ORDER <NAME>, J.

1. The judgment<ORG>debtor in the E.P. No. 110/2005 in O.S. No. 210/1988, on the file of the learned <ORG>, Alandur, is the Revision Petitioner before this <ORG>. The respondent herein filed O.S. No. 19 8/1988 before the <ORG><ORG><ORG>, Poonamallee for a declaration that the 'B' schedule property mentioned in the schedule is his absolute property and for directing the 1st defendant/Revision Petitioner to put the the decree holder/respondent in vacant possession of the suit property. By judgment and decree dated 31.10.1995, the trial court decreed the suit for title and dismissed the same for possession. The respondent/plaintiff herein alone filed an appeal in A.S. No. 385/1996 before this <ORG> and <ORG> of this <ORG> by its elaborate judgment dated 29.3.2005 allowed the appeal and granted the decree for possession also. Against the judgment and decree dated 29.3.2005, the Revision Petitioner filed Special Leave Petition. But the same was also dismissed by the Hon'ble Supreme <ORG> on 13.5.2005. The respondent/decree holder filed E.P. No. 110/2005 to execute the decree and after receiving the notice in the execution proceedings, the Revision Petitioner filed an Execution Application under Section 47 and with a prayer to declare that the decree dated 31.10.1995 is null and void and not executable against him. The execution court by order dated 14.3.2 006 in unnumbered SR No. 11420/2005 in E.P. No. 110/2005 rejected the same and challenging the order dated 14.3.2006, the above Revision Petition has been filed by the Revision Petitioner herein.

2. Heard the Learned Counsel for the Revision Petitioner and also the Learned Counsel for the respondent. I have also perused the documents filed in support of their submissions.

3. Learned counsel for the Revision Petitioner contended that the execution court has failed to exercise its jurisdiction to decide the issue in accordance with Section 47 of C.P.C., read with Rule 143 of the Civil Rules of Practice. He further submitted that the Revision Petitioner had no occasion to bring it to the notice of the court during the hearing of the suit and appeal about the fraud played by the decree holder against the courts and other authorities which came to light when he took steps to obey and to give effect to the decree in the suit.

4. Per contra, Learned Counsel for the respondent submitted that the executing court has rightly rejected the Section 47 application as the executing court cannot go behind the decree and reopen the matter afresh.

5. It is the case of the Revision Petitioner that he pursued the suit and appeal bonafidely without realising that the respondent herein played premeditated fraud by making and fabricating successive documents and obtained orders suppressing the public records with the calculated intention to cheat the real owner and legally interested persons. Therefore, according to him, the decree in O.S. No. 210/1988 is a nullity and unenforceable. It is the revision petitioner's further case that the decree is not executable against the petitioner in view of the inherent defect in the title of the property and also description of the property mentioned in the schedule in the decree. Learned counsel for the petitioner relied on the judgment ( <CITATION> ) to contend that objection under Section 47 about the executability of the decree can be allowed if it is found that the decree is a nullity.

6. In the above judgment, <ORG> has elaborately dealt with the power of the executing court under Section 47 of C.P.C., and held as follows:

23. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of the court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate court is not only entitled but obliged under law to go into the questions of facts as well, like the trial court, apart from questions of law. Powers of the second appellate court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2 .1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act , have been further narrowed down as now in such an appeal only a substantial question of law can be considered. The powers of this <ORG> under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this <ORG>. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and are much wider as there the court can go into the correctness, legality or propriety of the order and regularity of proceeding of the inferior court. It does not mean that in each and every case the revisional court is obliged to consider questions of facts as well like a first appellate court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.

24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against <ORG> of the College which was the defendant without seeking leave of the court to continue the suit against the <ORG> upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceedings of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceedings or colluded with the adversary or any other ground permissible under law.

7. From the above judgment, it is very clear that the powers of the court under Section 47 are much narrower than its powers of the appeal, revision or review. The executing court can allow objections under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was obtained passed in ignorance of such a provision of law or the law as promulgated making the decree in-executable after its passing. The validity or otherwise of a decree may be challenged by getting a properly instituted suit or taking any other remedy under law. The executing court cannot go behind t he decree except when the decree is a nullity or is without jurisdiction.

8. Learned counsel for the respondent relied on the judgment of <ORG> ( <CITATION> .) to submit that <ORG> should not enlarge the scope of the execution proceeding and treat it as a Full-blown suit. In the above judgment, <ORG> held as follows:

7. In support of the appeals, Learned Counsel for the appellant submitted that a new dimension has been given by the Division Bench. Admittedly, Respondent 1 does not claim any right of ownership over the attached properties. No claims of the nature set forth by Respondent 1 can be examined in terms of Section 47 or Order 21 Rule 58 CPC. By the impugned judgment, <ORG> has enlarged the scope of the execution proceedings and has treated it as a full-blown suit without even recording any reason as to how Respondent 1 has any adjudicable interest in the proceedings. The question of tenancy of tenancy cannot be decided by the executing court.

10. The executing court cannot go beyond the decree. It is settled position in law which flows from Section 38 CPC, except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 is "All questions arising between the parties to the suit" "or their representatives". Order 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of Respondent 1is not covered by Section 47 or Order 21 Rule 54 or Rule 58. <ORG> misconceived the nature of claim set up by Respondent 1. Learned Single Judge rightly noted that Respondent 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment-debtor. The agreement, if any, in that regard was not produced before the <ORG> and, therefore, the learned Single Judge drew adverse inference. Before <ORG>, the stand of Respondent 1was that it was a tenant. Without indicating any reason as to how the reasoning of the learned Single Judge was wrong <ORG> enlarged the scope of the controversy and directed the executing court to decide the question of tenancy, which is legally impermissible.

9. In the light of the well settled legal principles, let me examine the case on hand.

10. It is not in dispute that having suffered a decree, the Revision Petitioner did not file a regular appeal questioning the title of the respondent herein. It is only the respondent who filed an appeal before the court challenging the disallowed portion in the decree. The trial court rendered a finding that the revision petitioner herein is a trespasser and he is a person in possession without any authority. This finding was not at all challenged by the revision petitioner and the same reached its finality. In such circumstances it is not for the revision petitioner herein to contend that by the respondent creating and fabricating documents is thus cheating the true and real owner and legally interested persons.

11. The revision petitioner herein filed S. 47 application on the ground that the respondent herein did not have proper title and the documents he filed before the trial court to prove the title are bogus documents. Such kind of plea cannot be allowed to be raised for the first time by the petitioner in Section 47 application and if it is allowed to be raised the same will defeat the very decree itself and in such a case the executing court has to travel beyond the scope of the decree which is not permissible that too at the instance of a trespasser.

12. The court below has considered the entire facts and rightly came to the conclusion that all the documents relied on by the revision petitioner related to his defence in relation to the declaration relief sought for by the respondent herein which was already held against the petitioner. In such circumstances, I do not find any merit in the Revision Petition and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. C.M.P. No. 5 604/2006 is also dismissed.


CASE NO.: Appeal (civil) 10461 of 1983 PETITIONER: State of Maharashtra & Anr. RESPONDENT: Vs. <NAME> and <NAME>. DATE OF JUDGMENT: 14/08/2003 BENCH: S.B. Sinha JUDGMENT:

J U D G M E N T S.B. SINHA, J :

Interpretation of provision of Section 2(q) vis-à-vis sub- section (9) of Section 4 of the Urban Land (Ceiling & Regulations) Act , 1976 (for short 'the Act') is the primal question in this appeal. Two ancillary questions have also been raised by Mr. <NAME>, learned senior counsel appearing on behalf of the appellants, namely, (i) as to whether two strangers acquiring property jointly would come within the definition of 'person' as contained in Section 2(i) of the Act; and

(ii) whether clause (i) of Section 2(q) would be applicable in a case where the building did not exist on the appointed date. The facts are not in dispute.

The respondents being strangers acquired land bearing C.T.S. No.82 measuring 5428.09 sq. metres situated at Koregaon Park, Pune. They individually also owned one flat each in Bombay. The permissible ceiling limit of vacant land in terms of Section 4 of the Act would be 1000 sq. metres.

In terms of the Building Rules applicable in Koregaon Park, two- third of the area is statutorily required to be kept vacant. The relevant provisions of the Building Rules framed by the Collector of Poona for Koregaon Park are as under :

"1. The minimum area of a building plot shall be as mentioned in the lay-out. No building plot as shown in the lay-out shall be sub-divided.

3. Only one main building together with such outhouses as are reasonably required for the bona fide use and enjoyment by its occupants and their domestic servants shall be permitted to be erected in any building plot.

Provided that this restriction shall not prevent the erection of two or more buildings on the same plot, if the plot admeasures at least twice or thrice as the case may be (according to the number of buildings) the minimum size required. Provided also that the same open space shall be required around each main building as if each of these were in a separate building plot.

9. Not more than one-third of the total area of any building plot shall be built upon. In calculating the area covered by buildings the plinth area of the buildings and other structures excepting compound walls, steps, open ottas and open houds or wells with parapet walls not more than 4 feet high or chajja and weather sheds shall be taken into account. Area covered by a staircase and projection of any kind shall be considered as built over, Provided a balcony or gallery which

(a) is open on three sides;

(b) has no structure underneath on ground floor;

(c) projects not more than 4 feet from the wall; and

(d) length of which measured in a straight line does not exceed the length of the wall to which it is attached;

shall not be counted in calculating the built over area.

10. No building shall contain more than two storeys including the ground floor.

15. No building shall exceed 100 feet in length in any direction."

The two-third of the area which is to be left vacant in the instant case would be about 3600 sq. metres. In the said area, as it appears from a letter dated 27.02.1979 issued from <ORG> (Dev. Plan), <ORG> to <NAME>, Chartered Architect, that housing for weaker sections is not permitted in Koregaon Park area in terms of the decision of <ORG>, under the Act.

Our attention has been drawn to a decision of <ORG> in <CITATION> under Urban Land Ceiling and Regulation Act , 1976 and Others [1988 Mh. L.J.543], from a perusal whereof it appears that Koregaon Park which was formed in the year 1920 as a model colony was to be divided into 122 plots given to various parties on lease in perpetuity. The area of Koregaon Park has been treated differently and has been given special attention having regard to the fact that it was to be nurtured as a green area.

The land in question is situated within a green colony. The plots cannot be sub-divided nor, thus, can be given to any other person. The lands in question are, therefore, not available for distribution, equitable or otherwise.

The respondents being tenants in common, their right, title and interest in the land would be half and half. The definition of the word 'person' as contained in Section 2(i) although merits liberal construction, but the respondents would not come within the purview thereof. It would, therefore, be not correct to contend that they together would be entitled only to one unit. So far as the submission of Mr. <NAME> to the effect that as on the appointed day, no construction had been made on the land in question and only a building plan therefor has been sanctioned, the exception contained in Section 2(q) of the Act would not be applicable is concerned, we may notice that clause (i) of Section 2(q) excludes the land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated from the definition of 'vacant land'. The area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building is also excluded. A plain and literal meaning attributed to clause (i) of Section 2(q) leaves no manner of doubt that for the purpose of applicability thereof, it is not necessary that constructions must exist on the appointed day. What is necessary is as to whether construction of a building is permissible or not. The scheme of the Act particularly Section 29 thereof clearly shows that regulation of construction of building with dwelling units was contemplated by the makers of the legislation. As regard the space which is to be left vacant for the purpose of construction of building, a restriction of construction of building with dwelling units having been provided for in the Act, it is idle to suggest that for the purpose of exclusion of land in terms of clause (i) of Section 2(q) , constructions must have existed on the land on the appointed day. Had the intention of the <ORG> been to exclude only such lands which have been directed to be left vacant only on the constructed buildings in terms of the building regulations, the same would have been stated expressly.

Indisputably the respondents had applied for sanction of the building plan and the same had been granted. They, thus, on the appointed day in terms of the building regulations having regard to the purport and object of the Act were, thus, in our opinion entitled to get the vacant land required to be kept in terms of the building plan excluded.

The only question which survives for our consideration is as to whether for the purpose of determination of ceiling area, the land over which the flats of the respondents situated at Bombay were required to be taken into consideration for the purpose of sub-section (9) of Section 4 of the Act. So far as those flats in Bombay are concerned, the respondents did not hold any vacant land appurtenant thereto. They were entitled, as a matter of right, to exclusively possess and own the structures alone. No land appurtenant to the said structure exclusively belongs to them.

The said Act being expropriatory legislation is required to be construed strictly. [ <CITATION> . [2003 (2) SCALE 145 para 41].

In <ORG> Vs. <ORG> and Others [(2003) 2 SCC 111], this Court held:

"An owner of a property, subject to reasonable restrictions which may be imposed by the <ORG>, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under statute would not be presumed.

The statutory interdict of use and enjoyment of the property must be strictly construed. It is well-settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The <ORG> and other authorities while acting under the said Act are only creature of statute. They must act within the four-corners thereof."

In terms of the provisions of the Act, land in excess of the ceiling area was to vest in <ORG>. By reason of the provisions contained in Section 2(q) of the Act, the <ORG> has defined the term 'vacant land'. Strict meaning has to be attributed to the said words as expression 'means' has been used. From the definition of 'vacant land', land which is not mainly used for the purpose of agriculture has been excluded. Further thereto, what is required to be excluded would be those lands as are specified in clauses (i), (ii) and (iii) thereof.

The exclusionary clauses contained in the definition of 'vacant land' must, therefore, receive a liberal construction. Section 2(q) of the Act keeping in view the fact that expression 'means' has been used would be prima facie restrictive and exhaustive. The said provision is neither vague nor ambiguous. It cannot also be said that sub-section (9) of Section 4 provides a contrary context. It is trite that when a statutory enactment defines its terms, the same should govern what is proposed, authorised or done under or by reference to that enactment. [See <ORG> vs. Secretary for State for the Environment (1990 (1) All. E.R. 780 at 785].

It is also trite that all statutory definitions have to be read subject to the qualification variously expressed in the interpretation clause which created them particularly when the definition is exhaustive. The only exception to the aforementioned rule would be where there exist provisions, the meaning therefor is required to be determined in the context in which the word has been used. The words 'vacant land' have been defined as land subject to certain exception.

Those exclusionary clauses must be interpreted liberally. The charging section is Section 3 which provides that persons shall not be entitled to hold any vacant land in excess of the ceiling limit in the territory to which it applies. Ceiling limit has been provided in terms of Section 4 but the same is subject to other provisions contained therein. The scheme of the Act in general and the purport and object thereof in particular do not lead to a conclusion that what has been excluded from the definition of 'vacant land' should be included for another purpose. There does not exist any reason as to why the plain and unequivocal meaning cannot be given to the said definition.

For the purpose of determination of the ceiling limit as stated in sub-section (9) of Section 4 of the Act, a person must not only hold a vacant land but also must hold any other land on which there is a building with a dwelling unit therein which clearly goes to show that such other land on which there is a building for the purpose of sub- section (9) of Section 4 must be a land other than a vacant land. It is well-settled that the provisions of the statute are to be read in the text and context in which they have been enacted. It is well-settled that in construction of a statute an effort should be made to give effect to all the provisions contained therein. It is equally well-settled that a statute should be interpreted equitably so as to avoid hardship. So interpreted the decision of this Court in <CITATION> [] commends to us in preference of the decision of this Court in <CITATION> []. <NAME> case (supra) has been followed by this Court in <NAME> and Others vs. State of U.P. and Others [(1993) Supp. (1) SCC 1] and <NAME> vs. District Judge, Gorakhpur and Others [].

We are not unmindful of the observations made by a two-Judge Bench of this Court in <CITATION> [] stating that the decisions of this Court in <NAME>'s case (supra) and <NAME> case (supra) are in conflict with each other and <NAME>'s case should hold the field. However, in <NAME> case (supra), the conflict was not resolved by <ORG> to which a reference was made by a three-Judge Bench in <CITATION> ].

In view of our discussions aforementioned, it must be held that – (1) that the respondents having independent title to the property in question, are entitled to the two separate units under the said Act;

(2) despite the fact that no construction had been raised on appointed day, they are entitled to the benefit under sub-clause

(i) of clause (q) of sub-section (2) of the Act; and (3) for the purpose of determination of ceiling limit, the area of the flats belonging to the respondents in Bombay would not be taken into consideration. I, thus, agree with the conclusion arrived by <ORG>.

With these additional reasons, I respectfully agree with the opinion of Hon'ble <NAME>, J.


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.410-411 OF 2012 <NAME> … APPELLANT VERSUS STATE OF MADHYA PRADESH … RESPONDENT J U D G M E N T

<NAME>, J.

These appeals are directed against the common impugned judgment dated 24th March, 2011 passed by <ORG>, Principal Seat at Jabalpur, by which <ORG> upheld the judgment of conviction and sentence for the offences u/s 302, 307, 394, 397 and 450 IPC , as follows:

|Section |Sentence imposed | |For offence under Section 302  |Sentenced to death. | |(on two counts); | | |For offence under Section 307  |Sentence for life on each count | |(on two counts); |with fine of Rs.10,000/- each on | | |failure of payment RI for two years| | |each. |

|For offence under Section 394 read |RI for ten years on each count with| |with Section 397 (on four counts); |fine of Rs.5,000/- each on failure | | |of payment further RI for one year | | |each. | |For offence under Section 450 . |RI for ten years with fine of | | |Rs.5,000/-. On failure of payment, | | |further RI for one year. |

2. The learned counsel for the appellant assailed the conviction, inter alia, on the following grounds:

(a) The trial was not fair as the appellant was not given an opportunity to defend by the counsel of his choice.

(b) <ORG> gravely erred in placing implicit reliance on the statement of <NAME> (PW-4) and <NAME> (PW-

3) and on the evidence of recovery of the ornaments and other articles from the possession of the appellant.

(c) The death sentence awarded by <ORG> as confirmed by <ORG> is not justified, as no case of rarest of the rare is made out.

3. The case of the prosecution is that the accused-<NAME> was known to the family of <NAME>. including his wife, <NAME>, son <NAME>, and daughters viz. <NAME> @ <NAME> and <NAME>. On 7th May, 2010, accused came to their house in Sector No.12, Quarter No.B-664, N.C.L. Colony, Singrauli at about 2 p.m. He had a chat with <NAME> Begum (deceased) for about 30 minutes. In the same room besides her <NAME> @ <NAME> Khatoon(PW-4) and <NAME> (PW-3) were also present. <NAME> (deceased), son of <NAME> Begum was sleeping in the bedroom. After accused left, <NAME> Begum (deceased) started offering <NAME>, <NAME> @ <NAME> went to bathroom to take bath and <NAME> was sitting in the outside room. After sometime, accused came back and knocked the door; <NAME> opened the door and the accused came inside. At that time <NAME> @ <NAME> came out of the bathroom and saw accused talking to <NAME> in the outside room, at that moment, the accused suddenly pulled out an iron hammer from his T-shirt and hit on the head of <NAME> Parween two-three times with hammer. <NAME> screamed and became unconscious. The accused, thereafter, with intention to kill <NAME> Begum and <NAME> also hit them with hammer on their heads, because of which both fell down and became unconscious. After that accused hit <NAME> @ <NAME> by the hammer on her head with an intention to kill her resultantly <NAME>’s head got fractured. Thereafter, the accused opened the almirah, suitcases and boxes and looted two gold chains, one pair of tops, one pair of bali, one pair of jhala, three rings, one nose pin and four pairs of silver anklets, artificial jewellery etc. and Rs. 23,000/- cash of <NAME> Begum. He also took out four brass bangles from the hands of <NAME> Begum. As a result of assault <NAME> Begum died on the spot. On hearing shrieks of <NAME> @ <NAME>, <NAME> (PW-1), <NAME> (PW-5) and other people of the colony came. At the time of incident, <NAME>. (PW-2) was on duty and on receiving the news he came to the place of incident and took <NAME> @ <NAME>, <NAME> and <NAME> to Nehru Hospital.

4. On the basis of the report, Ext.P-10, of <NAME> @ Razia Khatoon(PW-4), a case Crime No.0/10 was registered under Section 302 , 307 , 450 , 394 & 397  at the Police Station Vindhya Nagar. After receiving the news of the death of <NAME> and <NAME>, <NAME> (PW-13) recorded the marg intimation of Ext.P-24 & 25 in Police Chauki Jayant, P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent to the concerned Police Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S. Baidhan and investigation was started.

5. Sub-Inspector, <NAME> (PW-12), on the same day, went at the spot and prepared the inquest memo of the body of <NAME> (Ext.P/12).The dead body of <NAME> was sent for postmortem examination. After conducting inquest proceedings in respect of the dead body of <NAME>, the same was also sent for postmortem examination. Dr. <NAME>) examined the injuries of <NAME> and <NAME> and found injuries on their heads. The injuries, grievous in nature, were dangerous to life.

6. Dr. <NAME> (PW-10) conducted autopsy of the body of <NAME>. He found three injuries on her skull, skull bones were fractured. He submitted his postmortem report-Ext.P/19. In his opinion, death of the deceased was homicidal in nature. Dr. <NAME> (PW-10) also conducted autopsy of body of <NAME> and found two injuries on his head. There was depressed fracture of skull bone underneath the injuries. In his opinion, death of the deceased was homicidal in nature. Postmortem report of <NAME> is Ext.P/20.

7. <NAME> (PW-11) was the Investigation Officer, who on the same night apprehended the accused from Khariya Chowk and recovered Rs.23,020/- from the pocket of his pants. On the information given by the appellant under Section 27 of the Indian Evidence Act, he recovered stolen articles, iron hammer and blood stained clothes from the house of the accused situated in N.C.L. Colony. The recovered articles were identified by <NAME> (PW.2) and <NAME> (PW-4).

8. After due investigation, the chargesheet was filed and the case was committed for trial. The appellant denied the guilt and pleaded false implication but he did not adduce any evidence in his defence.

9. Prosecution examined altogether 16 witnesses and produced a number of documentary evidence to prove their case. The Trial court on the appreciation of the evidence held the accused guilty and convicted and sentenced him for the offence as mentioned above, which was affirmed by <ORG>.

10. Dr. <NAME> (PW-10), who performed the postmortem examination of the body of <NAME> found the following injuries on her body:

“(1)Reddish contusion 5 cm x 4 cm present on right side of forehead. Red blood clot was deposited under the skin.

(2)Lacerated wound 5 cm x 3 cm x bone deep on middle of the forehead posteriorly with depressed multiple fractures of underlying bone.

(3) Lacerated wound 4 cm x 3 cm x bone deep on left occipito parietal region of head with depressed multiple fractures of underlying bones.

In his opinion, death of deceased <NAME> had occurred as a result of coma due to head injury. Death was homicidal in nature. The postmortem examination report (P/19) was written and signed by him.” On the same day, Dr. <NAME> (PW-10) performed postmortem examination of the body of deceased <NAME> and found the following injuries:

“(1) Lacerated wound on left parietal region of head 2 cm x 1 cm x bone deep with peripheral contusions in size of 6 cm x 5 cm. subcutaneous reddish blood clot with multiple depressed fractures of underlying bone.

(2) Reddish contusion on occipital region of head 5 cm x 4 cm in size with subcutaneous reddish blood clot with depressed fracture of underlying bone.

In his opinion, death of <NAME> had occurred as a result of coma due to injury. Death was homicidal in nature.”

11. From the inquest memorandums (Ext.P/6 and P/12) and the evidence of Sub-Inspector, J.S. Paraste (PW-12) and constable <NAME> (PW-

15), who conducted inquest, it was established that <NAME> and <NAME> died of homicidal injuries found on their bodies.

12<NAME> <NAME> (PW-11), Investigation Officer arrested the accused from Khariya Chowk, Main Road, P<NAME>S<NAME> Shakti Nagar in the presence of witnesses <NAME><NAME><NAME> (PW-6) and <NAME><NAME> Yunus (PW-7) and seized money from him and prepared seizure memo-Ext<NAME>P-15<NAME> After arrest the accused was brought to the Police Station-Jayant and was interrogated in front of the witnesses<NAME> During interrogation accused gave information regarding jewellery and the hammer which was used in committing crime; the clothes, hammer and jewellery were seized from the house of the accused vide memorandum-Ext<NAME>P-13, written by <NAME> (PW-11)<NAME> <NAME> stated that he went to the house of accused and seized the jewellery article from articles-A1 to A 24; seizure memo-Ext<NAME>P-14 was prepared<NAME> He had also stated that blood stained clothes and iron hammer were seized in the presence of witnesses vide seizure memo-Ext<NAME>P-16<NAME>

13. <NAME> (PW.6) and <NAME> (PW-7) are the independent witnesses of the memorandum of seizure. In their statement they deposed that the <ORG> arrested the accused at Khariya Chowk in their presence and seized about Rs. 23,000/-from him and the accused was brought to the <ORG> Station-Jayant for inquiry. At the <ORG> Station the accused disclosed about the jewellery, hammer and clothes, on the basis of which jewellery, hammer and clothes were seized. Both the witnesses thereby have corroborated the statement of <NAME>). During the cross- examination both the witnesses, PW-6 and PW-7 admitted that they visited the house of <NAME>. There is no infirmity or contradiction in the statements of the two witnesses.

14. <NAME> (PW-9) stated that on 8th July, 2010 at the request of the <ORG> he conducted identification of the jewellery at stadium Baidhan and prior to the identification <ORG> had handed over other jewellery in a sealed packet. He mixed it and then conducted the identification and during the identification <NAME>. and <NAME> had identified the original jewellery. After identification he had handed over the jewellery in a packet to the <ORG> who were standing outside the stadium.

15. <NAME>) and <NAME> (PW-4), daughters of deceased <NAME> and sisters of deceased <NAME> are the injured eyewitnesses; both of them received serious injuries at the incident. Both the witness PW-3 and PW-4 clearly stated that sometime before the incident, the accused had come to their house and he being a prior acquaintance, the accused had taken refreshment sitting with their mother and also was talking with her. From the statements of both the witnesses the facts of the accused coming to their house before the incident, taking refreshment with deceased <NAME> and talking with her are proved, which is also corroborated from the FIR-Ext.P-10. Both these witnesses have also stated that in the past the accused used to come for tuitions and their mother used to treat the accused like her son and the photograph of the accused was also hanging in their house. From the aforesaid evidence, it is clear that the PW-3 and PW-4 were in a position to identify the accused, the accused was well acquainted with both PW-3 and PW-4 since long. The prosecution proved beyond reasonable doubt that even prior to the incident the accused was known to the deceased and the injured witnesses PW-3 and PW- 4 and on the date of incident also, the accused had come to their house and had taken refreshments and had talks.

16. <NAME> (PW-3) and <NAME> (PW-4) in their statements clearly stated that initially the accused left their house and after sometime the accused had come again to their house. On opening the door he had hit the hammer on the head of <NAME>, who had come out after hearing screams of <NAME> and then after entering into the bedroom he hit deceased <NAME> on her head. From the statement of <NAME> (PW-4), it is also clear that the accused after entering the store-room had hit on her head and then the accused had taken out the money and jewellery from the almirah, suitcase, box and attaché, etc. In paragraph 7 <NAME> (PW-3), has also stated that she had seen the accused hit <NAME> on his head but she could not see as to who hit <NAME> and her mother. Such statement cannot be stated to be contradiction and does not adversely affect the case of the prosecution in view of the deposition made by <NAME>(PW-4).

17. Similarly, from the statement of <NAME> (PW-4), we find that the accused after hitting <NAME>, <NAME> and <NAME> took away jewellery, cash amount and the bangles of <NAME> and then he ran away after bolting the door from outside.

18. PW-4 further deposed that after the accused run away by bolting the door from outside she went into the balcony and stop <NAME> (PW-1), who at that time had taken out his vehicle and was going somewhere. Then, the door was got open. Statements of <NAME> (PW-4) about shouting from the balcony stopping <NAME> (PW-1) and then opening of the door by <NAME> are also proved by the statement of Ramesh <NAME> (PW-1), who made similar statement.

19. In view of the statements made by the injured witnesses <NAME> (PW-3) and <NAME> (PW-4) as corroborated by the postmortem report, seizure of jewellery, hammer, blood stained clothes (Ex.P-13)and statement of <NAME> (PW-11), as corroborated by <NAME> (PW-6) and <NAME> (PW-7), <ORG> rightly held the accused guilty for the offences u/s 302, 307, 394 r/w 397 and 450 IPC .

20. First ground taken by the learned counsel for the appellant with respect to denial of opportunity to the accused to be defended by a counsel of his choice is incorrect as from the record we find that proper opportunity was given to the accused.

21. The order sheets of <ORG> dated 25th September, 2010 shows that the appellant made an application that appellant wanted to get the witnesses cross-examined by senior Advocate, Mr. <NAME>, therefore, he requested to defer the cross-examination of the witnesses. The Trial court rejected the application. On 27th September, 2010, counsel of the accused, Mr. <NAME>, who was defending the accused, refused to defend him. <ORG> then appointed one Mr. <NAME>, Advocate, as defence counsel on <ORG> expenses.

22. On perusal of records it transpires that <NAME>, Advocate had filed his Vakalatnama for representing the appellant. On 25th September, 2010, when the case was fixed for evidence though he was competent to cross-examine the witnesses but he moved the application to defer the cross-examination of the witnesses on the ground that the accused wanted to engage senior Advocate, Mr. <NAME>. However, neither <NAME> was present nor any Vakalatnama was filed on his behalf. On that day, two witnesses, namely <NAME> (PW-1) and <NAME>. (PW-2) were examined and Mr. <NAME>, Advocate had cross- examined those witnesses. None of those witnesses were eyewitnesses; in fact one of them, <NAME> (PW-1) was declared hostile. On 27th September, 2010, Mr. <NAME> refused to appear on behalf of the appellant, when the appellant on asking expressed his inability to appoint any counsel. Since there was none to represent the accused, <ORG> appointed Mr. <NAME>, Advocate, to pursue the appeal. The appellant has failed to show that Mr. <NAME> was not competent or was incapable of handling the case. On the contrary from the cross-examination of the witnesses made by Mr. <NAME> we find that he was competent to deal with the case. Even on the next date neither Mr. <NAME>, Advocate appeared nor he filed his Vakalatnama.

23. The next question is whether death sentence awarded to the appellant is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case.

24. Guidelines emerged from <CITATION> , 1980 (2) SCC 684 were noticed by this Court in <CITATION> , 1983 (3) SCC 470. In the said case the Court observed:

38. In this background the guidelines indicated in <NAME> case, 1980 (2) SCC 684 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from <NAME> case(supra):

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”

25. In Ronny alias <CITATION> , 1998 (3) SCC 625, this Court held:

“45. These principles have been applied in various judgments of this Court thereafter and it is unnecessary to multiply the cases here. Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and; where the crime is committed in an organised manner and is gruesome, cold-blooded, heinous and atrocious;

where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section (3) of Section 354 of the Criminal Procedure Code.” In <NAME> alias <NAME> (supra) this <ORG> noted the law laid-down by this <ORG> in <NAME> & <NAME>. Vs. State of Bihar, , that unless the nature of the crime and circumstances of the offender reveal that criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the <ORG> should ordinarily pass a lesser punishment and not punishment of death which should be reserved for exceptional case only. Considering the cumulative effect of all the factors, like the offences committed under the influence of extreme mental or emotional disturbance, the young age of the accused, the possibility of reform and rehabilitation, etc. the <ORG> may convert the sentence into life imprisonment.

26. <CITATION> , 2011 (7) SCC 437, this Court made the following observation:

“30. The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent, right from the pronouncement of the <ORG> judgment of this Court in <CITATION> ,. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The court is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in [pic]the case and the impact of awarding punishment. These are the nuances which need to be examined by the court with discernment and in depth.

31. The legislative intent behind enacting Section 354(3) CrPC clearly demonstrates the concern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through law’s instrumentalities and that ought not to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the court would also take into consideration the mitigating circumstances and their resultant effects.

32. The language of Section 354(3) demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, “in the case of sentence of death, the special reasons for such sentence” unambiguously demonstrate the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the concept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is not a rule but an exception. Even the exception must satisfy the prerequisites contemplated under Section 354(3) CrPC in light of the dictum of the <ORG> in <NAME>).

33. The Constitution Bench judgment of this Court in <NAME> (supra) has been summarised in para 38 in <CITATION> , , and the following guidelines have been stated while considering the possibility of awarding sentence of death: (<NAME> case(supra), SCC p. 489) “(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also requires to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. … death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.” (emphasis supplied) [pic]

34. The judgment in <NAME>), did not only state the above guidelines in some elaboration, but also specified the mitigating circumstances which could be considered by the <ORG> while determining such serious issues and they are as follows: (SCC p. 750, para 206) “206. … ‘Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.

The <ORG> shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.’”

35. Now, we may examine certain illustrations arising from the judicial pronouncements of this <ORG>.

36. <CITATION> .,, this Court took the view that custodial torture and consequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case.

37. <CITATION> , , this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the court may take into consideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was no evidence to show that the criminals were [pic]incapable of reforming themselves, that it was not a rarest of the rare case, and therefore, declined to award death sentence to the accused.

38. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant consideration in <CITATION> , , where constant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also considered to be a relevant factor by this Court in different cases.

39. This <ORG> in Satishbhushan Bariya (supra) also considered various doctrines, principles and factors which would be considered by the <ORG>s while dealing with such cases. The <ORG> discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While considering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it noticed the nature of the evidence and the background of the accused. The conviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it noticed the fact that the accused were unemployed, young men in search of job and they were not criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already noticed, the conviction was primarily based upon the statement of the approver.” “41. The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the courts within the parameters spelt out under Section 354(3) CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty.”

27. This Court in <NAME> and others vs. State of Chattisgarh, 2012 (4) SCC 257, noticed the aggravating and mitigating circumstances with respect to a crime and held as follows:

“76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh,(1980) 2 SCC 684, and thereafter, in Machhi Singh,(1983) 3 SCC 470. The aforesaid judgments, primarily dissect these principles into two different compartments—one being the “aggravating circumstances” while the other being the “mitigating circumstances”. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon [pic]balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.

Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

[pic] (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.

While determining the questions relating to sentencing policy, the <ORG> laid down the Principles at paragraph 77 which reads as follows:

“77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. Principles (1) The court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an exception.

(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.”

28. Recently, this Court in <CITATION> , 2013 (5) SCC 546, dealing with a case of death sentence, observed:

“52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society- centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.”

29. In the present case the appellant is an educated person, he was about 26 years old at the time of committing the offence. The accused was a tutor in the family of the deceased-Noorjahan. He was in acquaintance with the deceased as well as <NAME> (PW-3) and <NAME> (PW-4). There is nothing specific to suggest the motive for committing the crime except the articles and cash taken away by the accused. It is not the case of the prosecution that the appellant cannot be reformed or that the accused is a social menace. Apart from the incident in question there is no criminal antecedent of the appellant. It is true that the accused has committed a heinous crime, but it cannot be held with certainty that this case falls in the “rarest of the rare category”. On appreciation of evidence on record and keeping in mind the facts and circumstances of the case, we are of the view that sentence of death penalty would be extensive and unduly harsh.

30. Accordingly, we commute the death sentence of appellant to life imprisonment. The conviction and rest part of the sentence are affirmed. Appeals are partly allowed.

………………………………………………J.

(H.L. DATTU) ……….……………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA) ………………………………………………J.

(<NAME>) NEW DELHI, JULY 3, 2014.


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1490 OF 2008 <NAME> & Anr. ....Appellants Versus State of West Bengal ....Respondent J U D G M E N T

<NAME>, J.

1. This appeal questions the limits of interference by <ORG> in an appeal against the acquittal of an accused by <ORG>. In our opinion, <ORG> ought not to have interfered in the appeal before it with the acquittal of the appellants by <ORG>. Facts:

2. The sequence of events, as it has unfolded from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant of <ORG> had opened across the river Ganges in Mauza Bhabanipur Char, District Hooghly, West Bengal.

3. <NAME> was with his mother <NAME> (PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter, he and his nephew <NAME> (CW-1) aged about 10 years went for a walk on the banks of the river Ganges where they met <NAME>, with whom they struck a conversation. At that time, the appellants <NAME> and <NAME> <NAME> also came there and called <NAME> to go across the river to see the Char (island). <NAME> also expressed his desire to go to the Char but <NAME> asked him to return home.

4. When the three of them (<NAME>, Shyamal and <NAME>) were about to board <NAME> boat, they were joined by <NAME> (PW-6) and <NAME> (PW-11). The five of them then went across the river Ganges and, according to <NAME>, when they reached the other side of the river, <NAME> and <NAME> went towards the thermal plant while <NAME>, Shyamal and <NAME> went in a different direction towards the jungle. Thereafter, <NAME> came back to his house.

5. According to <NAME>, at about 8.00 or 8.30 p.m. <NAME> and <NAME> came to her house and asked the whereabouts of <NAME>.

6. According to <NAME>’s brother <NAME> (PW-1) at about 10.00 p.m. <NAME> and <NAME> came to his house and enquired about <NAME>.

7. Early next morning on 20th May, 1995 <NAME> noticed that <NAME> had not eaten his dinner which she had kept for him. She mentioned this to <NAME> and also informed him that <NAME> and <NAME> had come and met her the previous evening at about 8.00 or 8.30 p.m. During the course of this conversation, <NAME> revealed to his father <NAME> that he had seen <NAME> cross the river Ganges the previous evening in a boat along with <NAME> and <NAME>.

8. On receiving this information <NAME> enquired from <NAME> and <NAME> the whereabouts of <NAME> but they informed him that they had seen him across the river with some boys. Later in the day, <NAME> was informed by <NAME> and <NAME> that they had crossed the river along with <NAME>, <NAME> and <NAME>. After crossing the river, <NAME> and <NAME> had gone to see the thermal plant and the others had gone in another direction towards the jungle. <NAME> and <NAME> pleaded ignorance of the subsequent movements of <NAME>.

9. Later in the evening at about 7.30 p.m. <NAME> lodged a First Information Report regarding the disappearance of <NAME>.

10. Sometime in the morning of 21st May, 1995 the corpse of <NAME> was found in the river tied to two iron chairs with a napkin around his neck. The police were informed about the recovery of the dead body and an inquest was carried out and the iron chairs and napkin were seized in the presence of some witnesses. It was noticed that a part of <NAME>’s skin was burnt perhaps due to pouring of acid.

11. On these broad facts, investigations were carried out and <NAME> and <NAME> were charged with having abducted <NAME> and thereafter having murdered him.

Decision of <ORG>:

12. In its judgment and order dated 29th July, 1998 <ORG> held that neither the charge of abduction nor the charge of murder was proved against <NAME> and <NAME> and therefore they were acquitted.[1] As far as the charge of abduction is concerned, that is not in issue before us and need not detain us any further.

13. The acquittal by <ORG> was primarily in view of the absence of consistency in the testimony of <NAME>, <NAME>, <NAME>, <NAME> and <NAME>. For example, it was observed that if <NAME> had in fact informed <NAME> and <NAME> that he had gone to the banks of the river with <NAME>, it would have been reflected in their testimony. Similarly, <NAME> did not say anything about <NAME> going to the river although she saw him at about 5.00 or 5.30 p.m. on 19th May, 1995. The Investigating Officer, Sub-Inspector <NAME> (PW-16) had yet another version of the events. His testimony indicated that many of the facts stated in the oral testimony of the witnesses were not put across to him at any time, suggesting considerable padding and embellishments in their testimony. As such, it was not possible to lend credence to the testimony of the prosecution witnesses and the accused were entitled to the benefit of doubt. Additionally, <ORG> noted that it was a case of circumstantial evidence and also that there was no motive for <NAME> and <NAME> to have murdered <NAME>.

Decision of <ORG>:

14. Feeling aggrieved by their acquittal, the <ORG> preferred an appeal before <ORG> against <NAME> and <NAME>. The appeal was allowed by a judgment and order dated 11th March, 2008.[2] The decision of <ORG> was reversed and they were convicted for the murder of <NAME> and sentenced to imprisonment for life and a fine of Rs.5000/- each and in default of payment to undergo rigorous imprisonment of one year each.

15. According to <ORG>, the case of the prosecution hinged, essentially, on the evidence of <NAME> and <NAME>, as well as of <NAME>. <ORG> considered their evidence and held that all five (<NAME>, <NAME>, <NAME>, <NAME> and <NAME>) crossed the river in a boat in the evening at about 5.30 p.m. on 19th May, 1995. This was supported by the testimony of <NAME> who also wanted to go along with all of them but was prohibited from doing so by <NAME>.

16. It was also held, on the basis of the post mortem report given by Dr. <NAME> (PW-15) and his testimony that <NAME> died soon after 5.30 p.m. on 19th May, 1995. <ORG> came to this conclusion on the basis of the doctor’s statement that the death took place between 65 and 70 hours before he conducted the post mortem examination. Since the post mortem examination was conducted at about 12.00 noon on 22nd May, 1995 working backwards, it appeared that <NAME> died soon after 5.30 p.m. on 19th May, 1995.

17. Finally, <ORG> held that <NAME> was last seen with <NAME> and <NAME> and therefore they had to explain the events that had occurred after they were last seen together. In the absence of any explanation offered by them, the last seen theory would apply and it must be held that <NAME> and <NAME> had murdered <NAME>.

Discussion on the law:

18. Aggrieved by their conviction and sentence, <ORG> and <ORG> have preferred this appeal. The primary submission made on their behalf was to the effect that <ORG> ought not to have interfered in the acquittal by <ORG> particularly, in a case of circumstantial evidence. It was also submitted that the evidence on record points to the fact that they were made scapegoats by the prosecution. Of course, this was opposed by learned counsel for the <ORG>.

19. The crucial issue for consideration, therefore, relates to interference by <ORG> in an acquittal given by <ORG>. Recently, in <NAME> v. State of Haryana[3] it was held, after referring to <CITATION>  that “Before we proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence brought on record, it is fruitful to recapitulate the law enunciated by this Court pertaining to an appeal against acquittal. In <NAME> (supra), it has been stated that <ORG> can exercise the power or jurisdiction to reverse an order of acquittal in cases where it finds that the lower court has "obstinately blundered" or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice" or has in some other way so conducted or misconducted himself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result.” Unfortunately, the paraphrasing of the concerned passage from <NAME> gave us an impression that <ORG> can reverse an acquittal by a lower court only in limited circumstances. Therefore, we referred to the passage in <NAME> and find that what was stated was as follows:

“There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that <ORG> has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which <ORG> has "obstinately blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.” The legal position was reiterated in <CITATION>  after citing <NAME> and it was held:

“Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there; that is, that <ORG> has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.” We are mentioning this only to dispel the possibility of anyone else getting an impression similar to the one that we got, though nothing much turns on this as far as this case is concerned.

20. The entire case law on the subject was discussed in <NAME> v.

State of Karnataka[6] beginning with perhaps the first case decided by this Court on the subject being <NAME> v. State.[7] It was held in Chandrappa as follows:

“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

21. The principles laid down in <NAME> were generally reiterated but mainly reformulated in Ganpat v. State of Haryana[8] though without reference to <NAME> and by referring to decisions not considered therein. The reformulation of the principles in Ganpat is as follows:

“(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court’s conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the <ORG>, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (<NAME> v. State of J&K[9], <NAME> v. State of U.P.[10], <NAME> v. State of M.P.[11] and <NAME> v. State of Haryana[12].)”

22. Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that <ORG> is entitled to virtually step into the shoes of <ORG> hearing submissions of learned counsel and then decide the case as a court of first instance. Perhaps this is not what is intended, notwithstanding the broad language used in <NAME> and <NAME>. Otherwise, the decision of <ORG> would be a meaningless exercise and this Court would become a first appellate court from a decision of <ORG> in a case of acquittal by <ORG>. Realistically speaking, although the principles stated are broad, it is the obligation of <ORG> to consider and identify the error in the decision of <ORG> and then decide whether the error is gross enough to warrant interference. <ORG> is not expected to merely substitute its opinion for that of <ORG> only because the first two principles in <NAME> and <NAME> permit it to do so and because it has the power to do so – it has to correct an error of law or fact significant enough to necessitate overturning the verdict of <ORG>. This is where <ORG> has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in <NAME> and <NAME> comes into operation.

Discussion on facts:

23. Looked at from this perspective, it was submitted by learned counsel for the <ORG> that there cannot be two reasonable views of the events that took place. It was submitted that there was no doubt that <NAME> crossed the river Ganges with Shyamal and Prosanta and they went to a secluded and uninhabited place across the river. This was witnessed by <NAME>, Panchu and Animesh. <NAME> then went missing and his corpse was found a couple of days later. It was submitted that on these facts there can be only one conclusion, namely that Shyamal and Prosanta caused the death of <NAME>.

24. In this context, the evidence of <NAME>, <NAME>, <NAME> and the Investigating Officer assumes significance. Disputing the testimony given by <NAME> and <NAME> in Court, the Investigating Officer stated that when they were examined under Section 161 of the Criminal Procedure Code they neither told him that they had gone to the opposite side of the river nor that <NAME> and <NAME> had gone with <NAME> towards the jungle. There was also no mention of the attendance of <NAME> or the dress worn by <NAME>. In other words, they did not mention any of the events said to have taken place in their presence on the evening of 19th May, 1995. From this, it is quite clear that the subsequent statements made by them on oath appear to be add-ons and make believe. This casts serious doubt on their credibility.

25. An independent witness <NAME> (PW-8) who is supposed to have seen <NAME>, <NAME>, <NAME>, <NAME> and <NAME> board the boat to cross the river, turned hostile and denied having made any statement before the Investigating Officer. <NAME> (PW-7), wife of the boat owner <NAME> also turned hostile and stated that their boat was, as usual, tied to the ghat and she could not say whether it was taken by any person on that date.

26. However, what is even more important is that <NAME> stated in Court that on the morning of 20th May, 1995 he had told his father <NAME> and <NAME> that he had seen the abovementioned five persons cross the river in a boat the previous evening. He also stated that he was taken by <NAME> to the police station and he had even mentioned this to the police. However, <NAME> does not depose anything about having taken <NAME> to the police station. The Investigating Officer deposed that <NAME> had not been cited as a witness and “had it been known to me that <NAME> is a material witness who saw the victim together with the accused, during investigation, he would have been cited as a witness in the charge sheet”. Therefore, the possibility of <NAME> having been tutored cannot be completely ruled out.

27. It is clear that there is considerable padding in the testimony of the three crucial witnesses namely, <NAME>, <NAME> and <NAME> and there are unexplained additions made by them. In this state of the evidence on record, <ORG> was entitled to come to a conclusion that the prosecution version of the events was doubtful and that <NAME> and <NAME> were entitled to the benefit of doubt and to be acquitted. We also find from the record that a number of independent witnesses have turned hostile and, as mentioned above, three important witnesses have added much more in their oral testimony before the <ORG> than what was stated before the Investigating Officer during investigations.

28. <ORG> believed the testimony of <NAME> and <NAME> and came to the conclusion that they had crossed the river along with <NAME>, Shyamal and <NAME>. However, <ORG> did not take into consideration the view of <ORG>, based on the evidence on record, that it was doubtful if the five persons mentioned above boarded the boat belonging to <NAME> to cross the river as alleged by the prosecution. <ORG> also did not consider the apparently incorrect testimony of <NAME> who had stated that he had gone to the police station and given his version but despite this, he was not cited as a witness. The version of <NAME> was specifically denied by the Investigating Officer.

29. When the basic fact of <NAME> having boarded a boat and crossing the river with <NAME> and <NAME> is in doubt, the substratum of the prosecution’s case virtually falls flat and the truth of the subsequent events also becomes doubtful. Unfortunately, <ORG> does not seem to have looked at the evidence from the point of view of the accused who had already secured an acquittal. This is an important perspective as noted in the fourth principle of <NAME>. <ORG> was also obliged to consider (which it did not) whether the view of <ORG> is a reasonable and possible view (the fifth principle of <NAME>) or not. Merely because <ORG> disagreed (without giving reasons why it did so) with the reasonable and possible view of <ORG>, on a completely independent analysis of the evidence on record, is not a sound basis to set aside the order of acquittal given by <ORG>. This is not to say that every fact arrived at or every reason given by <ORG> must be dealt with – all that it means is that the decision of <ORG> cannot be ignored or treated as non-existent.

30. What is also important in this case is that it is one of circumstantial evidence. Following the principles laid down in several decisions of this Court beginning with <NAME> v. <ORG> of Maharashtra[13] it is clear that the chain of events must be so complete as to leave no room for any other hypothesis except that the accused were responsible for the death of the victim. This principle has been followed and reiterated in a large number of decisions over the last 30 years and one of the more recent decisions in this regard is <NAME> v. <ORG> (NCT of Delhi) and Another.[14] <ORG> did not take this into consideration and merely proceeded on the basis of the last seen theory.

31. The facts of this case demonstrate that the first link in the chain of circumstances is missing. It is only if this first link is established that the subsequent links may be formed on the basis of the last seen theory. But <ORG> overlooked the missing link, as it were, and directly applied the last seen theory. In our opinion, this was a rather unsatisfactory way of dealing with the appeal.

32. Under the circumstances, we are unable to agree with learned counsel for the <ORG> and are of the opinion that there was really no occasion for <ORG> to have overturned the view of <ORG> which was not only a reasonable view but a probable view of the events.

33. Learned counsel for <NAME> and <NAME> raised some issues such as the failure of the prosecution to examine <NAME> and <NAME>. He also submitted that there was no motive for <NAME> and <NAME> to murder <NAME>. In the view that we have taken, it is not necessary to deal with these submissions.

34. Learned counsel for the <ORG> relied on the evidence of Dr. <NAME> to submit that <NAME> died between 65 and 70 hours before the post mortem examination was conducted. As observed by <ORG>, this placed <NAME>’s death soon after 5.30 p.m. on 19th May, 1995. The significance of this is only with respect to the time of death and has no reference to the persons who may have caused the death of <NAME>. The evidence of Dr. <NAME>, therefore, does not take the case of the <ORG> any further.

Conclusion:

35. The view taken by <ORG> was a reasonable and probable view on the facts of the case. Consequently, there was no occasion for <ORG> to set aside the acquittal of <NAME> and <NAME>. Accordingly, their conviction and sentence handed down by <ORG> is set aside. Their appeal against their conviction and sentence is allowed.

….…………………………..J.

(<NAME> ….……………………….......J.

(<NAME>) New Delhi;

February 24, 2014

[1] Session Trial Case No. 21 of 1997 decided by the Additional Sessions Judge, Hooghly [2] State of West Bengal v. Shyamal Saha and another, 113 CWN 505=MANU/WB/0881/2008 [3] MANU/SC/1096/2013 [4] AIR 1934 PC 227 [5] AIR 1945 PC 151 [6] (2007) 4 SCC 415 [7] AIR 1954 SC 36 [8] (2010) 12 SCC 59 [9] (1997) 7 SCC 677 [10] (2008) 10 SCC 450 [11] (1992) 2 SCC 105 [12] (2000) 4 SCC 484 [13] (1984) 4 SCC 116 [14] (2013) 7 SCC 192