her to take dip in
the ditch water in order to eliminate her several times to cause the evidence of the
commission of the occurrence to disappear. She also found the blood oozing from the
private part of her daughter. The informant has been examined in this case as P.W. 11.
From perusal of the examination-in-chief of the informant, it appears that she has not
stated about finding her daughter nude while stepping out of the house of the appellant.
She has simply stated that when her daughter did not regress to her house she started
searching her. During the course of search, she witnessed her daughter stepping out of
the house of Sawal Karmakar smeared with mud and blood was oozing from her private
part.
1 5 . The victim Jyoti Kumari has been examined as P.W. 13. In her examination-in-
chief, she has not supported the occurrence of committing rape against her by the
appellant by thrusting his private part into her private part rather she has stated that the
appellant Sawal Karmakar had thrusted some hard substance into her private part and
made her to take dip in the river. She has also not supported the statement of the
informant regarding stepping out of the house of the appellant Sawal Karmakar in nude
condition. Moreover, though in her examination-in-chief, she has stated that some hard
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substance was thrusted in her private part by the appellant but completely resiling and
backtracking from her aforesaid statement, in cross-examination she has stated that she
had gone to eat mango along with Lakhi Kumari and she fell down during the course of
taking mango & sustained injury from wood. Meaning thereby that she had sustained
injury in her private part due to falling on the wood. She has also stated that the
appellant has been falsely implicated due to dispute between him and her parent. Thus,
she appears to have completely demolished her examination-in-chief and also the
prosecution case.
16. P.W. 8-Mehsul Alam @ Bhuttu has stated in his examination-in-chief that at the
time of occurrence he was regressing to his house from the market. He arrived at the
place of occurrence responding screaming of the victim and witnessed accused Sawal
Karmakar absconding in the torch light. In the meantime, the mother of the victim and
her family members arrived there. He found the blood oozing from her private part. He
has not witnessed the occurrence of committing rape against the victim by the
appellant. Moreover, in quite contradiction to the prosecution case, he has stated that
he had found victim at place of occurrence. He witnessed the accused Sawal Karmakar
escaping from the place of occurrence. Thus, he has also not supported the prosecution
case regarding stepping out of the victim from the house of the appellant Sawal
Karmakar in nude condition.
17. From perusal of testimony of P.W. 5, P.W. 6 and P.W. 9, it appears that the said
witnesses have stated that the victim was stained with blood, whereas P.W. 7 and P.W.
8 have stated that the blood was oozing from the private part of the victim but mere
finding the victim stained with the blood and oozing of the blood from her private part,
in my considered opinion, is not conclusive proof of committing rape against the victim
in view of the aforesaid statement of victim about sustaining injury from wood on
falling on it. P.Ws. 1, 2, 3, 5, 6, 7 & 8 do not happen to be the eye witness of
committing rape against the victim rather they are hearsay witnesses. P.Ws. 1, 2, 3, 5,
6, 7, 8 and informant Lakhi Devi have stated in their respective examination-in-chief
that the victim had divulged the occurrence of committing rape against her by the
appellant but P.W. 13, the victim has not corroborated the factum of divulgence of the
occurrence to them. Hence, for want of corroboration by the victim, the evidence of the
aforesaid hearsay witnesses is not admissible. P.W. 9 also does not happen to be eye
witness of the occurrence rather the hearsay witness. Thus, from perusal of the
aforesaid ocular evidence of the prosecution, it appears that the prosecution has utterly
and miserably failed to substantiate its case by adding consistent, reliable, trustworthy
and cogent ocular evidence.
18. From perusal of the statement of doctor, who had examined the victim, it appears
that he has stated that the victim got injury on her private part due to forcible rape with
her. In the pathological test report dead spermatozoa was found in the private part of
the victim. Thus, there is definite sign of forcible rape against the victim. In his cross-
examination, the doctor has stated that such injury is not possible by pointed wood or
by fingering but the aforesaid medical evidence stands in quite contradiction to the
statement of the prosecutrix as the prosecutrix has herself stated that she had fallen
during taking mango and sustained injury from wood. Moreover, the doctor appears to
have given its opinion regarding committing rape against victim also on the basis of
finding dead spermatozoa in her private part on the basis of pathological test but no
pathological test report has been brought on record by the prosecution. Thus, there is
no basis for giving such finding by the doctor and his finding appears to be baseless
and unfounded.

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1 9 . From perusal of the testimony of the victim, it appears that in her cross-
examination she candidly stated that there is dispute between her parents and the
accused and the accused has been falsely implicated in this case due to aforesaid
dispute. The aforesaid statement of the victim itself indicates animosity between the
parties and false implication of the appellant in this case due to the aforesaid animosity.
20. Lakhi Kumari, daughter of Bablu Karmakar with whom the victim had gone to play
at the time of occurrence and was present with her at the time of alleged occurrence has
not been examined by the prosecution and no reason has been assigned by the
prosecution for her non-examination. Hence, the adverse inference is drawn against the
prosecution.
2 1 . In the aforesaid facts and circumstances of the case, I find and hold that
prosecution has utterly and miserably failed to substantiate the charges levelled against
the appellant beyond all reasonable doubt by adducing consistent, reliable, cogent and
trustworthy ocular and documentary evidence. So, the appellant is entitled to get
benefit of doubt. Hence, the impugned judgment and order of conviction and sentence
passed by the learned lower Court is set aside and the appellant is acquitted from all
the charges levelled against him. As the appellant is in custody, he is directed to be
released forthwith, if not wanted in any other case.
22. Accordingly, this appeal is allowed.
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 MANU/SC/1945/2009
Equivalent/Neutral Citation: 2010(85)AIC 226, AIR2010SC 1137, 2010 (78) ALR 203, 2010(1)ARC 183, 2010 (1) AWC 209 (SC ), 2010(1)C TC 118,
2010(I)C LR(SC )139, 2009 INSC 1255, JT2009(14)SC 552, 2010(3)KarLJ37, (2010)1MLJ415(SC ), 2010(2)PLJR10, 2010(1)RC R(C ivil)558,
2009(14)SC ALE202, (2010)12SC C 24, [2009]15SC R1102, 2010(1)UC 644, 2010(1)WLN37

IN THE SUPREME COURT OF INDIA

SLP (C) No. 29213 of 2009
Decided On: 23.11.2009
S.B. Minerals Vs. MSPL Limited
Hon'ble Judges/Coram:
R.V. Raveendran and K.S. Panicker Radhakrishnan, JJ.
Case Note:
Civil Procedure Code, 1908-- Section 100--Admission of Second appeal--
Scope--Held--An order admitting a second appeal is neither a final order nor
an interlocutory order--It does not amount to a judgment, decree or even
"order"--It does not decide any issue but merely entertain an appeal for
hearing. [Para--5 and 6]

JUDGMENT
R.V. Raveendran, J.
1. The respondent filed a suit for declaration and injunction against the petitioner. The
suit was decreed. The petitioner filed an appeal and the first appellate court allowed the
appeal and dismissed the suit. Feeling aggrieved, the respondent filed a regular second
appeal under Section 100 of the Code of Civil Procedure (for short 'CPC'). By order
dated 8.10.2009, the High Court admitted the appeal formulating three substantial
questions of law. In view of the urgency expressed, the High Court directed that the
appeal be set down for final hearing in November, 2009.
2. The respondent has sought leave to file an appeal against the 'order' of admission of
the second appeal. The petitioner contends that the case did not involve any substantial
question of law and the second appeal ought not to have been admitted.

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3. Sub-section (5) of Section 100 CPC provides that a second appeal shall be heard on
the substantial questions of law formulated by the Court. It also provides that the
respondent, at the hearing of the second appeal, can argue that the case does not
involve such questions. Thus the substantial questions of law formulated by the High
Court are not final, and it is open to the petitioner herein (who is the respondent in the
pending appeal) to demonstrate during hearing that no substantial question of law
arose for consideration in the case and that the second appeal should be dismissed.
4 . An order admitting a second appeal is neither a final order nor an
interlocutory/interim order. It does not amount to a judgment, decree, determination,
sentence or even "order" in the traditional sense. It does not decide any issue but
merely entertains an appeal for hearing.
5 . The scope of Article 136 is no doubt very wide. Special leave to appeal can be
granted under Article 136 against any judgment, decree, determination, sentence or
order passed or made by any court or tribunal, in any case or matter. There are no
limitations upon the discretionary power of this Court under Article 136, except those
which are self- imposed. One recognised area where the discretion is not exercised is
where the remedy by way of an appeal or revision is available against the order.
Another recognised area is where the subject matter is stale or frivolous or
cantankerous or where the stakes or issue involved is so small and negligible, that grant
of leave or even issue of notice will cast a heavy burden in terms of expense, time and
energy on a poor or ordinary respondent.
6. There is a third recognised area of exclusion relating to orders which do not decide
any issue. Orders admitting a petition/appeal/revision, or orders issuing notice to show
cause why a petition/appeal/revision should not be entertained, or an order merely
adjourning a case, fall under this category. Extraordinary situations leading to
irreversible injustice can of course be exceptions to the exclusion. This case falls under
the third category of exclusion, but does not fall under the exception to the exclusion.
7. It is a matter of concern that there is a noticeable increase in the number of special
leave petitions against such 'non-orders' referred to as orders.
8. The special leave petition is dismissed.
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203
204
205
206
 STATE OF UTTAR PRADESH A
v.
CHANDRIKA

OCTOBER 29, 1999

[K.T. THOMAS AND M.B. SHAH, JJ] B

Criminal trial-Criminal case-Disposal on the basis of plea

bargaining-Held, not permissible.

Indian Penal Code, 1860: Sections 302, 304, 307 and 34-Murder- C
Accused-Conviction by Trial Court under section 304-Appeal-Acceptance
of plea bargaining by High Court--Conviction of accused under section 304
upheld but sentence altered to the period of imprisonment already undergone-
Appeal before High Court-Acceptance of plea bargaining by High Court
held illegal and erroneous--Concept of plea bargaining held against public D
policy--Court should decide case on merits-if accused corifesses his guilt
Court should impose appropriate sentence-Mere acceptance of guilt by
accused is no ground to reduce sentence.

The respondent along with two other accused persons was charged
under Section 302 read with sections 307 and 34 of the Indian Penal Code, E
1860. The Sessions Judge convil:ted him under Section 304 and sentenced
him to undergo eight years' rigorous imprisonment. ID this appeal to the High
Court the re.pondent opted not to challenge the findings of conviction recorded
by the High Court with a view to bargain on the question of sentence. The
High Court accepted the plea bargain and maintained the conviction of
respondent under section 304 Part I, but altered the sentence to the period of F
imprisonment already undergone plus a fine of Rs. 5000 and in default of
payment rigorous imprisonment for six months. In its judgment the High
Court did not state as to what was the actual period of imprisonment undergone
by the respondent but observed that as the incident had taken place long back
and since the appellant had been in jail for sometime both as undertrial G
prisoner and as a convict it was desirable to substitute his remaining period
of jail sentence awarded by the Trial Court.

In State's appeals to this Court, on the legality of 'plea bargaining':

239 H

207
 240 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A Allowing the appeals, the Court

HELD : 1, The order passed by the High Court is on the face of it, illegal
and erroneous. The concept of 'plea bargaining' is not recognised and is
against public policy under criminal justice system. Section 320 of the
Criminal Procedure Code, 1973 provides for compounding or certain offences
B with the permission of the Court and certain others even without permission
of the Court. Except the above, the concept of negotiated settlement in criminal
cases is not permissible. This method of short circuiting the hearing and
deciding the criminal appeals or cases involving serious offences requires
no encouragement. Neither the State nor the public prosecutor nor even the
.C Judge can bargain that evidence would not be led or appreciated in
consideration of getting Oee bite sentence by pleading guilty.
(241-H; 242-A, BJ

2. 1t' is settled law that on the basis of plea bargaining Court cannot
dispose of the criminal cases. The Court has to decide it on merits. If accused
D confesses his guilt, appropriate sentence is required to be imposed. Further,
the approach of the Court in appeal or revision should be to find out whether
the accused is guilty or not on the basis of evidence on record. If he is guilty,
appropriate sentence is required to be imposed or maintained. If the appellant
or his counsel submits that he is not challenging the order of conviction, as
E there is sufficient evidence to connect the accused with the crime, then also
the Court's conscience must be satisfied before passing final order that the
said concession is based on the evidence on record. In such cases, sentence
commensurating with the crime committed by the accused is required to be
imposed. Mere acceptance or admission of the guilt should not be a ground
for reduction of sentence. Nor can the accused bargain with the Court that as
F he is pleading guilty sentence be reduced. Consequently, the impugned order
passed by the High Court is quashed and set aside. The High Court is directed
to decide the appeals on merits in accordance with law. (245-E-F-G; 246-A)
Madan/al Ram Chandra Daga etc. v. State of Maharashtra, (1968) 3
SCR 34; Murlidhar Meghraj Loya v. State of Maharashtra, [1976) 3 SCC
G 684; Ganeshmal Jashraj v. Government of Gujarat and Anr., (1980) 1 sec
363; Thippaswamy v. State of Karnataka, [1983) 1 SCC 194 and Kucchia
Patel Shanti/al Kader/al v. State of Gujarat and another, [1980) 3 SCC 120,
relied on.

H Maneka Gandhi v. Union of India, [1978) 1 SCC 248, cited.

208
 STATE v. CHANDRIKA [SHAH, J.] 241
Arnold: Law Enforcement-An Attempt at Social Dissection, 42 Yale, A
LJ 19 (1932), referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.

1131-32 of 1999.

From the Judgment and Order dated 28.11.97 of the Allahabad High B
Court in Cr!. A. No. 2747 of 1980.

Vishwajit Singh and A.S. Pundir for the Appellant.

R.D. Upadhyay, K.L. Gautam and Girdhar G. Upadhyay, Advs. for the C
Respondent.

The Judgment of the Court was delivered by

SHAH, J. Leave granted.

D
These appeals by special leave are filed by the State of U.P. against the
judgment and order dated 28 November, 1997 passed by the High Court of

- Judicature at Allahabad in Criminal Appeal Nos. 2747-48of1980 whereby the

High Court accepted the plea bargain and maintained the conviction of the
respondent under Section 304 part I, l.P.C. but altered the sentence to the
period of imprisonment already undergone (without stating ~ctual period of E
imprisonment undergone by the respondent) plus a fine of~'. 5000 in default
of payment R.I. for six months. The respondent along .~ith two others was
charged under Section 302 read with Sections 307 and 341.P.C. for committing
the murder of one Shyamadeo in Sessions Case No. 233 of 1980. The Sessions
Judge, Ballia by his judgment and order dated 28.11.J 980 convicted the F
respondent under Section 304 I.P.C. and sentenced him to undergo eight
years R.I. Aggrieved by the said order, respondent preferre_d an appeal before
the High Court and at the time of hearing opted not to challenge the findings
of conviction recorded by the trial Court with a view to bargain on the
question of sentence. Learned Single Judge, (Malaviya, J.) accepted the
bargain and allowed the appeal by observing inter alia that as the incident G
had taken place long back and since the appellant had been in jail for
sometime both as undertrial prisoner and as 'a. convict, it was desirable to
substitute his remaining period of jail sentence as awarded by the trial court
and altered the sentence as stated above. The State has challenged that
judgment and order by filing these appeals. H

209
 242 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A It is apparent that the order passed by the High Court is, on the face
of it, illegal and erroneous. It appears that the learned Judge has overlooked
the settled law or is unaware that concept of 'plea bargaining' is not recognised
and is against public policy under our criminal justice system. Section 320 Cr.
P.C. provides for compounding of certain offences with the permission of the
B Court and certain others even without permission of the Court. Except the
above, the concept of negotiated settlement in criminal cases is not permissible.
This method of short circuiting the hearing and deciding the criminal appeals
or cases involving serious offences requires no encouragement. Neither the
State nor the public prosecutor nor even the Judge can bargain that evidence
would not be led or appreciated 'in consideration of getting flee bite sentence
C by pleading guilty.

For this purpose, we would first refer to the decision in Madan/al Ram
ChandraDaga etc. v. State of Maharashtra, [1968] 3 SCR 34 (Page No. 39),
wherein this Court held :- -
D "In our opinion, it is very wrong for a court to enter into a bargain
of this character. Offences should be tried and punished according to
the guilt of the accused. If the Court thinks that leniency can be
shown on the facts of the case it may impose a lighter sentence. But

E
the court should never be a party to a bargain by which money is
recovered for the complainant through their agency. We do not approve
-
of the action adopted by the High Court .."

Again the question of plea bargain was considered by this Court in

Murlidhar Meghraj Loya v. State ofMaharashtra, [1976) 3 SCC 684 (Para 13),
and disapproved by following succinct observation:-
F
"To begin with, we are free to confess to a hunch that the appellants
had hastened with their pleas of guilty hopefully induced by an
informal, 'tripartite understanding of light sentence in lieu of nolo
contendere stance. Many economic offenders resort to practices the
Americans call 'plea bargaining', 'plea negotiation', 'trading out' and
G 'compromise in criminal cases' and the trial magistrate drowned by a
docket burden nods assent to the sub rosa ante-room settlement. The
businessman culprit, confronted by a sure prospect of the agony and
ignominy of tenancy of a prison cell, 'trades out' of the situation, the
-
bargain being a plea of guilt, coupled with a promise of 'no jail'.
H These advance arrangements please everyone except the distant

210
 STATE v. CHANDRIKA [SHAH, J.) 243
victim, the silent society. The prosecutor is relieved of the long A
process of proof, legal technicalities and long arguments, punctuated
by revisional excursions to higher courts, the court sighs relief that
its ordeal, surrounded by a crowd of papers and persons, is avoided

- by one case less and the accused is happy that even if legalistic
battles might have held out some astrological hope of abstract acquittal
in the expensive hierarchy of the justice-system he is free early in the
B

day to pursue his old profession. It is idle to speculate on the virtue

of negotiated settlements of criminal cases, as obtains in the United
States but in our jurisdiction, especially in the area of dangerous
economic crimes and food offences, this practice intrudes on society's
interest by opposing society's decision expressed through C
predetermined legislative fixation of minimum sentences and by subtly
subverting the mandate of the law. The jurists across the Atlantic
partly condemn the bad odour of purchased pleas of guilt and partly
justify it philosophically as a sentence concession tc a defendant who
has by his plea 'aided in ensuring the prompt and certain application D
of correctional measures to him' :

In civil cases we find compromises actually encouraged as a more

satisfactory method of settling disputes between individuals than an
actual trial. However, if the dispute ..... finds itself in the field of criminal
law, "Law Enforcement'' repudiates the idea ofcompromise as immoral, E
or at best a necessary evil. The "State" can never compromise. It
must "enforce the law". Therefore open methods of compromise are
impossible. [Arnold : Law Enforcement-An attempt at Social
Dissection, 42 Yale, L.J.L 19 (1932)]"
(Emphasis Added) F

In Ganeshmal Jashraj v. Government of Gujarat and Another, [ 1980] 1

SCC 363 and Thippaswamy v. State of Karnataka, (1983] 1 SCC 194, this
Court set-aside the order passed by t~e High Court enhancing the sentence
and remanded the matter to the Judicial Magistrate for trial of the accused in G
accordance with the Jaw, as conviction and sentence were based on admission
of guilt as a result of plea bargaining. In Ganeshmal Jashraj (Supra), the
High Court had enhanced the sentence for the offence punishable under
Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954 by holding
that it was patently in breach of the requirement of the said Section, which
provided for a minimum sentence of imprisonment for three months (now six H

211
 244 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A months). This Court set aside that order by holding that there can be no
doubt that when there is an admission of guilt made by the accused as a
result of plea bargaining or otherwise, the evaluation of the evidence by the
Court is likely to become a little superficial and perfunctory and the Court may
be disposed to refer to the evidence not critically with a view to assessing
B its credibility but mechanically as a matter of formality in support of the
admission of guilt. The entire approach of the Court to the assessment of the
evidence would be likely to be different when there is an admission of guilt
by the accused. Similarly, in Thippaswamy v. State of Karnataka, (1983) 1
SCC 194, Court observed that it would be violative of Article 21 of the
Constitution to induce or lead an accused to plead guilty under a promise or
C assurance that he would be let off lightly and then in appeal or revision, to
enhance that sentence. In such cases, the Court of appeal or revision should
set aside the conviction and sentence of the accused and remand the case
to the trial court so that the accused can, if he so wishes defend himself
against the charge and if he is found guilty, proper sentence can be passed
D against him.

This Court strongly disapproved the practice of plea bargain in Kachhia

Patel Shanti/al Kader/al v. State a/Gujarat and another, [1980] 3 SCC 120.
The Court held that practice of plea bargaining is unconstitutional, illegal and
would tend to encourage corruption, collusion and pollute the pure fount of
E justice. In that case accused was convicted under Section 16(1 )(a)(i) read with
Section 7 of the Prevention of Food Adulteration Act, 1954 by the Magistrate
on the basis of plea bargaining which took place between prosecution, the
defence and the learned Magistrate and accused was let-off with a nominal
sentence of imprisonment till rising of the Court and a small fine. The High
F Court on its attention being drawn towards the order passed by the learned
Magistrate initiated suo motu proceeding in the revision by issuing notice to
the accused to show cause why the sentence imposed on him should not be
enhanced. The High Court enhanced the sentence and sentenced the accused /

to imprisonment for a term of three months and a fine of Rs. 500. That order
was challenged before this Court. The 'Court held that the conviction of the
G accused was based solely on the plea of guilty entered by the appellant as.
a result of plea bargaining between the prosecution, the defence and the
learned Magistrate. The Court observed that :-

"It is obvious that such conviction based on the plea of guilty

H entered by the appellant as a result of plea bargaining cannot be

212
 STATE v. CHANDRIKA [SHAH, J.] 245
-?· sustained. It is to our mind contrary to public policy to allow a A
conviction to be recorded against an accused by inducing him to
confess to a plea of guilty on an allurement being held out to him that
if enters a plea of guilty, he will be let off very lightly. Such a
procedure would be clearly unreasonable, unfair and unjust and would
be violative of the new activist dimension of Article 21 of Constitution B
unfolded in the case of Mane/ca Gandhi v. Union of India, (1978] I
SCC 248. It would have the effect of polluting the pure fount of
justice, because it might induce an innocent accused to plead guilty
to suffer a light and inconsequential punishment rather than go through
a long and arduous criminal trial which, having regard to our cumbrous
and unsatisfactory system of administration of justice, is not only C
long drawn out and ruinous in terms of time and money, but also •
uncertain and unpredictable in its result and the judge also might be
likely to be deflected from the path of duty to do justice and he might
either convict an innocent accused by accepting the plea of guilty or
let off a guilty accused with a light sentence, thus, subverting the D
process of law and frustrating the social objective and purpose of the
/
anti-adulteration statute. This practice would also tend to encourage
corruption and collusion and as a direct consequence, contribute to
the lowering of the standard of justice. There is no doubt in our mind
that the conviction of an accused based on a plea of guilty entered
by him as a result of plea bargaining with the prosecution and the E
magistrate must be held to be unconstitutional and illegal."

Hence, it is settled law that on the basis of plea bargaining Court cannot
dispose of the criminal cases. The Court has to decide it on merits. If accused
confesses his guilt, appropriate sentence is required to be imposed. Further, F
the approach of the Court in appeal or revisions should be to find out whether
the accused is guilty or not on the basis of evidence on record. If he is guilty,
appropriate sentence is required to be imposed or maintained. If the appellant
or his counsel submits that he is not challenging the order of conviction, as
there is suffiCient evidence to connect the accused with the crime, then also
the Courfs conscious must be satisfied before passing final order that the G
-. said concession is based on the evidence on record. In such cases, sentence
commensurating with the crime committed ~y the accused is required to be
imposed. Mere acceptance or admission of the guilt should not be a ground
for reduction of sentence. Nor can the accused bargain with the Court that
as he is pleading guilty sentence be reduced. H

213
 246 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A In the result, appeals are allowed. Impugned order dated 28 November,

1997 passed by the High Court is quashed and set aside. The High Court is
directed to decide the appeals on merits in accordance with law.

T.N.A. Appeals allowed. ---

·-

214
 MANU/SC/0931/2004
Equivalent/Neutral Citation: 2005(1)AC R471(SC ), 2005(25)AIC 364, AIR2005SC 44, 2005(1)ALD(C ri)87, 2005(1)ALD87(SC ), 2005 (51) AC C 175,
IV(2004)C C R270(SC ), 2005C riLJ108, 2004(4)C rimes270(SC ), 2004 INSC 627, 2005(3)JLJ205(SC ), 2004(4)RC R(C riminal)942, 2004(9)SC ALE149,
(2004)13SC C 308, [2004]Supp5SC R780

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 238-239 of 2004
Decided On: 29.10.2004
State of Madhya Pradesh Vs. Dharkole and Ors.
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and C.K. Thakker, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Siddhartha Dave and Vibha Datta Makhija, Advs
For Respondents/Defendant: S.K. Dubey, Sr. Adv., Jai Prakash Pandey and Nandita
Dubey, Advs.
Case Note:
Indian Penal Code, 1860 - Sections 302/149 and 148--Murder--Conviction
and sentence by trial court--But acquittal by High Court--Whether justified?--
Held, "no"--Fact that names of witnesses do not appear in F.I.R. --Not itself
ground to doubt their evidence--No requirement of mentioning names of all
witnesses in F.I.R.--High Court's conclusion that medical evidence varied from
ocular evidence--Suffering from vulnerability --Not necessary for prosecution
to examine somebody as witness even though witness not likely to support
prosecution version -- Reasons indicated by prosecution as to why it did not
choose to examine alleged independent persons--Minor points do not affect
credibility of evidence--High Court's judgment indefensible and set aside.
JUDGMENT
Arijit Pasayat, J.
1 . State of Madhya Pradesh calls in question legality of the judgment rendered by a
Division Bench of the Madhya Pradesh High Court, at Jabalpur directing acquittal of the
respondents (hereinafter referred to as the 'accused') on the ground that prosecution
failed to prove their guilt beyond reasonable doubts. Originally eight persons faced trial.
Out of them co-accused Sunita and Kapoor Singh were acquitted. During the pendency
of the trial one Ramkishore absconded. Two others Bhoora and Jabar Singh had died
during trial. Trial Court convicted accused Komal Singh, Manni and Dharkole. During
pendency of the appeal before this Court, accused Komal has died and the appeal
stands abated so far as she is concerned. All the three accused were convicted for
offences punishable under Section 302 read with Section 149 of the Indian Penal Code,
1860 (in short the 'IPC'). Appellant Manni was convicted for an offence punishable
under Section 148 I.P.C. while the other two have been convicted for an offence
punishable under Section 147 I.P.C. Each one of them has been sentenced to undergo
imprisonment for life with a fine of Rs.5,000/- for the offence punishable under Section
302 read with Section 149 of I.P.C. Manni was directed to suffer rigorous imprisonment
for two years for the offence punishable under Section 148 I.P.C. while the other two
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215
with rigorous imprisonment for one year for the offence punishable under Section 147.
2. Prosecution Version in a nutshell is as follows:
One Hamid Khan (hereinafter referred to as the deceased) was posted as a
police constable in police station-Seodha. On the fateful day i.e. on 13.10.1989
at around 7 o'clock in the evening an information was received in the police
station that one Manni and his friends, who were wanted, were hiding in the
house of one Mannu Teli. The deceased accompanied by head-constable
Dayaram went in their search to the house of that Mannu Teli. At the house of
Mannu Teli, his daughter Sunita met the police party and quarreled with them.
Later on, on the same day at about 7.45 P.M. she provoked the present
respondents and four others viz., Bhure, Jabar Singh, Ramkishore and Kapoor
Singh by weeping before them and telling them that the deceased had insulted
her. They all conspired to kill the deceased on that very day. Thereafter when
the deceased Hamid Khan came to the betel shop of one Santosh in Seodha
itself, those persons excluding Kapoor Singh came there in two batches of three
each armed with sword, Gupti etc. After reaching near the shop of said
Santosh, accused Bhure caught hold of the deceased and thereafter Jabbarsingh
gave a blow by sword injuring the deceased below his left ear. Then accused
Manni inflicted an injury below his right ear with a Gupti. As the deceased fell
on ground, Kapoor Singh asked others to kill him. Accused Dharkole picking up
a stone which was lying nearby; assaulted on the head of deceased. Kapoor
Singh warned all those present there not to utter a word. Accused Komal
thereafter kicked the deceased and all of them went away from there. However,
one Ashok Sindhi informed head-constable Dayaram, who was on duty at that
time at the Municipal House that some one has beaten one constable near the
shop of Santosh. On receiving this information, head-constable Dayaram
reached the spot and found the deceased lying seriously wounded. Suspecting
the hands of present respondents and their friends in it because of the earlier
attempt for their arrest, he informed his officer at police station. The Officer-in-
charge of the police station thereafter reached the spot, inspected it and seized
the blood stained and non-stained mud from the spot and the blood stained
stone which was also lying nearby together with a wooden handle of Gupti.
Subsequently, after his arrest accused Manni had led to the discovery of the
remaining part of the Gupti, which was used by him in the crime. The deceased
who was at that time only injured was immediately referred to Hospital and
from the Hospital was referred to Gwalior for better treatment. On reaching
Gwalior he was declared dead at Gwalior Hospital by the doctor concerned.
Autopsy was performed by Dr. Vijay Kumar Diwan (PW-5) and it was found that
he has succumbed to the injuries found on the body. Dr. V.S. Singh (PW-15),
who had examined the deceased in Seodha, had found one lacerated wound on
the parietal region, one abrasion on the neck and five incised wounds. Out of
these five incised wounds two were on the left side of his face, one below the
ear and the other on the mandible and remaining three were on the right side of
the face, one on the ear and two on the mandible.
3. The three accused persons who were tried jointly with two other co-accused persons
preferred an appeal before the High Court. The primary stand before the High Court was
that the medical evidence was at variance with the ocular evidence. Many persons who
were stated to be present during the occurrence were not examined and on the basis of
evidence of partisan witnesses, the conviction has been recorded and, therefore, the
judgment was indefensible. The High Court by the impugned judgment held that the
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216
medical evidence was at variance with the ocular evidence, by reference to PW 15 who
has stated that the Gupti which was supposed to be used was not sharp enough to
cause the injuries. There was manipulation in records. Though the place of occurrence
was nearby the police station, the information at the police station was lodged after a
considerable lapse of time.
4. The High Court noticed that there was inconsistency in the evidence of so called eye
witnesses i.e. PWs. 13 and 16. It was observed discrepancies were not only between the
statements of these witnesses but the statement of each one of them was also
inconsistent with his earlier statement recorded during investigation. Therefore, they
cannot be relied upon in view of the fact that some of them had a criminal background
their evidence was not worthy of credence. Accordingly the judgment of the trial Court
has been set aside.
5 . In support of the appeal learned counsel for the appellant-State submitted that the
High Court has without any justifiable reason discarded the cogent and credible
evidence of the prosecution version. There were three eye witnesses who have
categorically stated about the manner in which the injury was caused. The medical
evidence shows that there was a possibility that the injuries were not possible by the
weapon held by one person. But it was not sufficient to discard their evidence. Three
witnesses were examined and they were not partisan witnesses, and on the contrary
they were independent witnesses. The prosecution has tendered evidence to show as to
why the examination of other persons was unnecessary. That being so it was submitted
that the judgment of the trial court should be restored and that of the High Court set
aside.
6 . In response, Mr. S.K. Dubey, learned senior counsel for the respondents submitted
that there has been suppression of the genesis of the dispute and prosecution has not
been fair. There has been manipulation of the first information report and the
prosecution has gone to the extent of manipulating records to show that one person
was an eye witness, but in fact he was not so. The conspiracy as projected by the
prosecution has been disbelieved. The chemical examiner's report has not been
exhibited which could have shown that there was any human blood present on the
alleged weapon. There was no injury which could have been possible by the throwing of
the stone. Non-examination of person who had claimed to be present as eye witness
shows that there is a great deal of doubt on the acceptability of prosecution version.
The witnesses have not only lied but also exaggerated to establish the prosecution case.
View taken by the trial Court was not a correct view and was, therefore, rightly set
aside.
7. A bare perusal of the judgment of the High Court shows that it has disposed of the
appeal in a rather casual manner. Most of the conclusions arrived at by the High Court
are per se not on sound footing. The appellate Court will not abjure its duty to prevent
miscarriage of justice by interfering where interference is imperative. Where doubt is
based on irrelevant grounds or where the Court allows itself to be deflected by red
herrings drawn across the track, or where the evidence accepted by the Trial Court is
rejected by the High Court after a perfunctory consideration or where the baneful
approach of the Court has resulted in vital and crucial evidence being ignored or for any
such adequate reason, the Court should feel obliged to secure the ends of justice, to
appease the judicial conscience, as it were. The High Court has noted that the names of
witnesses do not appear in the first information report. That by itself cannot be a
ground to doubt their evidence as noted by this Court in Bhagwan Singh and Ors. v.
State of M.P., Chittar Lal v. State of Rajasthan AIR 2003 SCW 3456 and State of Madhya
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Pradesh v. Man Singh and Ors. 2003 (6) Sup 202. There is no requirement of
mentioning the names of all witnesses in the first information report.
8. Coming to the plea that the medical evidence is at variance with ocular evidence, it
has to be noted that it would be erroneous to accord undue primacy to the hypothetical
answers of medical witnesses to exclude the eye-witnesses' account which had to be
tested independently and not treated as the "variable" keeping the medical evidence as
the "constant".
9 . It is trite that where the eye-witnesses' account is found credible and trustworthy,
medical opinion pointing to alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and
primacy of the quality of the trial process. Eye witnesses' account would require a
careful independent assessment and evaluation for their credibility which should not be
adversely prejudged making any other evidence, including medical evidence, as the sole
touchstone for the test of such credibility. The evidence must be tested for its inherent
consistency and the inherent probability of the story; consistency with the account of
other witnesses held to be credit-worthy; consistency with the undisputed facts; the
'credit' of the witnesses; their performance in the witness-box; their power of
observation etc. Then the probative value of such evidence becomes eligible to be put
into the s for a cumulative evaluation.
10. A person has, no doubt, a profound right not to be convicted of an offence which is
not established by the evidential standard of proof beyond reasonable doubt. Though
this standard is a higher standard, there is, however, no absolute standard. What
degree of probability amounts to 'proof' is an exercise particular to each case? Referring
to probability amounts to 'proof' is an exercise the inter-dependence of evidence and
the confirmation of one piece of evidence by another a learned author says: (See "The
Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and
Maxwell, p.340 (342).
"The simple multiplication rule does not apply if the separate pieces of evidence
are dependent. Two events are dependent when they tend to occur together,
and the evidence of such events may also be said to be dependent. In a
criminal case, different pieces of evidence directed to establishing that the
defendant did the prohibited act with the specified state of mind are generally
dependent. A junior may feel doubt whether to credit an alleged confession,
and doubt whether to infer guilt from the fact that the defendant fled from
justice. But since it is generally guilty rather than innocent people who make
confessions and guilty rather than innocent people who run away, the two
doubts are not to be multiplied together. The one piece of evidence may
confirm the other."
1 1 . Doubts would be called reasonable if they are free from a zest for abstract
speculation. Law cannot afford any favourite other than truth. To constitute reasonable
doubt, it must be free from an over emotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused persons arising from the evidence, or
from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not
an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason
and commonsense. It must grow out of the evidence in the case.
12. The concepts of probability, and the degrees of it, cannot obviously be expressed in
terms of units to be mathematically enumerated as to how many of such units constitute

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proof beyond reasonable doubt. There is an unmistakable subjective element in the
evaluation of the degrees of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense and, ultimately, on the
trained intuitions of the judge. While the protection given by the criminal process to the
accused persons is not to be eroded, at the same time, uninformed legitimization of
trivialities would make a mockery of administration of criminal justice. This position
was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of
U.P. v. Krishna Gopal and Anr. MANU/SC/0506/1988 : 1989CriLJ288 .
13. On that score also the High Court's conclusion that the medical evidence varied with
the ocular evidence suffers from vulnerability.
14. It is not necessary for prosecution to examine somebody as a witness even though
the witness was not likely to support the prosecution version. Non-examination of some
persons per se does not corrode vitality of prosecution version, particularly when the
witnesses examined have withstood incisive cross-examination and pointed to the
respondents as the perpetrators of the crime.
15. In the instant case the prosecution has indicated the reasons as to why it did not
choose to examine the alleged independent persons. There is nothing unusual in the
conduct of the eye witnesses as was inferred by the High Court. The High Court has put
unwarranted stress on certain aspects like the political party accused Dharkole
belonged, or the place from where the witnesses came together. The High Court found
that the business of the PW1 was claimed to be a supply of milk, but no sufficient basis
have been indicated as to where he was going to sell milk at the time of alleged
offence. These minor points do not affect the credibility of evidence and should not
have been magnified. Looking at from the aforesaid perspective the judgment of the
High Court is indefensible and therefore set aside. It is true that in case acquittal has
been recorded the Appellate Court should not lightly interfere with the same. But where
the evidence has not been properly analysed or the Court has acted on surmises or
conjectures, it is the duty of the appellate Court to set right the wrong. The case at
hand is one where the High Court ignored the relevant aspects and unnecessarily put
emphasis on certain aspects which did not have any foundation. That being so, the
appeals are allowed and the judgment of the trial Court is restored by reversing the
judgment of the High Court. The respondents shall surrender to custody forthwith to
serve remainder of sentence.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0463/2012
Equivalent/Neutral Citation: 2012AC R2562, 2012(115)AIC 114, AIR2012SC 2301, 2012(2)ALD(C ri)370, 2012 (78) AC C 167, 2012(3)BLJ114,
II(2012)C C R379(SC ), 2012C riLJ2999, 2012(2)C rimes294(SC ), 2012 INSC 240, 2012(3)J.L.J.R.1, 2012(2)JC C 1482, 2012(2)N.C .C .161,
2012(3)PLJR121, 2012(4)RC R(C riminal)305, 2012(5)SC ALE634, (2012)6SC C 770, [2012]6SC R1, 2012(2)UC 1359

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1887 of 2008
Decided On: 18.05.2012
State of Rajasthan Vs. Vinod Kumar
[Alongwith Criminal Appeal No. 1888 of 2008]
Hon'ble Judges/Coram:
B.S. Chauhan and Dipak Misra, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ram Naresh Yadav, Adv., For Milind Kumar, Adv.
For Respondents/Defendant: Naresh K. Sharma, Vivek Raj Singh Bajwa, Chaudhary
Shamsuddin Khan, Lal Pratap Singh, Ram Niwas, Advs. for N. Annapoorani, Adv.
Case Note:
Criminal - Reduction in Sentence - Legality of Section 376 of Indian Penal
Code, 1860 (IPC) - Appeals against order passed by High Court, by which,
conviction of Respondents made by Special Judge, had been maintained but
sentence had been reduced - Whether there could be any justification for High
Court in reduction of sentences and that too without recording any reason -
Held, in case of State of Madhya Pradesh v. Santosh Kumar, this Court held
that in order to exercise discretion of reducing sentence, statutory
requirement was that Court had to record adequate and special reasons in
judgment and not fanciful reasons which would permit Court to impose a
sentence less than prescribed minimum - Reason had not only to be adequate
but also special - What was adequate and special would depend upon several
factors and no straitjacket formula could be indicated - In case of Kamal
Kishore etc. v. State of Himachal Pradesh, this Court held that, reasons which
were general or common in many cases could not be regarded as special
reasons - Awarding punishment lesser than minimum prescribed under
Section 376 of IPC, was an exception to general rule - Exception clause was
to be invoked only in exceptional circumstances where conditions
incorporated in exception clause itself existed - Exception clause was always
required to be strictly interpreted even if there was a hardship to any
individual - Punishment should always be proportionate/commensurate to
gravity of offence - Religion, race, caste, economic or social status of Accused
or victim, were not relevant factors for determining quantum of punishment -
Court had to decide punishment after considering all aggravating and
mitigating factors and circumstances in which crime had been committed -
Conduct and state of mind of Accused and age of sexually assaulted victim
and gravity of criminal act were factors of paramount importance - Court must
exercise its discretion in imposing punishment objectively considering facts
and circumstances of case - Power under proviso was not to be used
indiscriminately in a routine, casual and cavalier manner because an
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exception clause required strict interpretation - Court while exercising
discretion in exception clause had to record "exceptional reasons" for
resorting to proviso - Recording of such reasons was sine qua non for granting
extraordinary relief - What was adequate and special would depend upon
several factors and no straight jacket formula could be laid down - Findings
on commission of rape had been affirmed without discussing evidence on
record - No such reasons had been recorded by Court for reducing sentence -
Thus, Court failed to ensure compliance of such mandatory requirement but
awarded punishment lesser than minimum prescribed under IPC - Such an
order was violative of mandatory requirement of law and had defeated
legislative mandate - Sentences awarded by High Court were set aside and
awarded by trial Court was restored - Appeals allowed
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO SEXUAL HARASSMENT, KIDNAPPING AND
ABDUCTION
ORDER
1. These appeals have been preferred by the State against the judgment and order
dated 5.4.2007 passed by the High Court of Judicature for Rajasthan (Jaipur Bench) in
S.B. Criminal Appeal No. 103 of 2005 and S.B. Criminal Appeal No. 82 of 2005, by
which, the conviction of the Respondents Vinod Kumar under Section 376 of the Indian
Penal Code, 1860 (hereinafter called Indian Penal Code) and Heera Lal under Section
376 read with Section 120B Indian Penal Code made by the Special Judge, Scheduled
Castes/Scheduled Tribes (Prevention of Atrocities) Act (hereinafter called SC/ST Act)
Jaipur dated 22.1.2005 passed in Sessions Case No. 123 of 2002 has been maintained
but the sentence of Respondent Vinod Kumar has been reduced from 7 years to 5 years
and that of accused Heera Lal from 7 years to 11 months and 25 days.
2 . Facts and circumstances giving rise to these appeals are that on 29.8.2002, Guddi,
complainant, appeared before the Officer Incharge of the police station alongwith her
brother-in-law Babu Lal and submitted a report that one day earlier, i.e. on 28.8.2002
she attended a memorial function in respect of death of her relative. She left the place
alongwith Babu Lal, her brother-in-law and stayed in the Jai Hotel. Two persons came
there and one of them introduced himself to be the Station House Officer and wanted to
check the room. Another person asked her relationship with other occupant Babu Lal.
She informed about her relationship but he raised the question as to why such a
relationship has not been disclosed in the Hotel Register and thus, under this pretext,
they entered into the room for holding enquiry. They took Babu Lal, brother-in-law of
the complainant outside. Thereafter, one of them came alone into the room, bolted the
door from inside, and pushed her on the cot forcibly and committed rape upon her. She
raised alarm but in vain. After commission of rape he fled away by opening the door of
the room. She also gave the description of the said person.
3. On the basis of the aforesaid report, Case No. 168 of 2002 under Sections 376, 120B
Indian Penal Code was registered and investigation commenced. During the course of
investigation, the accused were arrested and identification parade took place. The
prosecutrix was medically examined. After completion of the investigation, chargesheet
under Sections 376, 120B Indian Penal Code and Section 3(2)(5) of SC/ST Act was filed
against Vinod Kumar and Heera Lal. The prosecution in support of its case examined
Guddi, Babu Lal and a large number of other witnesses including the doctors who had
examined the prosecutrix. The Respondents were examined under Section 313 of Code

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of Criminal Procedure, 1973 (hereinafter called Code of Criminal Procedure.). They
simply denied their involvement, however, they did not adduce any evidence in defence.
After appreciating the evidence on record, the trial Court convicted the said
Respondents under Section 376 Indian Penal Code and Section 376/120B Indian Penal
Code respectively and awarded punishment for 7 years Rigorous Imprisonment and a
fine of 5,000/- to each and in default, the accused were ordered to undergo simple
imprisonment for 3 months.
4 . Aggrieved, both of them preferred appeals before the High Court which have been
disposed of by the impugned judgment. The High Court maintained their convictions as
awarded by the trial Court. However, their sentences have been reduced as
aforementioned. Hence, these appeals.
5 . Learned Counsel for the State has submitted that in a case of rape, the minimum
punishment is 7 years and mandatory requirement under Section 376 Indian Penal Code
is to impose the punishment of imprisonment of either description for a term which
shall not be less than 7 years but which may be life or for a term which may extend to
10 years, provided that the court may for adequate and special reasons to be mentioned
in the judgment, impose the punishment for a term less than 7 years. In the instant
case, the High Court did not record any special and adequate reasons and reduced the
punishment substantially. Therefore, in case the High Court maintained their convictions
for the aforesaid offences, there was no justification for reducing their sentences. Thus,
the appeals deserve to be allowed.
6 . On the contrary, Shri Naresh Kumar, learned Amicus Curiae has submitted that the
incident occurred more than a decade ago. The said Respondents had already served the
sentences awarded by the High Court. Undoubtedly, the High Court has not given any
adequate and special reasons for reduction of their sentences, however, it could be the
age, their social status, family circumstances which could have swayed the High Court
in reducing the sentences. Therefore, the impugned judgment and order does not
warrant interference. The appeals are liable to be dismissed.
7. We have considered the rival submissions made by Learned Counsel for the parties
and perused the records.
In the instant case as the Respondents have not challenged their order of conviction
under Section 376 Indian Penal Code and Section 376 read with Section 120B Indian
Penal Code respectively, it attained finality. Therefore, the only question remains for
consideration is as to whether there could be any justification for the High Court in
reduction of sentences and that too without recording any reason.
8 . The statutory requirement for awarding the punishment less than seven years is to
record adequate and special reasons in writing. Dictionary meanings of the word
"adequate" are commensurate in fitness, sufficient, suitable, equal in magnitude and
extent, and fully. "Special reasons" means exceptional; particular; peculiar; different
from others; designed for a particular purpose, occasion, or person; limited in range;
confined to a definite field of action.
Thus, in a case like the instant one, in order to impose the punishment lesser than
prescribed in the statute, there must be exceptional reasons relating to the crime as well
as to the criminal.
9 . I n Meet Singh v. The State of Punjab MANU/SC/0162/1980 : AIR 1980 SC
1141, this Court while dealing with expression "special reasons" held that it means
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special to the accused concerned. The court has to weigh reasons advanced in respect
of each individual accused whose case is taken up for awarding sentence. The word
'special' has to be understood in contradistinction to word 'general' or 'ordinary'. Thus,
anything which is common to a large class governed by the same statute, cannot be
said to be special to each of them. Therefore, in the context of sentencing process,
special reasons must be 'special' to the accused in the facts and circumstances of the
case in which the sentence is being awarded.
1 0 . I n Madhukar Bhaskarrao Joshi v. State of Maharashtra
MANU/SC/0680/2000 : AIR 2001 SC 147, this Court examined a similar provision
under the Prevention of Corruption Act, 1988 which also contained a provision that
accused shall be imposed the punishment which "shall not be less than one year",
however, a lesser punishment may be awarded recording the special reasons. The Court
held:
...The proviso is in the form of a rare exception by giving power to the Court for
reducing the imprisonment period below one year only when there are "special
reasons" and the law required that those special reasons must be recorded in
writing by the Court....
...Parliament measured the parameters for such condign punishment and in that
process wanted to fix a minimum sentence of imprisonment for giving deterrent
impact on other public servants who are prone to corrupt deals...Such a
legislative insistence is reflection of Parliament's resolve to meet corruption
cases with very strong hand and to give signals of deterrence as the most
pivotal feature of sentencing of corrupt public servants....
In the present case, how could the mere fact that this case was pending for
such a long time be considered as a "special reason"? That is a general feature
in almost all convictions under the PC Act and it is not a speciality of this
particular case. It is the defect of the system that longevity of the cases tried
under the PC Act is too lengthy. If that is to be regarded as sufficient for
reducing the minimum sentence mandated by the Parliament the
legislative exercise would stand defeated.
(Emphasis added)
11. In State of Jammu and Kashmir v. Vinay Nanda MANU/SC/0028/2001 : AIR
2001 SC 611, while dealing with a similar issue, this Court held as under:
...Where the mandate of law is clear and unambiguous, the Court has no option
but to pass the sentence upon conviction as provided under the statute....
The mitigating circumstances in a case, if established, would authorise the Court
to pass such sentence of imprisonment or fine which may be deemed to be
reasonable but not less than the minimum prescribed under an
enactment....
...For imposing the minimum sentence the Court has to record special reasons.
'Special reasons' have to be distinguished from 'good' or 'other reasons'. The
fact that the convict had reached his superannuation is not a special reason.
Similarly pendency of criminal case for over a period of time can also not be
treated as a special reason....
(Emphasis added)
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12. In State of Karnataka v. Raju MANU/SC/3800/2007 : AIR 2007 SC 3225, this
Court dealt with a case of rape of a minor girl below 12 years of age, wherein the High
Court reduced the sentence of the accused from seven years to three and a half years.
This Court held that the normal sentence in a case where rape is committed on a child
below 12 years of age, is not less than 10 years' rigorous imprisonment, though in
exceptional cases "for special and adequate reasons" sentence of less than 10 years'
rigorous imprisonment can also be awarded. The Court observed that socio-economic
status, religion, race, caste or creed of the accused or the victim are irrelevant
considerations in sentencing policy. After giving due consideration to the facts and
circumstances of each case, for deciding just and appropriate sentence to be awarded
for an offence, the aggravating and mitigating factors and circumstances in which a
crime has been committed are to be delicately balanced on the basis of relevant
circumstances in a dispassionate manner by the Court.
A similar view has been taken by this Court in State of Madhya Pradesh v. Babbu
Barkare @ Dalap Singh MANU/SC/0398/2005 : AIR 2005 SC 2846;Dinesh @
Buddha v. State of Rajasthan MANU/SC/8078/2006 : AIR 2006 SC 1267;Shailesh
Jasvantbhai and Anr. v. State of Gujarat and Ors. MANU/SC/0638/2006 : (2006)
2 SCC 359; and State of Madhya Pradesh v. Basodi MANU/SC/0666/2009 : AIR
2009 SC 3081)
1 3 . I n State of Karnataka v. Krishnappa MANU/SC/0210/2000 : AIR 2000 SC
1470, this Court while dealing with the issue held:
The measure of punishment in a case of rape cannot depend upon the social
status of the victim or the accused. It must depend upon the conduct of
the accused, the state and age of the sexually assaulted female and
the gravity of the criminal act. Crimes of violence upon women need to be
severely dealt with. The socio-economic status, religion, race, caste or creed of
the accused or the victim are irrelevant considerations in sentencing policy.
Protection of society and deterring the criminal is the avowed object of law and
that is required to be achieved by imposing an appropriate sentence.
(Emphasis supplied)
14. Similarly in State of Punjab v. Prem Sagar and Ors. MANU/SC/7692/2008 :
(2008) 7 SCC 550, this Court observed as under:
To what extent should the Judges have discretion to reduce the sentence so
prescribed under the statute has remained a vexed question. However, in India,
the view always has been that the punishment must be proportionate to
the crime. Applicability of the said principle in all situations, however, is open
to question. Judicial discretion must be exercised objectively having regard to
the facts and circumstances of each case.
(Emphasis supplied)
15. I n State of Madhya Pradesh v. Santosh Kumar MANU/SC/3063/2006 : AIR
2006 SC 2648, this Court held that in order to exercise the discretion of reducing the
sentence, the statutory requirement is that the court has to record adequate and special
reasons in the judgment and not fanciful reasons which would permit the court to
impose a sentence less than the prescribed minimum. The reason has not only to be
adequate but also special. What is adequate and special would depend upon several
factors and no straitjacket formula can be indicated. (See also: Harbans Singh v.

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State of Punjab MANU/SC/0087/1984 : AIR 1984 SC 1594;State of Andhra
Pradesh v. Vasudeva Rao AIR 2004 SC 960; State of M.P. v. Babulal
MANU/SC/0001/2008 : AIR 2008 SC 582; andState of Rajasthan v. Gajendra
Singh MANU/SC/7911/2008 : (2008) 12 SCC 720)
16. In Kamal Kishore etc. v. State of Himachal Pradesh MANU/SC/0306/2000 :
AIR 2000 SC 1920, this Court held that the expression "adequate and special reasons"
indicates that it is not enough to have special reasons, nor adequate reasons
disjunctively. There should be a conjunction of both for enabling the court to invoke the
discretion. Reasons which are general or common in many cases cannot be regarded as
special reasons. (See also: Bhupinder Sharma v. State of Himachal Pradesh
MANU/SC/0825/2003 : AIR 2003 SC 4684; andState of Andhra Pradesh v.
Polamala Raju @ Rajarao MANU/SC/0508/2000 : AIR 2000 SC 2854)
17. In State of M.P. v. Bala @ Balaram MANU/SC/0873/2005 : AIR 2005 SC 3567,
this Court while dealing with the issue observed:
The crime here is rape. It is a particularly heinous crime, a crime against
society, a crime against human dignity, one that reduces a man to an animal.
The penal statute has prescribed a maximum and a minimum punishment for an
offence under Section 376 Indian Penal Code. To view such an offence once it is
proved, lightly, is itself an affront to society. Though the award of maximum
punishment may depend on the circumstances of the case, the award of the
minimum punishment, generally, is imperative. The provisos to Sections 376 (1)
and 376 (2) Indian Penal Code give the power to the court to award a sentence
lesser than the minimum for adequate and special reasons. The power under
the proviso is not to be used indiscriminately or routinely. It is to be
used sparingly and only in cases where special facts and circumstances justify a
reduction. The reasons must be relevant to the exercise of such discretion
vested in the court. The reasons must be set out clearly and cogently. The
mere existence of a discretion by itself does not justify its exercise.
The long pendency of the criminal trial or the offer of the rapist to marry the
victim are not relevant reasons. Nor is the age of the offender by itself an
adequate reason. It is true that reformation as a theory of punishment is in
fashion but under the guise of applying such theory, the courts cannot forget
their duty to society and to the victim. The court has to consider the plight of
the victim in a case involving rape and the social stigma that may follow the
victim to the grave and which in most cases, practically ruins all prospects of a
normal life for the victim.
(Emphasis supplied)
18. I n Ravji @ Ram Chandra v. State of Rajasthan MANU/SC/0215/1996 : AIR
1996 SC 787, this Court held that it is the nature and gravity of the crime but not the
criminal, which are germane for consideration of appropriate punishment in a criminal
trial. The court will be failing in its duty if appropriate punishment is not awarded for a
crime which has been committed not only against the individual victim but also against
the society to which the criminal and victim belong. The punishment to be awarded for
a crime must not be irrelevant but it should conform to and be consistent with the
atrocity and brutality with which the crime has been perpetrated, the enormity of the
crime warranting public abhorrence and it should respond to the society's cry for justice
against the criminal.
19. Awarding punishment lesser than the minimum prescribed under Section 376 Indian
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Penal Code, is an exception to the general rule. Exception clause is to be invoked only
in exceptional circumstances where the conditions incorporated in the exception clause
itself exist. It is a settled legal proposition that exception clause is always required to
be strictly interpreted even if there is a hardship to any individual. Exception is provided
with the object of taking it out of the scope of the basic law and what is included in it
and what legislature desired to be excluded. The natural presumption in law is that but
for the proviso, the enacting part of the Section would have included the subject matter
of the proviso, the enacting part should be generally given such a construction which
would make the exceptions carved out by the proviso necessary and a construction
which would make the exceptions unnecessary and redundant should be avoided.
Proviso is used to remove special cases from the general enactment and provide for
them separately. Proviso may change the very concept of the intendment of the
enactment by insisting on certain mandatory conditions to be fulfilled in order to make
the enactment workable. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman
MANU/SC/0387/1985 : AIR 1985 SC 582;Union of India and Ors. v. Wood Papers
Limited and Anr. MANU/SC/0454/1991 : AIR 1991 SC 2049;Grasim Industries
Limited. and Anr. v. State of Madhya Pradesh and Anr. MANU/SC/0721/1999 :
AIR 2000 SC 66; Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and
Anr. MANU/SC/0287/2003 : AIR 2003 SC 3502;Project Officer, ITDP and Ors. v.
P.D. Chacko MANU/SC/0392/2010 : AIR 2010 SC 2626; andCommissioner of
Central Excise, New Delhi v. Hari Chand Shri Gopal and Ors.
MANU/SC/0955/2010 : (2011) 1 SCC 236).
20. Thus, the law on the issue can be summarised to the effect that punishment should
always be proportionate/commensurate to the gravity of offence.
Religion, race, caste, economic or social status of the accused or victim are not the
relevant factors for determining the quantum of punishment. The court has to decide the
punishment after considering all aggravating and mitigating factors and the
circumstances in which the crime has been committed. Conduct and state of mind of the
accused
and age of the sexually assaulted victim and the gravity of the criminal act are the
factors of paramount importance. The court must exercise its discretion in imposing the
punishment objectively considering the facts and circumstances of the case. The power
under the proviso is not to be used indiscriminately in a routine, casual and cavalier
manner for the reason that an exception clause requires strict interpretation. The
legislature introduced the imposition of minimum sentence by amendment in the Indian
Penal Code w.e.f. 25.12.1983, therefore, the courts are bound to bear in mind the effect
thereof.
The court while exercising the discretion in the exception clause has to record
"exceptional reasons" for resorting to the proviso. Recording of such reasons is sine qua
non for granting the extraordinary relief. What is adequate and special would depend
upon several factors and no straight jacket formula can be laid down.
21. In the instant case, the High Court recorded the submissions advanced on behalf of
the parties to the extent that none of the convicts wanted to press his appeal on merits
as it was not possible to succeed in view of the statement of the prosecutrix Guddi
(PW.1), recorded by the trial court and her statement recorded by the Magistrate under
Section 164 Code of Criminal Procedure. on 5th September, 2002. Thus, they pleaded
only for reduction of punishment.
The Public Prosecutor vehemently opposed the prayer for reduction of punishment.

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In spite of the fact that the Learned Counsel for the Appellants before the High Court did
not press their appeal on merits, the High Court affirmed the findings insofar as the
rape is concerned, recorded by the trial Court. The High Court held:
So far as commission of offence of rape with her is concerned, I find that the
same is fully proved from her statement and other prosecution evidence, and I
am of the view that the learned trial Court has considered the prosecution
evidence in detail and has rightly convicted the accused persons and both the
Learned Counsel are right in not pressing their appeal on merits.
After affirming the conviction for rape for both the accused, the High Court observed
that Heera Lal accused did not commit rape himself but had only accompanied Vinod
Kumar. The High Court further observed as under:
I do not want to discuss the evidence, in detail, but I certainly find his
case to be a fit one to reduce the sentence of imprisonment to a period of 11
months and 25 days, already undergone by him. So far as accused Vinod Kumar
is concerned, I find his case to be a fit one to reduce the sentence of
imprisonment looking to the whole statement of the prosecutrix.
(Emphasis added)
Thus, it is evident from the aforesaid discussion that the Learned Counsel for the
Appellants before the High Court did not argue the case on merit but the High Court
affirmed the findings on commission of rape making reference to the evidence,
however, further made observation that the court did not want to discuss the evidence
in detail. We fail to understand as how the findings on commission of rape have been
affirmed without discussing the evidence on record. It was not necessary at all as the
counsel for those parties did not argue the appeals on merit.
22. The Court further took note that awarding punishment lesser than the minimum
sentence of 7 years was permissible only for adequate and special reasons. However, no
such reasons have been recorded by the court for doing so, and thus, the court failed to
ensure compliance of such mandatory requirement but awarded the punishment lesser
than the minimum prescribed under the Indian Penal Code. Such an order is violative of
the mandatory requirement of law and has defeated the legislative mandate. Deciding
the case in such a casual manner reduces the criminal justice delivery system to
mockery.
2 3 . Thus, in the facts and circumstances of the case, the appeals are allowed.
Sentences awarded by the High Court are set aside and seven years R.I. awarded by the
trial court is restored.
Respondents are directed to surrender before the concerned court within a period of
four weeks from today and shall undergo their remaining part of sentences. In case the
Respondents fail to surrender within the said period, the Chief Judicial Magistrate,
Jaipur (City) is directed to take them into custody and send them to jail. A copy of the
order be sent to learned Chief Judicial Magistrate, Jaipur (City), Rajasthan.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0506/1988
Equivalent/Neutral Citation: 1988(12)AC R668(SC ), AIR1988SC 2154, 1988 (25) AC C 492, 1988 (25) AC C 492, 1988 AWC 1328 SC ,
1989C riLJ288, 1988(3)C rimes195(SC ), 1988 INSC 221, JT1988(3)SC 544, 1988(2)SC ALE632, (1988)4SC C 302, [1988]Supp2SC R391

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 1985
Decided On: 12.08.1988
State of U.P. Vs. Krishna Gopal and Ors.
Hon'ble Judges/Coram:
A.P. Sen and M.N. Venkatachaliah, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Prithvi Raj, Dalveer Bhandari and Rachna Joshi, Advs
For Respondents/Defendant: U.R. Lalit and S.A. Syed, Advs.
Case Note:
Criminal - murder - Sections 34 and 302 of Indian Penal Code - appellant
challenged acquittal of respondents - statement of evidence from eye witness
found trustworthy and their version found credible and acceptable -
prosecution established guilt of accused on basis of medical evidence -
sequence of events proved case of prosecution beyond reasonable doubt -
appeal allowed.
JUDGMENT
M.N. Venkatachaliah, J.
1. This appeal, by special leave, is by the State of Uttar Pradesh preferred against the
Judgment dated 30.9.1983 of the High Court of Judicature at Allahabad setting aside the
conviction and sentence passed against the two Respondent-accused in Sessions Trial
No. 256 of 1981 on the file of the Sessions Judge, Bareilly, for offences under Section
302 read with Section 34, IPC. The learned Sessions Judge had handed down a
sentence of imprisonment for life, but the High Court, in reversal of that conviction and
sentence, acquitted the respondents.
2. The case of the prosecution may briefly be stated:
At 2.00 PM on 31.1.1981 in the town of Mirganj in the District Bareilly, in front
of the house of a certain Lalan, the two respondents-Krishna Gopal and Vijai-
who are related to each other as uncle and nephew, set-upon and attacked
Harish, S/o Mihilal, with knives causing serious injuries to which Harish
succumbed at 6.40 PM the same day at the District Hospital, Bareilly, to which
he was removed after the incident. The incident was witnessed by Omkar (PW
1), Khiali Ram (PW 2) who saw the attack from a close distance of about 20
paces and on account of whose protestations the accused persons hastened
away from the scene, one of them leaving behind the knife used in the attack;
Paranvir (PW 6) came on the spot soon thereafter and wrote the First
Information Report (Ex. Ka. 1) at the scene as per instructions of injured Harish
who signed it. Thereafter, Harish was taken to Mirganj Police Station which was
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 just two furlongs away from the scene in an auto-rickshaw by Omkar (PW 1)
and Mihilal, the father of Harish, who had also reached the spot by then. Ex.
Ka. 1 was delivered at Station-house by injured Harish himself at 2.15 PM.
Harish who had also brought with him one of the knives left behind by the
assailants, was deposited in the Station-house under Memo (Ex. Ka. 2)
prepared in that behalf. Injured-Harish signed that Memo.
Thereafter, Harish was taken to the Public Health center at Mirganj accompanied by a
constable. The investigating officer, Nanak Chand Sharma, (PW 7) who came to the
Station-house at 2.30 PM proceeded to Mirganj Hospital and recorded Harish's
statement (Ex. Ka. 7). As no doctors were available at the Public Health center at
Mirganj, injured-Harish was taken to the District Hospital at Bareilly in a motor-vehicle.
Dr. Rajeev Aggarwal (PW 3) examined Harish at about 4.40 PM and noted the injuries
on the person of Harish in the list, Ex. Ka. 3. Despite treatment at the District Hospital
by the Surgeon Dr. Pundani and Dr. Sharma, Harish died at 6.40 PM at the hospital.
The accused Krishna Gopal was arrested at 6.30 PM on the same day. His Kurtha (Ex. 4)
and his blood-stained Paijama (Ex. 5) were recovered, under Memo Ex. Ka. 10. The
accused Vijai was arrested on 8.2.1981. Accused were put-up for trial for offences
under Section 302 read with Section 34, IPC. The motive for the killing was previous
enmity between the accused-persons and Mihilal, the father of the deceased. The
accused denied the charge and pleaded not guilty. According to the drift of the
suggestions made to the prosecution witnesses at the trial and from their statements
under Section 313 Cr. PC, they indicated that deceased-Harish was a gambler and had
sustained injuries at about 3.00 PM that day in a gambling-brawl and that occasion was
exploited by Paranvir (PW 6) and others to foist a false case against them owing to
previous enmity. Accused Krishna Gopal while admitting the seizure of his clothes under
Ex. Ka. 10, however, denied that at the time of recovery they were blood stained.
3. At the trial, before the learned Sessions Judge, the prosecution examined and relied
upon the two eye witnesses, Omkar (PW 1) and Khiali Ram (PW 2). Dr. Rajeev Aggarwal
(PW 3) spoke to the injury report (Ex. Ka. 3), prepared by him. Dr. Balbir Singh (PW 5),
who conducted the post-mortem examination spoke to the postmortem report Ex. Ka. 6;
Paranvir (PW 6) who was the scribe of Ex. Ka. 1, and Habib (PW 8) who had witnessed
the seizure of the clothes on the person of Krishna Gopal under Ex. Ka. 10 were also
called. Nanak Chand Sharma, investigating officer, tendered evidence as PW 7.
Serologist's report was marked as Ex. Ka. 6. The other witnesses were formal
witnesses.
The prosecution relied, in the main, on the eye-witnesses and on the Ex. Ka 1 and Ex.
Ka. 7 which it sought to use as dying declarations.
4. In the trial, it was urged for the defence that, having regard to the serious nature of
the injuries sustained by the deceased which included a 4 cm. long slashing of the
tongue and the shock and the profuse-bleeding the injuries admittedly had caused,
injured-Harish, would have lost consciousness very soon and that, at all events, even if
he had retained consciousness he would not be in a position to articulate his speech.
These circumstances would, it was urged, wholly improbably, if not render altogether
false, the two dying declarations. The defence also assailed the credibility of the eye-
witnesses on what, according to the defence, were the intrinsic discrepancies in the
version of the two eye-witnesses who were characterised as chance and, otherwise
interested, witnesses.

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5 . On an appraisal and assessment of the evidence on record, the learned Sessions
Judge found the eye-witnesses trust-worthy and their version credible and acceptable.
The learned Sessions Judge on the basis of the medical-evidence of PW 3 accepted the
prosecution case that notwithstanding the somewhat serious injuries inflicted on him,
Harish was in a position to instruct the preparation of Ex. Ka. 1 and to make the
statement before the investigating officer as per Ex. Ka. 7. Learned Sessions Judge
considered the sequence of events, that the First Information Report reached the
Station-house within fifteen minutes of the occurrence; that injured was physically
present at the station which the learned Judge considered undisputable having regard to
the signature on Ex. Ka. 10 and that the circumstance that one of eye-witnesses, (PW 1)
had accompanied the injured to the police station within a few minutes of the
occurrence, suggested his presence at the scene, had established the prosecution case
against the accused persons beyond reasonable doubt. The accused were, accordingly,
convicted and sentenced.
6 . In the appeal by the convicted persons, the High Court on a re-assessment of the
entire evidence persuaded itself to the view that having regard to the nature and
severity of the injuries, Harish could not reasonably be expected to have been in a
position to make the dying-declarations attributed to him; that the discrepancies in the
evidence of the eye-witnesses rendered them unsafe to be relied upon and that with the
rejection of the dying-declarations and the eye-witness-account, nothing remained
which would connect the accused persons with the crime. The High Court, accordingly,
allowed the appeal and acquitted the accused.
The State has challenged the acquittal as one arrived at as much by a basically
erroneous approach to the matter as by a non-consideration of material evidence on
record, resulting in a serious miscarriage of justice.
7 . Shri Prithviraj learned senior Counsel for the State submitted that in discarding the
two dying declarations (Ex. Ka. 1 & Ex. Ka. 7), the High Court fell into a serious error in
its assumptive predication that the injuries on the person of Harish were such as were
likely to render him unconscious immediately and incapacitate him from making the
dying declarations attributed to him. In positing this, the High Court, contends counsel,
ignored the positive and firm opinion of Dr. Rajeev Aggarwal (PW 3), who had had the
opportunity of examining the injured person at 4.40 PM that very day, that "the
deceased could survive and speak for an hour after being injured." Learned Counsel
submitted that the High Court, quite erroneously, preferred a hypothetical answer of the
doctor as to the mere theoretical possibility implicit in his later answer that "in view of
the injuries (1) and (3) it is likely that the deceased might not have been able to speak"
to the certainty of the first answer. Learned Counsel also sought to point out that the
evidence of PW 5, Dr. Balbir Singh, who conducted the post-mortem did not also
support the speculation that the injured would have lost consciousness immediately
after the injury. Learned Counsel also listed what, according to him, were certain
important circumstances which compelled an irresistible inference as to the presence of
Harish at the Station-house in an injured condition within a few minutes of the attack.
Shri Prithviraj submitted that certain important pieces of evidence were misread by the
High Court which led to serious errors and to the consequent miscarriage of justice. Sri
Prithviraj submitted that where, as here, the High Court reverses a conviction on
conjectures and not on sound reasoning, this Court should interfere. An unjust
acquittal, he said, was as much a miscarriage of justice as an unjust conviction was. Sri
Prithviraj further submitted that the version of the eye-witnesses as to the time of the
attack was, indeed, corroborated by Medical-evidence and the information having been
lodged with the police within 15 minutes of the occurrence, there was absolutely no
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scope for any deliberation and concoction. That apart, injured-Harish or his well-
wishers had no reason to shield the identity of the real culprits and implicate innocent
persons.
8 . Shri U.R. Lalit, learned Senior Counsel for the respondents, endeavoured to show
that this was not a fit and appropriate case for interference by this Court and that if the
High Court, after consideration of the whole evidence, came to a conclusion which
cannot be said to be unsupportable on the evidence, this Court should not interfere
under Article 136 even if two views were possible on the evidence and the one in favour
of the prosecution could be reached on re-appreciation of the evidence, as long as the
view opted for and that commended itself to the High Court could not be said to be
altogether impossible on the evidence. Shri Lalit invited attention to certain, answers of
the Medical-experts that enabled an inference that the injuries were such as were likely
to render the victim immediately unconscious or at least inarticulate and urged that if in
view of the injuries of a grave nature and the profuse bleeding suffered by the injured,
the High Court considered it probable that the injured might have lost consciousness
after the attack so as to improbably the dying declarations and that, at all events, if,
having regard to the very serious slashing of the tongue, which, according to the
medical-evidence could in itself, in the ordinary course have caused death, the High
Court considered it likely or probable that the injured would not be able to speak, there
was nothing in that view which would invite or justify interference by this Court under
Article 136. The principle of penal policy would, says counsel, require that this Court
should decline to interfere.
9. It is, no doubt, true that as a self-made rule of practice, this Court does not interfere
with the findings of fact reached by the High Court, but such findings of facts must not
be vitiated by serious errOrs. In State of U.P. v. Jashoda Nandan Gupta and Ors.
MANU/SC/0432/1974 : AIR 1974 SC 753 observed:
...as a self-made rule of practice, this Court does not interfere with the findings
of fact reached by the High Court, unless exceptional and grave circumstances
exist, or forms of legal process have been disregarded or otherwise there has
been a gross miscarriage of justice. Where the judgment which is the subject of
appeal under that Article, is one of acquittal, this Court will not interfere with
the same in the exercise of its overriding jurisdiction unless that judgment is
clearly unreasonable, or perverse or manifestly illegal or grossly unjust.
Therefore, if in the nicely balancing probabilities of a case, two views of the
evidence-one indicating acquittal and the other conviction-were reasonably
possible, this Court would not disturb the High Court's order of acquittal.
In State of Punjab v. Sucha Singh and Ors. MANU/SC/0180/1973 : 1974CriL J364 this
Court said:
...In our opinion, it was for the High Court to appraise the evidence which was
adduced in this case. In the absence of any infirmity in the appraisement of the
evidence by the High Court, we find no cogent grounds to reappraise the
evidence. The fact that on the evidence adduced, a different view could also
have been taken in the matter, would not induce us to interfere with the
judgment of the High Court. The appeal fails and is dismissed.
In State of A.P. v. P. Anjaneyulu MANU/SC/0112/1982 : 1983CriLJ153 it was held:
...The question is one of appreciation of evidence and the proposed appeal does
not raise any substantial question of law. Apart from that we do not ordinarily
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 entertain appeals against orders of acquittal if two views of the evidence are
possible....
In State of U.P. v. Pussu MANU/SC/0167/1983 : 1983CriLJ1356 this Court observed:
...We are aware of the rule of practice that ordinarily this Court should not
interfere with judgments of acquittal of a mere depreciation of evidence. But if
these are glaring infirmities in the judgment of the High Court resulting in a
gross miscarriage of justice, it is the duty of this Court to interfere. In the
instant case we find that the approach of the High Court is basically erroneous
and its judgment is founded on false assumptions, conjectures and surmises....
But these pronouncements themselves qualify this rule of self-abnegation prescribed for
itself by this Court, with the qualification that where serious errors of assumption and
inference vitiate the finding, interference is justified. In matters such as this, it is
appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State
of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 :
...The dangers of exaggerated devotion to the rule of benefit of doubt at the
expense of social defence and to the soothing sentiment that all acquittals are
always good regardless of justice to the victim and the community, demand
especial emphasis in the contemporary context of escalating crime and escape.
The judicial instrument has a public accountability. The cherished principles or
golden thread of proof beyond reasonable doubt which runs through the web of
our law should not be stretched morbidly to embrace every hunch, hesitancy
and degree of doubt....
...The evil of acquitting a guilty person light-heartedly as a learned author
Glanville Williams in 'Proof of Guilt' has saliently observed, goes much beyond
the simple fact that just one guilty person has gone unpunished. If unmerited
acquittals become general, they tend to lead to a cynical disregard of the law,
and this in turn leads to a public demand for harsher legal presumptions
against indicated 'persons' and more severe punishment of those who are found
guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal
law, eventually eroding the judicial protection of the guiltless....
a miscarriage of justice may arise from the acquittal of the guilty no less than
from the conviction of the innocent....
10. Shri Lalit, however, said that the accepted principles of criminal jurisprudence, and
administration of criminal justice require that an appellate Court should refrain from
reversing an acquittal except for "very substantial" and "compelling" reasons. Learned
counsel submitted that if after a discussion of the evidence and on a consideration of
probabilities, the High Court considers that so serious a charge as of a capital offence
cannot safely be sustained on the evidence there is not only nothing inherently
erroneous in it but the omission to make such an approach in the appraisal of criminal
evidence is itself violative of accepted rules of administration of criminal justice whose
twin principles are the presumption of innocence and the burden of proof on the
prosecution to establish a criminal charge by standards of evidence appropriate to
criminal actions, beyond reasonable doubt.
But the submissions of Sri Lalit bearing on the limitations of the appellate Court under
the supposed rule that unless there are "substantial" or "compelling" reasons or "very
substantial reasons" or "strong reasons", the findings in a judgment of acquittal should
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not be interfered with should not pass without some comment. This Court in dealing
with the scope of the powers of the appellate Court in appeals against the acquittal has,
by and large, approved and accepted the lucid formulation of the law by the judicial
committee in Sheo Swamp's case, 61 Indian Appeals 398 as clarified later by the
judicial committee in Noor Mohammad's case MANU/PR/0022/1945. Those principles,
as we understand them, do not detract from the plenitude of the power of the appellate
Court to review and reappreciate the evidence if the order of acquittal on a review of the
evidence is found to be grossly erroneous. The powers of the appellate Court, in an
appeal against the acquittal, are not different from or inconsistent with, those that the
appellate Court has in an appeal against a conviction; the difference is, as is sometimes
stated, more in the manner of approach and the perspective rather than in the content
of the power. The expressions "very substantial reasons", "substantial and compelling
reasons", "strong reasons" used in several pronouncements which tend to qualify the
power of the appellate Court do no more than to convey the principles stated by the
judicial committee in Sheo Swamp's case (Sanwat Singh v. State of Rajasthan
MANU/SC/0078/1960 : 1961CriL J766 : Chandra Kanta Debnath v. State of Tripura
MANU/SC/0166/1986 : 1986CriL J809 ). There is, thus no immunity to an erroneous-
order from a strict appellate scrutiny. But the appellate Court wherever if finds
justification to reverse an acquittal must record reasons why it finds the lower court
wrong. This, in the ultimate analysis, is merely a reiteration of a principle which every
exercise of appellate jurisdiction in the matter of reversal of an order under appeal is
subject to.
1 1 . In the present case, the submissions of, Sri Prithviraj that the judgment under
appeal is rendered infirm on several counts cannot be said to be without substance. We,
however, abstain from a review of the evidence ourselves to test whether the inferences
drawn by the High Court are justified or not as, in our view, the appeal before the High
Court must receive a reconsideration. Any comment by us might pre-judge aspects
which require consideration by the High Court.
But it would not be inappropriate to refer to the submissions of Sri Prithviraj as to some
aspects of the evidence in the case. The High Court for instance did not advert to the
evidentiary value and effect of Ex. Ka. 2, relating to the deposit of the knife at the
Station-house by the deceased-Harish which was said to contain Harish's signature. The
High Court did not consider either the genuineness of Ex. Ka. 2 and of the signature of
Harish thereon and if Ex. Ka. 2 was genuine, what inferences would follow on the
cognate question as to how long Harish was conscious after the attack. The High Court,
Sri Prithviraj points out, did not consider the evidence of the investigating officer (PW
7) on certain important aspects. As an instance of mis-reading of the evidence by the
High Court, Shri Prithviraj pointed out the error in the assumption made by the High
Court that according to Paranvir (PW 6), injured-Harish had merely indicated by signs or
gestures that he was injured by the knife which was seen at the scene of occurrence as
a circumstance bearing on the question whether Harish's speech had been affected. The
High Court referred to the evidence of PW 6 on this point and observed:
...At one place he said that Harish had made a sign indicating that he was
injured with the knife which was found on the scene of occurrence....
This, according to Sri Prithviraj, weighed with the High Court in reaching such
erroneous conclusions as it did in regard to the ability of the deceased Harish to speak
immediately after the injuries-a circumstance which had a material bearing on the
genuineness of the dying declarations. Sri Prithviraj pointed out that the evidence on
the point was misread by the High Court and that evidence clearly indicated that Harish
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did not merely gesture, but did also speak. Indeed, this appears to be so. PW 6 had
stated:
...This knife was found at the spot. He had indicated towards that knife saying
that he was attacked with this knife....
1 2 . Sri Prithviraj pointed out certain circumstances which stand established with a
degree of probability appropriate to the requisite criminal evidential standard viz., that
Harish had died a homicidal death attributable to the injuries caused by a weapon of the
kind of Ex. 1; that the attack had occurred at the place and time alleged by the
prosecution; that Harish in the injured condition went to the Station-house at 2.15 PM
along with Omkar (PW 1) and lodged Ex. Ka. 2 and that Ex. Ka. 2 evidencing the
deposit of the knife was also signed by Harish at the Station-house. The High Court,
according to Sri Prithviraj, had not given due recognition to these facts which were
clearly established and the inevitable consequences logically flowing therefrom, it was
urged that the High Court did not also displace the important reasons given by the trial
court in accepting these circumstances.
In regard to Shri Prithviraj's point that the evidence of the investigating-officer did not
receive independent appraisal it is relevant to recall what was said in State of Kerala v.
M.M. Mathew and Anr. though in a somewhat different context:
...It is true that courts of law have to judge the evidence before them by
applying the well recognised test of basic human probabilities....
...prima facie public servants must be presumed to act honestly and
conscientiously and their evidence has to be assessed on its intrinsic worth and
cannot be discarded merely on the ground that being public servants they are
interested in the success of their case....
13. There might also be some justification for the grievance of the appellant that the
High Court had preferred some observations in the medical-evidence-which Sri
Prithviraj characterised as merely conjectural answers-to the other categoric answers by
the very medical-witnesses themselves. Sri Prithviraj also submitted that it would be
erroneous to accord undue primacy to the hypothetical answers of medical-witnesses to
exclude the eye-witnesses' account which had to be tested independently and not
treated as the "variable" keeping the medical-evidence as the "constant".
It is trite that where the eye-witnesses' account is found credible and trustworthy,
medical-opinion pointing to alternative possibilities is not accepted as conclusive.
Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and
primacy of the morality of the trial-process. Eye witnesses' account would require a
careful independent assessment and evaluation for their credibility which should not be
adversely prejudged making any other evidence, including medical-evidence, as the sole
touch-stone for the test of such credibility. The evidence must be tested for its inherent
consistency and the inherent probability of the story; consistency with the account of
other witnesses held to be credit-worthy; consistency with the undisputed facts; the
'credit' of the witnesses; their performance in the witness-box; their power of
observation etc. Then the probative value of such evidence becomes eligible to be put
into the scales for a cumulative evaluation.
A person has, no doubt, a profound right not to be convicted of an offence which is not
established by the evidential standard of proof beyond reasonable doubt. Though this
standard is a higher standard, there is, however, no absolute standard. What degree of
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probability amounts to 'proof is an exercise particular to each case. Referring to the
inter-dependence of evidence and the confirmation of one piece of evidence by another
a learned author says: ("The Mathematics of Proof-II": Glanville Williams: Criminal Law
Review, 1979, by Sweet and Maxwell).
The simple multiplication rule does not apply if the separate pieces of evidence
are dependent. Two events are dependent when they tend to occur together,
and the evidence of such events may also be said to be dependent. In a
criminal case, different pieces of evidence directed to establishing that the
defendant did the prohibited act with the specified state of mind are generally
dependent. A juror may feel doubt whether to credit an alleged confession, and
doubt whether to infer guilt from the fact that the defendant fled from justice.
But since it is generally guilty rather than innocent people who make
confessions, and guilty rather than innocent people who run away, the two
doubts are not to be multiplied together. The one piece of evidence may
confirm the other.
Doubts would be called reasonable if they are free from a zest for abstract speculation.
Law cannot afford any favourite other than truth. To constitute reasonable doubt, it
must be free from an over emotional response. Doubts may be actual and substantial
doubts as to the guilt of the accused-person arising from the evidence, or from the lack
of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary,
trivial or a merely possible doubt; but a fair doubt based upon reason and common-
sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in
terms of units to be mathematically enumerated as to how many of such units constitute
proof beyond reasonable doubt. There is an unmistakable subjective-element in the
evaluation of the degrees of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common-sense and, ultimately, on the
trained intuitions of the judge. While the protection given by the criminal process to the
accused-persons is not to be eroded, at the same time, uninformed legitimization of
trivialities would make a mockery of administration of criminal justice.
1 4 . In the circumstances of the case, we propose to adopt the course which
commended itself to the Court in Qamruddin v. Acqeel and Ors. MANU/SC/0195/1980
: 1982CriLJ1741a where Fazal Ali J. observed:
The trial court had convicted the accused on a full and complete appraisal of
the evidence. The High Court in appeal has written a very cryptic judgment and
has not tried to displace some of the important reasons given by the trial court
nor has it made any attempt to scan the intrinsic merits of the evidence. We are
satisfied that the judgment of the High Court is not in accordance with law. In
these circumstances, therefore, we allow this appeal and remand the case to the
High Court for fresh disposal according to law....
15. Accordingly, this appeal is partly allowed, the Judgment of the High Court dated
30th September, 1983, in Crl. Appeal No. 1320 of 1982 is set aside and the appeal is
remitted to the High Court with the direction to re-admit it, and hear and dispose of the
same on the merits afresh. We hope and trust that it will be possible for the High Court
to dispose of the appeal most expeditiously.
The High Court, should it consider it necessary or appropriate, might consider calling
for expert medical-evidence-of course with appropriate opportunity to the defence'-on
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the point of the effect of the injuries on the speech and consciousness of Harish. This is
of course entirely left to the High Court.
16. During the pendency of the appeal before the High Court pursuant to this order, the
respondents shall be enlarged on bail to the satisfaction of the Sessions Court, Bareilly.
Appeal is disposed of accordingly.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0311/2009
Equivalent/Neutral Citation: 2009(2)AC R1385(SC ), 2009(1)ALD(C ri)602, 2010 (68) AC C 97, 2009(2)ALT(C ri)345, 2009((2))ALT(C ri)345,
II(2009)C C R17(SC ), 2009(2)C rimes121(SC ), 2009 INSC 280, JT2009(4)SC 347, 2009(2)RC R(C riminal)319, 2009(3)SC ALE394, (2009)4SC C 736,
[2009]4SC R643

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 314-315 of 2001
Decided On: 27.02.2009
State of U.P. Vs. Sattan and Ors.
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and Mukundakam Sharma, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ratnakar Dash, Sr. Adv., Rajeev Dubey and Kamlendra
Mishra, Advs
For Respondents/Defendant: M. Karpaga Vinayagam, Sr. Adv. (A.C.)
Ratio Decidendi:
"If for extremely heinous crime of murder perpetrated in a very brutal manner
without any provocation, most deterrent punishment is not given, the case of
deterrent punishment will lose its relevance."
Case Note:
Code of Criminal Procedure, 1973 - Section 366--Indian Penal Code, 1860--
Sections 120B, 148, 307/149 and 302/149--Alteration of death sentence to
life imprisonment and acquittal by High Court -- Whether calls for
interference? -- Held, "partly"--Instant case falls in rarest of rare category--
Depraved acts of accused call for only one sentence, i.e., death sentence--
Murder of six members of family including helpless women and children--
Committed in brutal, diabolic and beastly manner--Crime is enormous in
proportion shocking conscience of Court--Death sentence as awarded to S and
G--Was appropriate sentence--High Court ought not to have altered it--
However, High Court rightly directed acquittal of two accused--Acquittal of
four accused for charge under Section 120B--Also justified--Death sentence
awarded to S and G by trial court--Restored.
After giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which a crime has
been committed are to be delicately balanced on the basis of really relevant
circumstances in a dispassionate manner by the Court. Such act of balancing
is indeed a difficult task. No formula of a foolproof nature is possible that
would provide a reasonable criterion in determining a just and appropriate
punishment in the infinite variety of circumstances that may affect the gravity
of the crime. In the absence of any foolproof formula which may provide any
basis for reasonable criteria to correctly assess various circumstances
germane to the consideration of gravity of crime, the discretionary judgment
in the facts of each case, is the only way in which such judgment may be
equitably distinguished.

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The object should be to protect the society and to deter the criminal in
achieving the avowed object to law by imposing appropriate sentence. It is
expected that the Courts would operate the sentencing system so as to
impose such sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be. Even though the
principles were indicated in the background of death sentence and life
sentence, the logic applies to all cases where appropriate sentence is the
issue.
JUDGMENT
Arijit Pasayat, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High
Court by which two Criminal appeals filed by accused Sattan, Upendra , Hari Pal son of
Kiran Singh and Hari Pal son of Ram Charan (Criminal Appeal No. 2140 of 1999) and
Criminal Appeal No. 2237 of 1999 filed by accused Kripal, Brij Pal, Ram Pal and
Devendra. A reference under Section 366 of the Code of Criminal Procedure, 1973 (in
short the 'Code') for confirmation of death sentence in respect of the accused appellants
in Criminal Appeal No. 2140 of 1999 before the High Court was made. So far as Sattan,
Upendra, Hari Pal son of Kiran Singh and Hari pal son of Ram Charan are concerned
they were sentenced to two years R.I. each under Section 148 of the Indian Penal Code,
1860 (in short the 'IPC'), 10 years R.I. under Section 307 read with Section 149 IPC and
death sentence in respect of offence punishable under Section 302 read with Section
149 IPC. The appellants in the Criminal Appeal No. 2237 of 1999 were convicted and
sentenced to life imprisonment under Section 120B IPC alongwith appellants in Criminal
Appeal No. 2140 of 1999 accused Mukesh, Dhirendra, Rakesh, Naresh and Pappu also
faced trial. Out of them Pappu and Naresh died during the pendency of trial while
Mukesh, Rakesh and Dhirendra absconded and trial so far as they are concerned were
separated. One Rajveer was also charged in terms of Section 120B alongwith appellants
in Criminal Appeal No. 2237 of 1999. The Criminal Appeal No. 2237 of 1999 was
allowed and conviction of Brijpal, Ram Pal and Devendra was set aside. So far as
Criminal Appeal No. 2140 of 1999 is concerned the conviction as recorded was
maintained. Death sentence imposed was altered to life sentence. In the present appeals
State has questioned alteration of the death sentence to life sentence in respect of
appellant in Criminal Appeal No. 2140 of 1999 and the acquittal as recorded in Criminal
Appeal No. 2237 of 1999 as maintained; While upholding the conviction of accused
Sattan and Upendra directed acquittal of Hari Pal son of Kiran Singh and Hari Pal son of
Ram Charan.
2. According to learned Counsel for the State the only appropriate sentence in a case of
this nature was death sentence and the High Court erred in altering it to life sentence
after upholding the conviction. Similarly, in respect of the acquittal in the case of the
appellants in separate Criminal Appeal Nos. 2237 and 2140 of 1999 is concerned, it is
submitted that the High Court has not indicated any reasons as to why the conviction as
recorded by the Trial Court suffered from any infirmity to warrant interference.
3 . Mr. M. Karpaga Vinayagam, learned Amicus Curiae supported the judgments of the
High Court.
4. The prosecution version as unfolded during trial is as follows:
In the night between August 30 and 31, 1994 at about 12.30 five persons of
Sheo Pal's family were gunned down in his house in village Saloni within the
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 area of police station Bahadurgarh, Ghaziabad. Four others were injured, out of
whom Neetu also succumbed to his injuries later on. This massacre was
reported at the police station on the same night at 2.55 A.M. by one of the
survivors, Smt. Bala, PW 1 widow of deceased Shiv Singh. With the registration
of case police came into action and the Investigating Officer promptly rushed to
the place of occurrence and recorded the statements of Smt. Bala, Neetu and
Km. Guddi who all had received injuries in the course of ghastly incident.
Inquest proceedings were held in respect of dead bodies of five persons,
namely, Sheo Pal Singh, Smt. Kunti Devi, Shiv Singh, Manjeet and Khushal who
were reported to have been shot dead by the assailants while asleep inside their
house. Their dead bodies were sent for postmortem examination. The
investigating Officer Shri Ram Babu Tiwari, P.W.9 also prepared site plan, Ex.Ka
48 after making spot inspection of the place of occurrence. Injured Neetu was
sent for medical examination. Under the order of the Investigating Officer S.I.
Shri D.K. Sharma collected samples of blood through memo Ex. Ka 26 from
near the dead body of Kunti Devi. Similarly, samples of blood were collected
from near the dead bodies of other deceased persons through memos Ex. Ka.
27 to Ex. Ka.3. The bed sheet lying on the cot of deceased Shiv Singh was also
taken into possession through memo Ex. Ka. 3. The electric bulbs which are
alleged to be giving light at the time of incident were also inspected and Memo
Ex. Ka. 32 was prepared. The Kurta of Injured Guddi which was stained with
blood and had pellet marks was taken into possession through memo Ex.
Ka.33. The pieces of blood stained bandh of cot of deceased Manjeet and
Khushal were also taken into possession through memo Ex. Ka. 34. The
Investigating Officer also found empty cartridges, bullet and wads at the scene
of occurrence. They were also taken into police custody through EX. Ka.35. He
also interrogated Madhu and Rikku and other villagers. A raid was made on the
house of accused Mukesh, Sattan and Guddu but they were not found. During
investigation complicity of other accused persons also came to light that they
had hatched conspiracy for the commission of the crime in question. Some of
the accused persons were arrested while others surrendered in court and after
completion of investigation charge sheet was prepared against all the accused
persons who had been either arrested by him or has surrendered in court and
also against Upendra alias Guddu, Pappu, Dheeraj and Devendra who were then
still absconding. Later on accused Pappu alias Amarjeet and Rajveer were also
arrested. It was also revealed that accused Upendra alias Guddu was in jail
after having been arrested in a case under Gangster Act. Similarly, accused
Dheeraj was in jail in connection with case Crime No. 628 of 1993 under
Section 307 I.P.C.
Smt. Bala (PW.1) who is alleged to have herself received injuries during the
course of incident got the first information report Ex. Ka. I scribed by Km.
Guddi, her niece. Km. Guddi is also alleged to have sustained injuries during
the course of the same incident but she was murdered before she could be
examined in the trial court as a witness.
The case as set out in the first information report in short was that some
incident had occurred in the year 1986 between family members of complainant
and accused Mukesh and Guddu sons of Rajveer and the matter was reported at
the police station from complainant's side. A case was proceeding in court at
Hapur some time before the present incident and the police had raided the
house of accused Mukesh. Mukesh and Guddu, came to the house of Sheo Pal
Singh and gave threats to them saying that they had not done good by getting
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 his house raided. The accused persons were thus bearing enmity with Sheo Pal
and others.
It was further alleged in the report lodged by Smt. Bala that in the night
between 30/31 August, 1994 at about 12.30 A.M. Mukesh and Guddu of her
own village carrying country made pistols with them and accused Sattan of
village Lohari also having a country made pistols alongwith 4-5 unknown
persons who were also having weapons like pistols, Dalkati, Lathi etc. entered
into her house. At that time electric bulbs were emitting light inside and out
side the house. The family members of her Jeth, Sheo pal Singh were sleeping
on cots outside the house. She herself (Smt. Bala) was resting inside the
house, while her husband Shiv Singh was sleeping on the roof. The accused
persons after making entry into the house immediately started hurling abuses
by name to her Jeth Sheo Pal Singh saying that he was acting as an informer to
police, hence he and his family would be eliminated completely. Hearing it
Sheo Pal got up and started running but he was chased by accused Mukesh and
Sattan and was shot dead in the Gher of Devendra. Mukesh and Sattan then
said that entire family should be finished and thereafter accused persons killed
Kunti Devi, wife; of Sheo Pal, Khushal son of Sheo Pal and Manjeet son of Shiv
Singh. They also injured Neetu son of Sheo Pal, Guddi, daughter of Sheo Pal
Singh and baby Kapil about 3 years old son of' Shiv Singh. Mukesh and Sattan
with his associates climbed over the roof and murdered her husband Shiv Singh
on the cot on which he was sleeping. On hearing the sound of firing, villagers
were awakened and when they tried to come near the first informant's house,
accused persons made indiscriminate firing and said that if any one dared to
come nearer he would be shot dead and further that if anyone of them would
give evidence he would meet the same fate as that of deceased persons. On the
threats given by accused persons villagers retreated to their houses and closed
their doors. The firing incident caused a panic in the village and the miscreants
left the scene of occurrence brandishing their weapons. Before adverting further
it may be relevant to place the following pedigree in order to show that all the
deceased and injured persons were members of same family.

From the above pedigree it would be evident that all the nine members of
family of Hukum Singh were present and sleeping in their houses when this
ghastly incident occurred. Four were of Shiv Singh's family and rest belonged
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 to Sheo Pal's family. All of them sustained injuries. Smt. Bala, Baby Kapil and
Km. Guddi survived but before statement of Guddi could be recorded at the trial
she was also murdered. Baby Kapil was a child of about three years old. Thus
the prosecution was left with no alternative except to examine at the trial Smt.
Bala, the sole surviving member of the above two families.
At the trial from the prosecution side in all nine witnesses were produced. Smt.
Bala (PW 1) widow of deceased Shiv Singh corroborated the facts stated by her
in the FIR and further added that the assailants were ten in number, out of
whom she identified Mukesh, Guddu, Rakesh, Naresh, Pappu, Sattan, Haripal
son of Kiran Singh, Haripal son of Ram Charan, Dhirendra alias Dheeraj. She
further stated that Rakesh and Dhirendra were having Balkati and rest had
country made pistols. She also testified that Sheo Pal, his wife Kunti Dcvi, his
son Khushal, her Husband Shiv Singh and her son Manjeet were murdered on
the spot by the assailants with their respective weapons, Neetu son of Sheo Pal,
Km. Guddi, Baby Kapil and she herself also suffered injuries at the hands of the
accused persons. She further stated that had the matter between accused and
deceased persons been not got compromised by accused Kripal, Rajveer,
Devendra, Brij Pal and Ram Pal, the incident in question would not have
occurred. In this way it was suggested that the aforesaid accused persons
hatched a conspiracy with the actual assailants to get the entire family of Sheo
Pal and Shiv Singh wiped out. She is the only eye witness examined at the trial.
As noted above, the trial court found the evidence of the witnesses to be
credible and cogent and directed conviction and imposed death sentence, so far
as the Sattan, Upendra, Hari Pal son of Kiran Singh and Hari pal son of Ram
Charan are concerned. It also found that the accusations relating to Section
120B of the Act have been established so far as the Kripal, Brij Pal, Devendra
are concerned. The High Court analysed the evidence to hold that the
accusations so far as the Sattan, Upendra, are concerned have been
established. But further held that this was a case where there were certain
mitigating circumstances which warranted alteration of the death sentence to
life sentence.
The mitigating and extenuating circumstances pointed out to take the view are
as follows:
(i) that number of casualties cannot be sole criterion for awarding
death sentence;
(ii) that though in a criminal case compromise was filed, the police
however at the instance of deceased Sheo Pal raided the house of
accused Mukesh and Guddu alias Upendra and this excited the accused
to commit the alleged crime;
(iii) that PW 1(Smt. Bala) the sole eye witness did not assign specific
role to each of the two accused-respondents;
(iv) that according to FIR story, the three named accused persons along
with 4-5 others committed the crime and therefore, possibility of
unknown persons having taken the active part could not be ruled out;
(v) that there is nothing on record to show that accused- respondents
Sattan alias Satyendra and Guddu alias Upendra acted in a brutal and
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 cruel manner while committing the crime;
(vi) that there is nothing on record to show that K. Guddu was
murdered during pendency of the case by the present accused-
respondents, so that there could be no evidence against them;
(vii) that the assailants did not do away with Smt. Bala (PW 1) Km.
Guddi (17 years), baby Kapil (3 years) and a child to screen the
offence;
(viii) that the assailants showed mercy on Smt. Bala and did not cause
any harm to her; and
(ix) that respondent Sattan alias Satyendra was a young boy of 20
years of age at the time of incident.
5. It is submitted by learned Counsel for the appellant that taking into consideration the
aforesaid circumstances the High Court came to an abrupt conclusion that on
consideration of aggravating and mitigating circumstances the case does not fall within
the category of rarest of rare cases.
6 . Learned amicus Curiae appearing for the accused persons on the other hand
submitted that six circumstances were highlighted by the High Court.
7. Motive was not clearly established. No specific roles have been ascribed. Ocular and
medical evidence did not fit in. There is no crime record of any of the accused persons
and it cannot be said that they cannot be reformed. Two views are possible. There was
considerable lapse of time. It is to be noted that according to the High Court the
mitigating circumstances show there is no criminal record of any of the accused
persons. There was no overt act attributed to each of the accused persons and the
number of deaths cannot be a criteria to decide as to whether death sentence or life
sentence to be imposed.
8 . According to learned Amicus Curiae, incident was of the year 1992, the death
sentence was awarded in 1999 and by the impugned judgment which is of the year
2000, alteration have been directed and at this length of time there should not be any
interference.
9. Before dealing with the position in law as highlighted by this Court relating to rarest
of rare categories where death sentence can be awarded, submissions made by learned
Amicus Curiae to show existence of mitigating circumstances need to be noted. It is
stated by learned Amicus Curiae that motive is not clearly established. This is contrary
to the conclusions of the High Court. In fact, the High Court has treated that an entire
family was eliminated and if the evidence of Smt. Bala (PW 1) is considered reliable and
trustworthy, the inadequacy and insufficiency of motive pales into significance and
recedes behind the curtain. So far as the specific overt acts are concerned, it is to be
noted that apart from the accused persons who faced trial three of these persons,
namely, absconding accused Mukesh Dhirendra and Rakesh were described as accused.
Six persons were killed. It is not expected that a lady witnessing such a massacre would
note the details.
1 0 . This Court has observed in Sahdeo v. State of U.P. MANU/SC/0423/2004 :
AIR2004SC3508 that though in the particular facts of the case the death sentence was
converted to imprisonment for life, yet it cannot be said that accused persons cannot be

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awarded death sentence in cases where the conviction was recorded under Section 302
read with Section 149 IPC. So far as the alleged discrepancy between medical evidence
and ocular evidence is concerned, it is to be noted as rightly done by the High Court
that the incident occurred around mid night when six murders were committed one after
another. In such circumstances it was practically not possible for any witness to ascribe
pin pointed role or the kind of weapons with which blows were given. In an incident
when killing of so many persons took place, it would be difficult for a witness to
remember with precision the kind of weapon used by a particular accused. It is to be
noted that evidence of the witnesses are not liable for rejection on the hypothetical so
called medical discrepancy. It is submitted by learned Counsel for the respondent that
when number of death is not the determinative factor and since the High Court about
eight years back has altered the conviction, the life sentence may be clarified to be one
for 20 years as have been done in some cases for example in Ram Anup Singh v. State
of Bihar MANU/SC/0648/2002 : 2002CriLJ3927 .
1 1 . The law regulates a social interests, arbitrates conflicting claims and demands.
Security of persons and property of the people is an essential function of the State. It
could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross
cultural conflict where living law must find answer to the new challenges and the courts
are required to mould the sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of law which must be achieved by
imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of
"order" should meet the challenges confronting the society. Friedman in his "Law in
Changing Society" stated that, "State of criminal law continues to be - as it should be -
a decisive reflection of social consciousness of society". Therefore, in operating the
sentencing system, law should adopt the corrective machinery or the deterrence based
on factual matrix. By deft modulation sentencing process be stern where it should be,
and tempered with mercy where it warrants to be. The facts and given circumstances in
each case, the nature of the crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the accused, the nature of
weapons used and all other attending circumstances are relevant facts which would
enter into the area of consideration. For instance a murder committed due to deep-
seated mutual and personal rivalry may not call for penalty of death. But an organised
crime or mass murders of innocent people would call for imposition of death sentence
as deterrence. In Mahesh v. State of M.P. MANU/SC/0246/1987 : 1987CriL J1073 , this
Court while refusing to reduce the death sentence observed thus:
It will be a mockery of justice to permit the accused to escape the extreme
penalty of law when faced with such evidence and such cruel acts. To give the
lesser punishment for the accused would be to render the justicing system of
the country suspect. The common man will lose faith in courts. In such cases,
he understands and appreciates the language of deterrence more than the
reformative jargon.
12. Therefore, undue sympathy to impose inadequate sentence would do more harm to
the justice system to undermine the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the offence and the
manner in which it was executed or committed etc. This position was illuminatingly
stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu
MANU/SC/0338/1991 : 1991CriLJ1845 .

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13. The criminal law adheres in general to the principle of proportionality in prescribing
liability according to the culpability of each kind of criminal conduct. It ordinarily allows
some significant discretion to the Judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle considerations of culpability
that are raised by the special facts of each case. Judges in essence affirm that
punishment ought always to fit the crime; yet in practice sentences are determined
largely by other considerations. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping
him out of circulation, and sometimes even the tragic results of his crime. Inevitably
these considerations cause a departure from just desert as the basis of punishment and
create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in
spite of errant notions, it remains a strong influence in the determination of sentences.
The practice of punishing all serious crimes with equal severity is now unknown in
civilized societies, but such a radical departure from the principle of proportionality has
disappeared from the law only in recent times. Even now for a single grave infraction
drastic sentences are imposed. Anything less than a penalty of greatest severity for any
serious crime is thought then to be a measure of toleration that is unwarranted and
unwise. But in fact, quite apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime, uniformly disproportionate
punishment has some very undesirable practical consequences.
1 5 . After giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the aggravating
and mitigating factors and circumstances in which a crime has been committed are to be
delicately balanced on the basis of really relevant circumstances in a dispassionate
manner by the Court. Such act of balancing is indeed a difficult task. It has been very
aptly indicated in Dennis Councle MCG Dautha v. State of California 402 US 183 : 28
L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate punishment in the infinite
variety of circumstances that may affect the gravity of the crime. In the absence of any
foolproof formula which may provide any basis for reasonable criteria to correctly
assess various circumstances germane to the consideration of gravity of crime, the
discretionary judgment in the facts of each case, is the only way in which such
judgment may be equitably distinguished.
1 6 . I n Jashubha Bharatsinh Gohil v. State of Gujarat MANU/SC/1561/1994 :
[1994]3SCR471 , it has been held by this Court that in the matter of death sentence, the
Courts are required to answer new challenges and mould the sentencing system to meet
these challenges. The object should be to protect the society and to deter the criminal
in achieving the avowed object to law by imposing appropriate sentence. It is expected
that the Courts would operate the sentencing system so as to impose such sentence
which reflects the conscience of the society and the sentencing process has to be stern
where it should be. Even though the principles were indicated in the background of
death sentence and life sentence, the logic applies to all cases where appropriate
sentence is the issue.
17. Imposition of sentence without considering its effect on the social order in many
cases may be in reality a futile exercise. The social impact of the crime, e.g. where it
relates to offences against women, dacoity, kidnapping, misappropriation of public
money, treason and other offences involving moral turpitude or moral delinquency
which have great impact on social order, and public interest, cannot be lost sight of and
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per se require exemplary treatment. Any liberal attitude by imposing meager sentences
or taking too sympathetic view merely on account of lapse of time in respect of such
offences will be result-wise counter productive in the long run and against societal
interest which needs to be cared for and strengthened by string of deterrence inbuilt in
the sentencing system.
18. In Dhananjoy Chatterjee v. State of W.B. MANU/SC/0626/1994 : [1994]1SCR37 ,
this Court has observed that shockingly large number of criminals go unpunished
thereby increasingly, encouraging the criminals and in the ultimate making justice suffer
by weakening the system's creditability. The imposition of appropriate punishment is
the manner in which the Court responds to the society's cry for justice against the
criminal. Justice demands that Courts should impose punishment befitting the crime so
that the Courts reflect public abhorrence of the crime. The Court must not only keep in
view the rights of the criminal but also the rights of the victim of the crime and the
society at large while considering the imposition of appropriate punishment.
1 9 . Similar view has also been expressed in Ravji v. State of Rajasthan
MANU/SC/0215/1996 : AIR1996SC787 . It has been held in the said case that it is the
nature and gravity of the crime but not the criminal, which are germane for
consideration of appropriate punishment in a criminal trial. The Court will be failing in
its duty if appropriate punishment is not awarded for a crime which has been committed
not only against the individual victim but also against the society to which the criminal
and victim belong. The punishment to be awarded for a crime must not be irrelevant but
it should conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public abhorrence and
it should "respond to the society's cry for justice against the criminal". If for extremely
heinous crime of murder perpetrated in a very brutal manner without any provocation,
most deterrent punishment is not given, the case of deterrent punishment will lose its
relevance.
2 0 . These aspects have been elaborated in State of M.P. v. Munna Choubey
MANU/SC/0055/2005 : 2005CriLJ913 .
2 1 . I n Bachan Singh v. State of Punjab MANU/SC/0055/1982 : 1980CriL J636 a
Constitution Bench of this Court at para 132 summed up the position as follows: (SCC
p.729)
132. To sum up, the question whether or not death penalty serves any
penological purpose is a difficult, complex and intractable issue. It has evoked
strong, divergent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 302, Penal Code on the
ground of reasonableness in the light of Articles 19 and 21 of the Constitution,
it is not necessary for us to express any categorical opinion, one way or the
other, as to which of these two antithetical views, held by the Abolitionists and
Retentionists, is correct. It is sufficient to say that the very fact that persons of
reason, learning and light are rationally and deeply divided in their opinion on
this issue, is a ground among others, for rejecting the petitioners' argument
that retention of death penalty in the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the view of the Abolitionists to the
contrary, a very large segment of people, the world over, including sociologists,
legislators, jurists, judges and administrators still firmly believe in the worth
and necessity of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary public opinion

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 channelised through the people's representatives in Parliament, has repeatedly
in the last three decades, rejected all attempts, including the one made
recently, to abolish or specifically restrict the area of death penalty, if death
penalty is still a recognised legal sanction for murder or some types of murder
in most of the civilised countries in the world, if the framers of the Indian
Constitution were fully aware -- as we shall presently show they were -- of the
existence of death penalty as punishment for murder, under the Indian Penal
Code, if the 35th Report and subsequent reports of the Law Commission
suggesting retention of death penalty, and recommending revision of the
Criminal Procedure Code and the insertion of the new Sections 235(2) and
354(3) in that Code providing for pre-sentence hearing and sentencing
procedure on conviction for murder and other capital offences were before
Parliament and presumably considered by it when in 1972-73 it took up
revision of the Code of 1898 and replaced it by the Code of Criminal Procedure,
1973, it is not possible to hold that the provision of death penalty as an
alternative punishment for murder, in Section 302, Penal Code is unreasonable
and not in the public interest. We would, therefore, conclude that the impugned
provision in Section 302, violates neither the letter nor the ethos of Article 19.
2 2 . Similarly, in Machhi Singh v. State of Punjab MANU/SC/0211/1983 :
1983CriLJ1457 the position was summed up as follows: (SCC p. 489)
38. In this background the guidelines indicated in Bachan Singh's case (supra)
will have to be culled out and applied to the facts of each individual case where
the question of imposing of death sentence arises. The following propositions
emerge from Bachan Singh's case (supra):
(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
'offender' also require to be taken into consideration along with the
circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception.
In other words death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and provided,
and only provided, the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to
be drawn up and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before the option is
exercised.
23. The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi
MANU/SC/0217/2002 : 2002CriLJ2034
5 8 . From Bachan Singh's case (supra) and Machhi Singh's case (supra) the
principle culled out is that when the collective conscience of the community is
so shocked, that it will expect the holders of the judicial power centre to inflict
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 death penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty, the same can be awarded. It was
observed:
The community may entertain such sentiment in the following
circumstances:
(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so as to
arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin
for money or reward; or cold-blooded murder for gains of a
person vis-�-vis whom the murderer is in a dominating
position or in a position of trust; or murder is committed in the
course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or
minority community, etc. is committed not for personal reasons
but in circumstances which arouse social wrath; or in cases of
'bride burning' or 'dowry deaths' or when murder is committed
in order to remarry for the sake of extracting dowry once again
or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance
when multiple murders, say of all or almost all the members of
a family or a large number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person vis-
�-vis whom the murderer is in a dominating position, or
a public figure generally loved and respected by the
community.
24. If upon taking an overall global view of all the circumstances in the light of the
aforesaid propositions and taking into account the answers to the questions posed by
way of the test for the rarest of rare cases, the circumstances of the case are such that
death sentence is warranted, the court would proceed to do so.
2 5 . What is culled out from the decisions noted above is that while deciding the
question as to whether the extreme penalty of death sentence is to be awarded, a
balance sheet of aggravating and mitigating circumstances has to be drawn up.
26. Lord Justice Denning, Master of the Rolls of the Court of Appeals in England said to
the Royal Commission on Capital Punishment in 1950:
Punishment is the way in which society expresses its denunciation of wrong
doing; and, in order to maintain respect for the law, it is essential that the
punishment inflicted for grave crimes should adequately reflect the revulsion
felt by the great majority of citizens for them. It is a mistake to consider the
objects of punishments as being a deterrent or reformative or preventive and
nothing else... The truth is that some crimes are so outrageous that society

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 insists on adequate punishment, because the wrong doer deserves it,
irrespective of whether it is a deterrent or not.
In J.J. Rousseau's The Social Contract written in 1762, he says the following:
Again, every rogue who criminously attacks social rights becomes, by his
wrong, a rebel and a traitor to his fatherland. By contravening its laws, he
ceases to be one of its citizens: he even wages war against it. In such
circumstances, the State and he cannot both be saved: one or the other must
perish. In killing the criminal, we destroy not so much a citizen as an enemy.
The trial and judgments are proofs that he broken the Social Contract, and so is
no longer a member of the State.
2 7 . The case at hand falls in the rarest of rare category. The depraved acts of the
accused call for only one sentence that is death sentence.
2 8 . The above position was highlighted in Bantu v. The State of U.P.
MANU/SC/7863/2008 : (2008)11SCC113
29. Murder of six members of a family including helpless women and children having
been committed in a brutal, diabolic and bristly manner and the crime being one which
is enormous in proportion which shocks the conscious of law, the death sentence as
awarded in respect of accused Sattan and Guddu was the appropriate sentence and the
High Court ought not to have altered it. So far as the acquittal of the Hari Pal son of
Kiran Singh and Hari Pal son of Ram Charan are concerned, the High Court has noted
that the evidence so far as their involvement is concerned was not totally free from
doubt. The High Court have analysed the factual scenario in detail to direct the
acquittal. We find no reason to differ from the conclusions of the High Court. The
acquittal as directed stands affirmed. So far as other four respondents i.e. appellants in
Criminal Appeal No. 2237 of 1999 is concerned they were charged under Section 120B.
It has been recorded by the High Court that except the suspicion which the informant
was having in her mind about the involvement of these four accused persons there was
neither any direct or circumstantial evidence to fasten the charge of criminal conspiracy.
That being so the High Court was justified in directing their acquittal. Criminal Appeal
No. 314 is allowed. The State's appeal so far as Sattan and Upendra are concerned is
allowed to the extent that the death sentence as was awarded by the trial court is
restored so far as they are concerned. The appeal fails so far as respondents Hari Pal
son of Kiran Singh and Hari Pal son of Ram Charan are concerned, Crl. A. Nos. 314 and
315 of 2001 are disposed of accordingly.
30. We record our appreciation for the able assistance rendered by Mr. M. Karapaga
Vinayagam, learned Amicus Curiae.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0535/2000
Equivalent/Neutral Citation: 2000(3)AC R2200(SC ), AIR2000SC 2988, 2000(2)ALD(C ri)718, 2000 (41) AC C 598, 2001(1)ALT(C ri)74,
III(2000)C C R153(SC ), 2000C riLJ4047, 2000(4)C rimes1(SC ), 2000 INSC 422, JT2000(9)SC 467, 2000(4)RC R(C riminal)147, 2000(6)SC ALE148,
(2000)8SC C 382, [2000]Supp2SC R712

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 785 of 1991 With Criminal Appeal Nos. 786, 787, 788, 789/91 and
638-645/2000)
Decided On: 29.08.2000
State of West Bengal Vs. Mir Mohammad Omar and Ors.
Hon'ble Judges/Coram:
K.T. Thomas and R.P. Sethi, JJ.
Case Note:
(1) Indian Penal Code, 1860 - Sections 364/34 and 302/34-Abduction and
murder-Acquittal by trial court for charge of murder but conviction and
sentence of 10 years R.I. for abduction-Reduction of sentence by High Court
to period already undergone-Validity-All broad features of case eloquently
supporting version of witnesses that words of "finishing off" abducted
attributed to accused persons-Were really uttered by them-Hence all accused
persons abducted M in order to murder him-Senior doctor conducting autopsy
on dead body not finding 'religious circumcision of penis of dead body-
Slipshod observation of junior doctor to contrary regarding vitally important
identification mark-Cannot be taken seriously-Similarly, age estimated by
novice medical practitioner without any test-Hardly sufficient to conclude that
dead body was of person aged 40 years whereas witnesses claimed victim M
to be of 29 years-Overwhelming evidence showing autopsy conducted on dead
body of M-Postmortem report showing victim to be murdered-No doubt that
homicidal death of M occurred on same night of abduction-No reason to
disbelieve evidence of I. O. regarding recovery of shirt on pointing of A1-
Bushshirt same which M was wearing at time of abduction-No explanation by
abductors as to what happened to M after abduction by them-Presumption of
murder of M by accused abductors within short time after abduction available-
Circumstances in case enough to draw inference that victim's death caused by
same abductors-State appeal allowed and appeals of accused dismissed-
Conviction and sentence of accused persons for abduction by trial court
restored-Accused persons also convicted for murder and sentenced to
imprisonment for life.
(2) Indian Penal Code, 1860 - Section 364-Abduction-When takes place?-
Scope of Section 364.
Abduction takes place when a person is compelled by force (or such person is
induced by any deceitful means) to go from any place. Section 364, I.P.C.
says, whoever abducts any person "in order that such person may be
murdered or disposed of as to be put in danger of being murdered", he
commits the offence punishable under the Section. Even if the murder did not
take place, the offence would be complete if the abduction was completed
with the said objective. Conversely, if there was no such objective when the
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abduction was perpetrated, but later the abductors murdered the victim,
Section 364, I.P.C. would not be attracted, though in such a case, the Court
may have to consider whether the offence of culpable homicide (amounting to
or not amounting to murder) was committed.
(3) Evidence Act, 1872-Section 114-Burden of proof-Presumption under
Section 114-Availability.
The pristine rule that the burden of proof is on the prosecution to prove the
guilt of the accused should not be taken as a fossilised doctrine as though it
admits no process of intelligent reasoning. The doctrine of presumption is not
alien to the above rule, nor would it impair the temper of the rule. On the
other hand, if the traditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic coverage, the offenders in
serious offences would be the major beneficiaries, and the society would be
the casualty.
Presumption of fact is an inference as to the existence of one fact from the
existence of some other facts, unless the truth of such inference is disproved.
Presumption of fact is a rule in law of evidence that a fact otherwise doubtful
may be inferred from certain other proved facts. When inferring the existence
of a fact from other set of proved facts, the Court exercises a process of
reasoning and reach a logical conclusion as the most probable position. The
above principle has gained legislative recognition in India when Section 114
is incorporated in the Evidence Act. It empowers the Court to presume the
existence of any fact which it thinks likely to have happened. In that process
Court shall have regard to the common course of natural events, human
conduct etc. in relation to the facts of the case.
(4) Evidence Act, 1872-Section 106-Burden of proof-Fact especially in
knowledge of any person-Burden of proving that fact upon him-Scope of
Section 106-Impossible for prosecution to prove certain facts particularly
within knowledge of accused.
Section 106 of the Evidence Act, 1872, reads as follows : "When any fact is
especially within the knowledge of any person, the burden of proving that fact
is upon him." The Section is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable doubt. But the
Section would apply to cases where the prosecution has succeeded in proving
facts from which a reasonable inference can be drawn regarding the existence
of certain other facts, unless the accused by virtue of his special knowledge
regarding such facts, failed to offer any explanation which might drive the
Court to draw a different inference. Section 106 of the Evidence Act is
designed to meet certain exceptional cases in which it would be impossible
for the prosecution to establish certain facts which are particularly within the
knowledge of the accused. 1956 SCR 199, relied on.
(5) Code of Criminal Procedure, 1973-Sections 154 and 156-Investigation-
Omission or lacuna-Castigation of investigation-Regular practice when Courts
acquit accused in criminal cases-Caution administered in this behalf.
Castigation of investigation unfortunately seemed to be a regular practice

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when the trial courts acquit accused in criminal cases. In our perception, it is
almost impossible to come across a single case wherein the investigation was
conducted completely flawless or absolutely foolproof. The function of the
criminal courts should not be wasted in picking out the lapses in investigation
and by expressing unsavoury criticism against Investigating Officer. If
offenders are acquitted only on account of flaws or defects in investigation,
the cause of criminal justice becomes the victim. Effort should be made by
Courts to see that criminal justice is salvaged despite such defects in
investigation. Courts should bear in mind the time constraints of the police
officers in the present system, the ill-equipped machinery they have to cope
with and the traditional apathy of respectable persons to come forward for
giving evidence in criminal cases which are realities, the police force have to
confront with while conducting investigation in almost every case. Before an
Investigating Officer is imputed with castigating remarks, the Courts should
not overlook the fact that usually such an officer is not heard in respect of
such remarks made against him. Court need make such deprecatory remarks
only when it is absolutely necessary in a particular case, and that too by
keeping in mind the broad realities indicated above.
JUDGMENT
K.T. Thomas, J.
1 . A young businessman of Calcutta was abducted and killed. The kingpin of the
abductors and some of his henchmen were later nabbed and were tried for the offences.
The trial court convicted them under Section 364 read with Section 34 of the Indian
Penal Code, but not for murder, and sentenced them each to rigorous imprisonment for
10 years. A Division Bench of the Calcutta High Court rejected the State appeal against
the acquittal for murder and reduced the sentence to a short term imprisonment
restricting it to the period which the convicted persons had already undergone. The
State of West Bengal as well as the convicted persons filed these appeals against the
said decision of the Calcutta High Court, the former mainly challenging the acquittal for
murder charge and the latter challenging the very conviction entered against them.
2 . Narration of material facts of this case, in a brief manner, is necessary before
considering the contentions raised. The victim of the offence was one Mahesh Kumar
Aggarwal ('Mahesh' for short). He was doing some small business at Bow Bazar area
(Calcutta). He was a bachelor aged 29 and he was residing with his sister Anushila Devi
(PW-9) in an apartment situated on the Western Street which was re-christened as
Banbuk Gali. First accused Mir Mohammad @ Omar and 7th accused Sajid Ali were
friends and associates in many activities indulged in at Bow Bazar area and the other
accused were all the henchmen of Omar.
3. Sajid Ali (7th accused) wanted Mahesh to part with a sum of Rs. 50,000/- almost as
a ransom, for allowing him to deal with his business unobstructed. But the deceased did
not capitulate to the demand and such refusal led to a dig between the two. It seems
Mahesh scored an upper hand in the dig. The above episode happened about 10-12
days before the death of Mahesh.
4. The night of 4.11.1984 became horrendously eventful for Mahesh. The events started
with the gate-crashing made by some assailants led by A-7 Sajid Ali, into the apartment
of Anushila Devi (PW-9) in search of her brother Mahesh. Having failed to see him there
the assailants left the apartment after hurling threatening words at the housewife. About

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an hour later, Mahesh reached the apartment and was told by his sister of what
happened. Mahesh got frightened and left the house lest the assailants might come back
to that place.
5 . By about 11.00 P.M. Mahesh reached the residence of his friend Abdul Aziz (PW-4)
and took asylum therein. But hardly an hour passed he heard the sound of knocking at
the door and when it was opened they saw one fruit-seller (by name Moin) standing at
the doorstep for conveying a message that A-1 Omar was waiting outside to see
Mahesh. When he stepped outside he saw A-1 Omar who then asked him to accompany
him. But Mahesh refused to do so. Then A-1 Omar forcibly took him to a rickshaw to be
taken away from that site, but Mahesh managed to escape therefrom and ran away
towards Giri Babu Lane.
6 . Mahesh reached the place where PW-5 (Mohd. Sayeed) was residing on Giri Babu
Lane and sought asylum therein. He narrated to PW-5 all what had happened till then.
He was allowed to sleep in that room, and concealed himself beneath the Chowki of that
room.
7. The time was about 2.30 A.M. when there was knocking at the door of PW-5's room.
He opened the door and found A-1 and other accused standing just outside. Four of the
accused sneaked into the room and made a prowl for Mahesh and traced him cut in that
snoop. The victim was dragged out of the room. A-1 yelled at the victim: "You escaped
earlier. Now let me see how you would escape again."
8 . Hearing the commotion some of the neighbours woke up from sleep. PW-6 (Mohd.
Idris) went out to see what happened and then saw some of the assailants (including
the 7th accused in this case) forcibly dragging Mahesh towards the Central Avenue. In
the course of such towing A-1 was showering lathi blows on Mahesh saying "I will beat
you and kill you like a pig". A-7 was heard saying, "As you did not give the money
which we asked for we would finish you today." They took Mahesh away from the sight
and ken of the residents of that area. Thereafter, Mahesh was not seen alive by his kith
and kin or his friends.
9. On the same night Mohd. Sayeed (PW5) went to Bow Bazar Police Station and lodged
a complaint regarding the abduction of Mahesh. An FIR was registered on the strength
of the said complaint. On the next morning PW-9 Anushila Devi (sister of Mahesh) told
her nephew Pawan Kumar (PW-29) about the abduction of Mahesh. Sometime later,
Pawan Kumar learned that his uncle Mahesh was admitted in Islamia Hospital. So he
rushed to that hospital and made inquiries and came across the mangled body of his
uncle lying in the hospital with his head tonsured.
1 0 . PW-3 (Dr. Debabrata Chaudhary a Reader in Forensic Medicine conducted
postmortem examination on the dead body of Mahesh and expressed his opinion that
Mahesh was murdered. Subsequently, all the accused were arrested at different times.
Some articles were recovered on the strength of the statements elicited from the
accused. After conclusion of the investigation final report was laid against the seven
accused. The case as against the 7th accused Sajid Ali was split up due to some reasons
and hence the trial proceeded as against the remaining accused.
11. There is abundant evidence for showing that Mahesh was abducted by the accused
on the night in question. It is unnecessary to dwell upon that aspect in this appeal,
particularly since the trial court and the High Court have held that issue in unison and
since no serious attempt was made before us for disrupting that finding. Sri P.S. Misra,
learned Senior Counsel contended that there would only be a case of adduction
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simplicitor, even assuming that the above position stands unassailable, but such
abduction by itself is not punishable by any provision of the Penal Code. We are not
inclined to consider the said contention in an academic perspective now, for,
prosecution in this case has put forward a case of abduction for the purpose of
committing murder. It was that case which was found against the accused by the trial
court which finding remained undisrupted by the High Court.
1 2 . Abduction takes place when a person is compelled by force (or such person is
induced by any deceitful means) to go from any place. In this case Mahesh was dragged
away by the accused from two places, first at Chittaranjan Avenue and when he escaped
from the grip of the abductors and perched himself in a hide out selected by him at Giri
Babu Lane, from there also he was hauled out.
13. Section 364 IPC says, whoever abducts any person "in order that such person may
be murdered or disposed of as to be put in danger of being murdered" he commits the
offence punishable under the Section. So the important task of the prosecution was to
demonstrate that abduction of Mahesh was for murdering him. Even if the murder did
not take place, the offence would be complete if the abduction was completed with the
said objective. Conversely, if there was no such objective when the abduction was
perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be
attracted, though in such a case the court may have to consider whether the offence of
culpable homicide (amounting to or not amounting to murder) was committed.
14. If the words attributed to the abductors can be believed we have no doubt that the
abduction was done for the purpose of finishing him off. Knowing this position well, Sri
P.S. Misra, learned Senior Counsel made a frontal criticism on the aforesaid evidence
and contended that it is easy for interested witnesses to put such words in the mouth of
the accused in order to aggravate the dimension of the offence. No doubt, witnesses can
do so. But the question here is whether the aforesaid version of those witnesses was a
concoction to embroil the abductors into the cobweb of a serious offence like Section
364 IPC. The reliability of that part of the evidence can be tested from different angles.
15. First is, even in the FIR PW-5 had quoted those words as spoken to by A-1, It must
be noted that when FIR was given PW-5 had no reason to believe that Mahesh was not
alive. If Mahesh had come back alive it is doubtful whether police would have seriously
followed up the FIR. Next is, the temper which the assailants exhibited in the house of
the deceased's sister (when she was the sole inmate present therein), is broadly
indicative of the truculence of the intruders that they went there with some definite
purpose. Mahesh was once caught by them on that night itself by PW-4 and then he was
badly handled by them, If their intention was only to inflict some blows on the victim
they would have stopped with what they did to him at that stage. But when Mahesh
struggled and extricated himself from their clutches and escaped to another place at Giri
Babu Lane these accused did not stop and they persisted in prowling for their prey and
succeeded in tracing him out from that different area and hauled him out violently. Such
repeated chase for Mahesh could, in all probabilities, be for his blood. Thus, all the
broad features of this case eloquently support the version of the witnesses to conclude
that the words attributed to the accused were really uttered by them.
16. For the aforesaid reasons, we have no difficulty to conclude that all the accused
abducted Mahesh in order to murder him.
17. Now we have to consider the more serious aspect whether Mahesh was murdered
by the abductors. On this aspect Sri P.S. Misra led his most vocal contention that the

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identity of the corpus delicti has not been established in this case. In other words, the
contention is that the prosecution failed to establish that the dead body on which PW-30
(Dr. Debabrata Choudhury) conducted the autopsy could not have been that of Mahesh.
18. Learned counsel highlighted two seeming inconsistencies in the evidence to bolster
up his contention on the above score. First is that PW-8 ((Dr. Adhikari) who saw the
dead body first estimated the age as 40, whereas Mahesh was only 29 according to his
own kith and kin. Second is that Dr. Adhikari had noted that the penis of the dead body
had undergone "religious circumcision".
1 9 . The argument advanced by Sri P.S. Misra, learned senior counsel on the above
material appeared, at the first blush, formidable. But on a closer scrutiny the said
contention turned out to be very feeble. It must be pointed out that the doctor who
conducted post-mortem examination (PW-30 Dr. Debabrata Choudhury) did not find any
evidence of such circumcision on the dead body. That doctor is a specialist in Forensic
Medicine and was a senior person. On the other hand, PW-28 (Dr. Adhikari) was only a
stripling in the profession who had just completed his internship after his graduation.
He said in his evidence that when he examined the patient he found "the glands penis
exposed; foreskin was rolled back; thus it appeared to be a case of early circumcision".
We do not think that such a slipshod observation regarding such a vitally important
identification mark can be taken as a seriously observed feature, particularly when PW-
30, a senior doctor, did not notice any such thing. Similarly, the age estimated by this
novice medical practitioner without conducting any medical tests in that regard is hardly
sufficient to conclude that the dead body was that of a person aged 40. Even otherwise
the approximation of the age made by looking at the dead body is not enough to offset
the age spoken to by the kith and kin of the deceased.
2 0 . On the other side, there is overwhelming evidence to show that the autopsy
conducted on the dead body by PW-30 was that of Mahesh. We find little scope even to
doubt the possibility of some other dead body being mistakenly treated as that of the
deceased while conducting the postmortem examination. PW-9 (Anushila Devi) sister of
Mahesh, said that she saw the dead body of Mahesh before it was cremated and she had
absolutely no doubt that it was her brother's. PW-29 (Pawan Kumar Agarwal) a nephew
of Mahesh went to Islamia Hospital and it was he who first identified the dead body of
his uncle. PW-4 (Abdul Aziz), PW-5 (Mohd. Sayeed), PW. 6 (Mohd. Idris) and PW-11
(Mohd. Afjal) saw the same dead body and they had no doubt at all that it was that of
Mahesh.
21. The post-mortem report made by PW-30 (Dr. Debabrata Choudhury) shows that the
victim was murdered. He noticed as many as 45 injuries on the dead body which
included fracture of 5 ribs (2 to 6) on the left side towards sternal end, fracture of some
of the fingers and extravasation of blood on the right side of occipital region and also
on the situs of the rib fractures. The remaining injuries included a few lacerated
wounds, contusions and aberrations. There was just one minor incised wound on the
left pinna. The right lung was congested. The doctor opined that death of that deceased
had resulted from multiple injuries and injuries of vital organs and it was homicidal in
nature.
22. The trial court made a fallacious conclusion regarding the death of the deceased on
the premise that the public prosecutor did not elicit from the doctor as to whether the
injuries were sufficient in the ordinary course of nature to cause death. The Sessions
Judge concluded thus on the said issue:

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 There being no evidence on record to show that the injuries were sufficient in
the ordinary course of nature to cause death, it cannot be said that the injuries
noticed by the autopsy surgeon (PW-30) were responsible for causing the death
of the deceased Mahesh.
23. No doubt it would have been of advantage to the court if the public prosecutor had
put the said question to the doctor when he was examined. But mere omission to put
that question is not enough for the court to reach a wrong conclusion. Though not an
expert as PW-30, the Sessions Judge himself would have been an experienced judicial
officer. Looking at the injuries he himself could have deduced whether those injuries
were sufficient in the ordinary course of nature to cause death. No sensible man with
some idea regarding the features of homicidal cases would come to a different
conclusion from the injuries indicated above, the details of which have been stated by
the doctor (PW-30) in his evidence.
24. We have no doubt that homicidal death of Mahesh had happened on the same night
of his abduction. Now we have to deal with another crucial issue. Having found that
Mahesh was abducted by the accused in order to murder him and he was in fact really
murdered very soon thereafter can the accused escape from the penal consequences of
such murder. The trial court has stated on the said crucial issue thus:
From the discussions made by me in the earlier part of the judgment it would
appear that the accused persons had forcibly taken away the deceased Mahesh
from the premises at 29/2/2A, Giri Babu Lane, Calcutta. There is no iota of
evidence to show that the deceased Mahesh was in the custody of the accused
persons along from 2.30 A.M. to 5.45 A.M. of 5.11.86.... There is no evidence
worth the name to show that the accused persons had carried the dead body of
Mahesh to Islamia Hospital and then abandoned it at the Emergency
Department.
25. The High Court unfortunately did not deal with this aspect at all. Learned judges
made scathing criticism on the flaws incurred in the investigation and without any
reference to the evidence confirmed the conviction passed by the trial court.
26. Before we consider the said crucial aspect we have to point out another important
circumstance. Sri K.T.S. Tulsi, learned Counsel who argued for the State highlighted the
said circumstance that when A-1 Omar was interrogated by the Investigating Officer
(PW-34) on 12.11.1986 he told the officer that "I have kept it (a full sleeve bush shirt)
underneath the mattress on the ground in my club room". Pursuant to the said
statement the shirt was recovered therefrom. It is marked as Ext. XV in this case. It is
now in a torn condition. The statement attributed to A. 1 Omar, and extracted above
would fall within the purview of Section 27 of the Evidence Act. If it is believable, it
would show that the said shirt was concealed by the said accused. We do not find any
reason to disbelieve the evidence of the investigating officer regarding recovery of
Ext.XV - shirt.
27. There are two significant features relating to the said shirt. One is that PW-5 said
that he supplied a shirt to Mahesh on the same night when he found his wearing
apparels shabby and torn. PW-5 said that when Mahesh was abducted from his room he
was wearing that shirt and PW-5 identified Ext. XV as the said bush shirt. No
explanation whatsoever was offered by A-1 Omar regarding Ext. XV (bush shirt) except
a bare denial regarding it. We have no difficulty to believe the evidence of PW-34 on
that score. It goes a long way in focussing at the first accused Omar for the murder of

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Mahesh.
28. The other feature has been highlighted by Sri K.T.S. Tulsi that the bush shirt was
subjected to serological examination at the Forensic Sciences Laboratory and it was
found stained with human blood (vide Ext. 40 series). Sri Harsh Kumar Puri, learned
Counsel for the appellants in one of the appeals filed by the convicted persons, pointed
out in his written submissions that the aforesaid circumstance (FSL test result on the
shirt) was not put to the accused when they were questioned by the Sessions Judge
under Section 313 of the CrPC. When we scrutinised the records we noticed that no
question was put to the accused on that score. Consequently we are disabled from using
that feature on the shirt as a circumstance against the accused.
29. Even barring that, the following circumstances have now been well set against the
accused: (1) Mahesh was abducted around 2.30 A.M. by the abductors proclaiming that
he would be finished off. (2) The abductors took Mahesh out of the sight of the
witnesses. He was then wearing a bush shirt Ext. XV. (3) Within a couple of hours the
murdered body of Mahesh was found in Islamia Hospital without a shirt. (4) The bush
shirt which Mahesh was wearing at the time of abduction was concealed by A-1 Omar.
30. The abductors have not given any explanation as to what happened to Mahesh after
he was abducted by them. But the learned Sessions Judge after referring to the law on
circumstantial evidence concluded thus:
On a careful analysis and appreciation of the evidence I think that there is a
missing link in the chain of events after the deceased was last seen together
with the accused persons and the discovery of the dead body of the deceased at
Islamia Hospital. Therefore, the conclusion seems irresistible that the
prosecution has failed to establish the charge of murder against the accused
persons beyond any reasonable doubt.
31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of
the accused should not be taken as a fossilized doctrine as though it admits no process
of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor
would it impair the temper of the rule. On the other hand, if the traditional rule relating
to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the
offenders in serious offences would be the major beneficiaries, and the society would
be the casualty.
3 2 . In this case, when prosecution succeeded in establishing the afore narrated
circumstances, the court has to presume the existence of certain facts. Presumption is a
course recognised by the law for the court to rely on in condition such as this.
3 3 . Presumption of fact is an inference as to the existence of one fact from the
existence of some other facts, unless the truth of such inference is disproved.
Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When inferring the existence of a fact from
other set of proved facts, the court exercises a process of reasoning and reach a logical
conclusion as the most probable position. The above principle has gained legislative
recognition in India when Section 114 is incorporated in the Evidence Act. It empowers
the court to presume the existence of any fact which it thinks likely to have happened.
In that process court shall have regard to the common course of natural events, human
conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the
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accused and they took him out of that area, the accused alone knew what happened to
him until he was with them. If he was found murdered within a short time after the
abduction the permitted reasoning process would enable the court to draw the
presumption that the accused have murdered him. Such inference can be disrupted if
accused would tell the court what else happened to Mahesh at least until he was in their
custody.
35. During arguments we put a question to learned senior counsel for the respondents
based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his
guardian in the sight of his people and the kidnappers disappeared with the prey, what
would be the normal inference if the mangled dead body of the boy is recovered within
a couple of hours from elsewhere. The query was made whether upon proof of the
above facts an inference could be drawn that the kidnappers would have killed the boy.
Learned senior counsel finally conceded that in such a case the inference is reasonably
certain that the boy was killed by the kidnappers unless they explain otherwise.
36. In this context we may profitably utilise the legal principle embodied in Section 106
of the Evidence Act which reads as follows: "When any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him."
37. The section is not intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt. But the Section would apply to cases
where the prosecution has succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of certain other facts, unless the
accused by virtue of his special knowledge regarding such facts, failed to offer any
explanation which might drive the court to draw a different inference.
38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to
meet certain exceptional cases in which it would be impossible for the prosecution to
establish certain facts which are particularly within the knowledge of the accused. In
Shambu Nath Mehra v. The State of Ajmer MANU/SC/0023/1956 : 1956CriL J794 the
learned Judge has stated the legal principle thus:
This lays down the general rule that in a criminal case the burden of proof is on
the prosecution and Section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain exceptional cases in which
it would be impossible, or at any rate disproportionately difficult for the
prosecution to establish facts which are 'especially' within the knowledge of the
accused and which he could prove without difficulty or inconvenience. The word
'especially' stresses that. It means facts that are pre-eminently or exceptionally
within his knowledge.
39. In the present case, the facts which prosecution proved including the proclaimed
intention of the accused, when considered in the light of the proximity of time within
which the victim sustained fatal injuries and the proximity of the place within which the
dead body was found are enough to draw an inference that victim's death was caused
by the same abductors. If any deviation from the aforesaid course would have been
factually correct only the abductors would know about it, because such deviation would
have been especially within their knowledge. As they refused to state such facts the
inference would stand undisturbed.
40. The Division Bench of the High Court instead of dealing with the circumstances of
the case and issues involved made only some general comments and after castigating
the investigating officers in severe language reached the final part of its judgment
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upholding the conviction under Section 364/34 IPC and reduced the sentence to the
period which the convict had already undergone. The Division Bench used unkind
remarks against the investigating officer saying "investigation of the case was
perfunctory and suffered from serious lacuna and irregularity".
41. Learned Judges of the Division Bench did not make any reference to any particular
omission or lacuna in the investigation. Castigation of investigation unfortunately seems
to be a regular practice when the trial courts acquit accused in criminal cases. In our
perception it is almost impossible to come across a single case wherein the
investigation was conducted completely flawless or absolutely foolproof. The function of
the criminal courts should not be wasted in picking out the lapses in investigation and
by expressing unsavory criticism against investigating officers. If offenders are
acquitted only on account of flaws or defects in investigation, the cause of criminal
justice becomes the victim. Effort should be made by courts to see that criminal justice
is salvaged despite such defects in investigation. Courts should bear in mind the time
constraints of the police officers in the present system, the ill-equipped machinery they
have to cope with, and the traditional apathy of respectable persons to come forward
for giving evidence in criminal cases which are realities the police force have to
confront with while conducting investigation in almost every case. Before an
investigating officer is imputed with castigating remarks the courts should not overlook
the fact that usually such an officer is not heard in respect of such remarks made
against them. In our view the court need make such deprecatory remarks only when it
is absolutely necessary in a particular case, and that too by keeping in mind the broad
realities indicated above.
4 2 . In the present case we have not come across any such serious flaw in the
investigation which had affected the case or which would have impaired the core of the
prosecution case justifying or warranting the pejorative remarks made by the Division
Bench of the High Court against the investigating officers.
43. In the result, we allow the appeal filed by the State and dismiss the appeals filed by
the convicted persons. While maintaining the conviction of the offence murder Section
364/44 IPC and restoring the sentence passed by the trial court on the accused we also
convict the six appellants/accused of the offence under Section 302 read with Section
34 of IPC and impose a sentence of imprisonment for life on each of them. The
sentences under all counts will run concurrently.
44. We direct the Sessions Judge, Calcutta City, to take immediate steps for putting the
convicted persons back in jail for undergoing the remaining portions of the sentences
imposed by this judgement.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0248/2014
Equivalent/Neutral Citation: 2014(2)AC R1615(SC ), 2014iv AD (S.C .) 193, 2014(138)AIC 194, AIR2014SC 1649, 2014(3)AJR469, 2014 (86) AC C
637, 2014 (2) ALT (C rl.) 477 (SC ), 2014(2)BomC R(C ri)340, II(2014)C C R159(SC ), 2014(2)C rimes307(SC ), 2015(2)EC rN 309, 2014(5)GLT75, 2014
INSC 221, 2014(3)J.L.J.R.7, JT2014(4)SC 328, (2014) 2 MLJ(C rl) 137 (SC ), 2014(1)N.C .C .497, 2014(3)PLJR177, 2014(2)RC R(C riminal)361,
2014(4)SC ALE305, (2014)8SC C 390, 2014 (6) SC J 124, [2014]9SC R283

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 695 of 2014 (Arising Out of SLP (Crl.) No. 1953 of 2013) and Writ
Petition (Criminal) No. 204 of 2013
Decided On: 28.03.2014
Subramanian Swamy and Ors. Vs. Raju Thr. Member Juvenile Justice Board and Ors.
Hon'ble Judges/Coram:
P. Sathasivam, C.J.I., Ranjan Gogoi and S.K. Singh, JJ.
Case Note:
Constitution of India - Article 14--Juvenile Justice (Care and Protection of
Children) Act, 2000 (J.J. Act)--Indian Penal Code, 1860--Sections 376 and (g)
and 302--Juvenile offender--Incidence of 16th December, 2012--Fire person
brutally assaulted young lady, sexually and physically--One of five persons
identified was below 18 years of age on date of commission of crime--His case
referred for inquiry to Juvenile Justice Board--Other accused tried in regular
sessions court--Question for determination--Whether offence(s) allegedly
committed by juvenile is to be inquired into by Juvenile Justice Board or
juvenile is required to be tried in regular criminal court?--J.J. Act treated all
under 18 as separate category for purpose of differential treatment so far as
commission of offences are concerned--Contentions advanced by petitioners
to the contrary on strength of thinking and practices in other jurisdiction--
Without any relevance--Held, in instant case no question of sending juvenile
to face regular trial.
It was urged by the appellant that the relevant provisions of the Juvenile
Justice (Care and Protection of Children) Act, i.e. Sections 1(4), 2(k), 2(1)
and 7 must be read to mean that juveniles (children below the age of 18)
who are intellectually, emotionally and mentally mature enough to
understand the implications of their acts and who have committed serious
crimes do not come under the purview of the Act Such juveniles are liable to
be dealt with under the penal law of the country and by the regular hierarchy
of courts under the criminal justice system administered in India. This is what
was intended by the Legislature; a plain reading, though, shows an
unintended omission which must be made up or furnished by the court. It is
further urged that if the Act is not read in the above manner the fall out
would render the same in breach of Article 14 as inasmuch as in that event
there would be a blanket/flat categorisation of all juveniles, regardless of
their mental and intellectual maturity, committing any offence, regardless of
its seriousness, in one homogenous block in spite of their striking
dissimilarities. This, the petitioner contends, is a classification beyond what
would be permissible under Article 14 inasmuch as the result of such
classification does not further the targeted object, i.e., to confer the benefits
of the Act to persons below 18 who are not criminally responsible in view of
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further crime; from causing disappearance or tampering with evidence and for proper
investigation (Section 41). Persons accused of a non-cognizable offence may be
arrested only with a warrant from a Magistrate (Section 41(2)).
JJ System: The JJ Rules provide that a juvenile in conflict with the law need not be
apprehended except in serious offences entailing adult punishment of over 7 years (Rule
11(7)). As soon as a juvenile in conflict with the law is apprehended, the police must
inform the designated Child/Juvenile Welfare Officer, the parents/guardian of the
juvenile, and the concerned Probation Officer (for the purpose of the social background
report) (Section 13 & Rule 11(1)). The juvenile so apprehended is placed in the charge
of the Welfare Officer. It is the Welfare Officer's duty to produce the juvenile before the
Board within 24 hours (Section 10 & Rule 11(2)). In no case can the police send the
juvenile to lock up or jail, or delay the transfer of his charge to the Welfare Officer
(proviso to Section 10 & Rule 11(3)).
Bail
Criminal Justice System: Chapter XXXIII of the Code of Criminal Procedure provides for
bails and bonds. Bail may be granted in cases of bailable and non-bailable offences in
accordance with Section 436 and 437 of the Code of Criminal Procedure. Bail in non-
bailable offences may be refused if there are reasonable grounds for believing that the
person is guilty of an offence punishable with death or imprisonment for life, or if he
has a criminal history (Section 437(1)).
JJ System: A juvenile who is accused of a bailable or non-bailable offence "shall" be
released on bail or placed under the care of a suitable person/institution. This is subject
to three exceptions: (i) where his release would bring him into association with a
known criminal, (ii) where his release would expose him to moral, physical or
psychological danger, or (iii) where his release would defeat the ends of justice. Even
where bail is refused, the juvenile is to be kept in an observation home or a place of
safety (and not jail).
Trial and Adjudication
The trial of an accused under the criminal justice system is governed by a well laid
down procedure the essence of which is clarity of the charge brought against the
accused; the duty of the prosecution to prove the charge by reliable and legal evidence
and the presumption of innocence of the accused. Culpability is to be determined on the
touchstone of proof beyond reasonable doubt but if convicted, punishment as provided
for is required to be inflicted with little or no exception. The accused is entitled to seek
an exoneration from the charge(s) levelled i.e. discharge (amounting to an acquittal)
mid course.
JJ System: Under Section 14, whenever a juvenile charged with an offence is brought
before the JJ Board, the latter must conduct an 'inquiry' under the JJ Act. A juvenile
cannot be tried with an adult (Section 18).
Determination of the age of the juvenile is required to be made on the basis of
documentary evidence (such as birth certificate, matriculation certificate, or Medical
Board examination).
The Board is expected to conclude the inquiry as soon as possible under Rule 13.
Further, the Board is required to satisfy itself that the juvenile has not been tortured by
the police or any other person and to take steps if ill-treatment has occurred.
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Proceedings must be conducted in the simplest manner and a child-friendly atmosphere
must be maintained (R. 13(2)(b)), and the juvenile must be given a right to be heard
(clause (c)). The inquiry is not to be conducted in the spirit of adversarial proceedings,
a fact that the Board is expected to keep in mind even in the examination of witnesses
(R. 13(3)). Rule 13(4) provides that the Board must try to put the juvenile at ease while
examining him and recording his statement; the Board must encourage him to speak
without fear not only of the circumstances of the alleged offence but also his home and
social surroundings. Since the ultimate object of the Act is the rehabilitation of the
juvenile, the Board is not merely concerned with the allegations of the crime but also
the underlying social causes for the same in order to effectively deal with such causes.
The Board may dispense with the attendance of the juvenile during the inquiry, if
thought fit (Section 47). Before the Board concludes on the juvenile's involvement, it
must consider the social investigation report prepared by the Welfare Officer (R. 15(2)).
The inquiry must not prolong beyond four months unless the Board extends the period
for special reasons due to the circumstances of the case. In all non-serious crimes,
delay of more than 6 months will terminate the trial (R. 13(7)).
Sentencing: The Board is empowered to pass one of the seven dispositional orders
Under Section 15 of the JJ Act: advice/admonition, group counseling, community
service, payment of fine, release on probation of good conduct and placing the juvenile
under the care of parent or guardian or a suitable institution, or sent to a Special home
for 3 years or less. Where a juvenile commits a serious offence, the Board must report
the matter to the State Govt. who may keep the juvenile in a place of Safety for not
more than 3 years. A juvenile cannot be sentenced to death or life imprisonment.
Post-trial Processes
JJ System: No disqualification attaches to a juvenile who is found to have committed an
offence. The records of his case are removed after the expiry of period of appeal or a
reasonable period.
Section 40 of the JJ Act provides that the rehabilitation and social reintegration of the
juvenile begins during his stay in a children's home or special home. "After-care
organizations" recognized by the State Govt. conduct programmes for taking care of
juveniles who have left special homes to enable them to lead honest, industrious and
useful lives.
Differences between JJ System and Criminal Justice System
1. FIR and charge-sheet in respect of juvenile offenders is filed only in 'serious
cases', where adult punishment exceeds 7 years.
2. A juvenile in conflict with the law is not "arrested", but "apprehended", and
only in case of allegations of a serious crime.
3 . Once apprehended, the police must immediately place such juvenile under
the care of a Welfare Officer, whose duty is to produce the juvenile before the
Board. Thus, the police do not retain pre-trial custody over the juvenile.
4. Under no circumstances is the juvenile to be detained in a jail or police lock-
up, whether before, during or after the Board inquiry.
5. Grant of Bail to juveniles in conflict with the law is the Rule.
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 6. The JJ board conducts a child-friendly "inquiry" and not an adversarial trial.
This is not to say that the nature of the inquiry is non-adversarial, since both
prosecution and defence submit their cases. Instead, the nature of the
proceedings acquires a child-friendly colour.
7 . The emphasis of criminal trials is to record a finding on the guilt or
innocence of the accused. In case of established guilt, the prime object of
sentencing is to punish a guilty offender. The emphasis of juvenile 'inquiry' is
to find the guilt/innocence of the juvenile and to investigate the underlying
social or familial causes of the alleged crime. Thus, the aim of juvenile
sentencing is to reform and rehabilitate the errant juvenile.
8 . The adult criminal system does not regulate the activities of the offender
once she has served the sentence. Since the JJ system seeks to reform and
rehabilitate the juvenile, it establishes post-trial avenues for the juvenile to
make an honest living.
39. Having laid bare all that is necessary for a purposive adjudication of the issues that
have been raised by the rival camps we may now proceed to examine the same.
The Act, as manifestly clear from the Statement of Objects and Reasons, has been
enacted to give full and complete effect to the country's international obligations arising
from India being a signatory to the three separate conventions delineated hereinbefore,
namely, the Beijing Rules, the UN Convention and the Havana Rules. Notwithstanding
the avowed object of the Act and other such enactments to further the country's
international commitments, all of such laws must necessarily have to conform to the
requirements of a valid legislation judged in the context of the relevant constitutional
provisions and the judicial verdicts rendered from time to time. Also, that the Act is a
beneficial piece of legislation and must therefore receive its due interpretation as a
legislation belonging to the said category has been laid down by a Constitution Bench of
this Court in Pratap Singh v. State of Jharkhand and Anr. MANU/SC/0075/2005 :
(2005) 3 SCC 551. In other words, the Act must be interpreted and understood to
advance the cause of the legislation and to confer the benefits of the provisions thereof
to the category of persons for whom the legislation has been made.
40. Dr. Swamy at the outset has urged that there is no attempt on his part to challenge
the constitutional validity of the Act, particularly, the provisions contained in Sections
2(k) and 2(l) of the Act and what he seeks is a mere reading down of the Act. It is not
very difficult to understand the reason for the argument; Dr. Swamy seeks to overcome
what he perceives to be a bar to a direct challenge on account of the decision of this
Court in Salil Bali (supra). But if the argument advanced if is to be carried to the fullest
extent the implication is obvious. If the Act is not to be read down, as urged, it will
stand invalidated on grounds of unconstitutionality. The argument, therefore, is really
the other side of the same coin which has been cast by Dr. Hingorani who is more
forthright in his challenge to the validity of the Act on the twin grounds already noticed,
namely, that the Act would result in over-classification if all juveniles, irrespective of
the level of mental maturity, are to be grouped in one class and on the further ground
that the Act replaces the criminal justice system in the country and therefore derogates
a basic feature of the Constitution. If the arguments are to be understood and examined
from the aforesaid perspective, the conclusion is obvious-what the Court is required to
consider, apart from the incidental and side issues which would not be of much
significance, is whether the Act would survive the test of constitutionality if the same is
not to be read and understood in the manner urged. of course, if the constitutionality of

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 States has delineated these limitations in United States v. Butler
MANU/USSC/0159/1936 : (1936) 297 US 1 thus:
The power of Courts to declare a statute unconstitutional is subject to
two guiding principles of decision which ought never to be absent from
judicial consciousness. One is that Courts are concerned only with the
power to enact statutes, not with their wisdom. The other is that while
unconstitutional exercise of power by the executive and legislative
branches of the government is subject to judicial restraint, the only
check upon our exercise of power is our own sense of self-restraint For
the removal of unwise laws from the statute books appeal lies not to
the Courts but to the ballot and to the processes of democratic
Government.
14. In short, unconstitutionality and not unwisdom of a legislation is the narrow
area of judicial review. In the present case unconstitutionality is alleged as
springing from lugging together two dissimilar categories of match
manufacturers into one compartment for like treatment.
15. Certain principles which bear upon classification may be mentioned here. It
is true that a State may classify persons and objects for the purpose of
legislation and pass laws for the purpose of obtaining revenue or other objects.
Every differentiation is not a discrimination. But classification can be sustained
only if it is founded on pertinent and real differences as distinguished from
irrelevant and artificial ones. The constitutional standard by which the sufficiency
of the differentia which form a valid basis for classification may be measured,
has been repeatedly stated by the Courts. If it rests on a difference which bears
a fair and just relation to the object for which it is proposed, it is constitutional.
To put it differently, the means must have nexus with the ends. Even so, a large
latitude is allowed to the State for classification upon a reasonable basis and
what is reasonable is a question of practical details and a variety of factors
which the Court will be reluctant and perhaps ill-equipped to investigate. In this
imperfect world perfection even in grouping is an ambition hardly ever
accomplished. In this context, we have to remember the relationship between
the legislative and judicial departments of Government in the determination of
the validity of classification. of course, in the last analysis Courts possess the
power to pronounce on the constitutionality of the acts of the other branches
whether a classification is based upon substantial differences or is arbitrary,
fanciful and consequently illegal. At the same time, the question of classification
is primarily for legislative judgment and ordinarily does not become a judicial
question. A power to classify being extremely broad and based on diverse
considerations of executive pragmatism, the Judicature cannot rush in where
even the Legislature warily treads. All these operational restraints on judicial
power must weigh more emphatically where the subject is taxation.
(Emphasis is ours)
49. On the above note we deem it appropriate to part with the cases by dismissing the
appeal filed by Dr. Subramanian Swamy and Others as well as the writ petition filed by
the parents of the unfortunate victim of the crime.

1 Committeeon the Rights of the Child, 61st Session, 05 October 2012,

CRC/C/CAN/CO/3-4, paras 85-86, p. 20.
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 MANU/SC/0505/2021
Equivalent/Neutral Citation: 2022(1)AC R347, 2021(226)AIC 72, AIR2021SC 3643, 2022 (1) ALD(C rl.) 33 (SC ), 2021 (117) AC C 964, 2021 (3) ALT
(C rl.) 59 (A.P.), 2021(5)BLJ363, 2021(4)BomC R(C ri)343, (2021)2C ALLT77(SC ), 132(2021)C LT411, 2021C riLJ3831, 2021(3)C rimes190(SC ),
2021(3)C riminalC C 805, 2021 (Suppl) Him. LR. 2023, 2021 INSC 379, 2021(4)J.L.J.R.6, 2021(4)JKJ130[SC ], 2021(4)KLJ152, 2021(4)MLJ(C rl)61, 2022
(1) MWN (C R.) 12, 2021(3)N.C .C .360, 2021(3)PLJR430, 2021(3)RC R(C riminal)740, 2021(9)SC ALE94, (2022)11SC C 800, 2021 (6) SC J 617,
[2021]8SC R911, 2021(3)UC 1677

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1677 of 2011
Decided On: 04.08.2021
Surajdeo Mahto and Ors. Vs. The State of Bihar
Hon'ble Judges/Coram:
N.V. Ramana, C.J.I., Surya Kant and Aniruddha Bose, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Prerna singh, Adv. and T. Mahipal, AOR
For Respondents/Defendant: Abhinav Mukerji, AOR, Bihu Sharma, Pratishtha Vij and
Akshay Shrivastava, Advs.
Case Note:
Criminal - Conviction - Circumstantial Evidence - Sections 302, 364 read with
Section 34 of the Indian Penal Code, 1860(IPC) read with Section 120-B of
the IPC - High Court vide impugned judgment confirmed conviction directed
by Trial Court - Appellant contended entire case to be rested on circumstantial
evidence, besides no eye-witness to the alleged incident - Whether conviction
in such circumstances liable to be set aside?
Facts:
Appellants in the instead appeal were convicted on the basis of circumstantial
evidence. It was held that circumstantial evidence on record suggested that
Appellant No. 1 lured the deceased out of his house on the date relevant and
remained with him all along and was later joined by Appellant No. 2.
Thereafter the present Appellants conspired and murdered the deceased. Trial
Court held that purported motive as well as the identification of incriminating
material further established the guilt of Appellants.High Court in appeal
observed that the prosecution witnesses were able to provide a date and
stage wise testimony in order to prove the prosecution case. Hence, the
present appeal.
Held, while partly allowing the Appeals:
The contention that most of the prosecution witnesses were either related or
close to the complainant party and their testimony could not be relied upon in
the absence of corroboration by any independent witnesses is without much
substance. It is trite in law that the job of the prosecution is to put forth the
best evidence that is collected during the investigation. Although it is ideal
that the prosecution case is further substantiated through independent
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witnesses, but it would be unreasonable to expect the presence of third-
parties in every case. The prosecution's case cannot be discarded merely on a
bald plea of all witnesses being related to the complainant party. [32]
The medical evidence fully corroborated the prosecution story of the murder
having being taken place. [34]
Appellant No. 1 has been unable to offer any explanation as to circumstances
in which he departed from the company of the deceased.[35]
Upon considering the prosecution evidence in its entirety and having
meditated on the grounds raised by the Appellants to every possible extent,
no reason to disbelieve the prosecution version of last seen theory against the
Appellants.[37]
The motive attributed to the Appellants in this case is that they murdered the
deceased because he was allegedly having an illicit affair with sister of
Appellant No. 1. [39]
The fact of the deceased having an affair with the sister of Appellant No. 1
has of course not been established beyond doubt but the factum of calling
Panchayat so that the issue does not spiral out of control does suggest that
Appellant No. 1 carried a motive to eliminate the deceased.[40]
Case of Appellant No. 2 distinguishable from that of Appellant No. 1 and the
prosecution has not been able to prove the guilt of 2nd Appellant beyond the
pale of doubt. The 2nd Appellant is, thus, entitled to the benefit of doubt.[45]
Instant appeal partly allowed. While the conviction and sentence of Appellant
No. 1 upheld and appeal qua him is dismissed, the 2nd Appellant acquitted of
the charges.[49]

JUDGMENT
Surya Kant, J.
1 . Surajdeo Mahto (Appellant No. 1) and Prakash Mahto (Appellant No. 2) have laid
challenge to the judgment dated 20.05.2010 passed by the High Court at Patna,
whereby, the order of their conviction and sentence dated 13.05.1988 passed by the 3rd
Additional Sessions Judge, Nawadah was confirmed. Both the Appellants have been
convicted for offences Under Section 302 read with Section 34 of the Indian Penal Code
[in short, "IPC"] read with Section 120-B of the Indian Penal Code and have been
sentenced to life imprisonment for each of the offences. Additionally, Appellant No. 1
has also been convicted Under Section 364 Indian Penal Code and has been sentenced
to five years of imprisonment for the said offence, with a direction that the sentences
will run concurrently.
Facts
2 . The prosecution case, in brief, is that on 05.04.1987, Arun (deceased) and Sunder
Prasad (PW-17) were putting up in Arun's house at Manawan village when Surajdeo
Mahto (Appellant No. 1) and Raj Kumar approached Arun and asked him to accompany

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them to the Cinema at Nawada village. While Arun was reluctant initially to accompany
them, he eventually agreed when Appellant No. 1 volunteered to bear the expenses.
Upon Arun's request, Sunder Prasad (PW-17) also agreed to go along with them to the
Cinema. After the show, Raj Kumar and Sunder Prasad returned to Manawan village on
06.04.1987 whereas Arun and Surajdeo Mahto did not come back with them. As Arun
did not return, Ramji Mahto (father of Arun; PW-16) enquired from Raj Kumar who told
him that Arun and Surajdeo Mahto had gone to Arun's in-laws' place in Amwa village.
3. A few more days passed and Arun had not yet returned home, Arun's worried family,
therefore, sent Raj Kumar to bring him back. Ramji Mahto also requested his fellow
villager Kailash Mahto (PW-1) to join him in looking for Arun. They found out that
Surajdeo Mahto and Arun had visited the latter's in-laws' place on 06.04.1987 and
stayed there till 08.04.1987. It was further discovered that the duo had then proceeded
to Dopta village wherein Appellant No. 1's sister was married. Thereafter, Appellant No.
1 returned to his village Manawan on 10.04.1987, but whereabouts of Arun were still
unknown. When asked, Appellant No. 1 did not provide any credible information about
Arun, instead, he too disappeared and was not seen for the next few days. Pursuant to
Ramji's request, PW-1 visited Dopta on 10.04.1987 but he too was unable to track down
Arun. Since Arun was still untraceable, Ramji Mahto, through his nephew Ishwari Mahto
(PW-3A), sent information to the Police, which culminated in the lodging of Sanha Entry
No. 227, dated 11.04.1987.
4 . In the meantime, Ram Brikch Paswan (PW-8), Chowkidar, Circle No. 7, heard
rumours of a dead body in Ram Sagar Ahar (Reservoir) near Kakolat. On 11.04.1987, he
proceeded to the spot and discovered the dead body. He also found an iron dagger and
two lungis near the body. The statement of Ram Brikch Paswan was subsequently
recorded by the police and treated as a Fardbeyan. Thereafter, Ramchandra Singh (PW-
18), Officer-In-charge, Govindpur Police Station reached the spot and prepared the
inquest report in the presence of witnesses. Upon inspecting the place of occurrence,
additional material such as one pair of slippers, one handkerchief, a knife and a
jerrycan made of plastic were also discovered and seized. A seizure list was prepared in
the presence of witnesses. The dead body was then sent for post mortem examination.
5 . On 12.04.1987, Ramji Mahto (PW-16) received information that a dead body of a
male person was brought in by the Govindpur Police Station. Subsequently, Ramji
Mahto along with some co-villagers went to the Police Station and identified that the
dead body was that of his son Arun.
6 . The investigation then proceeded in light of the above-stated facts, and upon
collection of substantial evidence, a charge sheet was filed against Surajdeo Mahto
(Appellant No. 1), Prakash Mahto (Appellant No. 2), Chando Mahto, Shankar Mahto and
Raj Kumar Mahto. The case was committed to the court of 3rd Additional Sessions
Judge, Nawadah and charges were framed against the Accused persons for offences
Under Sections 364, 120-B and 302 read with Section 34 of the Indian Penal Code. The
Accused persons abjured their guilt and claimed trial.
7. In the eventual trial, a total of 18 witnesses were examined by the prosecution. No
documentary evidence was relied upon by the prosecution. The case of the prosecution
rested heavily upon circumstantial evidence, including deposition of Ramji Mahto (PW-
16), father of the deceased. PW-16 in his deposition alleged that Surajdeo Mahto
(Appellant No. 1) had lured the deceased away on the pretext of watching cinema on
05.04.1987. PW-16 deposed that "Arun told him that he was not ready to go. Surajdeo
told him that he will bear the cost. Thereafter on being pressurized by Surajdeo, Arun

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went out with Surajdeo, Raj Kumar and Sunder". PW-16 also deposed that it was at his
instance that Ishwari Mahto (PW-3A) went and informed the police on 11.04.1987 about
Arun's disappearance, and on 12.04.1987 he visited Govindpur Police Station and
identified the dead body of Arun. PW-16 further identified one of the seized lungis
belonging to Suarjdeo Mahto (Appellant No. 1). The cross-examination of PW-16 also
brought to light the motive attributed to the Accused persons: the relations between the
parties were strained after a Panchayati (village meeting) had been held in connection
with the illicit relationship of the deceased with the sister of Appellant No. 1.
8. Likewise, Ishwari Mahto (PW-3A) deposed that he had last seen Arun in the company
of Appellant No. 1, Raj Kumar and Sundar on 05.04.1987, and he was informed by
Appellant No. 1 that they were going to see the cinema. Ishwari Mahto further shed
light on the feud between the parties and he stated that "Previously the families of
Surajdeo and Arun had visiting and dining terms with each other, but it stopped after
the month of Magh". Sunder Prasad (PW-17) corroborated the deposition of PW-16, and
stated that Appellant No. 1 pressurized Arun to accompany him and Raj Kumar to watch
Cinema. PW-17 also deposed to accompanying Appellant No. 1, Arun and Raj Kumar to
the Cinema and further revealed that after the Cinema, instead of returning back to their
village, Appellant No. 1 forced the group to visit Kumbhrawan village. PW-17 stated that
upon Appellant No. 1's insistence, they spent the night in Prakash Mahto's house
(Brother-in law of Surajdeo; Appellant No. 1). The next day, i.e., 06.04.1987, when
PW-17 insisted on returning back to the village, Surajdeo Mahto (Appellant No. 1)
informed him that he and Arun will be visiting Amwa Village.
9. Dilkeshwar Mahto (PW-2), Arun's father-in-law, deposed that Arun and Appellant No.
1 visited his house in Amwa Village on the evening of 06.04.1987 and stayed there till
08.04.1987. He further deposed that "On Wednesday, I asked Arun and Surajdeo
insistently to stay further, but Surajdeo did not agree and took Arun with him saying
that they had to go Dopta."
1 0 . Bipat Mahto (PW-4), deposed that on Thursday, i.e., 09.04.1987, he received
information from his grandson that Arun was in Kumbhrawan village and was staying at
the house of Prakash Mahto (Appellant No. 2). Since PW-4 was Arun's uncle and also
resided in the same village, he and his wife went to invite Arun to their place. He
stated, "We met Arun, Prakash and Surajdeo at that place. I invited Arun to come to my
place and take meal there. Prakash told me that he had arranged food for them, hence
they would go after taking meal at his place." He further stated that despite Appellant
No. 2's assurance, Arun did not come to their place. Later, when PW-4's wife went again
to call Arun, she was informed by Appellant No. 2's wife that Arun had gone back.
Sheodani Mahto (PW-3), who is the son of PW-4 and the cousin of the deceased, also
deposed about the presence of Arun in Kumbhrawan village on 09.04.1987. According
to him, when he was returning back to the village, he saw Arun on the outskirts of the
village in the company of Surajdeo, Prakash, Raj Kumar and Shankar, and upon asking
them where they were going, Surajdeo informed PW-3 that all of them were going
towards Kakolat village.
11. We may now consider the statements of Bharat Singh (PW-10), Kashi Mahto (PW-
11), Ram Prasad (PW-12), Baleshwar Prasad (PW-13) and Mathura Saw (PW-14). PW-10
and PW-11 deposed that on the night of 09.04.1987, they had heard a motor vehicle
(tractor) going in the direction of Kakolat. However, PW-10 and PW-11 had not seen the
passengers in the vehicle. PW-12, PW-13 and PW-14 were all present near PW-14's
shop in the late hours of 09.04.1987 and they deposed about seeing two persons
returning from Kakolat. PW-12 went further and stated that he was able to identify the
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persons who had stopped near PW-14's shop. Upon seeing the Accused persons in
Court, PW-12 identified Appellant No. 2 as one of the persons who had come to the
shop that night. PW-12 in his cross-examination admitted that the police had not asked
him to take part in a Test Identification Parade [in short, "T.I.P."]. It is pertinent to
mention that this set of evidence only finds relevance because the dead body of Arun
was discovered in Ram Sagar Ahar which was near Kakolat village.
12. The evidence of Kailash Mahto (PW-1) and Umeshwar Prasad (PW-5) also bears
some relevance to the prosecution's case. PW-1 deposed that on 09.04.1987 he was
requested by PW-16 to search for Arun. He further stated that the next day, i.e.,
10.04.1987, he went to the market and there he found Appellant No. 1. PW-1 claims
that when he enquired about Arun's whereabouts from him, Surajdeo Mahto (Appellant
No. 1) told him that after viewing the cinema, Arun had gone to Amwa village whereas
he went to Dopta village. PW-5 too has deposed that he met Surajdeo on 10.04.1987 at
Barnwal Medical Hall at Hisua where Appellant No. 1 told him that Arun had gone to
Delhi.
13. Ram Brikch Paswan (PW-8), Chawkidar Circle No. 9, was the one who discovered
the dead body of Arun on 11.04.1987. In his cross-examination he deposed that he had
heard rumors of a dead body in Ram Sagar Ahar on the night of 10.04.1987 itself,
however, it being night time and the place being a forested area, he could go there on
the following day only. PW-6, is the Doctor who conducted the post mortem
examination of the dead body. Upon examining the injuries present on the deceased's
body, PW-6 opined that the injuries were sufficient to cause death in the normal course
of nature, and the time elapsed from death was 36 to 72 hours.
14. The case of the Accused persons, as recorded in their statements Under Section 313
of the Code of Criminal Procedure, 1973 was one of denial. No other evidence was led
by the defence.
15. The Trial Court was conscious of the fact that in order to prove the guilt of the
Accused by means of circumstantial evidence, the chain of evidence should be
completed so as to exclude all the hypothesis of innocence of the Accused. Upon
extensively scrutinizing the deposition of witnesses, the Trial Court observed that there
was a paucity of eyewitnesses to explain circumstances in which the deceased met his
end and the evidence on record fell short of establishing the complicity of Chando
Mahto, Shankar Mahto and Raj Kumar Mahto. The Court, however, held that the
circumstantial evidence on record did suggest that Appellant No. 1 lured the deceased
out of his house on 05.04.1987; remained with him all along; Appellant No. 2 then
joined them on 09.04.1987; and thereafter the present Appellants conspired and
murdered the deceased near Kakolat. Negating the contentions raised by the defence,
the Trial Court believed the testimony of PW-16 in toto and held that purported motive
as well as the identification of incriminating material by PW-16 further established the
guilt of the Appellants. While the Trial Court observed that there were some
inconsistencies in the case put forth by the prosecution, but those were held to be
"petty details" and minor contradictions.
1 6 . The Trial Court further noted that Appellant No. 1 had exhibited behaviour that
could not have been considered normal. Judicial notice of the false and evasive replies
given by Appellant No. 1 to PW-1 and PW-5 when they inquired about the whereabouts
of the deceased was also taken. The Court held that since various links in the chain of
evidence have been satisfactorily proved, the false explanation given by Appellant No. 1
could be construed as an additional link in the chain of evidence, which would lend

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further support to the prosecution case. The Court further observed that when enquiries
were taking place, instead of helping in the search of Arun, Appellant No. 1 absconded,
and he surrendered before the court on 18.04.1987 only, when coercive measures were
undertaken to compel his appearance. Lastly, unconvinced by the defense taken by the
Appellant, the Trial Court opined that the plain denial of the prosecution allegations by
the Accused persons was nothing but an attempt to screen themselves from the "rigours
of legal punishment". The Trial Court thus held that the circumstantial evidence in the
instant case was clinching, and consequently convicted the present Appellants.
17. Discontented with their conviction, the Appellants preferred an appeal before the
Patna High Court. Upon a reappraisal of the evidence on record, the High Court
observed that the prosecution witnesses were able to provide a date and stage wise
testimony in order to prove the prosecution case. The High Court further laid emphasis
on the false information provided by Appellant No. 1 to PW-5. Considering these
aspects, the High Court vide the impugned judgment dated 20.05.2010 affirmed the
findings of the Trial Court and upheld the conviction and sentence of the Appellants.
18. The aggrieved Appellants are now before this Court.
Contentions
1 9 . We have heard Learned Counsel for the Appellants at considerable length. The
principal contention is that the entire case rested on circumstantial evidence and there
was no eye-witness to the alleged incident. Learned Counsel submitted that no
independent witnesses had been examined by the prosecution and all the witnesses
were either relatives or close friends of the complainant party. The Counsel further
pressed that the Courts below have completely erred in relying upon the testimony of
PW-10 to PW-14. As far as Appellant No. 2 is concerned, it was submitted that only
evidence against him was that of Sheodani Mahto (PW-3) and Baleshwar Prasad Yadav
(PW-12). The Counsel asserted that PW-3 had seen the deceased in the company of
Appellant No. 2 two days prior to the recovery of the dead body, and hence the
evidence of PW-3 did not support the prosecution case. Casting doubts on the credibility
of the evidence of PW-12, it was claimed to be highly improbable that PW-12 was able
to see the face of Appellant No. 2 only through the light of a lantern on a pitch-dark
night. Learned Counsel further contended that the failure on the part of the investigating
agency not to send the knife recovered at the spot of occurrence for forensic
examination was fatal to the prosecution case. Hence, it was urged that the Courts
below fell in grave error in convicting the Appellants merely on the basis of 'last seen
theory'.
20. In all fairness, we may notice an additional plea taken by Appellant No. 1, which
has been raised for the first time before this Court. It was claimed that Appellant No. 1
was a 'juvenile' on the date of occurrence. In support of such claim, Learned Counsel
relied on the copies of 'School Leaving Certificate' along with an 'admit card' issued by
the Bihar School Examination Board, according to which Appellant No. 1 was
purportedly born on 01.03.1970. As the date of occurrence was between 09.04.1987 to
11.04.1987, it is submitted that Appellant No. 1 was 17 years of age at that time and
therefore, a juvenile. To further buttress this claim, Learned Counsel for the Appellants
drew our attention to Section 7A of the Juvenile Justice (Care and Protection of
Children) Act, 2000 as well as the decision of this Court in Abuzar Hossain alias Gulam
Hossain v. State of West Bengal MANU/SC/0845/2012 : (2012) 10 SCC 489, p. 39.
21. On the other hand, Learned Counsel appearing for the State of Bihar submitted that

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there has been a concurrent finding of guilt by two courts on minute examination of the
evidence on record which does not warrant any interference by this Court. Relying upon
Inspector of Police, Tamil Nadu v. John David MANU/SC/0461/2011 : (2011) 5 SCC
509, p. 33 to 35, it was urged that conviction in cases of circumstantial evidence is
permissible. The State Counsel passionately argued that the chain of circumstances in
the present case is complete in every respect. He made pointed reference that First, the
motive, as recorded by the Trial Court, was clearly established in the present case.
Second, both the courts below have concurrently held that the deceased was last seen
alive in the company of the Appellants. He cited State of Rajasthan v. Kashi Ram
MANU/SC/8632/2006 : (2006) 12 SCC 254, p. 19-24, to urge that in situations when
the deceased was last seen in the company of the Accused, a presumption would arise
that the said Accused murdered the deceased. It was argued that presumption has not
been dislodged by the Appellants in the present case. Third, the guilt of the Appellants
can be adduced from their conduct as not only did they lure the deceased on the pretext
of watching the cinema, but also gave false and misleading information about the
deceased's whereabouts. Fourth, the seizures/recoveries made during the investigation
do establish the involvement of Appellants, as one of the two lungis recovered at the
place of occurrence was identified as that belonging to Appellant No. 1. Fifth, the
medical examination does establish that the death of the deceased was caused by
unnatural means and, Sixth, the dead body which was recovered has been identified as
that of Arun.
22. Learned State Counsel further canvassed that all the material witnesses, PW-1 to
PW-14, have corroborated each other's versions. Drawing force from the decisions in
Sukhar v. State of U.P. MANU/SC/0626/1999 : (1999) 9 SCC 507, p. 5 to 10 &
Badruddin Rukonddim Karpude v. State of Maharashtra MANU/SC/0118/1981 : (1981)
Supp SCC 1, p. 16, it was submitted that the principles of res gestae are applicable to
the facts and circumstances of this case, and the statements made by one witness to
another are admissible in evidence. He also urged that the absence of T.I.P. in the
present case would not be fatal to the case of the prosecution1.
23. As regard to the plea of Appellant No. 1 being a juvenile raised for the first time
before this Court, it was vehemently urged by the State Counsel that the first Appellant
deliberately waited till this belated point of time to raise the plea knowing fully well that
in the event of an inquiry ordered by the Court, there would be no record available to
contradict the documents put forth by him. He further pointed out certain patent
discrepancies in the documents supplied by Appellant No. 1, for instance, the
documents did not bear his name, but instead the name of one 'Suryadev Prasad' was
mentioned. In furtherance of his arguments, the Counsel submitted that the purported
documents have not been proved in terms of Section 35 of the Indian Evidence Act,
1872, [in short, "IEA"] and as such could not be accepted. Our attention was brought to
the decision of this Court in Ravinder Singh Gorkhi v. State of U.P.
MANU/SC/8161/2006 : (2006) 5 SCC 584, p. 39 to 41, wherein, the plea of juvenility
was rejected because, inter-alia, there was an unexplained inordinate delay in raising
the plea.
Analysis
2 4 . We find that two questions fall for our consideration in the instant appeal; (A)
Whether the circumstantial evidence led in the instant case is so impeachable that it
establishes the guilt of the Appellants beyond any reasonable doubt? (B) Whether
Appellant No. 1 was a juvenile on the date of the occurrence?

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25. It may be highlighted at the outset that although the powers vested in this Court
Under Article 136 of the Constitution are wide, this Court in a criminal appeal by special
leave will ordinarily loath to enter into a fresh re-appraisement of evidence and
question the credibility of witnesses when there is a concurrent finding of fact, save for
certain exceptional circumstances. While it is difficult to lay down a Rule of universal
application, it has been affirmed time and again that except where the assessment of
the High Court is vitiated by an error of law or procedure, or is based on misreading of
evidence, or is inconsistent with the evidence and thus has led to a perverse finding,
this Court will refrain from interfering with the findings of the Courts below.
26. Regardless of such self-imposed restrain, and in the interest of justice, we have
given thoughtful consideration to the rival submissions and have endeavored to peruse
and discussed the entire evidence on record to ascertain whether or not the concurrent
finding of conviction suffers from any perversity and/or whether the conviction of the
Appellants is legally and factually sustainable.
A. Whether the guilt of the Accused has been proved beyond reasonable doubt?
27. This Court, in its much-celebrated judgment of Sharad Birdhichand Sarda v. State
of Maharashtra MANU/SC/0111/1984 : (1984) 4 SCC 116, p. 153, has elaborately
considered the standard necessary for recording a conviction on the basis of
circumstantial evidence and has further held:
153. xxx xxx xxx
(1) The circumstances from which the conclusion of guilt is to be drawn should
be fully established.
xxx xxx xxx
(2) The 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,
(3) The circumstances should be of a conclusive nature and tendency,
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so complete 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.
These five cardinal principles have been reiterated on numerous occasions, including in
the recent decisions in Mohd. Younus Ali Tarafdar v. State of W.B
MANU/SC/0219/2020 : (2020) 3 SCC 747, p. 10 & R. Damodaran v. State Represented
by the Inspector of Police. Keeping these conditions in mind, we shall now examine the
case at hand.
28. It appears to us that the following circumstances need to be considered to arrive at
the guilt of the Appellants: (i) Last seen theory; (ii) Motive & (iii) false information
provided and subsequent conduct of the Appellants.
(i) Last seen theory
29. The case of the prosecution in the present case heavily banks upon the principle of
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'Last seen theory'. Briefly put, the last seen theory is applied where the time interval
between the point of when the Accused and the deceased were last seen together, and
when the victim is found dead, is so small that the possibility of any other person other
than the Accused being the perpetrator of crime becomes impossible. Elaborating on the
principle of "last seen alive", a 3-judge bench of this Court in the case of Satpal v. State
of Haryana MANU/SC/0492/2018 : (2018) 6 SCC 610, p. 6 has, however, cautioned
that unless the fact of last seen is corroborated by some other evidence, the fact that
the deceased was last seen in the vicinity of the Accused, would by itself, only be a
weak kind of evidence. The Court further held:
...Succinctly stated, it may be a weak kind of evidence by itself to found
conviction upon the same singularly. But when it is coupled with other
circumstances such as the time when the deceased was last seen with the
Accused, and the recovery of the corpse being in very close proximity of time,
the Accused owes an explanation Under Section 106 of the Evidence Act with
regard to the circumstances under which death may have taken place. If the
Accused offers no explanation, or furnishes a wrong explanation, absconds,
motive is established, and there is corroborative evidence available inter alia in
the form of recovery or otherwise forming a chain of circumstances leading to
the only inference for guilt of the Accused, incompatible with any possible
hypothesis of innocence, conviction can be based on the same. If there be any
doubt or break in the link of chain of circumstances, the benefit of doubt must
go to the Accused. Each case will therefore have to be examined on its own
facts for invocation of the doctrine.
3 0 . We may hasten to clarify that the fact of last seen should not be weighed in
isolation or be segregated from the other evidence led by the prosecution. The last seen
theory should rather be applied taking into account the case of the prosecution in its
entirety. Hence, the Courts have to not only consider the factum of last seen, but also
have to keep in mind the circumstances that preceded and followed from the point of
the deceased being so last seen in the presence of the Accused.
31. The prosecution in the present case has undoubtedly established that the deceased
was last seen alive in the company of the Appellants, and has also adduced evidence
about the events leading up to and following the point of last seen. The depositions of
PW-2, PW-3A, PW-16 and PW-17 do suggest that prior to the point of last seen, the
deceased was constantly in the company of Appellant No. 1. PW-3 and PW-4 are the
persons who lastly saw the deceased alive on 09.04.1987, and they have categorically
deposed that they had seen the deceased along with the Appellants. Through the
depositions of PW-1, PW-5, & PWs. 10 to 14 the prosecution has attempted to shed
light on the events that occurred post the point of last seen.
32. The contention that most of the prosecution witnesses were either related or close
to the complainant party and their testimony could not be relied upon in the absence of
corroboration by any independent witnesses, in our opinion, is without much substance.
It is trite in law that the job of the prosecution is to put forth the best evidence that is
collected during the investigation. Although it is ideal that the prosecution case is
further substantiated through independent witnesses, but it would be unreasonable to
expect the presence of third-parties in every case. This Court has consistently held that
the prosecution's case cannot be discarded merely on a bald plea of all witnesses being
related to the complainant party. Hence, in order to draw an adverse inference against
the non-examination of independent witnesses, it must also be shown that though the
best evidence was available, but it was withheld by the prosecution.
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3 3 . That apart, PW-3 saw Arun and the Appellants on the outskirts of Kumbhrawan
village, whereas, PW-4 saw Arun and the Appellants inside Appellant No. 2's house.
Neither of these witnesses claim to have seen the deceased and the Appellants at a
public place. Thus, it would not be illogical to infer that there was no independent
witness to this occurrence. Further, the deposition of both PW-3 and PW-4 seems
natural and nothing has been adduced in their cross-examination for us to disbelieve
their testimonies.
34. The Counsel for the Appellants further assailed the last seen theory and submitted
that even if the deposition of PW-3 was considered true, he had seen Arun in the
company of the Appellants on 09.04.1987, which was two days before the discovery of
the dead body. It was, thus, argued that the intervening time period between the two
events could not Rule out the possibility of intervention by a third party and as such
there wasn't a continuous chain of circumstances. While this argument seems attractive
at the first instance, but, when considered in the light of testimonies made by the
independent witnesses PW-6 and PW-8, it stands completely belied. The Prosecution
case is that both the Appellants committed the murder on the night of 09.04.1987. PW-
8, who discovered the body of Arun on 11.04.1987, deposed that he had heard rumors
about the dead body the previous night itself, however, on account of it being dark and
a forested area, he was only able to proceed to the spot the next day. Given that the
body was lying on the spot at least since 10.04.1987, the instant crime could have been
committed on or before 10.04.1987. The medical evidence in the present case further
braces the prosecution story. PW-6, the Doctor, examined the body of the deceased on
12.04.1987. In his opinion, the time elapsed since the death of Arun was 36 to 72
hours. Thus, the medical evidence fully corroborates the prosecution story of the
murder having being taken place on 09.04.1987. We also note that the Courts below
have dealt with this issue elaborately and have held that the murder of the deceased
indeed took place on 09.04.1987. We see no reason to take a contrary view.
35. Counsel for the State appears to be right in relying upon the decision of this Court
in Kashi Ram (Supra) to assert that once the fact of last seen is established, the
Accused must offer some explanation as to the circumstances in which he departed the
company of the deceased. This position of law, as covered Under Section 106 of the
IEA, was duly considered in the case of Satpal Singh (Supra), wherein, this Court
clarified that if the Accused fails to offer any plausible explanation, an adverse inference
can be drawn against the Accused. In the instant case also, Appellant No. 1 has been
unable to offer any explanation as to circumstances in which he departed from the
company of the deceased.
3 6 . As regard to the reliability of the depositions of PW-10 to PW-14, the primary
contention is that except PW-12, none of the other witnesses were able to identify the
present Appellants. It was further contended that the testimony of PW-12 seems
doubtful as it was highly improbable that the witness was able to see Appellant No. 2
through the light of a lamp. Assuming that the depositions of PW-10, PW-11, PW-13
and PW-14 do not add much value to the case in hand, the question whether PW-12
could or could not identify Appellant No. 2 is purely a factual issue and courts below
have taken a concurrent view in relation thereto. Suffice to say that PW-12 was able to
identify Appellant No. 2 because of the chicken-pox marks on his face. Even in the
initial statement recorded by the police, PW-12 had maintained that one of the two
persons who he had interacted with on the night of 09.04.1987, had chicken-pox scars
on his face.
37. Upon considering the prosecution evidence in its entirety and having meditated on
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the grounds raised by the Appellants to every possible extent, we find no reason to
disbelieve the prosecution version of last seen theory against the Appellants.
(ii) Motive
3 8 . If motive in a case is attributed to an Accused(s) and thereafter proved, the
probability of the crime being committed by the said Accused is intensified. It is for this
reason, that in cases of overwhelming circumstantial evidence, proof of motive will be
an important piece of corroborative evidence, as well as, form a vital link in the chain of
evidence.
3 9 . The motive attributed to the Appellants in this case is that they murdered the
deceased because he was allegedly having an illicit affair with Rita, sister of Appellant
No. 1. While none of the witnesses have specifically deposed about the deceased having
an affair with Rita, the motive, as alleged, does find some corroboration in the
deposition of PW-1, PW-3A, and PW-16. It is revealed from the testimony of PW-3A,
that initially there were cordial and friendly relations between the 1st Appellant and
deceased's family but the same became sour after the month of February. PW-1 who is
a fellow villager has corroborated the testimonies of PW-3A. PW-16 has categorically
deposed that a Panchayat had been called in regards to the illicit relationship of the
deceased with Rita.
40. The fact of the deceased having an affair with the sister of Appellant No. 1 has of
course not been established beyond doubt but the factum of calling Panchayat so that
the issue does not spiral out of control does suggest that Appellant No. 1 carried a
motive to eliminate the deceased. We may not lose sight of the fact that the events had
occurred in the year 1987, when the rural Indian society was irrepressibly conservative,
and even the slightest rumor of extramarital affairs could flare-up tensions. Considering
these ground realities, the Trial Court, in our opinion correctly recorded that the motive
as alleged had been sufficiently proved by the prosecution. We also note, that the
Counsel for Appellants has not mounted any substantial challenge on the point of
motive, and as such, we see no reason to interfere with the indictment of Appellant No.
1 on the point of motive.
(iii) False information provided by Appellant No. 1 and his subsequent conduct.
41. We may now briefly consider the false information provided by Appellant No. 1 to
PW-1 and PW-5. Both of these witnesses individually met Appellant No. 1 on
10.04.1987 and both of them enquired about the whereabouts of Arun. Appellant No. 1
lied to PW-1 and told him that after viewing the Cinema, Arun alone had proceeded to
Amwa whereas Appellant No. 2 had gone to visit Dopta. Even more curiously, Appellant
No. 1 informed PW-5 that Arun had left for Delhi. It is clear to us that the false
information provided by the first Appellant was an attempt to hide his guilt by de-railing
the search efforts that were being conducted. Appellant No. 1 thereafter absconded and
surrendered before the court only after coercive measures were taken. We are, thus,
inclined to agree with the State Counsel that the false information given by Appellant
No. 1 and his post occurrence conduct is relevant to prove an additional link in the
chain of incriminating circumstances.
42. There is, however, a qualitative difference in the evidence led by the prosecution to
prove charges against Prakash Mahto (Appellant No. 2). The prosecution's case is that it
was the 1st Appellant (Surajdeo Mahto) who allured the deceased and persuaded him to
accompany the said Appellant to watch cinema. It is neither their case nor have the
prosecution witnesses deposed that Appellant No. 2 was involved in the persuasive
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abduction of the deceased from his house on 05.04.1987. This has to be seen in the
context of motive behind the offence. It is proved on record that the 1st Appellant had
an axe to grind against the deceased who was allegedly having illicit relationship with
his sister. There is no motive alleged or proved which would have swayed Appellant No.
2 to commit murder of the deceased. Still further, prosecution has led no evidence that
there was any meeting of mind between the 1st and the 2nd Appellant on or before
08.04.1987, or that they hatched any conspiracy together to commit the murder of
Arun. There is also no evidence on record to suggest that Appellant No. 1 disclosed his
intention to commit murder of deceased Arun to the 2nd Appellant.
43. It is true that the prosecution has led evidence comprising the statements of PW-3
and PW-4 who had lastly seen the deceased alive on 09.04.1987 in the company of the
1st and the 2nd Appellants. However, until and unless the last seen theory is
substantiated by other circumstantial evidence to constitute an unbreakable chain of
events, the conviction cannot rest solely on the basis that the 2nd Appellant was also
present along with Appellant No. 1 in the company of the deceased when they were
seen together on 09.04.1987.
44. It is pertinent to mention that some incriminating material consisting of one pair of
slippers, one handkerchief, a knife, jerrycan and two lungis were found and seized at
the place of occurrence. While PW-16, namely, father of the deceased has identified one
of the seized lungis belonging to Appellant No. 1, none of the recovered articles have
been attributed to the 2nd Appellant. The only substantial evidence against the 2nd
Appellant is that he too was in the company of the deceased and Appellant No. 1 on
09.04.1987, i.e., they were seen together lastly. Even if we were to presume that the
deposition of PW-12 identifying Appellant No. 2 on the night of 09.04.1987 to be true,
such evidence, may create a strong suspicion in respect of involvement of the 2nd
Appellant in the murder of the deceased, but then, mere suspicion cannot be accepted
as impeccable evidence to prove his guilt beyond any doubt.
45. Further, there is post occurrence circumstantial evidence led against Appellant No.
1, namely, that he did not disclose the whereabouts of the deceased and then
surreptitiously disappeared from the scene till he surrendered in Court. There is no such
allegation of being evasive or absconding post occurrence levelled against Appellant No.
2. There are, thus, missing links in the prosecution case so far as the 2nd Appellant is
concerned. Consequently, and for the reasons aforestated, we find that the case of
Prakash Mahto (Appellant No. 2) is distinguishable from that of Surajdeo Mahto
(Appellant No. 1) and the prosecution has not been able to prove the guilt of 2nd
Appellant beyond the pale of doubt. The 2nd Appellant is, thus, entitled to the benefit of
doubt.
B. Appellant No. 1's plea of Juvenility
46. There is no gainsaying that Section 7-A of Juvenile Justice (Care and Protection of
Children) Act, 2000 [in short, "JJ Act"] sets out the procedure to be followed by a court
to determine the claim of juvenility. Its proviso enables to raise the claim of juvenility
before "any court" and at "any stage", even after the final disposal of the case.
However, in order to take advantage of the aforesaid provision, there lies an initial onus
on the Accused to produce some cogent evidence to prima facie establish the juvenility
on the date of commission of the offence.
47. In the instant case, the 1st Appellant has raised plea of juvenility for the first time
before this Court. He has placed before us a School Leaving Certificate along with an

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Admit Card issued by the Bihar School Examination Board, wherein, Appellant No. 1's
date of birth is claimed to be 01.03.1970. It has been asserted that the 1st Appellant
was 17 years old at the time of occurrence. Learned Counsel for the Appellants has also
drawn our attention to the decision in Abuzar Hossain (Supra), wherein, this Court
exhaustively dealt with the provisions and the scope of JJ Act and held as under:
39.3. As to what materials would prima facie satisfy the court and/or are
sufficient for discharging the initial burden cannot be catalogued nor can it be
laid down as to what weight should be given to a specific piece of evidence
which may be sufficient to raise presumption of juvenility but the documents
referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie
satisfaction of the court about the age of the delinquent necessitating further
enquiry Under Rule 12. The statement recorded Under Section 313 of the Code
is too tentative and may not by itself be sufficient ordinarily to justify or reject
the claim of juvenility. The credibility and/or acceptability of the
documents like the school leaving certificate or the voters' list, etc.
obtained after conviction would depend on the facts and circumstances
of each case and no hard-and-fast Rule can be prescribed that they
must be prima facie accepted or rejected....
(Emphasis Supplied)
48. When the documents relied upon by 1st Appellant are analysed in the backdrop of
these settled principles, we find that the same do not inspire any confidence. The name
of Appellant No. 1 does not appear on the documents, instead these belong to one
'Suryadev Prasad'. It is nearly impossible to verify the veracity of the two documents
relied upon by Appellant No. 1 at this highly belated stage. Further, the record of the
Trial Court does suggest that the name of the 1st Appellant is 'Surajdeo Mahto' and not
'Suryadev Prasad'. In the absence of any cogent material indicating that the subject-
documents pertain to 1st Appellant only, no case to hold any fact-finding enquiry is
made out. Consequently, we decline to place reliance on the documents in question and
reject the plea of juvenility raised by the 1st Appellant.
Conclusion
49. In light of the above discussion, the instant appeal is partly allowed. While the
conviction and sentence of Surajdeo Mahto (Appellant No. 1) is upheld and appeal qua
him is dismissed, the 2nd Appellant (Prakash Mahto) is acquitted of the charges. The
bail bonds furnished by the 1st Appellant are cancelled and he is directed to surrender
to undergo remainder of the sentence. The 2nd Appellant's bail bonds are discharged.

1 Malkhansingh v. State of M.P., MANU/SC/0445/2003 : (2003) 5 SCC 746, p. 7, 8 to

16
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0046/2000
Equivalent/Neutral Citation: AIR2000SC 988, 2000(2)BLJ483, (2000)3C ALLT44(SC ), 2000 (1) C C C 190 , 2000C riLJ1473, 2000 INSC 38,
JT2000(1)SC 426, 2000(1)KLT655(SC ), (2000)IIMLJ26(SC ), 2000(1)SC ALE279, (2000)2SC C 465, [2000]1SC R480

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 639, of 2000 (Arising out of SLP (C) No. 16439 of 1998)
Decided On: 28.01.2000
The Chairman, Railway Board and Ors. Vs. Chandrima Das and Ors.
Hon'ble Judges/Coram:
Saiyed Saghir Ahmad and R.P. Sethi, JJ.
Counsels:
For Appearing Parties: R.N. Trivedi, K.N. Rawal, Addl. Solicitor Generals and Raju
Ramachandran, Sr. Advs. and Ashok Kumar Srivastava, Sushma Suri, R.N. Verma, D.S.
Mehra, Wasim A. Qadri, Avtar Singh Rawat, A. Subhashini, Naina Kapur, Meenakshi
Arora, Priya Rao, Naila Ansan and A.K. Thiruvengadam, Advs,
Case Note:
Constitution - right to life - Article 21 of Constitution of India - whether right
to life extends to foreign citizens - whether Government of India can be made
vicariously liable to compensate for offence of rape committed by it's
employees - foreign citizens are entitled to protection under Article 21 -
offence of rape is violation of fundamental right to life - constitutional
liability to pay compensation arises where rape is committed with foreign
national by employees of Government abusing their authority.
JUDGMENT
Saiyed Saghir Ahmad, J.
1. Leave granted,
2. Mrs. Chandrima Das, a practicing advocate of the Calcutta High Court, filed a petition
under Article 226 of the Constitution against the Chairman, Railway Board; General
Manager, Eastern Railway; Divisional Railway Manager, Howrah Division; Chief
Commercial Manager, Eastern Railway; State of West Bengal through the Chief
Secretary, Home Secretary Government of West Bengal, Superintendent of Police
(Railways), Howrah; Superintendent of Police, Howrah; Director General of Police, West
Bengal and many other Officers including the Deputy High Commissioner, Republic of
Bangladesh; claiming compensation for the victim, Smt. Hanuffa Khatoon, a
Bangladeshi national who was gang-raped by many including employees of the Railways
in a room at Yatri Niwas at Howrah Station of the Eastern Railway regarding which
G.R.P.S. Case No. 19/98 was registered on 27th February, 1998. Mrs. Chandrima Das
also claimed several other reliefs including a direction to the respondents to eradicate
anti-social and criminal activities at Howrah Railway Station.
3. The facts as noticed by the High Court in the impugned judgment are as follows:
Respondents Railways and the Union of India have admitted that amongst the
main accused you are employees of the railways and if the prosecution version
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 is proved in accordance with law, they are perpetrators of the heinous crime of
gang rape repeatedly committed upon the hapless victim Hanufa Khatun. It is
not in dispute that Hanufa came from Bangladesh. She at the relevant time was
the elected representative of the Union Board. She arrived at Howrah Railway
Station on 26th February, 1998 at about 14.00 hours to avail Jodhpur Express
at 23.00 hours for paying a visit to Ajmer Sharif. With that intent in mind, she
arrived at Calcutta on 24th February, 1998 and stayed at a hotel at 10, Sudder
Street, Police Station Taltola and came to Howrah Station on the date and time
aforementioned. She had, however, a wait listed ticket and so she approached a
Train Ticket Examiner at the Station for confirmation of berth against her ticket.
The Train Ticket Examiner asked" her to wait in the Ladies Waiting room. She
accordingly came to the ladies waiting room and rested there.
At about 17.00 hours on 26th February, 1998 two unknown persons (later
identified as one Ashoka Singh, a tout who posed himself as a very influential
person of the Railway and Siya Ram Singh a railway ticket broker having good
acquaintance with some of the Railway Staff of Howrah Station) approached
her, took her ticket and returned the same after confirming reservation in Coach
No. S-3 (Berth No. 17) of Jodhpur Express. At about 20.00 hours Siya Ram
Singh came again to her with a boy named Kashi and told her to accompany the
boy to a restaurant if she wanted to have food for the night. Accordingly at
about 2] ,00 hours she went to a nearby eating house with Kashi and had her
meal there. Soon after she had taken her meal, she vomited and came back to
the Ladies Waiting room. At about 21.00 hours Ashoke Singh along with Rafl
Ahmed a Parcel Supervisor at Howrah Station came to the Ladies Niwas before
boarding the train. She appeared to have some doubt initially but on being
certified by the lady attendants engaged on duty at the Ladies Waiting Room
about their credentials she accompanied them to Yatri Niwas. Sitaram Singh, a
Khalasi of Electric Department of Howrah Station joined them on way to Yatri
Niwas. She was taken to room No. 102 on the first floor of Yatri Niwas. The
room was booked in the name of Ashoke Singh against Railway Card Pass No.
3638 since 25th February, 1998. In room No. 102 two other persons viz. one
Lalan Singh, Parcel Clerk of Howrah Railway Station and Awdesh Singh, Parcel
Clearing Agent were waiting. Hanufa Khatun suspected something amiss when
Ashoke Singh forced her into the room. Awdesh Singh bolted the room from
outside and stood on guard outside the room. The remaining four persons viz.
Ashoke, Lalan, Raft and Sitaram took liquor inside the room and also forcibly
compelled her to consume liquor. All the four persons who were present inside
the room brutally violated, Hanufa Khatun, it is said, was in a state of .shock
and daze. When she could recover she managed to escape from the room of
Yatri Niwas and came back to the platform where again she met Siya Ram Singh
and found him talking to Ashoke Singh. Seeing her plight Siya Ram Singh
pretended to be her savior and also abused and slapped Ashoke Singh. Since it
was well past midnight and Jodhpur Express had already departed, Siya Ram
requested Hanufa Khatoon to accompany him to his residence to rest for the
night with his wife and children. He assured her to help entrain Poorva Express
on the following morning. Thereafter Siyaram accompanied by Ram Samiram
Sharma, a friend of Siyaram took her to the rented fiat of Ram Samiram Sharma
at 66, Pathuriaghata Street, Police Station Jorabagan, Calcutta. There Siyaram
raped Hanufa and when she protested and resisted violently Siyaram and Ram
Samiran Sharma gagged her mouth and nostrils intending to kill her as a result
Hanufa bled profusely. On being informed by the landlord of the building
following the hue and cry raised by Hanufa Khatun. she was rescued by
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 Jorabagan Police.
4. It was on the basis of the above facts that the High Court had awarded a sum of Rs,
10 lacs as compensation for Smt. Hanuffa Khatoon as the High Court was of the opinion
that the rape was committed at the building (Rail Yatri Niwas) belonging to the Railways
and was perpetrated by the Railway employees.
5. In the present appeal, we are not concerned with many directions issued by the High
Court. The only question argued before us was that the Railways would not be liable to
pay compensation to Smt. Hanuffa Khatoon who was a foreigner and was not an Indian
national. It is also contended that commission of the offence by the person concerned
would not make the Railway or the Union of India liable to pay compensation to the
victim of the offence. It is contended that since it was the individual act of those
persons, they alone would be prosecuted and on being found guilty would be punished
and may also be liable to pay fine or compensation, but having regard to the facts of
this case, the Railways, or, for that matter, the Union of India would not even be
vicariously liable. It is also contended that for claiming damages for the offence
perpetrated on Smt. Hanuffa Khatoon, the remedy lay in the domain of Private Law and
not under Public Law and, therefore, no compensation could have been legally awarded
by the High Court in a proceeding under Article 226 of the Constitution and, that too, at
the instance of a practicing advocate who, in no way, was concerned or connected with
the victim.
6 . We may first dispose of the contention raised on behalf of the appellants that
proceedings under Article 226 of the Constitution could not have been legally initiated
for claiming damages from the Railways for the offence of rape committed on Smt,
Hanuffa Khatoon and that Smt. Hanuffa Khatoon herself should have approached the
Court in the realm of Private Law so that all the questions of fact could have been
considered on the basis of the evidence adduced by the parties to record a finding
whether all the ingredients of the commission of tort against the person of Smt. Hanuffa
Khatoon were made out, so as to be entitled to the relief of damages. We may also
consider the question of locus standi as it is contended on behalf of the appellants that
Mrs. Chandrima Das, who is a practicing Advocate of the High Court of Calcutta, could
not have legally instituted these proceedings.
7. The distinction between "Public Law" and "Private Law" was considered by a Three-
Judge Bench of this Court in Common Cause. A Regd. Society v. Union of India
MANU/SC/0437/1999 : [1999]3SCR1279 , in which it was, inter alia, observed as
under (Paras 38 and 39 of AIR):
Under Article 226 of the Constitution, the High Court has been given the power
and jurisdiction to issue appropriate Writs in the nature of Mandamus,
Certiorari, Prohibition, Quo-Warranto and Habeas Corpus for the enforcement of
Fundamental Rights or for any other purpose. Thus, the High Court has
jurisdiction not only to grant relief for the enforcement of Fundamental Rights
but also for "any other purpose" which would include the enforcement of public
duties by public bodies. So also the Supreme Court under Article 32 has the
jurisdiction to issue prerogative writs for the enforcement of Fundamental
Rights guaranteed to a citizen under the Constitution.
Essentially, under public law, it is the dispute between the citizen or a group of
citizens on the one hand and the State or other public bodies on the other,
which is resolved. This is done to maintain the rule of law and to prevent the

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 State or the public bodies from acting in an arbitrary manner or in violation of
that rule. The exercise of constitutional powers by the High Court and the
Supreme Court under Article 226 or 32 has been categorised as power of
"judicial review". Every executive or administrative action of the State or other
statutory or public bodies is open to judicial scrutiny and the High Court or the
Supreme Court can, in exercise of the power of judicial review under the
Constitution, quash the executive action or decision which is contrary to law or
Is violative of Fundamental Rights guaranteed by the Constitution. With the
expanding horizon of Article 14 read with other Articles dealing with
Fundamental Rights, every executive action of the Govt. or other public bodies,
including Instrumentalities of the Govt., or those which can be legally treated
as "Authority" within the meaning of Article 12, if arbitrary, unreasonable or
contrary to law, is now amenable to the writ jurisdiction of this Court under
Article 32 or the High Courts under Article 226 and can be validly scrutinised on
the touchstone of the Constitutional mandates.
8 . The earlier decision, namely, Life Insurance Corporation of India v. Escorts Limited
MANU/SC/0015/1985 : 1986(8)ECC189 , in which it was observed as under:
Broadly speaking, the Court will examine actions of State if they pertain to the
public law domain and refrain from examining them if they pertain to the
private law field. The difficulty will lie in demarcating the frontier between the
public law domain and the private law field. It is impossible to draw the line
with precision and we do not want to attempt it. The question must be decided
in each case with reference to the particular action, the activity in which the
State or the instrumentality of the State is engaged when performing the action,
the public law or private law character of the action and a host of other relevant
circumstances was relied upon.
9 . Various aspects of the Public Law field were considered. It was found that though
initially a petition under Article 226 of the Constitution relating to contractual matters
was held not to lie, the law underwent a change by subsequent decisions and it was
noticed that even though the petition may relate essentially to a contractual matter, it
would still be amenable to the writ jurisdiction of the High Court under Article 226. The
Public Law remedies have also been extended to the realm of tort. This Court, in its
various decisions, has entertained petitions under Article 32 of the Constitution on a
number of occasions and has awarded compensation to the petitioners who had suffered
personal injuries at the hands of the officers of the Govt. The causing of injuries, which
amounted to tortious act, was compensated by this Court in many of its decisions
beginning from Rudul Sah v. State of Bihar MANU/SC/0380/1983 : 1983CriL J1644 .
[See also Bhim Singh v. State of Jammu and Kashmir MANU/SC/0064/1985 :
1986CriL J192 ; People's Union for Democratic Rights v. State of Bihar
MANU/SC/0104/1986 : 1987CriL J528 ; People's Union for Democratic Rights Thru. Its
Secy. v. Police Commissioner, Delhi Police Headquarters MANU/SC/0409/1989 :
(1989)4SCC730 ; Saheli, A Women's Resources center v. Commissioner of Police, Delhi
MANU/SC/0478/1989 : AIR1990SC513 ; Arvinder Singh Bagga v. State of U.P.
MANU/SC/0025/1995 : AIR1995SC117 ; P. Rathinam v. Union of India ; In Re: Death
of Sawinder Singh Grower (2); Inder Singh v. State of Punjab MANU/SC/0380/1995 :
1995CriL J3235 ; D.K. Basu v. State of West Bengal MANU/SC/0157/1997 :
1997CriLJ743 .
10. In cases relating to custodial deaths and those relating to medical negligence, this
Court awarded compensation under Public Law domain in Nilabati Behera v. State of
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Orissa MANU/SC/0307/1993 : 1993CriL J2899 ; State of M.P. v. Shyam Sunder Trivedi
MANU/SC/0722/1995 : (1995)4SCC262 ; People's Union for Civil Liberties v. Union of
India MANU/SC/0274/1997 : AIR1997SC1203 and Kaushalya v. State of Punjab(1996)
7 SCALE (SP) 13; Supreme Court Legal Aid Committee v. State of Bihar
MANU/SC/0604/1991 : (1991)3SCC482 ; Dr. Jacob George v. State of Kerala
MANU/SC/0684/1994 : 1994CriL J3851 ; PaschimBanga Khet Mazdoor Samity v. State
of West Bengal MANU/SC/0611/1996 : AIR1996SC2426 and Mrs. Manju Bhatia v.
N.D.M.C. MANU/SC/1235/1997 : (1997)6SCC370 :
11. Having regard to what has been stated above, the contention that Smt. Hanuffa
Khatoon should have approached the Civil Court for damages and the matter should not
have been considered in a petition under Article 226 of the Constitution, cannot be
accepted. Where public functionaries are involved and the matter relates to the violation
of Fundamental Rights or the enforcement of public duties, the remedy would still be
available under the Public Law notwithstanding that a suit could be filed for damages
under Private Law.
12. In the instant case, it is not a mere matter of violation of an ordinary right of a
person but the violation of Fundamental Rights which is involved. Smt. Hanuffa Khatoon
was a victim of rape. This Court in Bodhisattwa v. Ms. Subhra Chakraborty
MANU/SC/0245/1996 : AIR1996SC922 has held "rape" as an offence which is violative
of the Fundamental Right of a person guaranteed under Article 21 of the Constitution.
The Court observed as under (Para 10 of AIR):
Rape is a crime not only against the person of a woman, it is a crime against
the entire society. It destroys the entire psychology of a woman and pushes her
into deep emotional crisis. Rape is therefore the most hated crime. It is a crime
against basic human rights and is violative of the victims most cherished right,
namely, right to life which includes right to live with human dignity contained
in Article 21.
13. Rejecting, therefore, the contention of the learned Counsel for the appellants that
the petition under Public Law was not maintainable, we now proceed to his next
contention relating to the locus standi of respondent, Mrs. Chandrima Das, in filing the
petition.
1 4 . The main contention of the learned Counsel for the appellants is that Mrs.
Chandrima Das was only a practicing advocate of the Calcutta High Court and was, in no
way, connected or related to the victim, Smt. Hanuffa Khatoon and, therefore, she could
not have filed a petition under Article 226 for damages or compensation being awarded
to Smt. Hanuffa Khatoon on account of the rape committed on her. This contention is
based on a misconception. Learned Counsel for the appellants is under the impression
that the petition filed before the Calcutta High Court was only a petition for damages or
compensation for Smt. Hanuffa Khatoon. As a matter of fact, the reliefs which were
claimed in the petition included the relief for compensation. But many other reliefs as,
for example, relief for eradicating anti-social and criminal activities of various kinds at
Howrah Railway Station were also claimed. The true nature of the petition, therefore,
was that of a petition filed in public interest.
1 5 . The existence of a legal right, no doubt, is the foundation for a petition under
Article 226 and a bare interest, may be of a minimum nature, may give locus stand! to a
person to file a Writ Petition, but the concept of "Locus Standi" has undergone a sea
change, as we shall presently notice. In Dr. Satyanarayana Sinha v. S. Lal and Co. Pvt.

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Ltd. MANU/SC/0039/1973 : [1974]1SCR615 , it was held that the foundation for
exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or
individual right of the petitioner himself. In writs like Habeas Corpus and Quo Warranto,
the rule has been relaxed and modified.
16. In S. P. Gupta v. Union of India MANU/SC/0080/1981 : [1982]2SCR365 , the law
relating to locus stand! was explained so as to give a wider meaning to the phrase. This
Court laid down that "practicing lawyers have undoubtedly a vital interest in the
independence of the judiciary; they would certainly be interested in challenging the
validity or constitutionality of an action taken by the State or any public authority which
has the effect of impairing the independence of the judiciary." It was further observed
that "lawyer's profession was an essential and integral part of the judicial system; they
could figuratively be described as priests in the temple of justice. They have, therefore,
a special interest in preserving the integrity and independence of the judicial system;
they are equal partners with the Judges in the administration of justice. The lawyers,
either in their individual capacity or as representing some Lawyers' Associations have
the locus standi to challenge the circular letter addressed by the Union Law Minister to
the Governors and Chief Ministers directing that one third of the Judges of the High
Court should, as far as possible, be from outside the State.
1 7 . In the context of Public Interest Litigation, however, the Court in its various
judgments has given widest amplitude and meaning to the concept of locus standi. In
People's Union for Democratic Rights v. Union of India MANU/SC/0038/1982 :
(1982)IILL J454SC , it was laid down that Public Interest Litigation could be initiated not
only by filing formal petitions in the High Court but even by sending letters and
telegrams so as to provide easy access to Court. (See also Bandhua Mukti Morcha v.
Union of India MANU/SC/0051/1983 : [1984]2SCR67 and State of Himachal Pradesh v.
Student's Parent Medical College, Shimla MANU/SC/0046/1985 : [1985]3SCR676 on
the right to approach the Court in the realm of Public Interest Litigation). In Bangalore
Medical Trust v. B.S. Muddappa MANU/SC/0426/1991 : [1991]3SCR102 , the Court
held that the restricted meaning of aggrieved person and narrow outlook of specific
injury has yielded in favour of a broad and wide construction in the wake of Public
Interest Litigation. The Court further observed that public-spirited citizens having faith
in the rule of law are rendering great social and legal service by espousing causes of
public nature. They cannot be ignored or overlooked on technical or conservative
yardstick of the rule of locus standi or absence of personal loss or injury. There has,
thus, been a spectacular expansion of the concept of locus standi. The concept is much
wider and it takes in its stride anyone who is not a mere "busy-body".
18. Having regard to the nature of the petition filed by respondent Mrs. Chandrima Das
and the relief claimed therein it cannot be doubted that this petition was filed in public
interest which could legally be filed by the respondent and the argument that she; could
not file that petition as there was nothing personal to her involved in that petition must
be rejected.
1 9 . It was next contended by the learned Counsel appearing on behalf of the
appellants, that Smt. Hanuffa Khatoon was a foreign national and, therefore, no relief
under Public Law could be granted to her as there was no violation of the Fundamental
Rights available under the Constitution. It was con tended that the Fundamental Rights
in Part III of the Constitution are available only to citizens of this country and since
Smt. Hanuffa Khatoon was a Bangladeshi national, she cannot complain of the violation
of Fundamental Rights and on that basis she cannot be granted any relief. This
argument must also fail for two reasons; first, on the ground of Domestic Jurisprudence
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based on Constitutional provisions and secondly, on the ground of Human Rights
Jurisprudence based on the Universal Declaration of Human Rights, 1948, which has the
international recognition as the 'Moral Code of Conduct' having been adopted by the
General Assembly of the United Nations.
20. We will come to the question of Domestic Jurisprudence a little later as we intend
to first consider the principles and objects behind Universal Declaration of Human
Rights, 1948, as adopted and proclaimed by the United Nations General Assembly
Resolution of 10th December, 1948. The preamble, inter alia, sets out as under:
Whereas recognition of the INHERENT DIGNITY and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world.
Whereas disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a world
in which human beings shall enjoy freedom of speech and belief and freedom
from fear and want has been proclaimed as the highest aspiration of the
common people.
Whereas it is essential to promote the development of friendly relations
between nations.
Whereas the people of the United Nations have in the Charter affirmed their
faith in fundamental human rights. IN THE DIGNITY AND WORTH OF THE
HUMAN PERSON AND IN THE EQUAL RIGHTS OF MEN AND WOMEN and have
determined to promote social progress and better standards of life in larger
freedom.
Whereas Member States have pledged themselves to achieve, in co-operation
with the United Nations, the promotion of universal respect for and observance
of human rights and fundamental freedom.
Whereas a common understanding of these rights and freedom is of the
greatest importance for the full realization of this pledge.
21. Thereafter, the Declaration sets out, inter alia, in various Articles, the following:
Article 1.- All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another in
a spirit of brotherhood.
Article 2.- Every one is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, NATIONAL OR SOCIAL ORIGIN,
PROPERTY, BIRTH OR OTHER STATUS.
Furthermore, NO DISTINCTION SHALL BE MADE ON THE BASIS OF THE
POLITICAL, JURISDICTIONAL OR INTERNATIONAL STATUS OF THE COUNTRY
OR TERRITORY to which a person belongs, whether it be independent, trust,
non-self governing or under any other limitation of sovereignty.
Article 3.- Everyone has the right to life, liberty and security of person.
Article 5.- No one shall be subjected to torture or to cruel, inhuman or
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 degrading treatment or punishment.
Article 7.- All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration and against any
incitement to such discrimination.
Article 9.- No one shall be subjected to arbitrary arrest, detention or exile.
22. Apart from the above, the General Assembly, also while adopting the Declaration on
the Elimination of Violence against Women, by its Resolution dated 20th December,
1993, observed in Article 1 that, "violence against women" means any act of gender-
based violence that results in, or is likely to result in, physical, sexual or psychological
harm or suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life. In Article 2, it was
specified that, violence against women shall be understood to encompass, but not be
limited to:
(a) Physical, sexual and psychological violence occurring in the family including
battering, sexual abuse of female children in the household, dowry-related
violence, marital rape, female genital mutilation and other traditional practices
harmful to women, non-spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the general
community, including rape, sexual abuse, sexual harassment and intimidation
at work, in educational institutions and elsewhere, trafficking in women and
forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the
State, wherever it occurs.
23. In Article 3, it was specified that "women art: entitled to the equal enjoyment and
protection of all human rights, which would include, inter alia:
(a) the right to life,
(b) the right to equality, and
(c) the right to liberty and security of person,
2 4 . The International Covenants and Declarations as adopted by the United Nations
have to be respected by all signatory States and the meaning given to the above words
in those Declarations and Covenants have to be such as would help in effective
implementation of those Rights. The applicability of the Universal Declaration of Human
Rights and principles thereof may have to be read, if need be, into the domestic
jurisprudence.
25. Lord Diplock in Salomon v. Commissioners of Customs and Excise (1996) 3 All ER
871 said that there is a, prima facie, presumption that Parliament does not intend to act
in breach of international law. Including specific treaty obligations. So also, Lords
Bridge in Brind v. Secretary of State for the Home Department (1991) 1 All ER 720,
observed that it was well settled that, in construing any provision in domestic
legislation which was ambiguous in the sense that it, was capable of a meaning which
either conforms to or conflicts with the International Convention, the Courts would
presume that Parliament intended to legislate in conformity with the Convention and not
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in conflict with it.
26. The domestic application of international human rights and norms was considered
by the Judicial Colloquia (Judges and Lawyers) at Bangalore in 1988. It was later
affirmed by the Colloquia that it was the vital duly of an independent judiciary to
interpret and apply national constitutions in the light of those principles. Further
Colloquia were convened in 1994 at Zimbabwe, in 1996 at Hong Kong and in 1997 at
Guyana and In all those Colloquia, the question of domestic application of international
and regional human rights specially in relation to woman, was considered. The
Zimbabwe Declaration 1994, inter alia, stated:
Judges and lawyers have duty to familiarize themselves with the growing
international jurisprudence of human rights and particularly with the expanding
material on the protection and promotion of the human rights of women.
27. But this situation may not really arise in our country.
28. Our Constitution guarantees all the basic and fundamental human rights set out in
the Universal Declaration of Human Rights, 1948, to its citizens and other persons. The
chapter dealing with the Fundamental Rights is contained in Part III of the Constitution.
The purpose of this part is to safeguard the basic human rights from the vicissitudes of
political controversy and to place them beyond the reach of the political parties who, by
virtue of their majority, may come to form the Govt. at the center or in the State.
29. The Fundamental Rights are available to all the "Citizens" of the country but a few
of them are also available to "persons". While Article 14, which guarantees equality
before law or the equal protection of laws within the territory of India, is applicable to
"person" which would also include the "citizen" of the country and "non-citizen" both,
Article 15 speaks only of "citizen" and it is specifically provided therein that there shall
be no discrimination against any "citizen" on the ground only of religion, race, caste,
sex, place of birth or any of them nor shall any citizen be subjected to any disability,
liability, restriction or condition with regard to access to shops, public restaurants,
hostel and places of public entertainment, or the use of wells, tanks, bathing ghats,
roads and place of public resort on the aforesaid grounds. Fundamental Rights
guaranteed under Article 15 is, therefore, restricted to "citizen". So also, Article 16
which guarantees equality of opportunity in matters of public employment is applicable
only to "citizens". The Fundamental Rights contained in Article 19, which contains the
right to "Basic Freedoms", namely, freedom of speech and expression; freedom to
assemble peaceably and without arms; freedom to form associations or unions;
freedom to move freely throughout the territory of India; freedom to reside and settle in
any part of the territory of India and freedom to practice any profession, or to carry on
any occupation, trade or business, are available only to "citizens" of the country.
30. The word "citizen" in Article 19 has not been used in a sense different from that In
which it has been used in Part II of the Constitution dealing with "citizenship" [See
State Trading Corporation of India Ltd. v. Commercial Tax Officer
MANU/SC/0038/1963 : [1964]4SCR99 ). It has also been held in this case that the
words "all citizens" have been deliberately used to keep out all "non-citizens" which
would include "aliens". It was laid down in Hans Muller of Nurenburg v. Superintendent,
Presidency Jail, Calcutta MANU/SC/0074/1955 : 1955CriL J876 , that this Article
applies only to "citizens". In another decision in Anwar v. State of J. & K.
MANU/SC/0084/1970 : [1971]1SCR637 , it was held that non-citizen could not claim
Fundamental Rights under Article 19. In Naziranbai v. State AIR 1957 MB 1 and Lakshim

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Prasad v. Shiv Pal MANU/UP/0080/1974 : AIR1974All313 , it was held that Article 19
does not apply to a "foreigner". The Calcutta High Court in Sk. Mohamed Soleman v.
State of West Bengal MANU/WB/0065/1965 : AIR1965Cal312 , held that Article 19
does not apply to a Commonwealth citizen.
3 1 . In Anwar v. State of J. & K. MANU/SC/0084/1970 : [1971]1SCR637 (already
referred to above), it was held that the rights under Articles 20, 21 and 22 are available
not only to "citizens" but also to "persons" which would include "non-citizens".
3 2 . Article 20 guarantees right to protection in respect of conviction for offences.
Article 21 guarantees right to life and personal liberty while Article 22 guarantees right
to protection against arbitrary arrest and detention. These are wholly in consonance
with Article 3, Article 7 and Article 9 of the Universal Declaration of Human Rights,
1948.
33. The word "LIFE" has also been used prominently in the Universal Declaration of
Human Rights, 1948. [See Article 3 quoted above]. The Fundamental Rights under the
Constitution are almost in consonance with the Rights contained in the Universal
Declaration of Human Rights as also the Declaration and the Covenants of Civil and
Political Rights and the Covenants of Economic, Social and Cultural Rights, to which
India is a party having ratified them, as out by this Court in Kubic Darusz v. Union of
India MANU/SC/0426/1990 : 1990CriL J796 , That being so, since "LIFE" is also
recognised as a basic human right in the Universal Declaration of Human Rights, 1948,
it has to have the same meaning and interpretation as has been placed on that word by
this Court in its various decisions relating to Article 21 of the Constitution. The meaning
of the word "life" cannot be narrowed down. According to the tenor of the language
used in Article 21, it will be available not only to every citizen of this Country, but also
to a "person" who may not be a citizen of the country.
34. Let us now consider the meaning of the word "LIFE" interpreted by this Court from
time to time. In Kharak Singh v. State of U.P. MANU/SC/0085/1962 : 1963CriL J329 . it
was held that the term "life" indicates something more than mere animal existence.
[See also : State of Maharashtra v. Chandrabhan Tale MANU/SC/0396/1983 :
(1983)IILL J256SC ]. The inhibitions contained in Article 21 against its deprivation
extends even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha v.
U.O.I. MANU/SC/0051/1983 : [1984]2SCR67 , it was held that the right to life under
Article 21 means the right to live with dignity, free from exploitation. [See also :
Maneka Gandhi v. U.O.I. MANU/SC/0133/1978 : [1978]2SCR621 and Board of
Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni
MANU/SC/0184/1982 : (1983)ILLJ1SC ].
35. On this principles, even those who are not citizens of this country and come here
merely as tourists or in any other capacity will be entitled to the protection of their lives
in accordance with the Constitutional provisions. They also have a right to "Life" in this
country. Thus, they also have the right to live, so long as they are here, with human
dignity, just as the State is under an obligation to protect the life of every citizen in this
country, so also the State is under an obligation to protect the life of the persons who
are not citizens.
36. The Rights guaranteed under Part III of the Constitution are not absolute in terms.
They are subject to reasonable restrictions and, therefore, in case of non-citizen also,
those Rights will be available subject to such restrictions as may be imposed in the
interest of the security of the State or other important considerations. Interest of the

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Nation and security of the State is supreme. Since 1948 when the Universal Declaration
was adopted till this day, there have been many changes - political, social and
economic while terrorism has disturbed the global scenario. Primacy of the interest of
Nation and the security of State will have to be read into the Universal Declaration as
also in every Article dealing with Fundamental Rights, including Article 21 of the Indian
Constitution.
3 7 . It has already been pointed out above that this Court in Bodhisatwa' s case
( MANU/SC/0245/1996 : AIR1996SC922 ) (supra) has already held that "rape" amounts
to violation of the Fundamental Right guaranteed to a woman under Article 21 of the
Constitution.
38. Now, Smt. Hanuffa Khatoon , who was not the citizen of this country but came here
as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights
available to a citizen so far as "Right to Life" was concerned. She was entitled to be
treated with dignity and was also entitled to the protection of her person as guaranteed
under Article 21 of the Constitution. As a national of another country, she could not be
subjected to a treatment which was below dignity nor could she be subjected to
physical violence at the hands of Govt. employees who outraged her modesty. The right
available to her under Article 21 was thus violated. Consequently, the State was under
the Constitutional liability to pay compensation to her. The judgment passed by the
Calcutta High Court, therefore, allowing compensation to her for having been gang
raped, cannot be said to suffer from any infirmity.
39. Learned Counsel for the appellants then contended that the Central Govt. cannot be
held vicariously liable for the offence of rape committed by the employees of the
Railways. It was contended that the liability under the Law of Torts would arise only
when the act complained of was performed in the course of official duty and since rape
cannot be said to be an official act, the Central Govt. would not be liable even under the
Law of Torts. The argument is wholly bad and is contrary to the law settled by this
Court on the question of vicarious liability in its various decisions.
40. In State of Rajasthan v. Mst. Vidhyawati MANU/SC/0025/1962 : AIR1962SC933 ,
it was held that the Govt. will be vicariously liable for the tortious act of its employees.
This was a case where a claim for damages was made by the heirs of a person who died
in an accident caused by the negligence of the driver of a Govt. vehicle. Reference may
also be made to the decisions of this Court in State of Gujarat v. Memon Mahomed Haji
Hasan MANU/SC/0016/1967 : [1967]3SCR938and Smt. Basava Kom Dyamagouda
Patil v. State of Mysore MANU/SC/0675/1977 : 1977CriL J1141 . These principles were
reiterated in N. Nagendra Rao & Co. v. State of A.P. MANU/SC/0530/1994 :
AIR1994SC2663 ) and again in State of Maharashtra v. Kanchanmala Vijaysingh Shirke
MANU/SC/0781/1995 : AIR1995SC2499 .
41. Reliance placed by the counsel for the appellants on the decision of this Court in
Kasturi Lal Ralia Ram Jain v. State of U.P. MANU/SC/0086/1964 : (1966)IILL J583SC
cannot help him as this decision has not been followed by this Court in the subsequent
decisions, including the decisions in State of Gujarat v. Memon Mahomed Haji Hasan
MANU/SC/0016/1967 : [1967]3SCR938and Smt. Basava Kom Dayamogouda Patil v.
State of Mysore MANU/SC/0675/1977 : 1977CriL J1141 (supra) . The decision in
Kasturi Lal's case was also severally criticised by Mr. Seervrai in his prestigious book -
Constitutional Law of India. A Three Judge Bench of this Court in Common Cause, a
Regd. Society v. Union of India MANU/SC/0437/1999 : [1999]3SCR1279 also did not
follow the decision in Kasturi Lal's case (supra) and observed that the efficacy of this

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decision as a binding precedent has been eroded.
4 2 . The theory of Sovereign power which was propounded in Kasturi Lal's case
( MANU/SC/0086/1964 : (1966)IILL J583SC ) has yielded to new theories and is no
longer available in a welfare State. It may be pointed out that functions of the Govt. in
a welfare State are manifold, all of which cannot be said to be the activities relating to
exercise of Sovereign powers. The functions of the State not only relate to the defence
of the country or the administration of Justice, but they extend to many other spheres
as, for example education, commercial, social, economic , political and even marital.
These activities cannot be said to be related to Sovereign power.
43. Running of Railways is a commercial activity. Establishing Yatri Niwas at various
Railway Stations to provide lodging and boarding facilities to passengers on payment of
charges is a part of the commercial activity of the Union of India and this activity cannot
be equated with the exercise of Sovereign power. The employees of the Union of India
who are deputed to run the Railways and to manage the establishment, including the
Railway Stations and Yatri Niwas, are essential components of the Govt. machinery
which carriage on the commercial activity. If any of such employees commits an act of
tort, the Union Govt., of which they are the employees, can, subject to other legal
requirements being satisfied, be held vicariously liable in damages to the person
wronged by those employees. Kasturi Lal's decision, ( MANU/SC/0086/1964 :
(1966)IILLJ583SC ) , therefore, cannot be pressed in aid. Moreover, we are dealing with
this case under Public Law domain and not in a suit instituted under Private Law domain
against persons who, utilising their official position, got a room in the Yatri Niwas
booked in their own name where the act complained of was committed.
44. No other point was raised before us. The appeal having no merit is dismissed with
the observation that the amount of compensation shall be made over to the High
Commissioner for Bangladesh in India for payment to the victim, Smt. Hanuffa Khatoon.
The payment to the High Commissioner shall be made within three months. There will
be no order as to costs.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/0244/2024
Equivalent/Neutral Citation: 2024(257)AIC 91, 2024ALLMR(C ri)3981, 2024 (2) ALT (C rl.) 83 (A.P.), 2024(3)BLJ24, 2024(4)C GLJ334,
2024(2)C rimes21(SC ), 2024 INSC 247, 2024(3)JKJ1[SC ], 2024(3)JKJ1[SC ], 2024(2)MLJ(C rl)561, 2024 (1) MWN (C R.) 575, 2024(4)SC ALE263,
[2024]3SC R1228

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1773 of 2024 (Arising out of SLP (Crl.) No. 1936 of 2023)
Decided On: 22.03.2024
Thirumoorthy Vs. State represented by The Inspector of Police
Hon'ble Judges/Coram:
B.R. Gavai and Sandeep Mehta, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Janani, AOR and Sharika Rai, Adv.
For Respondents/Defendant: Joseph Aristotle S., AOR, Bhanu Kapoor and Ashutosh
Singh Rana, Advs.
Case Reversed/Partly Reversed:
Thirumoorthy vs. State MANU/TN/2922/2021
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO SEXUAL HARASSMENT, KIDNAPPING AND
ABDUCTION
Case Note:
Criminal - Conviction - Legality - Sections 302, 201, 342 and 363 Indian Penal
Code, 1860 (IPC); Sections 15 and 19 of the Juvenile Justice (Care and
Protection of Children Act, 2015) (JJ Act) - Present appeal takes exception to
the judgment passed by the learned Single Judge of the High Court dismissing
the criminal appeal filed by the Appellant and affirming the conviction of the
Appellant and sentences awarded to him vide judgment and order passed by
the trial Court - Whether the trial is vitiated on the account of non-adherence
to the mandatory requirements of the JJ Act
Facts:
Charges were framed against the Accused who pleaded not guilty and claimed
trial. The prosecution examined 25 witnesses and exhibited 35 documents
and 10 material objects to prove its case. The Accused was questioned Under
Section 313(1)(b) of Code of Criminal Procedure and was confronted with the
circumstances appearing against him in the prosecution case. He denied the
allegations levelled against him and claimed to be innocent. However, neither
oral nor documentary evidence was led in defence. The trial Court proceeded
to convict and sentence the Accused as mentioned above, vide judgment and
order dated 18th February, 2019. The mother of the Accused Appellant filed a
petition before the Special Court, POCSO Act Cases, Salem praying that the
sentence of her son may be reduced and he may be considered for early
release in view of his good behaviour. The Special Court, POCSO Act Cases,

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Salem held an inquiry; conducted psychological evaluation of the Accused;
procured reports from the Vellore District Social Security Department
Probation Officer and Probation Officer of Government Special Home as well
as the individual evaluation report of the Accused and after analysing the
above reports, proceeded to dismiss the application filed by the mother of the
Accused Appellant vide order dated 29th January, 2021. Being aggrieved by
his conviction and the sentences awarded by the trial Court, the Accused
Appellant preferred an appeal before the High Court which came to be
rejected vide impugned judgment. Hence this appeal by special leave.
Held, while allowing the appeal
1. As can be seen from the facts of the present case, there has been a flagrant
violation of the mandatory requirements of Sections 15 and 19 of the JJ Act.
Neither was the charge sheet against the Accused Appellant filed before the
Board nor was any preliminary assessment conducted Under Section 15, so as
to find out whether the Accused Appellant was required to be tried as an
adult. [37]
2. In absence of a preliminary assessment being conducted by the Board
Under Section 15, and without an order being passed by the Board Under
Section 15(1) read with Section 18(3), it was impermissible for the trial Court
to have accepted the charge sheet and to have proceeded with the trial of the
Accused. [38]
3. Thus, it is evident that the procedure adopted by the Sessions Court in
conducting the trial of the Accused Appellant is de hors the mandatory
requirements of JJ Act. [39]
4. Thus, on the face of the record, the proceedings undertaken by the
Sessions Court in conducting trial of the CICL, convicting and sentencing him
as above are in gross violation of the mandate of the Act and thus, the entire
proceedings stand vitiated. [40]
5. Pursuant to the trial being concluded, the trial Court realized the gross
illegality in the proceedings and thus, in an attempt to give a vestige of
validity to the grossly illegal proceedings conducted earlier, an exercise was
undertaken to deal with the Accused Appellant as per the provisions of the JJ
Act on the aspect of sentencing. However, ex facie, the said action which
seems to be taken by way of providing an ex post facto imprimatur to the
grossly illegal trial does not stand to scrutiny because the very foundation of
the prosecution case is illegal to the core. [41]
6. All the proceedings taken against the Accused Appellant are vitiated as
being in total violation of the mandatory procedure prescribed under the JJ
Act. [42]
7. The Accused Appellant being a CICL was never subjected to preliminary
assessment by the Board so as to find out whether he should be tried as an
adult. Directing such an exercise at this stage would be sheer futility because
now the Appellant is nearly 23 years of age. [47]

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8. At this stage, there remains no realistic possibility of finding out the
mental and physical capacity of the Accused Appellant to commit the offence
or to assess his ability to understand the consequences of the offence and
circumstances in which he committed the offence in the year 2016. [48]
9. Since entire proceedings taken against the Appellant right from the stage
of investigation and the completion of trial stand vitiated as having been
undertaken in gross violation of the mandatory requirements of the JJ Act,
present Court need not dwell into the merits of the matter or to reappreciate
the evidence available on record for finding out whether the prosecution has
been able to prove the guilt of the Appellant by reliable circumstantial
evidence. [49]
10. Thus, present Court is left with no option but to quash and set aside the
impugned judgment and direct that the Appellant who is presently lodged in
jail shall be released forthwith, if not required in any other case. [50]
11. Appeal allowed. [51]
JUDGMENT
Sandeep Mehta, J.
1. Leave granted.
2 . This appeal takes exception to the judgment dated 15th April, 2021, passed by the
learned Single Judge of the High Court of Judicature at Madras dismissing the criminal
appeal filed by the Appellant herein Under Section 374(2) of the Code of Criminal
Procedure, 1973 (hereinafter being referred to as 'CrPC') and affirming the conviction of
the Appellant and sentences awarded to him vide judgment and order dated 18th
February, 2019, passed by the Court of Sessions Judge, Mahila Court, Salem
(hereinafter being referred to as the 'trial Court') in Special Sessions Case No. 79 of
2016. By the said judgment and order, learned Trial Court convicted and sentenced the
Appellant as below:
Provision under which Sentence
convicted
Section 363 Indian Penal Code Sentenced to undergo 07 years
rigorous imprisonment.
Section 342 Indian Penal Code Sentenced to undergo 01 years
rigorous imprisonment.
Section 6 POCSO Act Sentenced to undergo 10 years
rigorous imprisonment.
Section 302 Indian Penal Code Sentenced to undergo 10 years
rigorous imprisonment.
Section 201 read with 302 Sentenced to undergo 07 years
Indian Penal Code rigorous imprisonment.
3. The trial Court in para 96 of its judgment held as under:
96. Accused is now 19 years 2 months old. Therefore, according to Section 20
Juvenile Justice (Care and Protection of Children Act), Juvenile in conflict with
law shall be kept in a safe place in Chengalpattu Juvenile Reform School till the
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 age of 21 years. After that, the Probation Officer should evaluate the
reformation of the said child and send a periodic report about it to this Court.
After the completion of 21 years, the said child shall be produced in this Court
and after evaluating whether the child has reformed, became a child who can
contribute to the society, the remaining sentence may be reduced and released,
or if the child is not reformed, the remaining sentence should be spent in jail
after the child reaches the age of 21, considering the report of the Probation
Officer and the progress records. The decision will be based on the discipline
that the child has achieved and his behaviour.
4 . Brief facts relevant and essential for disposal of the instant appeal are noted
hereinbelow.
5 . The victim Ms. D, being the daughter of the first informant- Mr. G(PW-1) aged 6
years went missing in the evening of 2nd July, 2016. Mr. G (PW-1) lodged a complaint
at P.S. Kolathur, District Salem on 3rd July, 2016 at 7 'o clock in the morning alleging,
inter alia that he had taken his daughter(victim) to a shop on the previous evening at
around 6 o' clock and from there, he asked the child to return home. However, when he
reached his house half an hour later and made an inquiry from his wife, he was told
that the child had not returned by then. A search was made in the locality but the child
could not be traced out. Based on the said complaint, Crime No. 174 of 2016 was
registered and investigation was undertaken by S. Viswanathan, Inspector of Police
(PW-25).
6 . The Investigating Officer (PW-25) recorded the statements of Mylaswamy (PW-10)
and Irusappan (PW-11) who stated that they had seen the Accused going into the
compound of his house with the child victim being the daughter of the first informant-
Mr. G (PW-1). On this, the needle of suspicion pointed towards the Accused-Appellant
who was apprehended from his house by the Investigating Officer (PW-25) while he
was trying to run away. The Accused was interrogated in presence of Mr. Arivazhagan,
Village Administrative Officer (PW-15) and his assistant Muthappan.
7. It is alleged that the Accused confessed to his guilt and his admission was recorded
in memo (Ex. P-20) and acting in furtherance thereof, the dead body of Ms. D was
found concealed in a wide-mouthed aluminium vessel lying in the prayer room of the
house of the Accused. The requisite spot inspection proceedings were undertaken and
the dead body of the child victim was sent to the Salem Government Mohan
Kumaramangalam Medical College Hospital for conducting post mortem. The post
mortem report (Ex. P-7) and final opinion of Doctor (Ex. P-8) were received indicating
that the death of the victim was homicidal in nature having being caused by
asphyxiation due to compression of neck along with injuries to genitalia. Some incised
wounds were also found on the body of the victim. Incriminating articles viz., clothes of
the Accused, a blade, etc. were recovered from the house of Accused.
8. Right at the inception of investigation, the Investigating Officer(PW-25) had gathered
information to the effect that the Accused was a juvenile since his date of birth recorded
in school documents is 30th May, 2000. Thus indisputably, the Accused was a Child in
Conflict with Law(in short 'CICL') as provided Under Section 2(13) of the Juvenile
Justice(Care and Protection of Children) Act, 2015 (hereinafter being referred to as the
'JJ Act') and the proceedings were required to be conducted in accordance with the
mandatory procedure prescribed under the JJ Act. Inspite thereof, charge sheet against
the Accused was filed directly before the Sessions Court (portrayed to be a designated
Children's Court, as per the counter affidavit filed by the State in the SLP).

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9. Charges were framed against the Accused who pleaded not guilty and claimed trial.
The prosecution examined 25 witnesses and exhibited 35 documents and 10 material
objects to prove its case. The Accused was questioned Under Section 313(1)(b) of Code
of Criminal Procedure and was confronted with the circumstances appearing against him
in the prosecution case. He denied the allegations levelled against him and claimed to
be innocent. However, neither oral nor documentary evidence was led in defence. The
trial Court proceeded to convict and sentence the Accused as mentioned above, vide
judgment and order dated 18th February, 2019.
1 0 . The mother of the Accused Appellant filed a petition before the Special Court,
POCSO Act Cases, Salem praying that the sentence of her son may be reduced and he
may be considered for early release in view of his good behaviour.
1 1 . The Special Court, POCSO Act Cases, Salem held an inquiry; conducted
psychological evaluation of the Accused; procured reports from the Vellore District
Social Security Department Probation Officer and Probation Officer of Government
Special Home as well as the individual evaluation report of the Accused and after
analysing the above reports, proceeded to dismiss the application filed by the mother of
the Accused Appellant vide order dated 29th January, 2021.
12. Being aggrieved by his conviction and the sentences awarded by the trial Court, the
Accused Appellant preferred an appeal being CRLA No. 451 of 2019 before the High
Court of Judicature at Madras which came to be rejected vide impugned judgment dated
15th April, 2021. Hence this appeal by special leave.
1 3 . Ms. S. Janani, learned Counsel representing the Accused Appellant vehemently
urged that admittedly the Accused Appellant was a CICL on the date of the incident
since his date of birth as recorded in the school documents is 30th May, 2000. She
contended that the entire series of events commencing from the arrest of the Accused
Appellant; the manner in which the investigation was conducted; the filing of the charge
sheet in the Sessions Court; the procedure of trial right up to the conviction and
sentencing of the Accused Appellant is vitiated as the mandatory procedure provided
under the JJ Act was not followed and was rather blatantly flouted. It was submitted
that the police official who filed the charge sheet was not having the authority to
conduct investigation because investigation into an offence allegedly committed by CICL
has to be undertaken by the Special Juvenile Police Unit(SJPU) constituted Under
Section 107(2) of the JJ Act by the concerned State Government.
14. She urged that Section 3(1) provides for the principle of presumption of innocence,
but the said provision was totally ignored in conducting the prosecution of the Accused
Appellant and hence the entire trial is vitiated.
1 5 . It was further submitted that the Sessions Judge who conducted trial was not
designated as a Children's Court and thus, the trial of the Accused Appellant is vitiated.
Without prejudice to this submission, learned Counsel submitted that even assuming
that the Sessions Court had been designated as a Children's Court, the Accused
Appellant could not have been tried by the said Court without preliminary assessment
being conducted by the Juvenile Justice Board(hereinafter being referred to as 'Board')
as postulated Under Section 15 of the JJ Act. The Section mandates an enquiry in form
of preliminary assessment to be conducted by the Board wherein the CICL has a right to
participate. Upon conclusion of enquiry, the Board has to pass an order Under Section
18(3) to the effect that there is a need to try the child as an adult and only thereafter,
the Board can transfer the case to the Children's Court for trial. The CICL has been

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given a right to appeal against such order by virtue of Section 101(2) of the JJ Act.
Even after the transfer of case Under Section 15, the Children's Court is required to
apply its own independent mind to find out whether there is a genuine need for trial of
the CICL as an adult as provided by Section 19(1)(i) of the JJ Act. However, none of
these mandatory requirements were complied with and thus, the trial is vitiated.
16. Referring to the alleged confession of the Accused Appellant, the learned Counsel
criticised the manner in which the investigation was conducted and submitted that the
confession recorded in presence of the police officer could not have been allowed to be
exhibited and admitted in evidence. She submitted that the trial Court, not only allowed
the confession to be exhibited but also placed implicit reliance upon it basing the
conviction of the Accused Appellant on such inadmissible piece of evidence. The
recording of confession of a CICL and placing implicit reliance thereupon is contrary to
the general principles laid out Under Section 3 of the JJ Act which provides the general
principles to be followed in the administration of the Act.
17. It was further urged that (PW-10) and (PW-11) whose depositions have been relied
upon to constitute the circumstance of last seen are as a matter of fact, totally
unreliable witnesses. Had these witnesses seen the child being taken away by the
Accused, then their natural reaction would have been to promptly inform the child's
father, the informant Mr. G. (PW-1) about this important circumstance and the same
would definitely have been incorporated in the FIR which was lodged on the next day of
the incident.
1 8 . It was also contended that the factum of recovery of the dead body from the
aluminium vessel preceded by the disclosure statement of the Accused Appellant has
not been proved by reliable evidence and hence, there does not exist cogent and
convincing circumstantial evidence on the record so as to establish the guilt of the
Accused Appellant.
19. On these counts, learned Counsel for the Appellant implored the Court to accept the
appeal and set aside the impugned judgment and sought acquittal for the Accused
Appellant.
2 0 . Learned Counsel representing the State, vehemently and fervently opposed the
submissions advanced by the Appellant's counsel. It was submitted that looking to the
gruesome nature of the crime, the entire investigation and trial cannot be held to be
vitiated simply on account of irregularity in the procedure of conducting investigation
and trial. The Sessions Court which conducted the trial had been designated as a
Children's Court. The trial Court as well as the High Court have given due consideration
to the fact that the Accused Appellant was a juvenile on the date of commission of the
crime and accordingly, the sentence which has been awarded to the Accused Appellant
is commensurate with the provisions of the JJ Act. Not only this, the trial Court
undertook an exhaustive exercise for mental and psychological assessment of the
Accused Appellant after recording his conviction and only after receiving an individual
care plan had quantified the sentences to be awarded to the Accused which are strictly
within the framework of the JJ Act.
2 1 . In support of his contentions, learned Counsel for the State placed reliance on
judgments rendered by this Court in the cases of Karan alias Fatiya v. State of Madhya
Pradesh MANU/SC/0207/2023 : 2023:INSC:197 : (2023) 5 SCC 504 and Pawan Kumar
v. State of Uttar Pradesh and Ors. MANU/SC/1248/2023 : 2023:INSC:1012. He
contended that the impugned judgment does not warrant any interference by this Court.

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22. We have given our thoughtful consideration to the submissions advanced at bar and
have gone through the judgments on record.
23. The fact regarding the Accused Appellant being a CICL on the date of the incident,
i.e., 2nd July, 2016 is not in dispute because the date of birth of the Accused as entered
in the contemporaneous school record is 30th May, 2000.
24. We shall thus first take up the issue whether the trial is vitiated on the account of
non-adherence to the mandatory requirements of the JJ Act.
25. At the outset, we may note that the fact regarding the Accused Appellant being
juvenile and thus a CICL on the date of commission of the incident was known to the
Investigating Officer(PW-25) right at inception of the proceedings. The Investigating
Officer(PW-25) categorically stated in his deposition that after completing the
investigation and preparing the final report against the "juvenile in conflict with law",
he took opinion from the Salem TTP, prepared a model charge sheet and filed the same
in the trial Court.
2 6 . The trial Court was also cognizant of this important aspect as can be clearly
discerned from the opening lines of para 2 of the judgment of the trial Court wherein it
is mentioned that "Thirumoorthy', a 17 year old juvenile in conflict with law, lives with
his mother in Telanganaur". It has also been recorded by the trial Court that on the date
of passing of the judgment, i.e., 18th February, 2019, the Accused was 19 years and 2
months old and accordingly, he was required to be sent to a place of safety as per
Section 20 of the JJ Act. The judgment passed by the Sessions Court also records the
fact that during the course of the trial, the Accused was kept in a child protection home.
Further at para 32 of the judgment, the trial Court also noted that the Public Prosecutor
himself argued that Thirumoorthy was a CICL who committed the offence upon the child
victim.
2 7 . Thus, there is no escape from the conclusion that even before the result of
investigation was filed, the fact regarding the Accused being a CICL was well known to
the Investigating Officer(PW-25), the prosecution and the trial Court as well.
2 8 . Before dealing with the rival contentions, we would now refer to some of the
relevant provisions of the JJ Act which are required to be followed in a case involving
prosecution of a CICL:
3. General principles to be followed in administration of Act. --The
Central Government, the State Governments, the Board, and other agencies, as
the case may be, while implementing the provisions of this Act shall be guided
by the following fundamental principles, namely:
(i) Principle of presumption of innocence: Any child shall be presumed
to be an innocent of any mala fide or criminal intent up to the age of
eighteen years.
(ii) Principle of dignity and worth: All human beings shall be treated
with equal dignity and rights.
(iii) Principle of participation: Every child shall have a right to be heard
and to participate in all processes and decisions affecting his interest
and the child's views shall be taken into consideration with due regard
to the age and maturity of the child.

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 (iv) Principle of best interest: All decisions regarding the child shall be
based on the primary consideration that they are in the best interest of
the child and to help the child to develop full potential.
(v) Principle of family responsibility: The primary responsibility of care,
nurture and protection of the child shall be that of the biological family
or adoptive or foster parents, as the case may be.
(vi) Principle of safety: All measures shall be taken to ensure that the
child is safe and is not subjected to any harm, abuse or maltreatment
while in contact with the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including
those of family and community, for promoting the well-being,
facilitating development of identity and providing an inclusive and
enabling environment, to reduce vulnerabilities of children and the
need for intervention under this Act.
(viii) Principle of non-stigmatising semantics: Adversarial or accusatory
words are not to be used in the processes pertaining to a child.
(ix) Principle of non-waiver of rights: No waiver of any of the right of
the child is permissible or valid, whether sought by the child or person
acting on behalf of the child, or a Board or a Committee and any non-
exercise of a fundamental right shall not amount to waiver.
( x ) Principle of equality and non-discrimination: There shall be no
discrimination against a child on any grounds including sex, caste,
ethnicity, place of birth, disability and equality of access, opportunity
and treatment shall be provided to every child.
(xi) Principle of right to privacy and confidentiality: Every child shall
have a right to protection of his privacy and confidentiality, by all
means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort: A child
shall be placed in institutional care as a step of last resort after making
a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile
justice system shall have the right to be re-united with his family at the
earliest and to be restored to the same socio-economic and cultural
status that he was in, before coming under the purview of this Act,
unless such restoration and repatriation is not in his best interest.
(xiv) Principle of fresh start: All past records of any child under the
Juvenile Justice system should be erased except in special
circumstances.
(xv) Principle of diversion: Measures for dealing with children in conflict
with law without resorting to judicial proceedings shall be promoted
unless it is in the best interest of the child or the society as a whole.
(xvi) Principles of natural justice: Basic procedural standards of fairness
shall be adhered to, including the right to a fair hearing, Rule against
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 bias and the right to review, by all persons or bodies, acting in a
judicial capacity under this Act.
9. Procedure to be followed by a Magistrate who has not been
empowered under this Act. -- (1) When a Magistrate, not empowered to
exercise the powers of the Board under this Act is of the opinion that the
person alleged to have committed the offence and brought before him is a
child, he shall, without any delay, record such opinion and forward the child
immediately along with the record of such proceedings to the Board having
jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court
other than a Board, that the person is a child or was a child on the date of
commission of the offence, or if the court itself is of the opinion that the person
was a child on the date of commission of the offence, the said court shall make
an inquiry, take such evidence as may be necessary (but not an affidavit) to
determine the age of such person, and shall record a finding on the matter,
stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall
be recognised at any stage, even after final disposal of the case, and
such a claim shall be determined in accordance with the provisions
contained in this Act and the Rules made thereunder even if the person
has ceased to be a child on or before the date of commencement of this
Act.
(3) If the court finds that a person has committed an offence and was a child
on the date of commission of such offence, it shall forward the child to the
Board for passing appropriate orders and the sentence, if any, passed by the
court shall be deemed to have no effect.
(4) In case a person under this Section is required to be kept in protective
custody, while the person's claim of being a child is being inquired into, such
person may be placed, in the intervening period in a place of safety.
(emphasis supplied)
15. Preliminary assessment into heinous offences by Board.-- (1) In case of a
heinous offence alleged to have been committed by a child, who has completed
or is above the age of sixteen years, the Board shall conduct a preliminary
assessment with regard to his mental and physical capacity to commit such
offence, ability to understand the consequences of the offence and the
circumstances in which he allegedly committed the offence, and may pass an
order in accordance with the provisions of Sub-section (3) of Section 18:
Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or
other experts.
Explanation. -For the purposes of this section, it is clarified that
preliminary assessment is not a trial, but is to assess the capacity of
such child to commit and understand the consequences of the alleged
offence.

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 (2) Where the Board is satisfied on preliminary assessment that the matter
should be disposed of by the Board, then the Board shall follow the procedure,
as far as may be, for trial in summons case under the Code of Criminal
Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be
appealable Under Sub-section (2) of Section 101:
Provided further that the assessment under this Section shall be
completed within the period specified in Section 14.
1 8 . Orders regarding child found to be in conflict with law. --(1) Where a
Board is satisfied on inquiry that a child irrespective of age has committed a
petty offence, or a serious offence, or a child below the age of sixteen years
has committed a heinous offence, then, notwithstanding anything contrary
contained in any other law for the time being in force, and based on the nature
of offence, specific need for supervision or intervention, circumstances as
brought out in the social investigation report and past conduct of the child, the
Board may, if it so thinks fit,-
(a) allow the child to go home after advice or admonition by following
appropriate inquiry and counselling to such child and to his parents or
the guardian;
(b) direct the child to participate in group counselling and similar
activities;
(c) order the child to perform community service under the supervision
of an organisation or institution, or a specified person, persons or
group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the
provisions of any labour law for the time being in force are not
violated;
(e) direct the child to be released on probation of good conduct and
placed under the care of any parent, guardian or fit person, on such
parent, guardian or fit person executing a bond, with or without surety,
as the Board may require, for the good behaviour and child's well-
being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and
placed under the care and supervision of any fit facility for ensuring the
good behaviour and child's well-being for any period not exceeding
three years;
(g) direct the child to be sent to a special home, for such period, not
exceeding three years, as it thinks fit, for providing reformative
services including education, skill development, counselling, behaviour
modification therapy, and psychiatric support during the period of stay
in the special home:
Provided that if the conduct and behaviour of the child has been such
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 that, it would not be in the child's interest, or in the interest of other
children housed in a special home, the Board may send such child to
the place of safety.
(2) If an order is passed under Clauses (a) to (g) of Sub-section (1),
the Board may, in addition pass orders to-
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a
specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment Under Section 15 pass an
order that there is a need for trial of the said child as an adult, then the Board
may order transfer of the trial of the case to the Children's Court having
jurisdiction to try such offences.
19. Powers of Children's Court.-(1) After the receipt of preliminary assessment
from the Board Under Section 15, the Children's Court may decide that-
(i) there is a need for trial of the child as an adult as per the provisions of the
Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after
trial subject to the provisions of this Section and Section 21, considering the
special needs of the child, the tenets of fair trial and maintaining a child
friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an
inquiry as a Board and pass appropriate orders in accordance with the
provisions of Section 18.
(2)-(5)..........
2 9 . The provisions contained in Section 9(1) stipulate that when a Magistrate not
empowered to exercise the power of the Board under the Act is of the opinion that the
person alleged to have committed the offence and brought before him is a child, he
shall, without any delay, record such opinion and forward the child immediately along
with the record of such proceedings to the Board having jurisdiction.
30. Sections 9(2) and 9(3) cast a burden that where the Court itself is of the opinion
that the person was a child on the date of commission of the offence, it shall conduct an
inquiry so as to determine the age of such person and upon finding that the person
alleged to have committed the offence was a child on date of commission of such
offence, forward such person to the Board for passing appropriate orders and sentence,
if any, passed by the Court shall be deemed to have no effect.
31. In the present case, the situation is very stark inasmuch as, even when the charge
sheet was filed, the Investigating Officer had clearly recorded that the date of birth of
the Accused was 30th May, 2000, and hence, even assuming that Sessions Court at
Salem had been designated as a Children's Court, there was no option for the said Court
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but to forward the child to the concerned Board for further directions.
32. There is no dispute on the aspect that the offences of which the Accused Appellant
was charged with, fall within the category of 'heinous offences' as defined Under
Section 2(33) of the JJ Act. Section 15(1) provides that in case where a heinous
offence/s are alleged to have been committed by a child who has completed or is above
the age of sixteen years, the Board shall conduct a preliminary assessment with regard
to his mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he committed the offence.
The Board, after conducting such assessment, may pass an order in accordance with the
provisions of Sub-section (3) of Section 18 of the JJ Act. Section 15(2) provides that
where the Board is satisfied on preliminary assessment that the matter should be
disposed of by the Board, then the Board shall follow the procedure, as far as may be,
for trial of summons case under Code of Criminal Procedure. Under first proviso to this
Sub-section, the order passed by the Board is appealable Under Section 101(2) of the JJ
Act.
33. Section 18(3) provides that where the Board after preliminary assessment Under
Section 15 opines that there is a need for the said child to be tried as an adult, then the
Board may order transfer of the trial of the case to the Children's Court having
jurisdiction to try such offences.
3 4 . By virtue of Section 19(1), the Children's Court, upon receiving such report of
preliminary assessment undertaken by the Board Under Section 15 may further decide
as to whether there is a need for trial of the child as an adult or not.
35. The procedure provided Under Sections 15 and 19 has been held to be mandatory
by this Court in the case of Ajeet Gurjar v. State of Madhya Pradesh
MANU/SC/1086/2023 : 2023:INSC:875. In the said case, this Court considered the
import of Section 19(1) of the JJ Act and held that the word 'may' used in the said
provision be read as 'shall'. It was also held that holding of an inquiry under 19(1)(i) is
not an empty formality. Section 19(1)(ii) provides that after examining the matter, if
the Children's Court comes to the conclusion that there is no need for trial of the child
as an adult, instead of sending back the matter to the Board, the Court itself is
empowered to conduct an inquiry and pass appropriate orders in accordance with
provisions of Section 18 of the JJ Act. The trial of a child as an adult and his trial as a
juvenile by the Children's Court have different consequences.
36. It was further held that the Children's Court cannot brush aside the requirement of
holding an inquiry Under Section 19(1)(i) of the JJ Act. Thus, all actions provided Under
Section 19 are mandatorily required to be undertaken by the Children's Court.
3 7 . As can be seen from the facts of the present case, there has been a flagrant
violation of the mandatory requirements of Sections 15 and 19 of the JJ Act. Neither
was the charge sheet against the Accused Appellant filed before the Board nor was any
preliminary assessment conducted Under Section 15, so as to find out whether the
Accused Appellant was required to be tried as an adult.
3 8 . In absence of a preliminary assessment being conducted by the Board Under
Section 15, and without an order being passed by the Board Under Section 15(1) read
with Section 18(3), it was impermissible for the trial Court to have accepted the charge
sheet and to have proceeded with the trial of the Accused.
39. Thus, it is evident that the procedure adopted by the Sessions Court in conducting
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the trial of the Accused Appellant is de hors the mandatory requirements of JJ Act.
40. Thus, on the face of the record, the proceedings undertaken by the Sessions Court
in conducting trial of the CICL, convicting and sentencing him as above are in gross
violation of the mandate of the Act and thus, the entire proceedings stand vitiated.
4 1 . It seems that pursuant to the trial being concluded, the trial Court realized the
gross illegality in the proceedings and thus, in an attempt to give a vestige of validity to
the grossly illegal proceedings conducted earlier, an exercise was undertaken to deal
with the Accused Appellant as per the provisions of the JJ Act on the aspect of
sentencing. However, ex facie, the said action which seems to be taken by way of
providing an ex post facto imprimatur to the grossly illegal trial does not stand to
scrutiny because the very foundation of the prosecution case is illegal to the core.
42. All the proceedings taken against the Accused Appellant are vitiated as being in
total violation of the mandatory procedure prescribed under the JJ Act.
43. In the case of Karan Alias Fatiya(supra) relied upon by learned Counsel for the
State, this Court interpreted Section 9(3) and held that this Sub-section does not
specifically or impliedly provide that the conviction recorded by any Court with respect
to a person who has been subsequently, after the disposal of the case found to be
juvenile or a child, would lose its effect, rather it is only the sentence if any passed by
the Court would be deemed to have no effect. The said judgment is clearly
distinguishable because in the present case, the fact that the Accused was a child on the
date of the incident was clearly known to the Investigating Officer, the prosecution and
the trial Court and thus, there is no possibility of saving the illegal proceedings by
giving them an ex post facto approval.
44. In the case of Pawan Kumar(supra), the plea of juvenility raised by the Accused did
not find favour of the Sessions Court as well as the High Court. However, in the appeal
before this Court, a report was submitted by the Additional Sessions Judge, wherein it
was opined that the Appellant was a juvenile at the time of commission of alleged
offences. The incident in the said case occurred on 1st December, 1995 and the age of
juvenility was 16 years as provided in the then prevailing Juvenile Justice Act, 1986. In
the peculiar facts of the said case, this Court held that by virtue of subsequent
amendments, the age of juvenility had been raised to 18 years and thus, the Accused
was entitled to be treated as a juvenile by virtue of the provisions of the JJ Act
prevailing when the appeal was taken up. Since the Accused had already undergone the
maximum punishment of detention provided under the said Act, i.e., three years, it was
directed that the Accused therein be released forthwith.
4 5 . In the above two referred cases, the situation presented was that the factum
regarding the Accused being a child within the meaning of the JJ Act came to light at a
very late stage i.e. after final decision of the cases and hence both these cases are
clearly distinguishable from the case at hand.
4 6 . In the case of Ajeet Gurjar(supra), this Court remitted back the matter to the
Sessions Court for complying with the requirements of Section 19(1) of the JJ Act.
However, in the present case, there is yet another hurdle which convinces us that it is
not a fit case warranting de novo proceedings against the Accused Appellant by taking
recourse to the provisions of the JJ Act. At the cost of repetition, it may be reiterated
that the charge sheet was filed against the Accused Appellant directly before the
Sessions Court (statedly designated as a Children's Court) and he was never presented
before the Juvenile Justice Board as per the mandate of the JJ Act.
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47. The Accused Appellant being a CICL was never subjected to preliminary assessment
by the Board so as to find out whether he should be tried as an adult. Directing such an
exercise at this stage would be sheer futility because now the Appellant is nearly 23
years of age.
48. At this stage, there remains no realistic possibility of finding out the mental and
physical capacity of the Accused Appellant to commit the offence or to assess his ability
to understand the consequences of the offence and circumstances in which he
committed the offence in the year 2016.
49. Since we have held that the entire proceedings taken against the Appellant right
from the stage of investigation and the completion of trial stand vitiated as having been
undertaken in gross violation of the mandatory requirements of the JJ Act, we need not
dwell into the merits of the matter or to reappreciate the evidence available on record
for finding out whether the prosecution has been able to prove the guilt of the Appellant
by reliable circumstantial evidence.
50. Thus, we are left with no option but to quash and set aside the impugned judgment
and direct that the Appellant who is presently lodged in jail shall be released forthwith,
if not required in any other case.
51. The appeal is allowed accordingly.
52. Pending application(s), if any, shall stand disposed of.
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 MANU/KE/0816/2017
Equivalent/Neutral Citation: 2018C riLJ1625, ILR2017(4)Kerala653, 2017 (3) KHC 656, 2017(3)KLT216

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 6156 of 2016
Decided On: 09.06.2017
Thresiamma Varkey Vs. State of Kerala
Hon'ble Judges/Coram:
Bhaskaran Pillai Sudheendra Kumar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: P.V. Anilkumar and S. Anitha, Advs.
For Respondents/Defendant: C.N. Prabhakaran, Public Prosecutor
* *Case Note:
Juvenile Justice (Care and Protection of Children) Act, 2015 (Central Act 2 of
2016) - Section 86--The forum for the trial of offence against children shall be
decided as provided under Section 86 of the New Act of 2015, irrespective of
whether the offence was committed prior to the enactment of the New Act or
not--The Children's Court can try the offences against children or for violation
of child right if and only if at least one of the offence alleged is punishable
with imprisonment for a term exceeding 7 years, irrespective of whether the
offences alleged are offences under the Indian Penal Code or any other law
for the time being in force--In respect of cases pending before the Children's
Court, unless at least one of the offences for which the accused is being tried
is punishable with imprisonment of more than 7 years, the Children's Court
cannot continue with the trial--Where the proceedings are concluded under
the Old Law, the same cannot be re-opened for the purpose of applying the
new procedure--Juvenile Justice (Care and Protection of Children) Act, 2000.
The Crl.M.C. is filed by the accused seeking to quash the final report and
further proceedings against him. The case of the prosecution is that the
petitioner employed a minor girl aged 13 years as maid servant for a meagre
amount of ' 100 per month. The prosecution would therefore allege that the
petitioner has committed the offence punishable under Section 26 of the
Juvenile Justice (Care and Protection of Children) Act, 2000. The police, after
completing the investigation, filed final report before the Magistrate Court
and the case was thereafter committed to the Sessions Court where the same
is pending. The petitioner would contend that in view of Section 86 of the
Juvenile Justice (Care and Protection of Children) Act, 2015, the offence
alleged against the petitioner is triable by a Judicial Magistrate of the First
Class and therefore the proceedings before the Additional Sessions Court was
not maintainable. The learned Single Judge, accepting the said contention,
but declining to quash the proceedings;
Held:
The upshot of the above discussion is that the forum for the trial of offences
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against children shall be decided as provided under Section 86 of the New
Act, irrespective of whether the offence was committed prior to the
enactment of the New Act or not. Therefore, the Children's Court can try the
offences against children or violation of child rights if and only if at least one
of the offences alleged is punishable with imprisonment for a term exceeding
seven years irrespective of whether the offences alleged are offences under
the Indian Penal Code or under any other law for the time being in force.
Therefore, in respect of cases which are presently pending before the
Children's Court, unless at least one of the offences for which the accused is
being tried is punishable with imprisonment of more than seven years, the
Children's Court cannot continue with the trial. However, in cases pending
before the Children's Court, where the proceedings are concluded under the
Old Law, the same cannot be re-opened for the purpose of applying the new
procedure. In view of the above discussion, the following directions are issued
for compliance by the Subordinate Courts:
(a) All cases pending before the Children's Court, where the proceedings are
not concluded shall be transferred to the Magistrate Court concerned as
provided under Section 228 (1)(a) Cr.P.C. for trial and disposal in accordance
with law, unless at least one of the offences for which the accused is being
tried is punishable with imprisonment of more than seven years.
(b) In cases where the proceedings are concluded under the Old Act, the same
cannot be re-opened for the purpose of complying with the new procedure.
(c) No case against the children or violation of child rights, shall be
committed to the Sessions Court for being tried before the Children's Court
unless at least one of the offences for which the accused is being tried is
punishable with imprisonment of more than seven years.
(d) If none of the offences for which the accused is being tried is punishable
with imprisonment of more than seven years, then, even if the case has been
already numbered as C.P., the trial can be conducted by the Magistrate Court
concerned by changing the nomenclature as C.C. or S.T. as the case may be,
as the change in nomenclature does not affect the substantive right of the
parties. [18] and [21]
Appeal against the Order in S.C. No. 50 of 2012 of Additional District and
Sessions Court I, Kottayam.
ORDER
Bhaskaran Pillai Sudheendra Kumar, J.
1 . The petitioner is the accused in S.C. No. 50 of 2012 on the files of the Additional
Sessions Court Kottayam. The petitioner has filed this Crl.M.C. praying for quashing the
final report and further proceedings in the above case.
2. The prosecution allegation is that on 5.6.2011, a minor girl aged 13 years was found
employed in the house of the petitioner as a made servant for a very meager wage of
Rs. 100/- per month.
3. On the basis of the said allegation, Crime No. 464/2011 was registered in Pala Police

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Station for the offence under Section 26 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (for short 'the Old Act'). After completing the investigation, the final
report was filed before the court by the Police for the above said offence. The learned
Magistrate committed the case to the Sessions Court and presently, the case is pending
as S.C. No. 50/2012 before the court below.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
5 . The learned counsel for the petitioner has argued that in view of Section 86 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the New Act'),
the offence alleged against the petitioner is triable by a Judicial Magistrate of First Class
and in the said circumstances, the proceedings before the Additional Sessions Court
cannot be sustained.
6. The offence in this case was allegedly committed on 05.06.2011. The New Act came
into force with effect from 15.01.2016., which was only subsequent to the commission
of the offence in this case.
7 . The New Act is intended to ensure proper care, protection, development, treatment
and social re-integration of children in different circumstances by adopting a child-
friendly approach keeping in view the best interest of the child in mind.
8. Section 25 of the Commissions for Protection of Child Rights Act, 2005 (for short 'the
Child Rights Act') provides for the constitution of Children's Courts for the purpose of
speedy trial of offences against children or violation of child rights. Accordingly,
Children's Courts were constituted by notification. After the constitution of the
Children's Courts, the offences against the children could be tried only by the Children's
Court. Therefore, all offences against the children under the Old Act used to be tried by
the Children's Courts.
9 . Under the New Act, three categories of offences are defined, which are "heinous
offences", "serious offences" and "petty offences". As per Section 2(33) of the New Act,
"heinous offences" include the offences for which the minimum punishment under the
Indian Penal Code (45 of 1860) or any other law for the time being in force, is
imprisonment for seven years or more. As per Section 2(54) of the New Act, "serious
offences" include the offences for which the punishment under the Indian Penal Code
(45 of 1860) or any other law for the time being in force, is imprisonment between
three and seven years. As per Section 2(45) of the New Act, "petty offences" include the
offences for which the maximum punishment under the Indian Penal Code (45 of 1860)
or any other law for the time being in force is imprisonment upto three years.
10. Section 86 of the New Act provides classification of the offences and designated
court, which is extracted hereunder:-
"86. Classification of offences and designated court.-(1) Where an offence
under this Act is punishable with imprisonment for a term more than seven
years, then, such offence shall be cognizable, non-bailable and triable by a
Children's Court.
(2) Where an offence under this Act is punishable with imprisonment for a term
of three years and above, but not more than seven years, then, such offence
shall be cognizable, non-bailable and triable by a Magistrate of First Class.
(3) Where an offence, under this Act, is punishable with imprisonment for less

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 than three years or with fine only, then, such offence shall be non-cognizable,
bailable and triable by any Magistrate."
11. Section 86 of the New Act makes it clear that if the offence under the New Act is
punishable with imprisonment for a term exceeding seven years, then that offence is
triable by a Children's Court. If the offence under the New Act is punishable with
imprisonment for a term of three years and above, but not more than seven years, then
the said offence shall be triable by a Magistrate of First Class. If the offence under the
New Act is punishable with imprisonment for less than three years or with fine only,
then the said offence shall be triable by any Magistrate.
1 2 . The above discussion would make it clear that "petty offences" and "serious
offences" are not to be tried before the Children's Court because the said offences are
not punishable with imprisonment for more than seven years. This would show that if
the offence alleged under the New Act is punishable with imprisonment for more than
seven years, then only that offence has to be tried before the Children's Court. The
Children's Courts were constituted as per the notification as provided under Section 25
of the Child Rights Act for the purpose of speedy trial of offences against children or for
violation of child rights. No forum was fixed for the trial in the Old Act. However, in
view of Section 25 of the Child Rights Act, the offences under the Old Act used to be
tried by the Children's Court.
13. It is very much clear on a simple and plain reading of the definition that "petty
offences", "serious offences" and "heinous offences" under the New Act would include
offences under the Indian Penal Code or any other law for the time being in force.
Therefore, it is manifest that even if the offence alleged against the children is an
offence under the Indian Penal Code or under any other law, the said offence would fall
within any one of the three categories of offences under the New Act, namely, "petty
offences" or "serious offences" or "heinous offences", depending upon the sentence
provided for the said offence. Therefore, the trial of offences against children has to be
conducted as provided under Section 86 of the New Act, irrespective of whether the
offence is under the Indian Penal Code or under any other law for the time being in
force.
14. Now the question to be considered is as to whether the offences committed under
the Old Act are to be tried before the Children's Court as is being followed or before the
Magistrate court as provided under Section 86 of the New Act.
15. In New Indian Insurance Co. Ltd. v. Shanti Misra [MANU/SC/0547/1975 : (1975) 2
SCC 840], the Honourable Apex Court was dealing with a case of payment of
compensation under the Motor Vehicles Act. The victim of the accident passed away
before the constitution of the Claims Tribunal under the Motor Vehicles Act 1939 as
amended. The legal heirs of the deceased filed a claim petition for payment of
compensation before the Tribunal after the Tribunal was established. The question that
arose for consideration was whether the claim petition was maintainable having regard
to the fact that the cause of action had arisen prior to the change of the forum for trial
of a claim for payment of compensation. The Apex Court held that the change of law
was merely a change of forum i.e., a change adjectival or procedural law and not of a
substantial law and such a change of law would operate retrospectively even if the
cause of action or right of action had accrued prior to the change of forum. Therefore,
the Apex Court held that the claimant had rightly approached the forum as per the
amended law. It was further held in Shanti Misra (supra) that the claimant had a 'vested
right of action' but not a 'vested right of forum'. The Apex Court further held in Shanti

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Misra (supra) that unless by express words the new forum is available only to causes of
action arising after the creation of the forum, the general rule is to make it
retrospective.
1 6 . The Apex Court in Hitendra Vishnu Thakur v. State of Maharashtra
[MANU/SC/0526/1994 : (1994) 4 SCC 602] referring to clause (bb) of Section 20(4) of
the Terrorist and Disruptive Activities (Prevention) Act 1987, introduced by an
Amendment Act governing to Section 167(2) Cr.P.C. in relation to TADA, held thus:-
"i. A statute which affects substantive rights is presumed to be prospective in
operation unless made retrospective, either expressly or by necessary
intendment, whereas a statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to be retrospective in its
application, should not be given an extended meaning and should be strictly
confined to its clearly defined limits,
ii. Law relating to forum and limitation is procedural in nature, whereas law
relating to right of action and right of appeal even though remedial is
substantive in nature,
iii. Every litigant has a vested right in substantive law but no such right exists
in procedural law.
iv. A procedural statute should not generally speaking be applied
retrospectively where the result would be to create new disabilities or
obligations or to impose new duties in respect of transactions already
accomplished.
v. A statute which not only changes the procedure but also creates new rights
and liabilities shall be construed to be prospective in operation, unless
otherwise provided, either expressly or by necessary implication."
It is clear from the ratio in Hitendra (supra) that the law relating to Forum is procedure
in nature and the litigant has no vested right in procedural law.
17. The above proposition of law makes it clear that no party has vested right to a
particular proceeding or to a particular Forum and it is well settled that the procedural
laws are retrospective unless the legislature expressly states to the contrary.
1 8 . The upshot of the above discussion is that the forum for the trial of offences
against children shall be decided as provided under Section 86 of the New Act,
irrespective of whether the offence was committed prior to the enactment of the New
Act or not. Therefore, the Children's Court can try the offences against children or
violation of child rights if and only if at least one of the offences alleged is punishable
with imprisonment for a term exceeding seven years irrespective of whether the
offences alleged are offences under the Indian Penal Code or under any other law for
the time being in force. Therefore, in respect of cases which are presently pending
before the Children's Court, unless atleast one of the offences for which the accused is
being tried is punishable with imprisonment of more than seven years, the Children's
Court cannot continue with the trial. However, in cases pending before the Children's
Court, where the proceedings are concluded under the Old Law, the same cannot be re-
opened for the purpose of applying the new procedure.
19. In Nani Gopal Mitra v. State of Bihar (MANU/SC/0276/1968 : AIR 1970 SC 1636)

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the Hon'ble Apex Court declared that amendments relating to procedure operated
retrospectively subject to the exception that whatever be the procedure which was
correctly adopted and proceedings concluded under the old law, the same cannot be
reopened for the purpose of applying the new procedure.
20. It is therefore clear that as a general rule, the amended law relating to procedure
operates retrospectively. Under the Old Act, no offence is punishable with imprisonment
exceeding seven years. Therefore, as per Section 86 of the New Act, the said offences
are not triable by the children's court, but are triable by the Magistrate court concerned.
21. In view of the above discussion, the following directions are issued for compliance
by the Subordinate Courts:-
a) AII cases pending before the Children's Court, where the proceedings are not
concluded shall be transferred to the Magistrate Court concerned as provided
under Section 228(1)(a) Cr.P.C. for trial and disposal in accordance with law,
unless atleast one of the offences for which the accused is being tried is
punishable with imprisonment of more than seven years.
b) In cases where the proceedings are concluded under the Old Act, the same
cannot be re-opened for the purpose of complying with the new procedure.
c) No case against the children or violation of child rights, shall be committed
to the Sessions Court for being tried before the Children's Court unless atleast
one of the offences for which the accused is being tried is punishable with
imprisonment of more than seven years.
d) If none of the offences for which the accused is being tried is punishable
with imprisonment of more than seven years, then, even if the case has been
already numbered as C.P., the trial can be conducted by the Magistrate Court
concerned by changing the nomenclature as C.C. or ST. as the case may be, as
the change in nomenclature does not affect the substantive right of the parties.
2 2 . The learned counsel for the petitioner has also advanced various grounds for
quashing the proceedings against the petitioner. The offence alleged in this case is
punishable with imprisonment for a term which may extend to three years and with fine.
Therefore, the above case is a warrant trial case and hence the petitioner is having right
and opportunity to raise all his contentions before the trial court and plead for discharge
under Section 239 Cr.P.C. For the said reason, I am not inclined to entertain the prayer
of the petitioner to quash the final report and further proceedings against the petitioner
in the above case. The above view is supported by the decision of the Apex Court in
Umesh v. State of Kerala [MANU/SC/0136/2017 : 2017 (3) SCC 112].
2 3 . The above discussion would make it clear that the Children's Court where the
present case is pending is not having jurisdiction to try the offence against the
petitioner. Therefore, the Children's Court concerned is directed to transfer S.C. No.
50/2012 to the court of the Judicial Magistrate of First Class, Pala or to the Chief
Judicial Magistrate Court, Kottayam for trial and disposal in accordance with law as
provided under Section 228(1)(a) Cr.P.C., as the proceedings before the Children's
Court concerned are not yet concluded.
In the result, this Cr.M.C. stands disposed of as above.

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*A reproduction from ILR (Kerala Series)
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/1086/2012
Equivalent/Neutral Citation: 2013(121)AIC 40, AIR2013SC 415, 2013(1) AKR 605, 2013(1)ALD162(SC ), 2013(1)ALLMR(SC )409, 2013 (96) ALR
303, 2013(1)ALT18, 2013 1 AWC 193SC , 2013(1)BLJ102, 2013(1)BomC R485, 2013 (1) C C C 57 , 2013(2)C DR448(SC ), 2013(2)C HN54,
116(2013)C LT35, 2013(1)C TC 113, I(2013)DMC 91SC , 2012(2)HLR682, 2012 INSC 578, JT2012(12)SC 358, 2013-1-LW289, (2013)1MLJ527(SC ),
2013(I)OLR905, 2013(1)RC R(C ivil)883, 2012(12)SC ALE98, (2013)2SC C 114, [2012]11SC R256, (2013)2WBLR(SC )737

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8927-8928 of 2012 (Arising out of SLP (C) Nos. 37449-37450 of 2012
and Arising out of C.C. Nos. 5877-5878/2012)
Decided On: 11.12.2012
U. Sree Vs. U. Srinivas
Hon'ble Judges/Coram:
K.S. Panicker Radhakrishnan and Dipak Misra, JJ.
Case Note:
Hindu Marriage Act, 1955 - Secs. 13(1)(i-a), 26 and 27 read with Sec. 7 of the
Family Courts Act, 1984 and Sec. 9 of the H.M. Act, 1955 - Husbands prayer
for dissolution of marriage - Wife's prayer for restitution of conjugal rights -
Family Judge dismissed the application for restitution of conjugal rights and
allowed the petition for dissolution of marriage and directed for payment of
Rs. 5 lacs each to the wife and minor son towards permanent alimony - On
appeal, High Court apart from concurring with the grant of permanent
alimony, directed the respondent-husband to pay a sum of maintenance
amounting to Rs. 12,500/- to the appellant-wife and her son - Appeal by
Special leave - Held, husband has proved his case of mental cruelty which was
the foundation for seeking divorce - Respondent husband has rightly been
granted a decree of divorce - Wife is entitled to permanent alimony for her
sustenance - While granting permanent alimony, no arithmetic formula can be
adopted as there cannot be mathematical exactitude - It shall depend upon
the status of the parties, their respective social needs, the financial capacity
of the husband and other obligations - In the present facts of case permanent
alimony of Rs. 50 lacs fixed - Directions issued.
Case Category:
FAMILY LAW MATTER - DIVORCE MATTERS
JUDGMENT
Dipak Misra, J.
1. Leave granted.
2. The Appellant-wife instituted F.C.O.P. No. 568 of 1997 under Section 9 of the Hindu
Marriage Act, 1955 (for brevity 'the Act') in the Principal Family Court, Chennai for
restitution of conjugal rights. The Respondent-husband filed F.C.O.P. No. 805 of 1998
under Sections 13(1)(i-a), 26 and 27 of the Act read with Section 7 of the Family Courts
Act, 1984 praying for dissolution of marriage, custody of the child and return of
jewellery and other items. The learned Family Judge jointly tried both the cases and, on
the basis of the evidence brought on record, dismissed the application for restitution of
conjugal rights preferred by the wife and allowed the petition of the husband for
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dissolution of marriage and held that the child would remain in the custody of the
mother on the principle that welfare of the child is paramount, and further the husband
was not entitled to return of jewels or any other item from the wife in the absence of
any cogent evidence in that regard. The learned Family Judge, while passing the decree
for dissolution of marriage, directed to pay permanent alimony of Rs. 5 lacs each to the
wife and her minor son within a month.
3 . Being dissatisfied by the common order, the Appellant-wife preferred C.M.A. No.
1656 of 2010 and C.M.A. No. 1657 of 2010 in the High Court of Judicature at Madras
and the Division Bench concurred with the conclusion as regards the decree of
dissolution of marriage as a consequence of which both the appeals had to meet the
fate of dismissal. However, the Bench, apart from concurring with the grant of
permanent alimony, directed the Respondent-husband to pay a sum of maintenance
amounting to Rs. 12,500/- to the Appellant-wife and her son from the date of order
passed by the Chief Metropolitan Magistrate at Hyderabad till the date of the order
passed by the High Court. Hence, the present two appeals have been preferred by
special leave assailing the common judgment passed by the High Court in both the
appeals.
4. The facts requisite to be stated for adjudication of the appeals are that the marriage
between the Appellant and the Respondent was solemnized on 19.11.1994 at Tirupathi
according to Hindu rites and customs. After entering into wedlock, they lived together at
Vadapalani, Chennai. As tradition would warrant, she went to her parental home for
delivery where a male child was born on 30th of May, 1995. The Respondent celebrated
the child's birth in his in-law's house and thereafter, the wife stayed with her parents
for sometime. She returned to Chennai on 4.10.1995 and there she lived with her
husband till 3.1.1996. The case of the wife in her application for restitution of marriage
is that on 3.1.1996, her father-in-law, without her consent, took her to her parental
home and, thereafter, the husband without any justifiable reason withdrew from her
society. All efforts made by her as well as by her parents to discuss with her husband
and his family members to find out a solution went in vain. In this backdrop, a prayer
was made for restitution of conjugal rights.
5. The husband resisted the aforesaid stand contending, inter alia, that there was total
incompatibility in the marital relationship inasmuch as she found fault with his life style,
his daily routine, his likes and dislikes and picked up quarrels on trivial issues. She
threw tantrums only with the exclusive purpose that she should dominate the
relationship and have her own way. At the time of practising and learning music in the
presence of his father, who was also his "Guru", she hurled abuses and screamed which
invariably followed with arguments and quarrels. Though she was expected, as per the
customs, to show respect towards elders and to the senior artists, yet, throwing all
traditional values to the wind, she would walk away by creating a scene to his utter
embarrassment. His public image was totally ruined and reputation was mutilated. It
was also alleged that she called her parents and threatened to initiate proceedings
under the Indian Penal Code, 1860 with the help of her father, who was an I.A.S. officer
in the Vigilance Department in the Government of Andhra Pradesh. With the efflux of
time, the discord aggravated and the wife became more aggressive and did not allow
her husband to go near her or the child. On 3.1.1996, when the wife expressed her
desire to go to her parental home, he could not dare to object and she went with costly
gifts received by him in India and abroad in recognition of his performance in music.
Regard being had to the physical safety of the wife and the child, he requested his
father to escort them to Hyderabad. While she was at Hyderabad, she spread rumours
among the relatives and friends pertaining to his fidelity, character and habits. It was
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further asserted by the husband that she had filed the petition only to harass him and,
in fact, the manner in which he had been treated clearly exhibited mental cruelty and,
therefore, the said relief should not be granted. It was averred that in view of the
treatment meted out to the husband, dissolution of marriage was the only solution and
not restitution of conjugal rights.
6 . The Respondent, in his petition for divorce, pleaded that after abandoning formal
education, he pursued his career in music treating it as a concept of 'bhakti' or
devotion. He had to continue his 'sadhana' as a daily routine under the guidance of his
father as it was necessary to understand the nuances and the subtleties of music which
could only be gathered by experience and acquisition of knowledge at the feet of a
"guru" and also to keep alive "the Guru-Sishya Parampara". The aforesaid aspect of his
life was not liked by his wife and she always interrupted hurling abuses at him. Despite
his best efforts to make his wife understand the family tradition and show reverence to
the seniors in the sphere of music, she remained obstinate in her attitude and chose to
walk away causing him not only embarrassment in public but also humiliation which
affected his reputation and self respect. That apart, whenever the husband visited her at
the parental home, he was deprived of conjugal rights and physically prevented from
playing with the child. In spite of his sacrifice and efforts to adjust with her mental
attitude, she remained adamant and her behavioural pattern remained painfully
consistent. Gradually, her behaviour became very cruel and, eventually, he was
compelled to file a case for judicial separation to which, as a counterblast, she filed a
case for restitution of conjugal rights. She had communicated with her friends that she
would like to see her husband behind bars on the ground of dowry harassment. She had
also threatened that if he took part in any musical concert at Hyderabad, his life shall be
endangered. Put in such a situation, left with no other alternative, he was compelled to
file a petition for dissolution of marriage.
7. As the factual narration would unfurl, the wife in the written statement asserted that
she was aware of the importance of music, its traditional values and clearly understood
the devotion and dedication as she herself was a 'Veena' player and because of her
sacrifice, her husband had gained reputation and popularity which also enhanced his
financial status, but, with the rise, he failed to perform his duties as a husband. She
denied the interruption in the practice sessions and controverted the factum of
maltreatment. It was averred that as the husband had gained reputation, his parents
and other relatives thought of a second marriage so that he could get enormous dowry.
She denied the scandalous allegations and stated that she was proud of her husband's
accomplishments. She justified her filing of petition before the Chief Metropolitan
Magistrate for grant of maintenance as he was absolutely careless and negligent to look
after her and the child. It was further pleaded that the grounds mentioned in the
petition were vexatious and frivolous and, therefore, there was no justification for grant
of a decree of divorce.
8 . The learned Family Judge framed seven issues and, considering the oral and
documentary evidence brought on record, came to hold that the wife had treated the
husband with cruelty; that she had not taken any steps for re-union and had deserted
him for thirteen years without any valid reason and, hence, the husband was entitled for
a decree of divorce and she was not entitled to have a decree for restitution of conjugal
rights. The learned Family Judge directed that the custody of the child should remain
with the mother and the husband had miserably failed to make out a case for return of
jewels and other items. He granted permanent alimony as stated earlier.
9 . Being grieved by the aforesaid decision of the learned Family Judge, the wife
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preferred two appeals. On behalf of the Appellant-wife, it was urged before the High
court that the judgment and decree passed by the Family Court regarding grant of
divorce was passed on assumptions and presumptions; that she had suffered immense
humiliation and hardship at the hands of the family members of the husband but the
Family Court did not appreciate the said facet in proper perspective; that the finding
relating to desertion by the wife was contrary to the evidence on record and, in fact, it
was the case that the husband had left the wife in the lurch at her parental home and
did not think for a moment to bring her back; that the allegation with regard to the
interruption in the music learning sessions and her dislike of her husband had been
deliberately stated to make out a case of mental cruelty; that certain documents had
been placed reliance upon by the learned Family Judge though they were not admissible
in evidence and further the documents produced by the wife had not been properly
appreciated and dealt with; and that the court below would have been well advised, in
the obtaining factual matrix, to direct restitution of conjugal rights. It is worth noting
that alternatively it was urged that the trial Court had committed an error in granting
permanent alimony of Rs. 10 lacs in toto, regard being had to the income of the
husband.
10. In appeal, the High Court, after noting the respective contentions advanced by the
learned Counsel for the parties, proceeded to appreciate the essential ingredients which
are necessary to be established to sustain a petition under Section 9 of the Act. After
referring to certain decisions in the field and the concept of mental cruelty as stated in
Halsbury's Laws of England, 4th Edn., Vol. 13, para 623 and American Jurisprudence
and the dictum laid down in N.G. Dastane v. S. Dastane MANU/SC/0330/1975 :
(1975) 2 SCC 326, Rajani v. Subramaniam AIR 1990 Kerala 1, Parveen Mehta v. Inderjit
Mehta MANU/SC/0582/2002 : (2002) 5 SCC 706, Gananath Pattnaik v. State of Orissa
MANU/SC/0082/2002 : (2002) 2 SCC 619, Shobha Rani v. Madhukar Reddi
MANU/SC/0419/1987 : (1988) 1 SCC 105, Manisha Tyagi v. Deepak Kumar
MANU/SC/0101/2010 : (2010) 4 SCC 339, Sujata Uday Patil v. Uday Madhukar Patil
MANU/SC/0033/2007 : (2006) 13 SCC 272, Chanderkala Trivedi v. Dr. S.P. Trivedi
MANU/SC/0563/1993 : (1993) 4 SCC 232 and Pranay Majumdar v. Bina Majumdar
MANU/SC/7046/2007 : (2007) 9 SCC 217, the High Court came to hold that the
material brought on record showed that the wife had gone to the parental home on
3.1.1996 and made no efforts to get reunited with the husband and, as per the evidence
on record, she had admitted in the testimony recorded in O.P. No. 568 of 1995 that the
relations between her and her husband were cordial till she left the matrimonial home.
The High Court found that her depositions were contradictory inasmuch as on one hand
she had stated that she had been ill-treated and on the other that there was cordial
relationship. As is noticeable, the High Court referred to the xerox copy of the letter
Exhibit R-8 dated 18.10.1995 written in her handwriting to her parents and observed
that when the said letter was summoned from her father she stated that there was no
such letter and on that ground the admissibility was called in question. The High Court
opined that when the efforts were made to get the primary evidence and it could not be
obtained, the secondary evidence could be adduced and that would be admissible under
Section 65 of the Evidence Act. Be it noted, the English translation of the said letter was
marked as Exhibit R-9 which indicated that the wife had clearly stated that she had
spoken ill of her mother-in-law and Ors. and had expressed her desire to seek divorce
as she could not stay any longer in the matrimonial home. It was observed by the
Bench that the conduct of the wife clearly established desertion and her behaviourial
pattern exhibited mental cruelty meted out to the husband. The High Court also took
note of the fact that a stage had reached where it had become well nigh impossible for
the couple to live together. Regard being had to the totality of the circumstances, the
High Court gave the stamp of approval to the common judgment and decree passed by
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the learned Family Court.
11. We have heard Mrs. K. Sarada Devi, learned Counsel for the Appellant, and Mr. K.
Ramamoorthy, learned senior Counsel for the Respondent. It is contended by Mrs.
Sarada Devi that the learned Family Judge as well as the High Court had failed to
appreciate that neither mental cruelty nor desertion had been established as per the
law. It is contended by her that Exh. R-8 and R-9 were not admissible in evidence
inasmuch as they could not be treated as secondary evidence as envisaged under
Section 65 of the Evidence Act. It is further urged that the whole decision for granting
divorce and denying restitution of conjugal rights has been based regard being had to
the total break down of marriage but the said ground is not a legally permissible one to
grant divorce.
1 2 . Mr. K. Ramamoorthy, learned senior Counsel appearing for the Respondent, per
contra, would submit that the said observation is one of the facets, but the High Court
has, after due deliberations, returned findings relating to cruelty and desertion and the
same being founded on proper appreciation of the material on record, this Court should
not interfere in exercise of appeal entertained by grant of leave under Section 136 of
the Constitution of India.
13. At this juncture, we may note with profit that as a matter of fact, the High Court has
observed that it has become well nigh impossible for the husband and the wife to live
together and the emotional bond between the parties is dead for all purposes. We have
noted this aspect for completeness, but we will not address the said facet and will
restrict our delineation only towards the justifiability of the conclusions pertaining to
mental cruelty and desertion.
1 4 . Before we dwell upon the tenability of the conclusions of desertion and mental
cruelty, we think it condign to deal with the submission whether the photostat copy of
the letter alleged to have been written by the wife to her father could have been
admitted as secondary evidence. As the evidence on record would show, the said letter
was summoned from the father who had disputed its existence. The learned Family
Court Judge as well as the High Court has opined that when the person is in possession
of the document but has not produced the same, it can be regarded as a proper
foundation to lead secondary evidence. In this context, we may usefully refer to the
decision in Ashok Dulichand v. Madahavlal Dube MANU/SC/0278/1975 : (1975) 4 SCC
664 wherein it has been held that according to Clause (a) of Section 65 of the Indian
Evidence Act, secondary evidence may be given of the existence, condition or contents
of a document when the original is shown or appears to be in the possession or power
of the person against whom the document is sought to be proved, or of any person out
of reach of, or not subject to, the process of the court, or of any person legally bound
to produce it, and when, after the notice mentioned in Section 66, such person does not
produce it. Thereafter, the Court addressed to the facts of the case and opined thus:
In order to bring his case within the purview of Clause (a) of Section 65, the
Appellant filed applications on July 4, 1973, before Respondent 1 was examined
as a witness, praying that the said Respondent be ordered to produce the
original manuscript of which, according to the Appellant, he had filed photostat
copy. Prayer was also made by the Appellant that in case Respondent 1 denied
that the said manuscript had been written by him, the photostat copy might be
got examined from a handwriting expert. The Appellant also filed affidavit in
support of his applications. It was, however, nowhere stated in the affidavit
that the original document of which the photostat copy had been filed by the

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 Appellant was in the possession of Respondent 1. There was also no other
material on the record to indicate that the original document was in the
possession of Respondent 1. The Appellant further failed to explain as to what
were the circumstances under which the photostat copy was prepared and who
was in possession of the original document at the time its photograph was
taken. Respondent 1 in his affidavit denied being in possession of or having
anything to do with such a document.
Be it noted, in this backdrop, the High Court had recorded a conclusion that no
foundation had been laid by the Appellant for leading secondary evidence in the shape
of the photostat copy and this Court did not perceive any error in the said analysis.
15. In J. Yashoda v. K. Shobha Rani MANU/SC/7314/2007 : (2007) 5 SCC 730, after
analyzing the language employed in Sections 63 and 65 (a), a two-Judge Bench held as
follows:
Section 65, however permits secondary evidence to be given of the existence,
condition or contents of documents under the circumstances mentioned. The
conditions laid down in the said section must be fulfilled before secondary
evidence can be admitted. Secondary evidence of the contents of a document
cannot be admitted without non-production of the original being first accounted
for in such a manner as to bring it within one or other of the cases provided for
in the section.
16. In M. Chandra v. M. Thangamuthu and Ors. MANU/SC/0721/2010 : (2010) 9 SCC
712, It has been held as follows:
It is true that a party who wishes to rely upon the contents of a document must
adduce primary evidence of the contents, and only in the exceptional cases will
secondary evidence be admissible. However, if secondary evidence is
admissible, it may be adduced in any form in which it may be available,
whether by production of a copy, duplicate copy of a copy, by oral evidence of
the contents or in another form. The secondary evidence must be authenticated
by foundational evidence that the alleged copy is in fact a true copy of the
original. It should be emphasised that the exceptions to the rule requiring
primary evidence are designed to provide relief in a case where a party is
genuinely unable to produce the original through no fault of that party.
17. Recently, in H. Siddiqui (Dead) by L.Rs. v. A. Ramalingam MANU/SC/0174/2011 :
(2011) 4 SCC 240, while dealing with Section 65 of the Evidence Act, this Court opined
though the said provision permits the parties to adduce secondary evidence, yet such a
course is subject to a large number of limitations. In a case where the original
documents are not produced at any time, nor has any factual foundation been laid for
giving secondary evidence, it is not permissible for the court to allow a party to adduce
secondary evidence. Thus, secondary evidence relating to the contents of a document is
inadmissible, until the non-production of the original is accounted for, so as to bring it
within one or other of the cases provided for in the section. The secondary evidence
must be authenticated by foundational evidence that the alleged copy is in fact a true
copy of the original. It has been further held that mere admission of a document in
evidence does not amount to its proof. Therefore, it is the obligation of the Court to
decide the question of admissibility of a document in secondary evidence before making
endorsement thereon.
18. In the case at hand, the learned Family Judge has really not discussed anything
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relating to foundational evidence. The High Court has only mentioned that when the
letter was summoned and there was a denial, the secondary evidence is admissible. In
our considered opinion, such a view is neither legally sound nor in consonance with the
pronouncements of this Court and, accordingly, we have no hesitation in dislodging the
finding on that score.
19. The next facet which is to be dwelled upon is whether the Appellant had treated her
husband with mental cruelty. The legal sustainability of the said conclusion has to be
tested keeping the photostat copy of the letter out of consideration. At the very outset,
we may state that there is no cavil over the proposition as to what cruelty includes.
Regard being had to the same, we shall refer to certain authorities.
20. In Samar Ghosh v. Jaya Ghosh MANU/SC/1386/2007 : (2007) 4 SCC 511, a three-
Judge Bench, after dealing with the concept of mental cruelty, has observed thus:
99....The human mind is extremely complex and human behaviour is equally
complicated. Similarly human ingenuity has no bound, therefore, to assimilate
the entire human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in the other case. The concept of
cruelty differs from person to person depending upon his upbringing, level of
sensitivity, educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is
bound to change with the passage of time, impact of modern culture through
print and electronic media and value system, etc. etc. What may be mental
cruelty now may not remain a mental cruelty after a passage of time or vice
versa. There can never be any straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial matters. The prudent and appropriate
way to adjudicate the case would be to evaluate it on its peculiar facts and
circumstances....
21. In Ravi Kumar v. Julmidevi MANU/SC/0102/2010 : (2010) 4 SCC 476, this Court
has expressed thus:
In matrimonial relationship, cruelty would obviously mean absence of mutual
respect and understanding between the spouses which embitters the
relationship and often leads to various outbursts of behaviour which can be
termed as cruelty. Sometime cruelty in a matrimonial relationship may take the
form of violence, sometime it may take a different form. At times, it may be
just an attitude or an approach. Silence in some situations may amount to
cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its
categories can never be closed. Whether the husband is cruel to his wife or the
wife is cruel to her husband has to be ascertained and judged by taking into
account the entire facts and circumstances of the given case and not by any
predetermined rigid formula. Cruelty in matrimonial cases can be of infinite
variety--it may be subtle or even brutal and may be by gestures and words.
2 2 . Recently, this Court, in Vishwanath Agrawal, s/o Sitaram Agrawal v. Sarla
Vishwanath Agrawal MANU/SC/0513/2012 : (2012) 7 SCC 288, while dealing with the
conception of cruelty, has stated that it has inseparable nexus with human conduct or
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human behaviour. It is always dependent upon the social strata or the milieu to which
the parties belong, their ways of life, relationship, temperament and emotions that have
been conditioned by the social status. The two-Judge Bench referred to the decisions in
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasikhan MANU/SC/0682/1981 :
(1981) 4 SCC 250, Shobha Rani (supra), Sheldon v. Sheldon (1966) 2 WLR 993, V.
Bhagat v. D. Bhagat MANU/SC/0155/1994 : (1994) 1 SCC 337, Parveen Mehta (supra),
Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate MANU/SC/0316/2003 :
(2003) 6 SCC 334, A. Jayachandra v. Aneel Kaur MANU/SC/1023/2004 : (2005) 2 SCC
22, Vinita Saxena v. Pankaj Pandit MANU/SC/4705/2008 : (2009) 1 SCC 422, Samar
Ghosh (supra) and Suman Kapur v. Sudhir Kapur MANU/SC/4705/2008 : (2009) 1
SCC 422, and opined that when the evidence brought on record clearly establish a
sustained attitude of causing humiliation and calculated torture on the part of the wife
to make the life of the husband miserable, it would amount to mental cruelty. Emphasis
was laid on the behavioral pattern of the wife whereby a dent is created in the
reputation of the husband, regard being had to the fact that reputation is the salt of life.
2 3 . In the case at hand, the husband has clearly deposed about the constant and
consistent ill-treatment meted out to him by the wife inasmuch as she had shown her
immense dislike to his "sadhna" in music and had exhibited total indifference and, in a
way, contempt to the tradition of teacher and disciple. It has graphically been
demonstrated that she had not shown the slightest concern for the public image of her
husband on many an occasion by putting him in a situation of embarrassment leading to
humiliation. She has made wild allegations about the conspiracy in the family of her
husband to get him re-married for the greed of dowry and there is no iota of evidence
on record to substantiate the same. This, in fact, is an aspersion not only on the
character of the husband but also a maladroit effort to malign the reputation of the
family. The learned Family Judge as well as the High Court has clearly analysed the
evidence and recorded a finding that the wife had treated the husband with mental
cruelty. True it is, there is some reference in that regard to the photostat copy of the
letter which we have not accepted as admissible in evidence but the other evidence
brought on record clearly support the findings recorded by the learned Family Judge
and the High Court and the said finding remains in the realm of fact.
24. This Court, in State of U.P. v. Babul Nath MANU/SC/0837/1994 : (1994) 6 SCC
29, while considering the scope of Article 136 as to when this Court is entitled to upset
a finding of fact, has observed thus:
5. At the very outset we may mention that in an appeal under Article 136 of the
Constitution this Court does not normally reappraise the evidence by itself and
go into the question of credibility of the witnesses and the assessment of the
evidence by the High Court is accepted by the Supreme Court as final unless, of
course, the appreciation of evidence and finding is vitiated by any error of law
of procedure or found contrary to the principles of natural justice, errors of
record and misreading of the evidence, or where the conclusions of the High
Court are manifestly perverse and unsupportable from the evidence on record.
2 5 . In Bharat Coking Coal Ltd. v. Karam Chand Thapar and Bros. Pvt. Ltd.
MANU/SC/0991/2002 : (2003) 1 SCC 6, this Court opined that the jurisprudence under
Article 136 stands out to be extremely wide but that does not, however, warrant
intervention in a situation having concurrent set of facts and an appeal therefrom on the
factual issue. The article has been engrafted by the founding fathers of the Constitution
for the purposes of avoiding mischief and injustice on the wrong assumption of law.
The justice delivery system of the country prompts this Court to interfere under Article
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136 of the Constitution when the need of the society stands established and the
judgment, if left outstanding, would not only create prejudice but would also have an
otherwise adverse effect on the society. Further elaborating, the Bench ruled thus:
The jurisdiction under Article 136 stands out to be extremely wide but that does
not, however, warrant intervention having concurrent set of facts and an appeal
therefrom on the factual issue. The article has been engrafted by the founding
fathers of the Constitution for the purposes of avoiding mischief of injustice on
the wrong assumption of law. The justice delivery system of the country
prompts this Court to interfere under Article 136 of the Constitution when the
need of the society stands established and the judgment, if left outstanding,
would not only create prejudice but would have an otherwise adverse effect on
to the society--it is this solemn objective of administration of justice with which
the Constitution-makers thought it prudent to confer such a power on to the
Apex Court of the country. It is the final arbiter but only when the dispute
needs to be settled by the Apex Court so as to avoid injustice and infraction of
law.
26. In Ganga Kumar Srivastava v. State of Bihar MANU/SC/0420/2005 : (2005) 6 SCC
211, after referring to the earlier authorities, this Court culled out certain principles
which would invite exercise of power of this Court under Article 136 of the Constitution:
(i) The powers of this Court under Article 136 of the Constitution are very wide
but in criminal appeals this Court does not interfere with the concurrent
findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given by the
High Court, if the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very
exceptional circumstances as and when a question of law of general public
importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of the test of
reliability and acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of
law of procedure or found contrary to the principles of natural justice, errors of
record and misreading of the evidence, or where the conclusions of the High
Court are manifestly perverse and unsupportable from the evidence on record.
27. In Dubaria v. Har Prasad and Anr. MANU/SC/1638/2009 : (2009) 9 SCC 346, it
has been held that when there is infirmity in the decision because of excluding, ignoring
and overlooking the abundant materials and the evidence, if considered in proper
perspective, would have led to conclusion contrary to the one taken by both the High
Court as well as the fora below, it would be open to this Court to interfere with the
concurrent findings of fact.
28. Tested on the touchstone of the aforesaid principles, we have no trace of doubt that
the finding returned by the Family Judge which has been given the stamp of approval by
the High Court relating to mental cruelty cannot be said to be in ignorance of material
evidence or exclusion of pertaining materials or based on perverse reasoning. In our
view, the conclusion on that score clearly rests on proper appreciation of facts and,
hence, we concur with the same.
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29. Presently, we shall advert to the finding recorded by the learned Family Judge and
the High Court relating to desertion by the wife. As the factual matrix would reveal,
both the Courts have proceeded on the base that the wife had not endeavored to reunite
herself with the husband and there had long lapse of time since they had lived together
as husband and wife. On the aforesaid foundation, the conclusion has been drawn that
there is an animus descerendi on the part of the wife. To test the tenability of the said
conclusion, we have perused the petition for divorce from which it is evident that there
is no pleading with regard to desertion. It needs no special emphasis to state that a
specific case for desertion has to be pleaded. It is also interesting to note that the
petition was not filed seeking divorce on the ground of desertion but singularly on
cruelty. In the absence of a prayer in that regard, we are constrained to hold that the
conclusion arrived at as regards desertion by the learned Family Judge which has been
concurred with by the High Court is absolutely erroneous and, accordingly, we overturn
the same.
30. From the foregoing analysis, it is established that the husband has proved his case
of mental cruelty which was the foundation for seeking divorce. Therefore, despite
dislodging the finding of desertion, we conclude and hold that the Respondent husband
has rightly been granted a decree of divorce.
31. The next issue that emerges for consideration pertains to the grant of permanent
alimony. It is noticeable that the wife had filed a case for grant of maintenance and
residence under the Hindu Adoptions and Maintenance Act, 1956 at Hyderabad. The
High Court has granted Rs. 12,500/- per month from the date of filing of the petition for
maintenance and Rs. 5 Lacs each to the wife and son towards permanent alimony.
Whether the High Court should have granted Rs. 12500/- as maintenance need not be
addressed by us inasmuch as we are inclined to deal with this issue of grant of
permanent alimony in a different backdrop. As is evincible from the orders of this Court
when the matters were listed on 9.4.2012, the Court had taken note of the fact that the
wife and son have been living separately at Hyderabad for about 16 years and, in that
context, the following order was passed:
Looking to the financial and social status of the parties, we request the learned
senior Counsel appearing for the Respondent to ask his client to arrange for one
flat for the Petitioner and their so that they can live in the said flat comfortably.
On this suggestion, being given by the Court, learned senior Counsel appearing
for the Respondent prayed for time to seek instructions.
32. On 30.4.2012, the following order came to be passed:
As per the Order passed by this Court on 09.04.2012, learned senior Counsel
appearing for the Respondent-husband informed that Respondent is ready and
willing to buy a flat for the Petitioner in Hyderabad, so that she will have a roof
over her head for all the times to come.
However, the details of the same are required to be worked out.
It is, therefore, desirable that both the parties should remain present in this
Court on 10.07.2012.
Without prejudice, a sum of Rs. 10 lakhs by way of Demand Draft is being paid
by the Respondent-husband to Petitioner-wife. Other Rs. 10 lakhs is in deposit
with the Family Court at Chennai. Petitioner will be at liberty to withdraw this
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 amount.
33. We have reproduced the aforesaid orders to highlight that the husband had agreed
to buy a flat at Hyderabad. However, when the matter was listed thereafter, there was
disagreement with regard to the locality of the flat arranged by the husband and,
therefore, the matter was heard on merits. We have already opined that the husband
has made out a case for divorce by proving mental cruelty. As a decree is passed, the
wife is entitled to permanent alimony for her sustenance. Be it stated, while granting
permanent alimony, no arithmetic formula can be adopted as there cannot be
mathematical exactitude. It shall depend upon the status of the parties, their respective
social needs, the financial capacity of the husband and other obligations. In Vinny
Parmvir Parmar v. Parmvir Parmar MANU/SC/0842/2011 : (2011) 13 SCC 112, while
dealing with the concept of permanent alimony, this Court has observed that while
granting permanent alimony, the Court is required to take note of the fact that the
amount of maintenance fixed for the wife should be such as she can live in reasonable
comfort considering her status and the mode of life she was used to when she lived
with her husband. At the same time, the amount so fixed cannot be excessive or affect
the living condition of the other party.
34. Keeping in mind the aforesaid broad principles, we may proceed to address the
issue. The Respondent himself has asserted that he has earned name and fame in the
world of music and has been performing concerts in various parts of India and abroad.
He had agreed to buy a flat in Hyderabad though it did not materialise because of the
demand of the wife to have a flat in a different locality where the price of the flat is
extremely high. Be that as it may, it is the duty of the Court to see that the wife lives
with dignity and comfort and not in penury. The living need not be luxurious but
simultaneously she should not be left to live in discomfort. The Court has to act with
pragmatic sensibility to such an issue so that the wife does not meet any kind of man-
made misfortune. Regard being had to the status of the husband, the social strata to
which the parties belong and further taking note of the orders of this Court on earlier
occasions, we think it appropriate to fix the permanent alimony at Rs. 50 lacs which
shall be deposited before the learned Family Judge within a period of four months out
of which Rs. 20 lacs shall be kept in a fixed deposit in the name of the son in a
nationalized bank which would be utilised for his benefit. The deposit shall be made in
such a manner so that the Respondent wife would be in a position to draw maximum
quarterly interest. We may want to clarify that any amount deposited earlier shall stand
excluded.
35. On the basis of the forgoing discussion, the decree for dissolution of marriage is
affirmed only on the ground of mental cruelty which eventually leads to dismissal of the
appeals. The parties shall bear their respective costs.
© Manupatra Information Solutions Pvt. Ltd.

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 MANU/SC/1154/2022
Equivalent/Neutral Citation: 2023(1)AC R733, 2022(239)AIC 194, AIR2022SC 4771, 2022 (121) AC C 974, 2023(2)BLJ37, 2023(1)C rimes137(SC ),
2022 INSC 948, 2022(6)KLT549, 2023(1)MLJ(C rl)164, 2022(4)RC R(C riminal)405, 2022(13)SC ALE373, (2023)15SC C 210, 2022(3)UC 1969

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 121 of 2022
Decided On: 12.09.2022
Vinod Katara Vs. State of Uttar Pradesh
Hon'ble Judges/Coram:
Dinesh Maheshwari and J.B. Pardiwala, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Rishi Malhotra, AOR
For Respondents/Defendant: Vishnu Shankar Jain, AOR
Case Note:
Criminal - Verification of age - Direction thereto - Present Writ Application
under Article 32 of the Constitution is at the instance of a convict Accused
undergoing life imprisonment for the offence of murder seeking appropriate
directions to the Respondent State of Uttar Pradesh to verify the exact age of
the convict on the date of the commission of the offence as it is the case of
the convict that on the date of the commission of the offence i.e. 10.09.1982
he was a juvenile aged around 15 years - Whether plea of juvenility is to be
accepted in facts of present case?
Facts:
The writ applicant along with other co-Accused persons was put to trial for
the offence punishable Under Section 302 r/w 34 of the Indian Penal Code.
The 5th Additional Sessions Judge, in the sessions trial arising from the case
crime registered with the Fatehpur Sikri District, Agra held the writ applicant
herein and the co-Accused persons guilty of the offence of murder and
sentenced them to life imprisonment. The writ applicant herein and the other
convicts went in appeal before the High Court questioning the legality and
validity of the judgment & order of conviction passed by the trial court. The
appeal was heard by the High Court and vide judgment and order came to be
dismissed thereby affirming the judgment and order of conviction passed by
the trial court. Present Writ Application under Article 32 of the Constitution is
at the instance of a convict Accused undergoing life imprisonment for the
offence of murder seeking appropriate directions to the Respondent State of
Uttar Pradesh to verify the exact age of the convict on the date of the
commission of the offence as it is the case of the convict that on the date of
the commission of the offence i.e. 10.09.1982 he was a juvenile aged around
15 years.
Held, while issuing directions
1. In the instant case, the Accused has not produced any matriculation
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certificate or equivalent certificate to prove his age. What is produced by him
is only the Family Register issued under the U.P. Panchayat Raj Act, 1947.
The document cannot be accepted as equivalent to matriculation certificate to
prove the age of the Accused. However, the evidentiary value of the Family
Register will have to be looked into in the course of the inquiry that present
Court may order. [48]
2. The bone ossification test is not an exact science that can provide us with
the exact age of the person. As discussed above, the individual characteristics
such as the growth rate of bones and skeletal structures can affect the
accuracy of this method. This Court has observed in Ram Suresh Singh v.
Prabhat Singh, and Jyoti Prakash Rai v. State of Bihar, that the ossification
test is not conclusive for age determination because it does not reveal the
exact age of the person, but the radiological examination leaves a margin of
two years on either side of the age range as prescribed by the test
irrespective of whether the ossification test of multiple joints is conducted.
The courts in India have accepted the fact that after the age of thirty years
the ossification test cannot be relied upon for age determination. It is trite
that the standard of proof for the determination of age is the degree of
probability and not proof beyond reasonable doubt. [58]
3. In the case on hand the convict was subjected to medical examination
after being referred to the Medical Board. However, the report on record does
not inspire much confidence. Over and above the same, the decision in the
case of Ram Vijay Singh makes it very clear that in the absence of a reliable
and trustworthy medical evidence to find out the age of the Appellant herein,
the ossification test conducted in the year 2021 when the Appellant was
above 50 years of age cannot be conclusive to declare him as a juvenile on
the date of the incident. This Court observed that when a person is around 18
years of age, the ossification test can be said to be relevant for determining
the approximate age of a person in conflict with law. However, when the
person is around 40-55 years of age, the structure of bones cannot be helpful
in determining the age. In such circumstances, it will be a matter of debate as
to what extent the new ossification test report that may come on record can
be relied upon and to what extent the same would be helpful to the Appellant
herein. [63]
4. Despite all the odds against the writ applicant, present Court would still
like to look into the matter in the larger interest of justice. It will be in
fitness of things if the writ applicant convict is once again subjected to the
ossification test at the Civil Hospital, Allahabad or any other latest medical
age determination test and such test shall be carried out by a team of three
doctors, one of whom should be the head of the Department of Radiology.
[64]
5. The Sessions Court, Agra is directed to examine the claim of the writ
applicant to juvenility in regard with law within one month from the date of
communication of this order. [65]
JUDGMENT
J.B. Pardiwala, J.

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 a Committee functioning under the J.J. Act is not expected to conduct such a
roving enquiry and to go behind those certificates to examine the correctness of
those documents, kept during the normal course of business. Only in cases
where those documents or certificates are found to be fabricated or
manipulated, the Court, the J.J. Board or the Committee need to go for medical
report for age determination.
45. What is discernible from the dictum laid down in Ashwani Kumar Saxena (supra) is
that, in deciding whether an Accused is juvenile or not, a hyper technical approach
should not be adopted. While appreciating the evidence adduced on behalf of the
Accused in support of the plea that he is a juvenile, if two views are possible on the
same evidence, the Court should lean in favour of holding the Accused to be juvenile in
borderline cases. The inquiry contemplated is not a roving inquiry. The Court can accept
as evidence something more than an affidavit i.e. documents, certificates etc. as
evidence in proof of age. A mere opinion by a person as to the Accused looking one or
two years older than the age claimed by him (as the opinion of the head master in the
present case) or the fact that the Accused told his age to be more than what he alleges
in the case while being arrested by the police officer would not hold much water. It is
the documentary evidence placed on record that plays a major role in determining the
age of a juvenile in conflict of law. And, it is only in the cases where the documents or
certificates placed on record by the Accused in support of his claim of juvenility are
found to be fabricated or manipulated, that the Court, the Juvenile Justice Board or the
Committee need to go for medical test for age determination.
46. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident
from the use of the language "in the absence whereof". This indicates that where a
matriculation or equivalent certificate is available, the documents adverted to in (ii) and
(iii) cannot be relied upon. The matriculation certificate, in other words, is given
precedence. It is in the absence of a matriculation certificate that the date of birth
certificate of the school first attended, can be relied upon. It is in the absence of both
the matriculation and the birth certificates of the first school attended that a birth
certificate issued by the corporation, municipal authority or panchayat could be
obtained.
47. In Shah Nawaz v. State of Uttar Pradesh, MANU/SC/0910/2011 : (2011) 13 SCC
751, this Court, while examining the scope of Rule 12 of the 2007 Rules, has reiterated
that medical opinion from the Medical Board should be sought only when the
matriculation certificate or equivalent certificate or the date of birth certificate from the
school first attended or any birth certificate issued by a corporation or a municipal
authority or a panchayat or municipality is not available. This Court had held that the
entry related to the date of birth entered in the marksheet is a valid evidence for
determining the age of the Accused person so also the school leaving certificate for
determining the age of the Appellant.
48. In the instant case, the Accused has not produced any matriculation certificate or
equivalent certificate to prove his age. What is produced by him is only the Family
Register issued under the U.P. Panchayat Raj Act, 1947. The document cannot be
accepted as equivalent to matriculation certificate to prove the age of the Accused.
However, the evidentiary value of the Family Register will have to be looked into in the
course of the inquiry that we may order.
Determination of plea of juvenility at a belated stage

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49. Ideally, there should not be any dispute as to the age of a person if the birth is
registered in accordance with law and date of birth is entered in the school records on
the basis of genuine record of birth. However, in India, the factors like poverty,
illiteracy, ignorance, indifference and inadequacy of the system often lead to there
being no documentary proof of a person's age. Therefore, in those cases where the plea
of juvenility is raised at a belated stage, often certain medical tests are resorted to
forage determination in absence of the documents enumerated in Section 94 of the Act
2015. The Rule allowing plea of juvenility to be raised at a considerably belated stage
has its rationale in the contemporary child rights jurisprudence which requires the
stakeholders to act in the best interest of the child.
50. In Court On Its Own Motion v. Dept. of Women and Child Development, reported in
MANU/DE/2139/2012, the Petitioners therein highlighted that how several hundred
children were languishing in the Tihar Jail because the police mentioned them as adults
in the arrest memo.
51. The same is the story in the State of Uttar Pradesh which led the High Court of
Allahabad to pass the order in Writ Petition Public Interest Litigation referred to above
in para 6.
52. Awareness about the rights of the child and correlated duties remain low among the
functionaries of the juvenile justice system. Once a child is caught in the web of adult
criminal justice system, it is difficult for the child to get out of it unscathed. The bitter
truth is that even the legal aid programmes are mired in systemic bottlenecks and often
it is only at a considerably belated stage of the proceeding that the person becomes
aware of the rights, including the right to be differently treated on the ground of
juvenility.
53. What needs to be kept in mind is the main object and purpose of the Juvenile
Justice Act. The focus of this legislation is on the juvenile's reformation and
rehabilitation so that he also may have an opportunity to enjoy as other children. In
Pratap Singh (supra), this Court, elaborating on the objects and purpose of the Juvenile
Justice Act, made the following observations:
...The said Act is not only a beneficent legislation, but also a remedial one. The
Act aims at grant of care, protection and rehabilitation of a juvenile vis-à-vis
the adult criminals. Having regard to Rule 4 of the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice, it must also be borne
in mind that the moral and psychological components of criminal responsibility
were also one of the factors in defining a juvenile. The first objective,
therefore, is the promotion of the well-being of the juvenile and the second
objective to bring about the principle of proportionality whereby and
whereunder the proportionality of the reaction to the circumstances of both the
offender and the offence including the victim should be safeguarded...
What is bone ossification test?
54. The famous American philosopher Mark Twain once said, "Age is an issue of Mind
over matter. If you don't mind, it doesn't matter." But the above is not the case in
criminal jurisprudence when it comes to age. Here, age matters because law is mindful
to it.
55. The bone ossification test (hereinafter "ossification test") is a test that determines
age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In
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simple words, the ossification test or osteogenesis is the process of the bone formation
based on the fusion of joints between the birth and age of twenty-five years in an
individual. Bone age is an indicator of the skeletal and biological maturity of an
individual which assists in the determination of age. The most common method used for
the calculation of the bone age is radiography of the hand and wrist until the age of 18
years beyond which the medial age of clavicle is used for bone age calculation till the
age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18
years of age as the elongation of the bone is complete after adolescence. However, it
must be noted that the ossification test varies slightly based on individual
characteristics, therefore the ossification test though is relevant however it cannot be
called solely conclusive.
5 6 . The 2015 Act Under Section 94(2)(iii) read with Rule 12(3) of the 2007 Rules
provides the legislative sanction for the conduct of ossification test or other medical age
determination test available in the absence of other documentary proof of age i.e.
matriculation certificate or birth certificate, which has to be given within 15 days from
the date of such order. The test is to be conducted by the Child Welfare Committee
(CWC). The provision mentioned herein is the basis for determining the age of a child
under the 2000 Act which even includes a child who is a victim of crime in addition to a
child in conflict with the law.
57. In Vishnu v. State of Maharashtra, MANU/SC/2156/2005 : (2006) 1 SCC 283, this
Court clarified that the ossification test by the medical officer is to assist the court
which falls under the ambit of medical expert opinion i.e., advisory in nature and not
binding. However, such an opinion cannot override ocular or documentary evidence,
which has been proved to be true and admissible as they constitute "statement of facts".
This Court in Vishnu (supra) placed reliance on Madan Gopal Kakkad v. Naval Dubey,
MANU/SC/0509/1992 : (1992) 3 SCC 204, to hold that a medical witness is not a
witness of fact therefore the opinion rendered by such a medical expert is merely
advisory until accepted by the Court, however, once accepted, they become the opinion
of the Court.
Margin of error principle
58. The bone ossification test is not an exact science that can provide us with the exact
age of the person. As discussed above, the individual characteristics such as the growth
rate of bones and skeletal structures can affect the accuracy of this method. This Court
has observed in Ram Suresh Singh v. Prabhat Singh, MANU/SC/0750/2009 : (2009) 6
SCC 681 : (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar,
MANU/SC/7296/2008 : (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796,that the
ossification test is not conclusive for age determination because it does not reveal the
exact age of the person, but the radiological examination leaves a margin of two years
on either side of the age range as prescribed by the test irrespective of whether the
ossification test of multiple joints is conducted. The courts in India have accepted the
fact that after the age of thirty years the ossification test cannot be relied upon for age
determination. It is trite that the standard of proof for the determination of age is the
degree of probability and not proof beyond reasonable doubt.
59. In the aforesaid context, we may also refer to a decision of this Court in the case of
Mukarrab v. State of Uttar Pradesh, reported in MANU/SC/1550/2016 : (2017) 2 SCC
210, wherein this Court has observed in para 27 as under:
... Following Babloo Pasi v. State of Jharkhand, MANU/SC/8099/2008 : (2008)

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 aforesaid to this Court within one month from the date of communication of this
order;
v) The Registry is directed to forward one copy of this order to Sessions Court,
Agra;
(vi) We request the learned Counsel appearing for the State to take appropriate
steps to facilitate the Sessions Court to complete the enquiry.
66. Notify this matter after a period of four weeks along with the report that may be
received from the Sessions Court, Agra. The final order shall be passed after perusal of
the report upon receipt from the Sessions Court, Agra.
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