Journal 20August 202005 20vol 2

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Journal 20August 202005 20vol 2 Powered By Docstoc
					                                       TGI and the arrest and custody of
                                       R. Srinivasan and threat to R. Srinivasan
                                       and instruction of R. Srinivasan over
                                       phone to transfer 26% of share; transfer of
                                       26% of shares of TGI to Selvaraj.


V. M. Christopher and
Ganapathi
Owner and Watchman of
House where the accused        …..     To speak to the meeting of minds of Sukumar       are said
to have                        and other accused Appavu MLA and others
Assembled.                                     and their meeting in the house of Christopher
                                               on 17.8.2004


Baby John
Sub Registrar, Udankudi                ….      To speak to the execution of sale deed
                                               Document Nos. 899 to 903/04 executed
                                               in favour of Elango and to speak to the fact
                                               that in violation of the Rules of Sub-
                                               Registrar‘s office, documents have been
                                               registered at     9.00 p.m. on 18.8.2004.


Sudalai
Stamp vendor, Udankudi                 …..     To speak to the fact that the stamp
                                               papers were sold to Elango at 2.15 p.m on
                                               18.8.2004.


This Court has no jurisdiction to go into the correctness or otherwise of the allegations
made, and on the above materials collected. Suffice it to point out that the materials
collected, prima facie, indicate the proceeding of the investigation in its correct direction.
When the investigation is proceeding in its correct direction, it would be improper for the
Court to interfere with the area of investigation which is exclusively within the domain of
the Investigating Agency.
       20. It has been brought to the notice of the Court that the case in Cr.No. 25/04
registered against R. Srinivasan has been referred as ―Mistake of fact‖. In the Refer
charge-sheet in the typed set of papers, it is stated that the case in Cr. No. 25/04 has
been lodged at the instigation of Sukumar, owner of Beach Sand Minerals Company and
after investigation, the Investigating Officer- DCB, Tirunelveli has arrived at the
conclusion that a false complaint has been lodged and that the same was referred as
―Mistake of fact‖.
       21. On behalf of the petitioner, main contention is urged that there is inordinate
unexplained delay in lodging the complaint. The complainant R. Srinivasan was released
on interim bail on 20.8.2004; regular bail was granted to him on 25.8.2004; complaint
was lodged in Cr. No. 23/04 only on 9.9.2004. Hence it is contended that there is an
unexplained delay of nearly fifteen days and that the complainant was gaining time for
deliberation and to make a false complaint against the petitioner/A-1 and other accused.
At this stage, the merits of this contention cannot be gone into. It is not for the Court to
appreciate the correctness or otherwise of the allegations levelled in the complaint on
account of delay. Suffice it to point out that the delay in lodging the complaint cannot be
the ground for quashing the First Information Report.
       22. It is well settled that when prosecution is sought to be quashed at the initial
stage, course to be adopted by the Court is as to whether uncontroverted allegations
have prima facie established the offence. The jurisdiction under Section 482, Cr.P.C. is
exercised sparingly and in rare cases. In 1988 (4) SCC 655 ; (State of Bihar vs. Murad
Ali Khan), the Supreme Court has held that the jurisdiction under Section 482 of Cr.P.C.
has to be exercised sparingly and with circumspection and that in exercising that
jurisdiction, the High Court should not embark upon an enquiry whether the allegations
in the complaint are likely to be established by evidence or not. When considered in the
light of the allegations in the complaint and materials collected during the investigation,
there is nothing to suggest that the registration of the First Information Report and the
investigation is with mala fide and maliciously instituted. The contention of the petitioner
that with a view to wreak vengeance due to personal rivalry has no merits.
       23. The inherent powers of the High Court do not confer arbitrary jurisdiction upon
the High Court to interfere with the investigation, which is the exclusive realm of Police. It
is a well settled proposition that if the Court interferes with the investigation, the offender
might go unpunished, causing serious detriment to the welfare of the society. We may
usefully refer to the observations of the Supreme Court reported in AIR 1982 SC 949
(State of West Bengal vs. Swapan Kumar Guha), which reads :
           ―…….the legal position is well settled. The legal position appears to be that if
           an offence is disclosed, the Court will not normally interfere with an
           investigation into the case and will permit investigation into the offence alleged
           to be completed; if, however, the materials do not disclose an offence, no
           investigation should normally be permitted………once an offence is disclosed,
           an investigation into the offence must necessarily follow in the interests of
           justice. If, however, no offence is disclosed, an investigation cannot be
           permitted, as any investigation, in the absence of any offence being disclosed,
           will result in unnecessary harassment to a party, whose liberty and property
           may be put to jeopardy for nothing. The liberty and property of an individual are
           sacred and sacrosanct and the Court zealously guards them and protects
           them. An investigation is carried on for the purpose of gathering necessary
           materials for establishing and proving an offence which is disclosed. When an
           offence is disclosed, a proper investigation in the interests of justice becomes
           necessary to collect materials for establishing the offence, and for bringing the
           offender to book. In the absence of a proper investigation in a case where an
           offence is disclosed; the offender may succeed in escaping from the
           consequences and the offender may go unpunished to the detriment of the
           cause of justice and society at large. Justice requires that a person who
           commits an offence has to be brought to book and must be punished for the
           same. If the Court interferes with the proper investigation in a case where an
           offence has been disclosed, the offence will go unpunished to the serious
           detriment of the welfare of the society and the cause of justice suffers. It is on
           the basis of this principle that the Court normally does not interfere with the
           investigation of a case where an offence has been disclosed.‖
       24. Whether an offence has been disclosed or not depends on the facts and
circumstances of each particular case. In the case on hand, on consideration of the
relevant materials, this Court sees every reason to presume that the offence has been
disclosed from the allegations made in the First Information Report. When that being so,
the Court would not normally interfere with the investigation. The investigation has to be
allowed to be continued and completed, after collecting the materials. This petition filed
seeking for quashing the First Information Report has no merits and is bound to fail
       25. Crl.O.P. No. 5789/2004:—
       This petition filed to quash the First Information Report (in Cr.N. 23/04 CGCB,
Tirunelveli) registered against the petitioner–Lakshmana Perumal is dismissed.
       26. Crl. M.P. Nos. 2242 and 1874/2005 :—
       These petitions filed by the Inspector of Police, City General Crime Branch,
Tirunelveli, and the intervener respectively, to vacate the stay granted in Crl. M.P. No.
2250/2004 are allowed. Interim stay granted in Crl. M.P. No. 2250/04 is vacated.
       27. Crl. M.P. No. 2250 of 2004:—
       This petition filed to stay the further investigation in Cr.No. 23/2004 is dismissed.
       28. Crl. M.P. No. 1873/2005:—
       This petition filed to permit the petitioner G. Srinivasan (de facto complainant) to
intervene in Crl. O.P./ No. 5789/2004 is ordered accordingly.
                                                                   Ordered accordingly.



                              [2005 (2) T.N.L.R. 116 (Mad)]
                                MADRAS HIGH COURT
Before:
           S.R. Singharavelu, J.

Y. Vijayalakshmi @ Rambha                            ............................Petitioner
                                          Versus
Manickam Narayanan                                   .......................Respondent

           [Criminal Original Petition Nos. 1225, 1226 and 1688 of 2005 and
              Crl. M.P. Nos. 538 to 541, 776 and 777 of 2005, decided on
                                      8th June, 2005]
     Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—
Complaint—Filed by power-of-attorney holder—Maintainability of—Held,
complaint could be presented by GPA on behalf of payee provided that the
complaint shall be signed by payee himself and Magistrate shall record sworn
statement on the date of presentation of complaint.
(Paras 54 & 55)
      Case Law:—2005(1) Crimes 423; AIR 1937 Mad (FB) 937; AIR 1999 SCW 1062 :
AIR 1978 SC 1019; 2005 Cri LJ 112; 2003 (1) ALD (Cri) 152; 2004 (2) Bankmann 380;
2004 (2) Bankmann 464; 1994 (1) Crimes 395; 2005 (2) CTC 417 ; AIR 1956 SC 604;
2002 (1) ALT (Cri) 497; AIR 2002 SC 182; (1983) 4 SCC 701 : 1922 (XVI) LW 220; 2004
AIR SCW 7064; 2000 (102) BLR 908; AIR 1998 Raj 185—referred

      Counsel:—
             Mr. V. Raghavachari, for the petitioner ; Mr.B. Sriramulu, Senior Counsel,
             for Mr. Sai Bharath, for the respondent.

                                        JUDGMENT
       S.R. Singharavelu, J.—Criminal Original Petition Nos. 1225 and 1226 of 2005 are
filed to call for the records in C.C.Nos.7527 and 7764 of 2004 respectively on the file of
XVIII Metropolitan Magistrate, Saidapet and quash the same. Criminal Original Petition
No. 1688 of 2005 is filed to set aside the order passed in Crl.M.P.No.284 of 2005 in
C.C.No.7527 and 7764 of 2004 on the file of XVIII Metropolitan Magistrate, Saidapet and
quash the same.
       2. Petitioner is the accused in C.C.No.7527 of 2004 pending on the file of XVIII
Metropolitan Magistrate, Saidapet. She is alleged to have availed Rs. 91,00,000/- as
loan from the respondent/ complainant agreeing to repay the same with interest. During
the above transaction, on 25.09.2003, when the accused borrowed a sum of Rs.
75,000/- on 25.09.2003, she issued three post-dated cheques in repayment of the same
and had also executed three promissory notes. When the three cheques were presented
for collection, they were returned and dishonoured with the endorsement ―Payment
Stopped by the drawer‖. The complainant therefore issued a notice and after receiving
the same, she did not make any payment. Subsequently, the petitioner/accused had
also filed a civil suit in C.S.No.787 of 2004 on the file of this Court. The petitioner is
alleged to have committed an offence punishable under Section 138 of the Negotiable
Instruments Act, on the basis of two private complaints initiated by respondent.
       3. The point for consideration is as to whether a complaint under Section 138 of
Negotiable Instruments Act (hereinafter referred to as ‗the Act‘) be filed by a power-of-
attorney?
       4. By going through the complaint, by reading of Section 142 of the Act and as
senior counsel Mr. A. Natarajan submitted that by construing a strict interpretation of the
above provision of law, no Court shall entertain any complaint for an offence under
Section 138 of the Act except to be filed by payee or drawer of the cheque; and in that
case as the complainant was the power-of-attorney of the payee, it was decided on
17.12.2004 in Crl.O.P.No.3975 of 2004 before the Madurai Bench that the complaint
filed by the power-of-attorney is not maintainable in the eye of law. That was reported in
2005 (1) Crimes 423 (Ravi Kumar & another vs. R. Ramalingam rep. by Power of
Attorney).
       5. Senior counsel Mr. Sriramulu appearing for the respondent has drawn my
attention to several case laws in this aspect including interpretation of statutes and non
obstante clause contained therein and contended that the law as interpreted in 2005 (1)
Crimes 423 (cited supra) is incorrect view and that the same shall have to be
reconsidered in dealing with this case.
      6. My attention while deciding the case at Madurai above cited, was, by then not
drawn to these case laws. Before ever a different view is taken upon the order passed
already, I have also gone through several aspects of the case laws cited by the learned
senior counsel on both sides.
      7. Section 2 of Powers-of-Attorney Act, 1882 runs thus:
      2. Execution under power-of-attorney.—The donee of a power-of-attorney may, if
           he thinks fit, execute or do any instrument or thing in and with his own name
           and signature, and his own seal, where sealing is required, by the authority of
           the donor of the power, and every instrument and thing, so executed and done,
           shall be as effectual in law as if it had been executed or done by the donee of
           the power in the name, and with the signature and seal, of the donor thereof.
           This section applies to powers-of-attorney created by instruments executed
           either before or after this Act comes into force.
      8. Mr. V. Raghavachari, learned counsel for petitioner submitted by citing following
case laws:
           In M. Krishnammal vs. T. Balasubramania Pillai, AIR 1937 Mad (FB) 937, it
           was held that vakalath though a kind of power-of-attorney, is confined to
           Pleader. Power-of-attorney Agent cannot carry on business as Attorney or
           Solicitor. The principle involved is that act of Pleader is something personal,
           which could not be performed by GPA (General Power-of-Attorney) since
           knowledge in and application of law by a Pleader is purely personal with
           degree of variance from other Pleader too.
      9. In AIR 1999 SCW 1062 (T.C. Mathai vs. Dist. & Sessions Judge,
Thiruvananthapuram) (K.T. Thomas and M.B.Shah, JJ.,), it was held ―Power-of-Attorney
not authorised by Court cannot become Pleader —Sections 303 and 2 of Powers of
Attorney Act and Section 2 of Criminal Procedure Code‖. It was so held in para as 14 to
16 as follows:—
    ―14. Section 2 of the Powers of Attorney Act cannot override the specific provision
           of a statute which requires that a particular act should be done by a party in
           person. When the Code requires the appearance of an accused in a Court it is
           no compliance with it if a power-of-attorney holder appears for him. It is a
           different thing that a party can be permitted to appear through counsel.
           Chapter XVI of the Code empowers the Magistrate to issue summons or
           warrant for the appearance of the accused. Section 205 of the Code empowers
           the Magistrate to dispense with ‗the personal attendance of accused, and
           permit him to appear by his pleader‘ if he sees reasons to do so. Section 273
           of the Code speaks of the powers of the Court to record evidence in the
           presence of the pleader of the accused, in cases when personal attendance of
           the accused is dispensed with. But in no case can the appearance of the
           accused be made through a power-of-attorney holder. So the contention of the
           appellant based on the instrument of power of attorney is of no avail in this
           case.
     15. In this context reference can be made to a decision rendered by a Full Bench
           of the Madras High Court in M. Krishnammal vs. T. Balasubramania Pillai, AIR
           1937 Mad 937, when a person, who was the power of attorney holder of
           another, claimed right of audience in the High Court on behalf of his Principal.
           A single Judge referred three questions to be considered by the Full Bench, of
         which the one which is relevant here was whether an agent with the power-of-
         attorney to appear and conduct judicial proceedings has the right of audience
         in Court. Beasley, C.J., who delivered the judgment on behalf of the Full Bench
         stated the legal position thus:
         ‗An agent with a power-of-attorney to appear and conduct judicial proceedings,
         but who has not been so authorised by the High Court, has no right of
         audience on behalf of Principal, either in the appellate or original side of the
         High Court…. There is no warrant whatever for putting a power-of-attorney
         given to a recognized agent to conduct proceedings in Court in the same
         category as a vakalat given to a legal practitioner, though latter may be
         described as a power-of-attorney which is confined only to pleaders, i.e. those
         who have a right to plead in Courts.‘
         16. The aforesaid observations, though stated sixty years ago, would represent
         the correct legal position even now. Be that as it may, an agent cannot become
         a ‗Pleader‘ for the party in criminal proceedings, unless the party secures
         permission from the Court to appoint him to act in such proceedings.‖
     10. In that case, reliance was placed upon Harishankar Rastogi vs. Giridhari
Sharma, AIR 1978 SC 1019 which is as follows:—
         ―If the man who seeks to represent has poor antecedents or irresponsible
         behaviour or dubious character, the Court may receive counter-productive
         service from him. Justice may fail if a knave were to represent a party. Judges
         may suffer if quarrelsome, ill-informed or blackguardly or blockheadly private
         representatives filing arguments at the Court. Likewise the party himself may
         suffer if his private representative deceives him or destroys his case by
         mendacious or meaningless submissions and with no responsibility or respect
         for the Court. Other situations, settings and disqualifications may be conceived
         of where grant of permission for a private person to represent another may be
         obstructive, even destructive of justice.‖
     11. Same view was taken in Jimmy Jahangir Madan vs. Bolly Cariyappa Hindley
case by Supreme Court in a later decision reported in 2005 Cri. L.J.112 (B.N.Agarwal
and K.K.Sema JJ.).
         ―In the present case, neither heirs of the complainant filed petition under
         Section 302 of the Code to continue the prosecution nor any permission was
         sought by them from the competent Court that they should be allowed to
         continue the prosecution through the power-of-attorney holders, rather the
         prayer was made by the power-of-attorney holders, which is not permissible
         under law. This being the position, we are of the view that the trial Court was
         not justified in allowing the petition under Section 302 of the Code and the High
         Court has committed an error in confirming the said order which is liable to be
         set aside and petitions under Section 302 of the Code are fit to be dismissed
         giving liberty to the heirs either to make application themselves before the
         Court concerned to continue the prosecution or apply to the Court to grant
         permission to them to authorize the power-of-attorney holders to continue the
         prosecution on their behalf‖.
From the above decisions, it can be seen as to what is power-of-attorney and when and
how can represent the parties in a proceedings before Court.
         12. Now, let us go through the divergent views expressed by various High Courts
about GPA in connection with Section 142 of Negotiable Instruments Act, which reads
as follows:—
    ―142. Cognizance of offences:—Notwithstanding anything contained in the Code of
              Criminal Procedure, 1973 (2 of 1974);
           (a) no Court shall take cognizance of any offence punishable under Section 138
                 except upon a complaint, in writing made by the payee or, as the case may
                 be, the holder in due course of the cheque‖
         13. Reliance was placed upon the following judgments of single Judge of Andhra
Pradesh and Madhya Pradesh.
       (i)     2003 (1) ALD (Crl.) 152 (A.P)
               (RBF Nidhi Ltd. and another vs. State of A.P.) (S.R.K.Prasad, J.)
      (ii)     2004 (2) Bankmann 380 (A.P.)
               (Ujwal Textiles and another vs. V.N. Commercial Corporation & another.
               (S.R.K. Prasad, J.)
     (iii)     2004 (2) Bankmann 464 (M.P.)
               (Ramesh vs. Ganeshchandra & others. (S.L.Kochar, J.)
         14. It was held in Ramesh‘s case (supra) that in view of the provisions of Powers
of Attorney Act, the complaint can be presented by the holder of power-of-attorney, but
for the purpose of further prosecution, the presence of complainant is essential and if he
appears and gives statement before the Court, then there is no defect in filing the
complaint.
         15. In Ujwal Textile‘s case (supra), reference was made to
       (i)     Rubi Leather Exports vs. K. Venu 1994 (1) Crimes 820 (Mad)—Justice
               Arunachalam.
      (ii)     Rajan George vs. State of Kerala, 1999 (1) Crimes 519 (Kerala)—Justice P.V.
               Narayanan Nambiar, J.,
     (iii)     S.P. Sampathy vs. Manju Gupta 2002 (1) ALT (Crl.) 497- Justice Bilai Nazki
         16. In S.P. Sampathy‘s case (cited supra), it was held that the complaint has to be
filed in the name of payee and only he has to sign it and it cannot be signed by GPA
holder, who cannot be a holder in due course.
         17. In Rajan George‘s case, it was held that personal presence of the complainant
is not mandatory and that complaint can be filed by his Advocate or Power-of-Attorney.
         18. In Ruby Leather Export‘s case, it was held that a Power-of-Attorney Agent of
the payee or the holder in due course of the cheque, will be competent to make a
complaint in writing under Section 142 (a) of the Act, to facilitate valid cognizance being
taken by the Magistrate.
         19. In Hamsa vs. Ibrahim, 1994 (1) Crimes 395 (Kerala) case, it has been held by
Justice K.T. Thomas as follows:—
              ―According to the law of England ‗every person who is sui juris has a right to
              appoint an agent for any purpose whatever and that he can do so when he is
              exercising a statutory right no less than when he is exercising any other right‘.
              This was recognized as a common law, when a person authorizes another to
              sign for him, the signature of the person so signing is the signature of the
              person authorizing it. Thus, the law is well settled that whatever a person can
              do himself, he can do through an agent.‖
        20. In Revulu Subba Rao vs. I.T. Commr, AIR 1956 SC 604, it was observed that
there is an exception to the common law that when a person authorizes another to sign
for him, the signature of the person so signing is the signature of the person, authorizing
it. The said rule is subject to certain well known exceptions such as, when the act to be
performed is personal in character, when the act to be performed is annexed to a public
officer or to an office involving any fiduciary obligation. Apart from the said exception, the
law is well settled that whatever a person can do himself, he can do through an agent. At
this moment, it is pertinent to mention that this is also the view taken on 27.12.2004 by a
Full Bench of High Court of Andhra Pradesh in a case reported in Ramachandra Rao, K
vs. State of Andhra Pradesh, 2005 (2) CTC 417, which is as follows:—
            ―In Ram Chandra case (supra) it is clearly held that complaint filed through
            the power-of-attorney of a person aggrieved, tantamounts to filing of the
            complaint by the person aggrieved. For that reason, and since the right
            accrued to the payee or the holder in due course of a dishonoured cheque
            does not fall within the three exceptions to the rule Iqui faci per alium facit per
            se recognised by Section 183 of the Contract Act i.e. since the act to be
            performed:—
      (i)    is not personal in its character, or (ii) is not annexed to any public office, and
             (iii) does not involve any fiduciary obligations, we hold that the power-of-
             attorney of a payee or a holder in due course of a dishonoured cheque can file
             a complaint for an offence under Section 138 of the Act after obtaining
             permission from the Court, either before or after filing of the complaint. The
             reference is answered accordingly‖.
        21. However, by citing all these judgments excepting 2005 (2) CTC 417
(27.12.2004), the Andhra Pradesh High Court in 2004 (2) Bankmann 380 (Ujwal
Textiles, case) preferred to follow the principles laid down in S.P. Sampathy‘s case (DB-
Andhra) 2002 (1) ALT (Crl.) 497 and held that there is lacuna in the Act that the non-
mention of words ‗power-of-attorney holder or agent or payee‘ for presenting the
complaint clearly goes to show that the Legislature did not contemplate of presentation
of such complaints. Moreover, due to non obstante clause in the N.I.Act, the
interpretation to Section 2 (d) of Cr.P.C. cannot be extended to that Act.
        22. Now, let us go into S.P. Sampathy‘s case itself reported in 2002 Cri.L.J.2621,
which was followed by S.R.K. Prasad, J. in Ujwal Textile‘s case, 2004 (2) Bankmann 380
(AP). Sampathy‘s case is a Division Bench case overruling the judgment of single Judge
of Andhra Pradesh in Smt. Payyati Savitri Devi vs. Malireddy Damayanthamma, 1997
Cri. L.J. 3862, which was made relying on the judgment of Madras High Court in
Manimekalai vs. Chapaldas Kalyanji Sanghvi, 1995 Cri. L.J. 1102. Therefore, reference
was made to Division Bench.
        23. In Sampathy‘s case (cited supra), it has been held that power-of-attorney
holder has no entity in terms of Section 142 of N.I.Act. It was observed that one can
understand a complaint having been made under Section 142 by a holder in due course
of the cheque, but a power-of-attorney holder would not be a holder in due course of the
cheque and he has not even been averred in the complaint that the power-of-attorney is
the holder of the cheque. Sampathy‘s case while referring the judgment in Payyati
Savitri‘s case (AP) (cited supra), which relied on Manimekalai‘s case (Madras) (cited
supra) distinguished the fact by contending that the judgment in those two cases did not
consider the import of Section 5 of Cr.P.C. So, it was pointed out in Sampathy‘s case
that Section 142 of Negotiable Instruments Act excludes for the purpose of taking
cognizance provisions of Cr.P.C. including Section 5, Cr.P.C., which is as follows:—
            ―Nothing contained in this Code shall, in the absence of a specific provision to
            the contrary, affect any special or local law for the time being in force, or any
            special jurisdiction or power conferred, or any special form of procedure
            prescribed by any other law for the time being in force.‖
Thus, Code lays down procedure for trial of all criminal cases except under any special
or local law and Section 142 of N.I. Act also excludes application of Cr.P.C. It is on this
principle, the Division Bench in Sampathy‘s case and Ujwal Textile‘s case (cited supra)
took a view that GPA is not holder in due course and cannot file complaint. It is to be
mentioned here that why a different view was taken in Surinder Singh vs. John Impex
(Pvt.) Ltd., 1997 (1) Civil CC 81 was because there was no special law involved and the
complaint in that case was only in terms of Cr.P.C.
       24. Justice S.R.K. Prasad, before writing Ujwal Textile‘s case reported in 2004 (2)
Bankmann 380 on 10.6.2003, wrote another, judgment on 11.11.2002 reported in 2003
(1) ALD (Crl.) 152 (AP) (RBF Nidhi Ltd. and another vs. State of A.P. and others),
wherein he has laid down certain guidelines which are as follows:—
        (a) Whenever GPA holder presents a complaint before the Court, the Magistrate
              shall insist upon the signature of the payee on the complaint, and he shall
              record sworn statement of not only the payee, GPA holder and endeavour
              shall also be made to record the sworn statement of de facto complainant, at
              whose instance provisions of Section 142 of Negotiable Instruments Act are
              invoked.
         (b) …….                        …..                      …….
         (c) …….                        …..                      ……..
        (d) The Magistrate shall insist on filing of GPA into Court and also insist on filing
              an affidavit to be presented in lieu of proof of execution of the said GPA.
        (e) The Magistrate shall thoroughly examine the statement of GPA holder as
              well as the original complainant and documents produced before him and
              exercise his discretion vested under Sections 200 to 203 of Cr.P.C.
         (f) The above guidelines are not exhaustive. There may be some cases which
              are not covered by the above guidelines. In such cases, the Magistrate shall
              exercise his judicial discretion and proceed to deal with the cases arising
              under Section 200, Cr.P.C.
       25. There is yet another Madhya Pradesh case reported in 2004 (2) Bankmann
464 (Ramesh vs. Ganeshchandra and others). In this Judgment, Justice S.L. Kochar has
relied upon three cases.
      (1) Sampathy‘s case (cited supra);
      (2) Dr. Anil Kumar and Another vs. Sant Prakash Gupta, 2001 Crl.L.J. 3623; and
      (3) M/s. MMTC Ltd. and another vs. M/s. Medchi Chemicals and Pharma (P) Ltd.,
            AIR 2002 SC 182.
       26. In MMTC‘s case (cited supra), the Supreme Court held that though the
complaint was filed on behalf of the Company who was the holder of the cheque by
unauthorized person, but the same defect is curable and on this account, the complaint
cannot be quashed. In the same MMTC‘s case, though the complaint was filed by holder
of power-of-attorney on behalf of the complainant, later on this defect has been cured.
The complainant himself has appeared and signed on the complaint. This was done in
pursuance of the revisional order passed by the lower Revisional Court. Thus, it was
held in the above cited MMTC (Supreme Court) case that it is a curable defect and the
complainant can later on sign the complaint whereby it becomes clear that complainant
should sign the complaint. Therefore, it was held in Ramesh‘s case (cited supra) as
follows:
            ―…………. in view of the provisions of Powers of Attorney Act, the complaint
            can be presented by the holder of power-of-attorney, but for the purpose of
            further prosecution, the presence of complainant is essential and if he appears
            and gives statement before the Court, then there is no defect in filing the
            complaint.‖
        27. The same view was taken by the Division Bench of the Supreme Court in
Vishwa Mitter vs. O.P. Poddar by D.A Desai and Amarendranath Sen, JJ., reported in
1983 (4) SCC 701, wherein it has been held as follows:—
            ―It is thus crystal clear that anyone can set the criminal law in motion by filing a
            complaint of facts constituting an offence before a Magistrate entitled to take
            cognizance under Section 190 and unless any statutory provision prescribes
            any special qualification or eligibility criteria for putting the criminal law in
            motion, no Court can decline to take cognizance on the sole ground that the
            complainant was not competent to file the complaint. Section 190 of the Code
            of Criminal Procedure clearly indicates that the qualification of the complainant
            to file a complaint is not relevant. But where any special statute prescribes
            offences and makes any special provision for taking cognizance of such
            offences under the statute, the complainant requesting the Magistrate to take
            cognizance of the offence must satisfy the eligibility criterion prescribed by the
            statute.‖
        28. The eligibility criteria under Section 142, Negotiable Instruments Act is the
appearance of and deposing by complainant. When this is done on a future date, then
the filing of complaint by GPA, on behalf of payee or holder in due course is only a
permissible ritual, based on the fact that GPA comes to shoes of complainant. But, to
depose for payee or holder in due course, GPA is incompetent, as per views expressed
in several case laws.
        29. Thus, on a combined reading of Vishwa Mitter‘s case 1983 (4) SCC 701; and
S.Ramasam Aiyengar‘s case, 1922 (XVI) L.W. 220, it is found that examination of
complainant is a must. Therefore, S.L.Kochar, J in Ramesh‘s case (Madhya Pradesh)
2004 (2) Bankmann 464 held that the presence of complainant is essential and if he
appears and gives statement before Court, then there is no defect in filing the complaint
by GPA and the same shall be treated as cured.
        30. That is why the Division Bench of the Andhra Pradesh High Court in RBF Nidhi
Ltd., case, 2003 (1) ALD (Crl.) 152 (AP) gives one guideline which is as follows:—
            ―Whenever GPA holder presents a complaint before the Court, the Magistrate
            shall insist upon the signature of the payee on the complaint, and he shall
            record sworn statement of not only the payee, GPA holder and endeavour
            shall also be made to record the sworn statement of de facto complainant, at
            whose instance provisions of Section 142 of Negotiable Instruments Act are
            invoked.‖
        31. In order to justify this position, I may have to go to the incompetence of GPA to
depose on behalf of complainant. In AIR 1988 Rajasthan 185 (Ram Prasad vs. Hari
Narain’s case), it was held that the word ‗acts‘ used in Rule 2 of Order III, C.P.C. does
not include the act of power-of-attorney holder to appear as a witness on behalf of a
party. In a case law reported in (1986) 2 WLN 713 ( Shambhu Dutt Shastri vs. State of
Rajasthan) (referred in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd., 2004 AIR SCW
7064, it was held,
            ―A general power of attorney holder can appear, plead and act on behalf of the
            party, but he cannot become a witness on behalf of the party. He can only
            appear in his own capacity. No one can delegate the power to appear in
            witness-box on behalf of himself. To appear in a witness-box is altogether a
            different act. A general power of attorney holder cannot be allowed to appear
            as a witness on behalf of the plaintiff in the capacity of the plaintiff.‖
        32. That is how it was held in 2004 AIR SCW 7064 (Bombay DB) (D.M.
Dharmadhikari and H.K. Sema, JJ.) (Janki Vashdeo Bhojwani vs. Indusind Bank Ltd.)
that power-of-attorney holder cannot depose in respect of principal (Order III, Rules 1 &
2, CPC). Even in the case law of Dr. Pradeep Mohanbay vs. Minguel Carlos Dias (a Goa
Bench of Bombay High Court) reported in 2000 Vol. 102 (1) Bom. L.R. 908, it was held
that GPA can file a complaint under Sec. 138, but cannot depose on behalf of the
complainant. He can only appear as a witness.
        33. It was found in Janki Vashdeo Bhojwani‘s case, 2004 AIR SCW 7064 that the
principle laid down in Shambhu Dutt Shastri‘s case, AIR 1998 Raj. 185 is the correct
view and which is as follows:—
            ―GPA can appear, plead and act on behalf of the party but he cannot become a
            witness on behalf of the party. He can only appear in his own capacity. No one
            can delegate the power to appear in witness-box on behalf of himself. To
            appear in a witness-box is altogether a different act. A GPA cannot be allowed
            to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.‖
        34. Thus, in Sampathy‘s case, it was held that the complaint should be made only
in the name of payee and that he himself is to sign, which was partly followed in MMTC‘s
case. The guidelines in Ujwal Textile‘s case is that payee is to sign the complaint; that
there should be sworn statement taken by both the GPA as well as payee, etc. Thus,
the above three cases are alike in their judgments. But in Vishwa Mitter‘s case, the
Supreme Court has directed the eligibility criteria under Section 142 by contending that
according to Section 190, Cr.P.C., the qualification of the complainant to file a complaint
is irrelevant. Similarly in Ramesh‘s case, 2004 (2) Bankmann 464 (M.P.) and Ramesam
Aiyengar‘s case 1922 (XVI)- 16 L.W. 220, it was held that Court can receive the
complaint and insist upon the presence of the complainant and his statement at a later
point of time. The principle involved is that GPA can file complaint on behalf of payee
and he is incompetent to depose on behalf of payee.
        35. Mr. B. Sriramulu, learned counsel for the respondent has catalogued several
case laws in support of his contention. I may deal with some cases now.
        I (1994) BC 314 (Hamsa vs. Ibrahim) - K.T. Thomas, J.
        In that case, arguments was advanced that absence of such words in the statute
so as to enable the power-of-attorney to be a complainant is sufficient indication that
Legislature did not intend so. It is in support of the contention, Sections 198 and 199 of
Cr.P.C. were cited. As per those provisions, a Court is debarred from taking cognizance
of certain offences except upon a complaint made by some person aggrieved by the
offence concerned. However, special provisions, was made in both sections enabling
another person to file complaint on behalf of such aggrieved person: whereas Section
142 of the Negotiable Instruments Act does not contain similar provisions as found in
Section 199, Cr.P.C. It is in this circumstance, K.T. Thomas, J. in the above cited case
held that,
           ―no inference can be drawn that Parliament never intended to allow the
           complaint to be filed through an agent or power of attorney holder of a payee
           or holder in due course.‖
It was also observed that,
           ―according to the Law of England, every person who is sui juris has a right to
           appoint an agent for any purpose whatever, and that he can do so when he is
           exercising a statutory right no less than when he is exercising any other right
           ………. Blackburn, J., has stated in Queen vs. Justices of Kent, 1873 (8) Q.B.
           305, that at common law, when a person authorizes another to sign for him,
           the signature of the person so signing is the signature of the person
           authorizing it.
       36. Acknowledging the above principle, Supreme Court in 1956 SC 604 (Ravulu
Subbarao vs. IT. Commr.) observed that:
           ―the said rule is subject to certain well known exceptions such as, when the act
           to be performed is personal in character, or when the act to be performed is
           annexed to a public office, or to an office involving any fiduciary obligation.
           Thus, subject to such exception, the law is well settled that whatever a person
           can do himself, he can do through an agent.
           Making a complaint before a Court is not an act which would fall within the
           exceptions envisaged by Venkatarama Ayyar, J. in Ravulu Subba Rao vs. I.T.
           Commr, 1956 SC 604".
       37. The argument that Section 2 of Powers of Attorney Act cannot override the
specific provision of the rule made under a different statute was considered in Ravulu
Subba Rao‘s case. But, according to K.T. Thomas, J. [in the judgment rendered in I
(1994) BC 314] as was put in the above cited case law, the principle enunciated in the
said decision (Ravulu Subba Rao‘s case) has no application to Section 142 of
Negotiable Instruments Act since there is no requirement in it that the complaint should
be made by the payee or holder in due course ―personally‖. Thus, if only statute requires
that a particular act should be done by someone personally, then alone Section 2 of
Powers of Attorney Act, cannot override the specific provision of a rule made in
Negotiable Instruments Act. Therefore, it was held in the above cited case that, ―It would
not be in the interest of justice to construe the provision as containing a restriction that
the complaint should be made by the payee or the holder in due course (as the case
may be) ‗personally‘.‖ So long as it is not a personal act to be done according to the
Negotiable Instruments Act, then it would not fall into the exceptions to the well settled
law that whatever a person can do himself, he can do through an agent. It is on this
reasoning, as a result it was held that a power of attorney holder of a payee or a holder
in due course can make a complaint under Section 142 of the Negotiable Instruments
Act.
       38. Coming to decisions of Madras High Court, as early as on 20.4.1992, this
question was dealt with in a case law reported in 1992 (3) Crimes 1094(M/s.
Gopalakrishna Trading Co., Rep. by its Mgr. P. Sivaram vs. D. Baskaran) and the
question, that arose for consideration as to what is the procedure to be followed in the
case of preference or lodging of a complaint by the company as defined under the Act. It
was held by Janarthanam, J. that the complaint having been given by M/s.
Gopalakrishna Trading Company represented by its Manager, it cannot be stated that
the complaint had been preferred by any other person other than the company, which is
the payee and which is entitled to prosecute the drawer for committing the alleged
refraction or violation of provisions of Section 138 of Negotiable Instruments Act.
        39. The same view was taken by Justice Ramakrishnan in Kerala High Court in
C.B.S. Gramophone Records and Tapes (India) Ltd. vs. Noorudeen, 1992 (II) MWN
(Crl.) 160. In that case, the Company C.B.S. Gramophone Records and Tapes (India)
Ltd. was the complainant and N.K. Krishnan was only a representative of the company.
The payee of the cheque and complainant were the same. What had been lost sight of
by the Magistrate in that case was that Krishnan was not the complainant, but he was
only representing the company which was the payee or the cheque. It was held that so
long as the complainant is the payee of the holder in due course, a power of attorney
agent will not be prohibited from initiating and pursing a complaint for an offence
punishable under Section 138 of Negotiable Instruments Act.
        40. Then, coming to another case of Ruby Leather Exports etc. vs. K. Venu, etc.,
1994 (1) L.W. (Crl.) 34—Arunachalam, J., wherein the subject-matter was dealt with in
detail. It was held as follows:
            ―The eligibility criteria under the Negotiable Instruments Act does not get
            disturbed, if a GPA duly constituted initiates private complaints, for, as I have
            stated earlier, the Power of Attorney Agent, steps into the shoes of the payee
            or the holder in due course of the cheque.............
            Once a GPA makes the complaint, for all practical purposes, it is the payee or
            the holder in due course of the cheque, who is the complainant. The words in
            writing‘ mentioned in Section 142 (a) of N.I.Act, to my mind, cannot be
            restricted to mean that it must be in writing by the payee himself or the holder
            in due course himself for, if it is made by the GPA, it tantamounts to the
            complaint being made by the payee or as the case may be the holder in due
            course of the cheque. As rightly pointed out by one of the counsel, the words in
            writing‘ appear to have been introduced under Section 142 (a) of Negotiable
            Instruments. Act, contra Section 2 (d) of the Cr.P.C. which postulates an oral
            complaint as well.‖
Thus, according to the general law, there is no locus standi for setting the criminal law in
motion as was held by K.T. Thomas, J. In Hamsa‘s case, I (1994) BC 314. Since
Negotiable Instruments Act does not require the act to be done by holder in due course
or payee, Section 2 of Powers of Attorney Act can override the rule made in Negotiable
Instruments Act and that therefore, GPA can file a complaint; it is not as though, total
strangers, not contemplated under Section 142 (a) of Negotiable Instruments Act had
initiated complaints. Thus, general law is that there is no specific locus standi for setting
the criminal law in motion for act viz., Negotiable Instruments Act provides that a
complaint should be in writing by payee or holder in due course. But, in so long as that
act is not personal act by payee and holder in due course according to principle laid
down by K.T. Thomas, J. in Hamsa‘s case, Section 2 of Powers of Attorney Act can
override Negotiable Instruments Act. Therefore, GPA can file.
        41. Similar view was taken in Vishwa Mitter‘s case, 1983 (4) SCC 701 (cited
supra) that eligibility criteria provided in special enactment, if filed by complainant, then
there is end of the matter. Although Ruby Leather Exports, case did not directly deal with
the issue, as to whether person authorised in writing as payee would suffice, there was
mention in para 23 of that judgment, that GPA will come to the shoes of the payee or
holder in due course of the cheque and that they are not total strangers not
contemplated under Section 142 (a) of N.I. Act.
       42. In Madras High Court Justice M. Karpagavinayagam has approved this view in
the following three case law‘s wherein judgments were pronounced (i) on 6.8.1997 [1997
(2) L.W. (Crl.) 637-B. Mahendra Jain vs. C.K. Mohammed Ali], (ii) on 12.4.2001 2001 (3)
CTC 301- Krishnan, Prop. Kodeeswara Traders vs. S.P. Kumar] and (iii) on 25.1.2002
(Y. Sreelatha @ Roja vs. Mukanchand Bothra).
       43. In the Mahendra Jain‘s case, 1997 (2) L.W. (Crl.) 637, the decision of
Supreme Court in Ramachandra vs. State of Bihar, AIR 1967 SC 349, was
contemplated. According to that decision of the Supreme Court, the power of attorney
agent duly constituted could act on behalf of a person aggrieved. Based upon that
proposition, it was held in the above cited case by M. Karpagavinayagam, J., as follows:
           ―It is no doubt true, the wordings contained in Section 142 (a) would provide
           eligibility criteria to the effect that the complaint should be made only by certain
           categories of persons. But, this eligibility does not get affected, if a power
           agent initiates a private complaint on behalf of those categories of persons as
           contemplated under Section 142 (a) because the basic concept of power-of-
           attorney agent as interpreted in various decisions is that the power-of-attorney
           agent would step into the shoes of those categories of persons……………
           Therefore, in my view, the power-of-attorney agent of the payee or a holder in
           due course of the cheque, who is an individual will be competent to make a
           complaint in writing under Section 142 (a) of the Negotiable Instruments Act to
           facilitate the valid cognizance being taken by the Magistrate.‖
       44. In Krishnan‘s case, 2001 (3) CTC 301 (cited supra), payee is the Company in
whose name the instrument was drawn but the complaint was filed by one S.P. Kumar,
Manager as power of agent for the company. It was contended that the complaint was
not valid because Section 142 of Negotiable Instruments Act permits only the payee or
the holder in due course to be the complainant. Disagreeing with the view taken by
Andhra Pradesh High Court in M/s. Satish & Co. vs. M/s. S.K. Traders, 1998 Cri. L.J.
419 and agreeing with the view taken in M/s. Gopalakrishna Trading Co. vs. D.
Baskaran, 1992 (1) MWN (Cri.) 236 : 1992 (3) Crimes 1094, it was held that complaint
presented by the Manager representing the Company is valid in law.
       45. In Y. Sreelatha @ Roja‘s case, 2002 (2) Crimes 19 (cited supra) also, this view
was confirmed in the following words:
           ―there is no law which prohibits filing of complaint through power-of-attorney
           either on behalf of the individual or on behalf of the Company. Only when the
           validity of the power-of-attorney is questioned, the Court could be called upon
           to decide the genuineness or the validity of the power of attorney.
           In this case, it is noticed that the complaint was taken on the file on the basis of
           the sworn statement given by one Bhoopathy who is the power-of-attorney
           holder. Thereafter, when the trial commenced, the complainant himself was
           ready to depose his evidence.............
           Accordingly, the complainant, who is the payee and in whose favour the
           cheques in question were drawn was examined as P.W.1 in chief and cross.
           When such being the case, it cannot be contended that the power of attorney
           holder should not have been allowed to file the complaint.‖
Thus, the only view taken was that the complainant should be examined.
        46. In Calcutta High Court, in the judgment reported in II (1996) BC 382 (Sova
Mukherjee vs. Rajiv Mehra), the cheque issued by the power of attorney is construed
that the cheque issued by the complainant himself.
        47. In Punjab & Haryana High Court, in Surinder Singh vs. John Impex (P) Ltd., I
(1997) BC 247, it was held that a power of attorney agent of the payee or the holder in
due course is competent to make a complaint in writing under Section 138 of the
Negotiable Instruments Act to facilitate valid cognizance being taken by the Magistrate.
        48. In Gujarat High Court, in Anil G. Shah vs. I.J. Chittranjan Co., 1998 Cri. L.J.
3870, the observations made by K.T. Thomas, J. in Hamsa‘s case, I (1994) BC 314
mentioned supra was relied on. Reliance was also placed on Punna Devi vs. John
Impex (Pvt.) Ltd. case reported in 1996 (2) Banking Commercial Law Reporter 482,
wherein it was held that the eligibility criteria under the Negotiable Instruments Act does
not get disturbed, if a power-of-attorney holder duly constituted initiates private
complaint, for the power-of-attorney agent steps into the shoes of the payee or the
holder in due course. In fact, this was relied on by Justice Arunachalam in Ruby Leather
Export‘s case, 1994 (1) L.W. (Cri.) 34.
        49. Reliance was also placed on the case of Sk. Aabdur Rahim vs. Amal Kumar
Banerjee and State of West Bengal reported in 1996 Cri. LJ 555 wherein it was held that
Section 142 of N.I. Act does not lay down that the complaint must be filed by the payee
personally. When Section 142 does not specifically say that complaint must be lodged
by the complainant personally, then Section 2 of the Powers of Attorney Act will override
the provisions of N.I. Act as was mentioned by Justice K.T. Thomas. Reliance was also
placed on Vishwa Mitter‘s case, 1983 (4) SCC 701, in the above case of Anil G. Shah‘s
case, 1998 Cri.L.J.3870.
        50. In Bombay High Court, there are two cases:—
      (i)   Suresh Srinivasan Iyengar vs. State of Maharashtra & Others, 1998 DCR 346.
     (ii)   Dr. Pradeep Mohanbay vs. Mr. Minguel Carlos Dias, 2000 Vol. 102 (1)
            Bom.L.R.908.
Suresh Srinivasan Iyengar‘ case, 1998 DCR 346, followed the view of Justice
Janarthanam expressed in M/s. Gopalakrishna Trading Co. rep. by its Manager P.
Sivaram vs. D. Baskaran (supra) and Justice Ramakrishnan of Kerala High Court in
C.B.S. Gramophone Records and Tapes (India) Ltd. vs. Nosrudeen (supra).
        51. In Dr. Pradeep Mohanbay‘s case, 2000 Vol. 102 (1) Bom.L.R.908, (Judgment
dated 1.10.1999), the case laws in Hamsa vs. Ibrahim, 1994 (I) Crimes 395; Ravul
subba Rao and Ors. vs. Commr of Income-Tax, Madras, AIR 1956 SC 604; and Suresh
Srinivasan Iyengar vs. State of Maharashtra & Ors., 1999 (I) Crimes 161, etc. were dealt
with and found that GPA can be permitted to file a complaint.
        52. In Madhya Pradesh High Court in Dr. Anil Kumar Haritwal vs. Sant Prakash
Gupta Case, 2001 Cri.L.J. 3632, reliance was placed on Anil G. Shah‘s case, 1998 (2)
BC 108 : 1998 Cri LJ 3870, Hamsa vs. Ibrahim, 1994 (1) Banking Cases 314, and
Associated Cement Co., Ltd. vs. Keshav Chand, AIR 1998 SC 596 : 1998 Cri LJ 856. It
was held that GPA can file a complaint or holder in due course.
        53. In Karnataka High Court, in K.M. Maregowda vs. S.H.Ex. Import Corpn.,
Bangalore, 2004 Cri. LJ 4119, reliance was placed upon MMTC Ltd., vs. Medchl
Chemicals case, AIR 2002 SC 182; S.P. Sampathy‘s case, 2002 Cri LJ 2621; Anil
Kumar‘s case, 2001 Cri LJ 3632 (MP); and Associated Cement Co. Ltd. case, 1998 Cri
LJ 856. It was held in that Andhra Pradesh (DB) judgment reported in 2002 Cri LJ 2621
(Sampathy‘s case) to the effect that GPA holder has no entity in terms of Section 142 of
N.I. Act, is no more good law.
         54. In MMTC‘s case, AIR 2002 SC 182, the principle is when a complaint is in the
name of the Firm and not in the name of power-of-attorney holder, showing power-of-
attorney as a complainant, such complaint could be held as proper i.e., GPA could
represent complainant and present complaint on behalf of the complainant. Then, in that
case, examining power-of-attorney holder is sufficient compliance of Section 200,
Cr.P.C. Though Section 200, Cr.P.C. envisages examination of complaint on oath, it
would be proper to bear in mind the following observation made in the case of State of
Punjab vs. Shamlal Murari, AIR 1976 SC 1177, reiterated by the Supreme Court recently
in the case of Rosy vs. State of Kerala, AIR 2000 SC 637, that,
             ―We must always remember that procedural law is not to be a tyrant but a
             servant, not an obstruction but an aid to justice. It has been wisely observed
             that procedural prescriptions are the handmaids and not the mistresses, a
             lubricant, not a resistant in the administration of justice…………….
             Viewed in this perspective, even what is regarded as mandatory traditionally
             may, perhaps, have to be moderated into wholesome directions to be complied
             with in time or in extended time….. Even otherwise, at the most, non-
             examination of complainant and examination of power-of-attorney holder of
             complainant in such a case would be an irregularity and not an illegality, which
             does not vitiate the proceedings, particularly as such a procedure cannot be
             said to have prejudiced the petitioner accused in any way‖.
         55. Thus, from the above discussion it is made clear that complaint can be
presented by GPA on behalf of the payee, provided,
        (i) the complaint shall be signed by the payee himself;
      (ii)    there shall be also an affidavit of the complainant in proof of his execution of
              GPA; added to the production of the said power-of-attorney document;
     (iii)    sworn statement of GPA can be recorded on the date of presentation of the
              complaint;
    (iv)      sworn statement of payee (complainant) shall have to be taken in a future date
              on his appearance in Court; the Magistrate shall thoroughly examine the
              statements of GPA holder as well as the original complaint and documents
              produced before him and exercise his discretion vested under Sections 202
              and 203 of Cr.P.C.
The above guidelines are not exhaustive and in other circumstances the Magistrate shall
exercise his discretion judiciously and in conformity of other provisions of law applicable.
         56. For the reasons mentioned above, Criminal Original Petitions No. 1225 and
1226 of 2005 are ordered accordingly. In view of the circumstances of the case, the trial
Court will consider favourably petition under Section 317, Cr.P.C, whenever petitioner
could not appear in person, excepting for purpose of questioning that may arise. So,
Crl.O.P.No.1668 of 2005 is also ordered accordingly. Consequently, connected criminal
miscellaneous petitions are closed.
                                                              Ordered accordingly.
                            [2005 (2) T.N.L.R. 134 (Mad)]
                              MADRAS HIGH COURT
Before:
          M. Thanikachalam, J.

NEPC Agro Food Ltd., Madras                       ............................Appellant
                                       Versus
Nandagopal                                        .......................Respondent

                     [C.A.No.996 of 1995, decided on 25th April, 2005]
      (A) Negotiable Instruments Act, 1881—Sections 138 and 142—Companies
Act, 1956— Section 193 (1)(b)—Dishonour of cheque—Acquittal of accused—
Legality of—Cheque in question dishonoured with remarks “insufficient funds”—
On instruction of accused presented again but dishonoured with same remarks—
Statutory notice issued—The resolution authorizing the manager to sign the
complaint would be proper and not violative of Section 193 (1)(b) of the
Companies Act, 1956—Complaint well maintainable—Order of acquittal of
accused by Court below on the ground that complaint was violative of Section 193
(1)(b) of Companies Act, illegal and liable to be set aside—Accused held guilty
under Section 138 of Negotiable Instruments Act, 1881.
                                               (Paras 20 & 21)
      (B) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—
Legally enforceable debt—Proof of—It is the duty of the accused to prove that
there is no legally enforceable debt or the cheque was not issued for discharge of
any legally enforceable liability.
                                                                      (Para 7)

     Case Law:—1993 Comp. Cases (Vol 77) 324—referred.
     Counsel:—
            Mr. S.R. Rajagopal, for Mr. R. Karthikeyan, for the appellant; Mr. Abudu
            Kumar Rajarathinam for Mr. N. Arun Kumar, for the respondent.

                                        JUDGMENT
      M. Thanikachalam, J.—The complainant, having failed in its attempt to get a
conviction against the accused in C.C.No.1439/1993 under Section 138 of the
Negotiable Instruments Act (hereinafter called ‗the Act‘), has preferred this appeal.
      2. The facts leading to criminal case and acquittal:
       (a) The accused/respondent in the course of the business transaction,
            approached the complainant for financial assistance of Rs. 27,00,000/-, to
            purchase 6000 bags of wheat at the rate of Rs. 450/- per bag, as per the
            conditions agreed in the letter dated 10.8.1992. Accordingly, a sum of Rs.
            27,00,000/- was advanced by bankers cheque dated 11.8.1992. The
            accused agreed to pay the financial charge of Rs. 15 per bag for 15 days
               and 50 paise per bag for 15 days as godown rent. In pursuance of the
               agreement, the accused stored only 5930 bags of wheat and issued 3 bills
               also. The accused unable to sell the above said 5930 bags of wheat,
               requested the complainant to purchase the same at Rs. 445/- per quintal, as
               per the market rate prevailed in the last week of August 1992. He also
               further assured, that he would pay the difference of Rs. 5/- between the sale
               price per bag of Rs. 445/- and the price quoted in the bills viz., Rs. 450/-
               along with the financial charges and godown rent, as agreed. In this way,
               accounts were verified and it was found that a sum of Rs. 1,20,466/- was
               due, for which the accused issued a cheque bearing No. 569611 dated
               8.9.1992, drawn on Punjab National Bank, Madras-1, to discharge the sum
               of Rs. 1,20,466/- due and payable by the accused to the complainant.
         (b) The complainant presented the cheque for collection through their bank,
               which was returned unpaid on 12.9.1992 with an endorsement ―Insufficient
               funds‖ by the accused‘s bank, which was informed to the accused also. After
               the information given by the complainant, the accused instructed the
               complainant to present the cheque once again and accordingly, the cheque
               was presented for collection on 9.10.1992, which was returned once again,
               for the reason of ―insufficient funds‖, thereby showing, the accused had
               deliberately issued the cheque, knowing fully well, that he did not have
               sufficient funds in the bank and also failed to provide sufficient funds in his
               bank account, to honour the cheque, which is liable to be dealt with under
               Section 138 of the Act.
         (c) The complainant issued a statutory notice on 13.10.1992, which was
               received and acknowledged by the accused on 23.10.1992. As per the
               notice, the accused ought to have paid the amount, but failed to do so,
               thereby attracting the penal provisions of Section 138 of the Act. In this way,
               a private complaint was lodged before the VII Metropolitan Magistrate,
               George Town, Madras.
         (d) The accused, upon appearance, on questioning, denied the averments,
               thereby invited a trial, compelling the complainant to make out a case for
               punishment. The complainant, to establish the allegations in the complaint,
               aiming conviction, examined one Natarajan, the Manager, as P.W.1, seeking
               support from 16 documents. To eclipse the above materials, neither the
               accused has been examined nor any documents have been marked.
         (e) The learned Magistrate, weighing the above materials, came to the
               conclusion, that the complainant failed to prove the legal liability, that the
               statutory notice issued was not in accordance with law and that the
               resolution authorizing the manager to sign the complaint was not proper,
               since there was violation of Section 193(1) (b) of the Companies Act, 1956.
               Thus, concluding the complaint came to be dismissed, acquitting the
               accused on 13.6.1995, which is challenged in this criminal appeal.
        3. Heard the learned counsel for the appellant, Mr. S.R. Rajagopal and the learned
counsel for the respondent, Mr. Abudu Kumar Rajarathinam.
        4. The learned counsel for the appellant submitted that the trial Court had
committed a patent error in coming to the conclusion, that there was no enforceable
liability, ignoring the admitted facts as well as the presumption available legally. It is the
further submission of the learned counsel for the appellant, that the trial Court has also
failed to appreciate the notice, which had given the cause of action for lodging the
complaint, ignoring the previous information, which is not the base for laying the
complaint, giving cause of action. The further submission of the learned counsel for the
appellant, is that the effect of Section 193 of the Companies Act was not properly
considered and in this way, committing error, the trial Court had reached an erroneous
conclusion as if P.W.1 had no authority to represent the complainant. On these grounds,
conviction is sought for.
        5. The learned counsel for the respondent, opposing the above submissions
mainly urged, that there is no valid notice, which was rightly held by the trial Court and
that P.W.1 is not the competent person to prefer a complaint. On these two grounds
alone, the acquittal should deserve acceptance, was the submission on behalf of the
respondent/accused.
        6. Ex.P.3 is the cheque dated 8.9.1992 issued by the accused respondent in
favour of the appellant/complainant for a sum of                       Rs. 1,20,466/-. When
this cheque was presented for collection, it was returned unpaid on 12.9.1992 with an
endorsement ―insufficient funds‖ by the accused‘s bank as evidenced by Ex.P.4. This
matter was informed to the respondent/accused by a telegram (Ex.P.5), followed by
written communication, which was also acknowledged by the accused under Ex.P.6. It is
the case of the complainant, that on the basis of the instruction by the accused, once
again the cheque was re-presented on 9.10.1992 for collection and once again the
cheque was returned with an endorsement dated 10.10.1992 for the reason of
insufficient funds. As far as the above facts are concerned, there is no dispute.
        7. The cheque belongs to the accused is an admitted one. It is also admitted that
he had issued the cheque for a sum of Rs. 1,20,466/- favouring the complainant. Thus,
the complainant, being the holder of the cheque in due course, is entitled to certain
presumption, also as contemplated under Section 139 of the Act, that the holder of the
cheque received the cheque, for the discharge in whole or in part, of any debt or other
liability, as mentioned in Section 138 of the Act. In view of the admitted position, as far
as Ex.P.3 cheque is concerned, the appellant/complainant is entitled to a presumption,
unless the contrary is proved. Therefore, it is the duty of the accused/respondent to
prove, that there is no legally enforceable debt or the cheque was not issued for the
discharge of any legally enforceable liability.
        8. To prove the above aspect, practically, I should say, there is no evidence of any
kind. As said above, the accused has not let in any evidence and he has also not
examined himself as witness. This being the position, certainly the Court has to accept
the oral evidence of P.W.1, supported by the presumption, unless the rebuttal evidence
is available in the evidence let in by the prosecution itself, for which there is no material
at all. Unfortunately, the trial Court, in my considered opinion, has proceeded, as if the
burden is only upon the complainant to prove about the existence of the legally
enforceable debt, forgetting Section 139 of the Act and committed a grave mistake,
which should be rectified by this Court. Even assuming, that the preliminary
responsibility is upon the complainant, in this case, it should be held, by going through
the oral evidence of P.W.1, supported by documents, that the initial burden was fully
discharged.
        9. The manager of the complainant company as P.W.1 has categorically deposed
about the financial help sought by the accused, entrusting of 5930 bags of wheat and the
payment of Rs. 27,00,000/- also by the bankers cheque, not disputed. It is the further
case of P.W.1, that the accused respondent had agreed to pay the financial charge of
Rs. 15 per bag for 15 days and 50 paise per bag for 15 days as godown rent, not
challenged. It is also an admitted position, since not challenged, that the accused was
unable to sell the wheat bags and discharge the debt and therefore, he approached the
complainant, who agreed to purchase the wheat at the rate of Rs. 445/- per bag,
agreeing to pay the difference for Rs. 5/- between the sale price per bag of Rs. 445/- and
the price quoted in the bills at Rs. 450/- alongwith financial charges as well as rent. In
this way alone, the amount was deduced at Rs. 1,20,466.25/-. From the facts spoken by
P.W.1, I am unable to find any answer elicited from him, eclipsing the liability or making
the complainant as the person liable to pay any amount to the accused, though a casual
suggestion was thrown to P.W.1. If really the complainant had to pay a sum of Rs.
36,348.50, as suggested to P.W.1, nothing would have prevented the
accused/respondent to go into the box and explain, supported by the documents, which
he has not done in this case. Therefore, it should be concluded, accepting the oral
evidence of P.W.1, supported by certain admitted facts, that there was legally
enforceable liability and only in order to discharge the said liability, the accused had
issued the cheque in question viz., Ex.P.3. This conclusion should have the support of
Section 139 of the Act. The trial Court, without approaching the case properly on the
admitted facts, unnecessarily entertained a doubt, which had not arisen spontaneously,
had given the benefits of that unnecessary doubt to the accused, which should be
extinguished or erased.
       10. Section 138 of the Act contemplates punishment not for mere return of the
cheque or dishonour. It contemplates punishment, if the drawer of the cheque, after the
return of the same, fails to make the payment of the said amount to the payee, within 15
days from the date of the notice, as contemplated under Section 138 (b) of the Act, on
the issue of notice demanding for the payment of the cheque amount and it further says,
that non-payment of the cheque amount alone gives cause of action to file a criminal
complaint and not otherwise. In this way, it is a settled proposition of law, unless a valid
notice has been issued successfully, prosecution could not be maintained.
       11. In this case, the submission of the learned counsel for the
respondent/accused, that there was no valid notice appears to be an invalid defence,
which could be seen from the documents produced on behalf of the complainant. It is an
admitted position, that the cheque was presented for collection at the first instance on
8.9.1992, returned dishonouring on 12.9.1992, which was informed to the accused. The
above facts are evidenced by Exs. P4 to P6, not in dispute.
       12. Ex.P.5 is the communication sent by Chandra Mouleeswaran, to the accused
informing the dishonour of the cheque, demanding payment of Rs. 1,20,466/- with
interest at 24% p.a. within 24 hours. If on the basis of Ex.P.5 alone, the complaint has
been filed, certainly it must be an invalid prosecution, since it failed to fulfil the
ingredients required under Section 138 proviso (b) of the Act. On the basis of Ex.P.5,
admittedly, the case has not been filed, showing as if this alone gave cause of action to
file the complaint. It is the case of P.W.1, as averred in the complaint itself, that at the
instruction of the drawer, the dishoured cheque was re-presented once again on
9.10.1992, which was also returned on account of ‗insufficient funds‘ on 10.10.1992,
which is evidenced by Ex.P.7 also. A cheque could be re-presented many times within
the period of its validity. After presentation and return, if a statutory notice has been
issued, probably only thereafter, the re-presentation and further cause of action on that
basis should be described as not maintainable, in view of the fact, the first notice itself
has given cause of action for filing a criminal complaint. In this case, the communication
sent on behalf of the complainant, does not come within the ambit of Section 138 (b) of
the Act and therefore, re-presentation of the cheque is not barred. When P.W.1 has
given evidence, as averred in the complaint also, upon the instruction given by the
drawer, the cheque was re-presented, the same was not challenged by the examination
of the accused. In this way, it should be held, the second re-presentation of the cheque
for collection, is valid in the eye of law. After the second re-presentation also, the cheque
was not honoured. After the return, the complainant has issued a legal notice on
13.10.1992 as evidenced by Ex.P.2, which is in conformity with the provisions of law, no
dispute. It is the case of the prosecution that this notice was acknowledged by the
accused respondent on 23.10.1992 under Ex.P.13, which was confirmed by the
communication from the Chief Post Master as seen from Ex.P.14. For this notice, no
reply has been issued.
       13. On the other hand, it is the case of the accused respondent, that he has not
received the original of Ex.P.12, whereas, except Ex.P.5, he has not received any other
notice. Thus, admitting the acknowledgement of Ex.P.5, which is not in conformity with
Section 138 (b) of the Act, an attempt was made to say that the notice is invalid. Further
in the acknowledgement, the date is typed as 13.10.1992 i.e. the date of issue of the
notice, where the accused had acknowledged. For this, an explanation was given by
P.W.1, which is quite acceptable, ignoring the mistake viz., that while preparing the
acknowledgement, while sending the notice, the date was typed as 13.10.1992. To
come to a definite conclusion that the notice was received by the accused, there is
ample evidence such as the certificate issued by the Postal Department. Not only that,
as spoken by P.W.1 under Ex.P.16, Ex.P.12 notice was sent to the accused giving the
correct address also. Therefore, it should be presumed, that the complainant has issued
a notice to the accused in writing on 13.10.1992, which was received and acknowledged
by the accused on 23.10.1992. If really the accused has not received the original of
Ex.P.12 under Ex.P.13, he should have produced the document received by him under
Ex.P.13, by examining himself also, as witness exposing that fact. Unfortunately, for the
accused and fortunately for the complainant, he has not gone into the box, to say that he
has not received Ex.P.12 under Ex.P.13, whereas he has received some other
communication. In this way, accepting the oral evidence of P.W.1, P.W.13, P.W.14, and
P.W.16, I should conclude that, there was a valid notice dated 13.10.1992, since it is in
conformity with Section 138 (b) of the Act. It is not the case of the accused respondent
that Ex.P.12 is invalid, since it is not in conformity with the requirements of the Act.
Unfortunately, the learned trial Judge, for the reasons best known to him, ignoring the
acceptable materials available on record, had entertained a doubt unnecessarily, as if
the complainant has failed to prove the valid notice and the said mistake committed by
the trial Court should be erased, by allowing the appeal.
       14. The main thrust of the learned counsel for the respondent was, that P.W.1 has
no authority to represent the complainant and therefore, the very filing of the complaint
under his signature is invalid and in this view, the accused is entitled to an acquittal, as
held by the trial Court, which is countered. By going through the provisions of law, as
well as the resolution passed by the complainant company, I am unable to subscribe my
view to the above said contention.
       15. Section 142 of the Act prescribes conditions for taking cognizance of the
offence and they are; the complaint should be in writing made by the payee or the holder
in due course of the cheque. In this case, the cheque was drawn in favour of the
complainant and he is the holder in due course of the cheque also. Thus, the
complainant comes within the meaning of payee as well as holder in due course of the
cheque. The section contemplates, the complaint must be in writing made by the payee.
Here, though the complainant is shown as the payee, the complaint was not signed by
the payee, whereas it was signed by P.W.1, the Manager of the complainant company
under authorisation, as averred in the complaint itself. The cause title of the complaint
reads:
       ―NEPC AGRO FOODS LTD, 36 Wallajah Road, MADRAS 600 002.‖
       Therefore, it could be said, without contradiction, that the payee alone has filed the
complaint in writing, whether it is signed by the person authorised or not. In this way, in
my considered opinion, the complaint comes within the meaning of Section of 142 of the
Act and there is no defect in the complaint also. Therefore, it may not be necessary to go
into detail, whether Section 142 of the Act is complied with or not. However, a doubt
should arise whether it is a complaint presented by the payee in writing before the Court,
since payee himself had not signed. Only in this way, we have to see the authorisation
or authority said to have been given to P.W.1.
       16. Ex.P.1 is the extract of the minutes of the meeting of the Board of Directors of
the company held on 31.10.1992 at the Registered Office of the Company, wherein it is
resolved authorizing Mr. Natarajan, the signatory to the complaint to sign the complaint
to be filed against Mr. Nandagopal, the accused before the concerned Court. The Board
of Directors are competent to resolve authorizing a person to sign a complaint, not
challenged. P.W.1 has spoken about the resolution passed authorizing him to file the
complaint on behalf of the company. It appears, marking of Ex.P.1 was objected to. By
going through the cross-examination, I am unable to find even any suggestion
challenging the resolution passed by the Board of Directors authorizing P.W.1 to sign
complaint and to present criminal complaint before the Court concerned. Therefore, it
could be safely concluded, that the resolution passed by the Board of Directors of the
Company on 31.10.1992 authorising Natarajan is not under challenge. Thus, P.W.1
deriving authority on the basis of the resolution passed by the Board of Directors, is
competent to sign the complaint on behalf of the payee/complainant, thereby favouring
the requirements of Section 142 of the Act also. Hence, I should conclude, the complaint
filed by the payee, signed by the authorised person on the basis of resolution, should be
held as valid.
       17. Section 193 of the Companies Act guides how minutes of all proceedings of
every general meeting should be maintained, wherein it is said that the minutes should
be entered in books kept for that purpose with their pages consecutively numbered.
Further 193 (1-B) of the Companies Act says, in no case, the minutes of proceedings of
a meeting shall be attached to any such book as aforesaid by pasting or otherwise. In
the case on hand, the resolution passed is typed in the loose sheets and stitched as a
bound book, thereby showing it is not entered in the book kept for that purpose, with
their pages consecutively numbered. Thus, it is seen there is some violation in
maintaining the minutes of the proceedings of the general meetings and of Board and
other meetings. Taking advantage of this fact, a strenuous argument was made on
behalf of the respondent that on the basis of Ex.P.1, which was not in accordance with
Section 193 of the Companies Act, it should be held that since the minutes are not
properly maintained, it will not confer any power upon P.W.1 to maintain a complaint.
Though the argument was so attractive at the first instance, deep consideration of
Section 193 and the subsequent sections which give presumption to the resolution, fails
to convince me, to affix my seal of approval to the abovesaid contention of the learned
counsel for the accused.
       18. In order to invalidate, if possible the resolution passed by the complainant
company, as evidenced by Ex.P1, my attention was drawn to a decision of this Court in
V.J. Balasundaram vs. New Theatres Carnatic Talkies, 1993 Company Cases (Vol. 77)
324 and another decision in Micrometrics Engineers Pvt. Ltd. vs. S. Munusamy, (sic)
(Mad) 465. In both the cases, when the resolution passed by the Board of Directors was
challenged on the ground that Section 193 of the Companies Act is not complied with, it
is held that no presumption is available under Section 195 of the Companies Act, when
the presumption is not available under Section 193 of the Companies Act, since the said
section was not complied with. It is also true, that in both the cases, it is held, only if
minutes book are maintained in accordance with the provisions of Section 193 and
original minutes book is not produced, by producing the copy alone, no presumption
could be claimed either under Section 193 or under Section 195 of the Companies Act.
In the case on hand, as rightly submitted by the learned counsel for the appellant, the
resolution passed by the Board of Directors, which is evidenced by Ex.P.1 spoken by
P.W.1, not challenged, in the sense, there was no such resolution or that resolution has
not authorised P.W.1 to sign in the complaint, which was filed as contemplated under
Section 142 of the Act. Therefore, we have to see whether the non-compliance of
Section 193 is illegal, whether that itself would invalidate the resolution passed by the
Board of Directors, if it is otherwise proper.
        19. Section 193 of the Companies Act gives guidelines how the proceedings of the
General Meetings of and Board and other meetings should be entered in the book, for
which a book should be kept, with their pages consecutively numbered. As adverted
supra, it also mandates no pasting or attaching additional sheets should be done. In the
case on hand, it is the not the question of attaching additional sheet or pasting in the
book. From the original resolution, it is seen, all the proceedings were fed in the
computer and it seems after taking printouts, they were stitched together, thereby
showing original resolutions were typed in the loose sheets. The procedure adopted by
the complainant company appears to be not in accordance with Section 193 of the
Companies Act. Therefore, if at all, if any presumption is sought under Section 194 or
195 of the Companies Act, it may not be available to the complainant and nothing more.
        20. Section 194 of the Companies Act says that the minutes of the meeting kept in
accordance with Section 193 shall be evidence of the proceedings recorded therein. It
does not say, if the proceedings are not recorded as contemplated under Section 193,
the resolution itself is invalid. In the same way, in Section 195 also, when presumption is
sought on the basis of Section 193, it is said that presumption to be drawn, where
minutes duly drawn and signed and kept in accordance with the provisions of Section
193. Here also, there is no negative provision invalidating the resolution on the basis of
violation of Section 193. For the violation of Section 193, there is a penal provision and if
at all, for that non-compliance of Section 193, company could be prosecuted and nothing
more. In this view of the matter, for the non-compliance of Section 193, if at all, the
company could be prosecuted and the resolution passed by the company cannot be
invalidated, that too especially when the resolution is not challenged by the contesting
party viz., in this case, the accused, who is also not entitled to challenge the same, since
he is not in any way connected with the company affairs. Therefore, the decision relied
on by the learned counsel for the accused/respondent may not come to his aid to non-
suit the complainant. In this context, we have to see the purpose of the resolution in
terms of Section 142 as well as in terms of Section 141 of the Act.
        21. Section 141 of the Act deals the offences committed by companies, wherein
directions are given, who is liable to be dealt with in cases of offences by companies. In
sub-section (2) of Section 141, it is said that if it is proved that the offence has been
committed with the consent or connivance, or is attributable to, any neglect on the part
of, any director, manager, secretary or other officer of the company, they shall also be
deemed to be guilty of that offence and shall be liable for punishment, thereby showing
even in the case of company, a manager, who was responsible for the company, should
be dealt with. But at the same time, when the question comes, who is competent to
prefer a complaint, Section 142 says, the Court shall take cognizance of the offence only
upon a complaint in writing made by the payee or the holder in due course of the
cheque. Here, we do not find any reference about the company, such as available in
Section 141, thereby showing only the payee or the holder in due course alone is
competent to lodge a complaint in writing. In a case of company, the Board of Directors
are competent to pass a resolution and vest power in a person and that person takes the
role of payee or holder in due course of the cheque, only for limited purpose, based
upon the resolution and in this way, P.W.1, who was authorised by the Board of
Directors, has signed in the complaint, which was filed in the name of payee or who is
the holder of the cheque also. Therefore, there is no violation of Section 142 in this case.
Unfortunately, the trial Court, without considering the effect of resolution, taking the face
value of Section 193 of the Companies Act, invalidated P.W.1 as if he is incompetent to
represent the company, which is, in my considered opinion, legally unsustainable. For
the foregoing reasons, I conclude that the complaint filed, signed by P.W.1, being the
authority empowered under Ex.P.1 is well maintainable and the finding contra by the trial
Court has to be erased. In this view, the appeal deserves acceptance and the same is
accepted, resulting the following order.
        The appeal is allowed and the order of the acquittal of the respondent is set aside
and the accused-respondent is found guilty under Section 138 of the Act, for which he is
directed to undergo S.I. for six months, in addition to pay a compensation of Rs. 50,000/-
, failing which directed to undergo three months S.I.
                                                                      Appeal allowed.



                               [2005 (2) T.N.L.R. 144 (SC)]
                                   SUPREME COURT
Before:
           Ashok Bhan & A.K. Mathur, JJ.

U.P. State Road Transport Corporation
Through its Chairman                         .....................................Appellant
                                          Versus
Omaditya Verma & others                      ...............................Respondents

            [Civil Appeal Nos. 6716-6719 of 1999, decided on 5th April, 2005]
      (A) Motor Vehicles Act, 1988—Road permits—Nodified routes—If a scheme
is notified same, prohibits plying of private vehicles except as permitted by the
scheme—Route from Bijnore-Noorpur-Chandpur was notified under scheme
published in Official Gazette of State of U.P. on 12. 2. 1952—Under another
Gazetted notification dated 15.10.1962— Scheme was prepared from Bijnore to
Muzaffarnagar route and entire route stood notified—Issuance of permits in
pursuance of the resolution passed by State Transport Authority, unjustified.
                                                               (Paras 5 &6)
      (B) Constitution of India, 1950—Article 136—Special leave petitions—
Dismissed in limine—Held, does not amount to upholding of the law propounded
in the decision sought to be appealed against.
                                                                   (Para 6)
      Case law:—JT 1996 (3) SC 567; JT 1997 (5) SC 100; 1986 (4) SCC 146; 1989 (4)
SCC 187; 1999 (6) SCC 559; 1998 (1) SCC 598 —referred; 2002 (2) SCC 560—relied
on.

         Counsel:—
                Rakesh Kumar Dwivedi, Sr. Advocate, Pramod Swarup, Ms. Pareena
                Swarup and Ameet Singh, Advocates for the appellant; Gaurav Jain, Ms.
                Abha Jain, Advocates for the respondent No. 17 in C.A. No. 6716/99; S.
                Borthakur, Sunil K. Jain, Advocates, for the respondent No. 15 in C.A. No.
                6717/99 ; M.S. Mitter & Mitter Co., Advocates (NP) for the respondent
                Nos. 13 in C. A. No. 6717/99 & 18 in C.A No. 6716/99.

                                     Important Point
      If a scheme is notified it prohibits the plying of private vehicles, unless permitted
by the scheme.

                                       JUDGMENT
       A.K. Mathur, J.—In all these four appeals, the questions of law and acts involved
are common, as such they are disposed of by this common order.
       2. This case has a chequered history. But before we enter into the chequered
history, a few important facts may be noticed. The route from Bijnore-Noorpur-Chandpur
was notified under a scheme which was published in the Official Gazette of the State of
U.P. on February 12, 1952. Thereafter, by another Gazetted notification dated October
15, 1962, a scheme was prepared from Bojnore to Muzaffarnagar route of Meerut
region. It was directed that the State Road Transport service shall commence operation
from November 15, 1962 or thereafter. Thereafter, on September 28, 1977, another
route was notified from Muzaffarnagar to Bijnore via Bhopa, Morna and Rawalighat. This
was again modified by another notification dated 3rd September, 1994 after hearing
objections, Muzaffarnagar to Bijnor route of Meerut region i.e. Muzaffarnagar via
Jansath, Meerapur, Dewal instead of viz., Bhopa and Morna and Rawalighat. As a result
of these two aforesaid schemes the entire route, Muzaffarnagar Jansath, Meerapur,
Dewal to Bijnore stood notified. Therefore, these two schemes are the subject-matter of
the present litigation. Relevant portion of these two notifications i.e. notifications dated
February 12, 1952 and September 3, 1994 are reproduced herein below.
       NOTIFICATION DATED FEBRUARY 12, 1952
Region      Name of the Route        Date of              Number Type and carrying Number of
                           Commencement of SRT        Capacity of                Services
                           of operation of     Services          Vehicles         Operated by
                           State Road                        State                others       on
                                   Transport                      other                              the Route
                                                                  Exclusively                      or Part of it.
         1              2                         3                    4                5                           6
7


BAREELLY
XX                      XX                       XX               XX                    XX                          XX
18.          Bijnor-Noorpur-                   1.2.49             2            Stage Carriage                 Nil          Nil
             Chandpur                                             24-40 Seater.
XX                      XX                      XX                XX                    XXX                         XX


NOTIFICATION DATED SEPTEMBER 3, 1994.
Serial No.              Notification No. and date       Name of the approved                 Modification proposed.
                        By which the scheme was         scheme in which the
                        approved                        modification is proposed.
    1                        2                                             3                         4
    1.                  479015-XXX-2-B-60, dated        Scheme regarding to                     The approved scheme
                        October 15, 1962 and No.        Bijnore to Muzaffarnagar     mentioned in Column 3
                        4517/XXX-2-429-86,                     route of Meerut Region                      is modified to cover the
                        dated September 28, 1977                                                route between Bijnore
                                                                                                           and Muzaffarnagar via
                                                                                                          Jansa thmeerapur-Dewal
i                                                                                                        instead of The Route via
                                                                                                         Bhopa and Morna.


      These civil appeals on grant of special leave have been filed against the common
order passed by the Division Bench of the Allahabad High Court dated September 26,
1997 whereby the High Court allowed four writ petitions i.e. Civil Misc. Writ Petition Nos.
9990, 15746, 20187 and 23496 of 1997 and set aside the order dated July 17, 1990
quashed the same and directed the Secretary, State Trasnport Authority, State of Uttar
Pradesh, Lucknow to issue permit to all grantees who have not been issued permits on
the basis of the resolution dated June 14-15, 1993 forthwith and without any delay.
Aggrieved against this common order the present appeals were filed by the Uttar
Pradesh State Road Transport Corporation (hereinafter to be referred to as ―UPSRTC‖).
       3. At the initial stage, notice was directed to be issued on November 13, 1998 on
the application for condonation of delay as well as on the SLP but no interim order was
passed. Thereafter, leave was granted on November 18, 1999. On May 11, 2000
interlocutory applications were dismissed. Now, the appeals have been set down before
us for hearing. Office report dated February 21, 2005 shows that in CA 6716 of 1999, all
the 23 respondents were served, excepting respondent Nos. 17 and 18 who are
represented by Ms. Abha Jain and M/s. Mitter & Mitter & Co., the rest of the respondents
have not chosen to enter appearance. In Civil Appeal No. 6717 of 1999 there are 21
respodnents, all of them though served by dasti, respondent Nos. 1 to 12, 14 and 16 to
21 have not chosen to appear and contest the proceedings. Respondents Nos. 13 and
15 are represented through M/s. Mitter & Mitter & Co. and Mr. Sunil Kumar Jain,
Advocate respectively. In Civil Appeal No. 6718 of 1999 there are three respondents and
all of them have been served by dasti. But they have not entered appearance. In Civil
Appeal No. 6719 of 1999 there are three respondents. All of them have been served but
they have not chosen to enter appreance. Hence, all these appeals are before us.
       4. The State Transport Authority of U.P. by resolution dated June 14-15 of 1993
granted 38 regular stage carriage permits in the route, namely, Muzaffarnagar-Chhajlet
via Gangabridge, Bijnore and Noorpur. Out of 38 persons, 11 persons were issued with
necessary permits in the month of July, 1993. Thereafter series of writ petitions were
filed in the High Court. The first writ petition was filed by Sh. Harpal Singh being Writ
Petition No. 3511 of 1993 before the Lucknow Bench of the High Court in which an
interim stay order was passed on August 16, 1993 restraining the State Transport
Authority from issuing permits on the route, in question. The Secretary, State Transport
Authority, Lucknow passed an order on July 31, 1993 directing 11 permit holders to ply
vehicles on Muzaffarnagar-Chhajlet via Jolly-Jarwar-Katia route. The Chairman, State
Transport Authority, U.P. Lucknow passed another order on February 2, 1995 directing
the said 11 permit holders to ply their vehicles on Muzaffarnagar-Chhajlet route via
Jansath-Meerapur. The order passed by Secretary, State Transport Authority, U.P.
Lucknow on July 31, 1993 was challenged by one Smt. Saima Jamal in a writ petition
being Writ Petition No. 4250 of 1994 at Lucknow Bench of the High Court. Another Writ
Petition being petition No. 7875 of 1994 was filed by one Sanjeev Kumar challenging the
order passed by the Secretary, State Transport Authority, U.P., Lucknow on July 31,
1993. A subsequent writ petition being Writ Petition No. 6774 of 1995 was also filed by
one Smt. Shashi Goel challenging the order passed by the Chairman, State Transport
Authority, U.P., Lucknow on February 2, 1995. The two writ petitions i.e Writ Petition No.
7875 of 1994 and Writ Petition No. 6774 of 1995 filed before the Allahabad High Court
were decided by the Division Bench by its order dated May 5, 1995 and order dated July
31, 1993 passed by the Secretary, State Transport Authority, U.P. Lucknow and the
order dated February 2, 1995 passed by the Chairman, State Transport Authority, U.P.
were quashed and the State Transport Authority was directed to pass a specific order
indicating the route for which the permit was granted in the meeting of June 14-15, 1993.
This order dated May 5, 1995 passed in Writ Petition No.7875 of 1994 and Writ Petition
No. 6774 of 1995 was challenged in Special Leave Petition (C) No. 13594 of 1995 which
was decided by this Court by order dated July 21, 1995. The following order dated July
21, 1995. The following order was passed by this Court.
         ―Heard the counsel for both the parties.
         Leave granted.
         We are of the opinion that there are several disputed questions of facts and
         law which require a clear and comprehensive investigation. For example, one
         of the questions is whether the original permit granted to the petitioner on the
         route Muzaffarnagar to Chajlet via Meerapur, Ganga Bridge and Noorpur runs
         along the route Muzaffarnagar, Joli, Behra Sadar, Jadwad Katia and Meerapur.
         There is also a controversy as to whether the route Muzaffarnagar to Meerapur
         is nationalized or not and further whether there are any High Court orders
         precluding the grant of permit on the sector Muzaffarnagar to Meerapur. In all
         these circumstances, we are of the opinion that all these matters should be
           sent to S.T.A.T., which shall treat the writ petitions filed in High Court as
           appeals and after hearing all the parties, dispose of the matters in accordance
           with law.‖
Therefore, by this order the matter stood remanded to the State Transport Appellate
Tribunal for its decision. In pursuance of the aforesaid order passed by this Court, three
other writ petitions being Writ Petition No. 4250 of 1994 filed by one Saima Jamal before
the Lucknow Bench of the High Court, Writ Petition No. 6774 of 1995 filed by Smt.
Shashi Goel and Writ Petition No. 7875 of 1994 filed by Sanjiv Kumar were transferred
to the Tribunal and they were registered as Appeal Nos. 127, 142 and 143 of 1995
respectively. The S.T.A.T. by its order dated January, 27, 1996 allowed the appeals and
set aside the orders dated July 31, 1993 and October 25, 1994 passed by the Secretary,
State Transport Authority, U.P., Lucknow; and order dated February 2, 1995 passed by
the Chairman, State Transport Authority, U.P., Lucknow. It was held by the Tribunal that
the original permits in pursuance of the resolution dated June 14-15, 1993 were granted
via Jansath-Meerapur. Till that time, the notification dated September 3, 1994 had not
come into force notifying the route Muzaffarnagar-Bijnore via Jansath-Meerapur as a
notified route and the impugned resolution passed by the Regional Transport Authority
was not hit by the notified route. But it appears that perhaps inadvertently all the parties
were totally oblivious of the fact that Bijnor-Noorpur-Chandpur route was notified under
the scheme on February 12, 1952. Therefore, no permit could have been granted
covering Bijnore-Noorpur route up to Chajlet. Be that as it may, the resolution was
passed by the Regional Transport Authority granting permit on the route Muzaffarnagar-
Jansath, Meerapur. Dewal, Bijnore and Chajlet covering Bijnore to Noorpur notified
route.
       5. The order passed by the Tribunal on January 27, 1996 after remand was again
challenged by Smt. Shashi Goel by filing two writ petitions in the High Court at
Allahabad. Both the writ petitions were dismissed by the High Court of Allahabad by its
judgment dated April 30, 1996 and the order of the Tribunal was upheld. The said order
dated April 30, 1996 passed by the High Court of Allahabad was again challenged
before this Court in Special Leave Petition (C) Nos. 14269 and 14270 of 1996. However,
both the Special Leave Petitions were dismissed after hearing counsel for the parties by
order dated August 5, 1996. The litigation did not stop here. One Dharmendra Singh
filed Writ Petition No. 37607 of 1995 before the High Court at Allahabad challenging
grant of 38 permits by resolution dated June 14-15, 1993. This writ petition was
dismissed by the High Court on March 3, 1997. Again a review application was also filed
before the High Court which was also dismissed by the High Court by its order dated
July 24, 1997. Since permits were not granted to 21 grantees, another writ petition being
Writ Petition No. 9990 of 1997 was filed by Omaditya Verma and 20 others before the
High Court of Allahabad seeking direction against the Chairman, State Transport
Authority and Secretary, State Trasnport Authority, U.P., Lucknow for issuing permits in
their favour in pursuance of the resolution dated June 14-15, 1993. That writ petition was
heard and Shri M.P. Dubey, Standing Counsel sought time to file impleadment
application and Shri A.D. Saunders also moved an application for impleadment on behalf
of Dharmendra Singh as a respondent. However, the High Court directed learned
counsel for the writ petitioners to implead the U.P. State Road Transport Corporation-
present appellant as a respondent. However, in the meanwhile on July 10-11, 1997, 16
permits were issued in favour of grantees. An objection was filed before the Secretary,
State Transport Authority, U.P. Lucknow, requesting him not to issue permits because of
the stay order passed by High Court at Lucknow, bench in Writ petition No. 2600 of
1993, same were not vacated by the High Court nor modified, therefore, issuance of
permit on July 10-11, 1997 in pursuance of the resolution passed by the State Transport
Authority in June 14-15, 1993 was not correct. The Secretary, State Transport Authority,
U.P. Lucknow passed an order on July 17, 1997 directing the writ petitioner to deposit
their permits and stop plying the vehicles. The said order dated July 17, 1997 ultimately
formed subject-matter of the present writ petition before the High Court. The Division
Bench after hearing the parties at length held that there was no justification for the
Secretary, State Transport Authority, U.P. Lucknow to pass the aforesaid order when the
resolution dated June 14-15, 1993 has travelled right up to the Apex Court and attained
the seal of approval. The say order passed in Writ Petition No. 2600 of 1993 should not
have been utilized by the Secretary, State Transport Authority to recall the permits
issued in favour of the writ petitioners. It was further observed by the High Court that in
fact objections were frivolous and non-existent because the resolution of the Regional
Transport Authority passed on June 14-15, 1993 has travelled through series of
litigations and final order was passed by the High Court of Allahabad and subsequently
affirmed by the Apex Court, as such, it was not proper for the State Transport Authority
to have disturbed that order. Secondly, it was also observed by the High Court that no
opportunity was afforded to the persons whose permits were recalled without hearing
them or without giving them notice. It was further observed that the impact of the
notification dated September 3, 1994 had been considered at length and no illegality
was found on that basis and the resolution dated June 14-15, 1993 granting permits to
the writ petitioners. It was further observed by the High Court that it was not open to be
considered. The attention of the High Court was also invited to an order passed in Writ
Petition No. 2576 of 1997 by the Lucknow Bench of the High Court on August 12, 1997.
In that writ petition it was observed that in view of the notification dated September 3,
1994 it would not be advisable to grant permit as the route has been notified. Learned
Division Bench held that in view of the earlier decision of the Apex Court in these
proceedings the controversy could not be reopened. In this connection a reference was
made by the High Court to a decision of this Court in the case of State of Maharashtra
and another vs. Prabhakar Bhikaji Ingle reported in JT 1996 (3) SC 567. In that case it
was observed that when self-same order was confirmed by the Apex Court then the
order of the Tribunal stood merged with the order passed by this Court. A similar view
was also expressed in the case of Narayana Bharma Sangal Trust vs. Swami
Prakashananda & others, reported in JT 1997 (5) SC 100. In the light of above facts the
Division Bench held that it is not open to the respondents to challenge the grant of
permits on the basis of the notification dated September 3, 1994 when the matter was
remanded back to the Tribunal by the Apex Court by order dated July 21, 1995 and it
was also observed that it finally decided the issues and operates as res judicata. It was
observed that the resolution passed on June 14-15, 1993 granting 38 permits more than
four years have passed yet permission has not been granted. Therefore, direction was
issued to implement the resolution dated June 14-15, 1993. Hence, the present appeals
on grant of special leave petition by this Courts.
        6. In fact, we have reproduced the relevant portions of the two notifications in the
beginning of this judgment. The main purpose of reproduction of both notifications was
to show that the route in question i.e Muzaffarnagar to Chajlet covers the notified route
from Bijnore to Noorpur which is notified route since 1952. We fail to understand how
permit could be granted by the resolution dated June 14-15.1993 from Muzaffarnagar to
Chajlet in face of the notified scheme of 1952 from Bijnor to Noorpur. The scheme was
of total exclusion. In fact the resolution dated June 14.15, 1993 is totally unmindful of the
1952 notification that the route from Bijnor to Noorpur which falls on the route from
Muzaffarnagar to Chajlet is notified route. This facts was no-where brought to the notice
of the authorities either before the Regional Transport Authority or State Transport
Authority or before the High Court of Allahabad or for that matter to the Apex Court. This
Court by order dated July 21, 1995 only remanded the matter back to the Tribunal for its
decision. In those appeals before the State Transport Appellate Tribunal, the present
appellant i.e. UPSRTC was not a party. The dispute before this Court was between the
operators and the authorities and the UPSRTC was not made a party when the whole
matter was remanded before the Tribunal. Had the UPSRTC been made a party before
the Apex Court that a portion of the route from Bijnor to Noorpur is notified route. When
the entire matter was remanded back to the Tribunal by the Apex Court by order dated
21.7.1995, another notification was issued on September 3, 1994 whereby the route
from Muzaffarnagar to Bijnore via Jansath, Meerapur and Dewal was also notified.
Strangely enough UPSRTC was not party before Apex Court or before STAT. It is for the
first time in 1993 before High Court the UPSRTC was impleaded as a respondent. It is
true that when the resolution dated June 14-15-1993 was passed at that time the route
from Muzaffarnagar to Bijnore via Jansath Meerapur and Dewal was not notified but the
route from Bijnore to Noorpur was already notified on February 12, 1952 and we do not
understand how could the Regional Transport Authority and State Transport Authority
ignore this fact that the portion from Bijnore to Noorpur which falls on the route from
Muzaffarnagar to Chajlet was notified, permits were granted on this notified route. This
ignorance appears to be bona fide as nobody seems to have been cognizant of the
notification dated February 12, 1952. The appellant-UPSRTC could have been alive to
the situation and should have moved the Tribunal and should have brought this fact to
their notice but the appellant did not choose to take any step. We cannot appreciate their
lack of vigilance. Be that as it may, the authorities issuing permits from Muzaffarnagar to
Chajlat should have at least known that a portion of the route falling from Bijnore to
Noorpur is a notified route. It is true that this matter has travelled up to the Apex Court
and it has gone through various litigations but nobody brought to the notice of the
authorities that the route from Bijnore to Noorpur is notified one and no permit could be
granted on this route. It is needless to state that once it is nationalized route, there is
prohibition to permit any private vehicle to ply except by amending the scheme. It is the
mandate of the law and that cannot be ignored. More so, at the time when this order was
passed by the Division Bench of the High Court the route from Muzaffarnagar to Bijnore
via Jansath, Meerapur and Dewal stood notified on September 3, 1994. We regret to say
that the Division Bench of the High Court has overlooked this aspect of the matter and
proceeded to decide the matter on the assuption that the effect of this notification dated
September 3, 1994 has already been taken into consideration. We fail to appreciate this
aspect. Once the route from Muzaffarnagar to Bijnore via Jansath, Meerapur and Dewal
has already been notified on September 3, 1994 how can the High Court direct the
appellant to grant permit on the aforesaid route. It is true that when resolution which was
passed on June 14-15,1993 by then the notification dated September 3, 1994 had not
come into operation but once the scheme under notification dated September 3, 1994
came into operation and the whole route from Muzaffarnagar to Bijnore stood notified
and the route from Bijnore to Noorpur was already notified by notification dated February
12, 1952, how can mandamus be issued by the High Court directing the authorities to
grant permits to the 38 operators. This Court while remanding the matter did not go into
all these questions. This Court only remanded the matter to the Tribunal as disputed
questions of facts were involved. The others special leave petition were dismissed in
limine. That does not amount to merger of the High Court order with that of this Court‘s
order. The dismissal in limine does not amount to upholding of the law propounded in
the decision sought to be appealed against. This is a settled proposition of law now.
Reference may be made to. Indian Oil Corporation Ltd. vs. State of Bihar reported in
1986 (4) SCC 146.
           ―Held:
           The dismissal of a special leave petition in limine by a non-speaking order
           does not justify any inference that by necessary implication the contentions
           raised in the special leave petition on the merits of the case have been
           rejected by Supreme Court. The effect of a non-speaking order of dismissal of
           a special leave petition without anything more indicating the grounds or
           reasons of its dismissal must, by necessary implication, be taken to be that
           Supreme Court had decided only that it was not a fit case where special leave
           should be granted. It cannot be assumed that it had necessarily decided by
           implication all the questions in relation to the merits of the award, which was
           under challenge before Supreme Court in the special leave petition.
           A writ petition is a wholly different and distinct proceeding. Although questions
           which can be said to have been decided by Supreme Court expressly,
           implicitly or even constructively while dismissing the special leave petition
           cannot be reopened in a subsequent writ poceeding before the High Court, but
           neither on the principle of res-judicata nor on any principle of public policy
           analogous thereto, whould the order of Supreme Court dismissing the special
           leave petition operate to bar the trial of identical issues in a separate
           proceeding, namely, the writ proceeding before the High Court merely on the
           basis of an uncertain assumption that the issues must have been decided by
           Supreme Court at least by implication. The exercise of discretionary jurisdiction
           of the High Court to grant leave under Article 226 is to be guided by
           established legal principles. It will not be a sound exercise of that discretion to
           refuse to consider a writ petition on its merits solely on the ground that a
           special leave petition filed by the petitioner in the Supreme Court had been
           dismissed by non-speaking order.‖
       Supreme Court Employees’ Welfare Association vs. Union of India and Another,
Reported in 1989 (4) SCC 187.
           ―………………….Articles 226 and 136—Res judicata—Supreme Court
           dismissing SLP in limine—Held, decision of High Court against which the SLP
           had been filed would not thereby operate as res-judicata—Civil Procedure
           Code, 1908‘ Section 11‖.
       P.Nallammal and another vs. State Represented by Inspector of Police reported in
1999 (6) (SCC) 559.
           ―……………………—Articles. 136 and 141—Effect of grant/dismissal of SLP—
           Dismissal of SLP does not amount to upholding of the law propounded in the
           decision sought to be appealed against.‖
       Commissioner of Income Tax Bangalore vs. Shree Majunatheaware Packing
Products & Comphor Works, reported in 1998 (1) SCC 598.
           ―…………………….—Article 136—Summary dismissal of SLP—Effect—Held,
           does not mean approaval of the view taken by the High Court‖
       7. This Court while remanding the matter to the Tribunal categorically stated that
all these matters should be sent to the State Transport Appellate Tribunal which shall
treat the writ petitions filed in the High Court as appeals and after hearing all the parties,
dispose of the matters in accordance with law. This Court never expressed any opinion
on the merits of the case whatsoever. Therefore, the dismissal of SLPs pertaining to the
route in question by various orders of this Court neither amounts to res judicata nor does
it amount that order passed by the High Court amounts to upholding the law propounded
in the decision sought to be appealed against. More so, the effect of these two
notifications i.e February 12, 1952 and September 3, 1994 were not considered by this
Court or High Court or Tribunal or STA.
       8. Once a scheme is notified it prohibits the plying of private vehicle except as
permited by Scheme. Both schemes nowhere permit operation by private operators. This
is a settled proposition of law that in notified scheme private operator can not operate
except permitted by the scheme. In this connection reference may be made to the
decision of this Court in the case of Karnataka State Road Transport Corporation vs.
Ashrfulla Khan & others reported in 2002 (2) SCC 560 wherein their Lordships after
considering earlier decisions of the Constitution Benches observed as under :
           ―This means that even in those cases where the notified route and the route
           applied for run over a common sector, the curtailment by virtue of the notified
           scheme would be by excluding that portion of the route or, in other words, the
           ‗road‘ common to both. The distinction between ‗route‘ as the notional line and
           road‘ as physical track disappears in the working of Chapter IV-A, because you
           cannot curtail the route without curtailing a portion of the road, and the ruling of
           the Court to which we have referred, would also show that even if the route
           was different, the area at least would be the same. The ruling of the Judicial
           Committee cannot be made applicable to the Motor Vehicles Act, particularly
           Chapter IV-A, where the intention is to exclude private operators completely
           from running over certain sectors or routes vested in State Transport
           Undertakings. In our opinion, therefore, the appellants were rightly held to be
           disentitled to run over those portions of their routes which were notified as part
           of the scheme. Those portions cannot be said to be different routes, but must
           be regarded as portions of the routes of the private operators, from which the
           private operators stool excluded Section 68-F(2)(c)(ii) of the Act.
           In S. Abdul Khader Saheb vs. Mysore Revenue Appellate Tribunal it was held
           by this Court that once a scheme is for total exclusion of operation of stage
           carriage services by operators other than the State Transport Undertaking, the
           authorities cannot grant permit under Chapter IV of the Motor Vehicles Act on
           any portion of a notified route. In Mysore SRTC vs. Mysore State Transport
           Appellate Tribunal it was held that it is not permissible to grant permit on a
           portion of a notified route which has an effect to ply a stage carriage on the
           same line of the notified route excepting an intersection.‖
       9. In view of the fact that the route from Bijnore to Noorpur was notified way back
in 1952, no permit could have been issued in pursuance of the resolution dated June 14-
15, 1993 and likewise under notification dated September 3, 1994 when the route from
Muzaffarnagar to Bijnore had been notified, no permit could have been granted on the
aforesaid route as both schemes are of total exclusion. Therefore, in view of the law laid
down by this Court in the case of Karnataka State Road Transport Corporation (Supra),
the question no more remains res integra and it is settled principle of law that no private
operators could be permitted to operate on a notified route except by modifying scheme
and after making provisions for the same.
      10. As a result of our above discussion, we are of the opinion that the view taken
by the High Court of Allahabad cannot be sustained and accordingly we allow all these
appeals and set aside the impugned order dated September 26, 1997 passed by the
High Court of Allahabad in Writ Petition Nos. 9990, 23496, 15746 and 20187 of 1997
and dismiss the same with no order as to cost.
                                                              Appeal allowed.



                             [2005 (2) T.N.L.R. 155 (SC)]
                                 SUPREME COURT
Before:
          B.P. Singh & S.B. Sinha, JJ.

State of Kerala and others                         ..........................Appellants
                                         Versus
V. Baby                                                     .......................Respondent

            [Criminal Appeal No. 1306 of 1999, decided on 13th April, 2005]
      Indian Penal Code, 1860—Section 302—Murder—Acquittal of accused—
Accused alleged to have murdered deceased for committing theft of ear-studs and
gold chain—Based on circumstantial evidence—Accused have shown ear-stud to
PW-3—Such evidence was not accepted because statement of PW-3 during
investigation was examined after one year—Other circumstances that accused
had talked about ear-tops and chain to PW-2 also not believable—Articles not
recovered—Dead body was not discovered at the instance of the accused—
Hence, no reason to interfere with acquittal.
                                                              (Paras 2 and 3)

      Counsel:—
             Ramesh Babu M.R. Advocate, for the appellants; Rajeev G. Naseem,
             Rajiv Mehta and B. Aggarwal, advocates, for the respondent.

                                      JUDGMENT
       B.P. Singh and S.B. Sinha, JJ.—This appeal has been preferred by the State of
Kerala against the order of acquittal dated 18th February, 1999 recorded by the High
Court of Kerala at Ernakulam in Criminal Appeal No. 407 of 1998. The sole accused was
the respondent herein who was charged of the offence of murder for having caused the
death of Lakshmi Amma in order to commit theft of a pair of ear-studs and a gold chain
on the evening of September 3, 1992. The case of the prosecution is that he beat her
with a spade and thereafter buried her dead body in his land. The case rests purely on
circumstantial evidence. There is no direct evidence to prove that the respondent had
either assaulted the deceased or had buried her dead body. In order to prove its case,
the prosecution relied jupon three main circumstances. The first circumstance is that
PW-3 was shown two ear-tops by the accused at the bus stop. Secondly, the respondent
had mentioned about the ear-tops and chain to PW-2 though he had not shown them to
him. In his statement to the police he had mentioned only about the chain and not about
the ear-studs. Lastly, it was the case of the prosecution that the respondent had buried
the dead body of the deceased in his own field and the said body was recovered on the
basis of the disclosure statement made by the respondent himself.
       2. The High Court found the circumstances either not established or insufficient to
prove the case against the respondent. So far as PW-3 is concerned, the High Court
found it wholly unnatural for the respondent to go to him at the bus stop and show him
two ear-tops without any reason. This witness was examined by the police in the course
of investigation one year after the occurrence. The High Court did not find this part of the
prosecution case to be reliable. The second circumstance, namely, that the accused had
talked about the ear-tops and chain to PW-2 was also not found believable particularly
when PW-2 was not even shown those ear-tops and chain. In fact the ear-tops and the
chain were never recovered and therefore, not produced at the trial.
       3. As to the most important circumstance, namely, the recovery of the dead body
at the instance of the respondent, the High Court found the evidence relating to the
same to be unacceptable. The evidence on record disclosed that a part of the dead body
was exposed and had come out from the grave and was visible. The second reason for
disbelieving the disclosure statement was that even before the body was exhumed, a
large number of persons had already collected there, which itself established that the
fact was known to everyone in the village, and the body was really not discovered at the
instance of the respondent.
       4. We have gone through the material placed before us but we find no reason to
disturb the findings recorded by the High Court, particularly in an appeal against
acquittal.
       5. This appeal is, therefore, dismissed.
                                                                        Appeal dismissed.



                               [2005 (2) T.N.L.R. 157 (SC)]
                                   SUPREME COURT
Before:
           B. P. Singh and Arun Kumar, JJ.

State of U.P.                                .       ...........................Appellant
                                          Versus
Gambhir Singh and others                             ......................Respondents

               [Criminal Appeal No. 1320 of 1999, decided on 20th April, 2005]
      Indian Penal Code, 1860—Section 302/34—Murder—Acquittal of accused—
Interference of—Three accused armed with rifile, gun and country-made pistol
fired at deceased and victim died on spot—Brother and wife of deceased found to
be eye-witnesses—Statement of witnesses not corroborating with each other—
Presence of eye-witnesses found to be doubtful—Hence, no reason to interfere
with order of acquittal.                                                   (Paras 5 and
6)

      Counsel:—
             Prashant Chaudhary, Jatinder Kumar Bhatia, Advocates, for the
             appellants; Mrs. V.D. Khanna, Harinder Mohan Singh, Kaushal Yadav,
             Ms. Shabana Saifi and Anil Hooda, Advocates, for the respondents.

                                        JUDGMENT
       B.P. Singh and Arun Kumar, JJ.—This appeal by special leave is directed
against the judgment and order of the High Court of Judicature at Allahabad dated 4th
April, 1996 in Criminal Appeal No. 381 of 1991. The High Court, by its impugned
judgment and order, allowed the appeal of the appellants herein and acquitted them of
the charge under Section 302/34 of the Indian Penal Code for which they were convicted
and sentenced to life imprisonment by the 1st Additional Sessions Judge, Mainpuri in
Sessions Trial No. 41 of 1980 by his judgment and order of 6th February, 1981.
       2. We have heard counsel for the parties.
       3. The occurrence is said to have taken place on 5.10.1979 at about 4.00 p.m. in
village Vikrampur, P.S. Kishni. The case of the prosecution is that PW-1 Hori Lal, the
deceased Netra Pal Singh, and his wife Renuka Devi, PW-2 were working in the fields.
The deceased sent his brother PW-1 to bring a basket. His wife felt thirsty and they were
going to drink water nearby when all the three accused arrived there armed with rifle,
gun and country-made pistol. All of them fired from behind as a result of which Netra Pal
fell down and died on the spot. PW-2 Renuka Devi raised an alarm. PW-1 who was
returning from the village after fetching a basket also saw the entire occurrence and so
did Mithu Lal . PW-3 who was passing by PW-1, Hori Lal rushed to the police station and
the first information report was recorded at 8.35 p.m. The investigating officer came to
the place of occurrence and stayed overnight in the village. On the following day he
recorded the statement of PW-1 and PW-2. The statement of PW-3 was recorded on
27.11.1979 i.e almost a month and 11 days later.
       4. The trial Court relying upon these three eye-witnesses found the appellants
guilty of the offence under Section 302/34 IPC. We are told that the first appellant Ranbir
Singh has since died.
       5. We have considered the reasons recorded by the High Court for not relying
upon the evidence of PW-1, PW-2 and PW-3. No reliance can be placed on the
evidence of PW-3 because he was examined by the police on 27.11.1979 while the
occurrence took place on 15.10.1979 and even though he was mentioned as an eye-
witness in the FIR. He was projected as an independent witness but it appears from the
evidence of PW-2 that he happens to be the cousin of the deceased. In the
circumstances, PW-3 cannot be considered to be a reliable witness. So far as PW-2 is
concerned, the High Court has discussed her evidence in detail and has come ot the
conclusion that her presence at the time of occurrence was doubtful. The medical
evidence disclosed that the deceased must have taken his meals about three hours
before the occurrence since semi-digested food was found in his stomach. If PW-2 was
really with her husband since morning, she would have certainly stated about their
having taken food. She, in the course of her deposition claimed to be at different places
when the occurrence took place. At one place she stated that she was north of her
husband, and at another place she stated that she was behind her husband, and later
that she was 20-25 steps behind her husband. The shots were fired from behind. Having
considered the discrepancies in the evidence of Renuka Devi, PW-2 the High Court did
not find it safe to rely on her testimony.
       6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from
the village and it was only a matter of concidence that while he was returning he
witnessed the entire incident. The High Court did not consider it safe to rely on his
testimony because his evidence clearly shows that he had an animus against the
appellants. Moreover, his evidence was not corroborated by objective circumstances.
Though it was his categorical case that all of them fired, no injury caused by rifle was
found, and, only two wounds were found on the person of the deceased . Apart from this
PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All
these circumstances, do create doubt about the truthfulness of the prosecution case.
The presence of these three witnesses becomes doubtful if their evidence is critically
scrutinised. May be it is also possible to take a view in favour of the prosecution, but
since the High Court, on an appreciation of the evidence on record, has recorded a
finding in favour of the accused, we do not feel persuaded to interfere with the order of
the High Court in an appeal against acquittal. It is well settled that if on the same
evidence two views are reasonably possible, the one in favour of the accused must be
preferred.
       7. We, therefore, find no merit in this appeal and the same is accordingly,
dismissed.
                                                               Appeal dismissed.



                             [2005 (2) T.N.L.R. 160 (Mad)]
                               MADRAS HIGH COURT
Before:
           Markandey Katju, CJ and D. Murugesan, J.

Pentafour Products Ltd. and another        ..........................Appellants
                                        Versus
The Union of India and others                          ......................Respondents

                [W.A.No. 971 of 2004, decided on 28th February, 2005]
      Negotiable Instruments Act, 1881—Section 138—Sick Industrial Companies
(Special Provisions) Act, 1985—Section 22 (1) and 22-A—Complaint under Section
138 of Negotiable Instruments Act—Bar of provision of Section 22 (1) or 22-A—
Held, provision of Section 22 (1) or Section 22-A has nothing to do with criminal
proceedings against company and same are not barred.
                                                             (Paras 6, 7, & 8)

      Case law:—2000 (1) Crimes 261 (SC) : 2000 Cr.L.J. 1424 : AIR 2000 SC 926—
referred.

      Counsel:—
               None for the appellants; S. Manikumar SCGSC, for the respondent 1,2,4;,
               Rangannathan and Prabhakaran, for the respondent 7; P.L. Narayanan,
               for the respondent

                                          JUDGMENT
       Markandey Katju, C.J.:—This writ appeal has been filed against the interim order
of the learned single Judge dated 1.3.2004.
       2. None appears for the appellants although the name of M/s. Kovi Ganesan and
T.K.S. Gandhi has been shown in the cause list. We have heard Mr. P.L. Narayanan,
learned counsel appearing for respondent No.9 - Industrial Credit Investment
Corporation of India Bank.
       3. The appellants filed the writ petition with the following prayer:
           ―For the reasons stated in the accompanying writ the petitioner prays that this
           Hon‘ble Court may be pleased to issue a writ of declaration or any other
           appropriate writ, order or direction of like nature and declare that entertaining
           of any complaints and processing the same by the first to sixth respondents
           and by all persons working under them and their respective departments in
           relation to the claims in respect of loans, fixed deposits and other dues initiated
           by various Courts and fora payable by the petitioners companies and its
           directors and officers as illegal, ultra vires and void pending disposal of BIFR
           proceedings.‖
       4. From the facts of the case it appears that ICICI Bank initiated criminal
proceedings under Section 138 of the Negotiable Instruments Act against the writ
petitioners and its directors in C.C.No. 1098/2001 by filing a criminal complaint under
Section 200. Cr.P.C. before the XVIII Metropolitan Magistrate, Saidapet, Chennai. On
that criminal complaint process was issued under Section 204, Cr.P.C., the trial was
conducted, witnesses were examined and only orders were to be pronounced when at
that stage the petitioners/appellants filed W.P.No. 33166 of 2003 and out of the
interlocutory order in the said writ petition the present appeal arises.
       5. The submission before the learned single Judge was that since the
petitioners/appellants had applied under the Sick Industrial Companies (Special
Provisions) Act, 1985, the proceedings before the learned Magistrate are barred by
Section 22 of the aforesaid Act. We do not agree.
       6. In our opinion the writ petition was wholly misconceived and ought not to have
been entertained at all. Section 22(1) of the said Act has nothing to do with a criminal
prosecution. Section 22(1) states:—
           ―Where in respect of an industrial company, an inquiry under Section 16 is
           pending or any scheme referred to under Section 17 is under preparation or
           consideration or a sanctioned scheme is under implementation or where an
           appeal under Section 25 relating to an industrial company is pending, then,
           notwithstanding anything contained in the Companies Act, 1956, or any other
           law or the memorandum and articles of association of the industrial company
           or any other instrument having effect under the said Act or other law, no
           proceedings for the winding up of the industrial Company or for execution,
           distress or the like against any of the properties of the industrial company or for
           the appointment of a receiver in respect thereof and no suit for the recovery of
           money or for the enforcement of any security against the industrial company or
           of any guarantee in respect of any loans or advance granted to the industrial
           company shall lie or be proceeded with further, except with the consent of the
           Board or, as the case may be, the appellate authority.‖
      7. A perusal of the above provisions shows that it has only prohibited the
proceedings for winding up of an industrial company or for execution, distress or the like
against any of the properties of the industrial company or for the appointment of a
receiver and suits for recovery of money or for enforcement of any security against the
industrial company or of any guarantee in respect of loans or advance granted to the
industrial company except with the consent of the Board or the appellate authority.
      8. Thus, a mere perusal of Section 22(1) shows that it has nothing to do with
criminal prosecution. Similarly Section 22-A has also nothing to do with a criminal
prosecution.
      9. It appears that subsequently the learned single Judge vacated the interim order.
In view of the decision of the Supreme Court in M/s. BSI Ltd. etc. vs. Gift Holdings Pvt.
Ltd. etc, 2000 (1) Crimes 261 (SC) : (2000 Cri LJ 1424 : AIR 2000 SC 926 this writ
appeal has no merit and it is dismissed. We further direct the learned Magistrate
concerned to complete the proceedings before him expeditiously. No costs,
Consequently WAMP No. 1758/2004 is also dismissed.
                                                                       Appeal dismissed.



                                [2005 (2) T.N.L.R. 162 (SC)]
                                    SUPREME COURT
Before:
           K.G. Balakrishnan and B.N. Srikrishna, JJ.

Sheikh Meheboob alias Hetak and others ..........................Appellants
                                      Versus
State of Maharashtra                               .......................Respondent

           [Criminal Appeal No. 772 of 2004, decided on 10th March, 2005.]
     (A) Code of Criminal Procedure, 1973—Sections 207 and 154—Non-
production of document in murder case—Complaint made to police in writing
about incident—Not produced despite application made for—Could be said that
prosecution suppressing the document.
                                                               (Para 7)
     (B) Indian Penal Code, 1860—Section 300—Murder—Proof of—Conviction
and sentence—Accused alleged to have caught held of deceased and poured
kerosene oil on his body and set him on fire—Testimony of complainant found to
be contrary to Investigating Officer and other witness—Dying declaration not
found to be credible—Guilt of accused not proved beyond reasonable doubt—
Hence, conviction and sentence, illegal and liable to set aside.
                                                (Paras 10, 11, 15, 16 & 17)

      Case law:—2002(6) SCC 710—referred.
      Counsel:—
             Uday U. Lalit, Sr. Advocate, Satyajit Desai, Nitin Sangra. Prasenjit
             Keswani and Venkateswara Rao Anumolu. Advocates with him, for
             appellants; Mukesh K. Giri, advocate, for the respondent.

                                        JUDGMENT
       Srikrishna, J.:—The appellants, who were convicted for offences under Section
302/34, IPC by the IInd Additional Sessions Judge, Akola, and whose convictions were
affirmed on appeal to the High Court of Judicature at Bombay, are before this Court by
special leave.
       2. According to the prosecution case, a young lad of 20 years. Lalit Kumar, was
murdered by the three appellants by setting him on fire on 14.3.1992 at about 10.00 p.m.
The alleged motive for this heinous act is that the appellants used to advance monies to
young boys, including Lalit Kumar, to enable them to gamble, and demand interest on
the monies advanced. According to the prosecution, although Lalit Kumar had returned
the capital amount, since he failed to return the interest as demanded by the appellants,
the appellants killed him in the gruesome manner as alleged. The conviction is based on
the dying declaration of Lalit Kumar (Ex. 49) and the evidence of the father of Lalit
Kumar, Hanumandas (PW-2).
       3. Where two Courts have concurrently analysed the evidence and recorded a
conviction or acquittal, this Court is reluctant to re-appraise the evidence and differ
therefrom save in exceptional circumstances indicative of gross miscarriage of justice for
reasons. This is one such case where we need to interfere. Since the two legs on which
the case of the prosecution rests consist of the testimony of Hanumandas (PW-2), and
the dying declaration of Lalit Kumar, we were taken through the evidence with particular
focus on the aforesaid and shown a number of circumstances which raise serious
doubts as to the credibility of the prosecution case.
       4. The testimony of Hanumandas (PW-2), together with the manner in which the
prosecution was conducted, raises the first serious doubt. According to Hanumandas, on
the fateful day at about 8:30 to 9:00 p.m. he was coming towards his house after a long
day at his shop, and while he was about 15 to 20 feet away from his house, he saw
appellant No. 3 (Mohd. Bhoja) had caught hold of Lalit Kumar. appellant No.2 (Ismail)
poured kerosene on the body of Lalit Kumar and appellant No.1 (Meheboob) set him on
fire with a match-stick. Hanumandas claimed that his other son, Shyam Kumar was also
witnessing the scene from a distance of about 10 to 15 feet from the spot of incident.
Lalit Kumar was engulfed in fire and ran towards the bathroom situated within the
compound of Hanumandas‘ house. Hanumandas ran after him and attempted to
extinguish the fire. When they reached the bathroom. Hanumandas poured water from a
bucket which was outside the bathroom and tried to extinguish the flame. Being
unsuccessful in his attempt, he brought a blanket from the house and wrapped the
blanket around Lalit Kumar and extinguished the fire. Thereafter, he called a cycle-
rickshaw and took Lalit Kumar to the Main Civil Hospital, Akola for treatment. He
admitted Lalit Kumar in the hospital for treatment. He claimed that, at that time, all the
three appellants had come to the hospital and given him threats that if he complained to
the police, his entire family would be finished. Hanumandas stated that he had made a
telephone call on the emergency telephone Number 100 from the hospital to the Police
requesting for a Police Van be sent immediately. Immediately, a Police Van did arrive at
the hospital along with police personnel, on seeing whom the accused ran away.
Thereafter, Hanumandas went to the City Kotwali Police Station on his Luna Moped and
gave a written report disclosing the entire incident in connection with his son Lalit Kumar
being set up on fire by pouring kerosene on his body and also the threat given to him
and his son in the hospital. The Police had received his written report. From the
sequence of events narrated by Hanumandas it would appear that the written report
made by Hanumandas to the Police would be the first contemporaneous document
putting on record the true facts pertaining to the incident. That would have been the
touchstone on which the credibility of Hanumandas could have been tested.
Unfortunately, that document appears to have been suppressed. It was obligatory on the
prosecution to place the document on record for a fair trial. Not only did the prosecution
fail to produce the document voluntarily, but the prosecution failed to produce the
document despite an application for production of the said document by the accused and
the order made thereupon by the Sessions Court for its production.
       5. Three contentions have been urged by the learned counsel for the appellants.
First, that the failure of the prosecution to produce the document, whose existence is
affirmed by the witness, PW-2, leaves a yawning gap in the story of the prosecution.
Second, it gives rise to an adverse inference that, had it been produced, it would have
disproved the case of the prosecution. Third, the said report, being the first information
given to the Police, ought to have been treated as the FIR.
       6. Though, these issues were raised before the Sessions Court as well as the
High Court, they have been side-tracked on reasoning which appears to us to be
unsustainable. While the Sessions Court referred to this contention urged by the
defence, it has given no reason for not accepting the contention. The High Court
accepted the contention that Hanumandas (PW-2) had made the report to the Police
about the incident and that, if the said report was made, then it ought to have been
treated as the FIR. The High Court, however, dismissed the contention by taking the
view that nothing had been placed on record, either in cross-examination of
Hanumandas, or otherwise, to show that the report to the City Kotwali Police Station had
been lodged by him before the dying declaration was recorded. And that, unless the
defence shows that the said report was prior to the dying declaration, it could not be
treated as FIR, particularly when there is no suggestion put to the Investigating Officer,
Jaswant Singh Hushare (PW-10), that the said report was deliberately suppressed and
withheld by the police.
       7. In our view, the reasoning of the High Court is erroneous. The defence made an
application for production for a vital document (that it is a vital document, cannot be
denied); the trial Court accepting the application for production of such document passed
an order directing the prosecution to produce the document and the prosecution failed to
do so without any explanation, whatsoever. The conclusion is irresistible that the
prosecution has suppressed the document. The fact that no suggestion was put to the
Investigating Officer is totally irrelevant. As to whether the said report was made prior to
the dying declaration (Ex. 49), on a fair reading of the evidence of Hanumandas (PW-2)
the sequence of events given by Hanumandas before the Court suggests that when he
admitted his son to the hospital, the accused-appellants had come to the hospital and
threatened him. This was followed by his frantic call to the Police Control Room, the
arrival of the police immediately thereafter and his going to the City Kotwali Police
Station on his Luna Moped and lodging a report about the whole incidence including the
threat given to him. In fact, reading the evidence of Hanumandas as a whole, it would
suggest that he had no idea as to the recording of the dying declaration at all, for he
nowhere mentions it. Nor does it appear from his evidence that the dying declaration
was recorded prior to Hanumandas going to the Kotwali Police Station to lodge his
written report.
       8. Apart from these glaring discrepancies, the evidence of Hanumandas as an
eye-witness does not appear to be credible. A number of inconsistencies between his
statement to the police under Section 161 and his evidence were thrown up in the cross-
examination. The contradictions between his evidence and the evidence of the
Investigating Officer (PW-10) make interesting reading. For every inconsistency between
his police statement and his evidence in the Court, while Hanumandas insisted that he
had made some statement or had not made such statement, the Investigating Officer
directly contradicts him on the issue. Apart from the contradictions, there is contradiction
with evidence of the other cited witness Shyam Kumar (PW-9). Shyam Kumar flatly
contradicts Hanumandas (PW-2). If we were to go by his evidence, no such incident
ever took place in his presence. Though, the prosecution cited Shyam Kumar (PW-9) as
an eye-witness, no wonder the prosecution was constrained to declare Shyam Kumar as
a hostile witness and having been won over.
       9. Who took Lalit Kumar to the hospital, is also shrouded in mystery. According to
Shyam Kumar (PW-9), his uncle, Lakshmi Narayan, had taken Lalit Kumar to the
hospital and got him admitted. Who extinguished the fire, is also a matter of controversy.
While Hanumandas claims to have done it himself, the dying declaration and the
evidence of Shyam Kumar (PW-9) suggest that some of the residents of the locality had
done it. Strangely, the Investigating Officer (PW-10), who recorded the statement,
candidly admitted that he had made no effort to trace the rickshaw driver, who took Lalit
Kumar to the hospital. The rickshaw driver would have been a material witness on the
issue as to who accompanied Lalit Kumar to the hospital. It is not possible to believe
that, in a small town like Akola, the police were not able to trace the rickshaw driver, who
had carried Lalit Kumar to the hospital.
       10. So much for the gaping holes in the prosecution story based on the eye-
witness account. Doubts arising from the eye-witness accounts left too many question
marks and too many unexplained circumstances, which contra-indicated their
acceptance without corroboration. Corroboration was available in the form of a
document, which was not deliberately placed on record by the prosecution. This by itself
should have sufficed for the Court to induce a reasonable doubt as to the discharge of
the onerous burden by the prosecution.
       11. The other limb of the prosecution story (perhaps bearing greater weight) is the
dying declaration (Ex.49). We may ignore the usual contentions urged by the defence to
discredit the dying declaration. The law as to the test for credibility of a dying declaration
has been laid down by a Constitution Bench in Laxman vs. State of Maharashtra, 2002
(6) SCC 710, 2000 AIR SCW 3479 : AIR 2002 SC 2973 : 2002 Cri LJ 4095) We may,
therefore, reject the contentions of the appellants that the certification as to mental
fitness of the victim was not proper or that it was written in a particular language, in a
particular fashion, and such like.
       12. The dying declaration (Ex.49) was recorded at 00:05 hours by the Executive
Magistrate. C.H. Upadhye (PW-4), on a requisition received on 14th March, 1992 at
2345 hrs. through Police Constable Vijay, Batch No. 2067 attached to Police Station
Ramdaspeth, Akola, requesting for recording of dying declaration at Main Hospital,
Akola. According to PW-4, he received the requisition letter at his residence at about
2345 hrs. on that day. Immediately, thereafter, he went to the hospital and met the
Medical Officer on duty. He asked the Medical Officer to examine the patient and certify
that the patient Lalit Kumar was in a fit condition to make his statement. The doctor
issued a certificate (Ex.49A). Then, he asked the relatives of the patient, who were
present there, to go out from that place. After all of them had left the place, he recorded
the dying declaration in question and answer form. The questions were put in Marathi
and the patient replied in Marathi. What was written was read over to the patient and the
patient admitted the same to have been correctly recorded. His signature could not be
obtained as his both hands had burn injuries. The dying declaration, thereafter, was
signed by PW-4 and also once again endorsed with the certificate of the Medical Officer
that the patient had been fit to make such a statement.
        13. The dying declaration has a curious aspect, which needs to be highlighted.
The dying declaration reads as under:
            ―I had taken money from Ismail, Mahmmad and Mehboob and I repaid the
            same to them. They asked me for more interest, they beat me, therefore
            Ismail, Mahmmad, Hetak poured kerosene on my person and set me on fire
            with the match-stick. While I was running in the house, people from the locality
            rushed there and extinguished the fire caught to my person and then brought
            me in the hospital.‖
The original Exhibit 49, which is written in Marathi, shows that the words ―mi ghaslet
angavar‖ have been struck off. When asked for an explanation, the Executive
Magistrate, C.H. Upadhye (PW-4), explained that the aforesaid words, which mean ―I
kerosene on the body‖ had been stated by the patient before him at that time. According
to him, he was sitting facing the patient with his back towards the door of the room, and
there was some shouting heard from outside after which the patient had changed his
version. He maintains that, the words which are struck off had been uttered by the
deceased in the first instance, and changed by him as a result of some shouting from
outside. So those words were struck off.
        14. Exhibit 52, the medical case papers placed on record and proved through, Dr.
Ganesh Gir Gosavi (PW-5), also raises some further doubts. In the medical case record,
the very first entry, which logically should have been the entry made at the time of
admission, bears the date 17/3. The history notes: ―burns. Self-inflicted‖, after which
comes the line of treatment. On page 2 of the medical record, there is an endorsement
in Marathi, which says, ―the doctor told me that my brother‘s son‘s condition is very
serious‖ and bears someone‘s signature. On page 4 of the medical record, there is an
endorsement ―H/o Accidental burn.‖
        According to Dr. Ganesh Gir Gosavi (PW-5), he was present as doctor on duty
from 9:00 p.m. on 14th March to 9.00 a.m. the next morning. He also stated that he was
on duty at 9.45 p.m., and one Dr. Tayade was the CMO on out-door duty. He identified
the handwriting and signatures of Dr. Tayade and proved the medical records. When his
attention was drawn to the fact that the medical record noted that there was ―self-
inflicted‖ burns, in the history of the patient, he claimed that he was unable to say as to
who had given the history of the patient. He, of course, claimed that, as sufficient time
had elapsed and a number of patients were examined and treated by him, it was not
possible to remember facts of each and every case.
       15. The medical record raises a number of questions, which have not been
satisfactorily answered, and which preclude implicit acceptance of the dying declaration
(Ex.49). First, who admitted Lalit Kumar to the hospital?
            The dying declaration suggests that the neighbours had done so, while
            Hanumandas (PW-2) maintained that it was he, who had admitted him to the
            hospital. Second, who gave the history of the patient to the doctor on duty at
            the time of admission? Hanumandas (PW-2) says nothing about it. The
            medical record suggests that the uncle of Lalit Kumar (Laxmi Narayan) was the
            one who accompanied the patient, and probably had given the history of the
            burns to the doctor on duty at the time of admission. The medical record also
            has two curious endorsements. At one place, it says that there was history of
            ―accidental burns‖; at another place there was history of ―self-inflicted burns‖.
            The dying declaration itself indicates that the deceased had started to make a
            statement which was suggestive of his having poured kerosene on himself and
            set himself on fire because the appellants were demanding interest and
            beating him. The evidence of the Executive Magistrate (PW-4) clinches that
            this was precisely what the deceased had stated in the first instance, which he
            changed on hearing some shouting from outside. These are some of the
            circumstances which raise serious doubts as to the implicit credibility of the
            dying declaration.
       16. We have carefully examined the reasons adduced by the Sessions Court and
the High Court for accepting the dying declaration as credible, and for accepting the
evidence of Hanumandas (PW-2), and the dying declaration (Ex.49), as bringing home
the charge of murder against the appellants beyond the shadow of reasonable doubt.
Shadows, there are; dark enough to eclipse the truth. Both the Courts have ignored a
number of reasonable doubts which legitimately arose on the evidence led by the
prosecution, and its conduct in suppressing the vital document and witnesses. We are
not satisfied that the evidence led on record by the prosecution proves the guilt of the
accused-appellants beyond reasonable doubt.
       17. In our view, the appellants are entitled to the benefit of doubt. In the result, we
allow the appeal and set aside the judgments of the High Court and the Sessions Court.
The appellants are acquitted of the charges against them. The appellants shall be set at
liberty forthwith, unless required to be detained in connection with any other case.
                                                                             Appeal allowed.



                               [2005 (2) T.N.L.R. 169 (SC)]
                                   SUPREME COURT
Before:
           Arijit Pasayat and S.H. Kapadia, JJ.

Savitaben Somabhai Bhatiya                            ...........................Appellant
                                           Versus
State of Gujarat and others                          ......................Respondents

             [Criminal Appeal No.399 of 2005, decided 10th March, 2005]
      (A) Code of Criminal Procedure, 1973—Section 125—Scope of—Maintenance
to wife—Could not be enlarged to include woman not lawfully married—Plight of
woman, who unwittingly enters into wedlock with a married man, could be done
by legislature—The principle of estoppel cannot be pressed into service to defeat
the provision of Section 125 of the Code.
                                                         (Paras 16, 17 & 18)
      (B) Code of Criminal Procedure, 1973—Section 125—Maintenance to wife—
Entitlement of—Once the right under Section 125 is established by proof of
necessary conditions mentioned therein, it cannot be defeated by further
reference to the personal law—Whether provision of Section 125 is attracted or
not, cannot be answered except by reference to the appropriate law governing the
parties.
                                                             (Paras 9 & 15)
      (C) Code of Criminal Procedure, 1973—Sections 125 and 127—Enhancement
of maintenance—Application under Section 125 filed when maximum limit of
maintenance was prescribed—Contention that original application was not
amended, found to be too technical—Section 127 permits increase in the
quantum.
                                                                        (Para 23)

     Case law:—AIR 1970 SC 446; AIR 1988 SC 644 : AIR 1999 SC 3348; AIR 1978
SC 1807; 1991 (2) SCC 375—referred.

      Counsel:—
             S. C. Patel, Advocate (SCLSC), for the appellant; H.A. Raichura, Mrs. H.
             A. Raichura, Himinder Lal, Ms. Hemantika Wahi and Mayur Shah,
             Advocates, for the respondents.

                                       JUDGMENT
      Arijit Pasayat, J.:—Leave granted.
      2. A brief reference to the factual position would suffice because essentially the
dispute has to be adjudicated with reference to scope and ambit of Section 125 of the
Code of Criminal Procedure, 1973 (in short the ‗Code‘).
      3. The case at hand according to appellant is a classic example of the
inadequacies of law in protecting a woman who unwittingly entered into relationships
with a married man.
      4. Factual position as projected by the appellant is as follows:—
          Appellant claims that she was married to respondent No.2 some time in 1994
          according to the customary rites and rituals of their caste. Though initially, the
          respondent No.2 treated her nicely, thereafter he started ill-treating her and
          she was subjected to mental and physical torture. On enquiry about the reason
          for such a sudden change in his behaviour, the appellant came to know that
          respondent No.2 had developed illicit relationship with a lady named
          Veenaben. During the period the appellant stayed with the respondent, she
          became pregnant and subsequently, a child was born. As respondent No.2
          neglected the appellant and the child born, an application in terms of Section
          125 of the Code was filed claiming maintenance. The application was filed
          before the learned Judicial Magistrate. First Class (hereinafter referred to as
          the ‗JMFC‘) Himmatnagar. Respondent No.2 opposed the application by filing
          written statements taking the stand that the appellant was not his legally
          married wife and the child (respondent No.3) was not his son. He also denied
          having developed illicit relationship with Veenaben. He claimed that actually
          she was married to him more than 22 years back and two children were born.
          Their son Hemant had died in the road accident in July 1990. In the Claim
          Petition name of Veenaben was mentioned as the legal heir and in the Voters
          List, Ration Card and Provident Fund records, Veenaben was shown as the
          wife of respondent No.2. On 23.6.1998 learned JMFC allowed the Claim
          Petition and granted maintenance. A criminal revision was filed by respondent
          No.2 before learned Additional Sessions Judge, Sabarkatha; Dist.
          Himmatnagar, who by his order dated 26.11.1998 set aside the judgment
          dated 23.11.1998 as passed by the learned JMFC and remanded the matter to
          the trial Court for adjudication afresh after affording an opportunity to
          respondent No.2 to cross-examine the witnesses of the appellant. By order
          dated 31.7.1999, learned JMFC after considering the matter afresh awarded
          maintenance to both the appellant and the child.
      5. A Criminal Revision Application No.65/95 was filed by respondent No.2 against
the order dated 31.7.1999. By order dated 12.7.2001, learned Additional District Judge,
Sabarkatha dismissed the application. The respondent No.2 filed a Special Criminal
Application No.568/2001 before the Gujarat High Court which by the impugned order
held that the appellant was not legally wedded wife of respondent No.2. Reliance was
placed on documents filed by respondent No.2 to conclude that before the alleged date
of marriage between the appellant and respondent No.2, the latter was already married
to Veenaben with reference to the documents produced. However, maintenance granted
to the child (respondent No.3) was maintained and amount as awarded to him i.e. Rs.
350/- was enhanced to Rs. 500/-. A direction was also given to pay the enhanced
amount from the date of order of the learned JMFC i.e. 31.7.1999.
      6. In support of the appeal, learned counsel for the appellant submitted that the
High Court has taken a too technical view in the matter. Strict proof about a valid
marriage is not the sine qua non for getting maintenance under Section 125 of the Code.
The documents produced by respondent No.2 to substantiate the plea of earlier
marriage with Veenaben should not have been given primacy over the clinching
evidence adduced by the appellant to show that she was unaware of the alleged
marriage. Since respondent No.2 is guilty of fraud and misrepresentation, the equity
should not weigh in his favour. Law is intended to protect destitute and harassed woman
and rigid interpretation given to the word ‗wife‘ goes against the legislative intent. In any
event, nothing has been shown by respondent No.2 to show that there is any customary
bar for a second marriage. Customs outweigh enacted law. That being the position, the
order passed by the learned JMFC should be restored. It was residually submitted that
when the amount was claimed as maintenance there was statutory limitation prescribed
at Rs. 500/- which has been done away with by omitting the words of limitation so far as
the amount is concerned by amendment in 2001 to the Cr.P.C. Therefore, taking into
account the high cost of living the quantum of maintenance should be enhanced for the
child.
       7. In response, learned counsel for respondent No.2 submitted that law is fairly
well settled regarding the definition of the expression ‗wife‘ and there is no scope for
giving an extended meaning to include a woman who is not legally married.
       8. There may be substance in the plea of learned counsel for the appellant that
law operates harshly against the woman who unwittingly gets into relationship with a
married man and Section 125 of the Code does not give protection to such woman. This
may be an inadequacy in law, which only the Legislature can undo. But as the position in
law stands presently there is no escape from the conclusion that the expression ‗wife‘ as
per Section 125 of the Code refers to only legally married wife.
       9. The provision is enacted for social justice and specially to protect women and
children as also old and infirm poor parents and falls within the constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the
‗Constitution‘). The provision gives effect to the natural and fundamental duty of a man to
maintain his wife, children and parents so long as they are unable to maintain
themselves. Its provisions are applicable and enforceable whatever may be personal law
by which the persons concerned are governed.
       (1970 Cri LJ 522) (See Nanak Chand vs. Chandra Kishore, AIR 1970 SC 446. But
the personal law of the parties is relevant for deciding the validity of the marriage and
therefore cannot be altogether excluded from consideration. (See Smt. Yamunabai
Anantrao Adhav vs. Anantrao Shivram Adhav and Anr., AIR 1988 SC 644.
       (1988 Cri LJ 793).
       10. There is no inconsistency between Section 125 of the Code and the provisions
in the Hindu Adoptions and Maintenance Act, 1956, (in short the ‗Adoption Act‘). The
scope of the two laws is different.
       11. Section 125 of the Code at the point of time when the petition for maintenance
was filed reads as follows:
   ―125 (1) If any person having sufficient means neglects or refuses to maintain—
        (a) his wife, unable to maintain herself, or
        (b) his legitimate or illegitimate minor child, whether married or not, unable to
             maintain itself, or
        (c) his legitimate or illegitimate child (not being a married daughter) who has
             attained majority, where such child is, by reason of any physical or mental
             abnormality or injury unable to maintain itself, or
        (d) his father or mother, unable to maintain himself or herself,
             a Magistrate of the first class may, upon proof of such neglect or refusal,
             order such person to make a monthly allowance for the maintenance of his
             wife or such child, father or mother at such monthly rate not exceeding five
             hundred rupees in the whole, as such Magistrate thinks fit, and to pay the
             same to such person as the Magistrate may from to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means.
       Explanation:—For the purposes of this Chapter—
        (a) ‗minor‘ means a person who, under the provisions of the Indian Majority Act,
             1875 is deemed not to have attained his majority;
        (b) ‗wife‘ includes a woman who has been divorced by, or has obtained a
             divorce from, her husband and has not remarried.‖
       12. By the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of
2001) the words ‗not exceeding five hundred rupees in the whole‘ have been omitted
w.e.f. 24.9.2001.
       13. In Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Anr, AIR 1999 SC
3348: 2000 Cri LJ1 : 1999 AIR SCW 3844 it was held that the validity of the marriage for
the purpose of summary proceedings under Section 125 of the Code is to be determined
on the basis of the evidence brought on record by the parties. The standard of proof of
marriage in such proceedings is not as strict as is required in a trial of offence under
Section 494 of Indian Penal Code, 1860 (in short the ‗IPC‘). If the claimant in
proceedings under Section 125 succeeds in showing that she and the respondent have
lived together as husband and wife, the Court has to presume that they are legally
wedded spouses, and in such a situation one who denies the marital status can rebut
the presumption. Once it is admitted that the marriage procedure was followed then it is
not necessary to further probe as to whether the said procedure was complete as per
the Hindu rites, in the proceedings under Section 125 of the Code. It is to be noted that
when the respondent does not dispute the paternity of the child and accepts the fact
that marriage ceremony was performed though not legally perfect, it would hardly lie in
his mouth to contend in proceedings under Section 125 of the Code that there was no
valid marriage as essential rites were not performed at the time of said marriage. The
provision under Section 125 cannot be utilized for defeating the rights conferred by the
Legislature on the destitute women, children or parents who are victims of social
environment. The provision is a measure of social justice and as noted above specially
enacted to protect women and children and falls within the constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution.
       14. The sections of statutes calling for construction by Courts are not petrified print
but vibrant words with social functions to fulfil. The brooding presence of the
constitutional empathy for the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed it is possible to be selective in
picking out that interpretation out of two alternatives which advances the cause—the
cause of the derelicts. (See Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal
and ors, AIR 1978 SC 1807 : (1979 Cri LJ 3.
       15. In Smt. Yamunabai‘ case (supra). (1988 Cri LJ 793 : AIR 1988 SC 644) it was
held that expression ‗wife‘ used in Section 125 of the Code should be interpreted to
mean only a legally wedded wife. The word ‗wife‘ is not defined in the Code except
indicating in the Explanation to Section 125 its inclusive character so as to cover a
divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law
preceding that status. The expression must therefore be given the meaning in which it is
understood in law applicable to the parties. The marriage of a woman in accordance with
the Hindu rites with a man having a living spouse is a complete nullity in the eye of law
and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu
Marriage Act, 1955 (in short the ‗Marriage Act‘). Marriage with person having living
spouse is null and void and not voidable. However, the attempt to exclude altogether the
personal law applicable to the parties from consideration is improper. Section 125 of the
Code has been enacted in the interest of a wife and one who intends to take benefit
under sub-section (1)(a) has to establish the necessary condition, namely, that she is the
wife of the person concerned. The issue can be decided only by a reference to the law
applicable to the parties. It is only where an applicant establishes such status or
relationship with reference to the personal law that an application for maintenance can
be maintained. Once the right under the provision in Section 125 of the Code is
established by proof of necessary conditions mentioned therein, it cannot be defeated
by further reference to the personal law. The issue whether the section is attracted or not
cannot be answered except by reference to the appropriate law governing the parties.
       16. But it does not further the case of the appellant in the instant case. Even if it is
accepted as stated by learned counsel for the appellant that husband was treating her
as his wife it is really inconsequential. It is the intention of the Legislature which is
relevant and not the attitude of the party.
       17. In Smt. Yamunabai‘s case (supra) (1988 Cri LJ 793 : AIR 1988 SC 644) plea
similar to the one advanced in the present case that the appellant was not informed
about the respondent‘s earlier marriage when she married him was held to be of on
avail. The principle of estoppel cannot be pressed into service to defeat the provision of
Section 125 of the Code.
       18. It may be noted at this juncture that the Legislature considered it necessary to
include within the scope of the provision an illegitimate child but it has not done so with
respect to woman not lawfully married. However, desirable it may be, as contended by
learned counsel for the appellant to take note of the plight of the unfortunate woman, the
legislative intent being clearly reflected in Section 125 of the Code, there is no scope for
enlarging its scope by introducing any artificial definition to include woman not lawfully
married in the expression ‗wife‘.
       19. As noted by this Court in Vimala (K.) v. Veeraswamy (K.) (1991 (2) SCC 375 :
1991 AIR SCW 754)) when a plea of subsisting marriage is raised by the respondent-
husband it has to be satisfactorily proved by tendering evidence to substantiate that he
was already married.
       20. In the instant case the evidence on record has been found sufficient by the
Courts below by recording findings of fact that earlier marriage of respondent was
established.
       21. In that view of the matter, the application so far as claim of maintenance of the
wife is concerned stands dismissed.
       22. That brings us to the other question relating to adequacy of the quantum of
maintenance awarded to the child. It is not in dispute that when the Claim Petition was
filed, Rs. 500/- was claimed as maintenance as that was the maximum amount which
could have been granted because of the unamended Section 125. But presently, there is
no such limitation in view of the amendment as referred to above.
       23. Learned counsel for respondent No.2 submitted that there was no amendment
made to the Claim Petition seeking enhancement. We find that this is a too technical
plea. As a matter of fact. Section 127 of the Code permits increase in the quantum. The
application for maintenance was filed on 1.9.1995. The order granting maintenance was
passed by the learned JMFC on 31.7.1999. The High Court enhanced the quantum
awarded to the child from Rs. 350/- to Rs. 500/- with effect from the order passed by
learned JMFC. No dispute has been raised regarding enhancement and in fact there
was a concession to the prayer for enhancement before the High Court as recorded in
the impugned judgment. Considering the peculiar facts of the case, we feel that the
amount of maintenance to the child can be enhanced to Rs. 850/- with effect from today.
        24. Learned counsel for the respondent No.2 has submitted that as a humanitarian
gesture, the respondent No.2 agrees to pay a lump sum amount to settle the dispute. In
case the respondent No.2 pays a sum of rupees two lakhs only within a period of four
months to the appellant, the same shall be in full and final settlement of the claim of
respondent No.3 for maintenance. While fixing the quantum we have taken note of the
likely return as interest in case it is invested in fixed deposit in a nationalised bank, and
the likely increase in the quantum of maintenance till respondent No.3 attains majority.
Till deposit is made, the quantum fixed by this order shall be paid. If the respondent No.2
wants to make lump sum payment in terms of this order, the amount shall be paid by the
bank draft in the name of respondent No.3 with appellant as mother guardian. The
amount shall be kept in a fixed deposit with monthly interest payment facility till
respondent No.3 attains majority.
        25. The appeal is accordingly disposed of.
                                                                            Order accordingly.



                                [2005 (2) T.N.LR. 176 (SC)]
                                    SUPREME COURT
Before:
         R.C. Lahoti, C.J.I., B.N. Agrawal,          H.K. Sema, G.P. Mathur and P.K.
Balasubramanyan, JJ.

Iqbal Singh Marwah and another                        ..........................Appellants
                                           Versus
Meenakshi Marwah and another                          ......................Respondents

 [Criminal Appeal No. 402 of 2005 with Crl. A. Nos. 904 and1069-1070 of 1998, decided
                                 on 11th March, 2005]
      (A) Criminal Procedure Code, 1973—Section 195 (1)(b)(ii)—Applicability of—
Documents given in evidence—Provision of Section 195(1)(b)(ii) Cr.P.C. would be
attracted only when the offence enumerated, has been committed with respect to
a document produced or given in evidence in a proceeding in any Court i.e during
the time when the document was in custodia legis.                              (Para
25)
      (B) Interpretation of statute—Penal provision—Rule of strict construction
not of universal applicability—It should be construed in a manner which will
suppress the mischief and advance the object, of Legislature‟s view.
                                             (Para 22)
      Case law:—1996 (3) SCC 533; 1998 (2) SCC 493; 1998 (2) SCC 493; 1997 (2)
SCC 376; 1973 (1) SCC 564; 1974 (3) SCC 628; 1976 (1) SCC 555; 1994 (3) (Supp)
SCC 748; 1983 (4) SCC 240; AIR 1950 PC 31; AIR 1988 SC 419; (1991) (1) WLR 58;
1955 (1) SLR 158; 2003 (6) SCC 107; AIR 1976 SC 1929; AIR 1979 SC 1029; AIR 1980
SC 593;AIR 1954 SC 397—referred.

                                   JUDGMENT
        G.P. Mathur, J.:—Leave granted in Special Leave Petition (Crl.) No. 4111 of
2000.
       2. In view of conflict of opinion between two decisions of this Court each rendered
by a Bench of three learned Judges in Surjit Singh vs. Balbir Singh, 1996 (3) SCC 533,
and Sachida Nand Singh vs. State of Bihar, 1998 (2) SCC 493, (1996 Cri LJ 2304 : 1996
AIR SCW 1850 : AIR 1996 SC 1592) (1998 Cri LJ 1565 : 1998 AIR SCW 932 : AIR 1998
SC 1121) regarding interpretation of Section 195(1) (b) (ii) of Code of Criminal
Procedure 1973 (for short ‗Cr.P.C.‘), this appeal has been placed before the present
Bench.
       3. The facts of the case may be noticed in brief. The appellant Nos. 1 and 2 are
real brothers of Mukhtar Singh Marwah, while respondent Nos. 1 and 2 are his widow
and son respectively. Mukhtar Singh Marwah died on 3.6.1993. The appellant No. 1 filed
Probate Case No. 363 of 1993 in the Court of District Judge, Delhi for being granted
probate of the Will allegedly executed by Mukhtar Singh Marwah on 20.1.1993. The
petition was contested by the respondents on the ground that the Will was forged. On
their application the appellant No. 1 filed the original Will in the Court of District Judge on
10.2.1994. Thereafter, the respondents moved an application under Section 340 Cr.P.C.
requesting the Court to file a criminal complaint against appellant No.1 as the Will set up
by him was forged. A reply to the said application was filed on 27.7.1994 but the
application has not been disposed of so far. Thereafter, the respondents filed a criminal
complaint in May 1996 in the Court of Chief Metropolitan Magistrate, New Delhi, for
prosecution of the appellants and their mother Smt. Trilochan Kaur Marwah under
Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 and 500, IPC on the ground that
the Will of Mukhtar Singh Marwah set up by the appellants is a forged and fictitious
document. It is stated in the complaint that though Mukhtar Singh Marwah was an
educated person, but the Will bears his thumb impression. He had accounts in Bank of
Tokyo and Standard Chartered Bank which he used to operate by putting his signature.
Under the Will he had completely divested the respondents, who were his widow and
son respectively and also a daughter who was spastic and had bequeathed his entire
property to his mother and after her death to his brothers and sisters. The appellant
No.1, Iqbal Singh Marwah was appointed as the sole executor and trustee of the Will.
Before the learned Metropolitan Magistrate, the complainant examined six witnesses
including two persons from the banks who brought the relevant records and deposed
that Mukhtar Singh Marwah used to operate the accounts by putting his signature. The
learned Metropolitan Magistrate held that as the question whether the Will was a
genuine document or a forged one, was an issue before the District Judge in the probate
proceedings where the Will had been filed, Sections 195 (1) (b) (i) and (ii) Cr.P.C.
operated as a bar for taking cognizance of the offences under Sections 192, 193, 463,
464,471, 475 and 476, IPC, The complaint was accordingly dismissed by the order
dated 2.5.1998. The respondents thereafter filed a criminal revision against the order of
the learned Metropolitan Magistrate, before the Sessions Judge, who, relying upon
Sachida Nand Singh v. State of Bihar, 1998 (2) SCC 493 : (1998 Cri LJ 1565 : 1998 AIR
SCW 932 : AIR 1998 SC 1121) held that the bar contained in Section 195 (1) (b) (ii),
Cr.P.C. would not apply where forgery of a document was committed before the said
document was produced in Court. The revision petition was accordingly allowed and the
matter was remanded to the Court of Metropolitan Magistrate for proceeding in
accordance with law. The appellants challenged the order passed by the learned
Additional Sessions Judge by filing a petition under Section 482, Cr.P.C. before Delhi
High Court, but the same was dismissed on 15.9.2000 following the law laid down in
Sachida Nand Singh. Feeling aggrieved, the appellants have preferred the present
appeal in this Court.
        4. Sub-section (1) of Section 195 Cr.P.C., which according to the appellants,
creates a bar in taking cognizance on the complaint filed by the respondents, reads as
under:
   ―195. Prosecution for contempt of lawful authority of public servants, for offences
             against public justice and for offences relating to documents given in
             evidence—
       (1) No Court shall take cognizance—
          (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of
                the Indian Penal Code (45 of 1860), or
     (ii)     of any abetment of, or attempt to commit, such offence, or
    (iii)     of any criminal conspiracy to commit such offence, except on the complaint in
              writing of the public servant concerned or of some other public servant to
              whom he is administratively subordinate;
          (b) (i) of any offence punishable under any of the following sections of the
                Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both
                inclusive) 199, 200, 205 to 211 (both inclusive) and 228, when such offence
                is alleged to have been committed in, or in relation to, any proceeding in any
                Court, or
     (ii)     of any offence described in Section 463, or punishable under Section 471,
              Section 475 or Section 476, of the said Code, when such offence is alleged to
              have been committed in respect of a document produced or given in evidence
              in a proceeding in any Court, or
    (iii)     of any criminal conspiracy to commit, or attempt to commit, or the abetment of,
              any offence specified in sub-clause (i) or sub-     clause (ii).
              except on the complaint in writing of that Court, or of some other Court to
              which that Court is subordinate.
        5. The principal controversy revolves round the interpretation of the expression
‗when such offence is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any Court‖ occurring in clause (b) (ii) of
sub-section (1) of Section 195, Cr.P.C. The appellants place reliance on the following
observations made in para 10 of the report in Surjit Singh vs. Balbir Singh: (1996 Cri LJ
2304 : 1996 AIR SCW 1850 : AIR 1996 SC 1592, para 11)
             ―It would thus be clear that for taking cognizance of an offence, the document,
             the foundation of forgery, if produced before the court or given in evidence, the
             bar of taking cognizance under Section 195 (1) (b) (ii) gets attracted and the
           criminal Court is prohibited from taking cognizance of offence unless a
           complaint in writing is filed as per the procedure prescribed under Section 340
           of the Code by or on behalf of the Court. The object thereby is to preserve
           purity of the administration of justice and to allow the parties to adduce
           evidence in proof of certain documents without being compelled or intimidated
           to proceed with the judicial process. The bar of Section 195 is to take
           cognizance of the offence covered thereunder.‖
           To contend that once the document is produced or given in evidence in Court,
           the taking of cognizance on the basis of private complaint is completely barred.
       In Sachida Nand Singh, 1998 Cri LJ 1565 : 1998 AIR SCW 932 : AIR 1998 SC
1121, Paras 11, 12, 13 and 23) after analysis of the relevant provisions and noticing a
number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in
paragraphs 11, 12 and 23 which are being reproduced below:
    ―11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code
           is to ascertain whether any offence affecting administration of justice has been
           committed in respect of a document produced in Court or given in evidence in
           a proceeding in that Court. In other words, the offence should have been
           committed during the time when the document was in custodia legis.
      12. It would be a strained thinking that any offence involving forgery of a document
           if committed far outside the precincts of the Court and long before its
           production in the Court, could also be treated as one affecting administration of
           justice merely because that document later reached the Court records.
      23. The sequitur of the above discussion is that the bar contained in Section 195
           (1) (b) (ii) of the Code is not applicable to a case where forgery of the
           document was committed before the document was produced in a Court.‖
       6. On a plain reading clause (b) (ii) of sub-section (1) of Section 195 is capable of
two interpretations. One possible interpretation is that when an offence described in
Section 463 or punishable under Section 471. Section 475 or Section 476, IPC is alleged
to have been committed in respect of a document which is subsequently produced or
given in evidence in a proceeding in any Court, a complaint by the Court would be
necessary. The other possible interpretation is that when a document has been
produced or given in evidence in a proceeding in any Court and thereafter an offence
described as aforesaid is committed in respect thereof, a complaint by the Court would
be necessary. On this interpretation if the offence as described in the section is
committed prior to production or giving in evidence of the document in Court, no
complaint by Court would be necessary and a private complaint would be maintainable.
The question which requires consideration is which of the two interpretations should be
accepted having regard to the scheme of the Act and object sought to be achieved.
       7. Dr. A.M. Singhvi, learned senior counsel for the appellants, submitted that the
purpose of Section 195 is to bar private prosecution where the cause of justice is sought
to be perverted leaving it to the Court itself to uphold its dignity and prestige. If a very
restricted interpretation is given to Section 195(1) (b), (ii) Cr.P.C., as held in Sachida
Nand Singh, 1998 Cri LJ 1565 : 1998 AIR SCW 932 : AIR 1998 SC 1121 the protection
afforded by the provision will be virtually reduced to a vanishing point, defeating the very
object of the enactment. The provision, it is urged, does not completely bar the
prosecution of a person who has committed an offence of the type described thereunder,
but introduces a safeguard in the sense that he can be so prosecuted only on the
complaint of the Court where the document has been produced or given in evidence or
of some other Court to which that Court is subordinate. Learned Counsel has also
submitted that being a penal provision, giving a restricted meaning as held, in Sachida
Nand Singh, would not be proper as a person accused of having committed an offence
would be deprived of the protection given to him by the Legislature. He has also
submitted that on the aforesaid view there is a possibility of conflicting findings being
recorded by the civil or revenue Court where the document has been produced or given
in evidence and that recorded by the criminal Court on the basis of private complaint and
therefore an effort should be made to interpret the Section in the manner which avoids
such a possibility.
        8. Shri Y.P. Narula, learned counsel for the respondents has submitted that the
language of the Section is clear and there being no ambiguity therein, the only possible
manner in which it can be interpreted is that the complaint by a Court would be
necessary when the offences enumerated in the section are committed at a time when
the document has already been produced or given in evidence in Court i.e. when it is in
the proceedings of the Court. The provision has to be strictly construed as it creates a
bar on the power of the Court to take cognizance of an offence and any provision which
ousts the jurisdiction of the Court, which it otherwise possesses, must be strictly
construed and cannot be given an enlarged meaning. Since the provision deprives a
person who is a victim and is aggrieved by the offences described under Section 463 or
punishable under Sections 471, 475 or 476, IPC to initiate a criminal prosecution by filing
a complaint, his interest cannot be over-looked and therefore, the provision should not
be given an enlarged meaning, but only a restricted meaning should be given. Learned
counsel has also submitted that in certain situations where the forgery has been
committed at any time prior to the production or giving in evidence of the document in
Court, it may not at all be possible for such Court to effectively form an opinion as to
whether it is expedient to file a complaint and that may facilitate the escape of a guilty
person. Shri Narula has also submitted that in Sachida Nand Singh, (1998 Cri LJ 1565 :
1998 AIR SCW 932 : AIR 1998 SC 1121 ; 1996 Cri LJ 2304 : 1996 AIR SCW 1850 : AIR
1996 SC 1592). the Court has reiterated and has adopted the same view which has
been taken in several earlier decisions of this Court, and only in Surjit Singh a discordant
note has been struck which is not correct.
        9. The scheme of the statutory provision may now be examined. Broadly, Section
195, Cr.P.C. deals with three distinct categories of offences which have been described
in clauses (a), (b) (i) and (b) (ii) and they relate to (1) contempt of lawful authority of
public servants, (2) offences against public justice, and (3) offences relating to
documents given in evidence. Clause (a) deals with offences punishable under Sections
172 to 188, IPC which occur in Chapter X of the IPC and the heading of the Chapter is—
‘Of Contempts of The Lawful Authority of Public Servants‘. These are offences which
directly affect the functioning of or discharge of lawful duties of a public servant, Clause
(b) (i) refers to offences in Chapter XI of IPC which is headed as—‘Of False Evidence
And Offences Against Public Justice‘. The offences mentioned in this clause clearly
relate to giving or fabricating false evidence or making a false declaration in any judicial
proceeding or before a Court of justice or before a public servant who is bound or
authorized by law to receive such declaration, and also to some other offences which
have a direct correlation with the proceedings in a Court of justice (Sections 205 and
211, IPC). This being the scheme of two provisions or clauses of Section 195, viz., that
the offence should be such which has direct bearing or affects the functioning or
discharge of lawful duties of a public servant or has a direct correlation with the
proceedings in a court of justice, the expression ―when such offence is alleged to have
been committed in respect of a document produced or given in evidence in a proceeding
in a Court‖ occurring in clause (b) (ii) should normally mean commission of such an
offence after the document has actually been produced or given in evidence in the
Court. The situation or contingency where an offence as enumerated in this clause has
already been committed earlier and later on the document is produced or is given in
evidence in Court, does not appear to be in tune with clauses (a) (i) and (b) (i) and
consequently with the scheme of Section 195, Cr.P.C. This indicates that clause (b) (ii)
contemplates a situation where the offences enumerated therein are committed with
respect to a document subsequent to its production or giving in evidence in a proceeding
in any Court.
        10. Section 195(1) mandates a complaint in writing of the Court for taking
cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340
and 341, Cr.P.C. which occur in Chapter XXVI give the procedure for filing of the
complaint and other matters connected therewith. The heading of this Chapter is —
‗Provisions As to Offences Affecting The Administration of Justice‘. Though, as a general
rule, the language employed in a heading cannot be used to give a different effect to
clear words of the section where there cannot be any doubt as to their ordinary meaning,
but they are not to be treated as if they were marginal notes or were introduced into the
Act merely for the purpose of classifying the enactments. They constitute an important
part of the Act itself, and may be read not only as explaining the sections which
immediately follow them, as a preamble to a statute may be looked to explain its
enactments, but as affording a better key to the constructions of the Sections which
follow them than might be afforded by a mere preamble. (See Craies on Statute Law,
7th Edn., pages 207, 209). The fact that the procedure for filing a complaint by Court has
been provided in Chapter XXVI dealing with offences affecting administration of justice,
is a clear pointer of the legislative intent that the offence committed should be of such
type which directly affects the administration of justice, viz., which is committed after the
document is produced or given in evidence in Court. Any offence committed with respect
to a document at a time prior to its production or giving in evidence in Court cannot,
strictly speaking, be said to be an offence affecting the administration of justice.
        11. It will be useful to refer to some earlier decisions touching the controversy in
dispute which were rendered on Section 195 of Code of Criminal Procedure, 1908 (for
short ‗old Code‘). Sub-section (1) (c) of Section 195 of Old Code read as under:
           ―Section 195
       (1) No Court shall take cognizance—
     (c) Prosecution for certain offences relating to documents given in evidence—of
           any offence described in Section 463 or punishable under Section 471, Section
           475 or Section 476 of the same Code, when such offence is alleged to have
           been committed by a party to any proceeding in any Court in respect of a
           document produced or given in evidence in such proceeding, except on the
           complaint in writing of such Court, or of some other Court to which such Court
           is subordinate.‖
It may be noticed that language used in Section 195 (1)(b)(ii), Cr.P.C. is similar to the
above provision except that the words ―by a party to any proceeding in any Court‖
occurring therein have been omitted. We will advert to the effect of this omission later
on.
        12. A Full Bench of Allahabad High Court in Emperor vs. Kushal Pal Singh, 1931
(32) Cri LJ 1105 : AIR 1931 All 443, considered the scope of the aforesaid provision and
held, that clause (c) of Section 195 applies only to cases where an offence is committed
by a party, as such, to a proceeding to any Court in respect of a document which has
been produced or given in evidence in such proceeding. It was held that an offence
which has already been committed by a person who does not become a party till, say,
30 years after the commission of the offence, cannot be said to have been committed by
a party within the meaning of clause (c). A three-Judge Bench of this Court in Patel Lalji
Bhai Somabhai vs. The State of Gujarat, 1971 (2) SCC 376 : 1971 Cri LJ 1437 : AIR
1971 SC 1935, after examination of the controversy in considerable detail observed that
as a general rule the Courts consider it expedient in the interest of justice to start
prosecutions as contemplated by Section 476 (of the old Code which now corresponds
to Section 340, Cr.P.C.) only if there is a reasonable foundation for the charge and there
is a reasonable likelihood of conviction. The requirement of a finding as to the
expediency is understandable in case of an offence alleged to have been committed
either in or in relation to a proceeding in that Court in case of offences specified in
clause (b) [of the old Code corresponding to clause (b)(i), Cr.P.C.] because of the close
nexus between the offence and the proceeding. In case of offences specified in clause
(c) they are required to be committed by a party to a proceeding in that Court with
respect to a document produced or given in evidence in that Court. The Court approved
the view taken by Allahabad High Court in Emperor vs. Kushal Pal Singh, 1931 (32) Cri
LJ 1105 : AIR 1931 All 443, (supra) and held as under in para 7 of the report:
    ―(i) The underlying purpose of enacting Section 195 (1) (b) and (c) Section 476
            seems to be to control the temptation on the part of the private parties to start
            criminal prosecution on frivolous, vexatious or insufficient grounds inspired by
            a revengeful desire to harass or spite their opponents. These offences have
            been selected for the Court‘s control because of their direct impact on the
            judicial process. It is the judicial process or the administration of public justice
            which is the direct and immediate objector the victim of these offences. As the
            purity of the proceedings of the court is directly sullied by the crime, the Court
            is considered to be the only party entitled to consider the desirability of
            complaining against the guilty party. The private party who might ultimately
            suffer can persuade the Civil Court to file complaint.
     (ii)   the offences about which the Court alone is clothed with the right to complain
            may, therefore, be appropriately considered to be only those offences
            committed by a party to a proceeding in that Court, the commission of which
            has a reasonably close nexus with the proceeding in that Court so that it can
            without embarking upon a completely independent and fresh inquiry,
            satisfactorily consider by reference principally to its records the expediency of
            prosecuting the delinquent party. It, therefore, appears to be more appropriate
            to adopt the strict construction of confirming the prohibition contained in
            Section 195(1) (c) only to those cases in which the offences specified therein
            were committed by a party to the proceeding in character as such party. The
            Legislature could not have intended to extend the prohibition contained in
            Section 195(1) (c) to the offences mentioned therein, when committed by a
            party to a proceeding in that court prior to his becoming such party.‖
The Court clearly rejected any construction being placed on the provision by which a
document forged before the commencement of the proceeding in which it may happen to
be used in evidence later on, to come within the purview of Section 195, as that would
unreasonably restrict the right to initiate prosecution possessed by a person and
recognized by Section 190, Cr.P.C.
        13. The aforesaid decision was considered in Raghunath vs. State of U.P., 1973
(1) SCC 564 : 1973 Cri LJ 858 : AIR 1973 SC 1100. Here, the accused had obtained
sale deed of the property of a widow by setting up of an imposter and thereafter filed a
mutation application before the Tehsildar. The widow contested the mutation application
on the ground that she had never executed the sale deed and thereafter filed a criminal
complaint under Sections 465, 468 and 471, IPC in which the accused were convicted.
In appeal, it was contended that the private complaint was barred by virtue of Section
195 (1) (c), Cr.P.C. and the revenue Court alone could have filed the complaint. The
court repelled the aforesaid contention after relying upon the ratio of Patel Lalji Bhai vs.
State of Gujarat, 1971 Cri LJ 1437 : AIR 1971 SC 1935 and the private complaint was
held to be maintainable. In Mohan Lal vs. State of Rajasthan, 1974 (3) SCC 628 : 1974
Cri LJ 350 : AIR 1974 SC 299, the above-noted two decisions were relied upon for
holding that provisions of Section 195 (1) (c) (old Code) would not be applicable where
mutation proceedings were commenced after a Will had been forged. In Legal
Remembrancer, Govt. of West Bengal vs. Haridas Mundra, 1976 (1) SCC 555 : 1976 Cri
LJ 1732 : AIR 1976 SC 2225, Bhagwati, J. (as His Lordship then was), speaking for a
three-Judge Bench observed that earlier there was divergence of opinion in various High
Courts, but the same was set at rest by this Court in Patel Lalji Bhai Somabhai (supra)
and approved the view taken therein that the words of Section 195(1) (c) clearly meant
the offence alleged to have been committed by a party to the proceeding in his character
as such party, i.e. after having become a party to the proceeding and Sections 195(1)
(c), 476 and 476-A (of the old Code) read together indicated beyond doubt that the
Legislature could not have intended to extend the prohibition contained in Section 195(1)
(c) to the offences mentioned in the said section when committed by a party to a
proceeding prior to his becoming such party. Similar view has been taken in Mahadev
Bapuji Mahajan vs. State of Maharashtra 1994 (3) Supp. SCC 748 : 1994 Cri LJ 1389 :
1994 Air SCW 1167 : AIR 1994 SC 1549, where the contention that the absence of a
complaint by the revenue Court was a bar to taking cognizance by the criminal Court in
respect of offences under Sections 446, 468, 471 read with Section 120-B, IPC which
were committed even before the start of the proceedings before the revenue court, was
not accepted.
        14. Dr. Singhvi, learned senior counsel for the appellants, in support of his
contention has placed strong reliance on Gopalkrishna Menon vs. D. Raja Reddy, 1983
(4) SCC 240 : 1983 Cri LJ 1599 : AIR 1983 SC 1053, which is a decision rendered by a
Bench of two learned Judges. In this case, the appellants filed a civil suit for refund of
Rs. 20,000/- which they claimed to have deposited with the first respondent and for
recovery of certain amount. Along with the plaint the appellants produced a receipt for
Rs. 20,000/- in support of their claim. Thereafter the first respondent filed a criminal
complaint against the appellants alleging forgery of his signature on the money receipt
and thereby commission of offences punishable under Sections 467 and 471, IPC. The
appellants moved the High Court for quashing of the proceedings on the ground that in
absence of a complaint by the Court, the prosecution was barred under Section 195(1)
(b) (ii), Cr.P.C. The High Court dismissed the petition holding that Section 463 cannot be
construed to include Section 467, IPC as well and, therefore, the Magistrate was
competent to take cognizance on the complaint. This Court reversed the view taken by
the High Court observing that as Section 463 defines the offence of forgery and Section
467 punishes forgery of a particular category, Section 195 (1) (b) (ii), Cr.P.C. would be
attracted and in the absence of a complaint by the Court the prosecution would not be
maintainable. (1971 Cri LJ 1437 : AIR 1971 SC 1935) After briefly referring to Patel Lalji
Bhai (supra), the Court observed that ―not the conclusion but the ratio‖ of the said case
supported the view taken by it. The judgment does not show that applicability of Section
195(1) (b) (ii) was examined with regard to the question as to whether the alleged forged
receipt was prepared before or after commencement of the civil suit, nor any such
principle has been laid down that the bar would operate even if the forgery was
committed prior to commencement of the proceeding in the Civil Court.
        15. The other case which is the sheet-anchor of the argument of learned counsel
for the appellants is Surjit Singh vs. Balbir Singh, 1996 (3) SCC 533 : 1996 Cri LJ 2304 :
1996 AIR SCW 1850 : AIR 1996 SC 1592. The facts as stated in paras 1 and 11 of the
report show that a criminal complaint was filed by the respondent under Sections 420,
467, 468, 471 read with 120-B, IPC alleging that the appellants had conspired and
fabricated an agreement dated 26.7.1978 and had forged the signature of Smt. Dalip
Kaur and on the basis thereof, they had made a claim to remain in possession of a
house. The Magistrate took cognizance of the offence on 27.9.1983. The appellants
thereafter filed a civil suit on 9.2.1984 wherein they produced the agreement. It may be
noticed that the cognizance by the criminal Court had been taken much before filing of
the civil suit wherein the agreement had been filed. During the course of discussion, the
Court not only noticed Gopalkrishna Menon (supra), but also quoted extensively from
Patel Lalji Bhai (supra), 1971 Cri LJ 1437 : AIR 1971 SC 1935. Reference was then
made to Sanmukh Singh vs. The King, AIR 1950 Privy Council 31 and Sushil Kumar vs.
State of Haryana, AIR 1988 SC 419 : 1983 Cri LJ 1599 : AIR 1983 SC 1053 : 1988 Cri
LJ 427, wherein it has been held that the bar of Section 195 would not apply if the
original document had not been produced or given in evidence in Court. Then comes the
passage in the judgment (para 10 of the reports) which we have reproduced in the
earlier part of our judgment. The observations therein should not be understood as
laying down anything contrary to what has been held in Patel Lalji Bhai, 1971 Cri LJ
1437 : AIR 1971 SC 1935, but was made in the context that bar contained in Section
195(1) (b) (ii) would not be attracted unless the original document was filed. It is for this
reason that in the very next paragraph, after observing that the cognizance had been
taken prior to filing of the civil suit and the original agreement in Court, the view taken by
the High Court that the Magistrate could proceed with the trial of the criminal case was
upheld and the appeal was dismissed.
        16. As mentioned earlier, the words ―by a party to any proceeding in any Court‖
occurring in Section 195(1) (c) of the old Code have been omitted in Section 195(1) (b)
(ii), Cr.P.C. Why these words were deleted in the corresponding provision of Code of
Criminal Procedure, 1973 will be apparent from the 41st report of the Law Commission
which said as under in para 15.39:
      ―15. 39 The purpose of the section is to bar private prosecutions where the course
            of justice is sought to be perverted leaving to the Court itself to uphold its
            dignity and prestige. On principle there is no reason why the safeguard in
            clause (c) should not apply to offences committed by witnesses also.
            Witnesses need as much protection against vexatious prosecutions as parties
            and the Court should have as much control over the acts of witnesses that
            enter as a component of a judicial proceeding, as over the acts of parties. If,
            therefore, the provisions of clause (c) are extended to witnesses, the extension
           would be in conformity with the broad principle which forms the basis of
           Section 195.‖
Since the object of deletion of the words ―by a party to any proceeding in any Court‖
occurring in Section 195(1) (c) of the old Code is to afford protection to witnesses also,
the interpretation placed on the said provision in the earlier decisions would still hold
good.
       17. Section 190, Cr.P.C provides that a Magistrate may like take cognizance of
any offence (a) upon receiving a complaint of facts which constitute such offence, (b)
upon a police report of such facts, and (c) upon information received from any person
other than a police officer, or upon his own knowledge, that such offence has been
committed. Section 195, Cr.P.C. is a sort of exception to this general provision and
creates an embargo upon the power of the Court to take cognizance of certain types of
offences enumerated therein. The procedure for filing a complaint by the Court as
contemplated by Section 195(1), Cr.P.C. is given in Section 340, Cr.P.C. and sub-
sections (1) and (2) thereof are being reproduced below:
    340. Procedure in cases mentioned in Section 195—(1) When, upon an application
           made to it in this behalf or otherwise, any Court is of opinion that it is expedient
           in the interests of justice that an inquiry should be made into any offence
           referred to in clause (b) of sub-section (1) of Section 195, which appears to
           have been committed in or in relation to a proceeding in that Court or, as the
           case may be, in respect of a document produced or given in evidence in a
           proceeding in that Court, such Court may, after such preliminary inquiry, if
           any, as it thinks necessary—
        (a) record a finding to that effect;
        (b) make a complaint thereof in writing;
        (c) send it to a Magistrate of the first class having jurisdiction;
        (d) take sufficient security for the appearance of the accused before such
              Magistrate, or if the alleged offence is non-bailable and the Court thinks it
              necessary so to do, send the accused in custody to such Magistrate, and
        (e) bind over any person to appear and give evidence before such Magistrate.
      (2) The power conferred on a Court by sub-section (1) in respect of an offence
           may, in any case where that Court has neither made a complaint under sub-
           section (1) in respect of that offence nor rejected an application for the making
           of such complaint, be exercised by the Court to which such former Court is
           subordinate within the meaning of sub-section (4) of Section 195.
Section 341, Cr.P.C. provides for an appeal to the Court to which such former Court is
subordinate within the meaning of sub-section (4) of Section 195, against the order
refusing to make a complaint or against an order directing filing of a complaint and in
such appeal the superior Court may direct withdrawal of the complaint or making of the
complaint. Sub-section (2) of Section 343 lays down that when it is brought to the notice
of a Magistrate to whom a complaint has been made under Section 340 or 341 that an
appeal is pending against the decision arrived at in the judicial proceeding out of which
the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the
case until such appeal is decided.
       18. In view of the language used in Section 340, Cr.P.C. the Court is not bound to
make a complaint regarding commission of an offence referred to in Section 195 (1) (b),
as the section is conditioned by the words ―Court is of opinion that it is expedient in the
interest of justice‖. This shows that such a course will be adopted only if the interest of
justice requires and not in every case. Before filing of the complaint, the Court may hold
a preliminary enquiry and record a finding to the effect that it is expedient in the interests
of justice that enquiry should be made into any of the offences referred to in Section
195(i)(b). This expediency will normally be judged by the Court by weighing not the
magnitude of injury suffered by the person affected by such forgery or forged document,
but having regard to the effect or impact, such commission of offence has upon
administration of justice. It is possible that such forged document or forgery may cause a
very serious or substantial injury to a person in the sense that it may deprive him of a
very valuable property or status or the like, but such document may be just a piece of
evidence produced or given in evidence in Court, where voluminous evidence may have
been adduced and the effect of such piece of evidence on the broad concept of
administration of justice may be minimal. In such circumstances, the Court may not
consider it expedient in the interest of justice to make a complaint. The broad view of
clause (b)(ii), as canvassed by learned counsel for the appellants, would render the
victim of such forgery or forged document remedyless. Any interpretation which leads to
a situation where a victim of a crime is rendered remedyless, has to be discarded.
        19. There is another consideration which has to be kept in mind. Sub-section (1) of
Section 340, Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction
for filing of a complaint is not made during the pendency of the proceeding before the
Court and this is done at the stage when the proceeding is concluded and the final
judgment is rendered. Section 341 provides for an appeal against an order directing
filing of the complaint. The hearing and ultimate decision of the appeal is bound to take
time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn
the hearing of the case if it is brought to its notice that an appeal is pending against the
decision arrived at in the judicial proceeding out of which the matter has arisen. In view
of these provisions, the complaint case may not proceed at all for decades specially in
matters arising out of civil suits where decisions are challenged in successive appellate
fora which are time consuming. It is also to be noticed that there is no provision of
appeal against an order passed under Section 343(2), whereby hearing of the case is
adjourned until the decision of the appeal. These provisions show that, in reality, the
procedure prescribed for filing a complaint by the Court is such that it may not fructify in
the actual trial of the offender for an unusually long period. Delay in prosecution of a
guilty person comes to his advantage as witnesses become reluctant to give evidence
and the evidence gets lost. This important consideration dissuades us from accepting
the broad interpretation sought to be placed upon clause (b)(ii).
        20. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by
the said provision would also operate where after commission of an act of forgery the
document is subsequently produced in Court, is capable of great misuse. As pointed out
in Sachida Nand Singh, 1998 Cri LJ 1565 : 1998 AIR SCW 932 : AIR 1998 SC 1121,
after preparing a forged document or committing an act of forgery, a person may
manage to get a proceeding instituted in any civil, criminal or revenue Court, either by
himself or through someone set up by him and simply file the document in the said
proceeding. He would thus be protected from prosecution, either at the instance of a
private party or the police until the Court, where the document has been filed, itself
chooses to file a complaint. The litigation may be a prolonged one due to which the
actual trial of such a person may be delayed indefinitely. Such an interpretation would be
highly detrimental to the interest of society at large.
        21. Judicial notice can be taken of the fact that the Courts are normally reluctant to
direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair
and proper to give an interpretation which leads to a situation where a person alleged to
have committed an offence of the type enumerated in clause (b) (ii) is either not placed
for trial on account of non-filing of a complaint or if a complaint is filed, the same does
not come to its logical end. Judging from such an angle will be in consonance with the
principle that an unworkable or impracticable result should be avoided. In Statutory
Interpretation by Francis Bennion (Third Edn.) para 313, the principle has been stated in
the following manner:
            ―The Court seeks to avoid a construction of an enactment that produces an
            unworkable or impracticable result, since this is unlikely to have been intended
            by Parliament. Sometimes, however, there are overriding reasons for applying
            such a construction, for example where it appears that Parliament really
            intended it or the literal meaning is too strong.‖
        The learned author has referred to Sheffield City Council vs. Yorkshire Water
Services Ltd., 1991 (1) WLR 58 at 71, where it was held as under:
            ―Parliament is taken not to intend the carrying out of its enactments to be
            unworkable or impracticable, so the Court will be slow to find in favour of a
            construction that leads to these consequences. This follows the path taken by
            Judges in developing the common law. … the common law of England has not
            always developed on strictly logical lines, and where the logic leads down a
            path that is beset with practical difficulties the courts have not been frightened
            to turn aside and seek the pragmatic solution that will best serve the needs of
            society.‖
In S.J. Grange Ltd. vs. Customs and Excise Commissioners, (1979) 2 All ER 91, while
interpreting a provision in the Finance Act, 1972, Lord Denning observed that if the literal
construction leads to impracticable results, it would be necessary to do little adjustment
so as to make the section workable. Therefore, in order that a victim of a crime of
forgery, namely, the person aggrieved is able to exercise his right conferred by law to
initiate prosecution of the offender, it is necessary to place a restrictive interpretation on
clause (b) (ii).
        22. Dr. Singhvi has also urged that since we are dealing with a penal provision it
should be strictly construed and in support of his proposition he has placed reliance
upon a Constitution Bench decision in Tolaram Relumal vs. State of Bombay, 1955 (1)
SCR 158 : 1954 Cri LJ 1333 : AIR 1954 SC 496, wherein it was held that it is well settled
rule of construction of penal statutes that if two possible and reasonable constructions
can be put upon a penal provision, the Court must lean towards that construction which
exempts the subject from penalty rather than the one which imposes penalty and it is not
competent for the Court to stretch out the meaning of expression used by the Legislature
in order to carry out the intention of the Legislature. The contention is that since Section
195(1) (b) (ii) affords protection from private prosecution, it should not be given a
restrictive interpretation to curtail its scope. We are unable to accept such broad
proposition as has been sought to be urged. In Craies on Statute Law (1971 Edn. -
Chapter 21), the principle regarding penal provisions has been stated as under:
            ―But penal statutes must never be construed so as to narrow the words of the
            statute to the exclusion of cases which those words in their ordinary
           acceptations would comprehend………But where the thing is brought within
           the words and within the spirit, there a penal enactment is to be construed, like
           any other instrument, according to the fair commonsense meaning of the
           language used, and the Court is not to find or make any doubt or ambiguity in
           the language of a penal statute, where such doubt or ambiguity would clearly
           not be found or made in the same language in any other instrument.‖
       In Lalita Jalan vs. Bombay Gas Co., 2003 (6) SCC 107 : 2003 Cri LJ 2514 : 2003
AIR SCW 2175 : AIR 2003 SC 3157 : 2003 CLC 531, this question was examined in
considerable detail and it was held that the principle that a statute enacting an offence or
imposing a penalty is to be strictly construed is not of universal application which must
necessarily be observed in every case. The Court after referring to Murlidhar Meghraj
Loya vs. State of Maharashtra, AIR 1976 SC 1929; 1976 Cri LJ 1527, Kisan Trimbak
Kothula vs. State of Maharashtra, AIR 1977 SC 435; 1977 Cri LJ 267, Superintendent
and Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity, AIR 1979
SC 1029 and State of Maharashtra vs. Natwarlal Damodardas Soni, AIR 1980 SC 593
:1979 Cri LJ 897 : 1980 Cri LJ 429, held that the penal provisions should be construed in
a manner which will suppress the mischief and advance the object which the Legislature
had in view.
       23. That apart, the section which we are required to interpret is not a penal
provision but is part of a procedural law, namely, Code of Criminal Procedure which
elaborately gives the procedure for trial of criminal cases. The provision only creates a
bar against taking cognizance of an offence in certain specified situations except upon
complaint by Court. A penal statute is one upon which an action for penalties can be
brought by a public officer or by a person aggrieved and a penal act in its wider sense
includes every statute creating an offence against the State, whatever is the character of
the penalty for the offence. The principle that a penal statute should be strictly
construed, as projected by the learned counsel for the appellants can, therefore, have no
application here.
24. Coming to the last contention that an effort should be made to avoid conflict of
           findings between the civil and criminal Courts, it is necessary to point out that
           the standard of proof required in the two proceedings is entirely different. Civil
           cases are decided on the basis of preponderance of evidence while in a
           criminal case the entire burden lies on the prosecution and proof beyond
           reasonable doubt has to be given. There is neither any statutory provision nor
           any legal principle that the findings recorded in one proceeding may be treated
           as final or binding in the other, as both the cases have to be decided on the
           basis of the evidence adduced therein. While examining a similar contention in
           an appeal against an order directing filing of a complaint under Section 476 of
           old Code, the following observations made by a Constitution Bench in M.S.
           Sheriff vs. State of Madras, AIR 1954 SC 397 : 1954 Cri LJ 1019, give a
           complete answer to the problem posed:
    ―(15) As between the civil and the criminal proceedings we are of the opinion that
           the criminal matters should be given precedence. There is some difference of
           opinion in the High Courts of India on this point. No hard and fast rule can be
           laid down but we do not consider that the possibility of conflicting decisions in
           the civil and criminal Courts is a relevant consideration. The law envisages
           such an eventuality when it expressly refrains from making the decision of one
           Court binding on the other, or even relevant, except for certain limited
           purposes, such as sentence or damages. The only relevant consideration here
           is the likelihood of embarrassment.
     (16) Another factor which weighs with us is that a civil suit often drags on for years
           and it is undesirable that a criminal prosecution should wait till everybody
           concerned has forgotten all about the crime. The public interests demand that
           criminal justice should be swift and sure; that the guilty should be punished
           while the events are still fresh in the public mind and that the innocent should
           be absolved as early as is consistent with a fair an impartial trial. Another
           reason is that it is undesirable to let things slide till memories have grown too
           dim to trust.
           This, however, is not a hard and fast rule. Special considerations obtaining in
           any particular case might make some other course more expedient and just.
           For example, the civil case or the other criminal proceeding may be so near its
           end as to make it inexpedient to stay it in order to give precedence to a
           prosecution ordered under Section 476. But in this case we are of the view that
           the civil suits should be stayed till the criminal proceedings have finished.‖
       25. In view of the discussion made above, we are of the opinion that Sachida
Nand Singh, 1998 Cri LJ 1565 : 1998 AIR SCW 932 : AIR 1998 SC 1121, has been
correctly decided and the view taken therein is the correct view. Section 195(1) (b)(ii),
Cr.P.C. would be attracted only when the offences enumerated in the said provision
have been committed with respect to a document after it has been produced or given in
evidence in a proceeding in any Court i.e. during the time when the document was in
custodia legis.
       26. In the present case, the Will has been produced in the Court subsequently. It
is nobody‘s case that any offence as enumerated in Section 195(b)(ii) was committed in
respect to the said Will after it had been produced or filed in the Court of District Judge.
Therefore, the bar created by Section 195 (1) (b)(ii), Cr.P.C. would not come into play
and there is no embargo on the power of the Court to take cognizance of the offence on
the basis of the complaint filed by the respondents. The view taken by the learned
Additional Sessions Judge and the High Court is perfectly correct and calls for no
interference.
       27. The appeal is, accordingly, dismissed. Criminal Appeal No. 904/1998.
       28. This appeal has been preferred by the complainant against the judgment and
order dated 6.2.1998 of the Madras High Court by which the criminal revision petition
preferred by the second respondent Ramaraj was allowed and he was acquitted of the
charges under Sections 467 and 471, IPC on the ground that in view of the bar created
by Section 195 (1) (b)(ii), Cr.P.C. the learned Magistrate could not have taken
cognizance on the police report. According to the case of the prosecution, the sale deed
had been forged earlier and thereafter the same was filed in the Civil Court. For the
reasons already discussed the appeal is allowed and the judgment of the High Court is
set aside. The criminal revision petition filed by the second respondent shall be heard
and decided by the High Court afresh and in accordance with law.
       Criminal Appeal Nos. 1069-1970 of 1998.
       29-30. The High Court in the impugned order dismissed the petition filed by the
appellant under Section 482, Cr.P.C. relying upon the decision of this Court in Sachida
Nand Singh, 1998 Cri LJ 1565 : 1998 AIR SCW 932 : AIR 1998 SC 1121. In view of the
reasons already discussed, the appeals lack merit and are hereby dismissed.
                                                                           Order accordingly.
                              [2005 (2) T.N.L.R. 194 (SC)]
                                  SUPREME COURT
Before:
           N. Santosh Hegde and S.B. Sinha, JJ.

Nityanand Rai                                       ..........................Appellant
                                         Versus
State of Bihar and another                          .....................Respondents

             [Criminal Appeal No. 529 of 2005, decided on, 11th April, 2005]
      (A) Criminal Procedure Code, 1973—Section 439—Cancellation of bail—
Legality of—Threat received from appellant and his henchmen—Not proved
because on the date of receiving said threat, appellant was in jail—Another
ground that appellant had not brought to notice of Court that in connected trial,
two co-accused had been convicted for offence of murder, not acceptable—Mere
fact that trial Court convicting two co-accused expressed certain views as to
involvement of appellant in said crime which was not challenged by complainant,
could not be a ground to cancel bail—Hence, cancellation of bail improper.
                                            (Para 8)
      (B) Criminal Procedure Code, 1973—Section 439—Cancellation of bail—
Murder case—Complaint that appellant was absconding since date of incident,
found to be contrary to material on record—Charge-sheet not showing
absconder—Allegation of abscondence in future could not be accepted—No
material found against appellant—Bail not to be cancelled on that ground.
                     (Para 9)

      Counsel:—
             Sushil Kumar, Sr. Advocate, Anurag Dubey, K.B. Upadhyay, Manish
             Kumar and S.R. Setia, Advocates, for the appellant; Manish Kumar
             Saran, Atishi Dipankar, B.B. Singh and Kumar Rajesh Singh, Advocates,
             for the respondents.

                                       JUDGMENT
      Santosh Hegde, J.:—Heard learned counsel for the parties.
      2. Leave granted.
      3. By this appeal the appellant challenges an order of the High Court of Judicature
at Patna made in Criminal Miscellaneous No.29702 of 2003, dated 19.5.2004 by which
order the High Court cancelled the bail granted to the appellant earlier by itself on
19.9.2003. Basic facts necessary for the disposal of this appeal are as follows:—
          It is stated by the prosecution that the petitioner is an accused in Hajipur (T)
          P.S. Case No.71 of 1993 which was registered under Section 302, 307, 120-B
          of the I.P.C and Section 27 of the Arms Act on the basis of a complaint given
          by one Raj Kishore Rai on 6.3.1993 wherein it is stated that the appellant
            along with some others had murdered his brother Ram Davan Rai. Pursuant to
            the said complaint so far as the present appellant is concerned a charge-sheet
            was filed only on 11th July, 2003 nearly 10 years after the date of alleged
            incidence. On coming to know of the filing of such a charge-sheet the
            appellant moved the Sessions Court at Vaishali for grant of anticipatory bail
            which was rejected by the Sessions Court as per its order dated 30th of May,
            2003. And being aggrieved by the said order of the Sessions Court, the
            petitioner preferred an anticipatory bail application before the High Court of
            Patna which also came to be rejected on 17.7.2003 directing the appellant to
            surrender and seek regular bail. As per the said direction, it is stated that the
            appellant surrendered before the C.J.M., Vaishali at Hajipur on 21.7.2003 and
            moved a regular bail application which was rejected by the learned Sessions
            Judge on 7.8.2003. Against the said order of rejection of regular bail, the
            appellant preferred a Criminal Miscellaneous Petition before the High Court of
            Patna which by its order dated 19th of September, 2003 granted the bail to the
            petitioner subject to his furnishing a bond of Rs. 10,000/- with two sureties of
            the like amount each to the satisfaction of the CJM, Hajipur.
        4. However, even before the appellant could be released from custody pursuant to
the bail granted by the High Court the complainant in the case moved an application
before the High Court of Patna in Crl. Misc. No. 29702 of 2003 seeking cancellation of
the bail granted to the appellant alleging that the appellant was an influential man and
had been manipulating the investigation for the past ten years and was ultimately
brought to trial only because of the change in the hierarchy of police i.e. when an
impartial investigating agency came into picture. It was also urged that the appellant had
suppressed material facts while obtaining the bail from the High Court in as much as the
appellant did not disclose that in the connected criminal trial the co-accused have been
found guilty of an offence under Section 302 etc. and that since the date of the
appellant‘s surrender pursuant to the direction issued by the High Court on 17th of July,
2003, the appellant and his musclemen have been threatening the witnesses and
preventing the complainant from pursuing the case against the appellant. It was also
stated in the said application for cancellation of bail that two complaints have already
been filed in the Sadar Police Station, Hajipur on 10.10.2003 and 13.10.2003 alleging a
threat by the appellant and his henchmen.
        5. The High Court by the impugned order allowed the said application for
cancellation of bail filed by the complainant on the ground that there was a threat to the
prosecution witnesses by the appellant and his musclemen and that the appellant had
not brought to the notice of the Court that in the connected trial the two accused have
already been convicted by the trial Court and were sentenced to life imprisonment. The
court in the impugned order also noticed that in the order granting bail it unfortunately
failed to notice that the appellant was one of the two accused who were described as the
active assailants.
        6. Challenging the above order of cancellation of bail in this appeal the appellant
contends that the High Court while cancelling the bail has not borne in mind the well
settled principles of law in regard to cancellation of bail and has approached the case as
if it was hearing a bail application for the first time. It is also contended that the basis of
the alleged threat which was taken note of by the High Court, i.e., the two complaints
filed by the complainant dated 10.10.2003 and 13.10.2003 in Hajipur Police Station
could not have been genuine in as much as on the date when these two complaints
were filed, the appellant was, as a matter of fact, in custody and was only released
pursuant to the bail granted by the High Court on 15.11.2003 nearly a month after the
two alleged complaints of threat were lodged, hence, no reliance could have been
placed on such a pre-planned complaint. It is also submitted on behalf of the appellant
that though the appellant was included in the First Information Report filed in the year
1993, the investigating agency could not find any material against the appellant, hence
no charge-sheet was filed against the appellant for nearly 10 years until the same was
done on 11.7.2003, this too because of the fact that that the investigating police officer
was annoyed with the appellant because of a privilege motion brought against the said
police officer in the assembly at the instance of the appellant as a Member of the
Legislative Assembly, in which the said police officer had to tender an apology.
        7. Learned counsel for the State as well as for the complainant in rebuttal
submitted that the appellant being a very influential person has managed with the
investigating agency to keep himself out of the trial all these years and because of the
efforts of a good police officer he has at last been charged for a heinous crime and if he
is let out on bail there is every possibility of his interfering with the fair trial, therefore, the
High Court was justified in cancelling the bail. It is also pointed out that since the
Sessions Court in the connected trial has convicted two persons for life imprisonment
and in the evidence adduced in that trial found material against the appellant of his
involvement in the crime. This is not a fit case in which the appellant should be granted
bail.
        8. Having considered the argument advanced on behalf of the appellant and
respondent, we think the High Court was not justified in considering the application for
cancellation of bail as if it was an application for grant of bail. Consideration of an
application for grant of bail stands on a different footing than one for cancellation of bail.
Grounds for cancellation of bail should be those which arose after the grant of bail and
should be referable to the conduct of the accused while on bail, such is not the case
made out in application for cancellation of bail. Of course, the complainant had alleged in
the petition for cancellation of bail that the witnesses in the case had received threats
from the appellant and his henchmen, this is supported by two complaints filed by him
before the police dated 10.10.2003 and 13.10.2003. But as contended by the learned
counsel for the appellant these two complaints cannot be accepted ex-facie because on
the dates mentioned in those complaints the appellant was still in jail and was not yet
released on bail though the High Court had granted him bail, therefore, the question of
the appellant administering threats to the witnesses as alleged by the complainant
cannot be accepted. The next ground on which the High Court considered it appropriate
to cancel the bail is the fact that the appellant had not brought to its notice that in the
connected trial, two of the co-accused had been convicted for an offence punishable
under Section 302. This fact has been denied by the appellant before us by pointing out
from his bail application wherein para 10 he had specifically mentioned about the
conviction of the two accused persons. Be that as it may, it was the duty of the
prosecution to have brought this fact to the notice of the High Court and the appellant
cannot be held guilty of suppression of that fact. The 3rd ground on which the bail was
cancelled is an error committed by the Court itself in not noticing the fact that in the
judgment of the trial Court in the connected matter the trial Court found material as to the
participation of the accused in the offence. We are of the opinion that this also cannot be
a ground for cancelling the bail already granted which was not challenged by any person
be it the prosecution or the complainant. The factum that the learned Sessions Judge in
the judgment convicting the two co-accused expressed certain views as to the
involvement of the appellant in this crime cannot be a ground to cancel the bail. As
contended by the learned counsel for the appellant if really there was such material
against the appellant before the Sessions Court in that trial the procedure contemplated
under Section 319 of Cr.P.C. could have been invoked either by the complainant or the
Court itself which having not been done, at this stage that observation of the learned
Sessions Judge or the evidence given by the witnesses in that trial in which appellant
was not an accused cannot be construed as material sufficient to cancel the bail.
        9. Learned counsel for the respondent then pointed out that the appellant was
absconding since the date of incident, hence, investigation as against him could not be
concluded for the last many years, and if he is released there is a possibility of he again
absconding. This argument, in our opinion, runs counter to the material on record. Since
the filing of the complaint in the year 1993, 7 earlier charge-sheets were filed against
various accused mentioned in the complaint and in all these charge-sheets, last of which
was on 31.3.2003, the appellant‘s name was shown in Col. No.2 as an accused against
whom investigation was still being conducted. In the said charge-sheets, he was not
shown as an absconder. That apart there is material on record to show that the appellant
has been elected to the Legislative Assembly in the year 2000 and again in the year
2005, and has been attending the Assembly proceedings till he surrendered in the year
2003. If that be so, the allegation of abscondence in past or the likelihood of
abscondence in future cannot be accepted. As a matter of fact that for nearly 10 years
and after filing 7 charge-sheets, the investigation did not find sufficient material to
include the appellant as an accused in those 7 charge-sheets is an indicator of the fact
that for all these years the investigation agency could not find material against the
appellant.
       10. Therefore, we are satisfied that the cancellation of bail by the impugned order,
by the High Court is unsustainable. However, taking into consideration the apprehension
of the complainant that the appellant by using his power as member of the Legislative
Assembly might interfere in the trial or try to influence the witnesses in the case, we feel
it appropriate to direct the appellant not to enter the territorial jurisdiction of Hajipur Sub-
Division of District Vaishali except for the purpose of attending the trial. If for any reason
it becomes imperative for the appellant to visit Hajipur then he shall do so after informing
the investigating agency in the case. This condition shall be in addition to the conditions
imposed by the High Court for granting bail as per its order dated 19.9.2003.
       11. For the reasons stated above, we allow this appeal, set aside the impugned
order of the High Court and restore that of the High Court dated 19.9.2003 granting bail
to the appellant.
      12. We make it clear that whatever conclusion we have expressed in this order of
ours is purely prima facie and for the limited purpose of finding out whether the
impugned order of the High Court is sustainable or not. The trial Court shall not be in any
manner influenced by these observations of ours or that of the High Court made in the
course of the order granting bail or order cancelling bail.
      13. Appeal allowed.
                                                                                 Appeal allowed.




                               [2005 (2) T.N.L.R. 200 (SC)]
                                   SUPREME COURT
Before:
            Arijit Pasayat and S.H. Kapadia, JJ.

K. Kalimuthu                                         ............................Appellant
                                          Versus
State                                                          ......................Respondent

             [Criminal Appeal No. 469 with 470 and 471 of 2005, decided on,
                                   30th March, 2005]
       Code of Criminal Procedure, 1973—Section 197—Sanction for prosecution—
Entitlement of protection—Contention that act done by accused was in discharge
of official duties—Protection need not to be considered when complaint is lodged,
it can be considered at subsequent stage—Therefore, declining to consider
applicability of provision of Section 197 at the stage of taking of cognizance by
trial Court, valid.
                                                                 (Paras 15 & 16)

      Case law:—AIR 1988 SC 257; AIR 1967 SC 776; 1979 4) SCC 177; AIR 1956 SC
44; 2004 (2) SCC 349; JT 2004 (4) SC 52; JT 2004 (6) SC 323; 2001 (6) SCC 704—
referred.

        Counsel:—
               K.V. Viswanathan, K.V. Venkataraman, Atul Kumar Sinha, B. Raghunath
               and K.V. Vijayakumar, Advocates, (in Cri A. No. 469/2005) and M.N. Rao,
               Sr. Advocate, S. Thananjayan, advocate, with him (in Cri A. Nos. 470 and
               471/2005) for the appellant; P.P. Malhotra, Addl Solicitor General, A.D.N.
               Rao., P. Parmeswaran Advocates with him, for the respondent.

                                       JUDGMENT
       Arijit Pasayat, J.:—Leave granted.
       2. All these appeals involve identical question of law and are, therefore, taken up
together. In each of these cases, on the allegation that the appellant was guilty of
various offences under the Indian Penal Code, 1860 (in short the ‗IPC) and Section 5(2)
read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (in short the ‗Act‘),
information was lodged, investigation was undertaken and on completion of
investigation, charge-sheet was filed. The appellant in each case filed petition before the
Principal Special Judge for CBI cases, Chennai, contending that in the absence of
requisite sanction under Section 197 of the Code of Criminal Procedure, 1973 (in short
the ―Code‘) it was beyond jurisdiction of the Court to take cognizance of the alleged
offences. The stand taken in the petitions was that the alleged acts were directly and
reasonably connected with official duty and since there was a direct nexus and
relationship between the discharge of his alleged act and the official duties and because
of the absence of requisite sanction as contemplated under Section 197 of the Code,
cognizance could not have been taken. The plea found favour with the concerned Court
in the matter of K. Kalimuthu. The State questioned correctness of the judgment by filing
revision taking the stand that Section 197 of the Code has no application to the facts of
the case. The plea was accepted by the High Court, which is the subject-matter of
challenge in the appeal relatable to SLP (Crl.) No. 1770/2004. But the plea was not
accepted by the concerned Court in the other two cases to which the appeals arise out
of SLP (Crl.) Nos. 2926/2004 and 681/2005. In these cases High Court rejected the plea
raised by the concerned appellants about protections available under Section 197 of the
Code.
       3. In all the three cases the High Court took the view that the person claiming
protection under Section 197 of the Code has to show that there is a reasonable
connection between the act complained of and the discharge of official duty.
Accordingly, the order passed by the Special Judge for CBI cases, in favour of accused-
appellant in the appeal relating of SLP (Crl.) No.1770/2004, was set aside and in other
two cases view adopted by the Special Judge for CBI cases was maintained and the
applications filed by the appellants—S. Chandramohan and N. Chanderasekaran were
dismissed.
       4. In support of the appeals, learned counsel for the appellants submitted that the
High Court failed to notice the true scope and ambit of Section 197 of the Code. There
was unmistakable link between the act alleged and the official duties and, therefore,
Section 197 of the Code was clearly applicable.
       5. In response, Mr. P.P. Malhotra, learned Additional Solicitor General for the
prosecution took the stand that the High Court kept in view the law as laid down by this
Court in various cases and rightly held that the protection under Section 197 of the Code
was not available to the accused persons.
       6. The pivotal issue i.e. applicability of Section 197 of the Code needs careful
consideration. In Bakhshish Singh Brar vs. Smt. Gurmej Kaur and Another, AIR 1988 SC
257 : 1988 Cri LJ 419, Para 6, this Court while emphasizing on the balance between
protection to the officers and the protection to the citizens observed as follows:—
           ―It is necessary to protect the public servants in the discharge of their duties. In
           the facts and circumstances of each case protection of public officers and
           public servants functioning in discharge of official duties and protection of
           private citizens have to be balanced by finding out as to what extent and how
           far is a public servant working in discharge of his duties or purported discharge
           of his duties, and whether the public servant has exceeded his limit. It is true
           that Section 196 states that no cognizance can be taken and even after
           cognizance having been taken if facts come to light that the acts complained of
           were done in the discharge of the official duties then the trial may have to be
           stayed unless sanction is obtained. But at the same time it has to be
           emphasized that criminal trials should not be stayed in all cases at the
           preliminary stage because that will cause great damage to the evidence.‖
       7. The protection given under Section 197 is to protect responsible public servants
against the institution of possibly vexatious criminal proceedings for offences alleged to
have been committed by them while they are acting or purporting to act as public
servants. The policy of the Legislature is to afford adequate protection to public servants
to ensure that they are not prosecuted for anything done by them in the discharge of
their official duties without reasonable cause, and if sanction is granted, to confer on the
Government, if they choose to exercise it, complete control of the prosecution. This
protection has certain limits and is available only when the alleged act done by the public
servant is reasonably connected with the discharge of his official duty and is not merely
a cloak for doing the objectionable act if in doing his official duty, he acted in excess of
his duty, but there is a reasonable connection between the act and the performance of
the official duty, the excess will not be a sufficient ground to deprive the public servant
from the protection. The question is not as to the nature of the offence such as whether
the alleged offence contained an element necessarily dependent upon the offender
being a public servant, but whether it was committed by a public servant acting or
purporting to act as such in the discharge of his official capacity. Before Section 197 can
be invoked, it must be shown that the official concerned was accused of an offence
alleged to have been committed by him while acting or purporting to act in the discharge
of his official duties. It is not the duty which requires examination so much as the act,
because the official act can be performed both in the discharge of the official duty as well
as in dereliction of it. The act must fall within the scope and range of the official duties of
the public servant concerned. It is the quality of the act which is important and the
protection of this section is available if the act falls within the scope and range of his
official duty. There cannot be any universal rule to determine whether there is a
reasonable connection between the act done and the official duty, nor is it possible to lay
down any such rule. One safe and sure test in this regard would be to consider if the
omission or neglect on the part of the public servant to commit the act complained of
could have made him answerable for a charge of dereliction of his official duty, if the
answer to this question is in the affirmative, it may be said that such act was committed
by the public servant while acting in the discharge of his official duty and there was every
connection with the act complained of and the official duty of the public servant. This
aspect makes it clear that the concept of Section 197 does not get immediately attracted
on institution of the complaint case.
       8. At this juncture, we may refer to P. Arulswami vs. State of Madras, AIR 1967
SC 776 : 1967 Cri LJ 665, Para 6 wherein this Court held as under:
            ―……It is not therefore every offence committed by a public servant that
            requires sanction for prosecution under Section 197(1) of the Criminal
            Procedure Code; nor even every act done by him while he is actually engaged
            in the performance of his official duties; but if the act complained of is directly
            concerned with his official duties so that, if questioned, it could be claimed to
            have been done by virtue of the office, then sanction would be necessary. It is
            quality of the act that is important and if it falls within the scope and range of
            his official duties the protection contemplated by Section 197 of the Criminal
            Procedure Code will be attracted. An offence may be entirely unconnected with
            the official duty as such or it may be committed within the scope of the official
            duty. Where it is unconnected with the official duty there can be no protection.
            It is only when it is either within the scope of the official duty or in excess of it
            that the protection is claimable.‖
        9. Section 197(1) and (2) of the Code read as under:
    ―197. (1) When any person who is or was a Judge or Magistrate or a public servant
            not removable from his office save by or with the sanction of the Government
            is accused of any offence alleged to have been committed by him while acting
            or purporting to act in the discharge of his official duty, no Court shall take
            cognizance of such offence except with the previous sanction—
         (a) in the case of person who is employed or, as the case may be, was at the
               time of commission of the alleged offence employed, in connection with the
               affairs of the Union, of the Central Government;
         (b) in the case of a person who is employed or, as the case may be, was at the
               time of commission of the alleged offence employed, in connection with the
               affairs of a State, of the State Government.
               *                           *                             *
       (2) No Court shall take cognizance of any offence alleged to have been committed
            by any member of the Armed Forces of the Union while acting or purporting to
            act in the discharge of his official duty, except with the previous sanction of the
            Central Government.‖
The section falls in the chapter dealing with conditions requisite for initiation of
proceedings. That is if the conditions mentioned are not made out or are absent then no
prosecution can be set in motion. For instance no prosecution can be initiated in a Court
of Sessions under Section 193, as it cannot take cognizance, as a Court of original
jurisdiction, of any offence unless the case has been committed to it by a Magistrate or
the Code expressly provides for it. And the jurisdiction of a Magistrate to take
cognizance of any offence is provided by Section 190 of the Code, either on receipt of a
complaint, or upon a police report or upon information received from any person other
than police officer, or upon his knowledge that such offence has been committed. So far
public servants are concerned the cognizance of any offence, by any Court, is barred by
Section 197 of the Code unless sanction is obtained from the appropriate authority, if the
offence, alleged to have been committed, was in discharge of the official duty. The
section not only specifies the persons to whom the protection is afforded but it also
specifies the conditions and circumstances in which it shall be available and the effect in
law if the conditions are satisfied. The mandatory character of the protection afforded to
a public servant is brought out by the expression, ‗no Court shall take cognizance of
such offence except with the previous sanction‘. Use of the words, ‗no‘ and ―shall‘ make
it abundantly clear that the bar on the exercise of power by the Court to take cognizance
of any offence is absolute and complete. Very cognizance is barred. That is the
complaint, cannot be taken notice of. According to Black‘s Law Dictionary the word
‗cognizance‘ means ‗jurisdiction‘ or ‗the exercise of jurisdiction, or ‗power to try and
determine causes‘. In common parlance it means ‗taking notice of‘. A Court, therefore, is
precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it
is in respect of a public servant who is accused of an offence alleged to have been
committed during discharge of his official duty.
        10. Such being the nature of the provision the question is how should the
expression, ‗any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty‘, be understood? What does it
mean? ‗Official‘ according to dictionary, means pertaining to an office, and official act or
official duty means an act or duty done by an officer in his official capacity. In B. Saha
and others vs. M.S. Kochar, 1979 (4) SCC 177 : 1979 Cri LJ 1367 : AIR 1979 SC 1841,
Para 18, it was held: (SCC pp. 184-85, para 17).
           ―The words ‗any offence alleged to have been committed by him while acting
           or purporting to act in the discharge of his official duty‘ employed in Section
           197(1) of the Code, are capable of a narrow as well as a wide interpretation. If
           these words are construed too narrowly, the section will be rendered altogether
           sterile, for, ‗it is no part of an official duty to commit an offence, and never can
           be‘. In the wider sense, these words will take under their umbrella every act
           constituting an offence, committed in the course of the same transaction in
           which the official duty is performed or purports to be performed. The right
           approach to the import of these words lies between two extremes. While on the
           one hand, it is not every offence committed by a public servant while engaged
           in the performance of his official duty, which is entitled to the protection of
           Section 197 (1), an Act constituting an offence, directly and reasonably
           connected with his official duty will require sanction for prosecution and the
           said provision.‖
Use of the expression, ‗official duty‘ implies that the act or omission must have been
done by the public servant in the course of his service and that it should have been in
discharge of his duty. The section does not extend its protective cover to every act or
omission done by a public servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant in discharge of official duty.
       11. It has been widened further by extending protection to even those acts or
omissions which are done in purported exercise of official duty. That is under the colour
of office. Official duty therefore implies that the act or omission must have been done by
the public servant in course of his service and such act or omission must have been
performed as part of duty which further must have been official in nature. The section
has, thus, to be construed strictly, while determining its applicability to any act or
omission in course of service. Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission has been found to have been
committed by a public servant in discharge of his duty then it must be given liberal and
wide construction so far its official nature is concerned. For instance a public servant is
not entitled to indulge in criminal activities. To that extent the section has to be construed
narrowly and in a restricted manner. But once it is established that act or omission was
done by the public servant while discharging his duty then the scope of its being official
should be construed so as to advance the objective of the section in favour of the public
servant. Otherwise the entire purpose of affording protection to a public servant without
sanction shall stand frustrated. For instance a police officer in discharge of duty may
have to use force which may be an offence for the prosecution of which the sanction
may be necessary. But if the same officer commits an act in course of service but not in
discharge of his duty and without any justification therefor then the bar under Section
197 of the Code is not attracted. To what extent an act or omission performed by a
public servant in discharge of his duty can be deemed to be official was explained by this
Court in Matajog Dobey vs. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140, Para 17,
thus:
           ―The offence alleged to have been committed (by the accused) must have
           something to do, or must be related in some manner with the discharge of
           official duty…there must be a reasonable connection between the act and the
           discharge of official duty; the act must bear such relation to the duty that the
           accused could lay a reasonable (claim) but not a pretended or fanciful claim,
           that he did it in the course of the performance of his duty.‖
       12. If on facts, therefore, it is prima facie found that act or omission for which the
accused was charged had reasonable connection with discharge of his duty then it must
be held to be official to which applicability of Section 197 of the Code cannot be
disputed.
       13. The above position was highlighted in State of H.P. vs. M.P. Gupta, 2004 (2)
SCC 349 : 2003 AIR SCW 6887 : AIR 2004 SC 730; State of Orissa through Kumar
Raghvendra Singh and others vs. Ganesh Chandra Jew, JT 2004 (4) SC 52 : 2004 Cri
LJ 2011 : 2004 AIR SCW 1926 : AIR 2004 SC 2179 and in Shri S.K. Zutshi and another
vs. Shri Bimal Debnath and another, JT 2004 (6) SC 323 : 2004 AIR SCW 4643 : AIR
2004 SC 4174.
       14. In P.K. Pradhan vs. State of Sikkim, 2001 (6) SCC 704 : 2001 Cri LJ 3505 :
2001 AIR SCW 2648 : AIR 2001 SC 2547, para 5, it has, inter alia, held as follows:
           ―The legislative mandate engrafted in sub-section (1) of Section 197 debarring
           a Court from taking cognizance of concerned in a case where the acts
           complained of are alleged to have been committed by a public servant in
           discharge of his official duty or purported to be in the discharge of his official
           duty and such public servant is not removable from office save by or with the
           sanction of the Government, touches the jurisdiction of the Court itself. It is
           prohibition imposed by the Statute from taking cognizance. Different tests have
           been laid down in decided cases to ascertain the scope and meaning of the
           relevant words occurring in Section 197 of the Code: ‗any offence alleged to
           have been committed by him while acting or purporting to act in the discharge
           of his official duty‘. The offence alleged to have been committed must have
           something to do, or must be related in some manner, with the discharge of
           official duty. No question of sanction can arise under Section 197, unless the
           act complained of is an offence; the only point for determination is whether it
           was committed in the discharge of official duty. There must be a reasonable
           connection between the act and the official duty. It does not matter even if the
           act exceeds what is strictly necessary for the discharge of the duty, as this
           question will arise only at a later stage when the trial proceeds on the merits.
           What a Court has to find out is whether the act and the official duty are so
           interrelated that one can postulate reasonably that it was done by the accused
           in the performance of official duty, though, possibly in excess of the needs and
           requirements of the situation.‖
       15. The question relating to the need of sanction under Section 197 of the Code
need not necessarily be considered as soon as the complaint is lodged and on the
allegations contained therein. This question may arise at any stage of the proceeding.
The question whether sanction is necessary or not may have to be determined from
stage to stage. Further, in cases where offences under the Act are concerned the effect
of Section 19, dealing with question of prejudice has also to be noted.
       16. Therefore, we do not find any infirmity in the judgment of the High Court
declining to consider the applicability of Section 197 of the Code at the present juncture.
It is open to the appellant to raise that question if occasion so arises at an appropriate
stage during trial. We make it clear that we have not expressed any opinion as regards
the applicability or otherwise of Section 197. Certain observations have been made by
the High Court while deciding the question regarding the applicability of Section 197 of
the Code. These appear to have been made for the purpose of deciding the issue as it
stands at present. If a plea relating to applicability of Section 197 is raised subsequently
the concerned Court would not be bound by the observations made, while deciding such
issue, except on the legal principles noticed by the High Court on the basis of decisions
of this Court. As the matter is pending since long the concerned Courts do well to
complete the trial as expeditiously as possible.
       The appeals are accordingly disposed of.
                                                                           Order accordingly.

                               [2005 (2) T.N.L.R. 208 (SC)
                                   SUPREME COURT
Before:
           Arijit Pasayat and S.H. Kapadia, JJ.


Harbans Kaur and another                              ........................Appellants
                                          Versus
State of Haryana                                               ......................Respondent


            [Criminal Appeal No. 370 of 2005 , decided on 1st March, 2005]
      (A) Indian Penal Code, 1860—Sections 304 Part I, 326 and 34—Culpable
homicide amounting to murder—Accused alleged to have injured deceased with
gandasi and lathi, causing death of deceased—Evidence of wife of deceased and
his other relative corroborating each other—Their evidence not to be discarded
because of interestedness—Delay in FIR was due to hospitalization of deceased in
injured condition—Held, conviction of accused person under Section 304, Part 1
read with Section 34, not improper.                       (Paras 7, 8, 9 & 14)
     (B) Evidence Act, 1872—Section 3—Evidence of interested witness—
Credibility of—No proposition in law that relatives are                 to be as
untruthful witness—Reason must be shown where plea of partiality is raised.
                                                 (Para 7)
      (C) Indian Penal Code, 1860—Section 300—Criminal Procedure Code, 1873—
Section 154—Murder—Delay in filing FIR—Condonation of—Long delay can be
condoned when witnesses have no motive of implicating accused and have given
plausible reason for delay.
                             (Para 7)


       Case law:—2004 Cri LJ. 2527; 2004 AIR SCW 2857; AIR 2004 SC 2294; 2004
AIR Jhar HCR 1722; 2004 (5) SCC 679; 1993 Cr. L.J. 2246; AIR 1993 SC 1899; 1977
Cri. L.J. 164; AIR 1977 SC SC 109; 1945 (46) Cri.L.J. 689; AIR 1945 PC 118—referred.

      Counsel:—
               Salil Bali, Rajesh K. Sharma and Ms. Shalu Sharma, Advocates, for the
               appellants; D. P. Singh, Ms. Avneet Toor and Vinay Kumar Garg,
               Advocates, for the respondents.
                                         JUDGMENT
       Arijit Pasayat, J.,—Leave granted.
       2. Appellants call in question legality of the judgment rendered by a Division
Bench of the Punjab and Haryana High Court upholding conviction of the appellants
(hereinafter referred to as the ‗accused‘) under Sections 323, 325 and 326 read with
Section 34 of the Indian Penal Code, 1860 (in short the ‗IPC‘) and sentence as imposed
by the trial Court which had sentenced each to undergo rigorous imprisonment for three
months, two years and seven years respectively with separate fines for each of the
alleged offences with default stipulations.
       3. Background facts leading to the trial of the accused appellants are as follows:
           The case was registered on the basis of information lodged by Piara Singh
           (PW-6), which was recorded on 10.11.1989 at about 2.00 a.m. According to
           the informant, he and his son Sham Singh‘s wife Sitto (PW-7) were sitting in
           the courtyard of the house of Sham Singh (hereinafter referred to as the
           ‗deceased‘). It was about 11.00 a.m. on 9.11.1989 when deceased was
           coming from the village after purchasing vegetables. When he reached near
           the house of Janta Singh, son of Dharam Singh, Harbans Kaur (A-1) armed
           with a Gandasi and Mitta Singh (A-2) armed with a lathi were present there.
           Mitta made an obscene gesture. At this Mitta Singh and the deceased
           exchanged hot words and abused each other. Harbans Kaur gave a Gandasi
           blow on the right hand of the deceased, which caused a grievous injury. Mitta
           Singh gave a lathi blow on the left foot of the deceased and also gave a thrust
           blow of lathi on the left side of his head. Deceased fell down on the ground.
           The occurrence was witnessed by Piara Singh (PW-6) and Sitto (PW-7). Both
           of them took Sham Singh injured to their house. When Piara Singh and Sito
           raised alarm, both the accused persons ran away from the spot. Since the
           condition of Sham Singh became serious during the night time, he was taken
           to the Primary Health Centre, Ratia. On 10.11.1989 at night at about 0.15 a.m.
           Dr. O.P. Kakkar examined Sham Singh. He found injury No.1 which was an
           incised wound in the middle phalanx of the index finger of right hand. The
           second injury was an abrasion on the lateral side of upper 1/3rd part of left leg
           and the patient complained of pain on different parts of the body. Dr. O.P.
           Kakkar sent information to the Police Station, Ratia. ASI Ram Ratan reached
           the Primary Health Centre and recorded the statement of Piara Singh which is
           the FIR. On the basis of this statement, FIR was recorded by ASI Bharat
           Singh. Sham Singh expired at about 1.50 a.m. on 10.11.1989. Hence,
           information to this effect was sent.
       4. The accused persons were charged for alleged commission of offences
punishable under Section 304, Part-I read with Section 34, IPC. The accused persons
pleaded innocence and claimed trial. Eight persons were examined to further the
prosecution case. Piara Singh (PW-6) was the complainant and claimed to be an eye-
witness. Smt. Sitto (PW-7) wife of the deceased also claimed to be an eye-witness.
Placing reliance on their evidence, the learned Additional Session Judge, Hissar found
the accused persons guilty and sentenced them to undergo sentences as noted above.
In appeal, the High Court confirmed the conviction and the sentences.
       5. In support of the appeal, learned counsel for the accused appellants submitted
that the prosecution version was based on testimonies of relatives and, therefore, does
not inspire confidence. Section 34, IPC has no application to the facts of the case.
Further there was delay in lodging the FIR. Additionally, it was submitted that the
sentences imposed were high.
       6. In response, learned counsel for the State submitted that after analysing the
factual position the Courts below have found the accused persons guilty and no
interference is called for. The sentences imposed are also not in any manner on the
higher side.
       7. There is no proposition in law that relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to
show that the witnesses had reason to shield actual culprit and falsely implicate the
accused. No evidence has been led in this regard. So far as the delay in lodging the FIR
is concerned, the witnesses have clearly stated that after seeing the deceased in an
injured condition immediate effort was to get him hospitalized and get him treated. There
cannot be any genaralisation that whenever there is a delay in lodging the FIR, the
prosecution case becomes suspect. Whether delay is so long as to throw a cloud of
suspicion on the seeds of the prosecution case, would depend upon the facts of each
case. Even a long delay can be condoned if the witnesses have no motive of implicating
the accused and have given a plausible reason as to why the report was lodged
belatedly. In the instant case, this has been done. It is to be noted that though there was
cross-examination at length no infirmity was noticed in their evidence. Therefore, the trial
Court and the High Court were right in relying on the evidence of the prosecution
witnesses.
       8. Section 34 has been enacted on the principle of joint liability in the doing of a
criminal act. The section is only a rule of evidence and does not create a substantive
offence. The distinctive feature of the section is the element of participation in action.
The liability of one person for an offence committed by another in the course of criminal
act perpetrated by several persons arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who join in committing the crime.
Direct proof of common intention is seldom available and, therefore, such intention can
only be inferred from the circumstances appearing from the proved facts of the case and
the proved circumstances. In order to bring home the charge of common intention, the
prosecution has to establish by evidence, whether direct a circumstantial, that there was
plan or meeting of mind of all the accused persons to commit the offence for which they
are charged with the aid of Section 34, be it prearranged or on the spur of moment; but
it must necessarily be before the commission of the crime. The true contents of the
section are that if two or more persons intentionally do an act jointly, the position in law
is just the same as if each of them has done it individually by himself. As observed in
Ashok Kumar vs. State of Punjab, AIR 1977 SC 109 : 1977 Cri LJ 164, the existence of
a common intention amongst the participants in a crime is the essential element for
application of this section. It is not necessary that the acts of the several persons
charged with commission of an offence jointly must be the same or identically similar.
The acts may be different in character, but must have been actuated by one and the
same common intention in order to attract the provision.
       9. As it originally stood the Section 34 was in the following terms:
           ―When a criminal act is done by several persons, each of such persons is liable
           for that act in the same manner as if the act was done by him alone.‖
       10. In 1870, it was amended by the insertion of the words ―in furtherance of the
common intention of all‖ after the word ―persons‖ and before the word ―each‖, so as to
make the object of Section 34 clear. This position was noted in Mahbub Shah vs.
Emperor, AIR 1945 Privy Council 118 : 1945 (46) Cri LJ 689.
       11. The Section does not say ―the common intention of all‖, nor does it say ―and
intention common to all‖. Under the provisions of Section 34 the essence of the liability is
to be found in the existence of a common intention animating the accused leading to the
doing of a criminal act in furtherance of such intention. As a result of the application of
principles enunciated in Section 34, when an accused is convicted under Section 302
read with Section 34, in law it means that the accused is liable for the act which caused
death of the deceased in the same manner as if it was done by him alone. The provision
is intended to meet a case in which it may be difficult to distinguish between acts of
individual members of a party who act in furtherance of the common intention of all or to
prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy
and ors. vs. State of Andhra Pradesh, AIR 1993 SC 1899 : 1993 LJ 2246 : 1993 AIR
SCW 1843, Section 34 is applicable even if no injury has been caused by the particular
accused himself. For applying Section 34 it is not necessary to show some overt act on
the part of the accused.
       12. The above position was highlighted recently Anil Sharma and others vs. State
of Jharkhand, 2004 (5) SCC 679 : 2004 Cri LJ 2527 : 2004 AIR SCW 2857 : AIR 2004
SC 2294 : 2004 AIR—Jhar HCR 1722.
       13. If the factual scenario as noted above is considered in the background of legal
principles set out above, the inevitable conclusion is that Section 34 has been rightly
applied.
       14. The residual question is whether any interference is called for on the quantum
of sentence. Looking into the background facts as noted above, we are of the view that
custodial sentence of a 4 years in place of 7 years as recorded by the Courts below for
the offence relatable to Section 326 read with Section 34, IPC would meet the ends of
justice. The other sentences imposed remain unaltered. With the aforesaid modification,
the appeal is disposed of.
                                                                        Order accordingly.



                              [2005 (2) T.N.L.R. 212 (Mad)
                                MADRAS HIGH COURT
                                   (Madurai-Bench)
Before:
           P.K. Misra and A.R. Ramalingam, JJ.

The Divisional Manager, United India
Insurance Co. Ltd.                                   ...........................Appellant
                                          Versus
C. Ramesh and another                                ......................Respondents

  [C.M.A. No. 305 of 2005 and C.M.P. No. 2123 of 2005, decided on 28th April, 2005]
     Motor Vehicles Act, 1988—Section 147—Motor accident—Compensation—
Claimant travelling in lorry as a representative of the owner of the goods—Met
with an accident due to rash and negligent driving by driver—Vehicle in question
was insured at the time of accident—After amendment by Act 54 of 1994, the
insurer is required to insure the liability in respect of death or bodily injuries to
the owner of the goods or his authorized representative carried in the vehicle—
Insurance Company liable to pay compensation—Payment of additional premium
is immaterial—Award of Tribunal not warranting any interference.
                      (Paras 10, 12, 14 & 15)

      Counsel:—
             Mr. S.P. Kumararaja for the appellant.

                                        JUDGMENT
       P.K. Mishra, J.—The present appeal is filed by the United India Insurance
Company against the award passed in MCOP. No. 947 of 2001 dated 4.8.2003.
       2 Notice of motion was issued to the respondents indicating that the appeal would
be disposed of at the stage of admission. Thereafter, the matter has been placed for
disposal.
       3. The Claims Tribunal has awarded a sum of Rs. 68,000/- on account of the
injuries sustained by the claimant in the accident which occurred on 19.11.2000, caused
by the lorry belonging to the present respondent No.2.
       4. There is no dispute that such vehicles was insured with the present appellant at
the time of accident and the claimant was travelling in the lorry along with the goods
transported as a representative of the owner of the goods. The lorry was being driven at
an uncontrollable speed in a rash and negligent manner and dashed against a traffic
automatic signal, as a result of which the claimant sustained several injures including
fracture. The claimant was treated in Government Head Quarters Hospital, Tiruchy. The
Claims Tribunal found that the accident occurred due to negligent driving of the driver of
the vehicle. Considering the nature of injuries and other relevant aspects, the Tribunal
awarded payment of Rs. 68,000/- as compensation by both the respondents, i.e. the
owner as well as the insurer. The present appeal has been filed by the insurer.
       5. The main contention raised by the insurer is to the effect that liability relating to
a non-fare paying passenger was not covered under the Insurance Policy.
       6. The Tribunal relying upon the evidence on record, particularly, the claimant
himself came to the conclusion that he was travelling in the lorry as a representative of
the owner of the goods and fastened that liability with the insurer. The Tribunal also
concluded that additional premium had been paid by the owner for the non-fare paying
passenger and, therefore, the Insurance Company is liable.
       7. Learned counsel appearing for the insurer/appellant contended that the latter
finding of the Tribunal is without any basis and in fact no additional premium had been
paid for the non-fare paying passenger.
       8. Even assuming that such submission of the appellant is correct, we do not think
that the conclusion of the Tribunal regarding liability of the Insurance Company can be
said to be illegal or erroneous in view of the clear finding of the Tribunal that the claimant
was travelling in the lorry as a representative of the owner of the goods.
       9. Chapter XI of the Motor Vehicles Act relates to the                       insurance
of motor vehicles against third parry risks. Section 147 lays down the requirement of the
policies and limits of liability. The relevant           provision of such Section 147, for the
present purpose, is extracted hereunder :—
    ―147. Requirement of Policies and limits of liability.—(1) In order to comply with the
             requirements of this chapter, a policy of insurance must be a policy which—
          (a) is issued by a person who is an authorized insurer; and
           (b) insures the person or classes of personas specified in the policy to the
                extent specified in sub-section (2)—
      (i)     against any liability which may be incurred by him in respect of the death of or
              bodily injury to any person including, owner of the goods or his authorized
              representative carried in the vehicle or damage to any property of a third party
              caused by or arising out of the use of the vehicles in the public place;
      (ii) ……‖
        10. The aforesaid provision contains an important change brought in by way of
amendment by Act 54 of the 1994 with effect from 14.11.1994. After the said
amendment, the insurer is required to insure the liability in respect of the death or bodily
injury to the owner of the goods or his authorized representative carried in the vehicles.
This being the statutory                   requirement, it cannot be said that the Insurance
Company has no liability in respect of the claimant, who is found to be the authorized
representative of the owner of the goods travelling in the vehicle along with the goods.
        11. Learned counsel for the appellant has also contended that there is no
evidence on record to show that additional premium had been paid to cover the liability
in respect of the owner of the goods or in respect of the representative of the owner of
the goods.
        12. We do not think that such submission made by the appellant can be
countenanced. Whether any additional premium is paid to cover the liability in respect of
the owner of the vehicle or the authorized representative is immaterial in view of the
specific requirement contained in Section 147. Every Insurance Policy is to satisfy the
requirement indicated in Section 147. Whether premium is payable or not is a matter
between the Insurance Company and the owner of the vehicle. In order to comply with
the requirement of Chapter XI, such condition has to be or deemed to have been
incorporated the conditions indicated in Section 147. Therefore, whether any additional
premium has been paid or not, is immaterial.
        13. Learned counsel appearing for the appellant has                      submitted that
the claimant had not paid any fare, and therefore, there is no liability.
        14. Such submission is again without any force. The representative of the owner
of the goods is required to be covered, whether such person has paid fare or not.
        15. In view of the above discussion, the main contention raised by the appellant is
without any substance.
        16. Learned counsel appearing for the appellant has also raised the question of
quantum. However, keeping in view the nature of injuries sustained by the claimant and
the period during which the treatment continued, we do not think that the award of Rs.
68,000/- is grossly excessive warranting any interference.
        17. For the aforesaid reasons, the appeal is dismissed. No. costs. Consequently,
CMP. No. 2123 of 2005 is closed.
                                                                          Appeal dismissed.
                               [2005 (2) T.N.L.R. 215 (Mad)
                                 MADRAS HIGH COURT
                                    (Madurai-Bench)
Before:
           P. K. Mishra and A.R. Ramalingam, JJ.

The Managing Director, Tamil Nadu State Transport
Corporation (Madurai Division) Ltd., Virudhunagar ...................Appellant

                                           Versus
Minor Govindaraj                                               ......................Respondent

             [ C.M. A. 460 of 2005 and C.M.P. 3168 of 2005, decided on
                                  28th April, 2005]
      Motor accident—Compensation—Determination of—Claimant sustained
injuries due to negligence of the driver of vehicle belonging to the Transport
Corporation—Right leg of claimant amputated—Claimant being minor, aged about
17 years, a student of class 10—Tribunal awarded a sum of Rs. 3,55,000/- as
compensation—Appellant contended that it appears to be excessive—No scale to
weigh the compensation payable—Injuries to such a boy could not be lost sight of
considering the injuries sustained by him, compensation awarded by tribunal not
excessive.                                (Paras 3 & 4)

      Counsel:—
             Mr. A. Babu, for the petitioner.

                                    JUDGMENT
      P.K. Mishra, J.—Heard the learned counsel appearing for the appellant.
      2. The present appeal has been filed by the Tamil Nadu State Transport
Corporation (Madurai Division-V) against the award passed by the Motor Accidents
Claims Tribunal, awarding a sum of Rs. 3,55,000/-, as against the claim of Rs.
5,00,000/-, to the minor claimant/respondent who sustained injuries on account of motor
vehicles accident. Finding of the Tribunal shows that the accident had occurred due to
the negligence of the driver of the vehicle belonging to the Transport Corporation. The
present appeal relates only to the question of quantum.
      3. There is no dispute that the injured/claimant is a minor, aged about 17 years, a
student in class 10. There is also no dispute that the right leg below the knee has been
amputated. The learned counsel for the appellant submitted that in the facts and
circumstances of the case, the award to a sum Rs. 3,55,000/- appears to be excessive.
The tribunal has referred to the various heads of claim and has awarded different
amounts under different heads. In such matters, there cannot be any scale to weigh the
compensation payable. The fact that the injured person is a boy and his leg was
amputated cannot be lost sight of. Having regard to these aspects, we do not think that
the payment of compensation of Rs. 3,55,000/- is high one.
       4. Assuming that the award can be said to be excessive and warrants
interference, it has to be remembered that the injuries sustained by him will remain
permanent and disable him physically and mentally . It is not only affect his future
profession being employed, but also affect his personal life and even in the matter of
marriage. Having regard to all these facts and keeping in view the fact that the Indian‘s
life and limbs cannot be treated as cheap commodity, we do not think, there is excessive
award. Accordingly the appeal is dismissed.
                                                            Appeal dismissed.



                             [2005 (2) T.N.L.R. 217 (Mad)]
                               MADRAS HIGH COURT
                                  (Madurai-Bench)
Before:
           M. Chockalingam, J.

Meena R. Sampath                                   ............................Petitioner
                                        Versus
The State and another                                        ......................Respondents

             [Crl. O.P. (MD) No. 3964 of 2004, decided on 7th April, 2005]
      Indian Penal Code, 1860—Sections 406 and 420—Criminal breach of trust
and cheating—Cognizance of offence—Money deposited for payment of liability to
de-facto complainant—Not repaid after its maturity—At the stage of making
deposit no mens rea to cheat—No criminal proceeding could be proceeded with—
Court unable to 0appreciate contention put forth by petitioner to quash the
proceedings—Trial Court directed to carry on expeditious trial.
                                                              (Paras 9 to 12)

      Case law:—AIR 2000 SC 2341; 2003 SCC (Cri) 703—referred.

      Counsel:—
             Mr. N. Munirathina Naidu for Mr. P. Saravana Sowmiyan, for the
             petitioner; Mr. A. Ramar, Government, Advocate (Crl. Side)Respondent-1
             Ms. P.V. Rajeswari for respondent-2.

                                       JUDGMENT
      M. Chockalingam, J.,—This O.P. has been brought forth by the petitioner, who
faces trial in C.C. No. 286 of 2004 which was taken cognizance by the Judicial
Magistrate No. II, Dindigul, under Sections 406 and 420 of IPC.
      2. The de-facto complainant gave a complaint alleging that it rendered service to
M/s. Sri Venkatesa Paper and Boards Ltd, for which there was a liability of Rs.
7,47,500/- payable to the de-facto complainant; that on the request of M/s. Sri
Venkatesa Paper and Boards Ltd., through its Directors, the same was deposited in the
fixed deposit, on the promise to return the same on maturity; that the same was also
matured on 8.5.2001; that there was further promise of returning the same with interest;
that it was again renewed for one year; that despite the maturity of the same, it was not
repaid, and hence, it has become necessary to initiate proceedings. On receipt of the
complaint, a case came to be registered by the State through the first respondent police
under Sections 406 and 420 of IPC, and subsequently, it was taken cognizance by the
Judicial Magistrate as Calendar Case referred to above.
        3. While the matter stood thus, the accused has approached this Court for
quashing the proceedings stating that M/s Sri Venkatesa Paper and Boards Ltd., is a
public limited company; that it is governed by the special enactments namely. The
Companies Act; that it was a deposit made; that the company has been declared as a
sick unit under Section 22-A of the Act; that it could not dispose of any of the assets
without getting the consent of the Board for Industrial and Financial Reconstruction
(BIFR); that apart from that, in view of the provision under Section 22 of the Act, the de-
facto complainant was barred from initiating any action, without the prior consent of the
BIFR; that it was a deposit made to the company in question, and thus, the provisions of
the Companies Act would prevail the provisions of law as to the deposits made and
accepted which are governed by Sections 58-A and 58-AA of the Act; that they are
cognizable under the Code of Criminal Procedure; that Section 58-AAA of the Act would
clearly reveal that every offence connected with or arising out of acceptance of deposits
under Section 58-A or Section 58-AA would remain cognizable under the Code of
Criminal Procedure, notwithstanding anything contained in Sections 621 and 624 of the
Act; and that cognizance is possible only when a complaint is made by the Central
Government or any officer authorized in this behalf.
        4. The learned counsel appearing for the petitioner would further add that it was a
deposit made; that there is nothing to indicate that at the time of making the deposit or
getting the deposit, the petitioner had got any mens rea to cheat; that so long as it is not
shown, the complaint for cheating has to fall; that there is no question of any
entrustment, which would attract the provisions of the IPC, which would penalize the
breach of trust, and thus, the penal provisions of Sections 406 and 420 of IPC, would not
be attracted under the facts of the case, and hence, the proceedings pending in the
hands of the lower Court, have got to be quashed.
        5. Heard the learned Government Advocate for the first respondent on the above
contentions.
        6. The learned counsel for the second respondent would submit that there was a
deposit made by the petitioner herein, which would not fall within the ambit of the
provisions of the Companies Act; that it was really an amount, to which the de-facto
complainant is entitled by way of rendering services, and the same amount was
deposited; that it became matured; that even after the date of maturity, there was a
renewal; that at that time, it was well within the knowledge of the accused that the
company has become sick and has been running in loss, and thus, it would be very clear
that even at the time of the renewal, the accused had the mental frame to cheat; that so
long as the deposit was not made either under Section 58-A or under Section 58-AA of
the Act, the provisions of Section 58-AAA of the Act have no application; that it is true
that a complaint has got to be lodged by the Central Government or any officer
authorized in this behalf, so long as the deposits are made under the provisions of
Section 58-A or Section 58-AA of the Act; that the deposit in question would not fall
within those provisions of law; that if a deposit is to be made under Section 58-A,
necessary advertisements have got to be made; that in the instant case, the deposit was
made not pursuant to an advertisement, and hence, it cannot be stated that if, in a given
case, the advertisement was not done, the statement would be suffice to the Registrar of
Companies; that whether any statement was made is the question of fact; that apart
from that, the statements were made pertaining to the year 1998-1999; but these
deposits have been made subsequently; that no material is available to indicate that the
statements were made for the relevant period, and under the circumstances, the
proceedings have got to be proceeded with, and the O.P. for quash, has got to be
dismissed.
       7. After careful consideration of the trial submissions made, this Court is of the
considered opinion that the O.P. has got to be dismissed as one devoid of merits.
       8. The first contention of the learned counsel for the petitioner that the deposit that
was made, would fall within the provisions of the Companies Act, and if there is any
default, it should be brought by way of a complaint before the Company Law Board
cannot be countenanced at this stage. It is not in dispute that the complainant originally
rendered service towards which the sum of Rs. 7,47,500/- was payable, and there was a
deposit to that extent, and a voucher was passed. Thus, it would be clear that it was not
made out of any advertisement. Apart from that, so long as the deposit is not made
either under Section 58-A or 58-AA of the Act, no question of application of Section 58-
AAA of the Act would arise. It would be more appropriate and advantageous to
reproduce Section 58-AAA of the Companies Act, which reads thus:
     ―58-AAA. (1) Notwithstanding anything contained in Sections 621 and 624, every
           offence connected with or arising out of acceptance of deposits under Section
           58-A or Section 58-AA shall be cognizable offence under the Code of Criminal
           Procedure, 1973 (2) of 1974.
      (2) No Court shall take cognizance of any offence under sub-section (1) except on
           a complaint made by the Central Government or any officer authorized by it in
           this behalf.‖
       9. A very reading of the above provisions would make it abundantly clear that a
complaint has got to be made by the Central Government or any officer authorized in
this behalf in respect of the offence, which is connected with or arising out of acceptance
of deposits under Section 58-A or Section 58-AA. But, in the instant case, the facts and
circumstances recorded above, would clearly indicate that it was not a deposit made
either under Section 58-A or under Section 58-AA of the Act. Under the circumstances,
this Court is of the firm view that the provisions of Sections 58-AAA have no application
in the case.
       10. The next contention of the petitioner‘s side that at the initial stage of making
the deposit, there was no mens rea to cheat cannot also be countenanced. Whether
they have got intention to cheat or otherwise cannot be gone into at the initial stage. If
the contention of the petitioner‘s side has got to be accepted, then in all the cases,
where the deposits are made and subsequently, the parties are cheated, the defence
would come forward with a plea stating that they had no intention to cheat, and
therefore, the criminal proceedings could not be proceeded with. Hence, such contention
cannot be accepted.
       11. The decisions relied on by the learned counsel for the petitioner and reported
in Hridaya Ranjan Pd. Verma and others vs. State of Bihar, AIR 2000 SC 2341 and in
Ajay Mitra vs. State of M.P. and others,                 2003 SC (Cri) 703 , pointing to the
existence of the frame of mind for cheating at the initial stage of deposit, have no
application to the present facts of the case. Thus, this Court is unable to appreciate all or
any one of the           contentions put forth by the learned counsel for the petitioner to
quash the proceedings.
      12. In view of the above reasons, this criminal original petition is devoid of merits,
and the same is dismissed. However, the petitioner is at liberty to raise all the
contentions both factual and legal before the lower Court at the time of trial. The trial
Court is directed to carry on expeditious trial.
                                                              Petition dismissed.

                              [2005 (2) T.N.L.R. 221 (Mad)]
                                MADRAS HIGH COURT
                                   (Madurai-Bench)
Before:
            N. Kannadasan, J.

Balaprasanna                                          ...........................Petitioner
                                          Versus
State                                                           .......................Respondent

            [Crl. R.C. (MD) No. 138 of 2005, decided on 28th February, 2005]
     Code of Criminal Procedure, 1973—Section 311—Scope of—Summon of
witness as Court witness—Duty cast upon the Court to ensure that witness has to
be examined as a Court witness in order to bring the relevant circumstances on
record, if the prosecution is not prepared to do so—In the light of above facts and
circumstances, Court below ought to have summoned „M‟ as a Court witness—No
prejudice caused, if „M‟ is examined as a Court witness.
                                                            (Paras 4, 5, 6 & 7)

        Case law:—AIR 1952 Mad 509; 1995 Cr.L.J. 3016—referred.

        Counsel:—
               Mr. A. Padmanabhan, for the petitioner; Mr. A. Muthukaruppan,
               Government Advocate (Crl. Side), for the respondent.

                                    JUDGMENT
      N. Kannadasan, J., —The above revision is filed challenging the order in Criminal
M.P. No. 614 of 2005 in S.C. No. 147 of 2004 on the file of the learned Principal District
and Sessions Judge, Madurai dated 7.2.2005.
      2. Heard both sides.
      3. The petitioner has approached the Court below, by filing a petition under
Section 311 of the Criminal Procedure Code, to summon one Mohandoss for the
purpose of examining him as a Court witness. The abovesaid Mohandoss is noneelse
than the maternal uncle and legal guardian of the deceased. The petition is filed on the
premise that the abovesaid Mohandoss has been cited as prosecution witness No. 18
and he is supposed to have attested the confession of the petitioner herein and also the
mahazars for the recovery of material objects recovered in pursuance of the said
confession. The Investigating Officer viz., PW-42, has also claimed that Mohandoss has
identified material objects before him, viz., photo and dollar. The abovesaid Mohandos
has also filed an affidavit on the file of this Court in Crl. O.P. No. 39980 of 2003 to the
effect that the alleged recovery of the chain from the accused was actually given by him
to PW-42. In the said petition, it is further alleged that he could not be present in the
cremation ground for the funeral in view of the fact that he was not even informed about
the said cremation. In the backdrop of the above factual aspects, the above petition is
filed to summon him and in order to examine him as a Court witness.
        4. The learned Sessions Judge has dismissed the said petition by observing that if
the petitioner wants to examine him, he could do so as a defence witness and
considering the fact that the matter stands posted for questioning under Section 313,
Cr.P.C. the petition is liable to be dismissed.
        5. The trial Court has not dealt with the matter in the light of the various averments
urged in the petition filed before the Court. Inasmuch as a specific stand is taken in the
petition to the effect that even though the abovesaid Mohandoss has been cited as
prosecution witness No. 18, who is supposed to have attested the confession of the
petitioner and also the mahazars for the recovery of the material objects, but the
prosecution has failed to examine him as one of the witnesses, the grievance of the
petitioner has to be considered favourably. More particularly, the abovesaid Mohandoss
himself has filed an affidavit before this Court disputing the alleged recovery of the chain
from the accused to the effect that the same was handed over by him to the
Investigating Officer viz., PW-42. Further, it cannot be disputed that if the petitioner
choose to examine the abovesaid Mohandoss as a defence witness, he could not cross-
examine him to elicit all the points which he intended to be placed on record in the
proceedings. The scope of Section 311, Cr.P.C. is wider to the effect that there is a duty
cast upon the Court to ensure that the witness has to be examined as a Court witness, in
order to bring the relevant circumstances on record, if the prosecution is not prepared to
do so. Even in a judgment rendered by the Division Bench of Gujarat High Court in State
of Gujarat vs. Senma Savabhai Bhikhabhai, 1995 Cri. L.J. 3061, which reads as
follows:—
            ―It cannot be gainsaid that the decision to drop the prosecution witnesses,
            whose statements have been recorded by the police has to be justified by
            some reason even though in a cursory form, and even the Court is under a
            duty to ask the prosecutor as to why the witnesses have been dropped. It may
            be that some witnesses may not be supporting the prosecution case at the last
            moment; it may be that some witnesses may be facing an embarrassing
            situation and they may not be ready to depose at all, but in case of only
            circumstantial evidence it becomes the duty of the prosecution to examine
            such witnesses as may be able to throw any light on the alleged genesis of the
            case, even though they may not be ultimately supporting the prosecution. If
            prosecution decides to drop such witnesses it becomes the Court‘s duty to ask
            the prosecutor why such witnesses have been dropped. We are constrained to
            observe that in cases of circumstantial evidence, the Court must take initiative
            to summon and examine material witnesses in order to bring the relevant
            circumstances on record if the prosecution is not prepared or does not want to
            discharge its duty to examine all material witnesses, particularly because of the
            frequent criticism that the prosecution is merely an impersonal agency which is
            likely to be as lazy, weak or dishonest as any other public institution not run by
            private enterprise. This duty of the Court is reflected in Section 311 of the
            Code of Criminal Procedure.‖
       Similarly, this Court in its decision rendered in In re Venugopal, AIR (39) 1952
Madras 509 (C.N. 114) observed as follows :—
            ―The Assistant Public Prosecutor having given up such an important and
            material witness, the only alternative is for the Court to examine him as a Court
            witness. It is the duty of the Court to call him and examine him as a Court
            witness. The Magistrate has very rightly and properly called the petitioner to
            give evidence in the case. The discretion given to the Court to examine any
            person as a Court witness is very wide; and in its discretion it can call a
            witness at any stage of the case. There is no restriction as to the stage at
            which a witness may be called by a Court.‖
       6. In the light of the above facts and circumstances, particularly the present case
on hand is also based on circumstantial evidence, the Court below ought to have
summoned the abovesaid Mohandoss as a Court witness. No prejudice will be caused, if
the abovaesaid Mohandoss is examined as a Court witness. Hence, the order of the
Court below is set aside and there will be a direction to the trial Court to summon the
abovesaid Mohandoss as a Court witness and he shall be examined.
       7. It is brought to my knowledge that already another revision is entertained by the
Court in Crl. R.C. No. 101 of 2005, where the trial is stayed and yet another original
petition is pending to transfer the trial from the concerned Court. In the light of the
pendency of the above matters, as and when the stay is vacated or the above revision is
disposed of and if transfer is ordered or if the same Court is permitted to proceed with
the trial, the concerned trial Court should examine the abovesaid Mohandoss as a Court
witness when the trial commences.
       8. The revision petition is allowed with the above observations.
                                                                    Petition allowed.



                               [2005 (2) T.N.L.R. 224 (Mad)]
                                 MADRAS HIGH COURT
                                    (Madurai-Bench)
Before:
           P.D. Dinakaran and S. Ashok Kumar, JJ.

Bose s/o Palanivel                                             —Appellant/Accused
                                           Versus
State rep. by Inspector of Police, Salaikiramam                —Respondent
            [Criminal Appeal No. 1005 of 2001, decided on 3rd February, 2005]
      Indian Penal Code, 1860—Sections 302, 324, 352 and 449—Murder—
Conviction and sentence—Propriety of—Accused cut the deceased, his wife,
indiscriminately with aruval— Accused sold deceased‟s apparels and started
giving ill-treatment—FIR was lodged promptly—Evidence of witnesses supported
by medical evidence—The group of blood found in clothes used by the accused,
match with the blood stained dress worn by deceased—Circumstantial evidence
lends support to the ocular evidence—Prosecution clearly establishes the guilt of
the accused—No reason to interfere with the findings and conviction of the
accused—Appeal dismissed.
                                                                        (Paras 8, 9 & 10)
      Counsel:—
                Mr. M.P. Rajan (Amicus curiae), for the appellant; Mr. K. Radhakrishnan,
                Additional Public Prosecutor, for the respondent.

                                        JUDGMENT
       S. Ashok Kumar, J.,—The appellant is the sole accused in Sessions Case No.82
of 2000 on the file of Principal Sessions Judge, Sivagangai. He was tried for the
offences punishable under Sections 449, 302, 324, 324 and 352, I.P.C. After trial the trial
court found him guilty and convicted him under Sections 449, 302, 324 (two counts) and
325, I.P.C. and sentenced to undergo imprisonment as stated below:
       (i) Under Section 449, IPC—3 years rigorous imprisonment and to pay a fine of
Rs. 500/-, in default to undergo three months rigorous imprisonment.
       (ii) Under Section 302, IPC—Life imprisonment and to pay a fine of Rs.5000/-, in
default to undergo one year rigorous imprisonment.
       (iii) Under Section 324, IPC (two counts)—One year rigorous imprisonment for
each count and to pay a fine of Rs.500/-, in default to undergo three months rigorous
imprisonment.
       (iv) Under Section 352, IPC—Fine of Rs. 250/-, in default to undergo one month
simple imprisonment.
       The trial Court also directed the sentences to run concurrently. Aggrieved over the
said conviction and sentence, the accused has preferred this appeal.
       2. The brief facts of the prosecution case are as follows.
       (a) The deceased in the case is the wife of the accused. P.Ws-1 and 2 are the
father and mother of the deceased. P.W-3 is the co-brother of P.W-1 and P.W-2 is the
elder sister of P.W-3‘s wife. Three years prior to 18.10.1999 (four years before the trial of
the case), the accused and the deceased were married and after the marriage, they
went to Mumbai to eke their livelihood. At Mumbai, the accused came addicted to
alcohol and he has pledged 13 sovereigns of gold jewels, which belonged to the
deceased and also sold the household articles for the purpose of purchasing liquor and
very often he used to beat the deceased.
       (b) P.Ws-1 and 2 got information about the activities of the accused through one
Kasinathan. P.Ws-1 and 2 questioned the father of the accused Palanivelu. The said
Palanivelu directed his son Karunamoorthi to accompany P.Ws-1 and 2 to Mumbai and
when they went to Mumbai, P.Ws-1 and 2 saw their daughter admitted in a hospital for
treatment for the injuries sustained at the hands of the accused. After treatment, they
brought her daughter and the accused to Thogavoor and made them to live separately.
At Thogavoor also, the accused abused the deceased and drove her to her parental
house. Thereafter, in the presence of one Madhavan, there was a panchayat and in
which the accused was advised and the deceased was sent with her husband. Within
one month thereafter, the accused sold the clothes of the deceased and also her ‗thali‘
and drove her away. The deceased Vallimayil took shelter in her parents house.
        (c) Some time prior to 18.10.1999, the accused came with a knife and demanded
his wife to be sent along with him, for which P.W-1 refused. At that time, the accused
showed a knife and threatened that he will kill his wife. One Kannusamy, who was
residing four houses away, came there and advised the accused and sent him away.
        (d) On 18.10.1999, at about 1.00 a.m., P.Ws-1 and2 were sleeping in their house
along with her daughter Villimayil. P.W-3 was also sleeping in the same house and the
door was not locked. All of a sudden, the accused came inside at 1.00 a.m. and cut the
deceased indiscriminately with aruval and on the alarm raised by the Vallimayil, P.Ws-1
to 3 saw the accused cutting the deceased. When they tried to catch him, the accused
cut on the left index finger of P.W-1 and also on left thumb of P.W-2. When P.W-3 also
tried to catch him, the accused pushed him and ran away. The injured Vallimayil was
taken in a van arranged by one Subramaniam, Panchayat President. When the injured
was taken to Ilayankudi Government Hospital, the medical officer who examined the
injured Vallimayil declared that she was already dead.
        (e) On receipt of phone message from Government hospital, Ilayankudi, P.W-11
Inspector of Police, went to the hospital at 4.00 a.m. and recorded Ex.P-1 statement
given by P.W-1. Based on Ex.P-1, P.W-11 Inspector of Police registered a case in Crime
No. 153 of 1999 under Sections 324 and 302, I.P.C. Ex.P-13 is the printed FIR and the
same was sent to the Judicial Magistrate and the copies were sent to higher officials.
        (f) Thereafter, P.W-11 took up the investigation and went to the scene of
occurrence at about 6.15 a.m. and drew Ex.P-14 rough sketch. In the presence of P.W-6
Nallathambi and one Vattayutham, he prepared Ex.P-3 observation mahazar. From the
place of occurrence, he seized M.O-9 and M.O-10 bloodstained mats, M.O-11
bloodstained Pillow, M.Os-12 and 13 bloodstained Pillow Covers, M.O-14 bloodstained
Lungi, M.O-15 bloodstained sari, M.O-16 bloodstained towel, M.O-17 bloodstained
Bluse, M.O-18 blood stained earth, M.O-19 sample earth and M.O-20 zero watt bulb
under Ex.P-4 mahazar in the presence witnesses. Thereafter, he proceeded to the
Government Hospital and conducted inquest on the body of the deceased Vallimayil in
the presence of Panchayatdars and prepared Ex.P-15 Inquest Report. After inquest, he
examined P.Ws-1 to 3 and recorded their statements. He sent the body for postmortem
through P.W-10 Head Constable with Ex.P-11 requisition.
        (g) On 18.10.1999 at about 11.15 a.m., P.Ws-8 and 9 conducted postmortem on
the body of the deceased and found the following injuries.
        ―Injuries:—
        1. 12x5x6 cm lacerated injury extending from right upper part of ear upto right
cheek. 5Cm from the angle of mouth exposing right maxilla, right ramus of mandible.
Blood clots present. Wound gaping present. Bone chips present.
        On exploration of the wound:—Right parotid gland lacerated. Right facal artery
veins and nerve torn. Blood clots present. Fracture right temporal bone (petrous part).
        Extent of the wound:—On left side 2cm from midline right side 2 cm from the
wound No.1. Below base of mandible above upper lip.
        3. Incised wound of 12x1/2x1/2cm extending from middle of clavicle upto upper
part of sternum. Tail end of wound on sternal side wound is curvilinear curvature towards
left side.
        4. Abrasion 5x1/2cm over the top of right breast.
        5. An incised injury 14x3x2cm extending from left hand through palm upto base of
left Index Finger. Fraxture I & II metacarpal bone. Blood clots present. Wound gaping
present.
        6. An incised wound of 4x1/2x1/2cm seen over the left thumb found on medial
side.‖
        After postmortem, P.W-8 gave Ex.P-12 postmortem certificate opining that the
deceased would appear to have died of shock and haemorrhage due to injuries to facial
artery, veins and injury No.1 and fracture on the right temporal bone. The clothes of the
deceased M.O-21 to M.O-24 found on her body were seized under Form 95 by P.W-10
and deposited in the Police Station.
        (h) On 19.10.1999, at about 3.00 p.m., at Ayyampatti Road, near a field, P.W-11
arrested the accused and the accused volunteered to give a confession, admissible
portion of it is Ex.P-16 and pursuant to which, the accused took and produced cycle
M.O-2 and P.W-11 seized it under Ex.P-5 Mahazar. On the same day at 5.00 p.m., the
accused produced M.O-1 Aruval, M.O-3 bed sheet, M.O-4 shirt and M.O-5 key and they
were seized by P.W-11 under Ex.P-6 mahazar in the presence of P.W-7 and one
Chelliah. M.O-2 cycle was taken by the accused from the cycle company of one
Kathiresan and the register maintained by the said Kathiresan is Ex.P-7 and it was
seized under Ex.P-8 mahazar. The entry for the accused taking the cycle is Ex.P-17.
        (i) P.Ws-1 and 2 were given treatment by P.W-8 Dr. Asma Begam. P.W-1 had
sustained an incised cut injury on the left index finger measuring 2 x 1/2 x 1/2 cm and
P.W-2 has sustained an incised wound 1 x 1/2 x 1/2 cm in right index finger and an
incised wound of same measurement in the left palm, near right finger. Wound
certificates issued to P.Ws-1 and2 are Ex.P-9 and P-10.
        (j) P.W-12 Inspector of Police who took up the further investigation sent a
requisition Ex.P-8 to the Court to send the case properties for chemical analysis.
Accordingly, the case properties were subjected to chemical analysis and Ex.P-19
Chemical Examiner‘s Report and Ex.P-20 Serologist‘s report were received in the Court.
P.W-12 Inspector of police completed the investigation and filed final report on
04.01.2000 against the accused.
        3. On behalf of the prosecution, P.Ws-1 to 12 were examined as witnesses and
Exhibits P-1 to 20 and M.Os-1 to 24 were marked. On behalf of the accused, no witness
was examined and no document or M.Os. were marked. When the accused was
questioned under Section 313, Cr.P.C. about the incriminating circumstances appearing
in the evidence of prosecution witnesses, he denied them either as false or not known.
On considering the oral and documentary evidence produced by the prosecution, the
learned trial judge found this appellant/accused guilty under Sections 449, 302, 324 (two
counts) and 352, IPC, convicted him thereunder and sentenced him to undergo
imprisonment as stated above. Hence this appeal.
        4. Before this Court, the learned counsel appearing for the appellant would
contend that the accused has been implicated in the case only on surmises and there is
no reliable evidence to connect him with the crime. On the contrary, learned Additional
Public Prosecutor would contend that P.Ws-1 and2, the parents of the deceased, are
injured eye witnesses and they have given cogent and clear evidence with regard to the
nature of occurrence.
        5. We have given our anxious consideration to the rival contentions of the counsel
on either side and also perused the materials on record.
        6. The deceased is none other than the wife of the accused. The deceased and
the accused got married about three years prior to the occurrence and after marriage,
they went to Mumbai to eke out their livelihood. It is alleged by the prosecution and also
by P.Ws-1 and 2 that at Mumbai the accused became addicted to alcohol and has
pledged 13 sovereigns of gold jewels, which belonged to the deceased and also sold the
household articles and when they got information through a relative, P.Ws-1 and 2
questioned the father of the accused, who sent his one son Karunamoorthi along with
P.Ws-1 and 2 to Mumbai and when they went to Mumbai, they saw their daughter in
hospital taking treatment for the injuries sustained at the hands of the accused. It is the
further case of the hands of the accused. It is the further case of the prosecution that
after treatment, P.Ws-1 and 2 brought their daughter and the accused to Thogavoor and
made them to live separately and there also the accused started giving ill-treatment to
his wife and sold her clothes and also ‗thali‘ and drove her away. Thereafter, the
deceased came to reside with her parents. Few days prior to the occurrence also, the
accused has gone to the residence of P.Ws-1 and 2 and demanded them that his wife
should be sent with him and when P.Ws-1 and 2 refused, the accused has threatened to
kill his wife. In continuation of such threat, on 18.10.1999 in the early morning at 1.00
a.m., while P.Ws-1 to 3 were sleeping with the deceased inside their house, taking
advantage of not locking of the doors, the accused trespassed into the house of P.W-1
and indiscriminately cut his wife and when the deceased raised alarm, P.Ws-1 to 3 saw
the accused cutting the deceased and tried to catch the accused, but the accused has
inflicted injury on the hand of P.W-1, P.W-2 and pushed down P.W-3 and ran away from
the scene of occurrence. Thereafter the injured has been taken to hospital in a van
arranged by one Subramanian, Panchayat president, to Ilayankudi Government
Hospital. When the deceased was taken to hospital, P.W-8, who was on duty, has
examined her and found her dead. On receipt of information at 3.35 a.m., through
Phone Call, P.W-11 has reached Ilayankudi Police Station at 4.00 a.m., and after
receipt of death intimation of the deceased and memo for treatment of P.Ws-1 and 2, he
has recorded statement of P.W-1 at 4.00 a.m., After reaching the Police Station at 5.30
a.m., P.W-11, Inspector of Police, registered a case in Crime No. 153/99 for offences
under Sections 324 and 302, IPC and prepared Ex.P-13, Printed form of the first
Information Report. Thus the FIR has reached the Court in time and thus there is no
delay either in lodging the complaint, Ex.P-1 or the FIR reaching the Court.
        7. P.Ws-1 and 2 are parents of the deceased. P.W-1 was first seen by P.W-8,
Tmt. Azma Begum by 3.35 a.m., on 18.10.1999 within about 2 1/2 hours of the
occurrence. At that time it was informed by P.W-1 that the injury was caused on him at
about 01.00 a.m., by a known person with Aruval at Therku Samuthiram and on
examination, P.W-8 found an incised injury of 2 cm x 1/2 cm x 1/2 cm in the Palmer
aspect of the left index finger and Ex.P.O is the wound certificate. Similarly, P.W-2,
Alagammal, mother of the deceased was also seen by P.W-8 at 3.50 a.m., on the same
day and she also informed the Doctor that she sustained injuries at 1.00 a.m., on the
same day by a known person with Aruval at her house at Therku Samuthiram and the
Doctor has found (i) an incised wound 1 cm x 1/2 cm on the on the tip of right index
finger in the Palmer aspect and (ii) another incised wound 1 cm x 1/2 cm x 1/2 cm in the
Palmer aspect of left palm, near ring finger. Both injuries were simple in nature.
According to P.Ws-1 and 2, they sustained injuries at the hands of the accused when
they tried to prevent the accused from causing injuries to their daughter. The presence
of P.Ws-1 and 2 at their house at about 1.00 a.m., on the date of occurrence is natural
and therefore there is nothing to suspect the evidence of P.Ws-1 and 2.
       8. Apart from the evidence of P.Ws-1 and2, P.W-4 brother of P.W-1 who went to
the place of occurrence on hearing the alarms of P.W-1 has also deposed before the
court that when he went and saw his brother‘s daughter in a pool of blood, P.W-1 has
informed him that it was his son-in-law who caused injuries on his daughter and on
himself and at his request, he has arranged a Van from Salaigramam and took the
deceased to Ilayankudi Government Hospital.
       9. P.W-3 is the co-brother of P.W-1 (P.W-3 has marked younger sister of P.W-2).
He has also stated that on the date of occurrence in the house of P.W-1 when the
accused caused injuries to the deceased, he tried to catch him, but the accused pushed
him and ran away. Though P.W-3 and 4 are close relatives of P.W-1 and 2, there is no
reason to suspect their presence at the time of occurrence. Even if the evidence of
P.Ws-3 and 4 is eschewed there is the evidence of P.Ws-1 and2, father and mother of
the deceased who are injured eye witnesses. P.Ws-1 and 2 have given cogent evidence
with regard to the motive, the wayward life of the accused in pledging and selling the
jewels and even the dress materials of the deceased and also about the occurrence on
the fateful day.
       10. Apart from the ocular evidence of P.Ws-1 to 4, who are eye witnesses, there is
another important circumstantial evidence, that is recovery of the weapon used for the
commission of the offence and also matching of the blood group found on the weapon
with that of the deceased. On 19.10.1999 i.e., about 32 hours of time of occurrence, the
accused was arrested at the Bus stop near Vaiyampatti Junction in the presence of P.W-
6, Village Administrative Officer and one Chellaiah. The accused volunteered to give a
statement, admissible portion of which is Ex.P-16. In pursuance of the said confession,
the accused has produced the M.O-2, cycle which was hired by him, which was seized
under a cover of Mahazar Ex.P-5. On the same day, at 5.00 p.m., the accused produced
M.O-3 Blanket, M.O-4, a white shirt and M.O-5, a bunch of keys and M.O-1 Aruval, from
a hay-stock at Thugavur. The said M.Os were seized under a cover of Mahazar Ex.P-6.
When all the case properties, (those seized in pursuance of the confession of the
accused and those seized from the place of occurrence) were subjected to forensic
examination at the request of the Investigation Officer, human blood was detected in
M.Os-1, Aruval, M.O-2 shirt, M.O-22, Blouse, M.O-22 Saree, M.O-23, Petticoat, M.O-24,
Towel, M.O-9 and 10, Grass mat, M.O-11, Pillow, M.Os-12 and 13, Pillow cover, M.O-
14, Lungi, M.O-15, Cloth Piece, M.O-16, Towel, M.O-17 Blouse, M.O-18, Earth, M.O-16
Shirt, M.O-17, Saree and M.O-18 shirt. In all the above said material objects human
blood of B group was found, as seen from Ex.P-20, Serology Report, dated 31.1.2000.
M.O-4, shirt was worn by the accused.M.O-1 Billhook was the weapon used for the
commission of the offence. The group of blood found in M.O-4 andM.O-1 used by the
accused match with the blood stained dress worn by the deceased i.e., M.Os-21, 22 and
23 respectively, Blouse, Saree and Petticoat. This important circumstantial evidence
lends support to the ocular evidence of P.Ws-1 to 4. The evidence adduced on behalf of
the prosecution clearly establishes the guilt of the accused and we do not find any
reason to interfere with the findings and conviction of the accused. Therefore, this
Appeal deserves to be dismissed and the same is hereby dismissed.
                                                                      Appeal dismissed.



                                   [2005 (1) T.N.L.R. (SC)]
                                     SUPREME COURT
                                             Before :
                                B.N. Agrawal and H.K. Sema, JJ.


                   Kamalanantha & others                           -Appellants
                                             Versus
                      State of Tamil Nadu                     -Respondent

              [Criminal Appeal Nos. 611-612 of 2003, decided on 5th April, 2005]


       (A) Indian Penal Code, 1860-Sections 376(2)(C), 376/109, 354, 302, 302/34, 343,
 506, and 420-Rape and murder-Ashram girls by A-1 Swami Premanand-Murder of one
    boy who was shouting that A-1 had sex with Ashram girls-Boy was beaten up and
confined without food and water-Many girls of Ashram had to undergo abortion because
 of the rapes committed on them by the Swami-Complaint filed-Victims tolerated beastly
assault of A-1 because they were orphans and dependent-Threatened not to disclose to
  any body about such act-Prosecutrix were examined and their hymen was not intact-
  Consent of prosecutrix was obtained by deceitful means-Accused found guilty under
Section 375, IPC-Court below was right in convicting accused person.
                               (Paras 3, 4, 35, 41, 43, 73 & 80)
      (B) Code of Criminal Procedure, 1973-Sections 218, 464 and 465-Misjoinder of
charges-Accused was given opportunity to explain all circumstances appearing against
 him-Any failure of justice occasioned by alleged misjoinder of charge would not cause
                              any prejudice to the accused.
                                                             (Paras 50 to 52)
        Case law:-1996 (2) SCC 384; 1989 (3) SCC 166-relied on; AIR 1956 SC 116;
                1963 Supp (2) SCR 328; 1964 (3) SCR 297-referred.


                                            Counsel:-
        Ram Jethmalani, Sr. Advocate, Ms. Lata Krishnamurthy, Balaji Srinivasan, K.
Karthick, Ms. D. Revathi, Ms. P.R. Mala, Kovid Mishra, Ananda Padnabhan, V. Sudeer,
   Sooriya Kumaron, Vivek Reddy, S. Sachin, Riju Ram Jamwal, M.B.R.S Raju, Ms.
 Sailaja, Ms. S. Sunita, S. Srinivasan, Advocates for the appellants; Sushil Kumar, Sr.
Advocate, C. Mani Shankar, Abhay Kumar, R. Gopalakrishnan, Subramonium Prasad,
     Adolf Mathew, Vinay Arora, Sanjay Jain, V. Senthil Kumar, Advocates, for the
respondents; Ms. Kamini Jaiswal, Ms. Shomila Bakshi Advocates, for the complainant.


                                        Important points
        (i) Misjoinder of charges is not an illegality but on irregularity. Which is curable
     under Section 464 or Section 365, Cr.P.C. if no failure of justice occasioned.
      (ii) Where all victim girls were inmates of the Ashram and raped by Swamy of the
 Ashram, having dominion control over the Ashram, hence Ashram cannot be place for
 purpose of Section 160, Cr.P.C. Victim girls were rightly examined and interrogated in
                                   woman police station.
                                              JUDGMENT
      H.K. Sema, J.-These appeals by special leave are preferred by accused Nos. 1,2,
 4,6 and 7 against their conviction concurrently recorded by two Courts. A-3 served out
the sentence and A-5 died during the pendency of the appeal before the High Court and
his appeal stands abated. They were convicted and sentenced to imprisonment as under
                                            :


       Charge             Convicted                Accused           Sentence of imprisonment/
             Nos.               under                                      fine imposed
                                                     Section
                     1              2                      3                        4


           1.             120(B), I.P.C            A-1 to A-7     No Separate sentence.
       2.              376 (2) (c),             A-1            Imprisonment for life and to
          I.P.C (12 Counts)                               pay a fine of Rs. 5,10,000/- on
                         Each count. In Default,rigorous imprisonment
                                    for a further period of Two
                                      years and Six months.
                                        (Total fine Rs. 61,20,000/
                                        Imprisonment for life on each
                                    count is to run concurrently.
      3.                  376 r/w                          A-2, A-4        Imprisonment for life
                                             on each
                          109 I.P.C.                                  accused.
                                              A-6 and A-7, Rigorous imprisonment for
                           A-3             two years, 7 months and 2 days
                     (period of sentence already undergone) and to pay a fine of
                                                            Rs. 10,000/-. In default,
                                    Rigorous Imprisonment for a
                                           further period of 3
                                                months.
           4.               354, I.P.C.              A-1               No separate Sentence
                                                 (one count)
                5.             312, I.P.C.(Four counts)      A-3                 Rigorous
                                       imprisonment for
                                 two years 7 months and 2 days
                                    (period of sentence already
                                undergone) and to pay a fine of
                                                        Rs. 5,000/- on each count. In
                                 default,Rigorous imprisonment
                                 for a further Period of 45 days.
                                      (total fine Rs. 20,000/-).
6.                    302, I.P.C                 A-1     Imprisonment for life and to pay a
                                             fine
                                                     of Rs. 10,000/- in default, rigorous
                                                    imprisonment for a further period of
                                                                    3 months.
                302 r/w                          A-2     Imprisonment for life and to pay a
                                             fine
            34, IPC                                      of Rs. 10,000/-. In default, rigorous
                                              im-
                                                     prisonment for a further period of 3
                                                                  months.
7.                    304, IPC                  A-4,A-6                   Imprisonment of ten
                                      years and to pay a
                                 and A-7               fine of Rs. 10,000/-. In default,
                                        rigorous
                                                imprisonment for a further period of 3
                                                      months on each accused.
     8.                    343, IPC                A-1, A-2          No separate sentence.
                                             A-6 to A-7
9.                    201 r/w                   A-6 & A-7          For each accused, rigorous
                304, IPC                                   imprisonment for one year and to
                                            pay a
                                                    fine of Rs. 2,500/. In default, rigorous
                                                      imprisonment for a further period of
                                                       one month. (R.I. for one year is to
                                                     run concurrently with the sentence
                                                             under charge 7.)
10.                   201 r/w                  A-2                 Rigorous imprisonment for
                                          one year
            114, IPC                                    and to pay a fine of Rs. 2,500/-. In
                                                    default, rigorous imprisonment for a
                                                 further period of one months. (R.I.
                                               for one year is to run concurrently with
                                                    the sentence under charge 6).
          11.                 506 (Para II) A-1, A-2       No separate sentence.
                                     I.P.C. (2 counts)       A-4, A-6
                                                          and A-7
                    12.             420, I.P.C.     A-1             Acquitted.


       1st Accused : The sentences imposed on A-1 on charge Nos.2 and 6 are to run
  consecutively. Total fine on A-1 is Rs. 61,30,000/- (Rs. 61,20,000/- +Rs. 10,000/-.)
   Sentences imposed on A-1 in default of payment of fine on each count are to run
separately and consecutively apart from the above sentence of imprisonment. In default
    of payment of fine, Total further sentence to undergo; 32-1/2 years + 3 months.
      2nd Accused : The sentences imposed on A-2 on charge Nos. 3 and 6 are to run
consecutively. Total fine on A-2 Rs. 12,500/- (Rs. 10,000/- + Rs. 2,500/-). The sentences
imposed on A-2 in default of payment of fine is to run consecutively apart from the above
                               sentences of imprisonments.
          4th Accused : The sentence of imprisonment on Charge Nos. 3 are to run
concurrently. Fine amount on A-4: Rs. 10,000/- The sentence of imprisonment imposed
                    in default of payment of fine is to run separately.
       Accused 6th and 7th : The sentences of imprisonment imposed on each of these
  accused on charge Nos. 3 and 7 are to run concurrently. Total fine Rs. 12,500/- each
 (Rs. 12,500/- X 2 = Rs. 25,000/-). The sentence of imprisonment imposed in default of
                 payment of fine is to run separately and consecutively.
                            Total fine of A-1 to A-7 Rs. 62,07,500/-
      Out of the payment of fine of Rs. 51,30,000/- collected from A-1 under Section 357
 (1) a (3), Cr.P.C., a compensation of Rs. 5,00,000/- is to be paid to each of the victim
     girls, PW-3 Sureshkumari; PW-4 Nallammal; PW-5 Princy, PW-6 Mary, PW-7
 Selvakumari @ Manjula; PW 8 Sugunakumari @ Sudha; P.W.-9 Pushparani; PW-10
Sasikumari @ Jaya, PW-12 Udayakumari; PW-13 Vanitha; PW-14 Aruljothi and PW-15
                    Malligadevi (Rs. 5,00,000 X 12 = Rs. 60,00,000/-).
                                     ACCUSED RELATED :
      2. Accused No. 2 is the secretary of A-1, A-6 is the younger brother of A-1 and A-7
                               is the adopted son of A-1.
        3. The facts of this case, as revealed by the prosecution, shocked the judicial
 conscience. It illustrates a classic example as to how the insatiable lust for sex of A-1
Swami Premananda leads to the raping of 13 Ashram girls and murder of one Ravi. The
Ashram which is supposed to be God's abode turned out to be devil's workshop. A-1 to
whom the inmates of the Ashram regarded as God having the divine power turned out to
be a monster. It is a classic case of betrayal of fatherly and divinely trust of the inmates
  of the Ashram girls who were mostly orphans and destitutes, brought from Srilanka
                         except PW-4 Nallammal and PW-6 Mary.
     4. The facts of this case also illustrate a classic example as to how a game-keeper
 has become a poacher or a treasury guard has become a robber. From the facts as
  disclosed by the prosecution, some of the victim girls were brought up by A-1 since
 when they were aged about 2, 3 and 6 years. They were reared to be butchered later
                           when they attained the proper age.
         5. The prosecution case was set in motion pursuant to the news item appeared in
  "The Indian Express" dated 15.11.1994 under the caption. "Tale of the two who were
 able to get away" (Ex. D-29) followed by a complaint, Ex. P-25 dated 16.11.1994 given
  by R. Sureshkumari @ baby (PW-3) to the Inspector of police, Viralimalai has laid the
        foundation for the case of rape of 13 girls and one murder in an ashram near
    Tiruchirappali. In that brief complaint, Sureshkumari has stated that she joined the
 Premananda Swami Ashram, Mathalai, Sri Lanka when she was six years of age. She
   was taken to India by the Swami along with 12 other girls in the year 1984 when the
     ashram was formed at Tiruchy. She had alleged that she was subjected to sexual
 harassment by the Swami four times even before she attained puberty at the age of 13
 and that she was raped within a month on her attaining puberty by the Swami by threat
and by beating her with stick. Unable to withstand this tortune, she left the ashram at the
  age of 14 and came to Madras, but she was caught by the police and sent back to the
ashram. Inspite of her complaint to her mother, she did not come forward to help her and
she had to suffer the torture in the Ashram as she had no other place to go. She came to
  know from some inmates of the ashram, that Premanand had not only raped her, but
 also many other girls in the Ashram, and she recorded their conversation in a cassette.
In these circumstances, she approached one of her relatives, Anand Mohan who helped
       her and Latha, another inmate, to come out of the ashram to Chennai, with the
assistance of a Women Organisation. In the ashram, Premananda would not allow them
to talk freely to others and they were compelled to undergo this ordeal. Divya Devi knew
    all this and was abetting the misdeeds of the Swami. Ultimately, unable to bear the
   torture, she left the ashram on 1.11.1994, but could not gather the courage to give a
   police complaint. However, with the assistance and encouragement given by the All
 India Women Democratic Association and in order to see that other girls also were not
subjected to the same fate, she had come forward to expose the misdeeds of the Swami
and the suffering undergone by her even at the cost of her dignity and modesty. She had
stated that many girls had to undergo abortion because of the rapes committed on them
 by the Swami. She had alleged that one Balan had acted as a pimp for the Swami. She
 had requested for an appropriate action against the Swami, Divya Devi and Balan. The
subsequent news report on these allegations was followed by the registration of a crime,
investigation, enquiry, seizure of incriminating documents, materials, evidence and filing
                                       of charge-sheet.
      6. The prosecutirx raped by A-1 systematically abetted by A-2, A-4,, A-6 and A-7
are PW-3 Sureshkumari, PW-4 Nallammal, PW-5 Princy, PW-6 Mary, PW-7 Selvakumari
  @ Manjula, PW-8 Sugunakumari @ Sudha, PW-9 Pushparani, PW-10 Sasikumari @
 Jaya, PW-11 Shantha, PW-12 Udayakumari, PW-13 Vanitha, PW-14 Aruljothi, PW-15
                         Mallikadevi and PW-55 Krishnaveni.
         7. Most of the rapes committed on the victims as disclosed by the prosecution
 story are inside the Kudil of A-1. The modus operandi of A-1 abetted by other accused
 are that although there were 200-300 boys in the Ashram, A-1 used the girls to put on
 the night watch around his Kudil, Arulvakku Room, Dharmasala and other places. The
victims tolerated the beastly assault of A-1 as they were orphans and totally dependent
on A-1 Ashram for their food and shelter and they had no alternative place to go it they
made complaint to the police or to the outside world. The evidence disclosed that A-2, A-
 4, A-6 and A-7 were abetting the commission of rape by A-1 by threatening the victims
                   not to reveal the rape committed on them by A-1.
                                    BACKGROUND FACTS :
        8. The facts of this case are cumbersome. To avoid prolixity we may refer to few
facts to appreciate the controversy in proper perspective. A-1 called Swami Premananda
was running an orphanage in the name of Boopalakrishna Ashram, Mathalai at Srilanka.
    Due to the ethnic violence in the region A-1 came over to India in the year 1984. 12
   young Tamil girls and a few women, who were in the Ashram in Sri Lanka, were also
 brought to Tiruchy by boat. Initially, A-1 set up an Ashram in a rented building at Tiruchy
  and later established a big institution at Fathima Nagar in the year 1989 in a sprawling
   space spread over nearly 150 acres. The Ashram consists of residence, kudil, eating
    place, school, etc. The boys and girls mostly orphans, were staying in the Ashram.
     There are separate hostels for the stay, education and training for boys, girls and
      women. Besides, the Ashram has 5 acres of flower plants, 5 acres of tamarind
 plantation, mango trees plantation, 300 coconut trees, 90 acres of cashew plantation. 1
   acre of jackfruit plantation, 10 acres of teak wood, 1 acre of lime trees and 2 acres of
guava trees. The Ashram has its branches at U.K, Switzerland, Belgium and many other
                                           countries.
                           BACKGROUND OF THE VICTIM GIRLS:
        9. As already noticed except PW-4 Nallammal and PW-6 Mary, all other victims
 are Srilankan. Most of them were orphans and were left in the Ashram when they were
   small children. All of them were dependent on the first accused for food, shelter and
other basic needs. All the victim girls were under the complete mercy and control of A-1
  and the other accused. They were warned and threatened not to disclose to anybody
about the misdeeds of A-1. If they were turned out from the Ashram they had no place to
stay and therefore they had tolerated the cruel assault of rape on them for so long. They
                   were like mouse before the cat. Who will bell the cat ?
        10. A comparative chart as to particulars of the victim girls of rape as recited by
               the High Court is being reproduced, which speaks for itself.

         Name, Age &     Relatives in     Instances of    Instances of     Statement made
        Rank             the Ashram       rape committed        abortion                 u/s
                                        161 (3) and
                                         and the period                  164 Cr.P.C.


        Sureshkumari Sister PW-7          1) 1985 before Nil              Ex. P.25 refers to
       20/1994         Selvakumari  attaining                                   the instances
                                          of
         Lankan           @ Manjula, puberty, at                           rape committed
                       PW-8             residential                      on her by A-1
                                          Sugunakumari house at
                                          @ Sudha,     Crapatti,
                                           PW-10       Tiruchy.
                                Sasikumari       2) July, 1987
                                @ Jaya and       in A-1's room
                                daughter of       3) July 1987
                                DW 32            in A-1's room
                                Deivanai        4) November
                                               1991 in A-1's
                                                 bedroom at 1
                                                     p.m.


Nallammal                       1) May 94 at Abortion                    Ex.P-27

  21/1994                         11.30 a.m in     conducted by             (Accident
PW-4 Native of                  the Arulvakku Dr. Muthulakshmi             Register)
                                    Pallathupatty
Keeranur,                         room.         Some time in              Contact with
Tamil Nadu.                      2) May 94 at October 94.                 know person;
                              12.30 p.m in PW-2 Nesan                 willigly; milk,
                             A-1's room   was asked to           secretion complete
                       3) May 94 at bear responsibility abortion
                                 2.30 p.m at
                                  Ex.D-1 (u/s
                       Dharmasala. the conception 164);
4) May 94 at                                                             Admits sexual
                               Dharmasala.                       Intercourse with
                                                                  A-1 and money
                                                                   Given by A-1
                                                                   For abortion.


Princy           Sister of      1) 1986 at lodge                  Missed her       Ex.P-
                                     36
  20/1994,        PW-2                     in Courtallam periods 2-3        (Accident
  PW-5 Sri        Nesan and       at 1 p.m.                times; taking Register):
Lankan           PW-18                  2) July 90,    the abortifacients        Coitus
                                     with
             Dinesan               days after Guru         given by A-3 working,
                                    person
                                   Purnima pooja                     willingly
                                 At 11 p.m in                      Hymen not
                                   A-1's room                        Intact.
                              3) 1992, a month after the               Ex. D-2 u/s
                                 3rd incident at 5.a.m.         164); Refers to
                             4) 1993 in lodge                      A-1 name and
                                 at Thanjavur.                  Four instances
                                 5) on 17.4.1994                          of rape
                                                                    commencing
                                                                     from 1992.
                                        Mary
     16/1994                     1) 1993 in the           Missed her      Ex.P35
PW-6 Native                 Pomegranate            period once and       (Accident
Of Venniayaru               thereafter at the             abortifacients Register);
Estate;                    Dharmasala              given by A-3 and Shows Hymen
  Madurai.                                             Divya Devi      Not intact; as
                                                                    Per physical
                                     examination,
                                     Age 16 years.
                                    As per Ex.P-46
                                    Age Certificate,
                                     Completed 16
                                   years on 2.11.94
                                    (Ex.D3 u/s 164)
                                   Refers to sexual
                                    Intercourse by
                                    Force by A-1 at
                                     the age of 13
          I                                                       n the room
                                                               near Dharmasala
                                     tt 1.30 p.m.
                                   Immediately after
                                     Christmas.
      Sivakumari           Elder sister of 1) May 94 in Nil          Hymen of
     @ Majula             PW-3 and sister       A-1's room.              Intact.
22/1994,                   of PW-3, 8 and          2) October 94            (Ex.D4 u/s
                                     164):
    PW-7, Sri            10 related to at 4 p.m in             Refers to sexual
    Lankan               A-1 as their A-1's room.              Intercourse with
              Father's                3) Refers to           A-1 willingly once.
                                 brother.              forced
                                               perverted oral
                                                 sex by A-1.
        Sugunakumari                       1) in 1993, 2-3 Nil      Ex. P-37
        @ Sudha.                           Months after             (Accident
    16/1994,                                  she attained             Register) :
       PW-8 Sri                           puberty A-1             Not a virgin-
      Lankan                             had sexual              accustomed to
                               intercourse in        sexual intercourse.
                     his room.              As per Ex. P48,
                             2) September
                              94 in the                          Age Certificate,
                                   Arulvakku                 completed 18
                                     Room.                Years as on
                                      3) September          22.11.94.
                            94 in the                      (Ex. D-5 (u/s. 164) :
                                   Arulvakku            Refers to sexual
                                    Room.                Intercourse by
                                                          A-1 forcibly.
     Pushparani        Sister of PW-17      1) 1992 at      Nil     Ex. P.33
     16/1994,                               1.30 a.m in            (Accident
        PW.9 Sri                        the Pooja               Register):
     Lankan                          room.                  Had affair with a
                                   2) 1994 at              working person
                       11.30 a.m in           for 1 year, as per
                  the Dharmasala                 her own statement
                          room.                 and physical
                      3) In 1994, 2         examination, aged
                         days prior to           16. As per
                        Deepavali in            Ex. P-49, not
                        A-1's room.             completed 16
                                                    years.
                                                  Statement
                                                  (u/s 164):
                                                Refers forcible
                                              sexual intercourse
                                               by A-1 when she
                                              was 14 years old.
    Sasikumari @ Twin sister of 1) in 1993, 15 Nil             Ex.P-37 (Accident)
Jaya, 16/1994 PW-8 &                  days                       Register : PW-10
                                 after she attained                Hymen not intact
             Younger        Puberty in A-1's                As per her
             Sister of PWs; Own 3 & 7 room.                statement &
                   3 & 7 Room                             physical
                                                    examination, she is 16
                                                           years old. As
                                                          per Ex.P-50, age
                                                      certificate she has
                                                      not completed 16
                                                         years as on
                                                      22.11.94. Ex. D-6
                                                          u/s 164): Refers
                                                      sexual intercourse
                                                        with a known
                                                           person.


  Shantha,                Sister of PW-13         1)November Nil      Ex.P39
                                 (Accident
 4/1994           Vanitha               91 first sexual       Register): Sexual
Sri Lankan                     intercourse by                contact with known
                                       A-1 who made         male
                                  her to agree          person Hymen
                                   at 4 p.m.-                not intact.
                            arulavkku room.                   EX.D7(u/s. 164):
                                2) November 92 in         Refers to sexual
                                Visitors Room             intercourse with
                            Against her wish.                A-1 on consent in
                               3) November 93                 1991; without
                         in Divya Devi's                  consent in 1992;without
                            room against her                without consent in
                                      wish.                    1993.


   Udayakumari       Sister of PW May 1993-                 Ex.P-40 (Accident
   21/1994,                  15-        forcible                   Register);
   P.W.12, Sri       Malligadevi   intercourse by                   Hymen-not
    Lankan            & DW-29        A-1 in the garden;      intact; Refers to
              Kanthan               accustomed to                the sexual
                             torture meted        intercourse. No.
                               out to her by         statement. u/s 164,
                                confining her         Cr.P.C. recorded.
                                                       in the dog's
                                                         kennel.
Vanitha,          Younger         1)     June 91             1st one at                 Ex.P-
                                  57 (Accident
   21/1994,                  sister of PW11 while sleeping                Dr. Gomathi's
                                   Register); Contact
   PW-13, PW-1 in A1's kudli, Hospital @                                  with a known
 Sri Lankan        Shantha         2)       July 92 Thanjavur.                  Person for
                                        more
                                Saturday at       2nd one at     than four years.
                             3 p.m. in A-1's          Athi Hospital. Last abortion 2
                                 bedroom.          Speaks of 2        years back at
                             3) October 94 forcible sexual       Tanjore. MTP
                                  at 11 am in     intercourse  done twice.
                             A-1's room     even as              Statement u/s
                                                 Informed A-1 164, Cr.P.C.
                                                that doctor   Refers sexual
                                              had told her contact with twice
                                                    that her uterus and abortion
                                                   was very weak.         Twice.


      Aruljothi        1) 1991 in         1) Abortifac- Ex.D-9 (Accident
     21/1994,                            A-1s, room     ients given by Register):
  PW-14, Sri                 at 1 p.m.             Divya Devi    Contact with a
   Lankan                      2) One month and A-3 in      known person for
                                thereafter, A-1 1991.        5 years.
                            had forcible 2) Second       Ex.D-10 (u/s 164
                               Sexual                abortion at
                       Intercourse in A-3, is instance       1) Refers to 3
                         A-1's room    by taking       sexual intercourse
                            even while        tabls.            by A1, 2 months
                       she was                                        after attaining
                             bleeding after                           puberty
                                                   taking
                            Abortifacients.                    2) Second sexual
                     3) On 14.11.94                               intercourse in A-1's
                         A1's room.                            room. Missed her
                                                                period and took
                                                                 abortifacients.
                                                     Next day, after
                                                    publication of
                                                  news, refers to the
                                                     forcible sexual
                                                   intercourse by A1
                                                    and refers to the
                                                    conception and
                                                    her request for
                                                     termination of
                                                      pregnancy.


Malligadevi,   Sister of           1)April 92 at Nil      Ex.P.32 (Accident
    20/94,         PW-12-              2 p.m in A1's           Register):
       PW-15,          Udayakumari room.                  Hymen-not
      Sri Lankan     & D29        2) On 18.11.94                intact.
              Kanthan                                    Ex.P.133 (u/s
                                                 164):Refers to the
                                                    forcible sexual
                                                  intercourse by A1
                                                  after she attained
                                                      puberty by
                                                    persuading her
                                                  that she would be
                                                  cured of asthma in
                                                     A-1's room.


     Krishnaveni.                 1) January, 94 Nil    Not included in
   23/94,PW55                   at 3 p.m in the room of       the charge.
            Sri Lankan                    P.W 55
                                          2) August 94
                                          at 12 noon in
                                           A1's room.
                                        3) September 94
                                         at night watch
                                          in A1's room.
                                         On her refusal
                                          the first time
                                          She was tied
                                          to calf made
                                                       to run along
                                                         with it and
                                                      tortured for her
                                                        Adamancy.
                          Latha,                          Not raped by
                         30/1994                         A-1, but speaks
                         PW16                             about the rape
                                                     of Sureshkumari,
                                                     PW-3 by A-1 in
                                                    1987 and Vanitha,
                                                     PW-13 in June,
                                                           1991


          From the statements of the victim girls made under Section 164, Cr.P.C. as
                         summarized above, it is seen that :
        (a) P.Ws 3,4,5,6,8,9,11,13,14 and 15 have named A-1 and his forcible rape on
                                        them:
        (b) P.Ws. 7 and 11 (once) have stated to have consented for sexual intercourse
                                     with A-1; and
                   (c) PW.10 has admitted forcible rape by a known person :


                                   ACTIVITIES OF ASHRAM :
        11. Religious discourses were performed by A-1 in the Ashram. He used to give
  holy water at the time of "abhishekam" which is believed to have a healing power and
the "viboothi" and manjal were also used as substances for healing disease. A-1 used to
           produce "lingams" and viboothi during the nights of Mahasivarathri.
           12. With this background let us now examine the evidence of each of the
                              prosecutrix before the Court.
        13. PW-3 Sureshkumari was examined on 1.7.1996. Her age was recorded as 21
years. She deposed that PW-3 along with 12 other girls left Sri Lanka through a boat and
   arrived in India. The first accused took them in a van from Rameswarm to a house at
 Crapatti, Tiruchy. At that time she was aged 11-12 years and had not attained puberty.
   Even during that time A-1 used to call her to his room, made her to sit on his lap and
 used to kiss her and give her sweets. This happened three times in 1985. On the fourth
    occasion, A-1 called her to a separate room, removed her dress and squeezed her
  breast hard to the pain of PW-3, thereafter he pushed her on the bed and tried to have
sexual intercourse forcibly. She attained puberty in the years 1987. She was confined in
a room for nearly one month. After competion of one month, A-1 called her to his room
 on the pretext of giving viboothi (Sacred ash) is July, 1987. Thereafter, A-1 made her to
 sit on his lap, embraced her and after kissing, asked her consent for sexual intercourse.
   When PW-3 asked him how he could do that when he was wearing saffron robes. To
 that A-1 had pacified her by stating that robe is different and sex is different and further
    said that since he is like her father she would not beget any children even if he had
    sexual intercourse with her. PW-3, however, managed to open the doors and came
    away running. It was witnessed by PW.16. After three days at about 1.30 p.m. while
 PW.3 was standing outside, A-1 gave her a signal to come. When PW.3 went inside his
   room A-1 locked to doors. Thereafter, PW.3 was taken to his bedroom and inside his
      bedroom, inspite of her attempt to escape, A-1 removed her dress and when she
  resisted A-1 slapped her and pushed her over the bed. When she shouted A-1 closed
 her mouth, mounted on her and started squeezing her breasts and despite protest A-1
 had sexual intercourse with her. A-1 had sexual intercourse with her three times in year
 1987. PW-3 further stated that at about 1 p.m. in November, 1991 A-1 had forcible sex
   with her. She further said that since they were orphans and there was nobody else to
  take care of them, she did not disclose to anybody. A-1 had also threatened her that if
      she revealed this to anybody she would be beaten. She further disclosed that in
  October, 1994 when. PW.9 refused to concede to the demand of A-1 during night, A-1
convened a meeting in the next morning on the ground that she was talking with one boy
and therefore A-1 punished her by pushing his big toe in the vagina of PW-9. When PW-
     3 was unable to see such torture, she went out of the meeting; she was called and
slapped in front of others. Therefore, PW-3 not able to bear such torturous conduct of A-
 1 came out of the Ashram on 31.10.1994. It is also admitted that she left the Ashram in
                                year 1991 and went to Madras.
           14. PW-4 Nallammal was examined on 2.7.1996. Her age was recorded as 22
  years. She stated that in the Ashram she was doing flower garden work and the press
    work. She was also given the responsibility in the Pooja hall. Six months prior to the
arrest of A-1 she was arranging the vessels in the Pooja room at 11.30 on Saturday. A-1
     gave Arulvaku at 9.30 a.m. and it was completed at 3. p.m . After Arulvaku all the
devotees left and only A-1 was in the Arulvaku room. From there A-1 called her and she
  went there thinking that A-1 would give vibuthi. But when she went near A-1 he closed
      the doors in the Arulvaku room. After closing the three doors he pushed her and
 removed the underskirt and raped her and she was crying. Though she was crying, the
     first accused continued to rape her. The first accused threatened her if she would
  disclose the happening to anybody he would kill her like Ravi was killed. In that month
   the first accused raped her 3 or 4 times. He had raped her two times in his room and
once in the Dharamsala. In his room it was at about 12.30 p.m. and in the Dharmasala it
 was about 2.30 p.m. She further stated that she got three months' pregnancy because
A-1 forcibly raped her. When A-1 came to know that she was pregnant he instructed A-3
 Divya to give pineapple and papaya and as the pregnancy was not aborted, A-1 called
    A-3 and asked her to give medicines and injection. Despite this pregnancy was not
 aborted and witness started bleeding. She further stated that two days later she gave a
 statement before the Magistrate. Some of the statements were true and other were lies
because she came to learn from the interview that A-1 would be out within two days and
 she was frightened that if the accused came out in two days he would do something to
her. So in front of the Magistrate, she gave some false information together with the true
                                         information.
      15. PW-5 Princy was examined on 2.7.1996. Her age was recorded as 22 years.
  She stated that when they were in Fatima Nagar Ashram,. A-1 used to sleep on bed.
 Myself and PW-3 were sleeping on the floor. At 1.00 a.m. the first accused came down
  from the bed and slept with her. The first accused forcibly raped her even though she
 was shouting and did not care even Sureshkumari was nearby. She further stated that
Gurupoornima was held in July and two days after Gurupoornima in 1990 around 11.00
 pm. The first accused called her. That night she had the night watch. Night watch was
     between 11.00 p.m. to 12.00 p.m. She went into the 1st accused's room. The first
 accused told Balan (A-4) to look outside whether anybody was standing outside. When
she went inside the room of the first accused he locked the door. She tried to go outside
the room but she could not. The 1st accused forcibly hugged her and pushed her on the
    bed and had sex with her. She told the first accused "I was grown up by you from 3
       years old and I am like your daughter" even then he forcibly had sex with her.
        16. P.W.6 Mary was examined on 2.7.1996. Her age was recorded as 18 years.
She stated that in 1993 she was doing the night watch. That time the first accused called
 her to pomegranate field. The pomegranate field was infront of the first accused's room.
  There are a lot of guava trees and pomegranate trees in the Ashram. She went to the
   pomegranate field as called by A-1. The first accused told her to have sex with him,
whom she refused but then A-1 forcibly had sex with her against her wish. After she had
  sex with A-1 she did not get period for three months. Thereafter, A-1 called Divya and
the 3rd accused Dr. Chandradevi to give some medicine for abortion. Divya (absconding
 accused) gave pineapple and papaya. She also took some medicines given by the third
  accused. The period was restored. Thereafter A-1 sent for her through a small girl and
    when she went to A-1, he forcibly had sex with her in the Dharmasala. She further
  deposed that she did not tell to anybody that A-1 raped her because in the Ashram no
 one could do anything against the first accused. She also deposed that A-1 pushed his
 leg big toe into Pushparani's vagina. They all put their heads down because they could
                                        not see this.
           17 PW.7 Selvakumari @ Manjula was examined on 3.7.1996. Her age was
recorded as 23 years. She is the sister of PW.3 Sureshkumari and PW.8 Sugunakumari
    @ Sudha and PW-10 Sasikumari @ Jaya. A-1 is their uncle. She stated that she
  attained the age of puperty when she was 14 years. In 1988 the 1st accused used to
  touch her while talking. She asked the 1st accused : "you are my uncle, why are you
touching me while talking" and the accused told her this relationship in earlier days only
    and now there is no relationship like this. She states that in August, 1990 the first
accused caught her and pressed her breast. On being asked A-1 told her that he liked it
  and he would do it. She further deposed that six months before the first accused was
 arrested she was pouring water in the garden after lunch at 3 p.m. At that time, the first
 accused came from his room and showed the signal through the hand that she should
   come to his room. When she went to his room he removed her clothes and forcibly
 raped her. On being refused he slapped her on the cheeks. A-1 raped her in his room.
She further stated that one month before the first accused was arrested he had forcible
    sex with her in the evening at 4 p.m. in his room. She further stated that A-1 gave
interview to the press before she gave statement before the Magistrate. In the interview
before the press the accused said that he would come out in two days. Fearing that the
     accused would come out he would do something to her so she hid some of the
statement before the Magistrate. She further deposed that that in 1993 the first accused
  kept his penis in her mouth. The first accused beat her to keep his penis in her mouth
 and also forced her to suck the penis with her mouth. She also stated that A-1 pushed
                        his leg big toe into Pushparani's vagina.
        18. PW-8 Sugunkumari @ Sudha is the younger sister of PW-3 Sureshkumari and
 PW-7 Selvakumari @ Manjula. She was examined on 3.7.1996. Her age was recorded
 as 17 years. She stated that A-1 is her uncle. She attained the age of puberty in 1992.
   After two or three days on attaining age the first accused sent her elder sister by van
  somewhere. A-1 refused to send me with them and she was sleeping in the room. Her
 room was about 100 feet distance from the A-1's room. At about 10 p.m. while she was
still awake A-1 came to her room and spread out something similar to a powder and she
became unconscious. Through the back door A-1 carried her to his room and put her on
 his bed and A-1 forcibly lied down on her and raped her. After 10 minutes she became
 conscious and got up. A-1 threatened her that if she told this to her elder sisters or any
other girls he would kill her. After the rape she got fever for three days. She did not tell to
   her sisters when they came back to the Ashram next day. She did not tell to anybody
  and kept quiet since A-1 had threatened her that he would kill her. One week later A-1
   called her. But because of the fear she did not went to see him. A-1 thereafter sent a
little girl and called her but because of fear she did not go to his room. Then the little girl
 showed the place to A-1 where the witness was hiding. Thereafter A-1 showed a stick
  and threatened her and brought her to his room. Again the first accused forcibly raped
her in a beastly manner. A-1 also threatened her not to tell anybody and because of fear
  she did not tell anybody that A-1 had raped her. After that whenever she saw A-1 she
  used to hide herself. Two months thereafter before A-1 was arrested she went to Arul
    Vaku room in a queue. A-1 had forcibly raped her for the third time in the Arul Vaku
     room. When she tried to stop accused nails in his hand touched her right eye. She
             stated that when A-1 raped her for the first time she was 14 years old.
      19. The learned trial Judge recorded the demeanour of P.W-8, in paragraph 272 of
                                 the judgment as under:-
       "While recalling the forcible act of rape, the Court noticed torrential flow of tears
 from the eyes of PW-8 with all pain and conscience shocked, the Court listened to the
most startling and saddening story of PW-8 who is yet to attain mental maturity. Though
  P.W-8 attained puberty, she is yet to grow physically and mentally. Even her childish
               voice is not broken into that of grown-up and adult woman."
        20. The version of PW-8 not only inspires the confidence of the Court, but also
                          shocks the conscience of the Court.
         21. P.W-9 Pushparani was examined on 4.7.1996. Her age was recorded as 18
   years. She stated that they all came from Sri Lanka in 1984. In the Ashram she was
 given works such as building cleaning, supervision work, looking after the children and
  night watch. Her night watch time was between 2 and 3 a.m. Later on it was changed
between 10 to 11 p.m. The night watch is in front of the first accused building. In 1992 A-
   1 inquired as to why she came late to do the night watch and beat her. It was about
10.30 p.m. Thereafter A-1 took her to his room in the pooja room and forcibly raped her.
Because of rape she started bleeding in her vagina. At about 1.30 a.m. when she came
 out of the accused's room two girls who were doing night watch with her inquired as to
 where she went. As A-1 had threatened her not to disclose to anybody she did not tell
 this to girls that A-1 had sex with her. In 1994 A-1 took her to the Dharmasala at 11.30
  p.m. and raped her. The accused after closing all the doors and windows in the room
  removed all her clothes. A-1 also removed his clothes and A-1 lay her on a table and
  had sex with her. She further deposed that after 5 to 6 days A-1 called a meeting and
    she attended the meeting where P.W-3 Sureshkumari, P.W-14 Aruljothi, P.W-10
    Sasikumari, P.W-7 Selvakumari and other girls also came to that meeting. In the
 meeting A-1 removed all her clothes and called four persons to hold her legs and hands.
   Thereafter A-1 lay down her without clothes and A-1 beat her with a cane. A-1 also
 pushed his leg big toe into her vagina and when she shouted because of pain he did not
leave her. Unable to see P.W-3 left the meeting. Two days before Diwali in 1994 A-1 had
                           also forcibly sex with her in his room.
       22. The learned trial Judge recorded the demeanour and observed the manner
under which P.W-9 deposed before the Court in paragraph 280 of the judgment as under
                                          :-
          "280. Experiencing the most humiliating form of violence P.W-9 did not even
   attend the daily pooja. About 2 days prior to Deepavali 1994. A-1 again had sexual
 intercourse in his Kudil with P.W-9. Much weight has to be attached to the evidence of
    P.W-9. While narrating the ugly episode the Court could realize the psychological
    harassment of this girl. Even while she was confronted about the humiliation she
   developed a kind of giddiness and uneasiness and the cross-examination could be
    continued only the next day. P.W-9 who was below 16 years during 1992-94, was
            ravished by A-1. The consent of P.W-19 is not of much relevance."
         23. P.W-10 Sasikumari @ Jaya was examined on 4.7.1996. Her age was recorded
as 17 years. She also stated that they all came from Sri Lanka to India in 1984. She was
    working in the garden, cleaning office and cleaning Dharmasala in the Ashram. She
  further stated that when she was two years old, her mother left her in Poobalakrishna
  Ashram. She attained the age in 1993 when she was 15 years old. She was kept in a
room for 10 to 15 days. After 15 days A-1 came to her room, hugged her and kissed her.
 The next day she came out of the room. From 10 to 11 p.m. she was doing night watch,
A-1 took her to his room. She was near the bell as after every hour we ring the bell in the
Ashram. It was about 50 feet distance from A-1 room and when she was near the bell A-
1 called her making a sign with his hands. He asked her to come closer. When she went
to A-1 he pressed her breasts. She got frightened and ran out. Two days later, A-1 gave
  her night watch from 1 to 2 a.m. and when she was doing night watch A-1 caught her
 hands and pulled her to his room and pushed her on his bed. When A-1 pushed her on
 the bed she realized that A-1 would do something so she tried to escape from him. But
    A-1 slapped her on the cheeks, beat her and had forcibly sex with her. She further
  deposed that Arul Vaku room used to be dark and she saw that A-1 used to take girls
     one by one into that room. She did not disclose to anybody about her rape as A-1
   threatened her that if she told about the rape he would kill her on the same day. She
   further deposed that A-1 used to tell them that "although he is in a human body he is
God". A-1 also threatened girls that they should not tell against him to the Magistrate and
      if they disclosed anything he would come out and see them. The witness further
 deposed that two days before the police examined her, A-1 threatened that they should
        not tell against him to the Magistrate and therefore they hid something in their
                                  statements to the Magistrate.
        24. P.W-11 Shanta was examined on 4.7.1996. Her age was recorded as 36
years. The High Court has acquitted the accused on this count, in our view, wrongly but
   since no appeal is preferred, we need not examine the statement of this witness,
                      although she admitted having sex with A-1.
       25. P.W-12 Udayakumari was examined on 5.7.1996. Her age was recorded as 24
years. She stated that she was born in Sri Lanka. In 1984 she came from Sri Lanka. She
does not have parents. They were staying in a rented house with A-1 before they shifted
 to Fatimanagar in 1986. She was doing work in the flower garden and looking after the
 dogs in the Ashram. In 1990 A-1 called her through A-4. When she went to A-1's room
  and inquired as to why he had called her, A-1 asked her whether she wanted to have
 sex with him. To which she replied, "how can I have sex with you because I was grown
    up by you and I thought you are like my parents". The first accused then by way of
 revenge kept her in the dog kennel for three days without giving her food and water on
  the excuse that she did not look after the dogs well . The witness further stated that in
  May, 1993 when she was working in the flower garden, A-1 inquired whether I poured
water to the plants. To which she replied that she had poured water. It was about 4 p.m.
   and in the flower garden A-1 forcibly hugged her and kissed her and then he pushed
     down and lay on her and raped her. She did not tell to anybody as the accused
                                 threatened her not to tell.
       26. The learned trial Judge has observed as to the demeanour of P.W-12 during
       her examination and recorded in paragraph 304 of the judgment as under:-
        "P.W.12 had narrated the entitle incident in a simple manner and in her own
language. The Court could notice the reflection of pain and suffering on her face. There
    was torrential flow of tears even while she was recalling the incident. During the
    examintion she could not control herself when she was questioned whether she
 consented for the act committed on her. Nothing could be more perverse than to reject
                              the testimony of this victim girl."
         27. P.W-13 Vanitha was examined on 5.7.1996. Her age was recorded as 27
years. She stated that she was born on 31.7.1969 at Sri Lanka. P.W-11 Shantha is her
 elder sister. In 1984 she and her family came from Sri Lanka to India because of riots.
They were living in a rented house in RMS colony, Karumandabam, Trichy. In 1989 her
sister Shanta and Gita went to Srilanka but she stayed back in the Ashram. In 1990 her
 sisters came from Colombo to the Ashram. In 1991 when Divya Mataji was not in the
Ashram A-1 told her to do the works of Divya Mataji. At that time she was studying plus
  one. She was sleeping in the first accused's room. There were four rooms in the first
 accused's kudil. She was sleeping in the centre section. In the night at 1 a.m. she felt
  that somebody was covering her face with a cloth. She also felt that the person who
covered her face had sex forcibly with her. When she got up she found that it was A-1.
 She became three months pregnant. In the Ashram if any girl does not get the periods
   usually it is reported to Divya mataji and Divya Mataji will convey message to A-1.
 Accordingly, she reported to Divya Majaji and Divyia Mataji reported to A-1 about the
   delay of three months, period. A-1 took the urine for examination through A-7. She
  stated that A-1 had sex with her in June, 1991. She went to Tanjavur to Dr. Gomathi
   accompanied by P.W.3, P.W-5, A-1 and A-2. A-1 was driving the car. They were in
Tanjavur for three days and pregnancy was aborted in Dr. Gomathi hospital. After they
came back from hospital A-1 did not allow her to go home for five days and kept her in
 his kudil. She was in the room next to A-1's room. In July 1992 at 3 p.m A-1 called her
  for some work. When she went there A-1 closed the door and pushed her on his bed
and forcibly had sex with her. She became five months' pregnant after A-1 had sex with
 her. It was reported to A-1. A-1 again sent her urine for examination and it was found
that she was 5 months pregnant. Thereafter, A-1 sent her with A-4 to Tanjavur to abort
 the pregnancy. She was aborted in Arti hospital in Tanjavur. She did not disclose it to
anybody that she had sex with A-1 and went twice to do abortion in Tanjavur, because
 she believed that A-1 was a divine man and if she would tell about activities of A-1 he
would harm her family. After 10 days of 2nd abortion doctor told A-1 that her womb was
   weak and when she told A-1 her womb was weak A-1 had again forcibly raped her.
Again in October, 1994 around 11 a.m. A-1 called her and when she went to his room.
 A-1 had foreibly sex with her. She further stated that she did not tell anybody because
 she was frightened that A-1 would harm her family and because A-1 told to her father
                      and mother that he was an important person.
          28. P.W-14 Aruljothi was examined on 12.7.1996. Her age was recorded as 21
 years. She stated that she was born in Matala, Sri Lanka. From the age of two she was
  brought up in the Matale Poobala Krishna Ashram. The said Ashram was managed by
  A-1. She does not have parents. In year 1983 A-1 came to India. In the year 1984 she
 and the other children came to India from Sri Lanka. They arrived at Vendaraniam and
   from there A-1 took them by a van to Crawford, Trichy. There they stayed in a rented
 house. In 1986 they came to the Ashram at Fathimanagar. In the Ashram, the food and
  clothes were provided by A-1. She attained the age in the year 1987. In the year 1988
on Krishna Jayanthi she was sleeping in Sureshkumari's (P.W-3) room. Early morning at
5.30 A-1 came to the room took the Vesti he was wearing and put it on her face and had
  sex with her by force. In 1989 in the evening at 4 O'clock A-1 asked her to come to his
 room. He asked her to apply oil to his legs. A-1 also asked her to apply oil on his penis.
 When she refused to do that A-1 beat her and forced her and asked her to apply oil on
 his penis. A-1 threatened her that he would murder her, if she told about this to outside.
    Next day early in the morning at 5.30, P.W-7 Selvakumari, P.W5 Princy and P.W-12
         Udayakumari, four of them ran away from the Ashram. When they were in
Samayapuram A-1 and A-2 forcibly took them from Samayapuram to the Ashram. In the
Ashram A-1 tied her and three others and beat them. In 1991 when they were cooking in
    the kitchen in the afternoon at about 1 O'clock A-1 forcibly took her to his room and
 pushed her on the bed in his room and had sex by force. After having sex with him she
 did not get menstruation. Divya Devi and A-3 used to have a meeting on every Sunday
  in the Ashram and enquired who and who did not get their menstruation. During such
     Sunday's meeting she told A-3 and Divya Mataji that she did not have her periods.
 Thereafter A-3 Chandra Devi gave tablets for disturbing the conception. Again A-1 had
forcibly intercourse with her. After that she had fever for seven days and slept. Then A-3
   Dr. Chandra Devi gave treatment to her. After a month when she was working in the
    pooja room A-1 came to the pooja room at around 1.00 in the day time, pushed her
     down in the pooja room itself and had forcibly intercourse with her. After this again
   monthly period stopped. A-3 Dr. Chandra Devi gave tablets to disturb the conception
and she was aborted. In the year 1992 one day A-1 sent a message to her and she was
     lying down in her room in fever. Since she did not respond to the calling of A-1, in
 Dharmasala when she was eating A-1 pulled her hair and knocked against the wall. He
took a stick and pricked her eyes by the stick, so her eyes became red and got infection.
                This was witnessed by about 100 girls in the Dharmasala.
        29. In 1994 five days before the arrest of A-1 (A-1 was arrested on 19.11.1994)
  she was doing night watch in the cowshed. At midnight about 12' O'clock A-4 came to
 her and told her that A-1 is calling and took her to A-1's room. A-4 left her in A-1's room
and went. Thereafter, A-1 shut the doors of the room and pulled her on the bed and had
     sexual intercourse forcibly. About 20 days before the arrest of A-1 she had her
   menstruation. She further stated that she never told to anybody that A-1 had sexual
contact with her forcibly. Just before the police arrested A-1, A-1 told that he would come
 back within 2 days and that she should not tell anybody that he had sexual contact with
      her and he told others that there was no way or nobody for them to give food.
  Particularly, A-1 called her alone and threatened her that she should not tell anybody
  that he had sexual contact with her just five days before. She further stated that other
           than A-1 Swami Premananda, nobody had sexual contact with her.
       30. P.W-15 Malligadevi was examined on 18.7.1996. Her age was recorded as 22
 years. She stated that she was born in Colombo in Sri Lanka. She lost her parents. She
was in a Guru Shanti Villayam in Matakilapu, Sri Lanka. A-1 took her to Poobala Krishna
 Ashram in Matale. It was maintained by A-1. In 1984 she came from Sri Lanka to India.
   She and her sister P.W-12 Udayakumari along with some other girls came to India
  from Sri Lanka. They were made to stay in a rented house in Crawford, Trichy, by A-1.
   From there they came to Fatimanagar Ashram. They were provided food, clothes and
shelter by A-1. She was assigned the library work in the Ashram. She was also doing the
                          night watch from 10.00 to 11.00 p.m.
       31. In 1991 when she was doing night watch between 10 to 11 p.m. A-1 called her
 to his room and when she went A-1 said that he liked her and hugged her. In his room
   when A-1 hugged and kissed her to consent to his wish, she ran out from his room.
           32. In April, 1992 one day she went to A-1 and told that she is suffering from
asthma and could not work in the library and so she would go and sleep in the room. A-1
  told her that she should compulsorily do the library work and after that she went to the
library. After finishing the work around 2.00 O'clock in the noon she went to her room. A-
    1 called her from his room by waving his hand and when she went to the room A-1
  hugged her to which she told that she had been suffering from asthma and if she got a
 baby without marrying, people would talk bad about her. For that A-1 told her that if she
  would sleep with him her asthma would be cured and saying so A-1 pushed her to his
  bed and had forcibly sex with her. A-1 had sex with her for about 10 minutes after that
she returned to her room crying. She also stated that she gave statement to Pudukkottai
     Magistrate. Before the statement A-1 threatened her not to tell anybody and told
                    Magistrate that she had sex with A-1 on her own wish.
        33. All the prosecutrix were examined by the doctor and found hymen was not
                     intact. The potency of A-1 was also established.
       34. The prosecutrix were subjected to incisive cross-examination. However, no
material could be brought out to discredit the creditworthiness of the statement-in-chief.
  From the facts of the prosecution as disclosed most of the victim girls were orphans
brought from Sri Lanka. A-1 provided them food, clothes and shelter. They were entirely
  dependent on A-1 for their survival. Once they were thrown out by A-1 they had no
   alternative place to stay. A-1 had dominion control over the prosecutrix physically,
 mentally and spiritually. In fact, many of them believed that A-1 is God to them. It is in
  these circumstances, there is no reason why the prosecutrix should depose falsely
 against A-1 who was the sourse of their survival physically, mentally and spiritually, by
                       providing shelter, food and clothes to them.
        35. It is trite law that the prosecutirx is not an accomplice. The evidence of victim
  of sexual assault, if inspires confidence, conviction can be founded on her testimony
 alone unless there are compelling reasons for seeking corroboration. Her evidence is
more reliable than that of injured witness. In a case of sexual assault corroboration as a
  condition for judicial reliance is not a requirement of law but a guidance of prudence.
 Examining the testimony of prosecutrix in the background, as stated above, and in the
   facts and circumstances of this case, we are of the clear view, that the testimony of
  prosecutrix inspires confidence, on the basis of which alone conviction can be safely
 sustained. Moreover, in the instant case we find that the statements of the prosecutrix
are well corroborated by medical and other contemporaneous documents. It is also well
established principle of law that minor contradictions or insignificant discrepancies in the
    statement of the prosecutrix should not be a ground for throwing out an otherwise
 reliable prosecution case. [See State of Punjab vs. Gurmit Singh and others, 1996 (2)
                                           SCC 384].
      36. We have heard Mr. Ram Jethmalani, learned senior counsel, for the appellants
       and Mr. Sushil Kumar learned senior counsel for the respondent at length.
        37. At the outset we may observe here that the contentions which have been
  raised before the trial Court and the High Court and got rejected by assigning good
   reasons by two Courts have been restated again by the counsel for the appellants
                                    before this Court.
      38. Before we proceed to deal with the contentions we may at this stage set out
   several charges on various counts framed against the accused by the trial Court.


               Charge No.       Against which Under what Gist of the offences
                                  accused             section
                (1)              (2)           (3)                        (4)


         Charge No.1      A-1 to A-7      u/s 120-B, IPCA-1 to A-7 criminal conspiracy
                                                        to commit rape on victim
                                                       girls. Abetment of rape and
                                                         to cause abortion and to
                                                               murder Ravi.
                                                       A-3. Being a co-conspirator
                                                       for the first part of the con-
                                                       spiracy of rape, Abetment of
                                                            rape and abortion.
   Charge No.2      A.1              u/s 376 (2)(c), For committing rape on 14
                                IPC 14 Counts victims girls Nallammal, Mary
                                                  Princy Selvakumari @
                                               Manjula, Sugunakumari @
                                                  Sudha, Pushparani,
                                               Malligadevi, Sasikumari @
                                                       Jaya, Aruljothi,
                                                    Sureshkumari, Latha,
                                               Udayakumari, Vanitha and
                                                      Shanta.


  Charge No.3      A-2 to A-7      u/s 376 r/w 109,        For abetment of rape
                                                   IPC


  Charge No.4     A-1              u/s 354, IPC     For outraging the modesty of
                             4 counts               4 victim girls Sureshkumari,
                                                     Princy, Kumari and
                                                         Sasikumari.

   Charge No. 5     A-3              u/s 313, IPC     For causing abortion to 8
                                     8 counts               victim girls.


   Charge No. 6     A-1              u/s 302, IPC For causing the murder of
                       A-2              u/s 302 r/w 34,     Ravi
                                                    IPC


Charge No. 7    A-4 to A-7       u/s 302 r/w 109,        For abetting the murder of
                                            IPC             Ravi.


 Charge No.8      A-1, A-2, A-4 u/s 343, IPC        Wrongful confinement of Ravi
                     A-7                              in Kavadi Kudil.

Charge No. 9     A-5 to A-7       u/s 201 r/w 302,      For causing the evidence
                                 IPC.           burying the body of Ravi in
                                                       the Ashram.


Charge No.10 A-2                 u/s 201 r/w 114,       Abetment by being present
                                IPC            in the place where the body
                                                     of Ravi was buried.
        Charge No. 11 A-1, A-2, A-4 u/s 506 (Part II),     Criminal Intimidation and
                   To A-7        IPC (4 Counts)        the threat to cause death.


           Charge No. 12 A-1               u/s 420, IPC For cheating Mark Dennis
                                                      dishonestly inducing him to
                                                         part with the money.

      39. This case has more than one rarest or rare cases. It is rare that A-1, supposed
to be incarnation of God and allegedly having divine powers has been alleged of raping
13 of Ashram girls systematically and murder of Ravi. It is rare that out of 62 prosecution
   witnesses examined none of them turned hostile. It is rare that in an institution like
   Ashram, P.W.62 I.O. seized amongst other things two new packets of nirodh vide
                  Ex.P.83 from the kudil of Divya Devi in the Ashram.
      40. The contention of Mr. Ram Jethmalani, learned senior counsel, that the charge
 of rape levelled against A-1 does not come within the ambit of definition of rape under
 Section 375, IPC inasmuch as some of the victim girls have consented to have sexual
   intercourse with A-1. It is also contended that investigation has been carried out in
 breach of Section 160 of the Code of Criminal Procedure. These contentions are to be
              noted only to be rejected. Section 375 defines rape. It reads:-
       "375. Rape.-A man is said to commit "rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of
                             the six following descriptions:-
                                    First.-Against her will.
                                Secondly.-Without her consent.
       Thirdly.-With her consent, when her consent has been obtained by putting her or
             any person in whom she is interested in fear of death or of hurt.
       Fourthly.-With her consent, when the man knows that he is not her husband, and
that her consent is given because she believes that he is another man to whom she is or
                          believes herself to be lawfully married.
       Fifthly.-With her consent, when at the time of giving such consent, by reason of
 unsoundness of mind or intoxication or the administration by him personally or through
 another of any stupefying or unwholesome substance, she is unable to understand the
              nature and consequences of that to which she gives consent.
         Sixthly.-With or without her consent, when she is under sixteen years of age.
           Explanation:-Penetration is sufficient to constitute the sexual intercourse
                          necessary to the offence of rape,
        Exception.-Sexual intercourse by a man with his own wife, the wife not being
                            under fifteen years of age, is not rape.
       41. It is in the evidence of the prosecutrix, as already referred above, consent of
 many of the prosecutrix has been obtained by deceitful means that if they had sex with
 A-1 they would cure the asthma or that if they had sex with A-1 it is service to God or
some of the girls have been raped under threat of dire consequences. As already stated
 A-1 had dominion control over the Ashram girls and most of them are orphans and no
 alternative place to go. Therefore it clearly falls within the thirdly clause of Section 375,
IPC. Furthermore, if the consent is obtained by deceitful means or under threat of death
or hurt, it is no consent at all and it is without her consent. Therefore, the charge of rape
   levelled against A-1 falls within the definition of Section 375, IPC. This apart, under
    sixthly clause the consent is immaterial when she is under 16 years of age. P.Ws.
             6,8,9,10 were below 16 years of age when they were raped by A-1.
       42. A-1 was charged under Section 376 (2)(c) and convicted under the section.
  The charge under Section 376 (2)(c) was never challenged by A-1. Section 376(2)(c)
                                       reads:-
                                   "376 (2)(c)-Whoever,-
       being on the management or on the staff of a jail, remand home or other place of
 custody established by or under any law for the time being in force or of a woman's or
 children's institution takes advantage of his official position and commits rape on any
                   inmate of such jail, remand home, place or institution,
                                            or…………
        Shall be punished with rigorous imprisonment for a term which shall not be less
         than ten years but which may be for life and shall also be liable to fine."
        43. Similarly, the contention of breach of Section 160, Cr.P.C. is unacceptable. All
 the victim girls were the inmates of the Ashram. They were raped by A-1 in the Ashram,
who had dominion control over the Ashram. The victim girls were being threatened not to
 disclose to anybody about the misdeeds of A-1 or face the dire consequences including
    the threat of death. In such circumstances, the Ashram cannot be the place for the
      purposes of Section 160, Cr.P.C. and the victim girls were rightly examined and
interrogated in women police stations. They were removed from the Ashram to erase the
  fear psychosis from them. It was for the safety and to serve the interest of justice, that
  they were removed from the clutches of A-1. Section 160, Cr.P.C. must be understood
                      and appreciated in the context of given situation;.
                                   MISJOINDER OF CHARGES :
        44. Mr. Ram Jethmalani, learned senior counsel, contended that Section 218,
 Cr.P.C. prescribes that for every distinct offence there shall be a separate charge and
  every charge shall be tried separately, which has not been done in the present case.
 According to him, the first injunction contained in Section 218 is incurable either under
  Section 464 or under Section 465, Cr.P.C. In other words, if the charge is framed in
contravention of Section 218 it is the breach of mandate of Section 218 and is illegal and
   not mis-joinder of charges and therefore it is incurable either under Section 464 or
                                    Section 465, Cr.P.C.
       45. We are unable to countenance with this contention of Mr. Ram Jethmalani. It is
   true that Section 218, Cr.P.C. prescribes for every distinct offence there shall be a
 separate charge and every charge shall be tried separately. Chapter XVII of the Code
deals with the charge. Section 218 is under the Heading-"joinder of charges". Therefore,
 if joinder of charges is in contravention of procedure prescribed under Section 218, it
     would be misjoinder of charges and curable under Section 464 and Section 465,
        Cr.P.C., provided no failure of justice has in fact been occasioned thereby.
         46. Reliance has been heavily placed on the decision of this Court in W. Slaney
     vs. State of M.P, AIR 1956 SC 116 particularly the observation of Justice Imam in
paragraphs 97 and 99. That was a case where this Court was considering the error and
   irregularity in which there was conviction with no charge at all from start to the finish
 down to cases in which there was a charge but with errors, irregularities and omissions
 in it. Therefore, the decision in Slaney (supra) was not based on misjoinder of charges.
There was no charge under Section 302, IPC from start to finish and in that context this
Court said that a trial must be examined on the touchstone whether the trial is fair. It was
                            pointed out in paragraph 44 as under:-
         "44. Now, as we have said, Sections 225, 232, 535 and 537 (a) between them,
    cover every conceivable type of error and irregularity referable to a charge that can
   possibly arise, ranging from cases in which there is a conviction with no charge at all
 from start to finish down to cases in which there is a charge but with error, irregularities
  and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be
                         regarded as fatal unless there is prejudice.
       It is the substance that we must seek. Courts have to administer justice and justice
includes the punishment of guilt just as much as the protection of innocence. Neither can
 be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of
 unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the
  state and the protection of society in general against protection from harassment to the
                         individual and the risks of unjust conviction.
       Every reasonable presumption must be made in favour of an accused person; he
  must be given the benefit of every reasonable doubt. The same broad principles of
justice and fair play must be brought to bear when determining a matter of prejudice as
   in adjudging guilt. But when all is said and done what we are concerned to see is
   whether the accused had a fair trial, whether he knew what he was being tried for
whether the main facts sought to be established against him were explained to him fairly
     and clearly and whether he was given a full and fair chance to defend himself.
        If all these elements are there and no prejudice is shown the conviction must
 stand whatever the irregularities whether traceable to the charge or to a want of one."
        47. Justice Imam in paragraphs 97 and 99 observed that even if there is a total
absence of a charge from start to finish in a case where the law requires a charge to be
  framed, is a contravention of the provision of the Code as to the mode of trial and a
  conviction of the accused of an offence in such a case is invalid and the question of
 prejudice does not arise. As already said in Slaney (supra) there was no charge under
 Section 302 from start to finish of the case. That is not the case here, here the charge
  was framed on all counts. Therefore, the facts of the case in Slaney (supra) are not
applicable in the present facts. However, in Slaney (supra) Justice Imam also observed
                                in paragraph 98 as under :-
           "98. In cases where a charge has been framed and there is an omission or
  irregularity in it, it is difficult to see how the mode of trial is affected. In any event, the
Code expressly provides that in such cases the conviction need not be set aside, unless,
                               in fact, a failure of justice has resulted."
       48. In the case of Birichh Bhuian vs. State of Bihar, 1963 Sup. (2) SCR 328, a five
 Judge Bench of this Court, where Justice Imam was a party, considered the distinction
between an illegality and an irregularity, in such misjoinder of charges. This Court, after
considering the divergent views of the Privy Council as to whether misjoinder of charges
 is not saved by Section 537 (old) and 465 (new), the Court then said at p. 335 (2) SCR
                                        as under:-
         "In this state of law, the Parliament has intervened to set at rest the conflict by
passing Act XXVI of 1955 making a separate provision in respect of errors, omissions or
 irregularities in a charge and also enlarging the meaning of the expression such errors
etc. so as to include a misjoinder of charges. After the amendment there is no scope for
    contending that misjoinder of charges is not saved by Section 537 of the Criminal
                Procedure Code if it has not occasioned a failure of justice."
                   This Court summarized its finding at p.337 (2) SCR as under:-
       "To summarise: a charge is a precise formulation of a specific accusation made
against a person of an offence alleged to have been committed by him. Sections 234 to
 239 permit the joinder of charges in respect of different offences committed by a single
person or several persons. If the joinder of charges was contrary to the provisions of the
  Code it would be a misjoinder of charges. Section 537 prohibits the revisional or the
  appellate Court from setting aside a finding, sentence or order passed by a Court of
  competent jurisdiction on the ground of such a misjoinder unless it has occasioned a
                                     failure of justice."
      49. Again in the case of State of Andhra Pradesh vs. Cheemalapati Ganeswara
Rao, 1964 (3) SCR 297, the Court noticed the decisions rendered in Slaney (supra) and
             Birichh Bhuian (supra) and said at p.332 (3)SCR as under :-
           "Even if we were to assume that there has been a misjoinder of charges in
   violation of the provisions of Sections 233 to 239 of the Code, the High Court was
   imcompetent to set aside the conviction of the respondents without coming to the
   definite conclusion that misjoinder had occasioned failure of justice. This decision
  completely meets the argument based upon Dawson's case (1960) 1 All. E R. 558.
Merely because the accused persons are charged with a large number of offences and
convicted at the trial the conviction cannot be set aside by the appellate Court unless it
  in fact came to the conclusion that the accused persons were embarrassed in their
   defence with the result that there was a failure of justice. For all these reasons we
cannot accept the argument of learned counsel on the ground of misjoinder of charges
                                and multiplicity of charges."
       50. The question was again examined by this Court in the State of West Bengal
vs. Faisal Haque, 1989 (3) SCC 166, where the earlier views of this Court including the
            views of Justice Vivian Bose in Slaney (supra) were reiterated.
          51. It is clear from the aforesaid decisions that misjoinder of charges is not an
 illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided
   no failure of justice had occasioned thereby. Whether or not the failure of justice had
  occasioned whereby, it is the duty of the Court to see, whether an accused had a fair
trial, whether he knew what he was being tried for, whether the main facts sought to be
   established against him were explained to him fairly and clearly and whether he was
                         given a full and fair chance to defend himself.
         52. In the light of the aforesaid principle, let us now examine the facts of the
present case, as to whether any failure of justice had occasioned thereby or whether any
 prejudice is caused to the accused. The accused was represented by a very senior and
  abled criminal lawyer. All the prosecution witnesses were subjected to incisive cross-
examination. The accused put up 49 defence witnesses. In his cross-examination under
Section 313 altogether 445 questions were put to him, affording an opportunity to explain
    all the circumstances appearing against him. Having regard to these facts, in our
  opinion, no failure of justice has occasioned and both the Court below are justified in
                                   rejecting the contention.
        ALLEGATION OF TORTURE AND BEATING OF THE VICTIM GIRLS BY THE
                               POLICE.
         53. If this contention is established it could have been fatal to the prosecution
 story, but in our opinion not. Mr. Ram Jethmalani in this connection has referred to the
             statement of Aruljothi P.W-14 stated before the Court as under:-
       "When the Magistrate examined me I told him that because of the fear of A-1 first
    we didn't give statement, after the notice beat us, me and the other girls gave the
statements that we were raped by Premananda Swami. I mayself took the decision and
told to the Magistrate that I gave the statement after the police beat me. Not all the girls
                                together took this decision."
               This statement must be examined in the context and under the facts and
   circumstances, in which it has been stated. All the victim girls were in one voice that
because of fear of A-1, ladies in the Ashram did not tell to the police that A-1 had sexual
    contact with them. They further stated that just one hour before the arrest of A-1, he
   called all the Ashram ladies and threatened that nobody should tell the police that he
 had sexual contact with them. The victim girls were also in one voice that A-1 had given
  a press statement that he would come out on bail in two days and the victim girls were
frightenend that if the accused really came out on bail he would take stern action against
 them. Keeping in view the trauma and agony suffered by all the victim girls at the hands
  of A-1, it is expected that the victim girls were reluctant to disclose the misdeeds of A-1
for fear of reprisals. This apart, DW-10 filed a Habeas Corpus Petition No. 1808 of 1994.
  On 7.12.1994 she was questioned by the Hon'ble Judges constituting the Bench of the
    High Court in Chamber. She had stated before the Judges that she had not been ill-
 treated or wrongly confined by the respondent at any point of time and was not coerced
     to give out any statement against her will. Another detenu. Vallammal also filed a
 Habeas Corpus Petition through her father Sundaram. The allegation in the petition was
 that the police are compelling the detenu to give false statement. She was examined by
  the Hon'ble Judges in Chamber and it was observed by the Hon'ble Judges as under :-
      "We examined the detenu in our chambers. According to her, her date of birth is
9.5.1979. She has crossed of age 15 years' and she is now a student in 9th standard in
the Ashramam School. She was very specific, while stating before us, that she was not
coerced or tortured by the police to give out any statement against her will and that she
                   was not wrongfully confined or illegally detained."
        54. Another Habeas Corpus, No. 1010 of 1995 was filed by the legal guardian of
    Vasanthi. She was examined in the Chamber and she did not complaint of any ill-
   treatment. She expressed her willingness not to go with the petitioner but to stay in
  "Udhavum Karangal", an institution looking after the persons who are unable to look
                                   after themselves.
       55. The detenus also filed Habeas Corpus Petition Nos. 623 and 624 of 1995.
They were also examined in the Chambers and there was no complaint of coercion or ill-
                                     treatment.
        56. Another Habeas Corpus Petition No. 1688 of 1995 was filed by Devyani DW-
 32 mother of PWs. 7, 8 and 10. The detenus were produced before the Court escorted
    by two women police from Ambattur Police Station who had nothing to do with the
  investigating agency in the crime against A-1. No complaint of torture or coercion has
 been made to the Hon'ble Judge on being questioned. On the contrary, the victim girls
   stated that thir mother (DW-32) had sent a letter dated 5.4.1995 mentioning that A-1
 Swami Pramananda would give them all help in marriage to suitable bridegrooms and
    pay to each one of them Rs. 2 Lakh in dowry. On being questioned by the Hon'ble
Judges DW-32 admitted to have sent the said letter to her daughters. This would clearly
   show that even at the belated stage an attempt was made to lure the prosecutrix by
   offering money and marriages. They were examined on the 21st day of December,
        1995. No complaint of torture or coercion was made to the Hon'ble Judges.
          57. Reverting aback to the statement of PW-14 Aruljothi, in which she admitted
that they had started disclosing the facts after the police beat them has to be considered
 in the light of the statement by P.W-14 under Section 164, Cr.P.C. This is what she has
                                          stated:-
           "Balan came in search of me at about 12 midnight and took me stating that
 Premananda Swami is calling me. After letting me inside Premananda's room, he went
   away locking the door. On that day also Premananda Swami compelled me to have
    sexual intercourse. This happened five days prior to his arrest. While Premananda
  Swami was arrested, police also took us to the Pudukkottai Police Station in a jeep. In
  the police station, we were enquired about the character of Premannda Swami. Since
Premananda had already kept us under threat, myself and others did not reveal anything
to the police. After the police beat us, myself and other girls informed that we were raped
 by Premananda. Only at that time I came to know that Premananda Swami was having
                             sexual relationship with other girls."
     It is in that context the High Court holds that so called beating could have meant to
shake-off their inhibition and fear, to make them free to say what they wanted to say. In
 the given facts and circumstances of this case, beating will mean to remove the fear
  psychosis and to come out with truth. We do not find any infirmity in the concurrent
                 findings recorded by both the Courts below on this Court.
                            CONSPIRACY CASTED AGAINST A-1.
          58. The allegation of conspiracy hatched by Mark Denis, Ambikanandan P.W-1
(Approver), Anandamohan P.W-30 and Latha P.W-16 is also to be noted to be rejected.
   It is admitted that P.W-3 Suresh Kumari along with Latha P.W16 ran away from the
Ashram on 31.10.1994. Till 15.11.1994, no complaint was lodged. On 15.11.1994, DW-
  32 the mother of P.W-3 lodged a complaint with the Viralimalai police station, a crime
No. 1181 of 1994 was registered under Section 363, IPC. While police was investigating
     that case PW.-3 lodged a complaint (Ex. P-25) as already noted and a crime No.
 1183/94 was registered on 17.11.1994 under Sections 142 and 376. By an order dated
19.11.1994 passed by the DGP the case was handed over to C.B.C.I.D. and C.B.C.I.D.
came into picture on 19.11.1994. Therefore, the allegation that the victim girls were with
 C.B.C.I.D right from 1.11.1994. is belied by the documents. The theory of conspiracy
hatched by Mark Denis, PW-1, Anandamohan, P.W-30 and Latha PW-16 against A-1 is,
                                therefore, demolished.
                                          D.N.A. TEST
       59. Dr. Lalji Singh, Deputy Director, C.C.M.B. Hyderabad, was examined as P.W-
    59. Dr. Lalji Singh is working as the Deputy Director at the Centre for Cellular and
 Molecular Biology at Hyderabad. This Centre is on the constituent Laboratories of the
   Council of Scientific and Industrial Research under the Department of Science and
Techonology, Government of India. Dr. Lalji Singh initially joined the Centre as Scientist
 E-II and was subsequently promoted as Scientist-F (Deputy Director) from 1992. He is
  B.Sc., M.Sc. and Ph.D. qualified from Banaras Hindu University, having obtained his
 doctorate in the year 1971. He had worked in the Calcutta University as a Pool Officer
    from 1971 to 1974. He was awarded Commonwealth Fellowship to go the United
Kingdom and he was working in the Institute of Animal Genetics, University of Edinburg
 from 1974 to 1987. He came to India and joined the C.C.M.B. Hyderabad on 3.6.1987
   According to Dr. Lalji Singh, he had published 57 scientific papers in internationally
 reputed journals. He was awarded the Banaras Hindu University Gold Medal in 1966,
 the Science Academy medal for Young Scientists for the year 1974 and various other
  awards like the C.S.I.R. Technology Award for the year 1992 for Biological Sciences,
Professor S.P. Roy Chaudhuri 75th Birthday Lecture award for the year 1994. Professor
 Viswanathan memorial Lecture award for the year 1995, VASVIK Research Award for
   Biological Sciences and Technology for the year 1992 and the Ranbaxy Research
Award in the field of Basic Medical Sciences for the year 1994. He is the elected Fellow
 of the Indian Academy of Science since1989, Fellow of National Academy of Science
since 1991 and fellow of Indian National Science Academy elected in 1993. He is also a
    member of various other organizations like the Indian Society for Cell Biology etc.
  According to him he had given opinion in 96 cases and has also given evidence in 5
        cases in various Courts, including the Rajiv Gandh is Assassination case.
        60. He stated that after the detailed examination, the result was submitted vide
             Ex.P.185. The operative portion of the Report is as follows :-
        "When D.N.A. Profiles in track 3 (Premananda) was compared with that of track 2
(tissue from the foetus) and tract 1 (Aruljothi) it is seen that even band present in track 2
is fully accounted for either being inherited from the mother (track 1) or from the alleged
  father (track 3). The alleged father Premananda (source of Exhibit A) and the mother
    Aruljothi (Source Exhibit C) are, therefore, the biological parents of the dead foetus
                                    (suorce of Exhibit B)."
           61. Dr. Lalji Singh was subjected to lengthy cross-examination. He has
categorically stated that if really there is any contamination, it would result only in non-
 matching of bands. He has also stated that multilocous/single locus probe have been
                     carried out throughout the world for DNA test.
         62. Regarding Data Base and contamination Dr. Lalji has stated in cross-
                                 examination as under:-
        "As far as paternity is concerned, the paternity of the child is determined by
   identifying which are the bands of maternal and which are paternal. Therefore,
comparison of DNA fingerprinting of the child with the mother will identify which are the
 bands maternally inherited. Elimination of these bands will leave those bands inherited
       from the childs to father, the paternally specific bands. If the alleged father's
 fingerprinting pattern contains all of these bands, then he is the true biological father of
that child and paternity is confirmed. The article published by a Laboratory-CELL MARK,
                                  United States is Ex. D.42."
       63. The witness further clarified that a laboratory error can produce mismatch but
                            it cannot produce a proper match.
      64. The witness further clarified that when the sample is taken in sterile container
following the instructions given by the CCMB scrupulously there is no possibility of any
                              bacterial or any other infection.
       65. The witness further stated that the contamination never results into proper
   match. It can give rise to exclusion not to positive inclusion. The witness in cross-
                     examination has specifically stated as under :-
      "According to me, for paternity test, large scale population Data Base was neither
 required not even today. When the samples of the parents are not available and when
one has to establish the identity of the child based on probability only, then Data Base is
  required. In short, where both the parents are available, no data base is required for
                                      paternity testing."
       66. Both the trial Court and the High Court have appreciated the evidence of Dr.
                           Lalji Singh and in our view correctly.
       67. On behalf of A-1, DW-49 Dr. Wilson J. Wall has been examined and the High
               Court has rejected his evidence on the following grounds:-
                                (1) He is a private consultant.
         (2) He was requested to undertake a review of the evidence of Dr. Lalji Singh
                                       P.W-59.
       (3) He had held conferences with the defence counsel both in London and India.
         (4) He was present in the Court on 28.10.1996 and 29.10.1996 when Dr. Lalji
               Singh (PW.59) was cross-examined by the counsel for A-1.
     (5) He says "I have been instructed by the counsel for the accused to inform this
Honourable Court that if the prosecution wants to repeat this experiment, the accused is
                         prepared to pay the cost of the same."
          (6) He admit that the test was conducted at the laboratory called University
Diagnostics Laboratory, London and that he had a working arrangement with the above
said laboratory, but they are professionally independent. He further says, "I was present
 in this Court instructing the defence lawyer for cross-examination P.W-59. I am not a
           scientist attached to the University Diagnostics Laboratory, London.
        We are of the view that these are good reasons to have rejected his testimony.
                                   DEFENCE WITNESSES
        68. 49 DWs were examined on behalf of the accused, D.W.8 Nirmal Mataji was
 charge-sheet witness No. 29, D.W.11 Uma Devi Mataji was charge-sheet witness No.
  28, D.W. 14 Amarkumar was charge-sheet witness No. 37, D.W-20 Rajendran was
charge-sheet witness No. 45, D.W.31 Lilis Mary was charge-sheet witness No. 20, D.W-
 10 Vijaykumari was charge-sheet witness No.11 D.W.33 Valaimmal was charge-sheet
    witness No.17, D.W.12, D.W13 Lakshmi Devi was charge-sheet No. 13, D.W.16
Balamurugan was charge-sheet witness No. 40, D.W.27 Parmeshwari was chargesheet
    witness No. 30, D.W. 29 Kandan was charge-sheet witness No. 39 and D.W. 34
                 Damayanti Mataji was charge-sheet witness No. 25.
        69. Both the Courts have rejected their testimonies on the ground that they are
 blind followers of Swami and their testimony also do not inspire confidence. We have
                     been taken through the entire evidence of DWs.
        70. DWs. 10, 31, 33 have been declared perjury by the trial Court. By way of
  reference D.W-41 Nithya Devi Mathaji had stated "Mark Dennis also had personal
problem. Mark Dennis was taking treatment with a psychiatrist for his mental problem".
 This was nobody's case. It is false even to the knowledge of the maker. No credence
can be placed on such evidence. Two Courts have concurrently and rightly rejected the
                   testimony of DWs as not inspiring confidence.
                                     MURDER OF RAVI:
      71. Ravi was brought to the Ashram on 22.7.1990. He was allegedly beaten up by
     the accused on 10.4.1991 and confined in a Kudil without food and water and
 succumbed to injuries on 17.4.1991. The reason for beating and confining to death of
the deceased Ravi was that he was shouting in the Ashram that A-1 is having sex with
Ashram girls. This had infuriated A-1 to take this extreme step with the help of A-2, A-4,
                                      A-6 and A-7.
        72. The submission of Mr. Ram Jethmalani that during the period Ravi stayed in
  the Ashram there was no allegation of rape against A-1, is factually incorrect. P.W-13
Vanitha stated that in the year 1991 in the night at about 1.00 a.m. A-1 had sex with her.
   P.W-14 also stated that in the year 1991 when she was cooking in the kitchen in the
 Dharamashala, A-1 forcibly pushed her in his room and had sex with her. P.W-5 Princy
also stated that in the year 1990 around 11 p.m. A-1 called her inside his room and had
forcibly sex with her. Again in 1991 before Ravi died, A-1 had forcibly sex with her in his
                                          room.
      73. The prosecution relied upon the eye-witnesses namely P.Ws.1, 3, 5, 8, 11, 16,
  17 and 18. From the evidence of the eye-witnesses it is clearly established that Ravi
          died of the injuries suffered by him. Following facts are established :
                           (1) Ravi died of the injuries suffered by him.
         (2) The death of Ravi was not reported either to the police or to the Revenue
                                      Authorities.
       (3) Ravi was confined in a room after the injuries he sustained without food and
                                water for several days.
            (4) The skeletal remains were found to be that of the deceased Ravi.
                       From the evidence on record, it is also clear that :
                        (1) Ravi died and he was buried on 17.4.1991.
        (2) Before burial, Ravi was given a bath, his face was shaved and he was clad
                          with a full sleeved sweater and a dhoti.
      (3) The death of Ravi was not informed to the police. No information or complaint
      was given either to the Village Administrative Officer or any revenue officer.
               (4) No prior treatment was given to the deceased before his death.
      From the statement of P.Ws. aforesaid, the prosecution has clearly established its
     case that Ravi died out of the injuries caused by A-1 and A-2 and subsequent
                  confinement and starvation accelerated his death.
       74. The defence case was that Ravi died on account of self-inflicted injuries and it
    was a natural death. The homicidal death of Ravi due to beating and starvation is
corroborated by medical evidence of P.W.46 and Serology Report. The evidence of eye-
   witnesses disclosed that when Ravi exposed the misdeeds of A-1 that A-1 is raping
 Ashram girls, A-1 ordered that Ravi be brought and Ravi was brought by A-4, A-6, A-7
near A-1's Kudil and Ravi was tied to the pole. P.W-1 (approver), A-2 and A-5 were also
 present. A-1 had beaten Ravi with Casuarina stick on the left lower and upper limb and
Ravi sustained bleeding injuries. When the knot was untied and Ravi had fallen down, A-
1 kicked him on the back and A-2 on the chest. A-1 directed P.W-1, A-4 to A-7 to confine
 Ravi in Kavadi Kudil. A-2 had taken away the key of Kudil after confining Ravi in Kavadi
    Kudil. Ravi was provided neither food or water nor medical assistance and died of
  starvation. The ocular evidence of PWs is consistent with the medical opinion of P.W.
                                           46.
        75. We have been taken through the entire evidence of P.Ws and D.Ws. We do
not find any infirmity or perversity either in trial Court or High Court judgment in recording
              the concurrent findings by appreciating the evidence adduced.
      76. Mr. Ram Jethmalani learned senior counsel, referred to the evidence of P.W15
Malligadevi when she stated that A-1 had locked Ravi like this and he had asked to give
food also. It is to be noted that regarding the murder of Ravi her evidence was not relied
upon by the prosecution. As already noted, the prosecution relied upon the testimony of
                 P.Ws. 1, 3, 5, 8, 11, 16, 17 and 18 which proved otherwise.
        77. Regarding the sentence, the trial Court resorted to Section 31, Cr.P.C. and
  ordered the sentence to run consecutively, subject to proviso (a) of the said section.
          78. The contention of Mr. Jethmalani that the term 'imprisonment' enjoined in
   Section 31, Cr.P.C. does not include imprisonment for life is unacceptable. The term
 'imprisonment'' is not defined under the Code of Criminal Procedure. Section 31 of the
 Code falls under Chapter III of the Code which deals with power of High Court to pass
   any sentence authorized by law. Similarly, Sessions Judge and Additional Sessions
  Judge may pass any sentence authorised by law, except the sentence of death which
  shall be subject to confirmation by High Court. In our opinion the term 'imprisonment''
                    would include the sentence of imprisonment for life.
           79. In the aforesaid facts and circumstances, we see no infirmity in the well
  merited findings concurrently recorded by the two Courts below, which do not warrant
                 our interference. The appeals are, accordingly dismissed.
       80. Having regard to the amplitude of the gravity of the offence, perpetrated in an
 organized and systematic manner, the nature of the offence and its deleterious effects
  not only against the victims, but the civilized society at large, needs to be curbed by a
strong judicial hand. We are inclined to confirm the sentence and conviction as recorded
by the trial Court and confirmed by the High Court. The order was confirmed by the High
   Court. The order of the trial Court that any remission of sentence or amnesty on any
 special occasions announced or to be announced be either by the Central or the State
   Government shall not apply to the sentence and imprisonment imposed on all the
                            accused is also maintained.
                                                                 Appeals dismissed.




                                   [2005 (2) T.N.L.R (Mad)]
                                   MADRAS HIGH COURT
                                     (Madurai-bench)
                                           Before:
                           P.D. Dinakaran and S. Ashok Kumar, JJ.


           Shanmugavelu and others                                        -Appellants
                                            Versus
          State                                                     -Respondent
              [Criminal Appeal No. 1040 of 2001, decided on 31st March, 2005]
            Indian Penal Code 1860-Section 302 r/w Section 34-Murder-Conviction and
      sentence-Legality of-Circumstantial evidence-Accused persons alleged to have
indiscriminately cut the deceased with aruval, causing multiple injuries, which caused the
 instantaneous death-Accused was seen running with blood stained aruval immediately
     after the occurrence-Accused were identified in identification parade-Evidence of
 witnesses corroborated by medical evidence-No reason to disbelive the evidence of the
 ocular evidence of the eye-witnesses-Recovery of weapons and confession of accused
 proves the guilt of accused beyond reasonable doubt-Conviction and sentence awarded
         by Court below not illegal.                                  (Paras 5 to 9)
            Counsel:-Mr. S. Ramalingam (Amicus Curiae) for the appellants; Mr. K.
            Radhakrishnan, Additional Public Prosecutor, for the respondent.

                                         JUDGMENT
       S. Ashok Kumar, J.,-The appellants were convicted by the III Additional Sessions
 Judge, Tirunelveli to undergo imprisonment for life for offences under Section 302, IPC
read with Section 34, IPC and to pay a fine of Rs. 8,000/- each, in default to undergo two
 years rigorous imprisonment and for offences under Section 404, IPC read with Section
 34, IPC to undergo one year's rigorous imprisonment and to pay a fine of Rs. 1,000/- in
default to undergo six months' rigorous imprisonment. Aggrieved over the said judgment
                   and conviction the appellants preferred this appeal.
                   2. The brief facts of the prosecution case are as follows:-
         (a) A-1 belongs to Manjankolam village. A-2, A-3 and one Anandan (since
 deceased) belongs to C.N. Village in Tirunelveli Junction and they are friends of A-1.
P.W-4 Kasiammal, wife of the deceased belongs to Vellur, near Srivaikuntam.        P.W-
 1, Sahadevan is a resident of Manjankolam. P.W-3 is also a resident of Manjankolam.
P.W-2 Natarajan is residing at Ervadi Lakshminarasingapuram. P.W-5 Peer Mohammed
     is living at Ervadi and is having a vegetable shop in the main Bazaar where the
  deceased Murugan very often used to visit. P.W-6 is a retired Village Administrative
Officer, who is residing at Ervadi. P.W-7 Khader is an agriculturist and he is working as a
              Lightman at Noor Complex. P.Ws-8 and 9 also belong to Ervadi.
             (b) The motive for the occurrence is said to be that about 15 days prior to
 3.9.1991, the deceased assaulted A-1 with chappals at Ervadi Bus Stop and at that time
A-1 threatened to kill him. Therefore, A-1 collected his friends A-2, A-3 and one Anandan
  (since deceased) and came to the place of occurrence which is the front portion of the
  Jamuna Vessel shop in Ervadi Bazaar and A-1 pulled and dragged the deceased to a
 place near Noor complex and A-3 caught hold of the deceased by holding his head and
  all the accused indiscriminately cut the deceased with aruval, causing multiple injuries
   which caused the instantaneous death and thereafter they have taken away about 71
  grams of gold chain which was worn by the deceased. The occurrence was witnessed
by P.W-1, P.W-2 and P.W-5. When the accused were running away from the scene via.,
 Nadar Street of Ervadi, P.W-3 questioned A-1 and A-1 told him that they have killed the
 deceased and thereafter he also ran away. Immediately P.W-1 went to Police Station at
9.00 p.m., and lodged Ex.P-1 complaint before P.W-20, Sub Inspector of Police. P.W-20
             recorded the statement and also got the statement attested by one
  Shanmugasundaram. Based on the said Ex.P-1 complaint, a case in Crime No. 241/91
 for offences under Section 302, IPC was registered and Ex.P-15 is the printed FIR. The
 original FIR and the complaint were sent to Judicial Magistrate and copies to the higher
 officials. P.W-20 also informed P.W-23 through Wireless about the occurrence. P.W-23,
Inspector of Police reached the Police Station at 10.00 p.m., and got the copy of FIR and
     took up investigation. At 10.15 p.m., he went to the place of occurrence and in the
   presence of P.W-6, Village Administrative Officer and Sudalaikannu, he prepared an
   observation Mahazar Ex.P-2. He also prepared a rough sketch Ex.P-16. He engaged
  P.W-8 to take photographs of the place of occurrence and the body. In the same night
         between 12.00 p.m., and 3.00 a.m., of 4.9.2001 morning in the presence of
  Panchayatdars P.W-23 conducted inquest on the body of the deceased and prepared
       Ex.P-17 inquest report. During inquest he examined witnesses P.Ws-1 to 3 and
    Muthulakshmi and recorded their statements. After inquest, he sent the body of the
   deceased to the Government Hospital, Nanguneri through P.W-22 for the purpose of
       autopsy along with a requisition Ex.P-9. On 4.9.1991 at 1.30 p.m., P.W-14, Dr.
    Andiappan conducted autopsy on the body of the deceased and found the following
                                           injuries:-
         "1. Deep cut wound on left fronto temporal region 15 cm x 6 cm x bone deep.
      2. An oblique deep cut-wound on fronto parietal extending the region in front of left
                            ear 20 cm x 4 cm x bone deep.
                        3. Left lobe ear severed in the middle region.
       4. Deep cut wound in front of left infra orbital region extending laterally 10 cm x 3
                                        cm x 3 cm.
      5. Lacerated wound in front of left ear in extensive area 10 cm x 6 cm x bone deep
       molar level upto premolar tooth chip of mandable bone seen on dissection.
      6. Deep cut wound along the lower border of chin to the angle of mandible 20 cm x
                            3 cm x bone deep on left side.
       7. Incised wound along the lower border of left lower 1p 6 cm x 2 cm x     2 cm.
      8. Deep cut wound in the middle of chin extending laterally to cheek 10 cm x 3 cm
                                    x bone deep.
                   9. Contusion 15 cm x 3 cm in the upper part of left arm.
       10. Incised wound just below left elbow 10 cm x 2 cm x 3 cm muscles exposed.
          11. Lacerated wound in the dorsal aspect of left wrist 5 cm x 4 cm x 2 cm.
               12. Lacerated wound in the middle and lateral part of left thigh.
                 13. Terminal Phalanx in left ring finger posteriorly severed.
       14. Lacerated wound in the middle Phalanx of left middle finger 2 cm x 1 cm x 1
                                         cm.
           15. Lacerated wound medial part of left index finger 2 cm x 1 cm x 1 cm.
                   16. Incised wound above right elbow 5 cm x 3 cm x 2 cm.
             17. Lacerated wound in left frontal region 10 cm x 3 cm x bone deep.
            18. Deep cut wound in right parietal region 12 cm x 3 cm x bone deep.
       19. Deep cut wound adjacent to injury No. 18 15 cm x 3 cm x bone deep fracture
                               right parietal bone seen.
          20. Deep cut wound on the right parietal region 10 cm x 3 cm x bone deep.
                     21. Abrasion on left hypochondrium 2 cm x 1/2 cm.
                 22. Contusion on upper lateral part of thigh 15 cm x 1/2 cm.
                  23. Incised wound on right upper arm 4 cm x 2 cm x 2 cm.
                       24. Abrasion on base of right thumb 2 cm x 1 cm.
                       25. Abrasion on right ring finger 1 cm x 1 cm."
      P.W-14 further gave opinion that the death would have occurred due to shock and
                   haemorhage as a result of the injures sustained.
         (c) P.W-23, Inspector of Police continued his investigation. On 4.9.1991 at 3.15
a.m., in the presence of the Village Administrative Officer, (P.W-6) Khader Meeran Sahib
  and Thyalayari, he seized M.O-7, blood stained watch pieces, M.O-8 series, broken
  glass pieces of the watch, M.O-9, white watch dial, M.O-10, black colour plastic ring,
  M.O-3, gold hook, M.O-13, Blood stained Thar road earth, M.O-2, gold dollar, M.O-11
  series a pair of slippers, M.O-12 series another pair of slippers, M.O-15, blood under
 cover of mahazar P-3. He also examined other witnesses. On 13.9.1991, he examined
                    P.W-14 Dr. Andiappan and recorded his statement.
        (d) On 14.9.1991 at about 3.30 p.m., P.W-23, Inspector of Police arrested A-3
     at Marudhakulam in the presence of P.W-9 and one Sivasubramanian and A-3
 volunteered to give a confession, admissible portion of which is Ex.P-4. In pursuance of
the said confession, on the same day, he took the Inspector of Police and witnesses to a
   Bridge near Vijayanarayanan Military Camp and produced M.O-18 series, 4 aruvals
 which were recovered under a cover of mahazar Ex.P-5. On 15.9.1991 at 2.00 p.m., he
     arrested A-1 in the presence of P.W-10 Muthiah and one Sudalaikannu and A-1
volunteered to give a confession and admissible portion of which is Ex.P-6. On the same
 day at 4.00 p.m., he took the Police party and the above witnesses to Meenakshipuram
  and identified Anandammal, W/o. Rajendran and produced M.O-19 dhoti and M.O-20
shirt which were seized under a cover of mahazar Ex.P-7. On the same day, A-1 led the
 Police party to Mudalaikulam, where he identified one Gununathan from whom M.O-1,
     gold chain was recovered and seized under a cover of mahazar Ex.P-8. P.W-23
examined the mahazar witnesses and recorded their statements. He also examined one
  Ayyappan, an employee of Anthoniar Cycle Mart from where A-1 has hired cycle on
3.9.1991 and also got the ledger of the cycle shop which is Ex.P-18. The relevant entry
 made in Ex.P-18 is Ex.P-19. On 16.9.1991 he sent a requisition Ex.P-20 to the Judicial
      Magistrate to conduct identification parade for A-2, A-3 and deceased accused
Anandan. He also sent a requisition Ex.P-21 to record the confession statement of A-3.
  On 19.9.1991 he sent Ex.P-11 requisition to the Judicial Magistrate to send the case
                             properties for chemical analysis.
         (e) P.W-24, Judicial Magistrate, Valliyoor, who received Ex.P-21 requisition from
the Inspector of Police, sent a memo to produce A-3 before him and in pursuance of the
  said memo, A-3 was produced before him on 26.9.1991 at 2.00 p.m., He observed the
    usual formalities of sending all the people outside the Court, locking the doors and
  warning the accused that it is not necessary for him to give a confession and also that
 the confession which he may give, may be used against him in the subsequent trial and
by giving such confession he will not be released from the case and he sent him back to
Jail to think over about his warnings. On the next date i.e., on 27.9.1991.. at 2.30 p.m. A-
   3 was produced before the same Magistrate and observing the same procedure and
   giving sufficient warning to the accused, he recorded the confession statement of the
 accused under Section 164, Cr.P.C. The proceedings and the confession statement are
    Ex.P-22. He also received Ex.P-20 requisition of the Inspector of Police to conduct
Identification Parade along with the order of the Chief Judicial Magistrate. On 30.9.1991,
  he conducted Identification Parade in the Central Prison of Tirunelveli observing all the
necessary formalities. He asked P.Ws-1, 2 and one Shanmugasundaram to identify A-2,
    A-3 and the deceased Anandan and all the three witnesses identified the accused
  correctly. The proceedings of the Identification Parade conducted by P.W-24 are Ex.P-
                                             23.
         (f) P.W-25, Inspector of Police, who took up further investigation, examined the
  Sub Inspector of Police and also witnesses P.Ws-1, 2 and Shanmugasundaram and
  after completing investigation on 22.11.1991, laid final report against the accused for
                 offences under Sections 302 and 404 read with 34, IPC.
        3. Before the trial Court, P.Ws-1 to 25 were examined on behalf of the prosecution
    and Exs.P-1 to P-23 and M.Os-1 to 24 were marked. On behalf of the accused no
     witness was examined and no document was produced. When the accused were
  questioned under Section 313, Cr.P.C. with regard to the incriminating circumstances
appearing in the evidence of the prosecution witnesses, all the accused denied the same
as false and not known. A-3 has also filed a written statement wherein he has mentioned
    that the Police took custody of his wife and gave her Rs. 2,000/- for expenses and
 threatened her to induce him to give a confession before the Magistrate and due to the
inducement and out of fear that the Police may implicate his wife in a false case, he has
                 made the false confession before the Judicial Magistrate.
      4. On a careful consideration of the oral and documentary evidence the learned III
 Additional District and Sessions Judge, Tirunelveli has convicted all the accused to for
the offence under Section 302, IPC read with Section 34, IPC to undergo imprisonment
 for life and to pay a fine of Rs. 8,000/- in default to undergo rigorous imprisonment for
   two years and for the offence under Section 404, IPC read with Section 34, IPC to
     undergo rigorous imprisonment for one year and in default to undergo rigorous
    imprisonment for 6 months. Aggrieved over the said judgment and conviction the
                        accused have preferred the present appeal.
         5. Learned counsel appearing for the appellants would contend that A-2 and A-3
  are not residents of the place of occurrence and they are implicated only on surmises,
that A-3 has been induced by the Police to give confession statement on inducement by
   the Police and the Identification Parade conducted by the learned Judicial Magistrate
should not be relied upon since the accused were already shown to the witnesses before
such Parade. Per contra, the learned Government Advocate would contend that P.Ws-1,
 2 and 5 and other witnesses have no enmity to implicate these accused persons falsely
 in this case and the properties recovered in pursuance of the said confession statement
       by the accused is a clinching circumstantial evidence to fasten the guilt on the
                                     appellants-accused.
        6. The time of occurrence and place of occurrence are not in dispute. There was
   enmity between A-1 and the deceased because the deceased has beaten him in the
    Bazaar with chappals about 15 days prior to the occurrence. P.Ws-1 and 2 are eye-
   witnesses who have given cogent and clear evidence about the involvement of these
three accused along with one Anandan (since deceased). P.W-3 has deposed that after
   the occurrence when the accused were running via Nadar Street, he questioned A-1,
    who stated that he has murdered his enemy, thereafter he has seen the body of the
     deceased. P.W-5 who is a Muslim, who owns a vegetable shop near the place of
 occurrence in the main Bazaar has also deposed that A-1 caught hold of the deceased
and pulled him near Noor Complex and pushed him down and three other persons came
 with aruvals and all of them indiscriminately cut the deceased and he has also deposed
that he knew A-1, because he very often used to visit Ervadi. Thus, there is evidence of
     P.W-1, 2 and 5 who figured as eye-witnesses and there is no enmity with them to
  implicate the accused falsely. P.W-3 has seen the accused running with bloodstained
    aruval immediately after the occurrence. We do not find any reason to disbelive the
                  evidence of the ocular evidence of the eye-witnesses.
         7. A-2 and A-3 do not belong to the place of village where the occurrence took
 place. However, at the request of the Inspector of Police and on the orders of the Chief
  Judicial Magistrate, the Judicial Magistrate, Valiyoor has conducted an Identification
 Parade on 30.9.1991 in which P.Ws-1, 2 and one Shanmugasundaram have identified
the accused correctly and the Identification Parade proceedings are Ex.P-23. One of the
  accused has stated that already the accused were shown to the witnesses. This is a
   usual defence where every accused would say like this and there is no evidence for
  such plea. A-2, A-3 and the deceased accused Anandan were identified correctly by
                          P.Ws- 1, 2 and Shanmugasundaram.
            8. Another important circumstantial evidence is that A-3 was arrested on
 14.9.1991 and in pursuance of Ex.P-4 confession, he has produced 4 aruvals, M.O-18
series used by all the accused which were recovered under a cover of mahazar Ex.P-5.
On 15.9.1991 at 2.00 p.m., P.W-23, Inspector of Police arrested A-1 and he volunteered
  to give a confession, admissible portion of which is Ex.P-6. On the same day at 4.00
p.m., A-1 took the Police party and witnesses to Meenakshipuram and produced M.O-19
  dhoti and M.O-20 shirt which were seized under a cover of mahazar Ex.P-7. On the
       same day, A-1 led the Police party to Mudalaikulam, where he identified one
Gununathan from whom M.O-1, gold chain was recovered and seized under a cover of
  mahzar Ex.P-8. When M.O-18 series, 4 aruvals which were seized under a cover of
Mahazar Ex.P-5 in pursuance of Ex.P-4 confession of A-3, and MOs. 19 and 20 namely
   dhoti and shirt which was seized under a cover of Mahazar Ex.P-7, in pursuance of
Ex.P-6, confession of A-1 along with the case properties like the bloodstained earth and
dress materials worn by the deceased were sent for chemical analysis as per Ex.P-13,
 all the items were found to contain human blood and Ex.P-14 serologist's report would
confirm that all the aruvals contain human B group blood which matched with the blood
  group of the deceased as found from the dhoti and shirt worn by the deceased. This
 circumstantial evidence clearly proves the involvement of all the accused in the crime.
Further, A-3 has also given a confession statement which was recorded under Section
164, Cr.P.C., by P.W-24, Judicial Magistrate, wherein he has also admitted the offence.
     9. The ocular evidence of eye-witnesses PWs-1, 2, 5 and part eye-witnesses P.W-
3, supported by medical evidence and recovery of weapons and also the confession of
A-3 clearly proves the guilt of the accused beyond any reasonable doubt and therefore
we do not see any reason to interfere with the judgment and conviction of the accused.
    Hence the appeal deserves to be dismissed and the same is hereby dismissed.
                                       Appeal dismissed.


                                 [2005 (2) T.N.L.R. (Mad)]
                                  MADRAS HIGH COURT
                                          Before:
                           N. Dhinakar and M. Chockalingam, JJ.


           Kozhi @ Kasi Murugan and others                             -Appellants
                                        Versus
      State rep by Inspector of Police                                    -Respondents


        [Criminal Appeal Nos. 502, 563 and 633 of 1998, decided on 21st June, 2005]
         Indian Penal Code, 1860-Sections 147, 148, 452 and 302-Offence thereunder-
    Conviction and sentence-Common intention-Deceased was attacked by accused
 persons with knife indiscriminately-FIR was lodged promptly-Material objects recovered
from place of occurrence, from the accused and from the dead body-Defence witnesses
  were not examined-Available evidence showing common intention and all armed with
  knife and sticks respectively and instantaneous death has been brought forth-Offence
converted into one of common intention-Liable to be convicted under Section 302 r/w 34,
 IPC- Judgment of conviction and sentence passed by lower Court sustainable.-Appeal
                                dismissed with modification.
                                   (Paras 16, 17, 18, 19 & 20)
      Counsel:-Mr. R. Ragupathy, Senior Counsel, for the appellants in C.A.No. 502/98;
   Mr. R. Asokan, Senior Counsel for M/s. Gita Asokan, for the appellants in C.A.No.
            563/98; Mr. P. Kumaresan, for the appellant in C.A.No. 633/98.


                                         JUDGMENT
      M. Chockalingam, J.,-This judgment shall govern these three appeals in C.A.Nos.
                             502, 563 and 633 of 1998.
      2. C.A.No. 502/98 is filed by A-3 and A-4 and C.A.No. 563/98 is filed by A-1 and
        A-5, while C.A.No. 633/98 is filed by A-2, in a case of murder, where the
                       appellants/accused stood charged as below:
              (i) A-1, A-3, A-4 and A-5 were charged under Section 147 of I.P.C.
                         (ii) A-2 was charged under Section 148 of I.P.C.
                         (iii) A-3 was charged under Section 449 of I.P.C.
      (iv) A-1, A-2, A-4 and A-5 were charged under Section 449 read with 149 of I.P.C.
              (v) A-1, A-2, A-4 and A-5 were charged under Section 302 of I.P.C.
                 (vi) A-3 was charged under Section 302 read with 149 of I.P.C.
        3. On trial, the accused were found guilty as per the first charge, second charge,
  fifth charge and sixth charge respectively, and a fine of Rs. 500/- along with default
 sentence was imposed for the first charge. As regards the fifth and sixth charges, life
     imprisonment was awarded. A fine of Rs. 750/- along with default sentence was
awarded for the second charge, while A-3 in respect of the third charge and A-1, A-2, A-
         4 and A-5 as regards the fourth charge were acquitted by the trial Judge.
        4. The short facts necessary for the disposal of this appeal can be stated thus:
       (a) The first accused and P.W-2 Jayamurugan, were running an Ice Factory called
  Jaya Ice Company in Pammal. While running so, they had a quarrel. Then, the same
   business was put an end by way of a panchayat, where it was decided that the first
accused was liable to pay Rs. 1,000/- to P.W-2; but, he paid only Rs. 300/-. The rest was
  not paid. There was a demand made, due to which enmity arose between the parties.
 After departing from the business, P.W-2 and P.W-4. Sundarapandy had a partnership
business called Vijaya Ice Factory, where the deceased Sudhakar was taken for service.
P.W-7 Thangaraj Nadar, was also doing retail business from taking ice there. Whenever
 there was a demand made for the payment of the rest of the amount referred to above,
  the enmity was continuing. P.W-1 Velkumar, was having a plaintain thope, situated in
   Door No.1, Nallathambi Street. P.Ws-2 and 4 during night hours, used to stay there.
While so, on 9.3.1994, at about 9.30 p.m., they were all chatting. The same was noticed
  by the second accused, and after that, the second accused went away. When P.Ws-1
     and 2 and the deceased were all lying inside the shop, at about 1.00 a.m., it was
    knocked. Then, P.W-1 switched on the light and opened the shop, when A-1 and
another accused got inside and dragged the deceased. At that time, A-1 was armed with
   knife, while the other accused 5 in number, out of whom, one subsequently split up,
  were armed with sticks. Immediately, the deceased was attacked by the first accused
  with knife on his head, while the others attacked him with sticks indiscriminately. The
   same was witnessed by P.Ws-1, 2 and 3 also. P.W-5 who was standing nearby also
   witnessed the occurrence. Immediately, P.Ws-1 and 2 went to Sankar Nagar Police
   Station. P.W-1 gave a report Ex.P-1 to P.W-13 Thangeswaran the Sub Inspector of
  Police, attached to the said Police Station. On the strength of Ex.P-1 report, P.W-13
 registered a case in Crime No. 1167 of 1994 under Sections 147, 148, 452 and 302 of
 I.P.C. The Printed First Information Report Ex.P-10 was despatched to the concerned
                                          Court.
       (b) The accused stopped the vehicle namely a mini lorry bearing Registration No.
TCN 9459, and took the body to the Government Hospital, Chrompet, where P.W-11 Dr.
  Pushpavalli, was present. It was informed to the Medical Officer that he fell down from
 the lorry, and he sustained the injuries. So saying, they went away. The said statement
was recorded by the Medical Officer in Ex.P-6, and she gave an information to Chrompet
Police Station. The information was received by P.W-8 Rajendran, the Head Constable.
 Then, it was informed to Pallavaram Police Station through a message. The officials of
  Pallavaram Police Station, who received the same, found it to be within Sankar Nagar
    Police Station, and they also gave an information to the concerned Police Station.
           (c) On receipt of the copy of the F.I.R., P.W-14 Thanigaivel, the Inspector of
 Police, took up the case for investigation, proceeded to the scene of occurrence, made
 an inspection in the presence of witnesses and prepared Ex.P-3 observation mahazar
 and Ex.P-11 rough sketch. He recovered M.O-6 bloodstained earth, and M.O-7 sample
 earth, from the place of occurrence, under a mahazar in the presence of witnesses. He
conducted inquest on the dead body of Sudhakar in the presence of panchayatdars and
witnesses at about 10.00 a.m. and prepared Ex.P-13 inquest report. Following the same,
the body was sent to the Government Hospital for conducting postmortem, along with a
                                          requisition.
      (d) On receipt of the requisition, P.W-12 Dr. Saravanabhava, Assistant Surgeon,
attached to the Government Hospital, Tambaram, conducted autopsy on the dead body
                      of Sudhakar and noticed the following injuries.
                                         "External Exam.
              (1) An abrasion about 4 cm x 1/4 cm present on the (Lt) lower arm.
                  (2) An abrasion about 1/2 x 1/2 present in the (Lt) shoulder.
               (3) An abrasion about 1/4 x 1/4 present over the back of the hip.
                                              Head:
       (1) A cut injury about 4 cm x 1 cm x bone deep present over the (Rt) side of the
                                      frontal bone.
             (2) An abrasion about 1 cm x 1 cm present behind the (Lt) Ear lobe.
       (3) A contusion about 1 cm x 1 cm present over the (Lt) temple region (above the
                                     (Lt) Ear lobe).
                                        On Dissection:
      Skull: Extra Dural Haemotoma present. There is a small hole over the Dura matter
thro' which blood oozing out subdural Haemotoma over the (Lt) hemisphere Fracture of
                               the anterior cranial fossa."
        The Doctor has issued Ex.P-9 postmortem certificate and has opined that the
          deceased died out of shock and haemorrhage due to head injury.
         (e) During investigation, A-1 and A-2 were arrested on 12.3.1994. A-1 gave a
confessional statement, which was recorded by the Investigating Officer. The admissible
part was marked as Ex.P-15. Following the same, M.O-1 knife and M.Os-13 to 17 sticks,
  were produced by him, and they were recovered under different mahazars. All these
material objects recovered from the place of occurrence, from the accused and from the
 dead body, were despatched to the Court along with a requisition for sending them for
 chemical analysis. Accordingly, they were subjected to. The Chemical Analyst's report
Ex.P-22 and the Serologist's report Ex.P-23 were received and placed before the Court.
 On completion of the investigation, the final report was filed by the Investigating Officer
before the concerned Court. Then, the case was committed to the Court of Session. The
        above charges were framed against the accused, the appellants herein.
       5. In order to substantiate the charges levelled against the appellants/accused, 14
 witnesses were marched by the prosecution, and the prosecution relied on 24 exhibits
and 17 material objects. On completion of the evidence on the side of the prosecution,
all the accused were questioned under Section 313 of the Code of Criminal Procedure
      as to the incriminating circumstances found in the evidence of the prosecution
witnesses, and they flatly denied the same as false; but, they would further add that the
deceased fell down from a lorry, and he died due to the injuries sustained, and it was a
    false case foisted against them by the prosecution due to the enmity between the
parties. No defence witnesses were examined. After hearing both sides, the trial Court
was of the opinion that the prosecution has proved the case in respect of the charges 1,
 2, 5 and 6 and awarded the punishment as mentioned above. The aggrieved accused
                  have brought forth these three appeals before this Court.
        6. The learned senior counsel appearing for the appellants made the following
                                     submission:
         It was a case one foisted against the appellants/accused. It was a case where
 they have brought the defence version that the deceased, who was working in the shop
  of P.W-1, fell down at the time, when he was loading in a mini lorry, sustained injuries
and died. The injuries sustained by the deceased at the time of the incident and noted by
  the doctor in the postmortem certificate, would clearly indicate that those injuries were
   possible and probable by falling down from a lorry, and thus, the case of the defence
was more probable. While there are two probabilities, one in favour of the appellants will
draw the attention of the Court of Sessions to give a judgment of acquittal. In the instant
 case, the lower Court should have considered the same and acquitted the accused, but
                                        not done so.
        7. It was further added by the learned senior counsel that the prosecution wanted
   to rely on the evidence of P.Ws-1, 2, 3, 4 and 5; that so far as the evidence of P.W-3
  was concerned, he had turned hostile, and hence, no useful purpose could be served;
  that so far as P.W-4 is concerned, from his evidence, it could be seen that he came to
  the place of occurrence only subsequently; that as regards P.W-5, his evidence could
      not be believed, since it does not show the nexus of the accused to the crime in
 question, and then, what was available for the prosecution was the evidence of P.Ws-1
 and 2; that so far as P.Ws-1 and 2 are concerned, P.W-1 was shown to be a very close
   friend of the deceased, and P.W-2 was the brother-in-law of the deceased; that their
testimony are interested one; that if the test of careful scrutiny is applied, then it could be
   well seen that their evidence should not have been relied on by the lower Court; that
apart from that, the prosecution came with the motive; and that not only the motive was
         flimsy, but also the motive has not been proved before the trial Court.
         8. It is the further submission of the learned senior counsel that the occurrence
has taken place in the midnight and hence, it could not have been seen by anybody; that
so far as P.Ws-4 and 5 are concerned, no identification parade was conducted; that the
 evidence of P.Ws-1 and 2 cannot be stated to be worthy to sustain a case like this; that
though the occurrence has taken place at 1.00 a.m., the F.I.R. has reached the Court at
about 1315 hours, despite the fact that the Court is also situated within the city limit; that
      there is undue delay noticed, and the same remained unexplained, and in such
  circumstances, the lower Court should have rejected the prosecution case and should
                                 have acquitted the accused.
        9. The learned senior counsel would add that A-3 was having his shop opposite to
that of P.W-1, and at that time, he was doing a chicken shop also; that he had no motive
   or intention to share; that he also did not have any common object; that there was all
  possibility of going over there to see the occurrence only; but, in the instant case, A-3
  has been unnecessarily roped in; that there was no evidence to show his complicity in
   the offence, and hence, he should have been acquitted; and that so far as the other
 accused namely A-4, was concerned, he has also been roped in and should have been
                                           acquitted.
        10. The learned senior counsel would add that according to the prosecution, the
dead body was taken in a mini lorry to the hospital; but, neither the driver nor the cleaner
of the lorry was examined; that the same would be fatal to the prosecution case; that the
   lower Court without considering all the contentions put forth, has found the accused
      guilty, and hence, they were entitled for an acquittal in the hands of this Court.
       11. The learned counsel appearing for the second accused would submit that he
   has no involvement in the crime in question; that the lower Court has erroneously
    considered the evidence adduced by the prosecution; that actually, there was no
 evidence at all to connect A-2 with the crime, and hence, he is entitled for an acquittal.
          12. The Court heard the learned Additional Public Prosecutor on the above
                                      contentions.
          13. The Court paid its full attention on the submissions made, and made a
                        thorough scrutiny of the materials available.
             14. It is not in controversy that the deceased Sudhakar met his death
 instantaneously, and it was out of homicidal violence. The postmortem certificate has
   also been brought forth to the notice of the Court. This fact is not disputed by the
appellants/accused either before the trial Court or before this Court, and thus, it could be
      safely concluded that the deceased Sudhakar died out of homicidal violence.
       15. The specific case of the prosecution was that an occurrence has taken place
  on 9.3.1994 during night hours, when the first accused along with another came and
 knocked the doors of the shop of P.W-1, and P.W-1 switched on the lights and opened
   the doors, and these accused were seen by him. The witnesses who witnessed the
  occurrence, were P.Ws_1, 2, 3, 4 and 5. As rightly pointed out by the learned senior
    counsel for the appellants, the evidence of P.Ws-3 to 5 would go to the extent of
 showing that there was an occurrence that took place at the night hours as put forth by
the prosecution. Hence, their evidence cannot be taken to sustain the fact that it was the
         accused, who have got involvement in the crime or participated there.
          16. At this juncture, the evidence of P.Ws-1 and 2 has got to be scrutinized. On
      careful scrutiny of their evidence, it could be seen that P.W-1 is the friend of the
  deceased, and P.W-2 is the brother-in-law of the deceased. Needless to say that in a
  case where there are interested witnesses, on that ground only, their evidence cannot
    be rejected; but, the Court has to exercise its care and caution over their evidence.
      Applying the test of care and caution, the Court has to necessarily state that their
 evidence inspired the confidence of the Court. Apart from that, it can be well stated that
   despite the cross-examination of both these witnesses, the evidence, as to the entire
   occurrence, the participation of the accused, the possession of weapons and the act
   committed by them, in the chief examination, remain in tact and unshaken. A sincere
 attempt was made by the learned senior counsel that the evidence of P.Ws-1 and 2 that
they have witnessed the occurrence cannot be believed, since the occurrence had taken
 place during night hours, and no one could have seen the same. This contention cannot
  be countenanced, in view of the evidence of P.Ws-1 and 2, which is clear, cogent and
   convincing. Under such circumstances, without any difficulty, the evidence of P.Ws-1
       and 2 has got to be accepted. That apart, the evidence of P.Ws-1 and 2 is fully
    corroborated by the medical evidence, which was adduced through the postmortem
     certificate and P.W-12, the Doctor. A perusal of the postmortem certificate and the
evidence of the doctor P.W-12 would clearly indicate that the version put forth by P.Ws-1
                                   and 2, is true and genuine.
         17. What was all contended by the accused/appellants before the trial Court and
here also is that at the time of the occurrence, the deceased while he was loading in the
 lorry, fell down from the lorry, and he sustained injuries, and due to that injury, he died,
   and a statement was made to the doctor P.W-11, who also recorded the same in the
Accident Register Ex.P-6. This contention is thoroughly falsified by the injuries, including
a cut injury on the head, noticed by the doctor P.W-12 on the deceased and recorded in
 the postmortem certificate. Under the circumstances, the story put forth by the defence
  before the lower Court was to be necessarily rejected, and the lower Court has rightly
  done so. Apart from that, the recovery of material objects pursuant to the confessional
statement made by the accused, supports the prosecution case. The contention put forth
   that the driver and the cleaner of the lorry were not examined before the lower Court
          cannot in any way take away the rigour or truth of the prosecution case.
         18. As regards the contention put forth by the learned senior counsel that there
  was undue delay in F.I.R. reaching the Court, it is true that the F.I.R. has reached the
   Court with some delay; but, only on the ground of delay, the case of the prosecution
  cannot be rejected. It remains to be stated at this juncture that the evidence of P.W-1
   would go to show that he gave the complaint at about 1.45 a.m. to P.W-13, the Sub
Inspector of Police, and the case has been registered immediately. It is pertinent to point
   out that within a short time i.e., 15 minutes to half an hour, the complaint was given.
   Under the circumstances, there was no embellishment at all, and not even a cross-
  examination on that point has been made. Apart from that, the contention put forth by
the learned senior counsel for A-3 and A-4 that they had no motive or common object or
    intention at all, and they were all only passive spectators has got to be necessarily
rejected for the simple reason that not even one question has been put during the cross-
  examination of P.Ws-1 and 2, who, according to the prosecution, are eye-witnesses.
Hence, it can be stated that without any foundation, such arguments are being advanced
 before the appellate forum. Therefore, in view of the evidence available, this Court is of
   the considered opinion that the lower Court has acted on the acceptable evidence.
         19. Coming to the legal position, it could be seen that what was available for the
 accused was that they had all shared the common intention and acted so. It is true that
 during night hours, the occurrence had taken place. It remains to be stated that without
     the common intention, the occurrence could not have taken place. There is ample
  evidence to show that these accused have participated in the crime, and they were all
   armed with knife and sticks respectively, and instantaneous death has been brought
    forth. This Court is of the considered opinion that they had the common intention of
killing Sudhakar, and they have acted so, and the fatal injury has been brought forth. It is
  true that no evidence is available as to who caused the injury. However, the common
intention shared by all the accused at the time of the occurrence, is crystal clear from the
                             evidence adduced by the prosecution.
      20. For the reasons stated above, this Court is of the view that the offence has got
to be converted into one of common intention, and they are liable to be convicted under
 Section 302 read with 34 of I.P.C. Accordingly, the conviction of A-1, A-2, A-4 and A-5
   under Section 302 of I.P.C. and of A-3 under Section 302 read with 149 of I.P.C. is
 modified, and instead, they are convicted under Section 302 read with 34 of I.P.C. The
 sentence awarded by the trial Court in that regard, is sustained. In other respects, the
     judgment of conviction and sentence passed by the lower Court is sustained.
            21. In the result, with the above modification, these criminal appeals are
  dismissed. It is reported that the appellants are on bail. Hence, the learned Sessions
Judge will take stops to commit the accused to prison to undergo the remaining period of
                                          sentence.
                                         Appeals dismissed.


                                    [2005 (2) T.N.L.R. (Mad)]
                                     MADRAS HIGH COURT
                                        (Madurai-Bench)
                                             Before:
                              P.D. Dinakaran and S. Ashok Kumar

           Samuthra Pandi and Pattu                                       -Appellants
                                             Versus
                                         State rep. By
                                    The Inspector of Police,
                                    Nazereth Police Station
           Tuticorin                                                     -Respondent

              [Criminal Appeal No. 323 of 2002, decided on, 25th January, 2005]
      Indian Penal Code, 1860-Sections 302 r/w 34 and 341-Murder of child-Conviction
of-Accused had no intention to murder the child but intention was only to cause injuries
 on PW-1-Accused has used only a stick to cause injuries on PW-1, which might have
 accidently fell on the head of the child, resulting in his death-Hence, offence would fall
under Section 304, IPC-Conviction of A-1 under Section 302 IPC modified as one under
       Section 304, Part II, IPC-Since A-2 has no overt act, liable to be acquitted.
                                           (Para 18)
      Case law:-1994 SCC (Cri) 1390; (1983) 2 SCC 342; (1984) 2 SCC 133; AIR 1994
                       SC 34; AIR 1988 SC 2060 referred.


                                           Counsel :-
       Mr. N. Anandapadmanabhan for the appellants; Mr. K. Chellapandian, Additional
                       Public Prosecutor, for the respondent.

                                          JUDGMENT
      S. Ashok Kumar, J.,-The appellants are accused in S.C.No.199 of 1999 on the file
 of the Additional District Judge, (Fast Track Court No.1), Tuticorin. The first appellant
 was convicted for an offence under Section 302, IPC to undergo imprisonment for life
and the second appellant was convicted for an offence under Section 302 r/w34, IPC to
undergo rigorous imprisonment for life and under Section 341 IPC to undergo rigorous
                               imprisonment for one month.
                          2. The brief facts of the case are as follows:-
        A-1 and A-2 are brothers. P.W.1 is younger brother of A.1. Along with P.W.1, he
  had 4 other brothers and 4 sisters. P.W.1 had 3 male children and 2 female children.
    The last child is the deceased Krishnan, aged 7 months at the time of occurrence.
    About 10 years prior to the date of occurrence i.e. 29.11.1996, P.W.1's father died.
  Another accused concerned in this case by name Murugan who is also the brother of
  P.W.1 died before trial. During the life time of the father of P.W.1, P.W. 1, A.1 and A.2
 got married and thereafter two other sisters got married. One Padmini, a sister was not
 married. On 28.11.1996, in the morning. Murugan and A.1 came to the house of P.W.1
 and asked for contribution for making jewels for their sister Padmini. P.W.1 replied "you
     get my elder brother's share, then I will pay my contribution". The next day, i.e.,
   29.11.1996 at about 9.00 a.m., A.1 and A.2 and the deceased Murugan came to the
  house of P.W.1. A.1 was having a stick; A.2 and Murugan were having stones in their
    hands. P.W.1 became afraid on seeing them. After taking his child, Krishnan in his
  hands, P.W.1 tried to escape. Then A.2 saying to other accused "kill him by beating"
chased P.W.1. P.W.1's wife was running behind them. In front of the house of Mahalinga
   Nadar, A.2 and deceased Murugan blocked P.W.1. A.1 by saying "you are having 3
male children and your number of male children must be reduced and so saying he beat
     the child with a casurina stick, M.O.1 on the left side head of the child. When he
  attempted to beat the child again and again, P.W.1 prevented such assaults. A.1 also
 assaulted P.W.1 below his left knee. P.W.1 did not want to take immediate action since
  the accused were brothers. The child was wheezing and after leaving the child to the
    care of his wife, P.W.1 went to attend his job. P.W.1's wife took the child to a local
  hospital where it was declared dead. P.W.1 returned from his job in the evening and
     came to know about the death of the child at 7.00 p.m., he lodged a complaint at
  Nazereth Police Station. The said complaint is Ex.P.1. P.W.13, Head Constable who
   received Ex.P.1 complaint from P.W.1, registered a case in Crime No. 340 of 1996
  under Sections 341, 323 and 302, IPC and the original printed FIR copy Ex.P.15 was
    sent to Judicial Magistrate, Tiruchendur and the copies were sent to higher police
 officials. P.W.14, Inspector of Police visited the place of occurrence at about 7.30 p.m.,
    in the presence of P.W.6 and one Periya Nadar. He also prepared an observation
 mahazar Ex.P.3 and a sketch Ex.P.16. On the same day, at 9.30 p.m., in the presence
of Panchayatdars he conducted inquest on the body of the deceased child and prepared
           Ex.P.17 inquest report and arranged to send the body for postmortem.
       3. P.W.7, Dr. Pandurangan, conducted autopsy on the body of the deceased on
              30.11.1996 at 11.30 a.m., and found the following injuries:-
                                      "External Injuries:
                      1. An abrasion of 1x1 cm on the front of left knee.
       2. A diffuse contusion with surrounding swelling on the left and back of face and
                                          scalp.
                                        Internal Injuries:
         Hyoid intact. Heart pale with minimal blood clots in all chambers, lungs, liver
    spleen, kidney pale with 50 ml., of white milky fluid. No smell. Small intestine and
  Bladder pale of empty. Blood clot present in the subarachoid space. Fracture of skull
bone on the left side present running obliquity. R brain normal. Blood clots present under
                    the skull bone spreading over the surface of brain."
      4. The doctor who has conducted the postmortem has given the opinion that the
   death was due to shock and haemorrhage due to injury to vital organ (brain). The
              postmortem certificate issued by P.W.7, doctor, is Ex.P.6.
      5. On 5.12.1996 at about 8.15 a.m., P.W.14, arrested A.1 and deceased Murugan
      near Vellamadam bus stop in the presence of one P.W.8, Karthikeyan and
 Velnarayanan. A.1 volunteered to give a confession statement, admissible portion of
which is Ex.P.7. On the same day on 9.15 a.m., he took the P.W.14 to a garden behind
 his house where he has hidden the 4 M.O.1 Casurina stick and the same was seized
under a cover of mahazar Ex.P.8. The material objects seized in the crime were sent for
  chemical analysis. The chemical examination report is Ex.P.11 and the Serologist's
   report is Ex.P.12. The final report was laid against the accused for offences under
                       Section 341, 323, 307 and 302 r/w. 34, IPC.
        6. Before the trial Court, P.Ws.1 to 14 were examined as prosecution witnesses
   and Exs.P.1 to P.18 and M.Os.1 and 2 were marked. On behalf of the accused no
    witness was examined and no document or material object was produced. When
 questioned under Section 313, Cr.P.C., with regard to the incriminating circumstances
    appearing against the accused in the evidence of the prosecution witnesses, the
  accused denied such evidence as false or not known and contended that it is a false
 case filed against them. The learned Additional Sessions Judge, on a consideration of
the oral and documentary evidence convicted A-1 for an offence under section 302, IPC
to undergo imprisonment for life and the convicted A-2 for an offence under Section 302
r/w. 34, IPC to undergo rigorous imprisonment or life and also under Section 341, IPC to
           undergo rigorous imprisonment for one month. Hence, this appeal.
       7. The learned counsel for the appellant would contend that the accused have no
   intention to murder the child because they have no enmity with the child. But they
 wanted to inflict some injury to P.W-1, which might have accidentally fell on the child,
resulting in the death of the child and in the absence of any intention to cause the death
 of the child, the offence alleged against the accused cannot be brought under Section
             302, IPC, but it is only an offence under Section 304 Part II IPC.
           8. Per contra, the learned Additional Public Prosecutor would contend that the
  accused A-1 has intentionally caused injury on the child by saying the number of male
    children of P.W-1 should be reduced and such words would clearly speak about the
intention of the accused to commit the murder of the child. The motive for the occurrence
is said to be that P.W-1 was evading to give his share of the money for making jewels for
  the only unmarried sister and in spite of demand by A-2 and another deceased brother
     Murugan, P.W-1 was evading payment of his share. Further, P.W-1 also has put a
    condition that unless A-1, his elder brother pays his contribution, he will not pay his
   share. The motive is not seriously disputed on behalf of the accused. But the learned
    counsel for the appellant would only say that A-1 and A-2 and the deceased brother
  Murugan came only to assault P.W-1 that too with a stick and stones. But stones were
  never used by A-2 or by the deceased Murugan. But, A-1 has attacked P.W-1 with the
  stick and caused three simple abrasions on his left side skull, right index finger and left
        leg as seen from Ex.P-2. Accident Register and one such assault might have
    accidentally fell on the child in the hands of P.W-1 which might have resulted in the
 death of the child. The further contention of the learned counsel for the appellants is that
   the alleged words said to have been used by A-1 while beating P.W-1 that number of
male children should be reduced is nothing but the imaginary to attract the offence under
                                        Section 302, IPC.
        9. In support of his contention, the learned counsel for the appellant would point
  out that though the occurrence took place at 9.00 a.m., on 29.11.1996, the complaint
 was lodged at the Police Station only at 7.00 p.m., on the same day, after a delay of 10
   hours. The delayed complaint may give room for embellishment which may be the
   creature of an afterthought. On account of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of the introduction of a coloured version
or exaggerated story. Had the complaint been given within the reasonable time after the
    occurrence and such words said to have been used by A-1 are mentioned in the
 complaint, we can to some extent believe that the words might have been uttered by A-
1. But the complaint has been lodged 10 hours later which makes suspicion whether A-1
would have used such words and would have made an attack on the child by using such
words. These alleged words said to have been used by A-1 would have been introduced
         only at a later stage when Ex.P-1 was lodged after a delay of 10 hours.
       10. P.W-4, Thavamani has been examined as an independent witness. She has
  deposed that A-1 hit on the head of the child of P.W-1. P.W-4 has not stated that A-1
 uttered any words while attacking the child. The failure of P.W-4 to state that A-1 used
  any words while attacking the child will only strengthen the contention of the learned
    counsel for the accused that the words said to have been used by A-1 have been
 wantonly introduced at a later stage to bring home the offence under Section 302, IPC.
      11. In Meharaj Singh vs. State of U.P., reported in 1994 SCC (Cri) 1390, the value
 of FIR and the effect of delay in lodging the FIR has been discussed by their Lordships
                             of the Supreme Court as follows:-
           "FIR in a criminal case and particularly in a murder case is a vital and valuable
piece of evidence for the purpose of appreciating the evidence led at the trial. The object
of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding
  the circumstance in which the crime was committed, including the names of the actual
  culprits and the parts played by them, the weapons, if any, used, as also the names of
the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which
 is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps of the introduction of a coloured version or
exaggerated story. With a view to determine whether the FIR was lodged at the time it is
   alleged to have been recorded, the Courts generally look for certain external checks.
     One of the checks is the receipt of the copy of the FIR, called a special report in a
   murder case, by the local Magistrate. If this report is received by the Magistrate late it
can give rise to an inference that the FIR was not lodged at the time it is alleged to have
been recorded, unless, of course the prosecution can offer a satisfactory explanation for
   the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. The
second external check equally important is the sending of the copy of the FIR along with
   the dead body and its reference in the incept report. Even though the inquest report,
   prepared under Section 174, Cr.P.C., is aimed at serving a statutory function, to lend
    credence to the prosecution case, the details of the FIR and the gist of statements
  recorded during inquest proceedings get reflected in the report. The absence of those
details is indicative of the fact that the prosecution story was still in an embryo state and
  had not been given any shape and that the FIR came to be recorded later on after due
      deliberations and consultations and was then ante-timed to give it the colour of a
                                     promptly lodged FIR."
        12. In this case also, there was no motive against the child for the accused. The
    accused wanted to assault P.W-1 because he was not willing to pay his share of
contribution for making jewels of the unmarried sister. While attacking P.W-1 by A-1, one
assault was felt on the tender child which resulted in the death of the child. The intention
 was not to cause the death of the child, but only to cause injury to PW-1. It is also quite
 strange as to why on seeing the accused, P.W-1 went inside the house and took the 7
months old child from the cradle and ran away from the house. Because, before running
away from the house, no words against the child alleged to have been uttered by any of
 the accused. The facts and circumstances of the case would indicate that A-1 and A-2
 might have only wanted to cause small injuries on PW-1. But unfortunately, one assault
                  fell on the head of the small child resulting in the death.
       13. As far as A-2 is concerned, he is said to have been armed with a stone. He
 has not beat either the child or PW-1 and no specific overt act is attributed as against
                    him and therefore he is entitled to be acquitted.
      14. As far as A-1 is concerned, whether he must be punished under Section 302,
  IPC has to be decided in the circumstances of the case. In 1983 (2) SCC 342, Jagtar
          Singh vs. State of Punjab, the Supreme Court has held as follows :-
         "8. The next question is what offence the appellant is shown to have committed?
   In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred
around 1.45 noon. The quarrel was of a trivial nature and even in such trivial quarrel the
     appellant wielded a weapon like a knife and landed a blow in the chest. In these
circumstances, it is a permissible inference that the appellant at least could be imputed
 with a knowledge that he was likely to cause an injury which was likely to cause death.
Therefore, the appellant is shown to have committed an offence under Section 304, Part
 II of the IPC and sentence of imprisonment for five years will meet the ends of justice."
         15. In 1984 (2) SCC 133 Tholan vs. State of Tamil Nadu, it has been held as
                                      follows:-
             "12. It is equally not in dispute that appellant gave only one blow with a knife.
      Appellant had no quarrel or dispute with the deceased Sampat. It is not shown that
  deceased Sampat had anything to do with the chit organized by K.G. Rajan. No malice
  has been alleged to have been entertained by the accused towards deceased Sampat.
      The incident occurred on the spur of the moment. It appears that the house of the
    deceased Sampat was somewhere near the house in which the organizers or at least
one of them was residing. Appellant had his dispute and grievance with the organizers of
       the chit. It is the prosecution case that the accused abused organizers of the chit.
      Deceased Sampat is not shown to be the organizer of the chit. Probably when the
  deceased Sampat told the accused not to misbehave in the presence of ladies and not
   to use vulgar and filthy language, the appellant retorted by questioning the authority of
        Sampat to ask him to leave the place. Presence of Sampat is wholly accidental.
         Altercation with Sampat was on the spur of the moment, even the meeting was
    accidental. There arose a situation in which appellant probably misguided by his own
   egocentric nature objected as to why Sampat should ask him to leave the place and in
   this background he gave one blow with a knife which landed on the right side chest of
    the deceased which has proved fatal. Could the appellant be said to have committed
 murder? In other words, whether Part I or Part III of Section 300, IPC would be attracted
  in the facts of this case. Even Mr. Rangam learned counsel for the State of Tamil Nadu
        could not very seriously contend that the appellant intended to commit murder of
  Sampat. His submission was that at any rate appellant, when he wielded a weapon like
     a knife and gave a blow on the chest, a vital part of the body, must have intended to
 cause that particular injury and this injury is objectively found by the medical evidence to
      be fatal and therefore Part III of Section 300 would be attracted. On this aspect the
    decisions are legion and it is not necessary to recapitulate them here merely to cover
  idle parade of familiar knowledge. One can profitably refer to Jagrup Singh vs. State of
   Haryana, Randhir Singh vs. State of Punjab, Kulwant Rai vs. State of Punjab and Hari
   Ram vs. State of Haryana. To this list two more cases can be added: Jagtar Singh vs.
     State of Punjab and Ram Sunder vs. State of U.P. Having regard the ratio of each of
    these decisions, we are satisfied that even if Exception I is not attracted, the requisite
intention cannot be attributed to the appellant. But in the circumstances herein discussed
  he wielded a weapon like a knife and therefore he can be attributed with the knowledge
 that he was likely to cause an injury which was likely to cause death. In such a situation,
he would be guilty of committing an offence under Section 304 Part II of the Indian Penal
  Code. Having regard to the circumstances of the case, a sentence of 5 years would be
                                           quite adequate."
           16. In AIR 1994 SC 34 (Joseph vs. State of Kerala), their Lordships of the
                            Supreme Court have held thus:-
         "3. In this appeal the leaned counsel for the appellant submits that the intention to
 cause the injury which was found sufficient to cause the death in the ordinary course of
        the nature was not established. In support of this submission he relied on the
   circumstances namely that the whole incident took place because of a trivial incident
      which resulted in a quarrel and that the weapon used was only a lathi and in the
      circumstances it cannot be said that the accused intended to cause the death by
  inflicting that particular injury which objectively was proved by the medical evidence to
 be sufficient in the ordinary course of nature to cause death. In other words he submits
that clause 3 of Section 300, IPC is not attracted in this case. We find considerable force
in the submission. The weapon used is not a deadly weapon as rightly contended by the
   learned counsel. The whole occurrence was a result of a trivial incident and in those
 circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot
   be stated that he intended to cause the injury which is sufficient at the most it can be
    said that by inflicting such injuries he had knowledge that he was likely to cause the
    death. In which case, the offence committed by him would be culpable homicide not
   amounting to murder. We accordingly set aside the conviction of the appellant under
Section 302, IPC and the sentence of imprisonment for life awarded thereunder. Instead
 we convict the appellant under Section 304, Part II, IPC and sentence him to five years
                                               R.I."
       17. In AIR 1988 SC 2060 (State of Rajasthan vs. Satyanarayan), it has been held
                                     as follows:-
           "8. In our opinion, the prosecution had established beyond doubt that the
    respondent had given a knife blow to Kesar Lal and that he died as a result of the
 injuries caused by that blow. Though the injury was sufficient in the ordinary course of
  nature to cause death, the evidence discloses that the respondent had not aimed the
  blow on any vital part of Ram Gopal or Kesar Lal. The blow was aimed at Ram Gopal
but as he moved aside, it landed on the stomach of Kesar Lal. The dispute was not such
  which would have prompted the accused to cause the death of Kesar Lal, particularly
when he had no dispute with Kesar Lal. This aspect was not at all considered by the trial
Court or by the High Court. In our opinion, in view of the facts and circumstances of the
 case, the appellant should have been convicted under Section 304, Part I, IPC and not
                                    under Section 302."
        18. From the judgments cited above, it is clear that there was no intention to cause
 the death of the deceased, but the intention was only to cause injuries on P.W-1. Thus
  the offence committed by A-1 will be culpable homicide not amounting to murder and
 therefore, the offence brought home against A-1 could be only under Section 304, Part
   II, IPC and not under Section 302, IPC. As far as this case is concerned, as already
  held, A-1 did not have any motive against the child or had any intention to cause the
 death of the child and he has used only a stick to cause injuries on P.W-1, which might
have accidentally fell on the head of the child, resulting in his death. Therefore for lack of
 any motive or intention against the child and the nature of weapon used and the nature
  of injury sustained by the child, we are of the considered opinion that justice would be
  met with if the conviction of A-1 under Section 302, IPC is set aside and conviction is
 modified as one under Section 304, Part II, IPC to undergo R.I for five years. As far as
          A-2 is concerned he has no overt act and he is therefore acquitted.
                                                            Order accordingly.

                                   2[2005 (2) T.N.L.R. (Mad)]
                                    MADRAS HIGH COURT


                                            Before:
                                        M. Chockalingam


            Dharamchand                                                     -Petitioner
                                              Versus
      State rep by Inspector of Police                                       -Respondents
                                 E-1, Mylapore Police Station
                                  Chennai-600 004 & others


         [Criminal Original Petition No. 29340 of 2004, decided on 19th January 2005]
         Criminal trial-Transfer of case-Bomb blasts cases-Complaint for offence under
 Sections 448, 307, 332, 506 (ii), IPC and 3 (i) of the Indian Explosive Substances Act-
Case taken on file before the bomb blasts Courts exclusively constituted for the purpose
of bomb blast cases-Merely because final report not indicated about alleged act of bomb
blast, committed by any fundamentalist organisation, would be no ground to transfer the
     case to regular Session Court-No merit to transfer the case-Petition dismissed.
                                         (Paras 9, 10 & 11)
                                             Counsel:-
         Mr. R. Natarajan, for the petitioner; Mr. K. Venkataramani, Spl. P.P. for Mr. S.
   Jayakumar, A.P.P. & Mr. A.N. Thambidurai, G.A., Mr. G.M. Syed Fasuddin For R-1.


                                           JUDGMENT
          M. Chockalingam, J. -This Criminal Original Petition has been brought forth
 seeking to pass an order withdrawing the S.C. No. 7 of 2004 from the file of Additional
Sessions Court for exclusive trial of Bomb Blasts Cases, Chennai at Poonamallee and to
transfer the same to the Principal Judge, City Civil and sessions Court, Chennai, or any
   other Additional Sessions Judge in the City Civil and Sessions Court at Chennai for
                           enquiry and trial according to law.
       2. Heard the learned counsel appearing for the petitioner and the learned Special
                       Public Prosecutor appearing for the State.
       3. The only contention put forth by the learned counsel for the petitioner is that the
 petitioner is shown as an accused in the said case pending on the file of the Additional
  Sessions Court for exclusive trial of Bomb Blasts Cases, Chennai at Poonamallee in
S.C. No. 7 of 2004. The case which has been taken on trial should be conducted only by
   any one of the Courts with the competent jurisdiction within the city of Madras. The
 respondent registered a case in Crime No. 1139 of 2001 for the offence under Sections
 448, 307, 332, 506(ii), IPC and 3(1) of the Indian Explosive Substance Act on 7.6.2001
    on the basis of the complaint given by the Sub-Inspector of Police attached to E-1,
  Mylapore Police Station against one Jagadeesan and three others. The petitioner was
   added as an accused along with others. On completion of investigation, a final report
filed before the XVIII Metorpolitan Magistrate, Chennai in Crime No. 1139 of 2001 for an
 offence under Sections 452, 307, 332, 306(ii), IPC and 120-B, IPC and 109, IPC and 3,
     6, 4, 9(a) of the Indian Explosive Substances Act was taken on file in P.R. C. No.
     36/2003 by the said Court and after committal taken on file in S.C. No. 7 of 2004.
      4. Added further the learned counsel for the petitioner that the final report does not
 indicate that the alleged act of bomb blast has been committed by any fundamentalist
 organization and if that be so, the regular Sessions Court having territorial jurisdiction
  alone is competent to hold trial. Under the circumstances, the case should not have
been taken on file before the Bomb Blast Court exclusively constituted for the purpose of
 bomb blast cases and, hence, it becomes necessary for transfer of the case to regular
                         Sessions Court within the City of Madras.
         5. Learned counsel for the petitioner would further add that from; the notification
   issued by the Tamil Nadu Government in G.O. Ms. No. 700, Home (Court II), dated
 3.7.2000 and further notification dated 19.7.2000, it would be clear that the case should
not have been taken on file by the Sessions Court for exclusive trial of bomb blast cases,
 Chennai at Poonamallee and hence, it has to be transferred to the principal judge, City
  Civil and Sessions Court, Chennai or any other Additional Sessions Judge in the City
                           Civil and Sessions Court at Chennai.
         6. Heard the learned Special Public Prosecutor appearing for the State on the
                                  above contentions.
       7. After careful consideration of the rival submissions made, this Court is of the
 considered opinion that the criminal original petition carries no merits and requires an
                                    order of dismissal.
          8. Admittedly, a case came to be registered by the respondent-police for an
occurrence that had taken place on 7.6.2001, on the basis of the complaint given by the
 Sub-Inspector of Police attached to E-1, Mylapore Police Station, Chennai against the
 four accused and pending investigation some other accused were added including the
petitioner. A final report was submitted before the XVIII Metropolitan Magistrate, Madras
and on committal the case is now pending trial before the Additional Sessions Court for
              exclusive trial of bomb blasts cases, Chennai at Poonamallee.
       9. The only contention put forth by the learned counsel for the petitioner herein is
that three Government Orders came to be passed by the Tamil Nadu Government and
  they were meant only for the purpose of conduct of trial in which the fundamentalist
organization was involved. But in the instant case it is not so and hence the case would
   not fall within the jurisdiction of the Courts, which were specially constituted for the
 specific purpose and hence it has to be transferred to the Court of Principal Sessions
                        Judge, which is situated in the city of Madras.
       10. Three Government Orders, which were placed in the hands of the Court were
   perused. On a perusal of the same, the Court has to necessarily disagree with the
 contention made by the learned counsel for the petitioner. The last Government Order
  came to be passed on 20.4.2001, wherein the amendment was introduced reads as
                                    follows :-
        "In the said notifications, for the expression "bomb blast and seizure of bombs or
 explosive substances involving any fundamentalist organization", the expression "bomb
    blasts, seizure of bombs and explosive substances involving any fundamentalist
   organization as bomb blasts cases and police station attacks involving Tamil Nadu
Liberation Army or Tamil Nadu Retrieval Troop or People War Group" shall, respectively,
                                         be substituted."
        11. A reading of the above amendment would indicate that it was done only with a
     view to and it became necessary also to transfer the bomb blast cases pending in
different Courts to these specially constituted Courts. The said amendment would clearly
indicate that the bomb blast cases though not involve fundamentalist organizations to be
 transferred and tried by the Court specially constituted for the said purpose. Hence, it is
 needless to state that the Court i.e., the Sessions Court constituted for exclusive trial of
bomb blast cases is well vested with the jurisdiction and could proceed with the matter in
    question. The Court is unable to notice any merit in the contentions put forth by the
   learned counsel for the petitioner. The criminal original petition fails and the same is
               dismissed. The stay already granted by this Court is vacated.
                                                                   Petition dismissed.




                                     [2005 (2) T.N.L.R. (SC)]
                                     SUPREME COURT
                                          Before:
                           P. Venkatarama Reddi and S.B. Sinha, JJ.


            Idrish Bhai Daudbhai                                            -Appellant
                                              Versus
          State of Gujarat                                                -Respondent.


               [Criminal Appeal No.614 of 2004, decided on, 31st January, 2005]
         Indian Penal Code, 1860-Sections 34 and 300-Common intention-Developed at
  spur of moment-Land dispute between parties-Altercation took place over such land-
   Accused alleged to have given stick blow on head of deceased-Other accused also
inflicted injuries with sickle and knife-No evidence to show pre-plan-If appellant exhorted
after completion of injuries, he cannot be held guilty of sharing common intention-Hence,
 common intention was not developed even at spur of moment-Mere exhortation would
 not constitute common intention-Eye-witnesses found to be interested witnesses-Held,
                         accused would be entitled to benefit of doubt.
                                   (Paras 15, 16, 18, 22 & 23)
      Case law:-AIR 2003 SC 2213; 1999 CriLJ 4078; AIR 1999 SC 3830; (1998) 7 SCC
                 300; (1999) 8 SCC 555; (2003) 11 SCC 286-referred.

                                           Counsel:-
      K. Radhakrishnan, Sr. Advocate, Sanand Ramakrishnan, Rajiv Mishra. Advocates,
 for M/s. P.H. Parekh & Co., Advocates with him, for the appellant; Yashank Adharu, for
         advocate, Ms. Hemantika Wahi, Advocate with him, for the respondent.


                                         JUDGMENT
        S.B. Sinha, J.:-The appellant herein was convicted for commission of an offence
punishable under Section 302/34 of the Indian Penal Code ('IPC' for short) and had been
  sentenced to undergo rigorous imprisonment for life as also a fine of Rs. 500/- and in
     default thereof to undergo additional three months' simple imprisonment. He was
  prosecuted along with three others for sharing common intention for causing death of
   one Siddique Ahmed Patel and causing simple hurt with sharp cut weapon to Yusuf
                                     Adam Patel (PW-3).
          2. At about 5.45 p.m. on 29.11.1993, the deceased was allegedly going to a
mosque for offering prayer (Namaz). When he was passing by the house of the accused
  persons situated at village Sarod, all the four accused persons were standing there. A
  quarrel ensued between them, when the deceased Siddique was asked as to why he
had entered into a transaction of the house instead of land to which he answered that he
 had entered into a transaction with his maternal uncle, whereupon, the appellant herein
  allegedly inflicted a stick blow on his head, as a result of which he fell down. Accused
   No. 1 Bilal Ahmed Ibrahim Kabha thereafter inflicted a knife blow on his chest. Yusuf
  Adam Patel tried to intervene and in the process he was also injured; a knife injury on
 him was caused by the accused No.2. The accused No. 3, the mother of the appellant
herein, was said to have a sickle in her hand. The deceased and the injured were said to
have been taken to the referral hospital at Jambusar, where Siddique was declared dead
   and the injured was asked to go to Baroda Hospital. A First Information Report was
  lodged in this behalf by one Mehmood Adam Patel. On completion of investigation, a
   charge-sheet was filed for offences punishable under Section 302, IPC, Section 302
 read with Section 34, IPC, Section 34, IPC and Section 135 of the Bombay Police Act.
       3. Before the learned Sessions Judge nine witnesses were examined on behalf of
the prosecution. The learned Judge while passing a judgment of acquittal in favour of the
  accused No. 3, convicted Bilal Ahmed for commission of an offence punishable under
    Section 302, IPC. The accused No. 2 Ahmed Ibrahim Kabha was found guilty for
commission of offence punishable under Section 302/34, IPC as also under Section 324,
 IPC, whereas the appellant herein was found guilty of commission of offence punishable
             under Section 302/34, IPC, where against an appeal was filed.
       4. During the pendency of the appeal, the accused No. 2 Ahmed Ibrahim Kabha
expired and as a result his appeal stood abated. The High Court of Gujarat by reason of
 the impugned judgment dismissed the appeals preferred by the appellant as also Bilal
     Ahmed. The Special Leave Petition filed by Bilal Ahmed appears to have been
                  dismissed by this Court by an order dated 6.2.2004.
         5. Mr. K. Radhakrishnan, the learned senior counsel appearing on behalf of the
  appellant, would take us to the First Information Report as also the depositions of the
witnesses pointing out contradictions and inconsistencies contained therein. The learned
 counsel would contend that even from the autopsy of Dr. Raghunandan (PW-2) it would
 appear that he had not noted the colour of the wound and, thus, was not in a position to
  state the time of the injury with certainty, nor did he note the exact place of skull vault
   where the injury had occurred. It was argued that the injury allegedly caused by the
  appellant herein with a stick on the head of the deceased had not been noticed by the
  Investigating Officer in the Inquest Panchnama. The learned counsel would therefore
 urge that the prosecution has not been able to prove beyond any reasonable doubt the
  role played by the appellant herein in the incident, nor the alleged intention shared by
the appellant and other co-accused for causing the death of the deceased Siddique, can
                                be said to have been proved.
      6. Mr. Yashank Adhyaru, learned senior counsel appearing on behalf of the State
of Gujarat, on the other hand, would contend that though certain discrepancies exist in
  the statements of the witnesses vis-à-vis the First Information Report and the Post
Mortem Report, there is no reason to discard the evidences of the three witnesses, who
              have proved the prosecution case as against the appellant.
        7. From a perusal of the First Information Report lodged by PW-1, it transpires that
before the alleged incident took place altercations took place between the deceased and
the accused persons as regard transaction of a land/house belonging to the deceased. It
  is stated that the accused No.1 Bilal Ahymed and his father Ahmed Ibrahim came with
    knives in their hands and Bibiben Ahmed, the mother of the appellant, came with a
  sickle. "Getting excited all of a sudden", Bilal Ahmed is said to have given a knife blow
 on the chest of the deceased and Ahmed Ibrahim is said to have given a knife blow on
   the back of Yusuf Adam Patel and Bibiben Ahmed allegedly jumped upon both these
 persons shouting "Beat……Beat". Meanwhile, the appellant herein had come out taking
    a stick and rushed towards them saying "Beat……..Beat". The eye-witnesses to the
       occurrence, viz. PW-1, PW-3 and PW-5, on the other hand, in their respective
   depositions before the Court stated that it was the appellant who gave a stick blow on
      the head of the deceased whereafter only the injuries were inflicted by the other
                                           accused.
          8. The sequence of events as contained in the First Information Report, thus,
   materially differs from the statements made by the prosecution witnesses. The First
 Information Report does not even contain any statement to the effect that the Appellant
    had inflicted any injury whatsoever with the stick as was alleged by the prosecution
witnesses before the learned Sessions Judge. The first informant who examined himself
as PW-1 in his cross-examination accepted that in his complaint he did not allege that he
was going to pray at the mosque, nor did he say that Siddique fell down after he was hit
   with a stick. He further asserted that he saw the incident from a distance of about 15
feet. He accepted that injured Yusuf was his brother whereas his wife is the sister of the
  deceased Siddique and the deceased Siddique is the son of his uncle, and his wife is
also the daughter of his uncle. In paragraph 5 of the deposition, however, he alleged that
  when the appellant hit the deceased Siddique with a stick, Siddique fell flat and at that
time only he and Yusuf were present. He thereafter alleged that the accused Nos. 1 and
  2 were also present emphasizing that they did not go to the house to get knives but he
 changed the story immediately by stating that the accused had come out of the house
 with knives. He further stated that he saw the accused persons going into the house to
  get knives and he thought that they would stab. He, however, immediately thereafter
     stated "after hitting with the stick, he was stabbed immediately". He reiterated:
       "……It is true that I have not stated in the complaint that IDDISH hit SIDDIQUE on
the head with a staff. And I have not stated that the other accused came after IDDISH hit
   him. I have not stated in the complaint that SIDDIQUE fell down after he was hit with
the staff. I have not stated in the complaint that IDDISH had done any illegible (sic) act. I
  have also not stated that BIBIBEN injured anybody. It is true that BIBIBEN is present in
 the Court and she was with the three male members. I do not know that if BIBIBEN was
                                 hit by a blow of the staff……"
          9. It is difficult to place any reliance on the statement of the said witness as
              regards the involvement of the appellant herein in the incident.
       10. PW-2, Dr. Raghunandan, who performed autopsy on the dead body of the
 deceased Siddique on 30.11.1993, found the following external injuries on his person:
        "1. There was one cut wound on the chest near the 7th rib 2 cm. by 1/2 cm. deep
  up to cavity. It was between the two lungs and it was 27 cm. below the rib cage bone
 and 7.5 cm. away in a slant manner. In this injury the muscles were cut. And the casing
of the heart was injured with a wound of 1.5 cm. by .25 cm. And the outer covering of the
           heart was cut. This wound was deep up to the left cavity of the heart.
        2. There was a hematoma measuring 4 cm. by 3 cm. on the centre of the skull.
                        These wounds were prior to the death."
       11. In his cross-examination, he admitted that the colour of injury No.2 was not
noted in the report which would have enabled him to ascertain the time of the injury nor
      did he note the exact place in the skull vault where the injury had occurred.
       12. In the inquest panchnama, no head injury in the dead body had been noted.
         13. PW-3 is Yusuf who is an injured witness. In his deposition, he asserted that
   the appellant had hit the deceased on the head from behind with a stick as a result
 whereof he swooned and fell down: whereafter Bilal Ahmed who was standing next to
 the appellant stabbed Siddique in the chest and when he tried to rescue him. Ahmed
 Ibrahim stabbed him with a knife in the waist on the left side, whereupon only Bibiben
came with a sickle shouting to kill them. In his cross-examination, however, he accepted
 that there had been verbal heated exchanges between Bilal Ahmed and Siddique but
    although at that time the people were moving on the road, he did not see anybody
 except the deceased and the accused persons. In his cross-examination, he admitted
     that the house of the appellant is not near the mosque and it is at a far off place.
      14. PW-5-Abdulla, is a vegetable merchant. He was also going to mosque to offer
'namaz' after closing his shop nearby. He stated that when he reached near the house of
   the accused persons, the appellant Idrish was having a stick and Bilal Ahmed was
having an open knife, he had seen Siddique and Yusuf walking near the cross roads. He
                                        alleged:
       "……At that time Bilal had started abusing Siddik and Bilal was saying. "Why did
 you enter into transaction of house for my brother?" At that time Siddik had told "I had
 not entered into transaction for your brother." I have entered into transaction with your
 maternal uncle Abbas Daud Bhatiya. At that time Idrish Daud had got excited and had
   given a blow on the head of Siddik with a long and thick staff from behind as Siddik
      would have hardly walked two steps ahead. Therefore, on account of giddiness
 Siddikbhai had fallen down flat on the ground. At that time all of a sudden Bilal had run
  and given a blow of knife in his hand on the left portion of the chest of Siddik. At that
    time as Yusufbhai Adam Patel tried to intervene. Ahmed Ibrahim Kabha who was
 standing nearby and was having a knife in his hand had given a knife blow on left side
back to Yusuf. At that time Bibiben who was standing nearby and was having a sickle in
her hand had gone near Siddik and had attacked upon him and had started shouting that
                             put these people to death……"
          15. The statements of the witnesses, as noticed hereinbefore, vis-à-vis the
 allegations made in the First Information Report are contradictory and/or inconsistent
 with each other. Whereas in the First Information Report nothing has been mentioned
 about the appellant's role as regard his hitting the deceased with a stick on his head,
  even the sequence of events is different from that stated by PW-1 in his deposition
                                    before the Court.
        16. The statements made in the First Information Report in a case of this nature
     must be given due importance. Admittedly, there was a dispute with regard to a
transaction of a land/house. PW-1 categorically stated that the accused persons became
 agitated only after the appellant allegedly hit the deceased with a stick and the accused
Nos. 1 and 2 went into their house and came back with knives which stands contradicted
  by the statement of PW-5 who alleged that both the appellant and accused No.1 were
        standing by the side of the road with a stick and open knife in their hands.
        17. In the First Information Report only one overt act is attributed to the appellant
 that is his exhortation "maro….maro". Such exhortation by itself may not give rise to an
inference of sharing a common intention to cause death of the deceased Siddique and to
    cause hurt to PW-5. Such exhortation as alleged in the F.I.R. took place only after
  injuries had been inflicted by the accused Nos.1 and 2. No. injury was inflicted on the
                      deceased or PW-3 after the alleged exhortation.
         18. The prosecution has also failed to bring any materials on record to show that
there had been any pre-concert or pre-arranged plan so as to hold that the appellant had
  any common intention to commit the alleged offence. The First Information Report itself
 suggests that the accused persons became excited all of a sudden. It has also come on
records that the accused No.3 Bibiben had also sustained injuries. The learned Sessions
    Judge himself has found that prosecution has failed to prove her involvement in the
    matter. If the appellant exhorted after infliction of injuries were completed, he by no
  means can be held guilty of sharing a common intention with other accused to commit
 murder of the deceased or cause injuries to PW-3. On the other hand, if he was the first
   person to cause injury to the deceased by inflicting a blow on his head by a stick, it is
   wholly unlikely that he would imagine that the accused Nos.1 and 2 would go back to
 their house to bring the knives and inflict injuries to the deceased and PW-3 and, thus, a
   case of forming common intention at that time must be ruled out. It is, therefore, not a
case where a common intention amongst the accused persons can be said to have been
 existing either from the beginning or was formed at the spur of the moment. Exhortation,
      furthermore, by itself is not enough to prove common intention on the part of an
                                           accused.
        19. In State of Orissa vs. Arjun Das Agarwal and another, AIR 1999 SC 3229;
         1999 Cri LJ 4078 : 1999 AIR SCW 3200, (Para 26) this Court, stated:
       "Regarding accused-respondent Arjuna Das Agarwal we find from the evidence on
record that this accused neither went inside the house of the deceased nor took any part
   in the commission of the murder. He only instigated by shouting the other accused
  persons. There is nothing in evidence to show that due to his instigation more blows
   were given by the accused persons. Therefore, no inference can be drawn that this
 accused-respondent had common intention of causing death of the deceased or that he
   actually participated in the criminal act. Therefore, High Court rightly acquitted this
                                          accused."
      20. What would form a common intention is now well-settled. It implies acting in
 concert, existence of a pre-arranged plan which is to be proved either from conduct or
                  from circumstances or from any incriminating facts.
       21. In Ramashish Yadav and others v. State of Bihar, (AIR 1999 SC 3830 ; 2000
               Cri LJ 12 : 1999 AIR SCW 3902, (Para 3) this Court stated:
      "…….. It requires a pre-arranged plan and it presupposes prior concert. Therefore,
  there must be prior meeting of minds. The prior concert or meeting of minds may be
determined from the conduct of the offenders unfolding itself during the course of action
    and the declaration made by them just before mounting the attack. It can also be
       developed at the spur of the moment but there must be pre-arrangement or
                                premeditated concert….."
      [See also Badruddin v. State of U.P., (1998) 7 SCC 300 : 1998 Cri LJ 4591 : 1998
AIR SCW 3165 : AIR 1998 SC 3243 : 1998 All LJ 2329 and Ramashish Yadav v. State
 of Bihar, (1999) 8 SCC 555 : 1999 AIR SCW 3902 : AIR 1999 SC 3830 : 2000 Cri LJ
  12referred to in, Balram Singh and another v. State of Punjab, (2003) 11 SCC 286 :
                        2003 AIR SCW 2656 : AIR 2003 SC 2213.
        22. As noticed hereinbefore, even the inquest panchanama did not refer to the
head injury although presence or absence of injuries on all other parts of the body of the
 deceased had been noticed. Furthermore, eye-witnesses are also interested witnesses.
         23. For the reasons aforementioned, we are of the opinion that it is a fit case
    where the benefit of doubt should be given to the appellant herein. The appeal is,
therefore, allowed and the impugned judgment is set aside. If the appellant is in custody,
   he shall be set at liberty forthwith, if not wanted in connection with any other case.
                                        Appeal allowed.


                                   [2005 (2) T.N.L.R (Mad)]
                                   MADRAS HIGH COURT
                                       (Madurai-Bench)
                                           Before:
                             P.D. Dinakaran and S. Ashok Kumar

       Subbiah, s/o. Ponnusamy Nadar                                 -Appellant/Accused
                                            Versus
                                          State, rep. by
                                      Inspector of Police,
                                  Sathankulam Police Station,
        Thoothukudi District.                                   -Respondent/Respondent


               [Criminal Appeal No. 731 of 2002 decided on 9th February, 2005]
          Indian Penal Code, 1860-Sections 302 and 326-Murder and grievious hurt-
Conviction and sentence-Legality of-Appellant alleged to have slashed the throat of the
 deceased and stabbed on the left chest of the deceased causing death of deceased-
Strong enmity between the accused and the family members of deceased over share of
    property-Motive for occurrence is said to be dispute with regard to said property-
      Statement of deceased before could be taken as dying declaration-Important
circumstantial evidence supports the ocular evidence-Medical opinion also supports the
prosecution case-Held, trial Court has rightly found the guilty of offence under Sections
     302 and 326, IPC-No reason to interfere with conviction and sentence-Appeal
                                       dismissed.
                                                            (Paras 8 to 11)
        Counsel:-Mr. G.R. Edmund, for the appellant; Mr. K. Radhkrishnan, Additional
                        Public Prosecutor, for the respondent.


                                           JUDGMENT
      S. Ashok Kumar, J.,-The appellant, the sole accused in Sessions Case No. 320 of
 2001 on the file of Additional Sessions Judge (Fast Track Court No. II), Thoothukudy,
   has filed this appeal against the judgment, dated 15.04.2002, convicting him under
 Sections 302 and 326, I.P.C. and sentencing him to undergo life imprisonment for the
offence under Section 302, I.P.C. and three years' rigorous imprisonment for the offence
      under Section 326, IPC and also ordering the sentences to run concurrently.
                    2. The brief facts of the prosecution case are as follows:
       (a) The deceased Vellaiammal is the wife of one Subramanian (since dead). The
    accused is none other than the own brother of the said Subramanian. From 1996
 onwards, there were frequent quarrels between the said Subramanian and his brother,
the accused, over the sharing of the properties and there were cases and counter cases
   in the criminal Court pending before the learned Judicial Magistrate, Tiruchendur.
         (b) On 23.04.1998, the deceased Vellaiammal and her husband Subramanian
went by a trucker to Sathankulam, from where they wanted to proceed to Tiruchendur to
attend the Court. Along with them, P.W-1 Vedhakkan also travelled in the same trucker.
The son of the deceased P.W-2, by name Ramachandran, who is also an accused in the
  criminal case pending before the Judicial Magistrate Court, Tiruchendur, reached the
place of occurrence, namely, Sathankulam bus stand, by bus. Vellaiammal, her husband
   Subramanian and P.W-1 got down from the trucker. The accused, who was already
  there, by catching hold of the tuft of Vellaiammal slashed her throat with M.O-1 knife.
Thereafter, he also inflicted stab injuries on the left chest of Vellaiammal, who fell on the
     spot and died. When her husband Subramanian intervened and tried to stop the
   accused from attacking his wife, the accused also caused injuries on Subramanian.
       (c) Immediately, Subramanian went to Sathankulam Government Hospital, where
  he was admitted at 9.30 a.m. on the same day. Before the doctor, Subramanian has
 stated that the injuries were caused to him on 23.04.1998 by a known person when he
   prevented the said person from attacking his wife. Ex.P-13 is the wound certificate
                             issued to the said Subramanian.
         (d) An intimation was sent to the local police, who rushed to the hospital and
  recorded the statement of the said Subramanian and the said statement is Ex.P-15.
 P.W-13 Sub-Inspector of Police, Santhankulam Police Station, on the strength of Ex.P-
15 statement, registered a case in Crime No.141 of 1998 for the alleged offences under
Sections 302 and 324 I.P.C. and prepared Ex.P-14 printed FIR and dispatched the same
   to the Judicial Magistrate Court, Tiruchendur, and the copies to higher authorities.
      (e) P.W-13 Sub-Inspector of Police, since the Inspector of Police was on leave, as
 per the instruction of the Superintendent of Police, himself took up the investigation on
the same day, visited the place of occurrence, made an observation and prepared Ex.P-
4 observation mahazar in the presence of P.W-5 and one Sivasami. He also drew Ex.P-
  16 rough sketch. Thereafter, he conducted inquest on the body of the deceased from
   11.30 a.m. in the presence of Panchayatdars and prepared Ex.P-17 inquest report.
During inquest, P.W-13 examined some of the witnesses and recorded their statements.
 Thereafter, he sent the body of the deceased to Sathankulam Government Hospital for
                              postmortem with a requisition.
      (f) P.W-6 Dr. P. Thanasekaran, on receipt of the body along with the requisition,
conducted autopsy on the body of the deceased on the same day at 3.00 p.m. and found
                                the following injuries.
        "A vertically 8 cm x horizontally 10 cm cut injury, extending from left side of neck
 upto the right side of neck. Below extended upto the sterno clavicular junction. Trachea,
  carotid, artery, internal jugular vein, para sympathetic chain and superficial muscles of
      neck cut on both sides and exposed outside. Another cut injury vertically 2 cm x
  transversely 3 cm x depth 2 cm exposing muscle present over left side of chest just at
 the lavel of clavicle exposing left side clavicle. A linear cut injury present over right side
face extending base of mandible upto the ankle of mouth exposing facial muscles. A skin
 abrasion 2 cm x 2 cm present over from just below the mandible. Heart-16 ounce, pale,
 all chambers are empty. Lungs-18 ounce, pale. Hyoid -intact. Stomach-16 ounce, pale.
     Liver-40 ounce, pale. Spleen-8 ounce, pale. Both kidneys pale, 8-ounce. Bladder
                                             empty."
          P.W-6, on completion of postmortem, issued Ex.P-6 postmortem certificate
    opining that the deceased would appear to have died of haemorrhage shock and
      neurogenic shock produced by injuries sustained by her 5 to 7 hours prior to
 postmortem. After postmortem, P.W-10 Head Constable recovered M.O-4 Sari, M.O-5
   blouse, M.O-6 (series) a pair of chappals and M.O-7 petticoat from the body of the
                  deceased and handed them over in the police station.
      (g) P.W-13 Sub-Inspector of Police continued the investigation and seized M.O-8
   dhoti, M.O-9 shirt of Subramanian, produced by him at the time of giving Ex.P-15
  complaint, under a cover of mahazar. He also seized M.O-2 bloodstained earth and
    M.O-3 sample earth under a cover of mahazar. On 24.04.1998, at 5.30 a.m., at
   Paikulam bus-stop, in the presence of P.W-4 Village Administrative Officer and his
  Assistant Vembu, P.W-13 arrested the accused. The accused volunteered to give a
  confession statement and the admissible portion of it is Ex.P-18. The accused also
produced M.O-1 knife, which was hidden in his hip. M.O-10 is the cover of M.O-1 knife.
P.W-13 remanded the case properties and the accused for judicial custody. He sent a
requisition to the learned Judicial Magistrate, Tiruchendur, to send the case properties
  for chemical analysis. Ex.P-11 is the Chemical Analysis Report and Ex.P-12 is the
                                   Serologist's Report.
       (h) P.W-14 Inspector of Police took up the further investigation in the case and
examined the Sub-Inspector of Police, Head Constable and Doctors and recorded their
statements. On completion of investigation, P.W-14 Inspector of Police, filed final report
 on 09.06.1999 against the accused for the alleged offences under Sections 302, 326
                                    and 324, I.P.C.
         3. Before the learned Sessions Judge, on behalf of the prosecution, witnesses
   P.Ws-1 to 14 were examined and Exhibits P-1 to P-18 as well as M.Os-1 to 10 were
  marked. On the side of the accused, one witness was examined as D.W.1 and three
 documents were marked as Exs. D-1 to D-3. When the accused was questioned under
   Section 313, Cr.P.C. about the incriminating circumstances found in the evidence of
prosecution witnesses, he has denied them either as false or not known. The trial Court,
on consideration of both the oral and documentary evidence produced on behalf of both
     the sides, found the appellant/accused guilty under Section 302 and 326, I.P.C.,
  convicted thereunder and sentenced him to undergo life imprisonment for the offence
 under Section 302, I.P.C. and three years rigorous imprisonment for the offence under
    Section 326, IPC and ordered the sentences to run concurrently. Aggrieved by the
                    same, the sole accused has preferred this appeal.
           4. Before this Court, Mr. G.R. Edmund, learned counsel appearing for the
 appellant, would contend that P.W-1 has not supported the prosecution case, P.W-2
      could not be an eye-witness and there is no reliable evidence to connect the
 appellant/accused with the crime alleged. Per contra, Mr. K. Radhakrishnan, learned
 Additional Public Prosecutor, would contend that there is strong enmity between the
 accused and the family members of the deceased and the husband of the deceased
could not be examined in the Court because he died before the commencement of the
trial and, therefore, his statement before the Medical Officer when he was admitted in
  the hospital and his statement before the police Ex.P-15, based on which FIR was
    registered, can be taken as dying declarations and along with this evidence, the
       evidence of P.W-2, the son of the deceased, sufficiently establish that this
               appellant/accused alone could have committed the offence.
      5. We have given our careful consideration to the rival submissions of the learned
                               counsel on either side.
        6. The motive for the occurrence is said to be the dispute with regard to some
property, which resulted in criminal cases between the accused on the one side and the
family members of the deceased on the other side. The accused is none other than the
own brother of the husband of the deceased. It is not disputed that from 1996 onwards
   there were cases and counter cases pending in the Court of Judicial Magistrate,
                                       Tiruchendur.
             7. On the date of occurrence, i.e. 23.4.1998, the deceased, her husband
     Subramanian and his son P.W-2 had to appear in the Judicial Magistrate Court,
     Tiruchendur, and for that purpose, the deceased and her husband Subramanian
 travelled in a trucker upto Sathankulam bus-stand and their son P.W-2 came there by
   bus, at which time, this appellant/accused is said to have slashed the throat of the
 deceased and also stabbed on the left chest of the deceased. The injury on the throat
was so severe that it had cut the trachea, carotid artery, internal jugular vein and all the
muscles of the neck which is sufficient to cause instantaneous death. After inflicting such
     a serious injury, the accused has also caused stab injury on the left chest of the
 deceased. Further, when Subramanian, the husband of the deceased, tried to prevent
    the appellant/accused from attacking his wife, the accused has caused injuries on
 Subramanian also and the injuries sustained by him are mentioned in Ex.P-13 wound
  certificate issued to him. Subramaniam has sustained as many as 10 injuries, out of
which injury Nos.2 to 10 were all on his both hands and fingers, which would prove that
the said Subramanian, the husband of the deceased, tried to prevent the accused from
  inflicting injuries on his wife. P.W-2 has cogently spoken about the occurrence in his
                            evidence and seems to be natural one.
       8. Though the occurrence is said to have taken place at 9.00 a.m. at Sathankulam
   bus-stand, at 9.30 a.m., the said Subramanian admitted himself in the Government
  Hospital at Sathankulam and at that time, he has narrated that when a known person
attacked his wife with knife, he tried to prevent and sustained injuries in the said course
of transaction. This statement of Subramanian before Dr. Rajeswari who admitted him in
   the hospital, on whose behalf P.W-12 Doctor was examined, can be taken as dying
                                         declaration.
           9. On an intimation to police, P.W-13 Sub-Inspector of Police has gone to the
   hospital and recorded Ex.P-15 statement of Subramanian at 10.00 a.m. and on the
   strength of Ex.P-15, P.W-13 Sub-Inspector of Police registered a case against the
  accused under Sections 302 and 324, IPC and Ex.P-14 printed FIR has reached the
 Magistrate Court at 12.45 p.m. on the same day. Thus, it is clear that either in lodging
the complaint or registering the case or in the FIR reaching the Court, there is no delay.
   The said Ex.P-15 statement of Subramanian can be treated as Dying Declaration,
  because he could not be examined to mark this document since he was dead before
    trial. Of course, the said statement has not been subjected to cross-examination.
 Though P.W-1 has turned hostile, P.W-2, son of the deceased, has deposed about the
  occurrence in a cogent manner and we do not find any reason to doubt his evidence.
       10. Another important aspect is the circumstantial evidence which lends support to
  the ocular evidence. On 24.04.1998, i.e. very next day of the occurrence, at 5.30 a.m.,
     the accused was arrested at Paikulam bus-stop in the presence of P.W-4 Village
    Administrative Officer Shanmugam and one Village Menial by name Vembu. At that
time, the accused has given a confession and the admissible portion of which is Ex.P-18
 and pursuance to the said confession, the accused has produced M.O-1 knife and M.O-
    10 cover of the knife from his hip. When the case properties were sent for chemical
     analysis, human blood was detected in M.O-8 dhoti and M.O-9 shirt of the injured
Subramanian. M.O-2 bloodstained earth also found contained human blood. M.O-4 sari,
M.O-5 blouse and M.O-7 petti coat worn by the deceased were also found contained 'O'
     group human blood and M.O-1 knife was also found contained human blood. The
accused has been arrested within less than 24 hours of the occurrence and bloodstained
      M.O-1 knife has been recovered and it was found contained human blood.
       11. This important circumstantial evidence supports the ocular evidence of P.W-2.
 The medical opinion also supports the prosecution case that the injuries caused on the
 husband of the deceased and the deceased Vellaiammal could have been caused by a
   knife like M.O-1. The nature of injuries sustained by the deceased and her husband
  could have been caused by a weapon like M.O-1 as deposed by P.W-6 and P.W-12
 Doctors. There is no reason to doubt the evidence of P.W-2 We do not find any reason
to suspect or disbelieve the case of the prosecution. The trial court has rightly found the
accused guilty under Sections 302 and 326, IPC, convicted him thereunder and imposed
  sentence for the proved charges and we find no merit to interfere with the same and,
                     therefore, this appeal deserves to be dismissed.
                       12. Accordingly, this criminal appeal is dismissed.
                                                          Appeal dismissed.


                                   [2005 (2) T.N.L.R. (Mad)]
                                    MADRAS HIGH COURT
                                       (Madurai-Bench)
                                            Before:
                             P.D. Dinakaran and S. Ashok Kumar.


                Vellaisamy                                            -Appellant
                                             Versus
                                         State rep By
                                    The Inspector of Police,
                                    Keeranur Police Station
              Pudukottai District                                    -Respondent

              [Criminal Appeal No. 574 of 2002, decided on 28th January, 2005]
           (A) Indian Penal Code, 1860-Section 302-Murder-Conviction and sentence-
Propriety of-Accused alleged to have caused deep cut injury which severed the neck of
  the deceased causing instantaneous death-Weapons used in commission of offence
was recovered on the statement of accused-Medical evidence corroborating statement
 of evidence-Mere complaint of abuse by the wife of the accused cannot be taken as a
   sufficient ground for sudden provocation or sustained provocation-FIR was prompty
 lodged-Prosecution proved the case beyond reasonable doubt-No ground to interfere
             with conviction and sentence imposed on accused by court below.
                                        (Paras 15 & 18)
      (B) Evidence Act, 1872-Section 27-Recovery of weapon-Admissibility as evidence-
 In a confessional statement volunteered by the accused, that portion of the statement
which leads to recovery of a weapon or material object is admissible under Section 27 of
                                    Evidence Act.
                                           (Para 14)
       (C) Criminal trial-Confessional statement-Admissibility of-An admission made by
  the accused in confessional statement could be used in his favour as an extenuating
                                      circumstance.
                                            (Para 14)
      Case law:-AIR 1996 SC 2590; 1994 SCC (Cri) 1390: 1972 LW (Cri) 244; referred.
         Counsel:-Mr. N.R. Elango for the appellant; Mr. K. Chellapandian, Additional
                        Public Prosecutor, for the respondent.


                                             JUDGMENT
        S. Ashok Kumar, J.,-The appellant is the sole accused in S.C.No.85 of 2001, on
 the file of the Principal Sessions Judge, Pudukottai and was convicted for an offence
under Section 302, IPC and sentenced to undergo rigorous imprisonment for life and to
  pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for one year.
   Aggrieved over the said judgment and conviction, this Appeal has been preferred.
                     2. The brief facts of the prosecution case are as follows:-
            The deceased Rajangam @ Nagaraj and accused belong to Killukulavaipatty
   Village. P.W-1 Ponnalagu is the wife of the deceased and P.W-2 Pounraj is their son.
 The occurrence said to have taken place on 16.5.2001 at 12.00 p.m., midnight. Earlier,
there were frequent quarrels between the deceased and the accused since the cattle of
 the accused Vellaisamy used to graze in the hay stack of the deceased, adjacent to his
    house. Five months prior to the date of occurrence, there was a quarrel between the
accused and the deceased who grappled together and the accused threatened to kill the
   deceased at any time. On 16.5.2001, at 12.00 p.m., midnight, P.W-1, P.W-2 and two
       daughters of the deceased were lying in front of the house and since there was
  likelihood of rainfall with wind, P.W-1 and her two daughters went to sleep' inside their
    house with doors open. The deceased was lying in a mat adjacent to his son P.W-2,
  Pounraj, who was sleeping on the other mat in front of their house. At that time, P.W-1
 heard the alarming voice of the deceased and her son, P.W-2. She got up from the bed
      and saw her husband being assaulted by the accused, Vellaisamy on his neck by
  Aruval, M.O-7. She could see the occurrence from the light emanated from the electric
     light at the electrical post at the place of occurrence. P.W-1 and P.W-2 chased the
          accused, who ran with the aruval from the place of occurrence and P.W-4,
     Shanmugham, the brother of the deceased, got up from his bed after hearing their
    screaming voice and he also chased the accused along with P.Ws-1 and 2 and they
 could not catch the accused Vellaisamy. The occurrence took place in a remote village
in midnight and as there was no transport facility, P.Ws-1 to 4 went to the Police Station
   at Udayalipatti on 17.5.2001 at 7.15 a.m., and P.W-1 lodged, the Ex.P-1 complaint to
  P.W-9, Sub Inspector of Police, who registered the FIR Ex.P-10, in Crime No.50/2001,
  for an offence under Section 302, IPC. The original of the FIR was sent to the Judicial
 Magistrate, Keeranur, copies were sent to the Inspector of Police, Keeranur and higher
 officials through Muthukumar, Police Constable. On receipt of the copy of FIR, P.W-10,
Murugan, Inspector of Police, Keeranur, visited the place of occurrence on 17.5.2001 at
8.00 a.m., and prepared an observation mahazar in Ex.P-3, rough plan Ex.P-11. He also
   recovered blood stained mat, M.O-1, mat M.O-2, blood stained Banian, M.O-5, blood
stained Salvai, M.O-4, Blood stained mud, M.O-5, ordinary mud, M.O-6 under a cover of
mahazar in Ex.P-4 in the presence of P.W-6, Mudiyappan, Village Administrative Officer
 and one Koothiayan. He also arranged P.W-7 to take photographs under Ex.P-7 and 8
 series of the deceased body of Rajangam. He examined P.Ws-1,2 and 7 and recorded
their statements and conducted an inquest over the body of the deceased and prepared
       inquest report, Ex.P-12. Afterwards, he sent the body of the deceased to the
                     Government Hospital, Keeranur for postmortem.
         3. P.W-3 Dr. Anbanandan, Civil Surgeon of Government Hospital, Keeranur
received the requisition from the Inspector of Police and conducted an autopsy over the
 body of the deceased at 3.00 p.m., on the same day. He found the following injuries:-
          "1. A deep cut injury over the right side of the neck upto the cervical bone.
                   Complete cut cervical bone. Complete cut of neck.
       2. A deep lacerated cut injury over the right shoulder size 10 x 10 cm., Muscles
                         lacerated skin with muscles expelled.
          3. Deep cut injury of about 15 x 10 x 10 cm over the left shoulder muscles
                                        expelled.
       Head-normal. On opening head, Brain matter-normal. Eyelids closed. Mouth and
lips partially opened. Tongue inside. Jaws clenched. Tooth complete. Ear-normal. Nose-
                        normal. Neck-complete cut cervical bone."
       4. The Doctor also gave the opinion that the deceased would appear to have died
   due to complete cut of the neck, shock and haemorrhage. Ex.P-2 is the postmortem
                               certificate issued by the Doctor.
        5. Continuing his investigation, the Inspector of Police examined P.Ws-5 & 6 and
 recorded their statements. On 17.5.2001 at 5.00 p.m., at Kanampatty Junction road he
 arrested the accused Vellaisamy and recorded his confessional statement, admissible
   portion of which is Ex.P-5. In pursuance of his confessional statement, the accused
produced M.O-7, aruval from a thorny bush near a quarry at Koppampatty village, which
  was seized under a cover of mahazar Ex.P-6, in the presence of the witnesses P.W-6
  Mudiyappan and Kothaiah. Thereafter the accused was remanded to judicial custody.
   Thereafter the material objects were sent to Judicial Magistrate Court, Keeranur for
  being transmitted to Forensic Laboratory and for Chemical analysation. The Chemical
 report Ex.P-16. and the Serologist Report in Ex.P-17 were received by the court. After
   completing the investigation, P.W-10 filed the final report against the accused for an
                           altered Section 302, IPC on 31.5.2001.
       6. Before the Sessions Court, Pudukottai, on behalf of the prosecution P.Ws-1
to12 were examined and Exs.P-1 to 17 and M.Os-1 to 11 were marked. On behalf of the
accused no witness was examined and no document was produced. When the accused
      was questioned under Section 313, Cr.P.C., with regard to the incriminating
 circumstances appearing as against him in the evidence of the prosecution witnesses,
                the accused denied the same as false and not known.
      7. On a consideration of the oral and documentary evidence, the learned Principal
Sessions Judge, Pudukottai held that the charge framed against the accused has been
   proved and punished him for offence under Section 302, IPC to undergo rigorous
  imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo rigorous
                               imprisonment for one year.
            8. Before this Court, the learned counsel appearing for the appellant would
 contend that P.Ws-1 and 2 could not be the eye-witnesses and they have been arrayed
as eye-witnesses falsely. At any event even if this Court holds that it is this accused who
    caused the injury which was the cause of death of the deceased, the accused was
   suffering from a sustained provocation as seen from his confessional statement and
therefore at the worst, the accused could be convicted only for an offence under Section
    304 (i), IPC and not for an offence under Section 302, IPC. Per contra, the learned
    Additional Public Prosecutor would contend that the nature of injury caused on the
    deceased would show that the neck of the deceased was severed by the accused
 resulting in the instantaneous death and the reasons for sustained provocation are not
               sufficient to warrant such an inference in favour of the accused.
        9. P.W-1 and P.W-2 are the wife and son of the deceased. P.W-4 is the brother of
the deceased. The motive for the occurrence is said to be that the cattle of the deceased
    often grazed in the haystack of the accused and there were frequent quarrels. The
     occurrence is said to have taken place on 16.5.2001. About 5 months prior to the
   occurrence, on the Pongal day, the cattle of the accused grazed the haystack of the
    deceased which was near the house of the deceased. When P.W-1 questioned the
   same, the accused had scolded P.W-1 and thereafter a quarrel ensued between the
      deceased and the accused, in which the accused is said to have assaulted the
      deceased with a stick on his head. When both of them grappled each other, the
  deceased is said to have bitten the nose of the accused. At that time, the accused had
 threatened the deceased that he would kill him at any time. This motive is spoken to by
 P.W-1, P.W-2 and also by P.W-5. P.W-5 is an independent witness who had intervened
    in the quarrel held on the Pongal day and prevented both the parties from going to
 Police Station for lodging complaints. This motive is not specifically denied on behalf of
                                     the accused also.
      10. Though P.W-4, is the brother of the deceased and claims to have chased the
accused along with P.Ws-1 and 2, P.W-4 might not have seen the accused cutting the
deceased on his neck with a dangerous weapon, M.O-7. Only after the alarm raised by
 P.W-1 and P.W-2, he has got up and followed P.Ws-1 and 2, who were chasing the
  accused. But the evidence of P.Ws-1 and 2, the wife and son of the deceased are
natural. Both P.Ws-1 and 2 have given a cogent version as to how the occurrence took
    place and how they chased the accused from some distance by raising alarms.
       11. The learned counsel for the appellant would contend that though P.Ws-1 and 2
   are wife and son of the deceased and they were very much present at the scene of
    occurrence and were lying near the deceased, the absence of blood stain on their
     dresses would show that they were not present near the deceased at the time of
 occurrence and they might have gone to attend a village festival in a nearby village and
 they have falsely claimed as eye-witnesses. A perusal of the photographs would show
that the neck is totally severed. From the photographs we can see that the western side
 of the mat in which the deceased was lying there was another mat in a distance of one
foot. The entire blood from the neck of the deceased had gone towards the eastern side
 of the mat in which the deceased was lying and no blood could be seen on the western
  side of the body of the deceased. Apart from the blood stained mat where the body of
     the deceased was found, within one foot distance on the western side, there was
      another mat which was found empty. This would clearly show that at the time of
   occurrence, another person was sleeping in the mat on the western side of the blood
  stained mat. According to P.W-1 and P.W-2, P.W-1 wife of the deceased was sleeping
inside the house by keeping the door open along with her two daughters and P.W-2, was
 sleeping with his father, the deceased adjacent to his mat. Therefore, this contention of
the learned counsel for the appellant that absence of blood stains on the clothes of PWs-
 1 and 2 will raise the presumption that they were not occurrence witnesses could not be
                                         sustained.
            12. Learned counsel for the appellant pressed into service the judgment of the
  Supreme Court in Mehraj Singh v. State of U.P. With Kalu vs. State of U.P. and others,
        reported in 1994 SCC (Cri) 1390, wherein their Lordships held that absence of
 bloodstains on the clothes of the widow of the deceased who claimed to be present with
 her husband at the time of occurrence, in the circumstances of the said case, it could be
   inferred that she was not present at the scene of occurrence. But the facts of the said
    case are totally different from the facts of this case. In the said case relied on by the
 learned counsel for the appellant, there was absence of bloodstains even at the place of
    occurrence and there was absence of blood trail from the place of occurrence to the
   place where the dead body was found which led to the conclusion that the occurrence
     did not take place in the manner suggested by the prosecution. That was a case in
  which the FIR was lodged after a long delay and the FIR was ante timed and therefore,
    the Supreme Court did not accept the prosecution case. But, this is a case in which
there is no dispute with regard to the place of occurrence. There is no contention that the
 FIR was ante timed or there was a delay in lodging the FIR. Therefore, the contention of
   the learned counsel that P.Ws-1 and 2 could not be occurrence witnesses because of
  the absence of bloodstains in their clothes is not sustainable and such inference is not
    possible in this case. Though the occurrence took place in the midnight in a remote
    village, FIR has been lodged on the next day 17.5.2001 at 7.15 a.m., at Udayalipatti
  Police Station. There is no dispute that there is no transport facility after midnight from
    the place of occurrence to Udayalaipatti where the Police Station is situate. Further,
          there is no contention that there is any delay in the FIR reaching the Court.
      In the FIR itself, P.W-1, wife of the deceased has narrated the motive, as well as
the way in which the occurrence took place. There is no reason to suspect the evidence
                                     of P.Ws-1 and 2.
       13. Apart from the ocular evidence of PW-1 and PW-2 another important evidence
 on the side of the prosecution is that the accused was arrested on 17.5.2001, the very
     next day at 5.00 p.m., at Kanampatti Junction Road and he volunteered to give a
 confession, admissible portion of which is Ex.P-5. In pursuance of the said confession,
    the accused has produced MO-7, aruval from a Velikaruvai bush, near a quarry at
      Koppampatty village, which was seized under a cover of Mahazar Ex.P-6 in the
 presence of Mudiyappan, P.W-6 and one Koothaiah. When the said aruval, M.O-7 was
 sent for chemical analysis with a requisition by the Judicial Magistrate, Keeranur along
 with the other bloodstained material objects to the Forensic Laborotary, after chemical
and biological analysation it was detected M.O-3, Banian of the deceased, M.O-4, Shawl
used by the deceased, M.O-8, Dhoti of the deceased, M.O-10, Belt of the deceased and
 M.O-7, the billhook (aruval) used by the accused contained human blood belonging to
"O" group. M.O-1 mat also contained human blood. Thus the matching of blood group of
   the deceased in M.O-7, Billhook, recovered after the arrest of the accused with the
 clothes of the deceased is another important circumstance which lends support to the
                                  prosecution case.
        14. The learned counsel for the appellant would further contend that even if the
evidence available on record with the prosecution is sufficient to prove the participation
     of the accused in the crime, still, the accused was labouring under a sustained
     provocation which would have been the reason for the incident. In a confession
 statement volunteered by the accused, that portion of the statement which leads to the
  recovery of a weapon or material object concerned with the crime alone is admissible
under Section 27 of the Evidence Act. Even though the entire confession is inadmissible
 under Section 25 of the Evidence Act, but the settled law is that an admission made by
 the accused in the confession statement could be used in his favour as an extenuating
                                        circumstance.
      15. In Thandavan In re., reported in 1972 L.W. (Criminal), p.244, a Division Bench
                           of this Court has held as follows:-
     "In this connection reference was made to Mottai Thevan v. State, 1951 MWN Cr.
274. There, Somasundaram, J., after referring to Section 25 of the Indian Evidence Act
                                 observed as follows:-
        Section 25 of the Indian Evidence Act says that "no confession made to a police
officer shall be proved as against a person accused, of any offence" I underline the word
against; the section does not therefrom prohibit the use of it in favour of the accused. In
 the majority of cases, the confessions are sought to be used only against the accused.
The cases in which such confessions would or can be used in favour of the accused will
               be very few and they will be the exception to the general rules.
       16. In this case in the confession recorded on 17.5.2001, the accused has stated
                                        as follows:-




        17. Relying upon the said statement of the accused the learned counsel for the
 appellant would contend that there was already enmity between the deceased not the
accused, as admitted by the prosecution, there was a quarrel on the Pongal day about 5
  months earlier to the occurrence in which both of them assaulted each other and one
 day prior to the occurrence i.e., on 15.5.2001, when the accused was coming with his
 wife and child in a cycle, his wife has complained that the deceased and his wife were
very often abusing her in the absence of the accused, her husband, and on hearing this,
the accused was enraged to commit the murder. The mere complaining of abuse by the
 wife of the accused cannot be taken as a sufficient ground for a sudden provocation or
                                 sustained provocation.
           18. If a person was having an illegal affair with the wife of the accused or vice
    versa and in spite of the warning the affair continues, then there may be a sustained
   provocation on the part of the accused to do away with the opposite party. There are
 cases of this nature in which the theory of sustained provocation has been upheld. But,
  on a mere complaint by the wife of the accused that the deceased and his wife abused
her because the cattle of the accused grazed in the haystack of the deceased, such kind
     of complaint by the wife of the accused cannot be said to be a sufficient cause for
provocation, much less, sustained provocation to commit the grave offence, like murder.
     If such kind of complaint by wife of the accused is held to be sufficient cause for a
   sustained provocation to commit the grave crime, then there will be no end and every
     accused will try to exculpate the serious crime by giving such an explanation in the
 confession statement. Whether a reasonable person in a circumstance of the particular
case, committed the offence under provocation which was grave and sudden or it was a
  sustained provocation is a question of fact to be decided in the particular circumstance
     of each case. As far as this case is concerned, the occurrence has not taken place
  without premeditation in a sudden fight or in a heat of passion upon a sudden quarrel.
Sub Section (4) of Section 300 is not applicable when the accused has caused the death
 in a cruel manner as has been held by the Supreme Court in AIR 1996 SC 2590. As far
   as this case is concerned there had been frequent quarrels between the accused and
  the deceased prior to the occurrence and 5 months earlier to the occurrence, they had
    grappled each other and assaulted each other and mere complaint of the wife of the
accused that in his absence, the deceased and his wife abused her for her cattle grazing
      in their haystack cannot be the cause for committing the murder on the next day
   midnight. The occurrence has been committed in a gruesome manner at a calculated
        time by the accused. The way in which the murder has been committed will be
presumed by seeing the photographs. The accused has caused a deep-cut injury which
    severed the neck of the deceased, causing instantaneous death. We do not find any
    reason to come to the conclusion that the offence committed by the accused will not
attract 302, IPC, but will attract only 304, IPC. Therefore, we do not want to interfere with
 the conviction and sentence imposed on the accused by the learned Principal Sessions
      Judge. Accordingly, the Appeal is liable to be dismissed, and the same is hereby
                                           dismissed.
                                                               Appeal dismissed.


                                    [2005 (2) T.N.L.R. (Mad)]
                                     MADRAS HIGH COURT
                                        (Madurai-Bench)
                                            Before:
                              P.D. Dinakaran and S. Ashok Kumar.


                Suresh, s/o. Ganesan                                    -Appellant
                                              Versus
                                         State, rep. by
                                      Inspector of Police,
                                    Eranaile Police Station,
              Eranaile.                                              -Respondent


              [Criminal Appeal No. 541 of 2002, decided on 8th February, 2005]
      Indian Penal Code, 1860-Section 302-Murder-Conviction and sentence-Legality of
   -Appellant alleged to have inflicted one stab injury on the right chest of deceased,
  causing death-No delay in lodging complaint about the occurrence to police-Ocular
testimony corroborates with medical evidence-No intention on the part of the deceased
to cause the death of the deceased-No motive or enmity between the accused and the
 deceased-Accused inflicted only one injury in a sudden wordy quarrel in a fit of anger-
Thus offence alleged to have been committed by accused would fall only under Section
         304 (2), IPC-Conviction of appellant under Section 302. IPC modified.
                                       (Paras 14, 15 & 16)


      Case law:-1983 (2) SCC 342; 1984 (2) SCC 133; AIR 1994 SC 34; (2001) 10 SCC
                                   225- referred.


      Counsel:-Ms. R. Krishna Priya, for the appellant; Mr. K. Radhakrishnan, Additional
                        Public Prosecutor, for the respondent.


                                          JUDGMENT
        S. Ashok Kumar, J.,-The appellant is the sole accused in Sessions Case No.72 of
2000 on the file of Principal Sessions Judge, Kanyakumari Division at Nagercoil. He was
tried for an offence punishable under Section 302, I.P.C., found guilty of the said charge,
convicted thereunder and sentenced to undergo life imprisonment and also to pay a fine
 of Rs. 1,000/- in default to undergo simple imprisonment for six months. Aggrieved over
       the said conviction and sentence, this appeal has been filed by the accused.
                    2. The facts of the prosecution case are briefly as follows:
       (a) P.W-1 Stalin is the brother of the deceased Stephen's father. The deceased
  was an Ex-Army man and after retirement, he was employed as a Driver in the State
    owned Thiruvallur Transport Corporation. Since his wife died two years earlier, he
  wanted to leave Kadiyapattinam and wanted to live at Eranaile, for which purpose he
   sought the help of P.W-2 Anandan to find a house on rent. For the said purpose, on
03.10.1999, P.W-2 Anandan and the deceased went to the house of the friend of P.W-2
at Maniyankuzhi and met him at 5.30 p.m. and after fixing the house rent at Rs. 300/- per
  month, they got the key of the house and thereafter they cleaned the house upto 9.30
                                p.m. to make it fit for living.
      (b) After 9.30 p.m., P.W-2 Anandan and the deceased came to the shop of P.W-4
  and were taking dosa and one Johnson was serving them. At that time, the accused
 came there and sat in the same table near P.W-2 and the deceased and he asked the
 server Johnson to supply dosa first to him. At that time, P.W-4 the owner of the shop,
asked the accused to be calm and patient, but the accused picked up a quarrel with the
   deceased and used abusive language towards him. The accused challenged the
                         deceased to come out of the shop.
          (c) After dinner, P.W-2 and the deceased came out of the hotel and all of a
sudden, the accused took M.O-1 knife and stabbed on the right chest of the deceased.
The deceased fell down. Immediately, P.W-2 went to the house of P.W-1, which is half-
   a-kilometre away and informed P.W-1. P.W-1 accompanied P.W-2 to the place of
occurrence and thereafter they engaged a taxi belonging to P.W-6 and took the injured
to CSI Hospital at Neyyoor at about 10.30 p.m. When they reached the said hospital at
  11.10 p.m., P.W-9 Dr. Hubert examined the injured and declared that he was dead.
Ex.P-6 is the Accident Register pertained to him. Ex.P-7 is the death intimation sent to
                                         police.
         (d) Immediately, P.Ws-1 and 2 wrote a complaint, in which P.W-1 signed, and
  gave the complaint at 00.30 a.m. on 4.10.1999 to P.W-11 Sub Inspector of Police of
  Eranaile Police Station. Based on Ex.P-1 complaint, P.W-11 Sub-Inspector of Police
registered a case in Crime No. 770 of 1999 for an offence under Section 302, I.P.C. and
 prepared Ex.P-10 printed first information report and dispatched the same to Court and
                           the copies to the higher authorities.
         (e) P.W-12 Inspector of Police, on receipt of copy of Ex.P-10 FIR, took up the
investigation, visited the place of occurrence, made an observation and prepared Ex.P-2
Observation Mahazar in the presence of P.W-5 and one Vijayan. He also prepared Ex.P-
 11 rough sketch in the presence of same witnesses. P.W-12 seized M.O-4 bloodstained
  earth and M.O-5 sample earth under Ex.P-3 mahazar. From 09.00 a.m. to 11.30 a.m.,
   he conducted inquest on the body of the deceased at CSI Hospital at Neyyoor and
   prepared Ex.P-12 Inquest report. During inquest, he enquired some witnesses and
 recorded their statements. Thereafter, he sent Ex.P-8 requisition to the Medical Officer,
    Government Hospital, Kulachal, to conduct autopsy on the body of the deceased.
        (f) P.W-10 Dr. Rosith conducted autopsy on the body of the deceased between
          1.30 p.m. and 2.30 p.m. on 4.10.1999 and found the following injuries:
                                       "External Injury:
       An elliptical incised obliquely placed wound of 4 x 2 cm below the medial end of
                                        right clavicle.
        On Exploring: The wound passes obliquely downwards and medially for 6 cm
through the intercostal space between the right I & II ribs near the lateral right border of
 sternum and entering into the thoracic cavity right. There is an oblique black coloured
  punctured wound of 1 cm in the superior venacava. Haematoma (black) seen in the
    adjacent tissues. About 500 ml blood (black) present in the right thoracic cavity.
       Skull : No fracture. Brain : Weighs 100 gm. C/S.pale. Neck : Hyoid intact. Heart :
 weighs 150 gm. Chambers empty. Lungs : Right 450 gms., Left : 400 gms. Stomach :
contained 400 gms. undigested food. Liver : weighs 100 gm. C/S.Pale. Spleen : Weighs
     100 gm. C/s. Pale. Kidney; Each 100 gm. C/S. Pale. Bladder : 50 ml. Urine."
        P.W-10 gave Ex.P-9 postmortem certificate opining that the deceased would
   appear to have died of shock and haemorrhage due to injury to superior venacava.
         (g) Continuing the investigation, P.W-12 Inspector of Police on 06.10.1999 at
10.00 a.m., arrested the accused near Villukkuruchi Kuruchadi Nagercoil bus-stop in the
   presence of P.W-8 and one Mahesh. The accused volunteered to give a confession
 statement and the admissible portion of it is Ex.P-4. The accused took the Inspector of
Police and the witnesses to a bush behind Sasthakoil, from where he took and produced
  M.O-1 knife, which was seized by P.W-12 under Ex.P-5 mahazar. The accused was
 remanded to judicial custody. At the request of P.W-12, the learned Judicial Magistrate
sent a requisition letter to the Forensic Laboratory to examine the case properties. Ex.P-
 15 is Chemical Examiner's Report and Ex.P-16 is Serologist's Report. After completion
of investigation, P.W-12 Inspector of Police filed final report against the petitioner under
                                     Section 302, I.P.C.
       3. Before the learned Sessions Judge, on behalf of the prosecution, P.Ws-1 to 12
  were examined as witnesses and Exs.P-1 to P-16 and M.Os-1 to 6 were marked. On
 behalf of the accused, no witness was examined and no document was marked. When
     the accused was questioned under Section 313, Cr.P.C. about the incriminating
circumstances found in the evidence of prosecution witnesses, the accused denied them
    either as false or not known. On consideration of oral and documentary evidence
     produced on behalf of the prosecution, the learned Sessions Judge came to the
  conclusion that the charge framed against the accused under Section 302, I.P.C. has
 been proved and convicted the accused thereunder and sentenced him to undergo life
          imprisonment and also to pay a fine of Rs. 1,000/-. Hence this appeal.
           4. Before this Court, Ms. Krishnapriya, learned counsel appearing for the
appellant, would contend that P.W-2 could not be the eye-witness and if he was an eye-
  witness, he himself could have set the law in motion, instead of P.W-1, who is not an
eye-witness, that when the occurrence has taken place in a public place where there are
   number of shops, no other independent witness was examined and further that the
   accused is aged only 17 years at the time of alleged occurrence and on the date of
  occurrence he was a juvenile. Per contra, learned Additional Public Prosecutor Mr. K.
    Radhakrishnan, would contend that apart from the evidence of P.W-2, there is the
  evidence of P.W-4 the owner of the hotel in whose shop there was a quarrel between
the accused and the server Johnson in which the deceased intervened and became the
victim and according to the learned Additional Public Prosecutor, the ocular testimony of
                   P.Ws-1 and 4 corroborate with medical evidence.
       5. We have given our anxious consideration to the rival contentions made by the
                               counsel on either side.
         6. P.W-2, though he is said to have some enmity with the accused, is a natural
 witness, since he accompanied the deceased from morning till evening for the purpose
   of settling a house on rent to the deceased, who wanted to live in Eranaile after the
  death of his wife two years ago. For that purpose, they had gone to Maniyankuzhi and
     fixed a house for a rent of Rs. 300/- per month and got the key only at 5.30 p.m.
   According to P.W-2, thereafter they cleaned the house till 9.30 p.m. to make it fit for
  occupation and thereafter both of them came to the hotel of P.W-4 to take dinner and
 while they were taking dinner and the server of the Hotel by name Johnson was serving
them, the accused came there and sat in the same table where P.W-2 and the deceased
  were taking dinner and he wanted the server to serve him first and a wordy altercation
   arose between the server and the accused, in which the deceased intervened and
                  warned the accused not to use abusive language.
         7. Therefore, it is clear that a wordy quarrel arose between the accused and the
deceased and after taking food, the accused challenged the deceased and went outside
   the shop and when P.W-2 and the deceased came out from the shop, the accused
   inflicted one stab injury on the right chest of the deceased which proved to be fatal.
 Apart from the evidence of P.W-2, there is the evidence of P.W-4, the shop owner, in
whose presence the occurrence took place and it cannot be denied. It is true that P.W-3
 has turned hostile. It is also true that other witnesses in the locality, like shop-keepers,
have not been examined on behalf of the prosecution. But, the evidence of P.Ws-2 and
 4 is cogent and clear and the presence of P.W-4 in the place of occurrence cannot be
  disputed, because the wordy quarrel arose inside his shop and outside his shop the
  occurrence took place. The occurrence has taken place five feet away from the shop
                and therefore the presence of P.W-4 cannot be suspected.
       8. The occurrence is said to have taken place at 10.30 p.m. in the night and the
 case came to be registered at 00.30 hours on the early hours of next day and the FIR
 reached the concerned court at 1.30 a.m. itself. Thus, it is clear that there is no delay
 either in making complaint about the occurrence to the police or in preparing the first
                  information report or in the FIR reaching the Court.
     9. Though after the arrest, M.O-1 knife was recovered from the accused, since the
 accused has stated in his confession that he has washed the knife, the same was not
sent by the investigation officer for chemical examination and thus there is no scientific
 proof that M.O-1 knife, said to have been recovered from the accused contained any
 blood. However, the evidence of P.Ws-2 and 4 will conclusively prove that it was this
                     accused who caused injury on the deceased.
         10. The learned counsel for the appellant would contend that there is no prior
 motive between the deceased and the accused, there is no intention on the part of the
     accused to cause the death of the deceased and in a sudden wordy quarrel the
deceased might have used provoking language against the accused, who is a boy of 17
   or 19 years and in a sudden fit of anger, he might have stabbed the deceased and,
therefore, the offence alleged to have been committed by the accused can at the worst
 come under Section 304 (2), I.P.C. and not under Section 302, I.P.C. and in support of
  her above submission, she relied on certain judgments of the Apex Court, wherein in
similar circumstances, the accused were punished under Section 304(2), IPC instead of
                                under Section 302, IPC.
       11. In 1983 (2) SCC 342 (Jagtar Singh vs. State of Punjab), the Supreme Court
                                has held as follows:-
         "8. The next question is what offence the appellant is shown to have committed?
   In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred
  around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel
   the appellant wielded a weapon like a knife and landed a blow in the chest. In these
 circumstances, it is a permissible inference that the appellant at least could be imputed
 with a knowledge that he was likely to cause an injury which was likely to cause death.
Therefore, the appellant is shown to have committed an offence under section 304, Part
II of the IPC and a sentence of imprisonment for five years will meet the ends of justice."
          12. In 1984 (2) SCC 13 (Tholan vs. State of Tamil Nadu, it has been held as
                                       follows:-
             "12. It is equally not in dispute that appellant gave only one blow with a knife.
     Appellant had no quarrel or dispute with the deceased Sampat. It is not shown that
  deceased Sampat had anything to do with the chit organized by K.G. Rajan. No malice
  has been alleged to have been entertained by the accused towards deceased Sampat.
      The incident occurred on the spur of the moment. It appears that the house of the
   deceased Sampat was somewhere near the house in which the organizers or at least
one of them was residing. Appellant had his dispute and grievance with the organizers of
       the chit. It is the prosecution case that the accused abused organizers of the chit.
      Deceased Sampat is not shown to be the organiser of the chit. Probably when the
  deceased Sampat told the accused not to misbehave in the presence of ladies and not
  to use vulgar and filthy language, the appellant retorted by questioning the authority of
        Sampat to ask him to leave the place. Presence of Sampat is wholly accidental.
         Altercation with Sampat was on the spur of the moment, even the meeting was
    accidental. There arose a situation in which appellant probably misguided by his own
  egocentric nature objected as to why Sampat should ask him to leave the place and in
   this background he gave one blow with a knife which landed on the right side chest of
    the deceased which has proved fatal. Could the appellant be said to have committed
 murder? in other words, whether Part I or Part III of Section 300, IPC would be attracted
 in the facts of this case. Even Mr. Rangam, learned counsel for the State of Tamil Nadu
        could not very seriously contend that the appellant intended to commit murder of
  Sampat. His submission was that at any rate appellant, when he wielded a weapon like
     a knife and gave a blow on the chest, a vital part of the body, must have intended to
 cause that particular injury and this injury is objectively found by the medical evidence to
      be fatal and therefore Part III of Section 300 would be attracted. On this aspect the
   decisions are legion and it is not necessary to recapitulate them here merely to cover
   idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of
   Haryana, Randhir Singh vs. State of Punjab, Kulwant Rai vs. State of Punjab and Hari
    Ram v. State of Haryana. To this list two more cases can be added: Jagtar Singh vs.
   State of Punjab and Ram Sunder vs. State of U.P. Having regard, the ratio of each of
   these decisions, we are satisfied that even if Exception I is not attracted, the requisite
intention cannot be attributed to the appellant. But in the circumstances herein discussed
  he wielded a weapon like a knife and therefore he can be attributed with the knowledge
 that he was likely to cause an injury which was likely to cause death. In such a situation,
     he would be guilty of committing an offence under Section 304, Part II of the Indian
     Penal Code. Having regard to the circumstances of the case, a sentence of 5 years
                                      would be quite adequate."
           13. In AIR 1994 SC 34 (Joseph v. State of Kerala), Their Lordships of the
                            Supreme Court have held thus:-
       "3. In this appeal the learned counsel for the appellant submits that the intention to
cause the injury which was found sufficient to cause the death in the ordinary course of
      the nature was not established. In support of this submission he relied on the
 circumstances namely that the whole incident took place because of a trivial incident
    which resulted in a quarrel and that the weapon used was only a lathi and in the
    circumstances it cannot be said that the accused intended to cause the death by
  inflicting that particular injury which objectively was proved by the medical evidence to
 be sufficient in the ordinary course of nature to cause death. In other words he submits
that clause 3 of Section 300, IPC is not attracted in this case. We find considerable force
in the submission. The weapon used is not a deadly weapon as rightly contended by the
   learned counsel. The whole occurrence was a result of a trivial incident and in those
 circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot
   be stated that he intended to cause the injury which is sufficient at the most it can be
    said that by inflicting such injuries he had knowledge that he was likely to cause the
   death. In which case, the offence committed by him would be culpable homicide not
   amounting to murder. We accordingly set aside the conviction of the appellant under
Section 302, IPC and the sentence of imprisonment for life awarded thereunder. Instead
 we convict the appellant under Section 304, Part II, IPC and sentence him to five years
                                               R.I."
       14. In the decision in Bhera vs. State of Rajasthan, 2001 (10) SCC 225, the Apex
                                Court has held as follows.
        "2…… From the evidence of P.Ws-2 and 3 it is crystal clear that the accused and
the deceased had some quarrel in the house of Bhana. On the road while they quarreled
   with each other, suddenly the accused brought out the knife and gave the blow which
  struck the chest of the deceased. On these facts, it is difficult to hold that the accused
gave the blow with the requisite intention of causing murder of the deceased. In this view
   of the matter, the conviction of the appellant under Section 302 cannot be sustained.
     Since in anger while quarrelling, the accused had given the blow which ultimately
 resulted in the death of the deceased, the offence would be one under Section 304 Part
II. We, therefore, set aside the conviction of the appellant under Section 302 and instead
            convict him under Section 304 Part II and sentence him to 5 years."
         15. The facts of the cases referred to above are also similar to the facts of this
  case, in the sense that (I) there is no motive or enmity between the accused and the
 deceased, (2) there is no intention on the part of the accused to cause the death of the
deceased, (3) the accused has inflicted only one injury in a sudden wordy quarrel in a fit
of anger and thus the offence alleged to have been committed by the accused would fall
    only under Section 304(2), IPC. In the above circumstances, the conviction of the
appellant under Section 302, I.P.C. and sentencing him for life imprisonment by the trial
   Court is liable to be modified into one under Section 304(2), IPC and we are of the
  opinion that a sentence of five years' rigorous imprisonment would meet the ends of
                                           justice.
         16. Accordingly, we set aside the conviction of the appellant/accused under
     Section 302, IPC and also the sentence imposed thereunder and instead, the
  appellant/accused is convicted under Section 304(2), IPC and sentenced to undergo
      rigorous imprisonment for five years. The period already undergone by the
    appellant/accused before trial and after trial shall be given set off. This appeal is
        disposed of with the above modification in the conviction and sentence.
                                                               Order accordingly.
                                   [2005 (2) T.N.L.R. (SC)]
                                 SUPREME COURT OF INDIA
                                         Before:
                           K.G. Balakrishnan & B.N. Srikrishna, JJ.


               Balwinder Singh                                        -Appellant
                                        Versus
          Asstt. Commissioner, Customs & Central Excise                 -Respondent


       [Criminal Appeal No. 547 of 2004 with Criminal Appeal No. 548 of 2004, decided
                               on 22nd February, 2005]
        (A) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 18, 22, 23,
    28, 29 and 30-Indian Penal Code, 1860-Section 120-B-Narcotic drugs-Recovery of
 heroin and opium-Concealed in secret chamber of truck-Evidences showing that vehicle
in question was sold in 1986 but registration was not transferred-Appellant not knowingly
   allowed any person to use vehicle for such purpose-Appellant not having any control
                over such vehicle, could not be convicted for such offence.
                                             (Para 3)
       (B) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 18, 22, 23,
 28, 29 and 30-Narcotic drugs-Recovery of heroin and opium from a truck concealed in
     secret chamber-Appellant was driver of truck-Held, no reason to interfere with
         conviction-Sentence reduced from 14 years to 10 years imprisonment.
                                          (Para 4)
                                          Counsel:-
       P.N. Puri and Anil Kumar Karnwal, advocates for the appellant; A. Sharan ASG,
 Vikas Sharma, P.Parmeswaran, Arun K. Sinha and Sandeep Bhargava, advocates, for
                                  the respondents.

                                         JUDGMENT
        K.G. Balakrishnan, JJ.,-These two appellants, along with two others, were found
guilty by the District Judge, Ludhiana for the offences punishable under Sections 18, 22,
23, 25, 28, 29 and 30 of N.D.P.S. Act and Section 120-B of the Indian Penal Code. Two
of them i.e. Tarlochan Singh, s/o Chet Singh and Devinder Singh were acquitted by the
 High Court and the present appellants i.e. Balwinder Singh and Tarlochan Singh, s/o
  Darshan Singh were found guilty. It is against this that the appellants have come up
  before this Court by way of these appeals, i.e. Criminal Appeal No. 547 of 2004 was
 preferred by Balwinder Singh and Criminal Appeal No. 548 of 2004 was preferred by
                                     Tarlochan Singh.
                                Criminal Appeal No. 547 of 2004:
     2. The facts of this case are that on 6.1.1988 two trucks bearing Registration No.
    PJA 8677 and DIL 3372 were intercepted by the Central Excise and Customs
  Department, Ludhiana Division. The officers of the Customs Department conducted
   search of the vehicle in the presence of witnesses and it was found that the truck
bearing registration No. PJA 8677 was having a secret compartment and found that 175
 Kgs. of heroin and 39 Kgs. of opium of foreign origin were concealed in this chamber.
 The sample was taken and it was found that these articles were opium and heroin as
 contended by the prosecution. During the course of investigation, the statement of the
appellant was taken under Section 108 of the Customs Act and 15 witnesses have been
     examined. The appellant herein completely denied his culpability in the crime.
           3. The present appellant has been found guilty on the ground that he was the
   registered owner of the vehicle PJA 8677. Counsel for the appellant contends that he
 purchased this lorry in 1982, along with one Kesar Singh but in 1986 he transferred the
    vehicle with a third party and the Investigating Officer - PW-13, who was examined,
    deposed that during the course of his investigation he came to know that though the
  present appellant was the original owner of vehicle bearing registration No. PJA 8677,
   he had sold the vehicle to one Sucha Singh in 1986, however the registration was not
changed in his name. This appellant was convicted solely for the reason that he was the
      registered owner of the vehicle PJA 8677. There is no evidence to prove that he
knowingly allowed any person to use the vehicle for any illegal purpose. There is also no
   evidence to prove the conspiracy set up by the prosecution. Therefore, it is clear that
 though the articles were recovered from the lorry, there is no evidence to show that the
  appellant had any control over the vehicle nor he was in possession of these drugs. In
  the result, we allow the appeal and acquit the appellant Balwinder Singh of all charges
                                     framed against him.
                                 Criminal Appeal No. 548 of 2004:
          4. In this case, the appellant Tarlochan Singh was the driver of the vehicle DIL
 3372. He was also in custody of vehicle PJA 8677. His statement was recorded under
 Section 108 of the Customs Act. From his possession the articles of opium and Heroin
  were recovered and in his statement he admitted that he knew about the presence of
these drugs in the vehicle and about the transport of the drugs illegally from Ludhiana to
 Bombay. It is evident from the statement made by him that he committed the offences
 punishable under Sections 18, 21, 22, 23, 25, 29 and 30 of the NDPS Act. We find no
    reason to interfere with the conviction and sentence entered against the appellant
     Tarlochan Singh and the criminal appeal stands dismissed. We are told that the
 appellant was convicted of this offence for the first time. The sentence imposed on him
was imprisonment for a period of 14 years. Having regard to the facts and circumstances
  of this case, we reduce the sentence from 14 years to 10 years each for the offences
under the NDPS Act and for the offence under Section 120-B of the IPC. The sentences
shall run concurrently. The direction to pay fine is maintained, but the default sentences
                                  shall also run concurrently.
                            Appeal 547 allowed. Other appeal dismissed.




                                   2005 (2) T.N.L.R. (Mad)
                                   MADRAS HIGH COURT
                                            Before:
                             N. Dhinakar and A. Kulasekaran, JJ.


                   Palani and others                             -Appellants
                                            Versus
                  State                                         -Respondent

                [Criminal Appeal No. 939 of 1997, decided on 15th April, 2005]
        (A) Indian Penal Code, 1860-Sections 147, 148, 341, 324, 302 r/w 149-Murder-
 Conviction and sentence-Legality of-Motive-Evidence of solitary witness-Reliability of-
    Occurrence took place near market in day time-But no independent witness was
examined by prosecution-Testimony of solitary witness not found to be reliable because
  she did not disclose the name of the assailant or their overt act-No test identification
   parade conducted-Conviction based on such solitary witness, improper-Appellants
 entitled to benefit of doubt.                                       (Paras 13, 14 & 15)
      (B) Criminal trial-Conviction-Based on solitary witness-Conviction on the testimony
                       of solitary witness is legal, it is wholly reliable.
                                                                    (Para 11)
                  Case law:-AIR 1973 SC 994; AIR 1996 SC 3471-referred.


                                           Counsel:-
     Mr. S. Shanmugavelayudham for A-1, A-4 and A-10; Mr. A. Sirajudeen for A-2; Mr.
 K. Kannan for A-6; Mr. V. Parthiban for A-7, No appearance for A-3, A-5, A-6 and A-9
       Mr. V.M.R. Rajendran, Additional Public Prosecutor for the respondent.

                                         JUDGMENT


          A. Kulasekaran, J.-The appellants are A-1 to a-10 in S.C. No. 21 of 1996 on the
   file of the VII Additional Sessions Judge, Chennai and they were tried for an offence
under Sections 147, 148, 341, 324, 302 read with 149, IPC and they were convicted and
   sentenced to undergo imprisonment for one year for the offence under Section 147;
 imprisonment for one year for the offence under Section 148 IPC; imprisonment for one
 month for the offence under Section 341 IPC; life imprisonment with fine of Rs. 2,000/-,
in default, six months' rigorous imprisonment for the offence under Section 302 read with
 Section 149, IPC, however, all the sentences were ordered to run concurrently, which is
                                   challenged in this appeal.
             2. The facts which are relevant for disposal of this appeal are as follows :-
     PW-1 is the mother of the deceased. PW-2 is the concubine of the deceased and
 PW-3 is the father of PW-2. The deceased and the appellants are residents of V.O.C.
  Nagar, Tondiarpet, Madras. One month prior to the occurrence, one Mahesh, who
  belonged to the group led by Sunder was assaulted by one Govindaraj, Anbu and
Yuvaraj and the appellants complained the same to the police stating that the deceased
      Kothandan was responsible for the said attack and the police also enquired him.
   Pursuant to the said incident, the group led by Sundar developed grudge against the
  deceased. On 22.5.1993 at 11.45 a.m. when the deceased was in the house of PW-2,
PW-1 went there and called him for lunch. At that time, the appellants, who are members
of the group led by the said Sundar came from the market side armed with weapons. A-1
  and one Ravi told the other appellants that the deceased assuming himself as a leader
 of a gang and instructed them to cut him. A-7 came nearer to the deceased and caught
hold of his head A-2 cut the deceased on his left leg and elbow. When PW-1 attempted
 to prevent them, A-2 caused a cut on her right forearm. A-5 cut the deceased on his left
  arm. A-6 cut the deceased on his left wrist. A-4, A-8 and A-10 cut the deceased on his
  left arm, thigh and legs indiscriminately and the deceased fell down in a pool of blood.
      The said incident was also witnessed by PW-2 and she begged A-7 to leave the
     deceased, but he, along with other accused did not stop attacking the deceased.
 Thereafter, they ran away from the scene of occurrence with the weapons. At that time,
   a police party from the adjacent street came to the scene of occurrence and removed
        the deceased to Stanley Medical College Hospital in an auto-rickshaw. PW-1
accompanied the deceased to the hospital, but on the way to the hospital, the deceased
   breathed his last. PW-5, Inspector of Police attached with New Washermanpet Police
    Station, on information, proceeded to the Stanley Medical College Hospital at about
12.00 Noon, enquired PW-1 and recorded her statement, which was later marked as Ex.
P-1. He came back to the police station at 12.45 p.m. and registered a case in Crime No.
      736 of 1993 under Sections 147, 148, 341, 324 and 302 read with 149, IPC. He
   prepared printed FIR, Ex.P4 and the same was forwarded to Court as well as higher
police officials. Thereafter, he went to the scene of occurrence and prepared observation
mahazar, Ex. P-6. He drew rough sketch under Ex. P-5. He recovered the blood stained
   soil and sample soil, MOs 1 and 2 respectively under a mahazar, Ex. P-7 attested by
  witnessed. Thereafter, he proceeded to Stanley Medical College Hospital, summoned
  Panchayatars and conducted inquest over the body of the deceased in their presence.
  Ex. P-8 is the inquest report. After completion of inquest, he prepared a requisition, Ex.
  P-2 addressed to the Doctor, PW-4 with a request to conduct autopsy over the body of
    the deceased. On receipt of Ex.P-2, PW-4 commenced post-mortem and found the
                       following injuries on the body of the deceased.:-
                                             Injuries :-
                   I. Incised wound front of middle of right arm 9 x 3 x 2 cms.
                  II. An oblique incised wound on the right wrist 5 x 3 x 1 cms.
          III. Incised wound on the base of right thumb 2.5 x 2 x bone-deep. O/D the
                               underlying cut 2 x 1/4 cms.
       IV. Incised wound on the palmar aspect or base of right index and middle finger 5
             x 2 cms x bone-deep. O/D the underlying bone is cut 4 x 1 cms.
           V. Incised wound on palmar aspect of base of right ring finger 1 x .5 cm.
                VI. An oblique incised wound across the right palm 4 x 1 cms.
        VII. Incised wound on the front of lower third of right leg 8 x 4 cms x bonedeep.
                     O/D. both bones of right leg found completely cut.
           VIII. Incised wound on the back of lower third of right leg 4 x 1.5 x. 1 cms.
      IX. Superficial incised wound 2 x 1 cms. 3" above the medial malleolus of right leg.
      X. Incised wound 6 x 1 cms. x bone deep on the right medial malleolus. O/D. The
                            underlying bone cut 6 x 1 cms.
      XI. Incised wound 8 x 2 cms. x bonedeep on the right medial malleolus. O/D. The
                            underlying bone cut 6 x 1 cms.
        XII. An oblique incised wound on the medial aspect of right foot close to each
other. 6 x 1.5 cms. x bonedeep. 8 x 1 cms x bone deep. 4 x 1 cms. x bonedeep. 12 x 2
           cms x bonedeep. O/D. Multiple cuts seen in the bones of right foot.
       XIII. Incised wound lower third of left arm 10 x 4 cms. x bonedeep. O/D. A cut in
                                the humerus 4 x 1 cms.
       XIV. Extensive incised wound at the left elbow joint with traumatic amputation of
             the left forearm at the level of elbow attached by a tag of skin.
      XV. Incised wounds on the left forearm 3 x 1 cms., 4 x1 cms. x bonedeep O/D. A
                        cut 3 x .5 cms in the underlying bone.
       XVI. Incised wound 6 x 2 cms. x 2 cms. on the the outer aspect of upper part of
                                     left forearm.
        VII. Incised wound 14 x 7 cms x bonedeep on the outer aspect of middle of left
                  forearm. O/D. A cut in the underlying bones 4 x .5 cms.
       XVIII. Incised wound 5 x 3 cms. x bonedeep just above the left wrist joint. O/D. A
                          cut 4 x 1 cms. in the underlying bone.
                    XIX. Incised wound 2 x 1 cms. on the back of left hand.
      XX. Incised wound 11 x 4 cms. on the back of left hand at the base of fingers with
           traumatic amputation of all the fingers, attached by a tag of skin.
        XXI. Incised wound on the palmar aspect of left thumb 2 x 1 cms., 3x 2 cms. x
                      bonedeep with a cut in the underlying bone.
         XXII. Abrasion 8 x .5 cms, 9 x .5 cms., 6 x 5 cms., on the front of left thigh.
      XXIII. Incised wound 25 x 10 cms x bonedeep extending from the front of left knee
    to the back of upper part of left leg. O/D bones of the knee joint found in pieces.
        XXIV. Incised wound 15 x 4 cms x bonedeep middle of outer aspect of left leg.
                          O/D. Fibulla found completely cut.
        XXV. Incised wounds close to each other 9 x 10 cms x. bonedeep on the outer
         aspect of lower third of left leg. O/D. both bones of left leg found cut.
        XXVI. Incised wounds on the outer aspect of left ankle and feet close to each
other. 10 x 2 cms x bonedeep. 14 x 4 cms x bonedeep. 11 x 3 cms x bonedeep. 13 x 3
                    cms. x bonedeep. Bones of ankle and foot cut.
        All the injuries are antemortem. On Dissection : Heart : Empty, Lungs, Pale.
  Stomach : 100 ml of thick turbid liquid. Liver Spleen & Kidneys : Pale, Bladder: Pale.
                                       Brain : Pale.
      The Doctor PW-4 who conducted post-mortem over the body of the deceased and
issued Ex. P-3, Post-mortem certificate opined that the deceased appeared to have died
              of shock and haemorrhage due to multiple incised wounds.
        3. In the meantime, PW-5 continued with his investigation and arrested A-2, A-3,
      A-5, A-6 and A-7 on 23-5-1993 and recorded their statement. A-2 has given a
 confession statement, based on the same, PW-5 seized the knife under a mahazar Ex.
 P.9 attested by witnesses. On 27.5.1993, he arrested A-1, A-8 and A-9 and they have
also given confession statement, in which admissible portion of the statement of A-1 was
marked as Ex. P-10, attested by witnesses. Pursuant to the said statement, A-1 took the
 police party to Military Courts where he took out a knife from a bush, which was seized
  under a mahazar Ex. P-11 attested by witnesses and thereafter, all the accused were
    sent to Court for remand. PW-5 went to the Stanley Medical College Hospital and
collected the accident register issued to the deceased, which was later marked as Ex. P-
    12. He also sent the material objects to the Court with a request to send them for
 chemical analysis under a memo Ex. P-13. Ex. P-15 is the Serology report. PW-5 also
  enquired PW-4 and recorded her statement. In the meantime, one Ravi and A-4 have
surrendered before the Court. Thereafter, PW-5 was transferred and his successor PW-
 6 continued his investigation and after scrutinisation of the records, he filed final report
            on 29.7.1993 under Sections 147, 148, 341, 302 read with 149, IPC.
       4. The appellants were questioned under Section 313 Cr.P.C. in respect of the
   incriminating circumstances appearing against them, but they denied the same,
however, they have not examined any witness on their side or marked any documents in
                              support of their defence.
       5. The learned counsel appearing for the appellants submit that there is no motive
   for the offence alleged against the appellants; that the trial Court ought not to have
  accepted the interested testimony of PW-1, who is none other than the mother of the
 deceased; that PW-1 has not mentioned any specific overt act by the appellants on the
deceased; that the evidence of PW-1 is not supporting the case of the prosecution in any
 manner; that assuming the entire bundle of allegations unfolded by the prosecution are
taken to be true, it will not make out a case as alleged by the prosecution and prayed for
 setting aside the conviction and sentence imposed by the trial Court on the appellants.
        6. We have also heard the learned Additional Public Prosecutor on the above
contentions, who justified the conviction and sentence imposed by the trial Court on the
                                        appellants.
         7. The cause of death of the deceased stands established by the prosecution
through PW-4, Doctor, who conducted post-mortem over the body of the deceased and
  stated that the deceased died due to shock and haemorrhage due to multiple incised
    wounds, which are caused by homicidal violence. The appellants herein have not
disputed that the deceased died due to homicidal violence either before the trial Court or
   before this Court, hence, we hold that the deceased died due to homicidal violence.
         8. The prosecution has examined PWs-1 and 2 as witnesses to the occurrence.
 PW-1 is the mother and PW-2 is the concubine of the deceased. PW-1 in her evidence
 has stated that on 22.5.1993 at about 11.45 a.m. she went, to the house of PW-2 to call
    the deceased for lunch. At that time, the appellants herein came there armed with
  weapons and cut the deceased indiscriminately and caused his death. It is also stated
that when she attempted to prevent them from cutting the deceased, she sustained a cut
  injury on her right hand and the police, who were near the scene of occurrence came
  there and removed the deceased to Stanley Medical College Hospital, Chennai in an
   suto-rickshaw. PW-4, the Doctor who attended on the deceased, after examination
 declared him dead. Thereafter PW-5, Inspector of Police came to the hospital, to whom
PW-1 narrated the entire incident and it was reduced into writing in which she affixed her
thumb impression and the same was later marked as Ex. P-1. PW-1 also stated that she
 was not aware how many persons were there in the scene of occurrence. Though she
 claimed that she knows the appellants, however stated that their names are not knows
     to her. She further deposed that she has seen the appellants only at the time of
  occurrence and not before. She has also admitted that Sundar was not known to her.
  She denied the suggestion that she was not in the scene of occurrence and therefore
         she is unable to mention the name of the appellants, who were present.
         9. Though PW-2 was fielded by the prosecution as an eye-witness, she was
treated as hostile, hence, the prosecution was left with only one witness namely PW-1 to
                          prove the guilt against the appellants.
         10. Though PW-1 is able to mention all the names of the appellants in Ex. P-1,
  complaint, she has not whispered even a single name of the appellant when she was
  examined before the trial Court. Similarly, she has not attributed any overt act against
 any of the appellants. Except the denial of suggestion that she was not at all present in
 the scene of occurrence, her evidence is of no use to the prosecution. In this context, it
 is necessary to point out the version of PW-1 from her evidence 'that she has seen the
appellants for the first time during the occurrence and not earlier' While so, it is not made
known by the prosecution how could she identify the appellants. Admittedly, in this case,
                           no test identification has been conducted.
      11. Conviction based on the evidence of sole eye-witness is sustainable in law, if it
is found to be reliable. In this context, it is useful to mention here that a witness may be
     wholly reliable; may be neither wholly reliable nor unreliable and; may be wholly
unreliable. Conviction on the testimony of solitary witness is legal, if he or she is wholly
reliable; Followed Jose vs. State of Kerala, AIR 1973 SC 994. The matter thus depends
 upon the circumstances of each case and the quality of the evidence, even of a single
witness, whose testimony either to be accepted or rejected. If such a testimony is found
   by the Court to be entirely reliable, then there is no legal impediment to convict the
                                   accused on such proof.
        12. Applying the above said principles, now we analyse the solitary evidence of
    PW-1. PW-1 in her evidence was not able to mention even a single name of the
 appellants or their overt act. She admitted that she has not seen the appellants prior to
the occurrence and saw them only during the occurrence. When a specific question was
   put to her to mention even a single name of the appellants who were standing, she
 admitted that she could not. Hence, we are of the considered view that the evidence of
                                  PW-1 is not acceptable.
          13. An argument was advanced by the learned counsel for the appellants that
   there is no motive at all for the appellants to commit the alleged crime. We feel some
substance in the said argument. Motive is that which makes a man to do a particular act.
 There can be no action without motive, which must exist for every voluntary act. Though
  the prosecution is not bound to prove motive for the crime, absence of any motive is a
factor which may be considered in determining the guilt of the accused in the event of no
valid evidence. As we have already pointed out, the evidence of PW-1 is not trustworthy,
 hence, we are constrained to hold that the motive set out by the prosecution cannot be
                     said to be sufficient for the crime in question.
        14. Admittedly, the occurrence took place near the market at 11.45 a.m. but no
independent witness was examined by the prosecution. As we have already pointed out
that the solitary evidence of PW-1 does not disclose the name of the assailants or their
  overt act, the conviction of the appellants by the trial Court, based on her evidence is
   improper. Hence we hold that the prosecution has not proved the case against the
                           appellants beyond reasonable doubt.
        15.The honourable Supreme Court in the decision reported in Alil Mollah and
another vs. State of West Bengal, AIR 1996 SC 3471 held that to perpetuate an error is
   no virtue, but to rectify it is a compulsion of judicial conscience. Applying the said
decision in this case, when the appellants were convicted for committing the murder of
 the deceased solely relying on the testimony of solitary witness namely PW-1, which
was unbelievable and uncorroborated by any other independent witness, the conviction
       and sentence imposed on them by the trial Court is liable to be set aside.
       16. Hence, we have no other alternative except to set aside the conviction and
sentence imposed by the trial Court on the appellants, by giving benefit of doubt to them,
and accordingly they are set aside. The Criminal Appeal allowed. The bail bonds, if any,
                   executed by the appellants shall stand cancelled.
                                                                  Appeal allowed.

                                   2005 (2) T.N.L.R. (Mad)
                                   MADRAS HIGH COURT


                                          Before:
                            N. Dhinakar and M. Chockalingam, JJ.


                   Mrs. Ismail Beebi                               -Appellant
                                             Versus
          State, rep. by Inspector of Police, Vellakoil Police Station   -Respondent


                  [Crl. Appeal No. 385 of 1999, decided on 25th July, 2005]
        Indian Penal Code, 1860-Section 302-Murder-Four-month old child by throwing
into well-Appellant alleged to have thrown her four months child into well due to poverty
and constraint-She was deserted by her husband leaving two children, one aged about
  four years and the other aged about four months-Medical evidence corroborated by
statement of witnesses-Court unable to notice any reason to disbelieve the evidence of
   PW-1-Appellant found guilty of offence and was rightly convicted and sentenced by
  Court below-Since appellant woman has lost her four months old child on account of
mental strain due to the desertion by her husband and she has another child, the Court
                  recommending the case for revision of her sentence.
                                                               (Paras 9 to 13)
                                          Counsel:-
           Mr. Saravanakumar, for the appellants ; Mr. S. Jayakumar, APP, for the
                                    respondent.

                                         JUDGMENT
      M. Chockalingam, J.,-The sole accused in a case of murder on being found guilty
  as per the charge and awarded life imprisonment by the Court of Sessions, Erode, in
                S.C. No. 208 of 1998 has preferred the present appeal.
      2. The short facts necessary for the disposal of this appeal could be stated thus :-
        PW-1 is a resident of Vellakoil Kacherivalasu. The appellant also belongs to the
same village. The appellant was having two children, one aged about four years and the
   other aged about four months. She was deserted by her husband who went over to
Madurai. On the date of occurrence, namely, on 20.9.1997, about 7.00 p.m, when PW-1
was returning from the temple after attending nature's call, she found the appellant going
 near the well having one child over her shoulder and taking the other child by her hand.
The appellant on nearing the well threw the four months old baby child into the well. This
  was witnessed by PW-1 when the appellant attempted to throw the other child, also,
  PW-1 stopped her and when she shouted for help, PWs-2 , 3 and 4 came over there.
      The appellant was caught and she was asked to wait aside with the other child.
 Immediately PW-1 rushed to Vellakoil Police station at about 10.00 p.m. where PW-11
 was on duty at that time. She gave an oral complaint to PW-11, which was reduced into
writing and which stands marked as Ex. P-1. On the strength of the complaint, Ex. P-1, a
case came to be registered against the appellant in crime No. 447/98 under Section 302,
          IPC. Printed first information report, Ex. P-5 was despatched to Court.
     3. On receipt of a copy of the printed first information report, PW-12, the Inspector
 of Police, Vellakoil, took up investigation in the crime. He proceeded to the scene of
occurrence, made an inspection in the presence of two witnesses and prepared Ex. 12,
observation mahazar and drew a rough sketch, Ex. P-6. He conducted inquest over the
dead body of the deceased child in the presence of witnesses and panchayatdars and
   prepared Ex. P-7, inquest report. He sent the dead body of the child alongwith a
                    requisition to the doctor for conducting autopsy.
          4. On receipt of the requisition, P.W-9, the Assistant Surgeon attached to the
Government Hospital, Kangeyam, conducted autopsy on the dead body of the deceased
 child. The doctor issued Ex. P-4, the post-mortem certificate opining that the deceased
      would appear to have died of drowning about 30 to 38 hours prior to autopsy.
       5. PW-12, in the meantime, continuing with investigation arrested the accused and
 she was sent to Court for remand. On completion of the investigation, the investigating
officer filed the final report against the accused and the case was committed to the Court
 of Sessions, necessary charge was framed and the accused was tried by the Court of
                                            sessions.
           6. In order to substantiate the charge levelled against the appellant, the
prosecution marched twelve witnesses and relied on seven exhibits. No material objects
were marked. On completion of the evidence on the side of the prosecution, the accused
was questioned under Section 313, Cr.P.C. on the incriminating circumstances found in
the evidence of the prosecution witnesses. The accused denied them flatly as false. No
  defence witness was examined nor any documents were marked. After hearing the
 submission made by both sides on scrutiny of the materials, the trial Court found the
appellant guilty as per the charge and awarded life imprisonment. Hence, this appeal by
                  the appellant against the said conviction and sentence.
             7. Learned counsel appearing for the appellant inter alia made the following
   submissions. In the instant case, though number of witnesses have been marched by
  the prosecution as witnesses, PW-1 was the only witness examined to speak about the
 occurrence. According to P.W-1, she witnessed the appellant throwing the child into the
   well. When her evidence is viewed it could be seen that it is falsity and it is improbable
   and, therefore the lower Court should have rejected the testimony outright. Apart from
     that, the daughter of PW-1 had illicit intimacy with the husband of the appellant and,
    therefore, the appellant was having a quarrel over the same with PW-1 at the time of
 occurrence and during that quarrel, accidentally the child fell into the well and, therefore,
it was not the act of the accused and in the circumstances PW-1 had come out with false
 evidence implicating the appellant with the crime in order to see that the appellant is put
      in custody. The lower Court, in such circumstances, should not have believed the
   evidence of PW-1. Apart from that, the occurrence had taken place at about 7.00 p.m
  and there was no possibility of PW-1 seeing the occurrence as it was night hours. That
  apart, the other attendant circumstances as brought forth by the prosecution before the
  trial Court would falsify the evidence of PW-1 and in the circumstances the appellant is
           entitled for the benefit of doubt and, hence, she is entitled for an acquittal.
      8. The Court heard the learned Addl. Public Prosecutor appearing for the State on
     the above contentions and also perused the recorded evidence, both oral and
                                    documentary.
      9. It is not in controversy that the four months old child of the appellant died due to
 drowning. This fact has been substantiated by the prosecution through the evidence of
 the doctor. PW-9 through whom the post-mortem certificate, Ex.P-4 was also marked.
  The appellant has not disputed the cause of death of the child either before the Court
   below or before this Court. On the medical evidence we hold that the child died on
                                    account of drowning.
         10. The gist of the case of the prosecution as could be seen from the available
 materials is that it was the appellant who threw the child into the well and the same was
witnessed by PW-1. From the evidence of PWs-2 to 5 it would be clear that they came to
    the place of occurrence only after PW-1 raised a cry and thus the only eye-witness
  available for the prosecution is PW-1. According to PW-1, when she was coming from
the temple after attending nature's call she found the accused going nearby the well with
   two children and suddenly she threw the four months old child into the well . It is her
further evidence that when the appellant attempted to throw the other child also, she was
   stopped by PW-1 and on hearing the cries of PW-1, the other witnesses came to the
   scene. It is pertinent to point out that PW-1 is an utter stranger to the appellant. What
 was all contended before the Court below and equally here also is that the daughter of
 PW-1 had illicit intimacy with the husband of the appellant and in the circumstances she
 has given false evidence in order to send the appellant to custody. This contention has
 been rejected by the trial Court and righltly too. In the absence of any material the said
 contention advanced by the appellant cannot be countenanced. This Court is unable to
  notice any reason or circumstance to disbelieve the evidence of PW-1. Apart from that
 the evidence of PW-1 has inspired the confidence of the Court and, hence, this Court
                           accepts the evidence of PW-1.
       11. On going through the evidence adduced by the prosecution, this Court does
 not see any reason to take a different 1view from the one taken by the trial Court and
 this Court has to necessarily find the appellant guilty and the conviction and sentence
imposed on the appellant by the trial Court are confirmed. In the result, this appeal fails
  and the same is dismissed. It is reported that the appellant is on bail. The Sessions
Judge shall take steps to secure the appellant and commit her to prison to undergo the
                    remaining portion of sentence imposed upon her.
         12. Learned counsel for the appellant submits that a perusal of the evidence
 adduced by the prosecution would clearly show that the appellant was deserted by her
 husband, who went over to Madurai leaving herself and the two children. As she could
not maintain herself, the poverty stricken lady, due to circumstances, has thrown the four
 months old child into the well. The learned counsel persuasively submits that this Court
 may consider recommending the case of the appellant on sympathetic grounds to His
                   Excellency the Governnor for remission of sentence.
            13. This Court taking the facts in this case feels that this is a fit case for
 considering remission of sentence by His Excellency the Governor of Tamil Nadu under
Article 161 of the Constitution of India. We have already noted that the appellant woman
has lost her four months old child on account of mental strain due to the desertion by her
 husband and that she has another child, who has to be taken care of. We therefore, on
consideration of the case of the appellant, recommend to His Excellency the Governor of
                        Tamil Nadu for remission of her sentence.
                                                                Appeal dismissed.

				
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