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State of UP vs Ram Kumar & Ors

Court 1 Jul 18, 2026

The Supreme Court of India today ruled in favor of the State of Uttar Pradesh regarding the land acquisition dispute in Ram Kumar's property. The bench observed that public interest outweighs private property rights in this specific municipal development project...

Ramesh Chandra vs Union of India

Court 1 Jul 17, 2026

In a landmark judgment, the apex court has directed the Union of India to expedite the formation of tribunals under the new Telecom Act. The delay was deemed unconstitutional and affecting the fundamental rights of telecom operators...

M/s TechCorp Solutions vs Commissioner of Income Tax

Court 1 Jul 16, 2026

The court clarified the interpretation of Section 80IA of the Income Tax Act, stating that software technology parks are entitled to the deduction even if they were formed by splitting up an existing business, provided the new unit is entirely distinct.

Sunita Devi vs Manoj Sharma & Ors

Court 1 Feb 15, 2024

This case involves adverse possession. The respondent claimed ownership of ancestral land in Greater Noida after residing there for 15 years. The Court reiterated that mere possession, however long, does not translate to adverse possession. Under Article 65 of the Limitation Act, the possession must be open, continuous, and hostile to the true owner (nec vi, nec clam, nec precario). Since the respondent initially entered as a tenant, the claim of adverse possession fails.

Suresh Chandra vs Board of Revenue U.P.

Court 2 Jan 11, 2024

This second appeal involves a dispute over the partition of joint family agricultural property. The Court ruled that under the U.P. Zamindari Abolition and Land Reforms Act (now subsumed in the U.P. Revenue Code), a co-tenure holder can file a suit for partition under Section 116. The Court emphasized that physical possession does not automatically amount to partition unless a formal decree of partition is passed and demarcated on the spot by the revenue authorities.

Rameshwar Dass vs State of Uttar Pradesh

Court 1 Sep 12, 2023

The appellant challenged the cancellation of a sale deed executed in 1998. The Supreme Court held that under Section 31 of the Specific Relief Act, a registered sale deed cannot be unilaterally cancelled by the vendor. The Sub-Registrar has no power to register a cancellation deed without a civil court decree if the original deed was validly executed and possession was handed over. The Transfer of Property Act mandates that once title passes, it can only be reversed through a court of law.

Ram Kishan vs State of U.P. and Ors

Court 2 Aug 21, 2023

The petitioner challenged the mutation of a property in the name of the respondents by the Tehsildar in a disputed land matter in Noida. The Allahabad High Court held that mutation proceedings in revenue records are purely fiscal in nature for the purpose of collecting land revenue and do not decide or confer title. Title disputes regarding agricultural land must be decided by the competent Revenue Court under Section 144 of the U.P. Revenue Code, 2006, whereas title disputes regarding abadi/non-agricultural land must be adjudicated by a Civil Court.

Vikas Builders vs Ghaziabad Development Authority

Court 2 Dec 05, 2022

The petitioner builder challenged the demolition order passed by GDA under the U.P. Urban Planning and Development Act, 1973. The Court held that prior to sealing or demolishing a property for unauthorized construction, the Authority is statutorily bound to issue a show-cause notice under Section 27(1) giving adequate time to reply. Demolition without proper notice and hearing violates the principles of natural justice and is legally unsustainable.

Supertech Builders vs RERA Appellate Tribunal

Court 1 Nov 04, 2022

Homebuyers filed complaints regarding delayed possession of flats in Noida. The builder argued force majeure due to the pandemic. The Court held that under the Real Estate (Regulation and Development) Act (RERA) 2016, developers are strictly liable to refund the amount with interest or hand over possession. The strict timeline under RERA cannot be bypassed using generic force majeure clauses in builder-buyer agreements.

Unknown Title 585040

Court 1

[Cites 19, Cited by 2526] Supreme Court of India State Of Goa vs Sanjay Thakran And Anr on 2 March, 2007 Author: P.P. Naolekar Bench: B.N. Agrawal, P.P. Naolekar CASE NO.: Appeal (crl.) 873 of 2004 PETITIONER: STATE OF GOA RESPONDENT: SANJAY THAKRAN AND ANR DATE OF JUDGMENT: 02/03/2007 BENCH: B.N. AGRAWAL & P.P. NAOLEKAR JUDGMENT: JUDGMENT WITH CRIMINAL APPEAL NO. 874 OF 2004 SUBHASH CHANDRA NANDA .. APPELLANT(S) VERSUS SANJAY THAKRAN AND ANR. ....RESPONDENT(S) P.P. NAOLEKAR, J. Aggrieved by the judgment and final order dated 30-09-2003 of the High Court of Bombay at Goa whereby the accused persons/respondents, namely, Sanjay Thakran (respondent no. 1/A- 1) and his wife Anjali Thakran (respondent no. 2/A-2) were acquitted of the offences charged under Sections 120-B, 364, 302 and 392 read with Section 34 of the Indian Penal Code, 1860, these criminal appeals have been preferred by the State of Goa and father of one of the deceased persons. Earlier, by the judgment delivered on 09-01- 2002, the Court of IInd Additional Sessions Judge, Panaji has acquitted both the accused persons of all the abovementioned charges levelled against them. The relevant facts, as per the evidence adduced and the First Information Report, are that on 26-02-1999, the deceased couple, namely, Vikas Nanda (D-1, age 26 years) and Kavita Nanda @ Priya Nanda (D-2, age 23 years), arrived in Goa from Mumbai for their honeymoon and stayed in Hotel Seema at Ribandar. On 27-02-1999, the deceased couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver and had also taken them for the sight-seeing trip a day earlier as well. At about 2.30 p.m., D-1 told P.W.-13 that they had met some friends from Delhi and hence P.W.-13 returned from there. P.W.30-Suhasini Govekar, who operated a shack at Anjuna beach with her husband, mentioned that on 27-02-1999, the accused couple and their children came to her place in between 1.00-2.00 p.m. and then went to take bath. When they returned back, the deceased couple accompanied them. The accused couple was running a bar and the restaurant Iguana Miraj and hotel Lalita Beach Resort in Goa. P.W.11-Dinesh Adhikari, who was servant of the respondents, saw the deceased couple at respondents' hotel 2 or 3 days preceding the festival of Holi in the year 1999 at approximately 6.00-7.00 p.m. According to this prosecution witness, A-1-Sanjay Thakran, D-1-Vikas Nanda and P.W.14-Calvert were sitting outside the hotel and A-2-Anjali Thakran was sitting with D-2-Priya Nanda inside a room in the hotel. He saw A-1-Sanjay Thakran and D-1-Vikas Nanda walking towards the beach sometime after 9.00-9.30 p.m. and that was the last time when D-1 was seen alive. After sometime P.W.11 saw A-1-Sanjay Thakran, A-2-Anjali Thakran and D-2-Priya Nanda as they were walking away from Iguana Miraj. Another prosecution witness, P.W.14-Calvert Gonsalves also saw the deceased couple at the hotel of the accused couple. As per P.W.6-Amit Banerjee, who was working as a receptionist at Hotel Seema, D-2-Priya Nanda returned to Hotel Seema without D-1 and along with A-1-Sanjay Thakran at about 11.30 p.m. She asked for the key of their room from P.W. 6. A-1- Sanjay Thakran helped her to carry the luggage from the Hotel room as she checked out about 11.40 p.m. A-2 did not come to the hotel and remained seated in the white colour Maruti Car that had a Delhi registration number on it. D-2-Priya Nanda, A-1-Sanjay Thakran and A-2-Anjali Thakran went away in that car and thus, D-2 was also last seen alive in the company of the accused couple. On 28-02-1999, P.W.2-Charles Mills lodged a report at Anjuna Police Station that a dead body of unknown female foreigner (later identified as D-2) was found at the Vagator Beach. According to this witness, who was staying near the beach, at around 7.30 a.m., he was told by someone that a female body was floating in the seawater. The deceased was wearing a blue skirt and a top. On the same day, P.W.17-Fausto Afonso lodged report with Colva Police Station that a dead body of unknown male foreigner (later identified as D-1) was found at about 00.30 hours at the Benaulim Beach. The distance between the Vagator Beach and Benaulim Beach is around 60 kilometers. As the deceased couple neither returned to Delhi as expected by 01-03-1999 nor contacted P.W.33-Subhash Nanda i.e., father of D-1, he called up P.W.4-A.C. Duggal to inquire about them. Accordingly, P.W. 4-A.C. Duggal, who was uncle of D-1 and lived in Mumbai, called up N. Murari, who was posted in Goa and worked in the Union Bank of India with P.W.-4, to know about their whereabouts on 01-03-1999. N. Murari told P.W.-4 that they had already checked out of the Hotel Seema. Since the deceased couple did not reach Mumbai as stipulated by P.W.-4 on 02-03-1999, he again called up N. Murari. On 03-03-1999 at about 7.15 p.m., N. Murari informed P.W.-4 that a dead body of male person with similar description to that of Vikas had been found and asked him to come to Goa. P.W.-4 rushed to Goa and identified the dead body of D-1-Vikas Nanda on 04-03-1999. On the same day, N. Murari lodged a missing report [Exhibit No. 20] at Old Goa Police Station. After identifying the body of D-1-Vikas Nanda at morgue, P.W.-4 went to Seema Guest House and made inquiries about the couple. The dead body of D-2 was also identified on 05-03-1999. P.W.-4 lodged a complaint [Exhibit No.21] on 05-03-1999 at Anjuna Police Station with P.W. 38- Sub-Inspector Sandesh Chodankar. According to this complaint, on 04-03-1999, P.W.-4 was informed by Hotel Manager that D-2 checked out from hotel on 27-03-1999 at about 11.40 p.m. and another person having short built, bald from front and having fair complexion accompanied her. The complainant believed that since the dead bodies of the couple had been found at places nearly 60 kilometers away from each other, the newly married couple must have been lured by some disgruntled mischievous element, who had killed them for their ornaments, as all the gold ornaments of the deceased couple were found missing. P.W.26-Dr. Silvano Dias Sapeco, who conducted the postmortem [Exhibit No. 80] on the body of D-2 on 01-03-1999, found the following ante-mortem injuries: 1. Red bruise 20 cms. Diameter on left mid upper arm. 2. Red bruise 1.5 cms. Diameter on right inner aspect of upper third region of thigh. 3. Red bruise 1.5 cms diameter on left mid thigh in inner aspect. 4. Red bruise 1.25 cms. Diameter on right mid lower leg at calf region. 5. Red bruise 1.25 cms. Diameter on left mid lower leg at calf region. and it was opined that these were caused by blunt weapons. Due to the fact that the doctor, who initially conducted postmortem on body of D-1-Vikas Nanda on 01-03-1999, had not preserved any viscera or material, on 05-03-1999 a second postmortem [Exhibit No. 95] was conducted by P.W.32-Dr. E.J. Rodrigues, which exposed the following ante-mortem injuries: 1. Abrasion reddish and fresh of 6 x 4.5 cms. Present on upper outer part on right side face between outer orbital margin, 2 cms. in front of right tragus of ear and extending on outer part of right cheek bone. No bruising underneath. 2. Abrasion reddish and fresh of 2.5 x 1 cms. Placed vertically on the ridge of nose. No bruising underneath. No injuries to alae of nose. 3. Abrasion reddish and fresh of 5 x 3 cms. on left side upper part of face 2 cms. in front of left tragus of ear extending upto outer orbital margin and also on outer part of left cheek bone. No bruising underneath. 4. Abrasion reddish and fresh of 0.5 x 0.5 cms., 1 cm. above outer end of right eyebrow. 5. Abrasion reddish and fresh of 0.5 x 0.5 cms., 1.5 cms. above outer end of left eyebrow. 6. Abrasion reddish and fresh of 3 x 2 cms., upper middle back of right shoulder. 7. Abrasion reddish and fresh of 2 x 1.5 cms., upper back of left shoulder at acromial process region. and it was opined that they were caused with blunt surface. The postmortem reports of both the deceased persons have concluded that death had occurred as a result of asphyxia due to drowning in shallow beach water. From their initial investigation, the Goa police found out about the description of the accused couple and their children. The flat belonging to the accused persons was sealed under the orders of a Civil Court. P.W.-38, therefore, applied to the Judicial Magistrate, Ist Class, Margoa for issuance of search warrant. The Judicial Magistrate, Ist Class, Margoa directed that the bailiff of the Court would accompany P.W.-38 and in the presence of two respectable panchas from the locality, the seal of the court would be opened and inventory of the movable articles and fixtures found in the flat should be made. After the search, the flat should be resealed/locked and the bailiff would file a report to the Court. Accordingly on 17-12-1999, the police conducted search of the flat of accused, which was located at Sapna Residency, Colva. During this search, P.W.-38 attached the passports of the accused-respondents and their two children, two visiting cards of P.W. 19-Subrato Padhi, a visiting card of Iguana Restaurant and one laminated photograph. [House Search Panchnama as Exhibit No. 13 and Report regarding Search Warrant which was submitted to Judicial Magistrate, Ist Class, Margoa as Exhibit No. 108]. The Court bailiff, who accompanied with P.W.-38 and other panch witnesses, prepared a list of movable articles of the flat [Exhibit No. 112]. The flat was resealed after the search was over. On 30-01-2000, the accused persons were arrested in Agra by P.W. 15- Police Inspector Navrang Singh, who was posted at police station of Sadar Bazar, Agra. P.W.-38 accompanied with Dy. Superintendent of Police P.W.29-Arvind Gawas, arrived at Agra on the same day. P.W.-15 informed them that A-1-Sanjay Thakran handed over a double barrel gun and A-2-Anjali Thakran took out and handed over a single barrel 12-bore gun from the cupboard. During the house search of the accused persons, police recovered a churidhar set, a ladies purse and some newspapers containing reports that were connected with investigation of the present case. According to the prosecution story, the recovered materials were identified by P.W.33-Subhash Nanda, father of Vikas and P.W.5- Kishen Valecha, brother of Priya as belonging to the deceased couple. P.W.38-Sandesh Chodankar, Sub-Inspector interrogated the accused persons and satisfied himself of their complicity in the crime. On 31-01-2000, he further obtained transit remand and custody of the accused couple. The accused were brought back to Goa on 01-02- 2000 and formally arrested in connection with the present case. On 08-02-2000, as alleged by prosecution, during the interrogation A-1-Sanjay Thakran disclosed to P.W. 38Sandesh Chodankar about the fact that murder of the deceased couple was committed by his wife and him and that the belongings of the deceased couple were present in his flat. On 11-02-2000, in presence of Court bailiff-Peter Fernandes and other panch witnesses, A-1 handed over jewellery from his flat B-2 F-3 at Sapna Residency, Colva. The jewellery, which was handed over to police, consisted of eight yellow metal bangles, one pair of ear-rings and one finger ring. As has been alleged by the prosecution side, he also produced clothes such as a white full-sleeves shirt, a saffron-coloured women's kameez with a cream-coloured salwar, a green-coloured saree with blouse, a light cream-coloured silken kurta pyjama and a designer black full-sleeves shirt, which belonged to the deceased couple. During interrogation, on 13-02-2000, A-2-Anjali Thakran allegedly disclosed [Exhibit No. 77] that she would point out the goldsmith to whom she had sold the gold ornaments. As per the directions of A-2-Anjali Thakran, a police party and panch witnesses reached the jewellery shop of P.W. 12-Ulhas Lotlikar at Khareband Margao. P.W.12-Ulhas Lotlikar produced two bangles bearing the identification mark 'RK 22 KL', weighing 23.5 grams. According to the prosecution case, the said bangles bearing the identification mark 'RK 22 KL' were gifted to the newly wed couple on their marriage by P.W.-33. The prosecution has alleged that A-2-Anjali Thakran sold these bangles along with a necklace and a ring to the jewellery shop run by P.W.-12. It has also been alleged by the prosecution that A-2- Anjali Thakran sold these jewellery on the pretext that as their restaurant was not running well, they were in urgent need of money. The learned Sessions Judge, Panaji, as well as the High Court on evaluation of the circumstantial evidence, came to the conclusion that the prosecution has failed to prove involvement of accused respondents in commission of the crime and acquitted them of all charges. Admittedly, the case of the prosecution is based on circumstantial evidence as there is no evidence on record that any of the witnesses, examined by the prosecution, have seen actual commission of the crime. Mr. Mahendra Anand, the learned senior counsel for the appellant(s), to prove the case against A-1-Sanjay Thakran, has placed reliance on the following circumstances: the recovery of ladies purse and salwar suit by police at Agra on 30.01.2000 and the recovery of jewellery and clothes made from the flat of the accused persons in Goa on 11.02.2000 and the evidence of seen together with the deceased couple before the actual incident by P.W.30-Suhasini Govekar and evidence of P.W.11-Dinesh Adhikari, P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee to the effect that A-1 was accompanied with the deceased couple on 27.02.1999 and that the deceased couple was last seen alive in his company. As far as the evidence against the respondent A-2-Anjali Thakran is concerned, the learned senior counsel for the appellant(s) has relied upon the aspect of recovery of ladies purse and salwar suit; the recovery of two bangles bearing the identification mark 'RK 22 KL' at her instance from the jewellery shop of P.W.12-Ulhas Lotlikar; and the evidence of P.W.11- Dinesh Adhikari, P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee, that Anjali was last seen in the company of her husband with the deceased couple before the commission of the crime. The learned senior counsel for the appellant(s) has further submitted that no explanation is forthcoming from the accused respondents in the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) as to what has happened after they were seen in the company of the deceased couple, would indicate involvement of accused respondents in commission of the crime. The learned senior counsel for the appellant(s) has then pointed out that the chain of circumstances highlighted in the present case clearly establishes the fact that the accused couple did not only meet the deceased couple in Goa but they were the ones with whom the deceased persons were last seen alive. It has also been contended that the recovery of ladies purse and salwar suit from the house of accused couple at the time of their arrest in Agra on 30.01.2000; recovery of jewellery and clothes at the instance of A-1- Sanjay Thakran from the flat of accused persons in Goa on 11-02- 2000 and recovery of two bangles belonging to D-2-Priya Nanda bearing the identification mark 'RK 22 KL' at the instance of A-2-Anjali Thakran from the jewellery shop of P.W.12-Ulhas Lotlikar on 13-02- 2000, further substantiate that the accused couple, in order to carve away the belongings of the newly married couple, committed the offence of murder. It has also been pointed out that the High Court and the lower court have erred in (i) rejecting the evidence regarding the recovery of incriminating materials and (ii) not appreciating the key prosecution witnesses. On the other hand, late Shri R.K. Jain, the learned senior counsel for the respondents, urged that the present matter before us, is an appeal arising out of special leave petition under Article 136 of the Constitution against concurrent orders of acquittal by the Sessions Court and the High Court and, thus, merely because on reappraisal of the evidence, the other view of the matter than taken by the courts can be legitimately arrived at, would not be a sufficient ground to interfere with an order of acquittal, unless this Court reaches the conclusion that the entire approach of the courts below in appreciating the evidence was patently illegal, erroneous or unsustainable and that if, on reappraisal of the evidence, only one view is possible, then alone the Court will exercise the jurisdiction in appeal and will convict the acquitted accused persons. It is submitted that on consideration of the evidence on record, the courts below have rightly reached the conclusion that the prosecution has failed to prove the case beyond reasonable doubt of involvement of accused respondents in commission of the crime of murder of the deceased couple. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See : State of U.P. v. Satish, (2005) 3 SCC 114, Padala Veera Reddy v. State of Andhra Pradesh and Others, 1989 Supp. (2) SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Gambhir v. State of Maharashtra, (1982) 2 SCC 351 and Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, AIR 1952 SC 343]. By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate court, and while dealing with appeal against order of acquittal this Court observed in Tota Singh and Another v. State of Punjab, (1987) 2 SCC 529 as under : "6.  The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous." Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225: "7.  This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. " and in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180: "7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. {See Bhagwan Singh v. State of M.P., (2002) 4 SCC 85}. The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484." From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. In the light of the aforesaid principles laid down, we shall consider the evidence placed on record to find out whether the courts below have committed any error in dealing with the evidence, which can be said to be patently illegal, or that the conclusion arrived at is wholly untenable, calling for interference by us. Even before the arrest of the accused couple, the flat of the accused persons situated at Goa was searched on 17.12.1999 in the presence of P.W.39-Mariono Pereiera, who was the court bailiff. The court bailiff accompanied this search party as the flat was sealed under the orders of the civil court. The Judicial Magistrate, Ist Class, Margao, had passed an order that the bailiff of the court would accompany P.W.-38, police officer, and in the presence of two panch witnesses, the seal of the court on the lock of the flat would be opened and inventory of movable articles and fixtures found in the flat should be made. The Judicial Magistrate, Margao also directed that after the search, the flat should be re-sealed/locked and the bailiff would file a report in the court. In his cross-examination, P.W.-39 admitted that the court had asked to prepare a list of all movable items of the flat and not only valuables, and he committed a mistake as he did not mention all articles found in the flat in the inventory and, therefore, there was no mention of any jewellery in the list prepared by him. As per this witness, when the search was made on 17.12.1999, there were no gold ornaments in the said flat and that there were various articles, which appeared like that of gold. A box full of such articles was kept in the suitcase. According to P.W.1- Erecko Fernandez, a panch witness, the door of the flat was locked with three locks and there was also a metal chain around the lock. The locks were required to be cut with the help of a hacksaw blade. But since the door also was latched from inside, it could not be opened. They noticed a small window with a broken glass pane and one of the police personnel who accompanied them, with the help of a screw driver, removed the screws of the grill of the window. One of the police personnel went inside the flat and opened the latch and thereafter all of them entered into the flat. They noticed some suitcases in the flat and on opening the same some clothes were found and jewellery was found inside the cupboard. In his cross- examination, this witness very specifically stated that the said window was wide enough to allow a person to gain entry in the flat. P.W.38- Sandesh Chodankar, who led the police party for the search conducted on 17.12.1999, had found lot of clothes and jewellery of yellow metal, lot of belongings of shack, electronic items and household items in the flat. He has explained that he did not attach any valuable or other articles as he was not sure to whom those things belonged and also as there was a civil dispute pending in the court. The panchnama of the search made on 17.12.1999 (Exhibit No.13) mentioned that after conducting the search, the door was closed and one old and two new locks were put on the door and they were sealed by a one-rupee coin as the court seal was not available. The court bailiff mentioned that he sealed three locks after the search was conducted by P.W.-38 on 17.12.1999. After the arrest of A-1, this flat was once again searched on 11.2.2000 in the presence of another court bailiff Peter Fernandez and other panch witnesses as A1 allegedly confessed about the crime on 08.02.2000. According to the prosecution version, he agreed to handover the incriminating articles to the police. P.W.8- Sanjay Naik, a witness to the confession of A-1, was also present as panch witness when A-1 had allegedly handed over jewellery items, i.e., eight yellow metal bangles, one pair of ear-rings and one finger ring and clothes such as a white full-sleeves shirt, a saffron-coloured women's kameez with cream-coloured salwar, a green-coloured saree with blouses, a light cream-coloured silken kurta pyjama and a designer black full-sleeves shirt, on the search of the flat of the accused persons in Goa on 11.02.2000. This witness further said that the flat was locked and when the bailiff of the court tried to open the lock after breaking the seal it did not open and the key got damaged in the process of opening of the lock and the lock was opened by using a wire. P.W.-38 mentioned that on 11.02.2000 the flat was found sealed and was opened in the presence of the bailiff and panch witnesses. The panchnama of recovery made on 11.02.2000 (Exhibit No.34) mentioned that the bailiff of the court removed the seals and tried to open the locks with keys. According to this panchnama, one iron rod was used to open up the locks but instead of the locks, the latch of the door got broken. When the chain of latch was removed, it was found that the door was locked due to body lock. Since the door was locked, the grills of the window were removed and after removing the broken glasses, one person was lowered and finally entry was made in the flat. The courts below have rejected the evidence of recovery made on 11.02.2000 and they have found that the first list of the articles found in the flat as prepared on 17.12.1999 did not mention any box or gold-like materials/artificial jewellery or any other gold article or any clothes in the list of movable articles of the flat (Exhibit No.112). How is it that the articles were found in the subsequent search from the same flat which was locked and sealed? The panchnama of the flat searched on 17.12.1999 though mentioned about three big suitcases full of clothes and artificial jewellery, no details, whatsoever, regarding those articles were made and without any reference as to the quality of golden colour ornaments, P.W.-38 considered them as artificial jewellery. On both occasions when the search was made in the flat, it was not sealed properly with the court seal and, instead thereof, one- rupee and five-rupee coins were used. The entry in the flat on both occasions, i.e. on 17.12.1999 and 11.02.2000, was made through the window which shows that this flat was easily accessible although the seal of the court was put on it, without interfering with the seal after removing the grill of the window. There was material contradiction in the panchnama of flat search made on 11.02.2000 and evidence of P.W.-8 and P.W.-38 with respect to the way in which the entry was made to the flat of the accused persons on 11.02.2000. When at the first instance no jewellery was found inside the flat, how it was recovered on the subsequent search? The search and recovery of articles by the police on 11.02.2000 does not inspire confidence as the flat was easily accessible, without disturbing the lock and planting of the articles by the police cannot totally be ruled out. We have carefully gone through the evidence of the witnesses and the panchnamas and list of seized articles and have found that reasoning adopted by the courts below in discarding the evidence of seizure of articles from the flat of the accused persons cannot be said to be without any basis. On the information received by the police, the accused persons were arrested at Agra and at the time of arrest on 30.01.2000, as per the prosecution, certain incriminating articles were seized from the accused couple at Agra. The police recovered the ladies purse and salwar suit from A-2-Anjali Thakran. These articles were put for Test Identification which was conducted in the presence of P.W.24- Vinayak S.N. Alornekar, Special Judicial Magistrate on 10.02.2000. During this T.I. Parade, P.W.5-Kishen Valecha, brother of deceased Priya Nanda, was unable to identify the salwar suit, but he had identified the ladies purse belonged to his sister and the reason given for identifying it was that she was carrying the same purse while leaving for Vaishnodevi after marriage. Another witness P.W.33- Subhash Nanda, identified both purse and salwar kameez as belonging to his daughter-in-law, Priya Nanda. In his cross- examination, P.W.-33 has mentioned that he identified the salwar kameez only from the colour and design and not from any other identification mark. He has admitted that same salwar suit and purse are available in the market. P.W.-5 has also admitted in his cross- examination that there was no distinctive mark on the purse. Identification of these articles have been disbelieved by the courts below and, in our opinion, rightly so. When the persons identified it, they did not have sufficient opportunity to see these articles used by the deceased for a long duration, and when the articles do not carry any distinctive marks, on the basis of which the articles can be distinguished from the similar articles which are easily accessible and available in the market, identification of the articles by the witnesses would be difficult to be believed. The recovery of these articles from the accused in the absence of their identification as belonging to the deceased, does not take the prosecution case any further. The learned senior counsel for the appellant(s) Mr. Mahendra Anand has placed reliance on the recovery of two bangles which had the identification mark 'RK 22 KL', weighing approximately 23.5. grams, from the shop of P.W.12-Ulhas Lotlikar at the instance of A-2. On 13.02.2000, during interrogation she disclosed that she would point out the goldsmith to whom the gold ornaments were sold. Accordingly, as per her directions, police party and panch witnesses approached the jewellery shop of P.W.-12 at Khareband, Margao. In presence of panchas, P.W.-12 produced the two bangles bearing identification mark 'RK 22 KL' , weighing 23.5. grams, before the police party. As per this witness, the accused came to his shop and sold two bangles, a necklace and a gold finger ring. When he asked for the reason as to why she was selling these ornaments, A-2 told him that their restaurant was not running well and hence, they were in urgent need of money. He paid Rs.12,400/-, Rs. 3,200/- and Rs.1,200/- respectively, for two bangles, a necklace and a gold finger ring. He did not melt the bangles since they were in good condition. As per the prosecution, these gold ornaments belonged to deceased Priya Nanda. During cross-examination, P.W.-12 volunteered to produce the book where he maintained the record of sale of these ornaments. However, inspite of ample opportunity given to him to produce the book, he did not do so. In his cross-examination, he admitted that a day before recovery, A-2 was shown to him in the office of Dy. Superintendent of Police, Mapusa. That apart, the police had not recovered the other ornaments alleged to have been sold by the accused to P.W.-12 as it is said that he had melted those ornaments. It is highly improbable that P.W.-12 would have retained the bangles, which have the distinctive mark over them and would have melted other ornaments with no distinctive marks on them. The whole purpose and authenticity of the recovery of these ornaments have been lost when the witness has admitted that a day ahead of the recovery the accused was shown to him in the police station. Another piece of evidence, on which the prosecution strongly relied, is of identification of the accused persons in the Test Identification parade on 07.02.2000. P.W.24-VSN Alornekar, Special Judicial Magistrate, Tiswadi and Bardez Talukas, conducted Test Identification parade, wherein P.W.6-Amit Banerjee, P.W.30-Suhasini Govekar and P.W.7- Ganpat , were the identifying witnesses. P.W.- 6 had identified both the accused persons as the persons who came with D-2 Priya Nanda to Hotel Seema on the night of 27.02.1999. The trial court as well as the High Court have found certain irregularities in the manner of conducting the identification parade. A- 1 and A-2 were placed in the same identification parade with 6 dummies each, which was contrary to Paragraph 16(2)(h) of the Criminal Manual issued by the High Court of Bombay, which mentioned that : "if two suspects were not similar in appearance or where there were more than two suspects, separate parade should be held using different person on each parade." We have gone through the original record of the memorandum of identification parade (Exhibit No.70) and have found that P.W.-24 has mentioned as follows in this memorandum : "The dummy accused who are put in the parade I.e., 6 ladies and 6 gents are more or less of the same features and age groups as that of the accused couple to be put in the parade. They are also more or less the same height and status in appearance as that of the accused." As far as case of A-1 is concerned, who was around 38 years old at that time, 5 of the dummy persons belonged to age-group of 23-27 and another dummy was of 40 years old. Hence, there is a serious doubt regarding the fairness of the test identification. We have now to consider the veracity and authenticity of the evidence led by the prosecution to show that the accused persons were seen with the deceased couple in Goa moving around together and that they were the same persons who had been last seen together by the witnesses with the deceased couple, and if so, what shall be the resultant inference which can be drawn from the facts proved in the surrounding circumstances. P.W.-30 was examined to prove the acquaintance of the accused persons with the deceased couple prior to the date of incident. As per P.W.-30, on 26.02.1999 the accused couple and their children came to her shack which was located at Anjuna Beach. A-1 approached P.W.-30 and told her that she was looking pretty and that he would give her work and would take her on ship and would give her whatever she wanted. He had also made enquiries whether the ornaments which she was wearing were real or artificial and that what was her bank balance. On 27.02.1999, the accused couple and their children came to her shack between 1 and 2 p.m. and went to take bath on the beach. When they returned from the beach, they were accompanied by a newly married couple. P.W.-30 had a talk with D-2-Priya Nanda, who was wearing the reddish-coloured bangles and, accordingly, she assumed that they were newly married couple. The newly married lady, who had come with the accused lady, changed her clothes and wore a blue-coloured skirt and blouse. After having lunch at her shack, the two couples and the children went away. About a month later, the police showed her two or three photographs and asked her to identify the persons in the photographs. She identified D-1-Vikas Nanda and D-2-Priya Nanda, as the newly married couple, who had come to her shack on 27.02.1999 along with the accused couple. She also identified articles, blue skirt and blouse, to be belongings of deceased Priya Nanda. The evidence of this witness of remembering the persons after a month when no particular incident was mentioned by her for remembering them, after a lapse of time, appears to be unnatural, particularly so, when she was running a shack at a beach where hundreds of persons were visiting. The evidence of this witness of the accused approaching her and making enquiries about the value of the ornaments and her bank balance in the first meeting, does not inspire confidence. Apart from this, the witness has failed to identify any of the accused persons in the identification parade conducted on 07.02.2000. That apart, in the cross-examination, this witness said that the children accompanying the accused were in the age group of 20-21 years whereas it has come in evidence that children of the accused couple were a boy and a girl, aged about 12 years and 6 years respectively. The prosecution examined P.W.14-Calvert Gonsalves to prove that he had seen the deceased couple and accused couple at Iguana Miraj Restaurant. As per this witness, he used to meet the accused persons at Iguana Restaurant as also at Lalita Beach Resort. The accused's children were a boy and a girl. The boy was about 12 years of age and the girl was about 6 years of age. He was introduced by A-1 to one Vikas Nanda (D-1) on the evening of 27.02.1999, while D-1 was sitting beside A-1 outside Iguana Restaurant. He was also told by A-1 that D-1 was his friend from Delhi and had come to Goa for his honeymoon. It was also informed to him by A-1 that the wife of D-1 was inside Iguana Restaurant. The witness deposed that there was one AC room in the Restaurant containing bedroom, TV, etc. which was used by A-1. D-1 told him that his wife was in the AC room alongwith A-2. The name of the wife of D-1 was told to him as Priya. D-1 told him that his wife was in the company of A-2. D-1, A-1 and he talked for about one-and-a-half hours. After that, A-1 told him that he and D-1 were going to disco and he left for his home. The time was at about 9.30 p.m. From the statement of this witness, it is apparent that at the night of 27.02.1999, he himself had not seen A-2 and D-2 sitting in the room at Iguana Restaurant. This witness further proved the fact that till 9.30 p.m. on 27.02.1999, A-1 was seen in the company of D-1 when he left them at Iguana Restaurant. P.W.11-Dinesh Adhikari, who was working as a domestic help in the bar and restaurant of Iguana Miraj and Lalita Beach Resort, deposed that the accused were running a hotel at Sernabhati Colva known as Iguana Miraj which was a bar and restaurant and they were also running a hotel besides the said restaurant and the name of that hotel was Lalita Beach Resort. He knew the accused persons right from the days he used to work for them in Haryana (Gurgaon) and thereafter he joined them in Goa. Some time in June 1999, the police had shown the photograph of a lady and a gent and asked him whether he could identify anyone of them. He told the police that he could identify the persons in the photograph. He identified the persons from the photographs and said that he had seen those persons 2 to 3 days prior to Holi of the year 1999 in the hotel of the accused. They came to the hotel at about 6.00 to 7.00 p.m. He saw that A-1, the gentleman in the photograph, and one person named Calvert were sitting outside the hotel while A-2 and the lady in the photograph were sitting inside the hotel. He was asked to bring a bag from a white colour Maruti car when they had come to the hotel in the evening. After some time, A-1 and the man from the photograph started walking in the direction of the beach and after about 30 to 45 minutes he saw A-1 alone while A-2 was sitting with the lady in the photograph. He further deposed that although he did not enter the room but he saw A-2 and D-2 sitting in the bedroom through the glass fixed to the bedroom door. In his cross- examination, this witness deposed that the beach is at a distance of about 200 to 300 metres from Iguana Miraj Hotel. A-1 and D-1 went to the beach at around 9.30 to 10.00 p.m. and thereafter he went to his living quarter. When he came back, he saw only A-1 in the hotel. He was not sure at what time the accused couple left with the lady in the photograph from Iquana Miraj Hotel. From the statement of this witness, it is apparent that A-2 and D-2 were sitting in the hotel room and it was only A-1 and D-1 who left towards the beach and after 30 to 45 minutes only A-1 returned and thereafter A-1 and A-2 along with D-2 left the hotel. P.W.6-Amit Banerjee, who was working as the Receptionist of Hotel Seema where the deceased couple stayed when they came to Goa, deposed that on 26.02.1999, D-1 and his wife D-2 had come to the hotel. They were provided a room which was reserved for the Union Bank of India as its holiday home. Mr. A.C. Duggal, General Manager of the Union Bank of India had informed him on phone that these guests were coming to the hotel and he should take care of them. On 27.02.1999 at about 2330 hours, D-2 came alone and asked for the room key and told him that she was checking out of the hotel. D-1-Vikas Nanda, the husband of D-2-Priya Nanda, was not along with her. He asked her why she was checking out at that odd time. At that, she informed that she had met some friends from Delhi and that she was going to join them. D-2 went to her room and he went to the reception area where the security guard was on duty. He asked the security guard as to how she had come to the hotel. The guard informed him that the guest had come in a car along with a man who had followed her to the room. He had noticed a white colour 800CC Maruti car parked outside the gate of the hotel and one lady with short hair was sitting on the rear seat. He noticed her for a minute or two. D-2 returned to the reception from her room within 15 minutes and A-1 was carrying the luggage. She settled the bill and thereafter left the hotel. In his cross-examination, this witness mentioned that when at reception counter D-2 was making the payment, he saw A-1 who passed along with the luggage putting his head down. In the Test Identification Parade on 07.02.2000, this witness identified A-1 as the person who came along with D-2 on 27.02.1999 when she checked out of the hotel and identified A-2 as the same lady who was sitting in the Maruti car on 27.02.1999. He stated that he did not find anything abnormal about the departure of D-2 and behaviour of D-2 at that time was normal. From the statement of this witness, it appears that he had merely a fleeting glance of A-2 sitting in the parked car and thus he had described her as the lady with a short hair. Although in the test identification parade conducted after more than 11 months he identified both the accused, but when the police recorded his statement on 07.03.1999 in Hotel Seema he had not given the description of the accused persons to the police to be the persons who came to his hotel along with D-2. The witness admitted that in the hotel register the check-out timing column was blank. Therefore, the record produced does not indicate the timing of departure of D-2 from Hotel Seema. The prosecution has also not examined the guard of the hotel to identify A-2 to be the person who was sitting in the car. Before we analyse the evidence of P.W.11-Dinesh Adhikari, who was working as a domestic help in the bar and restaurant Iguana Miraj, P.W.14-Calvert Gonsalves, who was said to be in the company of A-1 and D-1 on the evening of 27.02.1999 outside the lounge of the restaurant and P.W.6-Amit Banerjee, who was working as Receptionist of Hotel Seema, we would refer to certain decisions of this Court on the point of `last seen together'. It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodh Raj alias Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45 as under: "31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .." [See also : State of U.P. v. Satish, JT 2005(2) SC 153 = (2005) 3 SCC 114 (para 22) and Ramreddy Rajeshkhanna Reddy & Anr. v. State of Andhra Pradesh, JT 2006 (4) SC 16 (para 29)]. In Ramreddy Rajeshkhanna Reddy (supra), this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes

Unknown Title 13149785

Court 1

[Cites 33, Cited by 3286] Supreme Court of India Sharad Birdhichand Sarda vs State Of Maharashtra on 17 July, 1984 Equivalent citations: AIR1984SC1622, (1984)86BOMLR536, 1984CRILJ1738, 1984(2)SCALE445, (1984)4SCC116, [1985]1SCR88 Bench: A. Varadarajan, Syed M. Fazal Ali, Sabyasachi Mukharji JUDGMENT 1. This is rather an unfortunate case where a marriage arranged and brought about through the intervention of common friends of the families of the bride and bridegroom though made a good start but ran into rough weather soon thereafter. The bride, Manju, entertained high hopes and aspirations and was not only hoping but was anxiously looking forward to a life full of mirth and merriment, mutual love and devotion between the two spouses. She appears to be an extremely emotional and sensitive girl and at the very behest cherished ideal dreams to be achieved after her marriage, which was solemnised, on Feb. 11, 1902 between her and the appellant, Sharad Birdhichand Sarda. Soon after the marriage, Manju left for her new marital home and started residing with the appellant in Takshila Apartments at Pune. Unfortunately, however, to her utter dismay and disappointment she found that the treatment of her husband and his parents towards her was cruel and harsh and her cherished dreams seem to have been shattered to pieces. Despite this shocking state of affairs she did not give in and kept hoping against hope and being of a very noble and magnanimous nature she was always willing to forgive and forget. As days passed by, despite her most laudable attitude she found that "things were not what they seem" and to quote her own words "she was treated in her husband's house as a labourer or as an unpaid maid-servant". She was made to do all sorts of odd jobs and despite her protests to her husband nothing seems to have happened. Evan so, Manju had such a soft and gentle frame of mind as never to complain to her parents-in-law, not even to her husband except sometimes. On finding things unbearable, she did protest, and expressed her feelings in clearest possible terms, in a fit of utter desperation and frustration, that he hated her. Not only this, when she narrated her woeful tale to her sister Anju in the letters Written to her (which would be dealt with in a later part of the judgment), she took the abundant care and caution of requesting Anju not to reveal her sad plight to her parents lest they, may get extremely upset, worried and distressed. 2. Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and she thought that a point of no-return had reached. At last, on the fateful morning of June 12, 1932, i.e., nearly four months after her marriage, she was found dead in her bed. 3. As to the cause of death, there appears to be a very serious divergence between the prosecution version and the defence case. The positive case of the prosecution was that as the appellant was not at all interested in her and bad illicit intimacy with another girl, Ujvala, he practically discarded his wife and when he found things to be unbearable he murdered hen between the night of June 11 and 12, 1982, and made a futile attempt to cremate the dead body. Ultimately, the matter was reported to the police. On the other hand, the plea of the defence was that while there was a strong possibility of Manju having been ill-treated and uncared for by her husband or her in-laws, being a highly sensitive and impressionate woman she committed suicide out of sheer depression and frustration arising from an emotional upsurge. This is the dominant issue which falls for decision by this Court. 4. Both the High Court and the trial Court rejected the theory of suicide and found that Manju was murdered by " her husband by administering her a strong dose of potassium cyanide and relied on the medical evidence as also that of the Chemical Examiner to show that it was a case of pore and simple homicide rather than that of suicide as alleged by tie defence. The High Court while confirming the judgment of the trial Court affirmed the death sentence and hence this appeal by special leave. 5. Before discussing the facts of the case, it may be mentioned that although the High Court and the trial Court have gone into meticulous and minutest matters pertaining to the circumstances leading to the alleged murder of Manju, yet after going through the judgments we feel that the facts of the case lie within a very narrow compass. 6. The story of this unfortunate girl starts on 11-2-1982 when her marriage was solemnised with the appellant preceded by a formal betrothal ceremony on 2-8-81, After the marriage, Manju, for the first time, went to her parents' house on 22-2-82 for a very short period and returned to Pune on 26-2-C2. It is the prosecution case that on 17-3-82 the appellant had called Manju at Pearl Hotel where he introduced her to Ujvala and told her that she must act according to the dictates and orders of Ujvala, if she wanted to lead a comfortable life with her husband. In other words, the suggestion was that the appellant made it clear to his wife that Ujvala was the. real mistress of the house and Manju was there Only to obey her orders After this incident, Manju went to her parents' house on 2-4-82 and returned to Pune on 12-4-82, This was her second Visit. The third and perhaps the last visit of Manju to her parents' house was on 25-5-82 from where she returned to Pune on 3-6-82, werever to return again. The reason for her return to Pune was that her father-in-law insisted that she should return to Pune because the betrothal ceremony of Shobha (sister of the appellant) was going to be held on 13-6-82, 7. The last step in this unfortunate drama was that Manju, accompanied by Anuradha (wife of A-2) and her children, returned to the flat on 11-6-82 near about 11.00 p. m. Her husband was not in the apartment at that time but it is alleged by the. prosecution that he returned soon after and administered potassium cyanide to Manju. Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat and brought Dr. Lodha (PW 24) who was living at a distance of 1 1/2 Kms. from Takshila Apartments. At the suggestion of Dr. Lodha, Dr. Gandhi (PW 25.) was also called and both of them found that Manju was dead and her death was an unnatural one and advised the body to be sent for post-mortem in order to determine the cause of death. Ultimately, Mohan Asava (PW 30) was approached on telephone and was informed that Manju had died at 5.30 a.m. Subsequently, the usual investigation and the post-mortem followed which are not very germane for our purpose at present and would be considered at the appropriate stage. 8. The plea of the appellant was that Manju was not administered potassium cyanide by him but she appears to have committed suicide out of shear frustration. In order to prove his bona fide the accused relied on the circumstances that as soon as he came to know about the death of his wife he called two Doctors (Pws 24 and 25) and when they declared that Manju had died an unnatural death, as the cause of death was not known, and therefore the body had. to be sent for post-mortem, he immediately took steps to inform the police. He flatly denied the allegation of the prosecution that there was any attempt on his part to persuade Mohan Asava (PW 30) to allow the body of the deceased to be cremated. 9. We might state that the High Court has mentioned as many as 17 circumstances in order to prove that the circumstantial evidence produced by the prosecution was complete and conclusive. Some of these circumstances overlap, some are irrelevant and some cannot be taken into consideration because they were not put to the appellant in his statement under Section 313 of the CrPC in order to explain the effect of the same as we shall presently show. The Jaw regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of this Court as also of the High Courts. The locus classicus of the decision of this Court is the one rendered in the case of Hanumant v. State of Madhya Pradesh , where Mahajan, J. clearly expounded the various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus: The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...it must be such as to show that within all human probability the act must have been done by the accused." This decision was followed and endorsed by this Court in the case of Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of 1958 decided on 4-11-58 printed on green papers in bound volumes. We shall however discuss Hanumant's case fully in a later part of our judgment Coming now to the question of interpretation of Section 32(1) of the Evidence Act, this Court in the case of Ratan Gond v. State of Bihar , S.K. Das, J. made the following observations (at p. 21 of AIR): 'The only relevant clause of Section 32 which may be said to have any bearing is clause (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister." In the 'Law of Evidence' by Woodroffe & Ameer Ali, (Vol. II) the authors have collected all the cases at one place and indicated their conclusions thus: To sum up, the test of the relevancy of a statement under Section 32(1), is not whit the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression 'any of the circumstances of the transaction which resulted in his death'; is wider in scope than the expression 'the cause of his death'; in other words, Clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death' do not mean 'caused his death'. Thus, it is well settled that declarations are admissible Only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties, acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the res gestae." (P. 952) It would appear that the solid foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows: (1) Written dying declaration by the deceased in her letters, two of which were addressed to her sister Anju and one to her friend Vahini. (2) The oral statements made by the deceased to her father (PW 2), mother (PW 20), Sister (PW 6) and her friend (PW 3) and also to PWs 4 and 5 showing her state of mind shortly before her death and the complaints which she made regarding the ill-treatment by her husband. (3) Evidence showing that the appellant was last seen with the deceased in the room until the matter was reported to the police. (4) The unnatural and incriminating conduct of the appellant. (5) The medical evidence taken along with the Report of the Chemical Examiner which demonstrably proves that it was a case of homicide, completely rules out the theory of suicide as alleged by the appellant. Mr. Jethmalani, learned Counsel for the appellant, has vehemently argued that there was a very strong possibility of the deceased having committed suicide due to the circumstances mentioned in her own letters. He has also questioned the legal admissibility of the statements contained in the written and oral dying declarations. He has submitted that the so-called dying declarations are admissible neither under Section 32 nor under Section 8 of the Evidence Act- It was submitted by the appellant that the Present case is not at all covered by Clause (1) of Section 32 of the Evidence Act. 11. The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami v. Emperor , where Lord Atkin has laid down the following tests: It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible.... Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" Circumstances must have some proximate relation to the actual occurrence.... It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant." These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar v. State of Uttar Pradesh (Crl. Appeal No. 55 of 1966 decided on 29-7-66 : (reported in 1966 Cri App R (SC) 281)). where the following observations were made: It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed,.... A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence.... The phrase "circumstances of the transaction" is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" (See Pakala Narayana Swaraj v. King Emperor AIR 1939 PC 47. The aforesaid principles have been followed by a long catena of authorities of almost all the Courts which have been noticed in this case. To mention only a few important ones, in Manohar Lal v. State of Punjab 1981 Cri LJ 1373, the Division Bench of the Punjab & Haryana High Court observed thus: The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act. 12. We fully agree with the above observations made by the learned Judges, In Protima Dutta v. The State , while relying on Hanumant's case (supra) the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximity and has observed that in some cases where there is a sustained cruelty, the proximity may extend even to a period of three years. In this connection, the High Court observed thus: The 'transaction' in this case is systematic ill-treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction includes evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence. This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within "circumstances of transaction".... "In that case the allegation was that there was sustained cruelty extending over a period of three years interspersed with exhortation to the victim to end her life". His Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. "Thus evidence of. cruelty, ill-treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide. 13. Similarly, in Onkar v. State of Madhya Pradesh 1974 Cri LJ 1200 (Madhya Pradesh), while following the decision of the Privy Council in Pakala Narayana Swami's case" (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by Section 32 of the Evidence Act thus: The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused.... Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime. 14. In Allijan Munshi v. State AIR 1960 Bom 290, the Bombay High Court has taken a similar view. 15. In Chinnavalayan v. State of Madras (1959) 1 Mad LJ 246, two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances' observed thus: The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as (1) that the statement must be made after the transaction has taken place, (2) that the person making it must be at any rate near death, (3) that the circumstances can only include acts done when and. where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. 16. In Gokul Chandra Chatterjee v. The State , the Calcutta High Court has somewhat diluted, the real concept of proximity and observed thus; In the present case, it cannot be said that statements in. the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible under Section 32(1), Evidence Act They cannot be said to be circumstances of the transaction which resulted in death. 17. We, however, do not approve of the observations made by the High Court in view of the clear decision of this Court and that of the Privy Council. With due respect, the High Court has not properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are, therefore, of the opinion that this ease does not lay down the correct law on the subject. 18. Before dosing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of Clause (1) of Section 32, viz.., "the circumstances of the transaction which resulted in his death, in cases in which the cause of; that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. The State AIR 1960 Punjab 310, where the following observations were made: Clause (1) of Section 32 of the Indian Evidence Act provides that statements, written Or verbal, of relevant facts made by a person who is dead...are, themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person's death comes into question.... If is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been Under the expectation of death. 19. And in the case of State v. Kanchan Singh AIR 1934 All 153, it was observed thus: The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act. 20. In these circumstances, therefore, it Is futile to refer to English cases on the subject. 21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar, conditions of our society and the I'lvccip nature and character of owe people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend on vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death, It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over snore, than 3-4 months the statement may be admissible under Section 32. (3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four comers of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant. 22. This now brings us to a close consideration of the contents of the letters (Exts. 30, 32 and 33) written by Manju to her sister and friend. We propose to examine the contents of the letters for four purposes: (1) in Order to find out the state of mind and psychological attitude of Manju, (2) the nature of Manju's attitude towards her husband and in-laws, (3) the amount of tension and frustration which seems to be dearly expressed in the letters, and (4) to determine Manju's personal traits and psychological approach to life to determine if she was ever capable of or prone to committing suicide. 23. We start with the letter dated 8-5-82 (Ext. 30) which was addressed to her sister Anju and is printed at page 191 of Part I of the printed Paperbook. The learned Counsel for the appellant in order to make our task easy has supplied the English translation as also the Roman script of the original letter. On a comparison of the two versions, we are of the opinion that by and large the English translation printed in the Paperbook is a true and faithful rendering of the contents of the original letter. It is not necessary for us to extract the entire letter but we propose to extract only the relevant portions which seek to explain and illustrate the four purposes mentioned above. All read the letter with curiosity, or it may go to anybody's hand. I do not want to take any such risk. So I have taken up today for writing, the second letters to you. The Roman script runs thus: Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin hai. Isliye maims tumhe aaj doosra khat likhneko liya. 24. An analysis of the above clearly shows that Manju was a highly secretive woman and wanted to keep her personal matters or secrets to herself except giving a rough idea or a passing glimpse of her feelings only to those who were very close to her as friends or near relations. The extract shows that perhaps in a spell of heavy emotions she had written a very long letter to her sister whom she regarded as her best friend but on second thought she tore it off lest it may fall in anybody's hands and she was not prepared to take such a risk. This mentality and noble nature would be of great assistance to us in assessing the probative value of the statements made by her to her parents sister and friend during her last visit to Beed. The second paragraph, which is extracted below, reflects her state of mind and the tension and torture which she was Undergoing: Now in this letter, when (out of) the things coming to my mind which cannot be written. I do not understand what is to be written. The state of mind now is very much the same. Enough. You understand (me). I am undergoing a very difficult test. I am unable to achieve it Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right. 25. She has hinted that she was passing through difficult times but was trying to control herself as much as she could. She has further indicated that if things did not improve then she may have to evolve some other method. The exact words used in the Roman script runs thus: Jab tak sambhal sakti hoon theek hai jab assambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota hai. 26. The words "some other way will have to be evolved" clearly gives a clue to her psychotic state of mind and seem to suggest that the other method to get rid of all her troubles was to commit suicide. It is pertinent to note that in the first two paragraphs of her letter extracted above there is no indication nor any hint about the conduct of her husband. 27. In the third para of her letter she states her feelings thus: I thought much that since the house of my husband's parents is at Pune, I would do this and that or the people from the house of my husband's parents are free. However, I have gradually come to know that in that house, the worth of a daughter-in-law is no more than that of a labourer. The relevant portion in the Roman script reads thus: Is ghar mein bahu ki keemat majdoor se jyada nahin hai. 28. At the end of the third paragraph she repeats hen sad plight thus: My state here however is like an unclaimed person. Let it be gone. I do not like to weep (over it). When we will meet, we will talk all the things. 29. In the middle of the 4th paragraph she comes out with an emotional outburst by indicating that all her hopes had been shattered and because of being neglected by her husband her health was adversely affected. In the Roman script she used the following words: Sachmuch kya kya sapne rahte hain kuarepanmein, magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati mujhse bahut pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi. Tabiyat par uska asar dikh raha hai. 30. In the latter part of the 8th paragraph while giving vent to her feelings she states thus: Now Manju is moving, it is necessary to tell that she is alive. You don't tell anybody about this letter. I felt like telling all this to Bhausab. What, however, is the use of making him sorry. One should test one's fate, whatever may be the result I want to tell you all. But I cannot tell. 31. The words used by her show her affectionate and secretive nature and the precaution taken by her not to tell anything to her father, who is addressed as 'Bhausab'. The Roman script of the relevant portion runs thus Dil tu karta tha Bai Bhau Sahab ko sab bataon, magar usko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai, magar bata nahin sakti. 32. These extracts throw a flood of light On the nature, character, mental attitude, suffering and shock of the deceased. One thing which may be conspicuously noticed is that she was prepared to take ail the blame on her rather than incriminate her husband or her in-laws. The other portions of the letter (Ext. 30) are not at all germane for the purpose of this case. Summarising the main contents of the letter, the following conclusions or inferences follow: (a) Manju was a highly emotional and sensitive woman. (b) she got the shock of her life when due to ill-treatment by her husband and in-laws she found that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed and disappointed woman, (c) she had been constantly ill-treated by her in-laws and her position in the house was nothing but that of an unpaid maidservant or a labourer, (d) she wanted to keep all her worries arid troubles to herself and on no account was she prepared to disclose them to her parents or even to her sister, lest they also get depressed and distressed. (e) no serious allegation of cruelty bad been made against the husband personally by her and she thought that she herself should suffer out of sheer frustration. 33. Now we shall examine Ext. 32 which is a letter dated 8-6-82 written by Manju to her sister Anju. This was perhaps her last letter to Anju and is very important and relevant for decision of the case. The letter begins with the word* "I am happy here". In the second paragraph she expresses her feelings as follows: Shobhabai's 'Sadi' programme is fixed on 13th. I do not know why there is such a dirty atmosphere in the house ? It is felt every moment that something will hap-pen. Everybody is in tension. No work has been started in the house. Let it go. I am out of mind. Still I am used not to pay heed to it. Ala what about your law. 34. So far as the first part is concerned, the 'dirty atmosphere' about which she speaks is totally unrelated to anything done by the husband or of any cruel treatment by him; it merely refers to the tension prevailing in the family as the 'Sadi' (Kohl) was fixed on 13-6-82. Her anger is not so much towards her husband or herself as for the manner in which things were being done. She complained that no work had been started and being the eldest daughter-in-law of the family she felt it her duty to see that all arrangements were complete. It was conceded by the Additional Solicitor-General that this portion of the letter does not refer to any ill-treatment by the husband or his parents but relates only to the defective and unsatisfactory arrangements for such an important function. The relevant portion of the 3rd paragraph is also more or less innocuous but in between the lines it contains a tale of woe, a spirit of desperation and frustration and a wave of pessimism. The actual vernacular words are - Mera to aane ka kya hota hai dekna hai. Buaji ke yahan se khat aur aaya to shahid chance mil sakta hai. Magar meri mangal ke dulhan ke roop mein dekhne ki bahut ichha hai. Dekhenge. 35. She was naturally apprehending something and was not very hopeful of going to her father's place. This being her last letter, and that too a short one, it gives a clear inkling of the manner of how her mind was working. She did not lay any blame on her husband or anybody else but still she was afraid that something was going to happen and that she may not be able to go to her father and see the marriage of her sister-in-law for which preparations were being made. In out opinion, these words are extremely prophetic and seem to indicate that by that time she had almost made up her mind to end her life instead of carrying on her miserable existence. As brevity is the soul of wit, she directly hinted that she may not be able to meet her father or anybody naturally because when a life comes to an end there can be no such question. Exhibit 32, though a short letter, depicts her real feeling and perhaps a tentative decision which he may have already taken but did not Want to disclose for obvious reasons. 36. Then we come to Ext 33 which is a letter dated 23-4-82 written by the deceased to her close friend, Vahini and which shows her exact feelings, changing mood and emotions. This is the only letter where she had made clear complaints against her husband and the relevant portions may be extracted thus: Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should have been near with me. All persons here are very good. Everybody is loving. Still I feel lonely; One reason is that, in the house there are many persons and they are elder to me and as such I do not dare to do any work independently. Every time some fear is in mind which leads to confusion. God knows when I can come there? The point on which we had discussion, is an it was. Vahini, I swear you if you talk to anyone. I am much in pains. But what else can I do ? No other go than that, and the same mistake is done again and again by me. It is that I go ahead and talk for ten times, then I become angry if he does not speak, Vahini, there is nothing in my hands except to weep profusely. At least till now this man has no time to mind his wife, let it be, but Vahini, what shall I do ? Who knows what hardships befall on the, so long I am alive. Why the God has become (unkind) towards me. Since yesterday I have made up my mind not to speak a word even, till he speaks (to me). Let me see to what extent I control my feelings. Vahini, you also pray to god for me whether a girl like me should be put to such a difficult test Vahini, I am so much afraid of him that the romantic enchantment during first 10-15 days after marriage has become like a dream. I cannot dare to ask him whether his clothes be taken for wash. At present my status is only that of a maid-servant without pay as of right. Why so much indifference towards me only ? Vahini, I feel to weep in your arms. Vahini, come to Pune early. On getting up every morning I feel he will speak today but every day I am hoping against hope. Vahini, what will happen? Now there is no ray of hope. Day before yesterday I became excited and shattered in rage. "You hate me, was I Unable to get food in my parent's house? Me was irritated due to word 'hate'. He said, if you talk more like this, I will be very bad man. If this goes on, I will not come to sleep. That means not permitted (to cry) also. How he says to me, are you tired of me so early? What shall I say to such a man. Once I fee! that he does not count me. On second thought, I feel he cares me much. But due to moody nature, it will take time to pacify she same. On the day on which self-pride is lessened, no other person will be more fortunate than me. But till that day it is not certain that I will be ailve. 37. In the second paragraph she starts by giving an indication that she was feeling uneasy and would have very much liked to have Vahini with her. In the third paragraph she dearly states that all persons in her father-in-laws' place were very good and loving but due to a number of persons in the house she did not get a chance to work Independently. The last line "every time come fear is in mind which leads to confusion" is the starting point of the first symptom of her invisible fear which she was Unable to locate. The fourth paragraph is rather important which shows that whatever her feelings may have been she sought an oath from Vahini not to talk to anyone regarding the matters which she proposed to Write in the said letter. She says that she was much in pains and hints that she weeps Profusely and the reason given by her for this is that she went on committing mistakes and talked to her husband many times but his silence was extremely painful which made her angry. In the last portion, for the first time, she makes a direct complaint against her husband to the effect that he had no time to look after her (Manju). In the same paragraph she describes her hardships and complains why God was unkind to her. She further expresses her sentiments that the romantic enchantment which she experienced during the first few days of her marriage had completely disappeared and looks like a lost dream or a "Paradise lost". Then she describes her plight as being a maid-servant without pay. She again complains of indifference towards her. Ultimately, she hopes against hope that some day he will speak to her and discuss the problems but there is no response. Later, she refers to a particular incident and goes to the extent of telling him that he hates her. This seems to have irritated the husband who resented this remark very much. Again in the same breath towards the end of the paragraph, while she says that her husband does not care for her yet she at once changes her mind and says that he cares for her much but due to his moody nature it will take time to pacify him. Her feelings again take a sudden turn when she says that when her husband's self-pride is lessened none would be more fortunate than her. The next line is rather important because she hints that till the said heyday comes perhaps she might not be alive. 38. A careful perusal of this letter reveals the following features- (1) After going to her marital home she felt completely lost and took even minor things to her heart and on the slightest provocation she became, extremely sentimental and sensitive. (2) She exhibited mixed feelings of optimism and pessimism at the same time. (3) It can easily be inferred that she did not have any serious complaint against her husband but she became sad and morose because she was not getting the proper attention which she thought she would get. (4) There is no indication that she expected any danger from her husband nor is there anything to show that things had come to such a pass that a catastrophe may have resulted. There may be certain concealed and hidden hints which she was not prepared to reveal in writing; what they we're is not clear, (5) A close, reading and analysis of the letter clearly shows at least two things- (a) that she felt extremely depressed, (b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide. 39. This possibility is spelt out from the various letters which we have extracted. Indeed, if this was net so how could it be possible that while not complaining against her husband she gives a hint not only to Vahini but also to Anju that she might not live, She mentions of no such threat having been given to bet by her husband at any time OK anywhere. (6) The contents of the letter lead us to the irresistible conclusion that Manju felt herself lonely and desolate and was treated as nothing but a chattel or a necessary evil ever since she entered bet marital home. 40. Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of has married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress our opinion, we would like to cite some passages of an eminent psychiatrist, Robert I. Kastenbaum when in his book 'Death, Society and Human Experience" he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book: The fact is that some people who com-out suicide can be classified as psychotic or severely disturbed. If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a. relevant variable to consider. And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness. Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle like struggle. The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death. The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow. Revenge fantasies and their association With suicide are well known to people who give ear to those in emotional distress. People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect. The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge through suicide.... However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated, If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made.... Warren Breed and his colleagues found that a sense off failure is prominent among many people who take their own lives. 41. The above observations are fully applicable to the case of Manju. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that Manju was not only a sensitive and sentimental woman but was extremely impressionable and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life. 42. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book The Melancholy Marriage' observe that- Studies of attempted suicide cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients' interactions with others in their environment were considered. 43. Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced with disappointment or find their environment unhealthy or unhappy, they seem to loose all the charms of life. The authors while describing these sentiments observe thus: 'Hopelessness', 'despair', 'lousy' and 'miserable' draw attention to the relationship of the depressed person to his environment. The articulate depressed person will often also struggle to put into words the fact -that not only does there appear to be no way forward and thus no point to life - but that the world actually looks different. 44. Coleridge in 'Ode to Dejection' in bis usual ironical manner has very beautifully explained the sentiments of such persons thus: I see them all so excellently fair- I see, not fed, how beautiful they are. 45. At another place the author (Hinchliffe, Hooper and John) come to the final conclusion that ruptured personal relationships play a major part in the clinical picture and in this connection observed thus: "Initially We applied these ideas to study Of cases of attempted suicide (Roberts and Hooper 19C9) and although we did not assume that they were all necessarily depressed, we looked for distal and pro

State Of Goa vs Sanjay Thakran And Anr on 2 March, 2007

Court 1

[Cites 19, Cited by 2526] Supreme Court of India State Of Goa vs Sanjay Thakran And Anr on 2 March, 2007 Author: P.P. Naolekar Bench: B.N. Agrawal, P.P. Naolekar CASE NO.: Appeal (crl.) 873 of 2004 PETITIONER: STATE OF GOA RESPONDENT: SANJAY THAKRAN AND ANR DATE OF JUDGMENT: 02/03/2007 BENCH: B.N. AGRAWAL & P.P. NAOLEKAR JUDGMENT: JUDGMENT WITH CRIMINAL APPEAL NO. 874 OF 2004 SUBHASH CHANDRA NANDA .. APPELLANT(S) VERSUS SANJAY THAKRAN AND ANR. ....RESPONDENT(S) P.P. NAOLEKAR, J. Aggrieved by the judgment and final order dated 30-09-2003 of the High Court of Bombay at Goa whereby the accused persons/respondents, namely, Sanjay Thakran (respondent no. 1/A- 1) and his wife Anjali Thakran (respondent no. 2/A-2) were acquitted of the offences charged under Sections 120-B, 364, 302 and 392 read with Section 34 of the Indian Penal Code, 1860, these criminal appeals have been preferred by the State of Goa and father of one of the deceased persons. Earlier, by the judgment delivered on 09-01- 2002, the Court of IInd Additional Sessions Judge, Panaji has acquitted both the accused persons of all the abovementioned charges levelled against them. The relevant facts, as per the evidence adduced and the First Information Report, are that on 26-02-1999, the deceased couple, namely, Vikas Nanda (D-1, age 26 years) and Kavita Nanda @ Priya Nanda (D-2, age 23 years), arrived in Goa from Mumbai for their honeymoon and stayed in Hotel Seema at Ribandar. On 27-02-1999, the deceased couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver and had also taken them for the sight-seeing trip a day earlier as well. At about 2.30 p.m., D-1 told P.W.-13 that they had met some friends from Delhi and hence P.W.-13 returned from there. P.W.30-Suhasini Govekar, who operated a shack at Anjuna beach with her husband, mentioned that on 27-02-1999, the accused couple and their children came to her place in between 1.00-2.00 p.m. and then went to take bath. When they returned back, the deceased couple accompanied them. The accused couple was running a bar and the restaurant Iguana Miraj and hotel Lalita Beach Resort in Goa. P.W.11-Dinesh Adhikari, who was servant of the respondents, saw the deceased couple at respondents' hotel 2 or 3 days preceding the festival of Holi in the year 1999 at approximately 6.00-7.00 p.m. According to this prosecution witness, A-1-Sanjay Thakran, D-1-Vikas Nanda and P.W.14-Calvert were sitting outside the hotel and A-2-Anjali Thakran was sitting with D-2-Priya Nanda inside a room in the hotel. He saw A-1-Sanjay Thakran and D-1-Vikas Nanda walking towards the beach sometime after 9.00-9.30 p.m. and that was the last time when D-1 was seen alive. After sometime P.W.11 saw A-1-Sanjay Thakran, A-2-Anjali Thakran and D-2-Priya Nanda as they were walking away from Iguana Miraj. Another prosecution witness, P.W.14-Calvert Gonsalves also saw the deceased couple at the hotel of the accused couple. As per P.W.6-Amit Banerjee, who was working as a receptionist at Hotel Seema, D-2-Priya Nanda returned to Hotel Seema without D-1 and along with A-1-Sanjay Thakran at about 11.30 p.m. She asked for the key of their room from P.W. 6. A-1- Sanjay Thakran helped her to carry the luggage from the Hotel room as she checked out about 11.40 p.m. A-2 did not come to the hotel and remained seated in the white colour Maruti Car that had a Delhi registration number on it. D-2-Priya Nanda, A-1-Sanjay Thakran and A-2-Anjali Thakran went away in that car and thus, D-2 was also last seen alive in the company of the accused couple. On 28-02-1999, P.W.2-Charles Mills lodged a report at Anjuna Police Station that a dead body of unknown female foreigner (later identified as D-2) was found at the Vagator Beach. According to this witness, who was staying near the beach, at around 7.30 a.m., he was told by someone that a female body was floating in the seawater. The deceased was wearing a blue skirt and a top. On the same day, P.W.17-Fausto Afonso lodged report with Colva Police Station that a dead body of unknown male foreigner (later identified as D-1) was found at about 00.30 hours at the Benaulim Beach. The distance between the Vagator Beach and Benaulim Beach is around 60 kilometers. As the deceased couple neither returned to Delhi as expected by 01-03-1999 nor contacted P.W.33-Subhash Nanda i.e., father of D-1, he called up P.W.4-A.C. Duggal to inquire about them. Accordingly, P.W. 4-A.C. Duggal, who was uncle of D-1 and lived in Mumbai, called up N. Murari, who was posted in Goa and worked in the Union Bank of India with P.W.-4, to know about their whereabouts on 01-03-1999. N. Murari told P.W.-4 that they had already checked out of the Hotel Seema. Since the deceased couple did not reach Mumbai as stipulated by P.W.-4 on 02-03-1999, he again called up N. Murari. On 03-03-1999 at about 7.15 p.m., N. Murari informed P.W.-4 that a dead body of male person with similar description to that of Vikas had been found and asked him to come to Goa. P.W.-4 rushed to Goa and identified the dead body of D-1-Vikas Nanda on 04-03-1999. On the same day, N. Murari lodged a missing report [Exhibit No. 20] at Old Goa Police Station. After identifying the body of D-1-Vikas Nanda at morgue, P.W.-4 went to Seema Guest House and made inquiries about the couple. The dead body of D-2 was also identified on 05-03-1999. P.W.-4 lodged a complaint [Exhibit No.21] on 05-03-1999 at Anjuna Police Station with P.W. 38- Sub-Inspector Sandesh Chodankar. According to this complaint, on 04-03-1999, P.W.-4 was informed by Hotel Manager that D-2 checked out from hotel on 27-03-1999 at about 11.40 p.m. and another person having short built, bald from front and having fair complexion accompanied her. The complainant believed that since the dead bodies of the couple had been found at places nearly 60 kilometers away from each other, the newly married couple must have been lured by some disgruntled mischievous element, who had killed them for their ornaments, as all the gold ornaments of the deceased couple were found missing. P.W.26-Dr. Silvano Dias Sapeco, who conducted the postmortem [Exhibit No. 80] on the body of D-2 on 01-03-1999, found the following ante-mortem injuries: 1. Red bruise 20 cms. Diameter on left mid upper arm. 2. Red bruise 1.5 cms. Diameter on right inner aspect of upper third region of thigh. 3. Red bruise 1.5 cms diameter on left mid thigh in inner aspect. 4. Red bruise 1.25 cms. Diameter on right mid lower leg at calf region. 5. Red bruise 1.25 cms. Diameter on left mid lower leg at calf region. and it was opined that these were caused by blunt weapons. Due to the fact that the doctor, who initially conducted postmortem on body of D-1-Vikas Nanda on 01-03-1999, had not preserved any viscera or material, on 05-03-1999 a second postmortem [Exhibit No. 95] was conducted by P.W.32-Dr. E.J. Rodrigues, which exposed the following ante-mortem injuries: 1. Abrasion reddish and fresh of 6 x 4.5 cms. Present on upper outer part on right side face between outer orbital margin, 2 cms. in front of right tragus of ear and extending on outer part of right cheek bone. No bruising underneath. 2. Abrasion reddish and fresh of 2.5 x 1 cms. Placed vertically on the ridge of nose. No bruising underneath. No injuries to alae of nose. 3. Abrasion reddish and fresh of 5 x 3 cms. on left side upper part of face 2 cms. in front of left tragus of ear extending upto outer orbital margin and also on outer part of left cheek bone. No bruising underneath. 4. Abrasion reddish and fresh of 0.5 x 0.5 cms., 1 cm. above outer end of right eyebrow. 5. Abrasion reddish and fresh of 0.5 x 0.5 cms., 1.5 cms. above outer end of left eyebrow. 6. Abrasion reddish and fresh of 3 x 2 cms., upper middle back of right shoulder. 7. Abrasion reddish and fresh of 2 x 1.5 cms., upper back of left shoulder at acromial process region. and it was opined that they were caused with blunt surface. The postmortem reports of both the deceased persons have concluded that death had occurred as a result of asphyxia due to drowning in shallow beach water. From their initial investigation, the Goa police found out about the description of the accused couple and their children. The flat belonging to the accused persons was sealed under the orders of a Civil Court. P.W.-38, therefore, applied to the Judicial Magistrate, Ist Class, Margoa for issuance of search warrant. The Judicial Magistrate, Ist Class, Margoa directed that the bailiff of the Court would accompany P.W.-38 and in the presence of two respectable panchas from the locality, the seal of the court would be opened and inventory of the movable articles and fixtures found in the flat should be made. After the search, the flat should be resealed/locked and the bailiff would file a report to the Court. Accordingly on 17-12-1999, the police conducted search of the flat of accused, which was located at Sapna Residency, Colva. During this search, P.W.-38 attached the passports of the accused-respondents and their two children, two visiting cards of P.W. 19-Subrato Padhi, a visiting card of Iguana Restaurant and one laminated photograph. [House Search Panchnama as Exhibit No. 13 and Report regarding Search Warrant which was submitted to Judicial Magistrate, Ist Class, Margoa as Exhibit No. 108]. The Court bailiff, who accompanied with P.W.-38 and other panch witnesses, prepared a list of movable articles of the flat [Exhibit No. 112]. The flat was resealed after the search was over. On 30-01-2000, the accused persons were arrested in Agra by P.W. 15- Police Inspector Navrang Singh, who was posted at police station of Sadar Bazar, Agra. P.W.-38 accompanied with Dy. Superintendent of Police P.W.29-Arvind Gawas, arrived at Agra on the same day. P.W.-15 informed them that A-1-Sanjay Thakran handed over a double barrel gun and A-2-Anjali Thakran took out and handed over a single barrel 12-bore gun from the cupboard. During the house search of the accused persons, police recovered a churidhar set, a ladies purse and some newspapers containing reports that were connected with investigation of the present case. According to the prosecution story, the recovered materials were identified by P.W.33-Subhash Nanda, father of Vikas and P.W.5- Kishen Valecha, brother of Priya as belonging to the deceased couple. P.W.38-Sandesh Chodankar, Sub-Inspector interrogated the accused persons and satisfied himself of their complicity in the crime. On 31-01-2000, he further obtained transit remand and custody of the accused couple. The accused were brought back to Goa on 01-02- 2000 and formally arrested in connection with the present case. On 08-02-2000, as alleged by prosecution, during the interrogation A-1-Sanjay Thakran disclosed to P.W. 38Sandesh Chodankar about the fact that murder of the deceased couple was committed by his wife and him and that the belongings of the deceased couple were present in his flat. On 11-02-2000, in presence of Court bailiff-Peter Fernandes and other panch witnesses, A-1 handed over jewellery from his flat B-2 F-3 at Sapna Residency, Colva. The jewellery, which was handed over to police, consisted of eight yellow metal bangles, one pair of ear-rings and one finger ring. As has been alleged by the prosecution side, he also produced clothes such as a white full-sleeves shirt, a saffron-coloured women's kameez with a cream-coloured salwar, a green-coloured saree with blouse, a light cream-coloured silken kurta pyjama and a designer black full-sleeves shirt, which belonged to the deceased couple. During interrogation, on 13-02-2000, A-2-Anjali Thakran allegedly disclosed [Exhibit No. 77] that she would point out the goldsmith to whom she had sold the gold ornaments. As per the directions of A-2-Anjali Thakran, a police party and panch witnesses reached the jewellery shop of P.W. 12-Ulhas Lotlikar at Khareband Margao. P.W.12-Ulhas Lotlikar produced two bangles bearing the identification mark 'RK 22 KL', weighing 23.5 grams. According to the prosecution case, the said bangles bearing the identification mark 'RK 22 KL' were gifted to the newly wed couple on their marriage by P.W.-33. The prosecution has alleged that A-2-Anjali Thakran sold these bangles along with a necklace and a ring to the jewellery shop run by P.W.-12. It has also been alleged by the prosecution that A-2- Anjali Thakran sold these jewellery on the pretext that as their restaurant was not running well, they were in urgent need of money. The learned Sessions Judge, Panaji, as well as the High Court on evaluation of the circumstantial evidence, came to the conclusion that the prosecution has failed to prove involvement of accused respondents in commission of the crime and acquitted them of all charges. Admittedly, the case of the prosecution is based on circumstantial evidence as there is no evidence on record that any of the witnesses, examined by the prosecution, have seen actual commission of the crime. Mr. Mahendra Anand, the learned senior counsel for the appellant(s), to prove the case against A-1-Sanjay Thakran, has placed reliance on the following circumstances: the recovery of ladies purse and salwar suit by police at Agra on 30.01.2000 and the recovery of jewellery and clothes made from the flat of the accused persons in Goa on 11.02.2000 and the evidence of seen together with the deceased couple before the actual incident by P.W.30-Suhasini Govekar and evidence of P.W.11-Dinesh Adhikari, P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee to the effect that A-1 was accompanied with the deceased couple on 27.02.1999 and that the deceased couple was last seen alive in his company. As far as the evidence against the respondent A-2-Anjali Thakran is concerned, the learned senior counsel for the appellant(s) has relied upon the aspect of recovery of ladies purse and salwar suit; the recovery of two bangles bearing the identification mark 'RK 22 KL' at her instance from the jewellery shop of P.W.12-Ulhas Lotlikar; and the evidence of P.W.11- Dinesh Adhikari, P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee, that Anjali was last seen in the company of her husband with the deceased couple before the commission of the crime. The learned senior counsel for the appellant(s) has further submitted that no explanation is forthcoming from the accused respondents in the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) as to what has happened after they were seen in the company of the deceased couple, would indicate involvement of accused respondents in commission of the crime. The learned senior counsel for the appellant(s) has then pointed out that the chain of circumstances highlighted in the present case clearly establishes the fact that the accused couple did not only meet the deceased couple in Goa but they were the ones with whom the deceased persons were last seen alive. It has also been contended that the recovery of ladies purse and salwar suit from the house of accused couple at the time of their arrest in Agra on 30.01.2000; recovery of jewellery and clothes at the instance of A-1- Sanjay Thakran from the flat of accused persons in Goa on 11-02- 2000 and recovery of two bangles belonging to D-2-Priya Nanda bearing the identification mark 'RK 22 KL' at the instance of A-2-Anjali Thakran from the jewellery shop of P.W.12-Ulhas Lotlikar on 13-02- 2000, further substantiate that the accused couple, in order to carve away the belongings of the newly married couple, committed the offence of murder. It has also been pointed out that the High Court and the lower court have erred in (i) rejecting the evidence regarding the recovery of incriminating materials and (ii) not appreciating the key prosecution witnesses. On the other hand, late Shri R.K. Jain, the learned senior counsel for the respondents, urged that the present matter before us, is an appeal arising out of special leave petition under Article 136 of the Constitution against concurrent orders of acquittal by the Sessions Court and the High Court and, thus, merely because on reappraisal of the evidence, the other view of the matter than taken by the courts can be legitimately arrived at, would not be a sufficient ground to interfere with an order of acquittal, unless this Court reaches the conclusion that the entire approach of the courts below in appreciating the evidence was patently illegal, erroneous or unsustainable and that if, on reappraisal of the evidence, only one view is possible, then alone the Court will exercise the jurisdiction in appeal and will convict the acquitted accused persons. It is submitted that on consideration of the evidence on record, the courts below have rightly reached the conclusion that the prosecution has failed to prove the case beyond reasonable doubt of involvement of accused respondents in commission of the crime of murder of the deceased couple. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See : State of U.P. v. Satish, (2005) 3 SCC 114, Padala Veera Reddy v. State of Andhra Pradesh and Others, 1989 Supp. (2) SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Gambhir v. State of Maharashtra, (1982) 2 SCC 351 and Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, AIR 1952 SC 343]. By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate court, and while dealing with appeal against order of acquittal this Court observed in Tota Singh and Another v. State of Punjab, (1987) 2 SCC 529 as under : "6.  The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous." Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225: "7.  This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. " and in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180: "7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. {See Bhagwan Singh v. State of M.P., (2002) 4 SCC 85}. The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484." From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. In the light of the aforesaid principles laid down, we shall consider the evidence placed on record to find out whether the courts below have committed any error in dealing with the evidence, which can be said to be patently illegal, or that the conclusion arrived at is wholly untenable, calling for interference by us. Even before the arrest of the accused couple, the flat of the accused persons situated at Goa was searched on 17.12.1999 in the presence of P.W.39-Mariono Pereiera, who was the court bailiff. The court bailiff accompanied this search party as the flat was sealed under the orders of the civil court. The Judicial Magistrate, Ist Class, Margao, had passed an order that the bailiff of the court would accompany P.W.-38, police officer, and in the presence of two panch witnesses, the seal of the court on the lock of the flat would be opened and inventory of movable articles and fixtures found in the flat should be made. The Judicial Magistrate, Margao also directed that after the search, the flat should be re-sealed/locked and the bailiff would file a report in the court. In his cross-examination, P.W.-39 admitted that the court had asked to prepare a list of all movable items of the flat and not only valuables, and he committed a mistake as he did not mention all articles found in the flat in the inventory and, therefore, there was no mention of any jewellery in the list prepared by him. As per this witness, when the search was made on 17.12.1999, there were no gold ornaments in the said flat and that there were various articles, which appeared like that of gold. A box full of such articles was kept in the suitcase. According to P.W.1- Erecko Fernandez, a panch witness, the door of the flat was locked with three locks and there was also a metal chain around the lock. The locks were required to be cut with the help of a hacksaw blade. But since the door also was latched from inside, it could not be opened. They noticed a small window with a broken glass pane and one of the police personnel who accompanied them, with the help of a screw driver, removed the screws of the grill of the window. One of the police personnel went inside the flat and opened the latch and thereafter all of them entered into the flat. They noticed some suitcases in the flat and on opening the same some clothes were found and jewellery was found inside the cupboard. In his cross- examination, this witness very specifically stated that the said window was wide enough to allow a person to gain entry in the flat. P.W.38- Sandesh Chodankar, who led the police party for the search conducted on 17.12.1999, had found lot of clothes and jewellery of yellow metal, lot of belongings of shack, electronic items and household items in the flat. He has explained that he did not attach any valuable or other articles as he was not sure to whom those things belonged and also as there was a civil dispute pending in the court. The panchnama of the search made on 17.12.1999 (Exhibit No.13) mentioned that after conducting the search, the door was closed and one old and two new locks were put on the door and they were sealed by a one-rupee coin as the court seal was not available. The court bailiff mentioned that he sealed three locks after the search was conducted by P.W.-38 on 17.12.1999. After the arrest of A-1, this flat was once again searched on 11.2.2000 in the presence of another court bailiff Peter Fernandez and other panch witnesses as A1 allegedly confessed about the crime on 08.02.2000. According to the prosecution version, he agreed to handover the incriminating articles to the police. P.W.8- Sanjay Naik, a witness to the confession of A-1, was also present as panch witness when A-1 had allegedly handed over jewellery items, i.e., eight yellow metal bangles, one pair of ear-rings and one finger ring and clothes such as a white full-sleeves shirt, a saffron-coloured women's kameez with cream-coloured salwar, a green-coloured saree with blouses, a light cream-coloured silken kurta pyjama and a designer black full-sleeves shirt, on the search of the flat of the accused persons in Goa on 11.02.2000. This witness further said that the flat was locked and when the bailiff of the court tried to open the lock after breaking the seal it did not open and the key got damaged in the process of opening of the lock and the lock was opened by using a wire. P.W.-38 mentioned that on 11.02.2000 the flat was found sealed and was opened in the presence of the bailiff and panch witnesses. The panchnama of recovery made on 11.02.2000 (Exhibit No.34) mentioned that the bailiff of the court removed the seals and tried to open the locks with keys. According to this panchnama, one iron rod was used to open up the locks but instead of the locks, the latch of the door got broken. When the chain of latch was removed, it was found that the door was locked due to body lock. Since the door was locked, the grills of the window were removed and after removing the broken glasses, one person was lowered and finally entry was made in the flat. The courts below have rejected the evidence of recovery made on 11.02.2000 and they have found that the first list of the articles found in the flat as prepared on 17.12.1999 did not mention any box or gold-like materials/artificial jewellery or any other gold article or any clothes in the list of movable articles of the flat (Exhibit No.112). How is it that the articles were found in the subsequent search from the same flat which was locked and sealed? The panchnama of the flat searched on 17.12.1999 though mentioned about three big suitcases full of clothes and artificial jewellery, no details, whatsoever, regarding those articles were made and without any reference as to the quality of golden colour ornaments, P.W.-38 considered them as artificial jewellery. On both occasions when the search was made in the flat, it was not sealed properly with the court seal and, instead thereof, one- rupee and five-rupee coins were used. The entry in the flat on both occasions, i.e. on 17.12.1999 and 11.02.2000, was made through the window which shows that this flat was easily accessible although the seal of the court was put on it, without interfering with the seal after removing the grill of the window. There was material contradiction in the panchnama of flat search made on 11.02.2000 and evidence of P.W.-8 and P.W.-38 with respect to the way in which the entry was made to the flat of the accused persons on 11.02.2000. When at the first instance no jewellery was found inside the flat, how it was recovered on the subsequent search? The search and recovery of articles by the police on 11.02.2000 does not inspire confidence as the flat was easily accessible, without disturbing the lock and planting of the articles by the police cannot totally be ruled out. We have carefully gone through the evidence of the witnesses and the panchnamas and list of seized articles and have found that reasoning adopted by the courts below in discarding the evidence of seizure of articles from the flat of the accused persons cannot be said to be without any basis. On the information received by the police, the accused persons were arrested at Agra and at the time of arrest on 30.01.2000, as per the prosecution, certain incriminating articles were seized from the accused couple at Agra. The police recovered the ladies purse and salwar suit from A-2-Anjali Thakran. These articles were put for Test Identification which was conducted in the presence of P.W.24- Vinayak S.N. Alornekar, Special Judicial Magistrate on 10.02.2000. During this T.I. Parade, P.W.5-Kishen Valecha, brother of deceased Priya Nanda, was unable to identify the salwar suit, but he had identified the ladies purse belonged to his sister and the reason given for identifying it was that she was carrying the same purse while leaving for Vaishnodevi after marriage. Another witness P.W.33- Subhash Nanda, identified both purse and salwar kameez as belonging to his daughter-in-law, Priya Nanda. In his cross- examination, P.W.-33 has mentioned that he identified the salwar kameez only from the colour and design and not from any other identification mark. He has admitted that same salwar suit and purse are available in the market. P.W.-5 has also admitted in his cross- examination that there was no distinctive mark on the purse. Identification of these articles have been disbelieved by the courts below and, in our opinion, rightly so. When the persons identified it, they did not have sufficient opportunity to see these articles used by the deceased for a long duration, and when the articles do not carry any distinctive marks, on the basis of which the articles can be distinguished from the similar articles which are easily accessible and available in the market, identification of the articles by the witnesses would be difficult to be believed. The recovery of these articles from the accused in the absence of their identification as belonging to the deceased, does not take the prosecution case any further. The learned senior counsel for the appellant(s) Mr. Mahendra Anand has placed reliance on the recovery of two bangles which had the identification mark 'RK 22 KL', weighing approximately 23.5. grams, from the shop of P.W.12-Ulhas Lotlikar at the instance of A-2. On 13.02.2000, during interrogation she disclosed that she would point out the goldsmith to whom the gold ornaments were sold. Accordingly, as per her directions, police party and panch witnesses approached the jewellery shop of P.W.-12 at Khareband, Margao. In presence of panchas, P.W.-12 produced the two bangles bearing identification mark 'RK 22 KL' , weighing 23.5. grams, before the police party. As per this witness, the accused came to his shop and sold two bangles, a necklace and a gold finger ring. When he asked for the reason as to why she was selling these ornaments, A-2 told him that their restaurant was not running well and hence, they were in urgent need of money. He paid Rs.12,400/-, Rs. 3,200/- and Rs.1,200/- respectively, for two bangles, a necklace and a gold finger ring. He did not melt the bangles since they were in good condition. As per the prosecution, these gold ornaments belonged to deceased Priya Nanda. During cross-examination, P.W.-12 volunteered to produce the book where he maintained the record of sale of these ornaments. However, inspite of ample opportunity given to him to produce the book, he did not do so. In his cross-examination, he admitted that a day before recovery, A-2 was shown to him in the office of Dy. Superintendent of Police, Mapusa. That apart, the police had not recovered the other ornaments alleged to have been sold by the accused to P.W.-12 as it is said that he had melted those ornaments. It is highly improbable that P.W.-12 would have retained the bangles, which have the distinctive mark over them and would have melted other ornaments with no distinctive marks on them. The whole purpose and authenticity of the recovery of these ornaments have been lost when the witness has admitted that a day ahead of the recovery the accused was shown to him in the police station. Another piece of evidence, on which the prosecution strongly relied, is of identification of the accused persons in the Test Identification parade on 07.02.2000. P.W.24-VSN Alornekar, Special Judicial Magistrate, Tiswadi and Bardez Talukas, conducted Test Identification parade, wherein P.W.6-Amit Banerjee, P.W.30-Suhasini Govekar and P.W.7- Ganpat , were the identifying witnesses. P.W.- 6 had identified both the accused persons as the persons who came with D-2 Priya Nanda to Hotel Seema on the night of 27.02.1999. The trial court as well as the High Court have found certain irregularities in the manner of conducting the identification parade. A- 1 and A-2 were placed in the same identification parade with 6 dummies each, which was contrary to Paragraph 16(2)(h) of the Criminal Manual issued by the High Court of Bombay, which mentioned that : "if two suspects were not similar in appearance or where there were more than two suspects, separate parade should be held using different person on each parade." We have gone through the original record of the memorandum of identification parade (Exhibit No.70) and have found that P.W.-24 has mentioned as follows in this memorandum : "The dummy accused who are put in the parade I.e., 6 ladies and 6 gents are more or less of the same features and age groups as that of the accused couple to be put in the parade. They are also more or less the same height and status in appearance as that of the accused." As far as case of A-1 is concerned, who was around 38 years old at that time, 5 of the dummy persons belonged to age-group of 23-27 and another dummy was of 40 years old. Hence, there is a serious doubt regarding the fairness of the test identification. We have now to consider the veracity and authenticity of the evidence led by the prosecution to show that the accused persons were seen with the deceased couple in Goa moving around together and that they were the same persons who had been last seen together by the witnesses with the deceased couple, and if so, what shall be the resultant inference which can be drawn from the facts proved in the surrounding circumstances. P.W.-30 was examined to prove the acquaintance of the accused persons with the deceased couple prior to the date of incident. As per P.W.-30, on 26.02.1999 the accused couple and their children came to her shack which was located at Anjuna Beach. A-1 approached P.W.-30 and told her that she was looking pretty and that he would give her work and would take her on ship and would give her whatever she wanted. He had also made enquiries whether the ornaments which she was wearing were real or artificial and that what was her bank balance. On 27.02.1999, the accused couple and their children came to her shack between 1 and 2 p.m. and went to take bath on the beach. When they returned from the beach, they were accompanied by a newly married couple. P.W.-30 had a talk with D-2-Priya Nanda, who was wearing the reddish-coloured bangles and, accordingly, she assumed that they were newly married couple. The newly married lady, who had come with the accused lady, changed her clothes and wore a blue-coloured skirt and blouse. After having lunch at her shack, the two couples and the children went away. About a month later, the police showed her two or three photographs and asked her to identify the persons in the photographs. She identified D-1-Vikas Nanda and D-2-Priya Nanda, as the newly married couple, who had come to her shack on 27.02.1999 along with the accused couple. She also identified articles, blue skirt and blouse, to be belongings of deceased Priya Nanda. The evidence of this witness of remembering the persons after a month when no particular incident was mentioned by her for remembering them, after a lapse of time, appears to be unnatural, particularly so, when she was running a shack at a beach where hundreds of persons were visiting. The evidence of this witness of the accused approaching her and making enquiries about the value of the ornaments and her bank balance in the first meeting, does not inspire confidence. Apart from this, the witness has failed to identify any of the accused persons in the identification parade conducted on 07.02.2000. That apart, in the cross-examination, this witness said that the children accompanying the accused were in the age group of 20-21 years whereas it has come in evidence that children of the accused couple were a boy and a girl, aged about 12 years and 6 years respectively. The prosecution examined P.W.14-Calvert Gonsalves to prove that he had seen the deceased couple and accused couple at Iguana Miraj Restaurant. As per this witness, he used to meet the accused persons at Iguana Restaurant as also at Lalita Beach Resort. The accused's children were a boy and a girl. The boy was about 12 years of age and the girl was about 6 years of age. He was introduced by A-1 to one Vikas Nanda (D-1) on the evening of 27.02.1999, while D-1 was sitting beside A-1 outside Iguana Restaurant. He was also told by A-1 that D-1 was his friend from Delhi and had come to Goa for his honeymoon. It was also informed to him by A-1 that the wife of D-1 was inside Iguana Restaurant. The witness deposed that there was one AC room in the Restaurant containing bedroom, TV, etc. which was used by A-1. D-1 told him that his wife was in the AC room alongwith A-2. The name of the wife of D-1 was told to him as Priya. D-1 told him that his wife was in the company of A-2. D-1, A-1 and he talked for about one-and-a-half hours. After that, A-1 told him that he and D-1 were going to disco and he left for his home. The time was at about 9.30 p.m. From the statement of this witness, it is apparent that at the night of 27.02.1999, he himself had not seen A-2 and D-2 sitting in the room at Iguana Restaurant. This witness further proved the fact that till 9.30 p.m. on 27.02.1999, A-1 was seen in the company of D-1 when he left them at Iguana Restaurant. P.W.11-Dinesh Adhikari, who was working as a domestic help in the bar and restaurant of Iguana Miraj and Lalita Beach Resort, deposed that the accused were running a hotel at Sernabhati Colva known as Iguana Miraj which was a bar and restaurant and they were also running a hotel besides the said restaurant and the name of that hotel was Lalita Beach Resort. He knew the accused persons right from the days he used to work for them in Haryana (Gurgaon) and thereafter he joined them in Goa. Some time in June 1999, the police had shown the photograph of a lady and a gent and asked him whether he could identify anyone of them. He told the police that he could identify the persons in the photograph. He identified the persons from the photographs and said that he had seen those persons 2 to 3 days prior to Holi of the year 1999 in the hotel of the accused. They came to the hotel at about 6.00 to 7.00 p.m. He saw that A-1, the gentleman in the photograph, and one person named Calvert were sitting outside the hotel while A-2 and the lady in the photograph were sitting inside the hotel. He was asked to bring a bag from a white colour Maruti car when they had come to the hotel in the evening. After some time, A-1 and the man from the photograph started walking in the direction of the beach and after about 30 to 45 minutes he saw A-1 alone while A-2 was sitting with the lady in the photograph. He further deposed that although he did not enter the room but he saw A-2 and D-2 sitting in the bedroom through the glass fixed to the bedroom door. In his cross- examination, this witness deposed that the beach is at a distance of about 200 to 300 metres from Iguana Miraj Hotel. A-1 and D-1 went to the beach at around 9.30 to 10.00 p.m. and thereafter he went to his living quarter. When he came back, he saw only A-1 in the hotel. He was not sure at what time the accused couple left with the lady in the photograph from Iquana Miraj Hotel. From the statement of this witness, it is apparent that A-2 and D-2 were sitting in the hotel room and it was only A-1 and D-1 who left towards the beach and after 30 to 45 minutes only A-1 returned and thereafter A-1 and A-2 along with D-2 left the hotel. P.W.6-Amit Banerjee, who was working as the Receptionist of Hotel Seema where the deceased couple stayed when they came to Goa, deposed that on 26.02.1999, D-1 and his wife D-2 had come to the hotel. They were provided a room which was reserved for the Union Bank of India as its holiday home. Mr. A.C. Duggal, General Manager of the Union Bank of India had informed him on phone that these guests were coming to the hotel and he should take care of them. On 27.02.1999 at about 2330 hours, D-2 came alone and asked for the room key and told him that she was checking out of the hotel. D-1-Vikas Nanda, the husband of D-2-Priya Nanda, was not along with her. He asked her why she was checking out at that odd time. At that, she informed that she had met some friends from Delhi and that she was going to join them. D-2 went to her room and he went to the reception area where the security guard was on duty. He asked the security guard as to how she had come to the hotel. The guard informed him that the guest had come in a car along with a man who had followed her to the room. He had noticed a white colour 800CC Maruti car parked outside the gate of the hotel and one lady with short hair was sitting on the rear seat. He noticed her for a minute or two. D-2 returned to the reception from her room within 15 minutes and A-1 was carrying the luggage. She settled the bill and thereafter left the hotel. In his cross-examination, this witness mentioned that when at reception counter D-2 was making the payment, he saw A-1 who passed along with the luggage putting his head down. In the Test Identification Parade on 07.02.2000, this witness identified A-1 as the person who came along with D-2 on 27.02.1999 when she checked out of the hotel and identified A-2 as the same lady who was sitting in the Maruti car on 27.02.1999. He stated that he did not find anything abnormal about the departure of D-2 and behaviour of D-2 at that time was normal. From the statement of this witness, it appears that he had merely a fleeting glance of A-2 sitting in the parked car and thus he had described her as the lady with a short hair. Although in the test identification parade conducted after more than 11 months he identified both the accused, but when the police recorded his statement on 07.03.1999 in Hotel Seema he had not given the description of the accused persons to the police to be the persons who came to his hotel along with D-2. The witness admitted that in the hotel register the check-out timing column was blank. Therefore, the record produced does not indicate the timing of departure of D-2 from Hotel Seema. The prosecution has also not examined the guard of the hotel to identify A-2 to be the person who was sitting in the car. Before we analyse the evidence of P.W.11-Dinesh Adhikari, who was working as a domestic help in the bar and restaurant Iguana Miraj, P.W.14-Calvert Gonsalves, who was said to be in the company of A-1 and D-1 on the evening of 27.02.1999 outside the lounge of the restaurant and P.W.6-Amit Banerjee, who was working as Receptionist of Hotel Seema, we would refer to certain decisions of this Court on the point of `last seen together'. It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodh Raj alias Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45 as under: "31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .." [See also : State of U.P. v. Satish, JT 2005(2) SC 153 = (2005) 3 SCC 114 (para 22) and Ramreddy Rajeshkhanna Reddy & Anr. v. State of Andhra Pradesh, JT 2006 (4) SC 16 (para 29)]. In Ramreddy Rajeshkhanna Reddy (supra), this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes

Sharad Birdhichand Sarda vs State Of Maharashtra on 17 July, 1984

Court 1

[Cites 33, Cited by 3286] Supreme Court of India Sharad Birdhichand Sarda vs State Of Maharashtra on 17 July, 1984 Equivalent citations: AIR1984SC1622, (1984)86BOMLR536, 1984CRILJ1738, 1984(2)SCALE445, (1984)4SCC116, [1985]1SCR88 Bench: A. Varadarajan, Syed M. Fazal Ali, Sabyasachi Mukharji JUDGMENT 1. This is rather an unfortunate case where a marriage arranged and brought about through the intervention of common friends of the families of the bride and bridegroom though made a good start but ran into rough weather soon thereafter. The bride, Manju, entertained high hopes and aspirations and was not only hoping but was anxiously looking forward to a life full of mirth and merriment, mutual love and devotion between the two spouses. She appears to be an extremely emotional and sensitive girl and at the very behest cherished ideal dreams to be achieved after her marriage, which was solemnised, on Feb. 11, 1902 between her and the appellant, Sharad Birdhichand Sarda. Soon after the marriage, Manju left for her new marital home and started residing with the appellant in Takshila Apartments at Pune. Unfortunately, however, to her utter dismay and disappointment she found that the treatment of her husband and his parents towards her was cruel and harsh and her cherished dreams seem to have been shattered to pieces. Despite this shocking state of affairs she did not give in and kept hoping against hope and being of a very noble and magnanimous nature she was always willing to forgive and forget. As days passed by, despite her most laudable attitude she found that "things were not what they seem" and to quote her own words "she was treated in her husband's house as a labourer or as an unpaid maid-servant". She was made to do all sorts of odd jobs and despite her protests to her husband nothing seems to have happened. Evan so, Manju had such a soft and gentle frame of mind as never to complain to her parents-in-law, not even to her husband except sometimes. On finding things unbearable, she did protest, and expressed her feelings in clearest possible terms, in a fit of utter desperation and frustration, that he hated her. Not only this, when she narrated her woeful tale to her sister Anju in the letters Written to her (which would be dealt with in a later part of the judgment), she took the abundant care and caution of requesting Anju not to reveal her sad plight to her parents lest they, may get extremely upset, worried and distressed. 2. Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and she thought that a point of no-return had reached. At last, on the fateful morning of June 12, 1932, i.e., nearly four months after her marriage, she was found dead in her bed. 3. As to the cause of death, there appears to be a very serious divergence between the prosecution version and the defence case. The positive case of the prosecution was that as the appellant was not at all interested in her and bad illicit intimacy with another girl, Ujvala, he practically discarded his wife and when he found things to be unbearable he murdered hen between the night of June 11 and 12, 1982, and made a futile attempt to cremate the dead body. Ultimately, the matter was reported to the police. On the other hand, the plea of the defence was that while there was a strong possibility of Manju having been ill-treated and uncared for by her husband or her in-laws, being a highly sensitive and impressionate woman she committed suicide out of sheer depression and frustration arising from an emotional upsurge. This is the dominant issue which falls for decision by this Court. 4. Both the High Court and the trial Court rejected the theory of suicide and found that Manju was murdered by " her husband by administering her a strong dose of potassium cyanide and relied on the medical evidence as also that of the Chemical Examiner to show that it was a case of pore and simple homicide rather than that of suicide as alleged by tie defence. The High Court while confirming the judgment of the trial Court affirmed the death sentence and hence this appeal by special leave. 5. Before discussing the facts of the case, it may be mentioned that although the High Court and the trial Court have gone into meticulous and minutest matters pertaining to the circumstances leading to the alleged murder of Manju, yet after going through the judgments we feel that the facts of the case lie within a very narrow compass. 6. The story of this unfortunate girl starts on 11-2-1982 when her marriage was solemnised with the appellant preceded by a formal betrothal ceremony on 2-8-81, After the marriage, Manju, for the first time, went to her parents' house on 22-2-82 for a very short period and returned to Pune on 26-2-C2. It is the prosecution case that on 17-3-82 the appellant had called Manju at Pearl Hotel where he introduced her to Ujvala and told her that she must act according to the dictates and orders of Ujvala, if she wanted to lead a comfortable life with her husband. In other words, the suggestion was that the appellant made it clear to his wife that Ujvala was the. real mistress of the house and Manju was there Only to obey her orders After this incident, Manju went to her parents' house on 2-4-82 and returned to Pune on 12-4-82, This was her second Visit. The third and perhaps the last visit of Manju to her parents' house was on 25-5-82 from where she returned to Pune on 3-6-82, werever to return again. The reason for her return to Pune was that her father-in-law insisted that she should return to Pune because the betrothal ceremony of Shobha (sister of the appellant) was going to be held on 13-6-82, 7. The last step in this unfortunate drama was that Manju, accompanied by Anuradha (wife of A-2) and her children, returned to the flat on 11-6-82 near about 11.00 p. m. Her husband was not in the apartment at that time but it is alleged by the. prosecution that he returned soon after and administered potassium cyanide to Manju. Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat and brought Dr. Lodha (PW 24) who was living at a distance of 1 1/2 Kms. from Takshila Apartments. At the suggestion of Dr. Lodha, Dr. Gandhi (PW 25.) was also called and both of them found that Manju was dead and her death was an unnatural one and advised the body to be sent for post-mortem in order to determine the cause of death. Ultimately, Mohan Asava (PW 30) was approached on telephone and was informed that Manju had died at 5.30 a.m. Subsequently, the usual investigation and the post-mortem followed which are not very germane for our purpose at present and would be considered at the appropriate stage. 8. The plea of the appellant was that Manju was not administered potassium cyanide by him but she appears to have committed suicide out of shear frustration. In order to prove his bona fide the accused relied on the circumstances that as soon as he came to know about the death of his wife he called two Doctors (Pws 24 and 25) and when they declared that Manju had died an unnatural death, as the cause of death was not known, and therefore the body had. to be sent for post-mortem, he immediately took steps to inform the police. He flatly denied the allegation of the prosecution that there was any attempt on his part to persuade Mohan Asava (PW 30) to allow the body of the deceased to be cremated. 9. We might state that the High Court has mentioned as many as 17 circumstances in order to prove that the circumstantial evidence produced by the prosecution was complete and conclusive. Some of these circumstances overlap, some are irrelevant and some cannot be taken into consideration because they were not put to the appellant in his statement under Section 313 of the CrPC in order to explain the effect of the same as we shall presently show. The Jaw regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of this Court as also of the High Courts. The locus classicus of the decision of this Court is the one rendered in the case of Hanumant v. State of Madhya Pradesh , where Mahajan, J. clearly expounded the various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus: The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...it must be such as to show that within all human probability the act must have been done by the accused." This decision was followed and endorsed by this Court in the case of Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of 1958 decided on 4-11-58 printed on green papers in bound volumes. We shall however discuss Hanumant's case fully in a later part of our judgment Coming now to the question of interpretation of Section 32(1) of the Evidence Act, this Court in the case of Ratan Gond v. State of Bihar , S.K. Das, J. made the following observations (at p. 21 of AIR): 'The only relevant clause of Section 32 which may be said to have any bearing is clause (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister." In the 'Law of Evidence' by Woodroffe & Ameer Ali, (Vol. II) the authors have collected all the cases at one place and indicated their conclusions thus: To sum up, the test of the relevancy of a statement under Section 32(1), is not whit the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression 'any of the circumstances of the transaction which resulted in his death'; is wider in scope than the expression 'the cause of his death'; in other words, Clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death' do not mean 'caused his death'. Thus, it is well settled that declarations are admissible Only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties, acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the res gestae." (P. 952) It would appear that the solid foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows: (1) Written dying declaration by the deceased in her letters, two of which were addressed to her sister Anju and one to her friend Vahini. (2) The oral statements made by the deceased to her father (PW 2), mother (PW 20), Sister (PW 6) and her friend (PW 3) and also to PWs 4 and 5 showing her state of mind shortly before her death and the complaints which she made regarding the ill-treatment by her husband. (3) Evidence showing that the appellant was last seen with the deceased in the room until the matter was reported to the police. (4) The unnatural and incriminating conduct of the appellant. (5) The medical evidence taken along with the Report of the Chemical Examiner which demonstrably proves that it was a case of homicide, completely rules out the theory of suicide as alleged by the appellant. Mr. Jethmalani, learned Counsel for the appellant, has vehemently argued that there was a very strong possibility of the deceased having committed suicide due to the circumstances mentioned in her own letters. He has also questioned the legal admissibility of the statements contained in the written and oral dying declarations. He has submitted that the so-called dying declarations are admissible neither under Section 32 nor under Section 8 of the Evidence Act- It was submitted by the appellant that the Present case is not at all covered by Clause (1) of Section 32 of the Evidence Act. 11. The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami v. Emperor , where Lord Atkin has laid down the following tests: It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible.... Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" Circumstances must have some proximate relation to the actual occurrence.... It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant." These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar v. State of Uttar Pradesh (Crl. Appeal No. 55 of 1966 decided on 29-7-66 : (reported in 1966 Cri App R (SC) 281)). where the following observations were made: It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed,.... A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence.... The phrase "circumstances of the transaction" is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" (See Pakala Narayana Swaraj v. King Emperor AIR 1939 PC 47. The aforesaid principles have been followed by a long catena of authorities of almost all the Courts which have been noticed in this case. To mention only a few important ones, in Manohar Lal v. State of Punjab 1981 Cri LJ 1373, the Division Bench of the Punjab & Haryana High Court observed thus: The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act. 12. We fully agree with the above observations made by the learned Judges, In Protima Dutta v. The State , while relying on Hanumant's case (supra) the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximity and has observed that in some cases where there is a sustained cruelty, the proximity may extend even to a period of three years. In this connection, the High Court observed thus: The 'transaction' in this case is systematic ill-treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction includes evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence. This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within "circumstances of transaction".... "In that case the allegation was that there was sustained cruelty extending over a period of three years interspersed with exhortation to the victim to end her life". His Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. "Thus evidence of. cruelty, ill-treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide. 13. Similarly, in Onkar v. State of Madhya Pradesh 1974 Cri LJ 1200 (Madhya Pradesh), while following the decision of the Privy Council in Pakala Narayana Swami's case" (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by Section 32 of the Evidence Act thus: The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused.... Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime. 14. In Allijan Munshi v. State AIR 1960 Bom 290, the Bombay High Court has taken a similar view. 15. In Chinnavalayan v. State of Madras (1959) 1 Mad LJ 246, two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances' observed thus: The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as (1) that the statement must be made after the transaction has taken place, (2) that the person making it must be at any rate near death, (3) that the circumstances can only include acts done when and. where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. 16. In Gokul Chandra Chatterjee v. The State , the Calcutta High Court has somewhat diluted, the real concept of proximity and observed thus; In the present case, it cannot be said that statements in. the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible under Section 32(1), Evidence Act They cannot be said to be circumstances of the transaction which resulted in death. 17. We, however, do not approve of the observations made by the High Court in view of the clear decision of this Court and that of the Privy Council. With due respect, the High Court has not properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are, therefore, of the opinion that this ease does not lay down the correct law on the subject. 18. Before dosing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of Clause (1) of Section 32, viz.., "the circumstances of the transaction which resulted in his death, in cases in which the cause of; that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. The State AIR 1960 Punjab 310, where the following observations were made: Clause (1) of Section 32 of the Indian Evidence Act provides that statements, written Or verbal, of relevant facts made by a person who is dead...are, themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person's death comes into question.... If is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been Under the expectation of death. 19. And in the case of State v. Kanchan Singh AIR 1934 All 153, it was observed thus: The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act. 20. In these circumstances, therefore, it Is futile to refer to English cases on the subject. 21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar, conditions of our society and the I'lvccip nature and character of owe people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend on vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death, It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over snore, than 3-4 months the statement may be admissible under Section 32. (3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four comers of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant. 22. This now brings us to a close consideration of the contents of the letters (Exts. 30, 32 and 33) written by Manju to her sister and friend. We propose to examine the contents of the letters for four purposes: (1) in Order to find out the state of mind and psychological attitude of Manju, (2) the nature of Manju's attitude towards her husband and in-laws, (3) the amount of tension and frustration which seems to be dearly expressed in the letters, and (4) to determine Manju's personal traits and psychological approach to life to determine if she was ever capable of or prone to committing suicide. 23. We start with the letter dated 8-5-82 (Ext. 30) which was addressed to her sister Anju and is printed at page 191 of Part I of the printed Paperbook. The learned Counsel for the appellant in order to make our task easy has supplied the English translation as also the Roman script of the original letter. On a comparison of the two versions, we are of the opinion that by and large the English translation printed in the Paperbook is a true and faithful rendering of the contents of the original letter. It is not necessary for us to extract the entire letter but we propose to extract only the relevant portions which seek to explain and illustrate the four purposes mentioned above. All read the letter with curiosity, or it may go to anybody's hand. I do not want to take any such risk. So I have taken up today for writing, the second letters to you. The Roman script runs thus: Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin hai. Isliye maims tumhe aaj doosra khat likhneko liya. 24. An analysis of the above clearly shows that Manju was a highly secretive woman and wanted to keep her personal matters or secrets to herself except giving a rough idea or a passing glimpse of her feelings only to those who were very close to her as friends or near relations. The extract shows that perhaps in a spell of heavy emotions she had written a very long letter to her sister whom she regarded as her best friend but on second thought she tore it off lest it may fall in anybody's hands and she was not prepared to take such a risk. This mentality and noble nature would be of great assistance to us in assessing the probative value of the statements made by her to her parents sister and friend during her last visit to Beed. The second paragraph, which is extracted below, reflects her state of mind and the tension and torture which she was Undergoing: Now in this letter, when (out of) the things coming to my mind which cannot be written. I do not understand what is to be written. The state of mind now is very much the same. Enough. You understand (me). I am undergoing a very difficult test. I am unable to achieve it Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right. 25. She has hinted that she was passing through difficult times but was trying to control herself as much as she could. She has further indicated that if things did not improve then she may have to evolve some other method. The exact words used in the Roman script runs thus: Jab tak sambhal sakti hoon theek hai jab assambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota hai. 26. The words "some other way will have to be evolved" clearly gives a clue to her psychotic state of mind and seem to suggest that the other method to get rid of all her troubles was to commit suicide. It is pertinent to note that in the first two paragraphs of her letter extracted above there is no indication nor any hint about the conduct of her husband. 27. In the third para of her letter she states her feelings thus: I thought much that since the house of my husband's parents is at Pune, I would do this and that or the people from the house of my husband's parents are free. However, I have gradually come to know that in that house, the worth of a daughter-in-law is no more than that of a labourer. The relevant portion in the Roman script reads thus: Is ghar mein bahu ki keemat majdoor se jyada nahin hai. 28. At the end of the third paragraph she repeats hen sad plight thus: My state here however is like an unclaimed person. Let it be gone. I do not like to weep (over it). When we will meet, we will talk all the things. 29. In the middle of the 4th paragraph she comes out with an emotional outburst by indicating that all her hopes had been shattered and because of being neglected by her husband her health was adversely affected. In the Roman script she used the following words: Sachmuch kya kya sapne rahte hain kuarepanmein, magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati mujhse bahut pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi. Tabiyat par uska asar dikh raha hai. 30. In the latter part of the 8th paragraph while giving vent to her feelings she states thus: Now Manju is moving, it is necessary to tell that she is alive. You don't tell anybody about this letter. I felt like telling all this to Bhausab. What, however, is the use of making him sorry. One should test one's fate, whatever may be the result I want to tell you all. But I cannot tell. 31. The words used by her show her affectionate and secretive nature and the precaution taken by her not to tell anything to her father, who is addressed as 'Bhausab'. The Roman script of the relevant portion runs thus Dil tu karta tha Bai Bhau Sahab ko sab bataon, magar usko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai, magar bata nahin sakti. 32. These extracts throw a flood of light On the nature, character, mental attitude, suffering and shock of the deceased. One thing which may be conspicuously noticed is that she was prepared to take ail the blame on her rather than incriminate her husband or her in-laws. The other portions of the letter (Ext. 30) are not at all germane for the purpose of this case. Summarising the main contents of the letter, the following conclusions or inferences follow: (a) Manju was a highly emotional and sensitive woman. (b) she got the shock of her life when due to ill-treatment by her husband and in-laws she found that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed and disappointed woman, (c) she had been constantly ill-treated by her in-laws and her position in the house was nothing but that of an unpaid maidservant or a labourer, (d) she wanted to keep all her worries arid troubles to herself and on no account was she prepared to disclose them to her parents or even to her sister, lest they also get depressed and distressed. (e) no serious allegation of cruelty bad been made against the husband personally by her and she thought that she herself should suffer out of sheer frustration. 33. Now we shall examine Ext. 32 which is a letter dated 8-6-82 written by Manju to her sister Anju. This was perhaps her last letter to Anju and is very important and relevant for decision of the case. The letter begins with the word* "I am happy here". In the second paragraph she expresses her feelings as follows: Shobhabai's 'Sadi' programme is fixed on 13th. I do not know why there is such a dirty atmosphere in the house ? It is felt every moment that something will hap-pen. Everybody is in tension. No work has been started in the house. Let it go. I am out of mind. Still I am used not to pay heed to it. Ala what about your law. 34. So far as the first part is concerned, the 'dirty atmosphere' about which she speaks is totally unrelated to anything done by the husband or of any cruel treatment by him; it merely refers to the tension prevailing in the family as the 'Sadi' (Kohl) was fixed on 13-6-82. Her anger is not so much towards her husband or herself as for the manner in which things were being done. She complained that no work had been started and being the eldest daughter-in-law of the family she felt it her duty to see that all arrangements were complete. It was conceded by the Additional Solicitor-General that this portion of the letter does not refer to any ill-treatment by the husband or his parents but relates only to the defective and unsatisfactory arrangements for such an important function. The relevant portion of the 3rd paragraph is also more or less innocuous but in between the lines it contains a tale of woe, a spirit of desperation and frustration and a wave of pessimism. The actual vernacular words are - Mera to aane ka kya hota hai dekna hai. Buaji ke yahan se khat aur aaya to shahid chance mil sakta hai. Magar meri mangal ke dulhan ke roop mein dekhne ki bahut ichha hai. Dekhenge. 35. She was naturally apprehending something and was not very hopeful of going to her father's place. This being her last letter, and that too a short one, it gives a clear inkling of the manner of how her mind was working. She did not lay any blame on her husband or anybody else but still she was afraid that something was going to happen and that she may not be able to go to her father and see the marriage of her sister-in-law for which preparations were being made. In out opinion, these words are extremely prophetic and seem to indicate that by that time she had almost made up her mind to end her life instead of carrying on her miserable existence. As brevity is the soul of wit, she directly hinted that she may not be able to meet her father or anybody naturally because when a life comes to an end there can be no such question. Exhibit 32, though a short letter, depicts her real feeling and perhaps a tentative decision which he may have already taken but did not Want to disclose for obvious reasons. 36. Then we come to Ext 33 which is a letter dated 23-4-82 written by the deceased to her close friend, Vahini and which shows her exact feelings, changing mood and emotions. This is the only letter where she had made clear complaints against her husband and the relevant portions may be extracted thus: Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should have been near with me. All persons here are very good. Everybody is loving. Still I feel lonely; One reason is that, in the house there are many persons and they are elder to me and as such I do not dare to do any work independently. Every time some fear is in mind which leads to confusion. God knows when I can come there? The point on which we had discussion, is an it was. Vahini, I swear you if you talk to anyone. I am much in pains. But what else can I do ? No other go than that, and the same mistake is done again and again by me. It is that I go ahead and talk for ten times, then I become angry if he does not speak, Vahini, there is nothing in my hands except to weep profusely. At least till now this man has no time to mind his wife, let it be, but Vahini, what shall I do ? Who knows what hardships befall on the, so long I am alive. Why the God has become (unkind) towards me. Since yesterday I have made up my mind not to speak a word even, till he speaks (to me). Let me see to what extent I control my feelings. Vahini, you also pray to god for me whether a girl like me should be put to such a difficult test Vahini, I am so much afraid of him that the romantic enchantment during first 10-15 days after marriage has become like a dream. I cannot dare to ask him whether his clothes be taken for wash. At present my status is only that of a maid-servant without pay as of right. Why so much indifference towards me only ? Vahini, I feel to weep in your arms. Vahini, come to Pune early. On getting up every morning I feel he will speak today but every day I am hoping against hope. Vahini, what will happen? Now there is no ray of hope. Day before yesterday I became excited and shattered in rage. "You hate me, was I Unable to get food in my parent's house? Me was irritated due to word 'hate'. He said, if you talk more like this, I will be very bad man. If this goes on, I will not come to sleep. That means not permitted (to cry) also. How he says to me, are you tired of me so early? What shall I say to such a man. Once I fee! that he does not count me. On second thought, I feel he cares me much. But due to moody nature, it will take time to pacify she same. On the day on which self-pride is lessened, no other person will be more fortunate than me. But till that day it is not certain that I will be ailve. 37. In the second paragraph she starts by giving an indication that she was feeling uneasy and would have very much liked to have Vahini with her. In the third paragraph she dearly states that all persons in her father-in-laws' place were very good and loving but due to a number of persons in the house she did not get a chance to work Independently. The last line "every time come fear is in mind which leads to confusion" is the starting point of the first symptom of her invisible fear which she was Unable to locate. The fourth paragraph is rather important which shows that whatever her feelings may have been she sought an oath from Vahini not to talk to anyone regarding the matters which she proposed to Write in the said letter. She says that she was much in pains and hints that she weeps Profusely and the reason given by her for this is that she went on committing mistakes and talked to her husband many times but his silence was extremely painful which made her angry. In the last portion, for the first time, she makes a direct complaint against her husband to the effect that he had no time to look after her (Manju). In the same paragraph she describes her hardships and complains why God was unkind to her. She further expresses her sentiments that the romantic enchantment which she experienced during the first few days of her marriage had completely disappeared and looks like a lost dream or a "Paradise lost". Then she describes her plight as being a maid-servant without pay. She again complains of indifference towards her. Ultimately, she hopes against hope that some day he will speak to her and discuss the problems but there is no response. Later, she refers to a particular incident and goes to the extent of telling him that he hates her. This seems to have irritated the husband who resented this remark very much. Again in the same breath towards the end of the paragraph, while she says that her husband does not care for her yet she at once changes her mind and says that he cares for her much but due to his moody nature it will take time to pacify him. Her feelings again take a sudden turn when she says that when her husband's self-pride is lessened none would be more fortunate than her. The next line is rather important because she hints that till the said heyday comes perhaps she might not be alive. 38. A careful perusal of this letter reveals the following features- (1) After going to her marital home she felt completely lost and took even minor things to her heart and on the slightest provocation she became, extremely sentimental and sensitive. (2) She exhibited mixed feelings of optimism and pessimism at the same time. (3) It can easily be inferred that she did not have any serious complaint against her husband but she became sad and morose because she was not getting the proper attention which she thought she would get. (4) There is no indication that she expected any danger from her husband nor is there anything to show that things had come to such a pass that a catastrophe may have resulted. There may be certain concealed and hidden hints which she was not prepared to reveal in writing; what they we're is not clear, (5) A close, reading and analysis of the letter clearly shows at least two things- (a) that she felt extremely depressed, (b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide. 39. This possibility is spelt out from the various letters which we have extracted. Indeed, if this was net so how could it be possible that while not complaining against her husband she gives a hint not only to Vahini but also to Anju that she might not live, She mentions of no such threat having been given to bet by her husband at any time OK anywhere. (6) The contents of the letter lead us to the irresistible conclusion that Manju felt herself lonely and desolate and was treated as nothing but a chattel or a necessary evil ever since she entered bet marital home. 40. Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of has married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress our opinion, we would like to cite some passages of an eminent psychiatrist, Robert I. Kastenbaum when in his book 'Death, Society and Human Experience" he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book: The fact is that some people who com-out suicide can be classified as psychotic or severely disturbed. If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a. relevant variable to consider. And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness. Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle like struggle. The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death. The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow. Revenge fantasies and their association With suicide are well known to people who give ear to those in emotional distress. People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect. The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge through suicide.... However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated, If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made.... Warren Breed and his colleagues found that a sense off failure is prominent among many people who take their own lives. 41. The above observations are fully applicable to the case of Manju. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that Manju was not only a sensitive and sentimental woman but was extremely impressionable and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life. 42. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book The Melancholy Marriage' observe that- Studies of attempted suicide cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients' interactions with others in their environment were considered. 43. Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced with disappointment or find their environment unhealthy or unhappy, they seem to loose all the charms of life. The authors while describing these sentiments observe thus: 'Hopelessness', 'despair', 'lousy' and 'miserable' draw attention to the relationship of the depressed person to his environment. The articulate depressed person will often also struggle to put into words the fact -that not only does there appear to be no way forward and thus no point to life - but that the world actually looks different. 44. Coleridge in 'Ode to Dejection' in bis usual ironical manner has very beautifully explained the sentiments of such persons thus: I see them all so excellently fair- I see, not fed, how beautiful they are. 45. At another place the author (Hinchliffe, Hooper and John) come to the final conclusion that ruptured personal relationships play a major part in the clinical picture and in this connection observed thus: "Initially We applied these ideas to study Of cases of attempted suicide (Roberts and Hooper 19C9) and although we did not assume that they were all necessarily depressed, we looked for distal and pro

V. Venugopala Ravi Varma Rajah vs Union Of India & Anr on 26 February, 1969

Court 1

[Cites 24, Cited by 86] Supreme Court of India V. Venugopala Ravi Varma Rajah vs Union Of India & Anr on 26 February, 1969 Equivalent citations: 1969 AIR 1094, 1969 SCR (3) 827 Author: J.C. Shah Bench: J.C. Shah, V. Ramaswami, A.N. Grover PETITIONER: V. VENUGOPALA RAVI VARMA RAJAH Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT: 26/02/1969 BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N. CITATION: 1969 AIR 1094 1969 SCR (3) 827 1969 SCC (1) 681 CITATOR INFO : RF 1970 SC 508 (13) R 1972 SC 845 (15) RF 1973 SC 623 (13) R 1974 SC 849 (9) R 1981 SC1269 (4,8,9) ACT: Expenditure Tax Act (29 of 1957), s. 3(1)-Applicable to Hindu families governed by Marumakkattayam law but not to Mappilla families governed by the Marumakkattayam law-If violative of Art. 14 Constitution of India, 1950. HEADNOTE: The members of a Hindu undivided family governed by the Marumakkattayam law, while remaining joint, had entered into an agreement for separate 'enjoyment of certain properties of the family by different members as permitted by their customary law. For the assessment year 1958-59 its karta, in the status of a Hindu undivided family, filed a return under the Expenditure-tax Act, 1957, of the expenditure incurred by him in respect of the property under his 'personal control and direct enjoyment'. The Expenditure- tax Officer added the expenditure incurred by the other members of the family in respect of properties set apart for their use and enjoyment as the expenditure of the Hindu undivided family under s. 3(1). On the question, whether s. 3 is violative of Art. 14 because, a Hindu undivided family governed by the Marumakkattayam law as to pay the tax at a higher rate by reason of the unit of taxation under the section being the Hindu undivided family there is an amalgamation of the ex- penditure of all the members of the family, whereas, a Mappilla family may pay tax at a lower rate since the members of a Mappilla undivided family governed by the Marumakkattayam law are liable to be taxed as 'individuals' under the section, HELD:The equal protection clause of the Constitution allows a large play to legislative discretion in the matter of classification. The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways : the Legislature may select persons, properties, transactions and objects, and apply' different methods and even rates of tax, if the Legislature does so reasonably and if the classification is rational. A taxing statute may contravene Art. 14 if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate, an incidence of taxation which leads to obvious inequality, but, a taxing statute is not exposed to attack on the ground of discrimination merely because different rates of taxation are prescribed for different categories of persons, transactions, occupations or objects. The courts will not strike down an Act as denying the equal protection of laws Merely because other objects could have been, but are not, taxed by the Legislature. [832 H; 833 A- F] Though the law applicable to Hindu undivided families governed by the Marumakkattayam law and to the Mappilla tarwad in North Malabar has the same characteristics in two respects, namely, (a) tracing descent through females; and (b) community of interest and unity of possession in respect of the family property, the laws applicable to them in other respects differ widely. Initially a common system of law relating to family property of the tarwad was applicable to Hindus and Mappillas governed 828 by the Marumakkattayam law, but since the enactment of the Madras Marumakkattayam Act (22 of 1933) and other enactments governing Hindus, and the Mappilla Marumakkattayam Act (17 of 1939) governing the Mappillas, there are few points of similarity in property matters in the tarwads. The application of the Islamic laws of marriage and inheritance to the Mappillas has led to greater cleavage. The community of Mappillas governed by Marumakkattayam law is a small community, restricted only to the Northern area of Malabar district and is dwindling because of the impact of the Muslim law of inheritance applicable to sham obtained on partition. Parliament has been accustomed to treating a Hindu undivided family as a unit of taxation and to enacting tax laws making a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mappillas. The long course of legislative history in matters of taxing income, wealth, gifts, capital gains'and business profits indicates that the Legislature regarded undivided Hindu families as a class to which the legislation may appropriately be applied. Even though the basic scheme of a Hindu undivided family governed by the Mitakshara law is different from that of a family governed by the Marumakkattayam law, a Hindu undivided family governed by the Marumakkattayam law fails within he expression 'Hindu undivided family. Therefore, Parliament, by making the Act applicable to Hindu families and not to Mappilla families governed by the Marumakkattayam law, has not attempted any obvious inequality or made any discrimination violative of Art. 14. [832 B-C, G-H; 834 E-G; 835 A-GI Raja Jagannath Baksh Singh v. State of U.P., [1963] 1 S.C.R. 250, U.S. law referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2436 and 2437 of 1966. Appeals by special leave from the judgment and order dated November 5, 1965 of the Kerala High Court in Writ Appeals Nos. 39 and 44 of 1964. M. C. Chagla, C. K. Vishwa Nath Aiyar and R. Gopalakrish- nan, for the appellant (in both the appeals). D. Narsaraju, T. A. Ramachandran and B. D. Sharma, for the respondents (in both the appeals). The Judgment of the Court was delivered by Shah, J. Rajah Padmanabha Ravi Varma was the karta of a Hindu undivided family governed by the Marumakkattayam law. On his death in 1961 the appellant his brother-became the karta of the family. In 1909 the members of the family, while remaining joint, had entered into 'an arrangement for separate enjoyment of certain properties of the family by different members. For the assessment year 1958-59 Rajah Padmanabha filed, in the status of a Hindu undivided family, a return under the Expenditure-tax Act of the taxable expenditure incurred by him in respect of the property under his "personal control and direct enjoyment". The Expenditure-tax Officer added thereto 8 29 the expenditure incurred by the other members of the family in respect of properties set apart for their use and enjoyment. The Expenditure-tax Officer also served 'a notice of assessment under s. 15(2) calling for a return of expenditure by the Hindu undivided family for the assessment year 1959-60. The appellant then moved petitions before the High Court of Kerala under Art. 226 of the Constitution for writs quashing the assessment and the notice of demand for the year 1958-59 and the notice calling for a return for the assessment year 1959-60 contending, inter alia, that he was not liable to be assessed to tax on expenditure incurred in respect of property not "under the, High Court of Kerala upheld the contention. In appeal a Division Bench of, the High Court set aside the order of the single Judge. The appellant contends that the law which enables the Expenditure-tax Officer to assess tax on the expenditure of all members of the Hindu undivided family governed by the Marumakkattayam law, discriminates, on the ground of religion, between the Hindu undivided family and a Mappilla undivided family governed by the Marumakkattayam law resident in North Malabar. Section 3 of the Expenditure-tax Act 29 of 1957 is the charging section : insofar 'as it is relevant it reads "(1) Subject to the other provisions contained in this Act, there shall be charged for every financial year, commencing on and from the first day of April, 1958, a tax (hereinafter referred to as expenditure tax) at the rate or rates specified in the Schedule in respect-of the expenditure incurred by any individual or Hindu undivided family in the previous year Provided that Under the charging section tax is imposed on individuals and Hindu undivided families. An undivided family which consists of Hindus alone may be treated as a unit of assessment: an undivided family whose members are not Hindus will be assessed to tax as an "individual". Counsel for the appellant contends' that whereas a Hindu family governed by the Marumakkattayam law is assessed to expenditure-tax on the total expenditure incurred by all the members of the undivided family, because the unit of taxation under s. 3 is the Hindu undivided family, a Mappilla undivided family governed by the Marumakkattayam law in 830 North Malabar is liable to be assessed to tax as an "individual", and on that account at a lower rate. Marumakkattayam law applied originally by usage to a section of the Hindus inhabiting the South-Westem coastal region in India. Some centuries ago a section of the Hindu inhabitants of North Malabar were converted en masse to Islam, but they still continued to remain governed by the Marumakkattayam law especially in matters of property relations among members of the family. The law administered by the Courts to these communities is, subject to express statutory provisions, a body of customs and usages which have received judicial recognition. The Mitakshara law of joint family is founded upon agnatic relationship : the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor in the male line. The principal incident of Marumakkattayam law is that it is matriarchate : members of the family constituting a Marumakkattayam tarwad are descended through a common ancestress in the female line with equal rights in the property of the family. Under the customary Marumakkattayam law no partition of the family estate may be made, but items of the family property may by agreement be separately enjoyed by the members. On death of the interest of a member devolved by survivorship. Management of the family propeerty remained in the hands of the eldest male member, and in the absense of a male member a female member. A tarwad may consist of two or more branches known as thavazhies, each tavazhi or branch consisting of one of the female members of the tarwad and her children and all her descendants in the female line. Every tarwad consisted- of a mother 'and her children-male and female-living in commensality, with joint rights in property. The District of Malabar formed part of the State of Madras till October 31, 1956. The customary Marumakkattayam law applicable to Malabar was modified in certain- respects from time to time by the Madras Legislature e.g. the Malabar Marriage Act 4 of 1896, the Malabar Wills Act 5 of 1898. But the law relating to property relations between the members of the tarwad remained in its customary form till the fourth decade of this century. Under the customary law partition of the property of the family could not be claimed by an individual member or even by a thavazhi. It was so laid down by a course of judicial decisions' for over 75 years, and this rule was accepted as settled law till the Madras Legislature. enacted the Madras Marumakkattayam Act, 22 of 1933 and the Mappilla Marumakkattayam Act 17 of 1939, the former applying to Hindus and the latter to Mappillas who are Muslims. There were however significant difference between the two Acts. Under Act 22 of 1933 only 831 a tarwad could claim partition (s. 38) (by the Madras Marumakkattayam (Amendment) Act 26 of 1958 enacted by the Kerala Legislature the right to claim partition was also granted to individual members); property obtained by partition was held with incidents of tarwad property [s. 38(2)]; and the Karnavan was not require& to maintain an inventory of the property, but had to maintain a true and correct account of the income and expenditure of the tarwad. By the Madras Act 17 of 1939 any member of a Mappilla tarwad could claim partition' (ss. 13 & 14); succession to property obtained by partition was governed by Istamic law (s. 18); the Karnavan was required to maintain an inventory of family property (s. 3); any member of the family could apply to the Court for an order directing the Karnavan to give inspection of accounts or inventory [s. 5(2)] surplus income had to be invested by the Karnavan (s. 7); and the Karnavan could be removed by a suit (s. 11) These and other statutory Modifications were applicable only to the Malabar area which was originally part of the State of Madras and not to the State of Travancore-Cochin as it existed before the States Reorganization Act, 1956. There were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law: these were the Cochin Makkathayam Thiyya Act 17 of 1115 (M.E.); Cochin Marumakkattayam Act 13 of 1095 (M.E.). Cochin Nair Act 13 of 1095 (M.E.) and Act 29 of 1113 (M.E.); Cochin Paliam Tarwad Act 8 of 1097 (M.F); Cochin Thiyya Act 8 of 1107 (M.E.); Travancore Nanjinad Vellala Regulation 6 of 1101 (M.E.); Travancore Nayar Regulation 1 of 1088 (M.E.) and 11 of 1100 (M.E.) Travancore Wills Act 6 of 1074 (M.E.). It is sufficient to observe that by these statutes significant changes were made in the customary laws governing the family and property relations between the members governed by the Marumakkattayam law. The Hindu Succession Act 30 of 1956 also made inroads upon the customary law.' Section 3(h) defined the expression "Marumakkattayam law", and by s. 7 it was provided that it 'a Hindu to whom the Marumakkattayam or Nainbudri law would have applied, if the Hindu Succession Act had not been passed, dies, his or her interest in the property of a tarwad, tavazhi or illom shall devolve by testamentary or intestate succession, not according to the Marumakkattayam law or the Nambudri law, but under the Hindu Succession Act. By s. 17 of the Act ss.8, 10, 15 and 23 apply to persons governed by the Marumakkattayam law subject to certain modifications. 832 The Hindu Adoptions and Maintenance Act 78 of 1956 the Hindu Marriage Act 23 of 1955 also apply to Hindus governed by the Marumakkattayam law and modify the law relating to family relations. Initially a common system of law relating to family property of the tarwad was applicable to Hindus and Mapillas governed by the Marumakkattayam law. Since the enactment of Madras Act 22 of 1933, and the other Acts governing the Hindus, and Act 17 of 1939 governing the Mappillas, points of similarity even in property relations in the tarwads have considerably narrowed. Application of the Islamic laws of marriage and inheritance to the Mappillas led to greater cleavage. If a member of a Mappilla Marumakkattayam family married a person not governed by the Marumakkattayam law, property of the person governed by Marumakkattayam law apparently devolved according to that system of law, whereas the property of the person governed by the Islamic law devolved according to Islamic rules of succession. The result was that whereas the interest of a, Mappilla governed by the Marumakkatayam law devolved by survivorship, his separate property descended by inheritance in accordance with the Islamic law. Hindus governed by the Marumakkattayam law, since the enactment of the Hindu Succession Act remained members of the undivided family, but on death the interest devolved by the rules prescribed by the Hindu Succession Act. In a Hindu tarwad governed by the Marumakkattayam law the descent is matriarch-ate and all members male and female have equal shares in the property of the tarwad. Though not a family governed by the Mitakshara law, it is still a Hindu undivided family within the meaning of the Expenditure-tax Act. The property relations between members of a Mappilla Marumakkattayam tarwad governed by the matriarchate with equal shares for males and females were in certain respects, already stated, different from the relations between members of a Hindu joint family governed by the Marumakkattayam law. The community of Mappillas governed by the Marumakkattayam law is, compared to the Hindus, a small community restricted only to the northern area of the Malabar District. it is again a dwindling community because of the impact of the law of inheritance applicable to share obtained on partition. it is in the light of these special characteristics that-the plea of discrimination must be considered. Equal protection clause of the Constitution does not enjoin equal protection of the laws as abstract propositions. Laws being the expression of legislative will intended to solve specific 8 33 problems or to achieve definite objectives by specific remedies, absolute, equality or uniformity of treatment is impossible of achievement. Again tax laws are aimed at dealing with complex problems of infinite variety necessitating adjustment of several disparate elements. The Courts accordingly admit, subject to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative discretion in the matter of Clai- fication. The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways the Legislature may select persons, properties, transactions :and objects, and apply different methods and even rates of tax, if the ,Legislature does so reasonably. Protection of the equality clause does not predicate a mathematically precise or logically complete or symmetrical classification : it is not a condition of the guarantee of equal protection that all transactions, properties, objects or persons of the same genus must be affected by it or at all. If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax in different ways and adopt different modes of assessment. A taxing statute may contravene Art. 14 of the Constitution if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate, incidence of taxation, which leads to obvious inequality. A taxing statute is not, therefore, exposed to attack on the ground of discrimination merely because different rates of taxation are prescribed for different categories of persons, transactions, occupations or objects. It is for the Legislature to determine the objects on which tax shall be levied, and the rates thereof. The Courts will not strike down an Act as denying the equal protection of laws merely because other objects could have been, but are not, taxed by the Legislature : Raja Jagannath Baksh Singh v. State of Uttar Pradesh and Another(1). The same rule has been accepted by the Courts in America. Wills in his Constitutional Law of the United States has stated at p. 587 A state does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods, and even. rates for taxation if it does so reasonably." As stated in Weaver's Constitutional Law Art. 275 at p. 405 Me Fourteenth Amendment was not designed to prevent a state from establishing a system of taxation or from effecting a change in its system in all proper, (1) (1963] 1 S.C.R. 220. 834 -and reasonable ways, nor to require the states to adopt an ironclad rule of equality to prevent the classification of property for purposes of taxation or the imposition of different rates upon different classes." Weaver again says at p. 397 "Class legislation is that which makes an improper discrimination by conferring Particular privileges upon a class of persons, arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and between whom and the persons not so favoured no reasonable distinction ,or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege...... A classification must not be arbitrary artificial or evasive and there must be a reason-able, natural and substantial distinction in the nature of the class or classes upon which the law operates. In respect to such distinction, a legislative body has a wide discretion and an Act will not be held invalid unless the, classification is clearly unreasonable and arbitrary." It is unnecessary to multiply citations. The Parliament has declared for the purpose of the Expendi- ture-tax Act an undivided family of Hindus as a unit of taxation and imposed tax at the rates prescribed. To fall within the description the unit must be an undivided family of Hindus. Within the expression "Hindu undivided family" will fall an undivided family of Hindus governed by the Marumakkattayam law. Even though the basic scheme of a Hindu undivided family governed by the Mitakshara law and the Marumakkattayam law is different in two important respects, viz. the descent is through females and children both males and females have equal rights to pro-perty-these families are still Hindu undivided families. The law applicable to Hindu undivided family governed by the Marumakkattayam law, and to the Mappilla. tarwad in North Malabar has the same characteristics in two principal respects(a) descent is traced through females; and , (b) there is community of interest and unity of possession in respect of the family property. But the laws applicable to those families in other respects widely differ. The Mappilla families governed by the Marumakkattayam law reside in a small part of the country and form numerically a small community. The Parliament has again been accustomed 8 35 in enacting tax laws to make a 'distinction between a Hindu Undivided Family consisting of Hindus and undivided families of Mappillas. By the taxing Acts the Parliament could have treated Mappilla tarwads as units of taxation. But the mere fact that the law could, have been extended to another class of persons who have certain characteristics similar to a section of the Hindus but have not been so included is not a ground for striking down the law. In treating a Hindu Undivided Family as a unit of taxation under the Expenditure-tax Act and not a Non-Hindu Undivided Family the Parliament has not attempted an "obvious inequality". Under the taxing Acts the scheme of treating a Hindu Un- divided Family has been adopted for a long time, e.g., the Indian income-tax Act IX of 1869, Indian Income-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act 11 of 1886, Act VII of 1918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax Act 27 of 1957 and the Gift-tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was made a unit of taxation. For the purposes of these Acts Mappilla tarwads governed by the Marumakkattayam law have been regarded as individuals. This long course of legislative history in matters of taxing income, wealth, gifts, capital gains and business profits clearly indicates that the legislature regarded undivided families of Hindus as a class to which the legislation may appropriately be applied. An intention to effectively administer the taxing Acts and not to discriminate on the ground of religion may be attributed to the Legislature. The Parliament in the present case having made the Expen- diture-tax Act applicable to Hindus governed by the law of the joint family, but not including Mappilla families who are governed by the Mappilla Marumakkattayam Act has not made any discrimination and the charging section is not liable to be struck down on the ground that the Mappilla family may have to pay tax at a lower rate, whereas a Hindu Undivided Family, by reason of the amalgamation of the expenditure of all the members of the family, may have to pay tax at a higher rate. The appeals fail and are dismissed with costs. One hearing fee. V.P.S. Appeals dismissed. 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Vineeta Sharma vs Rakesh Sharma on 11 August, 2020

Court 1

[Cites 127, Cited by 245] Supreme Court of India Vineeta Sharma vs Rakesh Sharma on 11 August, 2020 Equivalent citations: AIR 2020 SUPREME COURT 3717, AIRONLINE 2020 SC 676 Author: Arun Mishra Bench: M.R. Shah, S. Abdul Nazeer, Arun Mishra 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. DIARY NO.32601 OF 2018 VINEETA SHARMA … APPELLANT(S) VERSUS RAKESH SHARMA & ORS. … RESPONDENTS WITH SPECIAL LEAVE PETITION (C) NO.684 OF 2016 SPECIAL LEAVE PETITION (C) NO.35994 OF 2015 SPECIAL LEAVE PETITION (C) NO.38542 OF 2016 SPECIAL LEAVE PETITION (C) NO.6403 OF 2019 SPECIAL LEAVE PETITION (C) NO.14353 OF 2019 SPECIAL LEAVE PETITION (C) NO.24901 OF 2019 SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020 JUDGMENT ARUN MISHRA, J. 1. The question concerning the interpretation of section 6 of the Signature Not Verified Hindu Succession Act, 1956 (in short, 'the Act of 1956') as amended Digitally signed by Narendra Prasad Date: 2020.08.11 14:13:54 IST Reason: by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of  2 2005') has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along. 2. In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016] the High Court held that section 6, as amended by the Act of 2005, is deemed to be there since 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of 'partition' used in the Explanation to amended Section 6(5). 3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of  3 2005 came into force, whether daughter would become a coparcener of joint Hindu family property. 4. In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016], the question raised is where the final decree has not been passed in a suit for partition, whether the re­ distribution of shares can be claimed by the daughters by amended section 6, as substituted. 5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019], the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters. 6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the petitioner sought partition of his father's ancestral properties, and suit was filed in 2001. The trial court granted 1/7 th share to all the parties. The same was modified. It was held petitioner, and daughters were entitled to only 1/35th share in the light of the decision of this Court in Prakash v. Phulavati (supra). 7. In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP  4 [C] Nos. 1766­67/2020], the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned. 8. A Division Bench of this Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. This Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 have been held to be prospective. 9. In Danamma (supra), this Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the  5 year 2001, leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece. Arguments: 10. Shri Tushar Mehta, learned Solicitor General of India, appearing on behalf of Union of India, raised the following arguments: (i) The daughters have been given the right of a coparcener, to bring equality with sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. The Amendment Act, 2005, is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenary rights on the commencement of the Amendment Act. Even though the right of a coparcener accrued to the daughter by birth, coparcenary is a birthright. (ii) The conferment of coparcenary status on daughters would not affect any partition that may have occurred before 20.12.2004 when the Bill was tabled before Rajya Sabha as contained in the proviso to section 6(1). Hence, the conferment of right on the daughter did not disturb the rights which got crystallised by partition before 20.12.2004.  6 (iii) Unamended Section 6 provided that if a male coparcener had left behind on death a female relative specified in Class I of the Schedule or male relative claiming through such female relative, the daughter was entitled to limited share in the coparcenary interest of her father not share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India. (iv) With effect from 9.9.2005, the date of enforcement of Amendment Act, the daughters became coparceners by birth, in their own right with the same liability in the coparcenary property as if she had been a son. (v) The Explanation contained under Section 6(1) concerning conferral of rights as coparcener, daughter as coparcener, shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004. (vi) After substitution of the provisions of section 6, the devolution of coparcenary by survivorship has been abrogated. Now in case of death  7 of coparcener, male/female, the coparcenary interest would not devolve by survivorship but by intestate succession under the provisions of the Hindu Succession Act or based on testamentary succession. (vii) The decision in Prakash v. Phulavati to the effect that there should be a living daughter of a living coparcener on the date of commencement of the Act of 2005 fails to appreciate that coparcenary rights are by birth. The death of a Hindu coparcener father or any other coparcener is only relevant for the succession of his coparcenary interest under section 6(3) of the Act of 2005. The death of any coparcener does not bring to an end any coparcenary. An increase or decrease in the coparcenary interest independently held by each coparcener may occur by birth or death. On the coparcener's death, the notional partition is drawn only to determine his coparcenary's interest. It does not disturb the other incidents of the coparcenary, it can continue without disruption with other coparceners, and even new coparceners can be added on account of birth till the time an actual partition takes place. Coparcenary interest becomes definite only when a partition is effected. (viii) The daughter of a coparcener in section 6 does not imply the daughter of a living coparcener or father, as the death of the  8 coparcener/father does not automatically lead to the end of coparcenary, which may continue with other coparceners alive. Thus, the coparcener, from whom the daughter is inheriting by her being coparcener, needs not to be alive as on the commencement of the Amendment Act of 2005. (ix) The Explanation to Section 6(5) was not provided in the original amendment Bill moved before the Rajya Sabha on 20.12.2004, which came to be added later. (x) Often, coparceners enter into a family arrangement or oral partition, and it may not be necessary to register such a partition. Explanation to section 6(5) of the Amendment Act requires the partition to be registered, was inserted to avoid any bogus or sham transactions. Considering the entire scheme of the Amendment Act, the requirement of registered partition deed is directory and not mandatory. Any coparcener relying upon any family arrangement or oral partition must prove the same by leading proper documentary evidence. 11. Shri R. Venkataramani, learned senior counsel/amicus curiae, argued as under:  9 (a) There is no conflict between the decisions in Prakash v. Phulavati (supra) and Danamma v. Suman (supra). In both the decisions, the provisions of section 6 have been held to be of prospective application. The amendment is a prospective one. The declaration by the law that the daughter of a coparcener has certain entitlements and be subject to certain liabilities is prospective. The daughter is treated as a coparcener under the amendment Act and not because of the daughter's birth prior to the amendment. (b) Unlike the joint tenancy principle in English law, a joint Hindu family stands on a different footing. Every son by birth became a coparcener, and because of birth, the son became entitled to be a coparcener in the joint Hindu family property entitled to claim partition with or without reference to the death of the Karta of a joint Hindu family. Like a son born into the family, an adopted son is also entitled to succeed to the joint family property. He becomes a coparcener with adoptive father, but his relationship with the natural family is severed, including his status as a coparcener in the family of birth as laid down in Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41 and Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982 Del. 520.  10 (c) A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows, and unmarried daughters bound together by the fundamental principle of a Sapindaship of family relationship is the essence and distinguishing feature of the institution of the coparcenary. A joint family may consist of a single male member and widows of deceased male members. This body is purely a creature of law and cannot be created by an act of parties, as observed in G. Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249; and State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33. An undivided family which is the normal condition of Hindu society is ordinarily joint not only in the estate but in food and worship, and, therefore, not only the concerns of the joint family but whatever relates to their commensality and their religious duties are regulated by the member or by the manager to whom they have expressly or by implication delegated the task of regulation as held in Raghunadha v. Brozo Kishore, 3 IA 154 (PC). The coparcener status being the result of birth; possession of the joint property is only an adjunct of the joint family and is not necessary for its constitution, as discussed in Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR 1926 Bom. 408.  11 (d) A Hindu coparcenary is said to have seven essential characteristics, which include that the interest of a deceased member survives on his death and merges in the coparcenary property as observed in Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385. As a result, if father or any other coparcener has died before the Amendment Act, 2005, the interest of father or another coparcener would have already merged in the surviving coparcenary. Consequently, there will be no coparcener alive, from whom the daughter will succeed. Thus, the daughter can succeed only in the interest of living coparcener as on the date of enforcement of the Amendment Act. (e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it was observed that as a logical corollary and counter­balance to the principle before the amendment, that the son from the moment of his birth, acquires an interest in the coparcener, a pious obligation is imposed on him to pay his father's debts incurred for the purpose which is not illegal or immoral. (f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC 62, it was observed that there is a difference between coparcenary in Hindu law, which is not identical with coparcenary as understood under the English law. In the case of death of a member of a  12 coparcenary under the Mitakshara law, his right accretes to other members by survivorship while under the English law if one of the co­ heirs jointly inheriting property dies, his or her right goes to his or her relations without accreting to surviving coparceners. (g) By birth and adoption, a male becomes a coparcener. The custom of adoption is of ancient origin, as observed in Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma & Ors., 26 IA 113. The adoption at the relevant time was only of male and not of a female as the custom related to succession to the property, as discussed in Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA 101. (h) By the expression used in the amended section 6, the daughter becomes coparcener by birth. The retrospective effect is not intended to be given to the provisions of section 6. Though equality has been brought in, w.e.f. 2005, the incidence of birth of a daughter before 2005 is of no consequence and not to reopen the past transactions. (i) The oral partition and family settlement are not intended to be reopened by section 6(1) and 6(5). (j) If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous  13 uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past. (k) Challenges to partition had always come when any member of a coparcenary, including an adopted son, stood deprived of the entitlement to succeed to the joint family property. (l) The scheme of section 6 is future and forward­looking, and it has to be interpreted in such a manner that its relevance is not diluted. Now the rights of a coparcener have been enlarged, and the provision has disabled it from defeating the right of a daughter from being treated equally. (m) In the light of the decision in Shashikalabai (Smt) v. the State of Maharashtra & Anr., (1998) 5 SCC 332, the past transactions cannot be reopened. Thus, the daughter, whose coparcener father, was alive on the date of incorporation of provisions of section 6, will be treated as a coparcener. Any other interpretation would cause unjust consequences. 12. Shri V.V.S. Rao learned amicus curiae/senior counsel, argued that:  14 (a) the logic of Prakash v. Phulavati has been upheld in Mangammal v. T.B. Raju, (2018) 15 SCC 662. It was held that there should be a living daughter of a living coparcener to inherit the property on the date of enforcement of the amended provisions of the 2005 Act. (b) Section 6(1)(a) declares a daughter to be a coparcener by birth. By the declaration, a daughter stands included in coparcenary. As the declaration is to the effect that the daughter is to become coparcener by birth, the question of prospectivity or retrospectivity will not arise— daughter, whether born before 2005 or after that, is considered a coparcener. (c) Section 6(1)(b) and (c) deal with the effects of inclusion of daughter as a coparcener. Having regard to the plain language and future perfect tense "shall have the same rights," the only conclusion is that the daughters who are included in the coparcenary will have the same rights after coming into force of the Amendment Act. The future perfect tense indicates that an action will have been completed (finished or perfected) at some point in the future. This tense is formed with "will" plus "have" plus the past participle of the verb. If the Parliament had intended to mean as conferring the same rights in the coparcenary, anterior to the amendment, the language would have been different. The future perfect tense indicates that action will have  15 to be completed at some point in time in the future. The tense is formed with “will” plus "have" plus the past participle of the verb. If the Parliament intended to mean conferring the same rights in the coparcenary, anterior to the amendment, the language would have been different. If the daughter is now made a coparcener, she would now have the same rights as she is a son. (d) The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property. (e) The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.  16 (f) The Parliament Standing Committee report indicates that the Ministry proposed giving the benefit of the provision of this Bill to married daughters after the commencement of the proposed amending legislation. (g) It was proposed in the report that nothing in the amended section 6 shall apply to a partition that has been effected before the commencement of the Amendment Act. (h) Deliberations by the Committee also indicate that concerning the partition effected through oral means, it was opined that it would depend upon the facts of a particular case. As per the prevailing law, it was not necessary that a partition should be registered. There can be an oral partition also, as the law does not prohibit it. At the same time, the Committee observed that the term 'partition' should be defined appropriately, and for all practical purposes, should be registered or should have been effected by a decree of the Court. In case where oral partition is recognised, it should be backed by proper evidentiary support. (i) The Parliament intended to confer the status of a coparcener from the birth of a daughter. However, it was never intended to confer  17 her the rights in the coparcenary property retrospectively, for the following reasons: a. Section 6(1)(a) deals with the inclusion of a daughter in the coparcenary "on and from the commencement of amendment Act 2005, w.e.f. 9.9.2005; b. The operating part of section 6(1) controls not only clause (a) but also clauses (b) and (c); c. Hence the daughter who is declared as coparcener from 9.9.205 would have the right in a coparcenary property only from 9.9.2005; d. Equally, a daughter who is now coparcener will be subject to the same liabilities in respect of property only from 9.9.2005. (j) Conferment of coparcenary status shall take effect on and from the commencement "of the Amendment Act." The use of the words "on and from" in section 6(1) indicates that the daughter becomes coparcener from the commencement of the Act. The daughter of a coparcener shall by birth become a coparcener, have the same rights and be subject to the same liabilities. The word "shall" indicates the due status of the daughter as coparcener is created only for the future and would not affect the existing rights of a male coparcener. The use of the words "become," "have," and "be" are all present tenses, and they reiterate to support the above­suggested interpretation. (k) In the Bill recommended by the Law Commission and the Bill introduced, the Explanation to section 6(5) was not mentioned. It was introduced only on the recommendations of the Parliamentary Committee. Thus, the concept of partition by registered deed and  18 decree of the Court were introduced. It follows that on a daughter becoming coparcener from a particular date, she cannot prospectively affect the share of a coparcener, which was already fixed as held in Prakash v. Phulavati. (l) The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition – oral or written. (m) Partition could be in the form of a memorandum of partition, or it could also be made orally. In most of the families, there used to be an oral partition. Once parties settle their rights, the partition effected orally cannot be ignored to give shares to the daughters. Such legal transactions cannot be unsettled; the Explanation safeguards all genuine transactions of the past, including oral partition effected by the parties. The Explanation should not be understood as invalidating all other documents recording partition or oral partition in respect of coparcenary property before 20.12.2004.  19 (n) Daughters conferred with the status of coparcener under the Amendment Act cannot challenge past transactions that took place before 20.12.2004, and the daughter should be alive as on the date of amendment. There should be 'living coparcener' to whom the daughter can inherit to become a coparcener. 13. Shri Sridhar Potaraju, learned counsel, vociferously argued that: (a) The decision in Prakash v. Phulavati adopted the correct interpretation of the provision. Married daughters are not considered as part of the father's joint family. They were recognised as Class I heirs that, by itself, did not make them part of their father's joint Hindu family. He has relied upon Surjit Lal Chhabda v. Commissioner of Income Tax, (1976) 3 SCC 142. A married daughter ceases to be a member of the father's family and becomes a member of her husband's family. (b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, the land is held in coparcenary when there is the unity of title, possession, and interest. A Hindu coparcenary is a narrower body than the joint family. A coparcener shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners are such as have an equal portion in the inheritance of an ancestor. The share of a coparcener is undefined and keeps fluctuating with the birth and  20 death of a coparcener. When a male is born, he becomes a coparcener, thereby decreasing the share of other coparceners. In the event of the death of a coparcener, the rule of survivorship comes into play, and the estate devolves on the surviving coparceners to the exclusion of heirs of the deceased coparcener. Status of a coparcener is a creation of law commencing with birth and ending with death or by severance of such status by way of partition or statutory fiction. The status of coparcenary ceases on death. (c) "Daughter of a coparcener" means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. In case a statutory partition has taken place, the same is required to be recognised. It would bring severance of jointness of status and settle the share. (d) If a preliminary decree of partition has been passed and has attained finality, it must be given effect. The mere filing of a suit for partition is sufficient to effect a partition. On separation of status, the decree is passed by a court as held in Puttrangamma & Ors. v. M.S. Ranganna & Ors., AIR 1968 SC 1018.  21 (e) What rights have been conferred by way of survivorship are not intended to be taken away except as provided by the amended proviso in section 6(3) of the Amendment Act. (f) A legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created, as held in Mancheri Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6 SCC 185. (g) Statutory partition leads to disruption. A statutory partition, as provided in section 6(3), is to be given full effect. The same leads to severance of status of jointness of the deceased coparcener and his legal heirs, which shall include the right of maintenance from the joint family of the widow of the deceased coparcener and such other rights. Such partition brings an end to the joint family. In the case of death of the father of petitioner in 1963, notional partition would occur and the consequences laid down in Anar Devi & Ors. v. Parmeshwari Devi & Ors., (2006) 8 SCC 656 would follow. (h) The married daughters on the death of father in 1963 were not entitled to a share in the coparcenary property. Only sons were entitled to equal shares, and sons obtained the property by way of survivorship. The statutory partition under unamended Section 6 was  22 considered in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors., (1978) 3 SCC 383. Statutory partition has been in existence in section 6 since 1956 and is continued by the 2005 Amendment. (i) Section 6, as amended, is not applicable in the case of a daughter whose father is not alive at the time of the introduction of provisions of section 6. Every member of a joint Hindu family is not entitled to be a coparcener either under the traditional Hindu law or under the Hindu Succession Act, 1956 or the Amendment Act, 2005. Under Section 29A introduced in the State of Andhra Pradesh, unmarried daughters were given the rights of a coparcener while excluding married daughters. The Central Amendment has not made a distinction based on the daughter's marital status expressly but has made it evident by the use of the expression 'joint Hindu family' and 'daughter of a coparcener.' The provisions should be read to exclude married daughters. The provisions of section 6, as amended, are prospective. It was not intended to unsettle the settled affairs. (j) The Explanation to section 6(5) cannot be interpreted to take away the rights crystallised upon the surviving coparceners of the joint family under the statutory partition. The purpose of the  23 Explanation was considered in S. Sundaram Pillai & Ors. v. V. R. Pattabiraman & Ors., (1985) 1 SCC 591 thus: “53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is— “(a) to explain the meaning and intendment of the Act itself, (b) where there is any obscurity or vagueness in the main enactment, to clarify the same to make it consistent with the dominant object it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.” (k) A preliminary decree determines the shares. Section 2(2) of the Code of Civil Procedure defines 'decree' to mean the formal expression, which clarifies that a decree is preliminary when further proceedings have to be taken before the suit can be decided entirely. In so far as the determination of individual shares to be allotted to parties to the suit is concerned, the preliminary decree is final. After the dismissal of Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v. Uppaluri Hari Narayana & Ors., the only step required to be taken is to apportion the shares by metes and bounds in terms of the preliminary decree which was passed. The daughters born after the  24 commencement of the Amendment Act become coparceners, and daughters born before the commencement of the Amendment Act have been covered under section 6(1)(b) and granted the same rights in coparcenary as given to a son. The daughters born before and after the amendment covered under section 6 are given the status of a coparcener. The status of a coparcener to daughters cannot be given from the date of birth, and they cannot be made liable for all the liabilities of coparcenary property. The benefit cannot be conferred from the date of birth as it would relate in several cases to date of birth even in the year 1925. All liabilities are to be borne only from the amendment; as such, the provisions are not retrospective. (l) Even alternatively, if the status of coparcenary on the daughter is to be conferred retrospectively, the limitations governing such legal fiction will have to take into consideration the implications of (i) statutory partition; (ii) court's decree; and (iii) legitimate alienation of the property by Karta/coparceners, prior to commencement of the Amendment Act. All other dispositions or alienations, including any partition or testamentary disposition of property made before 20.12.2004, are required to be saved as earlier the daughters were not coparceners. On a statutory partition, the property becomes the self­ acquired property and is no more a coparcenary property.  25 (m) Even in a case of adoption, the past transactions are saved while applying the theory of relation back as laid down in Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar & Ors., (1974) 2 SCC 156. Thus, the provisions of section 6 are to be construed prospectively. 14. Shri Amit Pai, learned counsel, strenuously urged that: (a) The golden rule of interpretation is required to be adopted as laid down in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360. The rule of literal construction is relied upon, as observed in Lt. Amrendra Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140. (b) The substitution of the provision of section 6 dates back to the commencement of the Principal Act of 1956. A notional partition on the death of a coparcener to ascertain his share is not an actual partition. The same is not saved by the proviso contained in section 6. A daughter cannot be deprived of the right to equality as per the Statement of Objects and Reasons. The provision of section 6 is required to be given full effect. (c) The decision in Prakash v. Phulavati cannot be said to be laying down the law correctly. The concept of living daughter of a living  26 coparcener is adding to the text of provisions of section 6, whereas no word can be added or read into a statute by the Court. It can only repair errors or supply omissions. It is for the legislature to provide such a concept of a daughter of a living coparcener. Thus, it was argued that section 6 includes all living daughters of coparceners, irrespective of whether such coparceners are deceased or alive at the commencement of the 2005 Amendment. 15. Shri Sameer Shrivastava, learned counsel, urged that: (a) The term 'coparcener' is not defined in the Succession Act. This Court considered it in Sathyaprema Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC 684. It is a narrower body than a joint family and consists of only those persons who have taken by birth, an interest in the property, and can enforce a partition, whenever they like. The daughter is entitled to share in the property subject to the restrictions provided under sub­section (1) and sub­section (5) of amended section 6. (b) Section 6(3) provides a consequence of the death of a coparcener, devolution on the death of a coparcener after the commencement of the Amendment Act. The concept of survivorship has been done away. Testamentary or intestate succession has been provided where a Hindu dies before the commencement of the Amendment Act. The  27 relevant provisions are section 6(1)(2), where male Hindus are given the right by birth to become a coparcener, and they have the right to take a partition with coparcenary property. (c) The decision in Prakash v. Phulavati, laying down that section 6 as amended applies in case of living daughters of a living coparcener, is arbitrary and non­est in the eye of law. Both sons and daughters of coparceners are conferred the right of becoming coparcener by birth. Birth in coparcenary creates interest. The only other exception is by way of adoption. Coparcenary incident is the right to the severance of the status of partition. 16. Ms. Anagha S. Desai, learned counsel, strenuously urged that section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal. The daughter is entitled to a share in the ancestral property. She has relied upon Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788. 17. When a daughter, who is claiming and demanding a share in the coparcenary, is alive, there is no difficulty of interpretation, irrespective of the fact whether a coparcener has died before the  28 commencement of the Amendment Act. The coparcener and the daughter do not need to be alive as on the date of the amendment. If it is to be interpreted that coparcener and daughter both should be alive, it will defeat the very purpose and objective of the amended provisions. Earlier, the provisions of Hindu law treated a son as a coparcener by birth; now, daughters are given the same rights since birth. In case partition has been effected by metes and bounds and is adequately proved, then the daughter of coparcenary cannot seek partition of already divided property. In Ref. Historical Background 18. The Hindu branch of dharma is influenced by the theological tenets of the Vedic Aryans. What is not modified or abrogated by the legislation or constitutional provisions still prevails, the basic Hindu law emanates from Vedas and past shrutis/smritis. Various dharma shastras regard custom as the basis of Hindu law as administered from time to time. Law has advanced and made progress as per the requirements of the society and the prevailing ethos. The justice used to be administered by the emperors resolving the conflicts. The building of law has taken place over time. There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara has further been sub­divided into four schools, i.e., Benares, Mithila, Maharashtra  29 or Bombay, and Dravida or Madras school. Benares, Mithila, Dravida, and Maharashtra denote old names of the territories. 19. The application of schools of Mitakshara is region­wise. There has been re­organization of States in 1956, and after that, some confusion has arisen concerning the administration of Bombay school and Benares School. Benares school practically governs the whole of Northern India. The Bombay school covers Western India and various other territories. The certain States were re­organized by the State Reorganisation Act of 1956. In some regions of reorganised States, given the common name, different schools apply. Take, for example, Madhya Pradesh. It consists of territories to which both Bombay and Benares schools are applicable. However, various authors of Hindu law have failed to note the fact in which parts of the State of M.P. after reorganisation which school is applicable. A reference is found to tenets of Bombay school of Hindu law in the entire State of M.P., whereas Benares school is applicable in various parts of Madhya Pradesh. It was clarified by a Full Bench of Madhya Pradesh High Court in Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ­202, and a Division Bench decision was relied on in FA No.31/1968 decided on 14.12.1976. In integrating State of Madhya Bharat and some other parts of Madhya Pradesh, Benares school is applicable, not Bombay.  30 20. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, Bombay school, in Western India. However, certain areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri systems of law. 21. Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women's rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time. The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara coparcenary and has been given the rights equal to that of a son. In Ref. Coparcenary and Joint Hindu Family  31 22. A joint Hindu family is a larger body than a Hindu coparcenary. A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154. 23. Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons, and great­grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great­grandson, and E is a great­great­grandson. The coparcenary will be formed up to D, i.e., great­grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and great­grandsons become coparceners by birth, they acquired an interest in the property. 24. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part  32 of the coparcenary. The property in coparcenary is held as joint owners. 25. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great­grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded. In Ref. Formation of Coparcenary 26. For interpreting the provision of section 6, it is necessary to ponder how coparcenar