TaxTMI 
TaxTMI 
1984 (7) TMI 401
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....rriage, which was solemnised on February 11, 1982 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 husbands 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. Even 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 ex pressed her feelings in clearest pos....
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.... 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 2.8.8. 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 26.2.82. 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, never 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 t....
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....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. The 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. The State of Punjab. We shall however discuss Hanumant's case fully in a later part of our judgment. Coming now to the question of interpretation of sec. 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: "The only relevant clause of s. 32 which may be said to have any bearing is cl.(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 res....
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....riminating conduct of the appellant, (5) the medical evidence taken alongwith 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 s. 32 nor under s.8 of the Evidence Act it was submitted by the appellant that the present case is not at all covered by cl.(1) of s. 32 of the Evidence Acts. 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 inclu....
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....al 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." We fully agree with the above observations made by the learned Judges. In Protima Dutta & Anr. 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 include 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 incitemen....
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....cumstances 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." 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 s. 32(1), Evidence Act. They cannot be said to be circumstances of the transaction which resulted in death." 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 case does not lay down the correct law on the subject. Before closing this chapter we might state ....
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....Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of s.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 straitjacket. Distance of time would depend or 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 more than 3-4 months the statement may be ....
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....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 risk. So I have taken up today for writing, the second letter to you." The Roman scripy runs thus:- "Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin aai. Isliye maine tumhe aaj doosra khat likhneko liya." (P.17) 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 ....
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.... 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." (P. 19-20) 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." The words used by her show her affectionate and secretive nature and the precaution taken by her not to tell any thing 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 unko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai magar bata nahin sakti." (P.22) These extracts throw a flood of light on the nature, character, mental attitude, suf....
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....rangements 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 Buajike 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." She was naturally apprehending some thing 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 our opinion, these words are e....
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....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 uttered in rage. "You hate me, was I unable to get food in my parent's house ? He 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 feel 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 the 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 alive." (P. 197) 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 clearly states that all persons in her father-in-laws' place were very good and loving but due to a number of person....
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....ime. (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 were 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. This possibility is spelt out from the various letters which we have extracted. Indeed, if this was not 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 her by husband at any time or anywhere. (6) The contents of the letter lead us to the irres....
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....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 though 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 of failure is prominent among many people who take their own lives." (P.252) 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.....
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....hors aptly and directly apply to the nature, mood and the circumstances of the unfortunate life of Manju which came to an end within four months of marriage. We have pointed out these circumstances because the High Court has laid very great stress on the fact that the evidence led by the prosecution wholly and completely excludes the possibility of suicides and the death of Manju was nothing but a dastardly murder. We shall now deal with the next limb of the oral dying declaration said to have been made by the deceased to her parents and friends. Some of the statements which have a causal connection with the death of Manju or the circumstances leading to her death are undoubtedly admissible under s.32 of the Evidence Act as held by us but other statements which do not bear any proximity with the death or if at all very remotely and indirectly connected with the death would not be admissible. Unfortunately, however, the two kinds of statements are so inextricably mixed up that it would take a great effort in locating the part which is admissible and the one which is not. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the b....
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....l give a summary of the relevant part of his evidence because the other parts relate to how the marriage was performed and the spouses had gone for honeymoon which are not germane for our purpose. The witness states that when Manju came to Beed with her maternal uncle he found her somewhat uneasy and on making enquiries whether she was happy at her husband's house she told him that she was not very happy with her husband since she noticed that her husband was not very much pleased with her and in fact hated her. These facts are the result of the usual domestic quarrels between a husband and a wife, hence this statement cannot be said to be so directly or proximately related to the death of Manju so as to be admissible under s.32 of the Evidence Act. It appears from his evidence that even after hearing the narration from his daughter he advised her to get herself adjusted to the situation and to the atmosphere of her new marital home. Apart from being inadmissible this does not appear to be of any assistance to the prosecution in proving the case of murder alleged against the appellant. The witness goes on to state that as the grandfather of the accused had died he visited Pu....
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.... lead to any adverse inference. Some persons who have a keen sense of pride and self-respect do not like anyone else not even their father or father-in-law to interfere in their personal matters. Perhaps this may be the reason for the somewhat cool and curt attitude of Sharad but that proves nothing. In fact, experience shows that where elders try to intermeddle in the affairs of a husband and his wife, this creates a serious obstruction in the relations of the married couple. Nothing therefore, turns upon this statement of PW 2. Again, the witness repeats that when Manju came down to see him off he noticed her weeping all the time. To cut a long story short, the witness came back to Beed and sent his son Pradeep to bring Manju from Pune to Beed. On reaching there he was informed that Manju and Sharad had gone on a holiday trip to Mysore, Triupati, etc. After the return of Pradeep to Beed, Dhanraj informed the witness that Sharad and Manju had returned to Pune and therefore, he sent his son, Deepak to Pune to bring back Manju. When Manju arrived at Beed, the witness found her totally disturbed and frightened. This statement would be admissible as primary evidence. What probative....
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.... his statement that Manju was always weeping and crying and the final crisis came when on hearing the talks between him and Birdichand she called him from the staircase and told him that she was not prepared to go to her husband's house as she was in a state of extreme fear. It is difficult to believe this part of the evidence of the witness for two reasons- (1) When the talks were going on between two elders would Manju be sitting near the staircase to listen their talks and call her father and give vent to her feelings and her decision not to go back to Pune at any cost. This conduct appears to be directly opposed not only to the tenor and spirit of the letters (Exhs. 30, 32 and 33) which we have discussed but also against her mental attitude and noble nature. (2) As indicated by us while discussing the letters- could a woman who was so affectionate and reserved in nature and who would not like the contents of her letters to Anju and Vahini to be disclosed to her parents lest they feel worried, disturbed and distressed-suddenly turn turtle, forgetting her sentiments not to worry them and come out in the open to declare before all by weeping and crying that s....
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....t 12 midnight and he had a sexual act with Manju in such a manner which they never had enjoyed before. Ultimately according to him when they completely felt tired and exhausted both of them fell asleep. According to him by about 5.30 a.m. when he got up and after visiting the urinal, when returned to the room he found that Manju had not got up as usual since according to him, she used to wake up at the same time he used to wake up and so he went near Manju and called her out when he found her dead." It is rather strange that while the witness took whatever his daughter told him at its face value without making any further enquiry, he immediately jumped to the conclusion that the grief and tears in the eyes of his son- in-law were fake and that he was merely shedding crocodile tears. There is nothing on the record nor in the evidence to show any circumstance which may have led the witness to arrive at this conclusion. On the other hand, if the conduct of the appellant, as described by the witness, is seen from a dispassionate angle, it was quite spontaneous and natural because by the time the witness reached Pune the postmortem had been done and the death of Manju had come to lig....
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....s passing. Secondly, he relied on the statements made by the deceased (Manju) to these witnesses about the treatment meted out to her by her husband during her stay at Pune and furnishes a clear motive for the accused to murder her. As regards the first circumstance, there can be no doubt that the said evidence of the witnesses would undoubtedly be admissible as revealing the state of mind of the deceased. This would be primary evidence in the case and, therefore, there cannot be any doubt about the relevancy of the statement of the witnesses in regard to this aspect of the matter. As to what probative value we should attach to such statements would depend on a proper application of the context and evidence of each of the witnesses, As regards the second aspect-which is in respect of what the deceased told the witnesses-it would only be admissible under s. 32 of the Evidence Act as relating to the circumstances that led to the death of the deceased. In view of the law discussed above and the propositions and the conclusions we have reached, there cannot be any doubt that these statements would fall in the second part of s.32 of the....
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....her husband left for Pune to offer condolences on the death of the grand-father of the appellant. She then proceeds to state that during their second visit to Pune on the 11th or 12th of May 1982 she stayed with her brother, Dhanraj and that while she was there Manju hugged at her neck and having lost her control, started weeping profusely. She further states that Manju requested her to take her to Beed as it was not possible for her to stay in her marital house where she was not only bored but was extremely afraid and scared. On the next day she (PW 20) met the mother of the appellant and told her plainly that she found Manju extremely perturbed, uneasy and scared and that she was experiencing tremendous pressure and restrictions from her husband. But the mother of the appellant convinced her that there was nothing to worry about, and everything will be alright. The witness then narrated the fact to her husband and requested him to take Manju with them to Beed. PW 2 then sought the permission of Birdichand to take Manju to. Beed but he told him that as some guests were to visit him, he (PW 2) can send somebody after 4-5 days to take Manju to Beed. It may be mentioned here that ....
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.... This is hard to believe having regard to the nature of the temperament of Manju. The two statements said have been made by Manju to her mother appear to be contradictory and irreconcilable and smack of concoction. According to Manju, Sharad then prepared two notes one addressed to his father and another to his father-in-law and asked Manju to do the same but she refused to do anything of the sort. The witness admitted that she was not told as to what had happened to the notes written by the appellant. All this story of a suicidal pact seems to us nothing but a fairy tale. There is no mention nor even a hint in the letters (Exhs. 30, 32, 33) written by Manju about the aforesaid suicidal pact and the story narrated by the witness before the trial court, nor was the note produced in the court. This appears to us to be a make-believe story and was introduced to castigate the appellant for his shabby treatment towards Manju. Another intrinsic circumstance to show the untruth of this statement is that although PW 2 was apprised of these facts yet he never mentioned them to Birdichand particularly when he was insisting that Manju should be sent back to Pune for attending the bet....
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....d and made her extremely scared of her life and in view of this development she requested her mother not to send her back to the house of the accused. One point of importance which might be noticed here and which shows that whatever be the relations with her husband and Ujvala, the picture presented by the witness is not totally correct because if such a point of no return had already been reached, there was absolutely no question of Birdichand and sending for the appellant and arranging a trip to Ooty, Mysore and other place nor would have Manju agreed to go to these places. The witness further stated that as soon as Manju came to know that Birdichand had come to take her away she was shocked and continuously kept saying that she was extremely afraid of going to her husband's house and that she should not be sent back. The behavioral attitude of Manju depicted by the witness seems to us to be absolutely contradictory to and not at all in consonance with her temperament, frame of mind, psychological approach to things and innate habits. That is why no reference had been made even directly or indirectly in any of the letters written by Manju, and she had expressly requeste....
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....ts was not of such great consequence as to harden their attitude. This is yet another intrinsic circumstance Manju to which negatives the story of suicidal pact and the invitation to come to the Pearl Hotel and the manner in which she was insulted in the presence of Ujvala. There is no doubt that relations between the appellant and Manju were extremely strained, may-be due to his friendship with Ujvala, she may not have felt happy in her marital home as she has clearly expressed in her letters but she did not disclose anything of such great consequence which would have shocked the parents and led them to resist her going to Pune at any cost. This makes the version given by PWs 2 and 20 unworthy of credence. We now proceed to take up the evidence of PW-6, Anju, the sister of Manju. The statement of this witness is more or less a carbon copy of the evidence of PW-20 which has been discussed above and, therefore, it is not necessary to consider her evidence in all its details. So far as the first visit is concerned, she fully supports her mother that Manju was very happy as was expected of a newly married girl. When Manju came to Beed around 2nd April 1982 she stayed there for 8-10....
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....ther. Manju also informed the witness that the appellant had a girl- friend by name Ujvala and the witness says that she tried to console Manju by saying that since her husband was a Chemical Engineer he may have lot of friends. While referring to Exh. 33 (letter written to her by Manju) she stated that the only complaint made in that letter was that her husband was not talking to her properly. She then deposed to an incident which happened when on her way to Bombay when the witness stayed at Pune for some time. She states that she had a talk with Manju for about half-an-hour when she narrated the story of the suicidal pact. She also stated that she was extremely afraid of the situation and almost broke down in tears and wept. The most important fact which may be noted in her evidence is a clear pointer to the frame of mind and the psychotic nature of Manju. At page 212 of Part I of the Paperbook while narrating the relationship of her husband with Ujvala she says that the appellant lost his temper and thereupon she spoke the following words to him : I am not going to spare this, I will not allow this, his bad relations even though a blot may come to our family and I ha....
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.... Another fact to which this witness deposes in the narration by the appellant about his having sexual act with his wife. We have already disbelieved this story as being hopelessly improbable and against the cultural heritage of our country or of our nature and habits. This is the only purpose for which this witness was examined and his evidence does not advance the matter any further. PW-5, Meena Mahajan, has also been examined to boost up the story narrated by PW 2 and other witnesses. She was not at all connected with the family of PW 2 but is alleged to be a friend of Manju and she says that she found Manju completely disheartened and morose and she started weeping and crying while narrating her said story. The witness goes on to state that Manju was so much terrified of the appellant that she was afraid of her life at his hands. No. witness has gone to the extent of saying that there was any immediate danger to Manju's life nor did Manju say so to PWs 2, 6 and 20. This witness appears to us to be more loyal than the king. Even assuming that Manju was a friend of PW 6 but she never wrote to her any letter indicating anything of the sort. For these reasons we are not sa....
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....of which there is ample evidence both in her letters and her subsequent conduct. In Encyclopedia of Crime and Justice (Vol. 4) by Sanford H. Kadish the author mentions thus : "Other psychologically oriented theories ave viewed suicide as a means of handling aggressive impulses engendered by frustration." Another inference that follows from the evidence of the witness discussed is that the constant fact of wailing and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W. Brown and Tirril Harris in their book "Social Origins of Depression" thus:- "1. Symptom data Depressed mood- 1. Crying 2. feeling miserable/looking miserable, unable to smile or laugh 3. feelings of hopelessness about the future 4. suicidal thoughts 5. suicidal attempts Fears/anxiety/worry 15. psychosomatic accompaniments 16. tenseness/anxiety 17. specific worry 18. panic attacks 19. phobias Thinking 20. feelings of self-depreciation/nihilistic delusions 21. delusions or ideas of reference 22. delusions of persecution/jealousy ....
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....ith Ujvala as to form the bedrock of the motive of the murder of Manju, has not been clearly proved, 5) the statement of PW 2 that the appellant had told him that during the night on 11th June 1982 he had sexual act with the deceased is too good to be true and is not believable as it is inherently improbable, 6) that despite the evidence of PWs 2, 3, 6 and 20 if has not been proved to our satisfaction that the matter had assumed such extreme proportions that Manju refused to go to Pune with her father-in-law (Birdichand) at any cost and yet she was driven by use of compulsion and persuasion to accompany him, 7) that the combined reading and effect of the letters (Exhs. 30, 32 and 33) and the evidence of PWs 2, 3, 4, 6 and 20 clearly reveal that the signs and symptoms resulting from the dirty atmosphere and the hostile surroundings in which Manju was placed is a pointer to the fact that there was a reasonable possibility of her having committed suicide and the prosecution has not been able to exclude or eliminate this possibility beyond reasonable doubt. We must hasten to add that we do not suggest that this was not a case of murder at all but wou....
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....erise and mathematical approach to the problem in fixing the exact time of the various events which cannot be correct as would appear from the evidence of the witnesses, including Dr Banerjee (PW 33) . The evidence of PW 7, the motor rickshaw driver shows that on the night of the 11th of June he had brought the deceased alongwith Anuradha and others and dropped them near the Takshila apartments at about 11.00 p.m. The witness was cross-examined on several points but we shall accept finding of the High Court on the fact that on the 11th of June 1982 the witness had dropped the persons, mentioned above, at about 11.00 p.m. The rest of the evidence is not germane for the purpose of this case. It may, however, be mentioned that one should always give some room for a difference of a few minutes in the time that a layman-like PW 7 would say. We cannot assume that when the witness stated that he had dropped Manju and others at 11.00 p.m., it was exactly 11.00 p.m.--it would have been 10-15 minutes this way or that way. His evidence is only material to show the approximate time when Manju returned to the apartments. The next witness on this point is PW-28, K.N. Kadu. This witness cor....
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....Rameshwar, A-2 and on hearing the shouts he went to flat No. 5. He further says that A-2 directed him to unbolt or unchain the door but the door was not found closed from inside and hence A-2 went out and returned after some time. While the witness was standing at the door A-2 returned and after his return the witness also came back to his house and went to sleep. Perhaps the witness was referring to the incident when A-1 and A-2 had gone on scooter to fetch Dr. Lodha. During cross-examination the witness admitted that he did not possess any watch and gave the timings only approximately. We shall accept his evidence in toto but that leads us nowhere. This is all the evidence so far as the first stage of the case is concerned and, in all probability, it does not at all prove that A-1 had murdered the deceased. On the other hand, the circumstances proved by the three witness are not inconsistent with the defence plea that soon after entering the room Manju may have committed suicide. Part II of this circumstance relates to the coming of Dr. Lodha and then Dr. Gandhi on the scene of occurrence and we accept their evidence in toto. Dr. Lodha was a family doctor of the appellant&#....
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....ld be given as 5.30 a.m. Consequently, he reached the police station near about 7.00 or 7.15 a.m. and lodged a report stating that Manju had died at 5.30 a.m. This witness appears to be of doubtful antecedents and, therefore, his evidence has to be taken with a grain of salt. He admitted in his statement at p. 387 that some proceedings about evasion of octroi duty were pending against him in the Court. He also admitted that he was convicted and sentenced to 9 months R.I under the Food Adulteration Act in the year 1973. Apart from this it appears that most of the statements which he made in the Court against Birdichand and the other accused, were not made by him before the police. These statements were put to him and he denied the same but they have been proved by the Investigation Officer, PW 40 whose evidence appears at p. 521 of Part II of the printed paperbook. These belated statements made in the Court may be summarised thus: While in his statement before the court the witness at p. 386 (para 19) states that the death of Manju was suspicious yet he made no such statement before the police on being confronted by the statement of PW 40. Another important point on which his ....
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....l well his attitude when he came to the apartments. It is not at all understandable how the witness could have mentioned the time of Manju's death as 5.30 a.m. or, at any rate, when her death was known to her husband and when he himself having gone to the apartments near about 4.15 a.m. knew full well that Manju had died earlier and that Dr. Lodha and Dr. Gandhi had certified the same and advised Birdichand to report the matter to the police. In the original Ex-120 (in Marathi language), it appears that the time of death given by the witness is 'Pahate' which, according to Molesworth's Marathi-English Dictionary at p. 497, means 'The period of six ghatika before unrise, the dawn' i. e., about 2 hours 24 minutes before sunrise (one ghatika is equal to 24 minutes). This would take us to near about 3.00 a.m. Either there is some confusion in the translation of the word 'Pahate' or in the words '5.30 a.m.', as mentioned in the original Ex. 120. However, nothing much turns on this except that according to the witness Manju must have died around 3.00 a.m. which is consistent with the evidence of Dr. Lodha that when he examined Manju at about 2.3....
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.... having any recent sexual, intercourse just prior to death." This positive finding of the Doctor therefore knocks the bottom out of the case made out by the prosecution tion that the appellant had told PWs 2 and 4 about having sexual intercourse with his wife. Unfortunately, however, the High Court instead of giving the benefit of this important circumstance to the accused has given the benefit to the prosecution which is yet another error in the approach made by the Eight Court while assessing the prosecution evidence. Having regard to the very short margin of time between the arrival of the appellant in his bed-room and the death of Manju, it seems to be well-nigh impossible to believe that he would try to have sexual intercourse with her. This circumstance, therefore, falsifies the evidence of PWs 2 and 4 on this point and shows the extent to which the witnesses could go to implicate the appellant. Finally, in view of the disturbed nature of the state of mind of Birdichand and the catastrophe faced by him and his family, it is difficult to believe that the grief expressed and the tears shed by the appellant when PW 2 met him could be characterised as fake. If it is assumed....
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....phenomenon is available in cases of poisoning by potassium cyanide." (PB p. 147-48) "In view of this answer it will not be possible to say conclusively that this particular symptom of observation is exclusively available in case of mechanical suffocation. Thus we have discussed all the seven items on which Dr. Banerjee has relied for the purpose of giving an opinion that there was mechanical suffocation. In our view, therefore, those 7 findings would not constitute conclusive date for the purpose of holding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation." (P.150-151) It is not necessary for us to repeat the circumstances relied upon by the High Court because the finding of fact speaks for itself. This being the position, the....
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.... writing had been scored out by him. In other words, the Doctor clearly admitted the scoring out of the subsequent portion and we have to examine whether the explanation given by him is correct. In order to decide this issue we have examined for ourselves the original postmortem notes (Ex. 128) where the writing has been admittedly scored out by Dr. Banerjee. The relevant column against which the scoring has been done is column. No. 5 which runs thus: "5. Substance of accompanying Report from Police officer or Magistrate, together with the date of death, if known. Supposed cause of death, or reason for examination." The last line indicates that the Doctor was to note two things-(1) the date of death, if known, and (2) the supposed cause of death. This document appears to have been written by PW 33 on 12.6.82 at 4.30 p.m. The relevant portion of the words written by the Doctor are `time since dealt' which were repeated as he states in his statement. After these words some other words have been admittedly scored out and his (PW 33) explanation was that since he had written `time since death' twice, the second line being a repetition was scored out. A bare look at ....
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....has added `caught between the teeth' in ink but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the chemical examiner does not contain any interpolation against the said column where the filled up entry reads `Inside mouth'. The combined effect of these circumstances show that Dr. Banerjee (PW33) tried to introduce some additional facts regarding the position of the tongue. Perhaps this may be due to his final opinion that the deceased died due to mechanical suffocation which might lead to the tongue being pressed between the teeth. This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor, the entries must have been made after the copy was sent to the Chemical Examiner. However, this circumstance is not of much consequence because the opinion of the Doctor that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation has not been proved. This aspect need not detain us any further becau....
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....himself does not take any action either personally or through somebody else to give correct information to police. (9) Arrangement of the dead body to make show that Manju died a peaceful and natural death. (10) Accused No. 1 has a motive to kill Manju as he wanted to get rid of her to continue relations with Ujvala. (11) Absence of an anklet on left ankle of Manju is inconsistent with the defence that Manju committed suicide. (12) The conduct of the accused in concealing the anklet in the fold of the Chaddar is a Conduct of a guilty man. (13) The door of the bedroom was not found bolted from inside. This would have been normally done by Manju if she had committed suicide. (14) Potassium cyanide must not have been available to Manju. (15) Manju was 4 to 6 weeks pregnant. This is a circumstance which would normally dissuade her from committing suicide. (16) Denial of the part of accused No. 1 of admitted or proved facts. (17) Raising a false plea of absence from the bedroom at the relevant time. (PP. 152-155) We have already discussed most of the circumstances extracted above and given our opinion, and have also....
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....ters (Exhs. 30,32 and 33) and the conduct of the appellant, we do not find any evidence of a clear motive on the part of the appellant to kill Manju. Circumstances Nos. 11 and 12 are also of no assistance to the prosecution because whether the anklet was in the chaddar or elsewhere is wholly insignificant and does not affect the issue in question at all. Circumstance No. 13 is also speculative because if the bedroom was not found bolted from inside that would it self not show that Manju could not have committed suicide. Various persons may react to circumstances in different ways. When Manju entered her bedroom her husband had not come and since she went to sleep she may not have bolted the door from inside to enable her husband to enter the room. As regards circumstance No. 14, the High Court has overlooked a very important part of the evidence of PW 2 who has stated at page 178 of part I of the printed paperbook thus: "The plastic factory at Beed is a partnership concern in which two sons of Dhanraj, my wife and sister-in-law, i.e., brother's wife are partners." Dr. Modi's Medical Jurisprudence and Texicology (19th Edn.) at page 747 shows that `Cyanide is a....
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.... held thus: "The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him." To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat (3) where the following observation were made: "In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.': It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under s.313 of the Criminal Procedure Code have to be completely excluded from consideration. We might mention here an important argument advance by counsel for the appellant and countered by the Additional Solicitor G....
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....have waited just for another fortnight till the marriage of his sister was over which was fixed for 30th June, 1982 and then either have the pregnancy terminated or killed her. Moreover, it would appear from the evidence of PW 2 (P.176) that in his community the Kohl ceremony is not merely a formal betrothal but a very important ceremony in which all the near relations are called and invited to attend the function and a dinner is hosted. We might extract what PW 2 says about this: "At the time of Kohl celebration of Manju, on 2.8.1981 my relatives i.e. my sister from outside had attended this function and many people were invited for this function. A dinner was also hosted by me. In that function the father of the bridegroom is required to spend for the dinner while the presentations made to the bride are required to be given or donned at the expenses of the side of bridegroom This programme is not attended by the bridegroom." (P.176) As Birdichand and others were made co-accused in the case they were unable to give evidence on this point but it is the admitted case of both the parties that the accused belonged to the same community as PW 2. In these circumstances, it is d....
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....e number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstanc....
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.... case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. The State of Bombay(2) Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration(l). Mohan Lal Pangasa v. State of U.P.,(2) Shankarlal Gyarasilal Dixit v. State of Maharashtra(3) and M.C. Agarwal v. State of Maharashtra(4)-a five-Judge Bench decision. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General r....
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....umstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General Moreover, in M.G. Agarwal's case (supra) this Court while reiterating the principles enunciated in Hanumant's case observed thus: "If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt." In Shankarlal's (supra) this Court reiterated the same view thus: "Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment". We then pass on to another important point which seems to have been completely missed by the Hi....
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.... her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extra-ordinary finding of the High Court- "It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that he had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact." (P.160) The comment by the High Court appears to be frightfully vague and absolutely unintelligible. While holding in the clearest possible terms that there is no evidence in this case to show that the appellant was in possession or poison, the High Court observes that this fact may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison. If the court seems to suggest that merely because the ....
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....h Court to say, when this link in the chain had failed, that it could not be very difficult for anybody to procure potassium cyanide and therefore the absence of proof of possession of potassium cyanide by the accused was practically of no effect. On the facts as found by the High Court it must be held that the second of the three facts which have to be proved, in case of poisoning based on circumstantial evidence has not been proved, namely that the accused was in possession of the poison that had been found in the body-Can it be said in these circumstances when the proof of a very vital fact namely, that the accused was in possession of potassium cyanide, has failed that the chain of circumstantial evidence, is so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and that the evidence which remains after the rejection of this fact is such as to show that within all human probability the act must have been done by the accused." We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evi....
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....ce, this authority is also of no assistance to the prosecution. Reliance was then placed on the case of Ram Dass v. State of Maharashtra(l) but we are unable to see how this decision helps the prosecution. The High Court relied on the fact that as the accused had taken the deceased immediately to the Civil Hospital in order to stop the poison from spreading, this particular fact was eloquent enough to speak for the innocence of the accused. A careful perusal of that decision shows that this Court did not accept the prosecution case despite circumstances appearing in that case which are almost similar to those found in the present one. Moreover, here also the accused had immediately sent for their family Doctor after they had detected that Manju was dead. The reason for a little delay in lodging the FIR has already been explained by us while dealing with the facts. In the decision cited above, it was clearly held that the case against the accused was not proved conclusively and unerringly and that two reasonable views were possible, the relevant portion of which may be extracted thus: "On a consideration of the evidence and the circumstances referred to above, we are sat....
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....d the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal. (3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct of circumstantial evidence) and on this ground alone the prosecution must fail. (4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law: (5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable. (6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus comm....
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....lace of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made. Manju (from the evidence on the record) appears to be not only a highly sensitive woman who expected whole-hearted love and affection from her husband but having been thoroughly disappointed out of sheer disgust, frustration and depression she may have chosen to end her life-at least this possibility is clearly gleaned from her letters and mental attitude. She may have been fully justified in entertaining an expectation that after marriage her husband would look after her with affection and regard. This is clearly spelt out in the letters where she hinted that her husband a was so busy that he found no time for her. A hard fact of life, which cannot be denied, is that some people in view of their occupation or profession fined very little time to de....
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....r friend of Manju. She is living with her husband Dr. Dilip Dalvi in a portion of P.W.2's house in Subash Road, Pune as his tenant. P.W.20's elder brother Dhanraj Rathi (P.W.22) is a resident of Pune where he is doing business in the sale of plastic bags for the manufacture of which he has a plastic factory called Deepak Plastics at Beed. It is a partnership concern of P.W.20 and some others including P.W.22's third son Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20. After Manju passed her B.Sc. degree examination in 1980 her marriage with the appellant was settled by a formal betrothal ceremony which took place in June 1981. The marriage of the appellant and Manju was performed at the expense of P.W.2 at Beed on 11.2.1982. The appellant and Manju left for Pune on 12.2.1982 after the marriage. Subsequently, P.W.2 sent his elder son Deepak for fetching Manju from the appellant's house at Pune and they accordingly came back to Beed on 22.2.1982. The appellant went to Beed four or five days later and took Manju back to Pune on the next day after pleading his inability to stay in P.W.2's house for some more days. This was Manju's first visit to he....
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....l as for her marriage fixed for 30.6.1982. It is the case of the prosecution that when Manju came to know that her father in-law Birdhichand had come for taking her to Pune she was wept and expressed her unwillingness to go to Pune and that, however, on the assurance of Birdhichand that he would see to it that nothing happened to the life of Manju, P.W.2 permitted Manju to go to Pune alongwith Birdhichand and she accordingly went to Pune on 3.6.1982 alongwith Kavita and Birdhichand. The family of Birdhichand and his sons including the appellant is joint. As stated earlier they have their family's residential house at Ravivar Peth, Pune besides the flat which they owned in the Takshasheela Apartments situate at some distance from their family house. Their flat has two bed-rooms besides a hall and other portions. Birdhichand's two married sons, the appellant and the second accused used to go to the family's flat in the Takshasheela Apartments for sleeping during the nights. The appellant and Manju used to sleep in one of the two bed-rooms while the second accused and his wife Anuradha (P.W.35) and their children used to sleep in the other bed-room. Manju had written....
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....ified the photo of Manju published in a newspaper two or three days later as that of one of the two ladies who travelled by his auto-rickshaw as aforesaid. The second accused had already gone to the flat in the Takshasheela Apartments. The appellant reached the flat about 15 minutes later by a scooter, whom the night watchman (P.W. 28) remarked that he was coming rather late he told P.W. 28 that it was because he had a meeting. After the appellant reached the flat he and Manju retired to their bed-room while the second accused and P.W. 35 retired to their's. Thereafter the appellant came out of his bed-room at about 2 a.m. on 12.6.1982 and went to the second accused and both of them went out of that flat by scooters soon afterwards. The appellant proceeded to Ravivar Peth and called his father while the second accused went to call Dr. Uttam chand Lodha. (P.W. 24) who lives about one and a half kilo metres away from the Takshasheela Apartments without seeking the help of Dr. Anjali Kelkar,(P.W. 26) and her husband Dr. Shrikant Kelkar (P.W. 27) who lived close by in the same Takshasheela Apartments. P.W. 24 reached the appellant's flat at about 2.30 a.m. and found Manju dead,....
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....xternal or internal injury. He preserved the viscera, small intestines etc. of Manju and reserved his opinion about the cause of her death. On receipt of the Chemical Examiner's report Ex. 130 to the effect that Manju's viscera contained potassium cyanide poison P.W. 33 finally opined that Manju had died due to potassium cyanide poisoning and simultaneous mechanical suffocation. After completing the investigation P. W.40 filed the charge-sheet against the appellant and the other two accused on 13.9.1982. The Additional Sessions Judge, Pune tried the appellant for offence under Sec. 302 IPC of murder of Manju by administering potassium cyanide poison or by suffocating her or by both, all the three accused for the offence under Sec. 120 B IPC of conspiring to destroy the evidence of the murder of Manju by giving a false report to the police about the time of her death and the third accused for the offence under Sec. 109 read with Sec. 201 IPC and Sec. 201 IPC for intsigating P.W.30 to give false information to the police and giving false information to P.W. 22 regarding the murder of Manju. The appellant and the other two accused denied the charges framed against them. ....
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....ircumstances as not conclusively pointing to the guilt of the appellant, including the circumstance that the appellant was last seen with Manju before her death on the ground that the case of the prosecution based on evidence of Dr. Banerji (P.W. 33) that there was any mechanical suffocation of Manju has been disbelieved by the High Court itself and that some entries in the carbon copy Ex. 134 of P.W. 33's report sent to the Chemical Examiner had been scored and interpolated after his report Ex. 132 to the Chemical Examiner had left his hands, that the original entry in the postmortem certificate Ex. 134 contained the words 'can be a case of suicidal death' and, that the explanation of P.W.33. that he wrote the words 'time of death' twice and not the words 'can be a case of suicidal death' and, therefore, he scored off one of them is not acceptable at all. Doctors P.W.24 and 25 did not find any external injury on the body of Manju which they saw at about 2.30 and 4.30 a.m. on 12.6.1982. Even P.W.33. did not find any external or internal injury on the body of Manju. In these circumstances, unless the prosecution excludes the possibility of Manju having co....
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.... have prompted her to commit suicide, for if a child was born to her, in view of her ill-treatment by her husband and her in laws the child may not get proper upbringing". (P.96) I do not recollect any admission by Mr. Ram Jethmalani, learned counsel for the appellant in the course of his arguments about any cruelty or ill-treatment to Manju the part of the appellant or his parents. The evidence of P.W.3 is that during Manju's second visit to Beed after her marriage with the appellant she found Manju not quite happy and very much afraid of the appellant. The evidence of P.W.5 is that during Manju's second visit to Beed, Manju complained to her about the appellant returning home late in the night and avoiding to have a talk with her and that Manju told her that she was afraid of the appellant and apprehended danger to her life at his hands. The further evidence of the P.W.5 is that during her third visit to Beed she inferred from Manju's face a spell of fear. The evidence of P.W.6 is that during Manju's second visit to Beed, Manju told her that the appellant used to leave the house early in the morning and return late at night under the pretext of work in his fact....
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....der s.313 Cr.P.C. that Manju was being treated contemptuously. No question has been put to the appellant in the course of his examination under s.313 Cr.P.C. about any ill treatment of Manju by the appellant or his parents. My learned brother Fazal Ali, J. has referred in pages 97 and 98 of his judgment to this Court's decisions in Fateh Singh Bhagat Singh v. State of Madhya Pradesh, Shamu Babu Chaugale v. State of Mahararstra and Harijan Megha Jesha v. State of Gujarat(3) and has observed at page 98 of his judgment that circumstance not put to the appellant in his examination under s. 313 Cr.PC. have to be completely excluded from consideration in view of those decisions. Therefore, since no question has been put to the appellant in this regard in the course of his examination under s 313 Cr.P.C.. even if there is any evidence about any ill-treatment of Manju by the appellant or his parents it has to be completely excluded from consideration. I felt it necessary to say this in my judgment since I think that in fairness to the appellant it has to be done. My learned brother Fazal Ali, J. has set out the case of the prosecution in so far as it connects P,W. 37 with the appell....
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....ce on record to show that the appellant had any intimacy with Ujwala (P.W.37). I am, therefore, unable to share the view of my learned brother Fazal Ali, J. that the prosecution has proved to some extent that the appellant had some sort of intimacy with P.W.37 and it had embittered the relationship between the appellant and Manju. I think that I am bound to say this in fairness to not only the appellant but also P.W.37 who, on the date of her examination in the Court, was a 19 years old student and has stated in her evidence that she had known the appellant only as the President of the Rajasthan Youth Club in the year 1979 when she was a member of that Club for about 5 or 6 months in that year. My learned brother Fazal Ali, J. has referred to the oral evidence of P.Ws.2, 3, 5, 6 and 20 about Manju's alleged complaint against the appellant and or his parents and also to the contents of Manju letters, Exs. 30, 32 and 33. I have mentioned above the gist of that oral evidence and those three letters. My learned brother has held the said oral evidence and those three latters to be. admissible under s.32(1) of the Evidence Act while rejecting the oral evidence to those five wit....
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....urteenth edition. Page- 937 'Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source". Page-941 "What is relevant and admissible under clause (1) of this section (Section-32) is the statements actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death". Page-945-946 "A statement must be as to the cause of the declarant's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessary on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his ....
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....39; which includes the evidence of all relevant factors. It is on the other hand narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose". Page-948 "The Supreme Court in the case of Shiv Kumar v. State of U.P. (1966 Criminal Appeal R. (SC) 281) has made similar observations that the circumstances must have some proximate, relation to the actual occurrence. and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible". Page -949 "The clause does not permit the reception in evidence of all such statement of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. (LR 66 IA 66). 'Circumsta....
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....s 75 and 76 thus: "A variety of questions has been mooted in the Indian courts as to the effect of this section. 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 expression indicating fear of suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or wa....
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....case of suicide. In his evidence P.W 33 has stated that in Ex. 128 in column No. 5 the contents scored out read 'time since the death' and since it was repeated in the next line he scored out the words in the second line. Despite persistent cross-examination the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter was of vital importance and expected the High Court to have given serious attention to this aspect which goes in favour of the accused. In the original while filling up the said column the Doctor appears to have scored out something. The filled up entry appears thus:-'mouth is closed with tip (something scored out) seen caught between the teeth. But in the carbon copy of the report which was sent to the Chemical Examiner (Ex. 132 he has written 'caught between the teeth' in ink; but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the Chemical Examiner does not contain any interpolation against the 'said column where the filled up entry reads 'inside mouth'.. These circumstances show that Dr. Banerjee (P.W.33) tried to introduce some ....
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....ondemnation. The Doctor has tampered with material evidence in the case of alleged murder, may be at the instance of somebody else, ignoring the probable consequences of his act. In these circumstances, I am of the opinion that Dr. Banerji (P.W.33) is a person who should not be entrusted with any serious and responsible work such as conducting autopsy in the public interest. In this case the appellant would have gone to gallows on the basis of the evidence of P.W.33 as he would have the court to believe it, and theo ther evidence, if they had been accepted, but they have been rightly discarded by my learned brother Fazal Ali, J. as unworthy of acceptance against the appellant. I agree with my learned brother Fazal Ali, J. that the High Court has clearly misdirected itself on many points in appreciating the evidence and has thus committed a gross error of law. I feel that something has to be stated in the judgment in this case about the way the Investigating officer and the learned Additional Sessions Judge, Pune who had tried the case had gone about a their business. Charge No. 3 is against the third accused for instigating Mohan Asava (P.W. 30) to give false information to t....
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....led for his defence, question him generally on the case. It is clear that the evidence on the basis of which the above questions have been put to the appellant is wholly irrelevant and that those questions do not relate to any circumstance appearing in the evidence against the appellant. The learned Additional Sessions Judge was bound to exercise control over the evidence being tendered in his court and to know the scope of the examination of the accused under s. 313 Cr. P. C. In the end, as I said earlier, I agree with my learned brother Fazal Ali, J. that the appeal has to be allowed. Accordingly I allow the appeal and set aside the conviction and sentence awarded to the appellant and direct him to be set at liberty forthwith. SABYASACHI MUKHARJI, J. I have the advantage of having read the judgments prepared by my learned brothers Fazal Ali, J. and Varadarajan, J. I agree with the order proposed that the appeal should be allowed and the judgments of the courts below should be set aside and the appellant Sharad Birdhichand Sarda be acquitted of the charges framed against him and he should be released forth with. I do so with some hesitation and good deal of anxiety, because ....
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....dmissibility of Manju's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the accused under section 32(1) of the Evidence Act, my learned brother Fazal Ali, J. has observed about section 32(1) as follows:- "The test of proximity cannot be too literally construed and practically reduced to a cut-end-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or 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....