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Friday, July 29, 2016

Monitoring Investigation = Sample Voice - to avoid inculpatory meterial - it is just and necessary to brought the sample/modal text/script for verification of court before read out by accused = the only surviving issue for this Court is to ensure that the underlying process for drawing the voice samples is fair and reasonable, having due regard to the mandate of Article 21. On the one hand, it is not open to the accused to dictate the course of investigation. Hence, we do not find substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation. A commonality of words is necessary to facilitate a spectrographic examination. =FIR (FIR 240 of 2012) is that the Appellants demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks. The FIR was registered against the Appellants for offences under Sections 384, 511, 420 and 120B of the Penal code.= an application requesting the court to seek the consent of the Appellants for obtaining their voice samples at the Central Forensic Science Laboratory, CBI (CFSL-CBI) for the purpose of comparing it with a recording which had been made in the course of a sting operation.= The grievance of the Appellants was that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation. The Appellants objected to do so and moved an application under the Code of Criminal Procedure, 1973 for monitoring the investigation and for a direction to the Investigating officer to provide material for the purpose of a voice sample “which does not contain any inculpatory statement” in the presence of a judicial magistrate. = whether or not a sample of words in such number as the expert may suggest would suffice for the experts to give their opinion by scientific voice sampling methods. Accordingly, a brief note has been filed on the record stating that: “That the experts of the Central Forensic Science Laboratory (CFSL) have informed that two separate texts/scripts have been prepared in the laboratory from each Speaker/Accused, which are different from the received transcripts. That the text/script prepared by the CFSL experts cannot be provided to the petitioners in advance as there is apprehension that the petitioner may practice the texts/scripts thereby adversely affecting the voice sampling examination. Accordingly it is submitted that the sample/modal text/script can only be supplied to the speakers/Accused if this Hon’ble Court deems it appropriate.” By an Order of this Court dated 1 July 2016, the Investigating officer was directed to file a transcript of the disputed conversation in a sealed cover. The Director CFSL-CBI, was called upon to file in a sealed cover a proposed passage of a written text which the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison. We are of the view that the aforesaid directions which have been issued by this Court would allay the apprehension of the Appellants in regard to the fairness of the process involved in drawing the voice sample. Our directions ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. In pursuance of the directions issued by this Court the Investigating officer has filed in sealed cover: (i) transcripts of the disputed conversations; and (ii) a proposed passage of a written text required to be read out by the Appellants for the purpose of giving their voice samples. The passage contains words but not the sentences appearing in the disputed conversation. Having perused the contents of the sealed covers, we are satisfied that the Investigating officer has complied with our directions. We order accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL Nos. 700-701   OF 2016
              [Arising out of SLP (Crl) Nos.3009-3010 of 2015]



SUDHIR CHAUDHARY ETC. ETC.        .....APPELLANTS

                                   Versus

STATE (NCT OF DELHI)          .....RESPONDENT







                           J  U  D  G  M  E  N  T



Dr. D Y CHANDRACHUD, J.

           Leave granted.

2           A judgment of the High Court of Delhi  dated  11  February  2015
has given rise to these proceedings. The High  Court  dismissed  a  petition
instituted under Section 482 of the Code  of  Criminal  Procedure  1973  and
affirmed an order dated 7 July 2014  of  the  Additional  Sessions  Judge–01
Patiala House Courts, New Delhi, in a Criminal Revision.

3           On 2 October  2012,  a  First  Information  Report  (‘FIR’)  was
registered at P.S. Crime Branch New Delhi, on  a  complaint  made  by  Rajiv
Bhadauria of Jindal Steel  Company  Private  Limited.  Briefly  stated,  the
allegation in the FIR (FIR 240 of 2012) is that the  Appellants  demanded  a
sum of money to refrain from telecasting programmes on a television  channel
pertaining to the alleged involvement of a corporate entity  in  a  wrongful
activity  pertaining  to  the  allocation  of  coal  blocks.  The  FIR   was
registered against the Appellants for offences under Sections 384, 511,  420
and 120B of the Penal code.  The Appellants were  arrested  on  27  November
2012.

4            On  10  December  2012,  an  application  was  moved   by   the
Investigating officer in  the  Crime  Branch  before  the  Additional  Chief
Metropolitan Magistrate (South), when the Appellants were in police  custody
in pursuance of an order  of  remand,  requesting  the  court  to  seek  the
consent of the Appellants for obtaining their voice samples at  the  Central
Forensic Science Laboratory, CBI (CFSL-CBI) for the purpose of comparing  it
with a recording which had been made in the course  of  a  sting  operation.
In their replies to the application the Appellants furnished  their  consent
for tendering their voice samples.  Consequently, on  13 December  2012  the
Metropolitan Magistrate disposed of the application by  directing  that  the
Investigating officer may move an appropriate application for the  visit  of
the accused to the place or office where he proposes to  collect  the  voice
samples with a specification of time, date and place.  The  Appellants  were
required by the Investigating officer to furnish their voice samples  on  21
December 2012.  When they reported at the police station, the  Investigating
officer directed them to read out from a paper.

5           The grievance of the Appellants was that they  were  being  made
to read out inculpatory material  drawn  from  an  audio  recording  of  the
alleged sting operation.  The Appellants objected to  do  so  and  moved  an
application under the Code of Criminal Procedure, 1973  for  monitoring  the
investigation and for a direction to the Investigating  officer  to  provide
material for the purpose of a voice  sample  “which  does  not  contain  any
inculpatory statement” in  the  presence  of  a  judicial  magistrate.   The
Additional Chief Metropolitan Magistrate (for brevity ‘ACMM’) dismissed  the
application on 4 February 2013, observing that while  it  was  open  to  the
accused to decide whether or not to grant their consent,  once  consent  was
granted the  accused  would  have  to  abide  by  the  instructions  of  the
Investigating officer and cannot  dictate  the  terms  on  which  the  voice
sample has to be given.

6           A Criminal Revision was filed against the  order  of  the  ACMM.
The Revision was heard and decided by an order dated 7  July  2014.   During
the course of the proceedings before the ACMM, the State agreed  to  provide
a text which was not an exact reproduction of the earlier text given to  the
accused but which was stated to be a mixture of some  sentences  drawn  from
the inculpatory material, besides some general statements.   After  perusing
the draft text,  the  Appellants  objected  to  the  text  stating  that  it
contained portions of the audio recording.    Before  the  ACMM  an  opinion
furnished by the CFSL expert was produced.  The opinion, inter alia,  stated
that:

“(A)  It is not mandatory to have vis-à-vis  same  text  to  be  read  by  a
suspect.  However, sufficient common sentences/words should  be  present  in
the sample voice recording with respect to the  questioned  voice  recording
for spectrographic examination.

(B)   In  case  there  are  sufficient  common  sentences/words  in  between
questioned & specimen voice recording, then  a  complete  opinion  could  be
offered.  However, in case of complete different text and sufficient  common
sentences/words are  not  available;  opinion  could  be  offered  based  on
auditory examination only.

(C)   For auditory  comparison,  the  whole  recording/text  is  used.   For
spectrographic examination, some  selected  sentences/words  are  taken  for
comparison.”

7           The ACMM by an order dated 7 July 2014, came to  the  conclusion
that it will not be appropriate if the accused are required to  read  out  a
transcript of the questioned text.   At the same time,  the  ACMM  took  the
view that in the interest of a proper investigation it would not  be  proper
to direct that a text completely different from the questioned text is  used
for drawing a voice sample.  The ACMM issued a direction  in  the  following
terms:

“….it will be  appropriate  if  the  CFSL  experts  at  CBI  Laboratory  are
directed to prepare a text inter-mixed with sufficient  sentences  from  the
questioned text  which  may  facilitate  the  examination  of  voice  sample
identification by them.  The  said  text  shall  be  prepared  by  the  CFSL
experts themselves only after the investigating agency first  provides  them
with the questioned recording.   The  collection  of  voice  sample  of  the
accused persons shall also be done in the CFSL  Laboratory  in  presence  of
the experts as not only it will provide them  a  controlled  environment  to
suitably collect the samples but it will also clear the apprehension of  the
accused persons that the investigating  agency  may  play  some  mischievous
role while collecting the voice samples.”



8           The order of the ACMM  was  questioned  before  the  Delhi  High
Court.  By a judgment and order dated 11 February  2015,  a  learned  Single
Judge held that the purpose of a voice sample is to facilitate  the  process
of comparing it with a recorded conversation.  The voice  sample  is  not  a
testimony in  itself  since  it  only  constitutes  what  was  described  as
‘identification data’.  A voice sample, in the view of  the  High  Court  is
not  a  substantive  piece  of  evidence.   The  High  Court  rejected   the
submission that the direction to furnish a voice sample was in violation  of
the  fundamental  right  under  Article  20(3)  of  the  Constitution  since
firstly, the Appellants had not been forced or coerced into furnishing  such
a sample since it was they who had  furnished  their  consent;  secondly,  a
voice sample is not evidence since its purpose is only to  compare  it  with
the questioned text.  In the view of the High  Court,  once  the  Appellants
had furnished their consent to furnishing their voice samples,  it  was  not
open to them to dictate the course of investigation.  This order  is  called
into question.

9           Learned senior counsel appearing on  behalf  of  the  Appellants
submitted that while it is true that the Appellants have  consented  to  the
drawing of their voice samples (a concession  which  was  reiterated  before
this Court in the course of the submissions) yet the process of drawing  the
samples must be fair,  so  as  to  be  consistent  with  the  right  of  the
Appellants under Article 21 of the Constitution.  The requirement of a  fair
investigation, it was urged, is implicit in Article  21  and  the  procedure
which is adopted for drawing a voice sample must be fair and reasonable.

10    The Appellants expressly consented to a voice sample being  drawn,  in
their response to the  application  that  was  filed  by  the  Investigating
officer before the Court of Metropolitan Magistrate.   This  was  reiterated
before the High Court.  In the submissions which have been  urged  in  these
proceedings, learned counsel has specifically  stated  that  the  Appellants
would abide by the consent which they had furnished to their  voice  samples
being drawn.  That being the position, the only  surviving  issue  for  this
Court is to ensure  that  the  underlying  process  for  drawing  the  voice
samples is fair and reasonable, having due regard to the mandate of  Article
21.  On the one hand, it is not open to the accused to  dictate  the  course
of investigation.  Hence, we do not find substance in  the  submission  that
the text which is to be read by the Appellants  in  the  course  of  drawing
their voice samples should contain no part of the  inculpatory  words  which
are a part  of  the  disputed  conversation.   A  commonality  of  words  is
necessary to facilitate a spectrographic examination.

11     By  our  order  dated  17  November  2015,  this  Court  allowed   an
adjournment  to  the  Respondent  to  seek  instructions  from  the   expert
concerned whether or not a sample of words in such number as the expert  may
suggest would suffice for the experts to give their  opinion  by  scientific
voice sampling methods.  Accordingly, a brief note has  been  filed  on  the
record stating that:

“That the experts of the Central Forensic  Science  Laboratory  (CFSL)  have
informed  that  two  separate  texts/scripts  have  been  prepared  in   the
laboratory from each Speaker/Accused, which are different from the  received
transcripts.

That the text/script prepared by the CFSL experts cannot be provided to  the
petitioners in advance as there is  apprehension  that  the  petitioner  may
practice the texts/scripts thereby adversely affecting  the  voice  sampling
examination.  Accordingly it is submitted that the sample/modal  text/script
can only be supplied to the speakers/Accused if this Hon’ble Court deems  it
appropriate.”



12    By an Order of  this  Court  dated  1  July  2016,  the  Investigating
officer was directed to file a transcript of the disputed conversation in  a
sealed cover.  The Director CFSL-CBI, was called upon to file  in  a  sealed
cover a proposed passage of a written text which  the  Appellants  shall  be
required to read out for the purpose of giving  their  voice  samples  using
words, but not the sentences, appearing  in  the  disputed  conversation  in
such number as the Director/Scientific Officer may  consider  necessary  for
the purpose of comparison.

13    We are of the view that  the  aforesaid  directions  which  have  been
issued by this Court would allay  the  apprehension  of  the  Appellants  in
regard to the fairness of the process involved in drawing the voice  sample.
 Our directions ensure that the text which the Appellants  would  be  called
upon to read out for the purpose of drawing their  voice  samples  will  not
have sentences from the inculpatory text.  Similarly,  permitting  the  text
to contain words  drawn  from  the  disputed  conversation  would  meet  the
legitimate concern of  the  investigating  authorities  for  making  a  fair
comparison.

14    In pursuance of the directions issued by this Court the  Investigating
officer  has  filed  in  sealed  cover:  (i)  transcripts  of  the  disputed
conversations; and (ii) a proposed passage of a written text required to  be
read out by the Appellants for the purpose of giving  their  voice  samples.
The passage contains words but not the sentences appearing in  the  disputed
conversation. Having perused the contents  of  the  sealed  covers,  we  are
satisfied that the Investigating officer has complied with  our  directions.
We order accordingly.

15    The order passed by the High Court shall  accordingly  stand  modified
and be substituted by the aforesaid directions.

16    The Appeals are disposed of in the above terms.



                  ..................................... CJI
                                             [T.S. THAKUR]



                                  .........................................J
                                              [A.M. KHANWILKAR]



........................................J
                                              [Dr. D.Y. CHANDRACHUD]

New Delhi
JULY 29, 2016.


right to redeem the mortgage = So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34 C.P.C.

PETITIONER:
MATHURALAL

Vs.

RESPONDENT:
KESHAR BAI AND ANOTHER

DATE OF JUDGMENT:
20/02/1970

BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SIKRI, S.M.
BHARGAVA, VISHISHTHA

CITATION:
 1971 AIR  310  1970 SCR  (3) 724
 1970 SCC  (1) 454
 CITATOR INFO :
 F    1989 SC 553 (7)


ACT:
     Mortgage-Mortgagee given possession   of   mortgaged
house--Leasing house to mortgagor under rent note  executed
simultaneously with mortgage deed--Preliminary decree passed
in  suit for enforcement of mortgage--Application for  final
decree time  barred--Subsequent  suit for  ejectment  of
mortgagor filed by mortgagee whether maintainable--Rights of
mortgagee whether merged in preliminary decree--Relevance of
limitation Act, 1908, s. 28.



HEADNOTE:
      On  July 29, 1945 the predecessor-in-interest  of the
appellant  mortgaged his house in Ratlam to K for a  sum  of
Rs.  3,100  with  possession. According  to  the  deed  of
mortgage  interest would run on the said sum at Rs.  0-10-0
per  cent  per annum  till  realisation.   The period  of
redemption was two years.  Simultaneously with the  mortgage
a  rent note was executed by and between the  parties  under
which the mortgagor was to continue to Occupy the  premises,
at  a rental of Rs. 20/- per month.  The rent note  provided
inter  alia  that  if the executant  (i.e.  mortgagor) made
default in payment of two months' rent the mortgagee  would
be  entitled  to get him evicted.  The mortgagee  was also
entitled to increase or decrease the rent and the  executant
was to vacate the. house whenever asked to do so.  K filed a
suit  on his mortgage in 1954 and a preliminary decree was
passed in   his   favour.   On   his death his   legal
representatives were  substituted in his place on  record.
For some reason -no application for a final decree for sale
of  the property was made within the period fixed under the
Limitation  Act.  The application for this purpose  made  by
the  executors to the estate of K was dismissed on July 29,
1960 as barred by limitation.  On December 27, 1960 the said
executors  filed  a  suit for  ejectment  of  the  appellant
alleging that the 'rent for the premises had remained unpaid
from  September 19, 1957 till November 28, 1960.  The  trial
judge  dismissed the suit.  In first appeal  the  plaintiffs
claim was allowed in full.  The High Court in second  appeal
maintained  the decree of the appellate  court.Appeal  by
special leave was  filed in this Court  against  the High
Court's judgment.  It was contended by the appellants that :
(i) The rent note executed simultaneously with the  mortgage
was a mere device to secure payment of interest and did not
represent  an independent transaction. Further it  did not
create any  relationship of landlord and tenant;  (ii) The
plaintiffs'  right  as mortgagee merged in  the decree and
execution thereof being barred by the laws of limitation the
plaintiffs  had lost all their rights; (iii)  The  mortgage
being extinguished the mortgagor could not bring a suit for
redemption on account of s. 28 of the Limitation Act, 1908.
    HELD : The appeal must be dismissed.
    (1) The  contents of the documents  executed  by the
parties showed that the relationship between the parties was
not  simply that of a mortgagee and  mortgagor-the  creditor
also  had  the rights of a landlord qua his  tenant  besides
other rights conferred on him which were greater than  those
possessed by an ordinary landlord. [728 F]
     In all  such cases the leasing back  of  the  property
arises because of the mortgage with possession.  It  cannot
however be held that the mortgagee
724
does  not  secure to himself any rights under  the  deed  of
lease  but must proceed on his mortgage in case the  amount
secured to him under the deed of lease is not paid.  If the
security  is  good and considered to be sufficient  by the
mortgagee there is no reason why be should be driven to file
a  suit an  his  mortgage  when be  can  file a  suit for
realisation  of the moneys due under the  rent note. The
position  of  the creditor is strengthened where as  in the
present case, the interest on the amount of the mortgagee is
not  the same as the rent fixed.  If during the continuance
of,  the security the mortgagee wanted to sue the  mortgagor
on the basis of the rent note and take possession himself or
to induct some other tenant thereby securing to himself the
amount which  the mortgagor had covenanted  to pay,  there
could be no legal objection to it.  Under the provisions  of
0.34  r. 4 of the Code of Civil Procedure he  could  deprive
the mortgagor of his right to redeem excepting by proceeding
on  his mortgage.  It may be (without a final opinion  being
expressed on the point) that a mortgagee who secured  decree
for  payment  of rent cannot put the property  to  sale for
realisation  of the -amount decreed, but there cas  be  no
objection  to  his  suing for possession if  the  rent note
entitles him to do so. So long as the mortgagor has a right
to redeem the mortgage fie can always pay off the  mortgagee
-and  get back possession.  This position would continue  so
long  as the property is not sold under a final decree for
sale under the provisions of 0. 34 C.P.C. [732 D-G]
    Lalchand v. Nenuram, I.L.R. 12 Rajasthan, 947, approved.
    Harilal  Bhagwanji v. Hemshanker, A.I.R. 1958 Bombay  8,
Ramnarain v. Sukhi, A.I.R. 1957 Patna 24, Umeshwar Prasad v.
Dwarika Prasad,  A.I.R. 1944 Patna 5, Ganpat Ruri  v. Mad.
Asraf Ali,   A.I.R.  1961  Patna  133 and   Jankidas  v.
Laxminarain, I.L.R. 7 Rajasthan 268, 'referred to.
    (ii)  Since the mortgagee had only lost his  'right  to
recover the  money by sale of the mortgaged  property, his
security otherwise remaining intact, and the mortgagor also
continued  to  have his right to redeem the  property, the
contention on behalf of the appellant that the rights of the
mortgagee  merged  in the preliminary decree  could  not  be
accepted. [732 H]
    (iii) If  the mortgagee had an independent right on the
strength  of  the rent note which continued to be  in  force
notwithstanding that the period for a final decree for sale
had  expired, there could be no extinction of his  right  to
sue  for possession because of s. 28 of the Limitation Act.
[733 C]



JUDGMENT:
     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 774  of
1967.
     Appeal  by special leave from the judgment  and  order
dated  February 6, 1970 of the Madhya Pradesh High Court  in
Second Appeal No. 327 of 1963.
     D. N. Mukherjee, for the appellant.
     Janardan Sharma, for the respondents.
     The Judgment of the Court was delivered by
     Mitter,  J. This is an appeal by special leave  from  a
judgment of the Madhya Pradesh High Court dated 6th February
1967 dismissing a Second Appeal by the appellant before this
Court against
726
a  decree passed by the Additional District Judge of  Ratlam
for ejectment of the appellant from a house mortgaged by the
predecessor-in-interest of the appellant to one  Kesharimal
for Rs. 3, 1 00 and further decreeing a claim for arrears of
rent  amounting to Rs. 731-35 and mesne profits at the rate
of Rs. 20 per month until eviction.
     The  relevant facts are as follows.  On July  29, 1945
Mathuralal,   predecessor-in-interest  of   the  appellant,
mortgaged his house in Ratlam to Kesharimal for a sum of Rs.
3,100  with possession. The deed of mortgage contained the
following terms :-
      1.  That interest would run on Rs. 3, 100 at Rs. 0-  1
0-0 per cent per mensem till realization.
      2.  The period of redemption would be two years.
      3.  During  the period of mortgage "the tenant as may
be  shall execute the rent notes in favour of the  mortgagee
and whatever rent shall be realised will be credited in lieu
of  interest  and  it the amount of rent  shall exceed the
amount of interest, the difference shall be  deducted from
the  original sum due,, but if the amount of interest  shall
exceed the  amount  of interest  the  difference  shall  be
deducted  from the original sum due." But if the  amount  of
interest shall exceed the amount of rent, then the mortgagor
shall pay it.
      4.  Notwithstanding  any vacancy during the period  of
the mortgage   the rent would continue.
      5.  During the period. of the mortgage an account  of
the  rent  and interest shall be settled  after  every six
months.
      6.  The  mortgagor  undertook  to keep  the  house  in
repairs during the period of the mortgage and in default  of
repairs by him the mortgagee was to be entitled to  execute
the necessary repairs and add the cost to his dues.
      7.  "The burden of the mortgage money shall be on the
mortgaged  house.  In case the amount is not  realised from
the house, the moragagee shall have a right to take steps to
realise his money" from the mortgagor and his property  of
every kind.
      On  the  same  day  the  mortgagor  executed   another
document in favour of the mortgagee reciting that his  house
in Ratlam was mortgaged with possession to the creditor who
was "having its possession" and the mortgagor had taken the
same on rent at Rs. 20 per month on the following terms :-
       1. The  executant  would pay the  rent every  month
regularly and in default of payment of two months' rent, the
mortgagee would be entitled to get him evicted.
727
   2.  The executant would white-wash and repair  the  house
and keep it in good condition.
   3.  Kesharimal would be entitled to increase or  decrease
the rent.
   4. The executant would vacate the house whenever asked to
do so.
   5. The executant would hand over possession of the  house
in,the same condition in which he had received it.
   Kesharimal  filed  a suit on his mortgage in 1954  and  a
preliminary decree for sale for the amount of Rs.  5,637-6-0
besides interest  at, the rate of Rs. 0-10-0 per  cent per
mensem for  six months. on the sum of Rs.  3,600  was duly
passed. The defendant was, directed to pay the full  amount
of  the decree before the 24th May 1955 and in case  of his
doing  so the property was to be released from the  mortgage
and the plaintiffs were to hand over all the documents which
they had in their possession, but in case of failure to pay
the plaintiffs would be entitled to file an application for
the execution of the decree and get the property  auctioned;
and in case of non-satisfaction of the decree 'by the  sale,
the plaintiffs were to be at liberty to recover the  balance
of  the decretal  claim by a personal decree against the
defendant.
    It appears that Kesharimal had died during the  pendency
of  the suit and his legal representatives were brought  on
record and the preliminary decree passed in  their  favour.
Whatever be the reason no application for a final decree for
sale of the property was made within the period fixed  under
the  Limitation Act.  The application for this purpose made
by  the executors to the estate of Kesharimal was  dismissed
on  July 29, 1960 as barred by limitation.  On December 27,
1960  the said executors filed a suit for ejectment  against
the  appellant alleging that the rent for the  premises had
remained  unpaid from September 29, 1957 till  November 28,
1960. An amount of Rs. 731-75 was arrived at by  totalling
the  rent  for the period mentioned and mesne  profits from
29th  November 1960 to 26th December 1960 at the  same rate
and incidental charges and expenses and deducting  therefrom
the  rent  for two months which was barred by the  lapse  of
time  the  plaintiffs asked for a decree for  ejectment and
further mesne profits. The trial Judge dismissed the  suit.
But  on -appeal this was set aside and the plaintiffs  claim
allowed in full.  The High Court in Second Appeal maintained
the decree of the appellate court.
     The points urged by counsel for the appellant before us
were
     1. The  rent  note executed  simultaneously  with the
mortgage was a mere device to secure payment of interest and
did not record
728
an  independent transaction.  Further it did not create any
relationship of landlord and tenant.
     2. The  plaintiffs' right as mortgagee merged  in the
decree and ,execution thereof being 'barred by the laws  of
limitation the plaintiffs had lost all their rights.
     3.  The  mortgage being extinguished  the  mortgagor
could not bring a suit for redemption.
     Before  examining the contentions urged we propose  to
note the  substance of the two documents  and  what the
parties sought to achieve thereby.  It is, clear  that the
mortgage  was  with  possession of the house  and  that the
mortgagee   wanted  to make  sure  of Rs.  20 per   month
irrespective of the fact as to whether the mortgagor or some
other  person  occupied the house  and notwithstanding any
vacancy during the period of the mortgage.  The sum of Rs.
20 per month which the mortgagee wanted to ensure payment of
every  month  exceeded the interest stipulated for  by Rs.
0-10-0 per  month.   There was to be no  decrease  in this
amount even if the mortgagor were to repay a portion of the
principal.  The mortgagee had further the right to  increase
or decrease the rent and the mortgagor covenanted to  vacate
the  property whenever the mortgagee asked  for possession.
In other words if the mortgagee chose to go into  possession
himself, the mortgagor would be entitled to have Rs. 20 p.m.
credited  towards  -the dues on the mortgage so long  as  he
continued   in possession.   Even  during  the period  of
redemption  when the mortgagee could not have sued  for the
mortgage  money he still had a right to evict the  mortgagor
in  case the latter defaulted in payment of Rs. 20  a  month
for two months.
     It would appear that the  relationship between the
parties was not simply that of a mortgagee and mortgagor  :
the  creditor  also  had the rights of a  landlord  qua his
tenant besides other rights conferred on  him which were
greater than those possessed by an ordinary landlord.  There
can  be no doubt that by leasing the property back  to the
mortgagor in the way mentioned above the mortgagee tried  to
ensure the regular payment of interest but his rights were
not  limited to that alone.  In case he decided to  go into
possession himself the only remedy left to the mortgagor was
to sue for redemption. This right under the Limitation Act
of  1908  was  to enure for 60 years from the  date  of the
mortgage and the mortgagor had not lost his right to  redeem
notwithstanding the passing of the preliminary decree in the
mortgage  suit. The mortgage security continued even  after
the  passing  of  the said decree :  if the  mortgagee had
continued in possession of the property after the passing of
the preliminary decree and did not apply for a final decree,
he would only lose his right to recover the mortgage money
729
by  sale of the property unless he applied for that  purpose
within the period of limitation fixed by the Limitation Act.
After the mortgagee had lost his right to apply for a  final
decree for sale, he did not lose his status as a mortgagee :
he  only  lost his remedy to recover the mortgage  money  by
sale.  The mortgagor did not lose his right to redeem.
    We may now examine the authorities which were cited  at
the Bar in aid of the respective contentions.  In aid of his
first  proposition Mr. Mukherjee relied principally  on the
decisions  of the Bombay High Court in Harilal Bhagwanji  v.
Hemshanker(1)  and Ramnarain v. Sukhi(2).  The facts of the
Bombay case  were  as follows.   The defendant-appellant
mortgaged with possession the house in suit for Rs.  7,500/-
on  August  23, 1952. Under the  deed  of  mortgage the
principal  amount  was to carry interest  at  9%  and both
principal  and interest  were charged on  the   mortgaged
property.   A  portion of  the house  was  already  in the
occupation  of the plaintiff as the defendant's tenant on  a
monthly rental of Rs. 15 and another portion was let out  to
one  Mansukhlal at the rate of Rs. 17 p.m.,  the  defendant
himself  occupying  the  remaining  part  of the   house.
Simultaneously with the mortgage a rent note was executed on
the  same day in respect of the portion of the house in the
defendant's  occupation which was leased back to him by the
plaintiff for a term of six months at the rate of Rs. 24-4-0
per-month.  The plaintiff sued the defendant for  possession
of the said portion and for arrears of rent on the  strength
of the rent note.  The defence was that the rent note was  a
nominal document executed for securing payment of  interest
and that no relationship of landlord and tenant was created.
It was contended that the principal money and interest were
to  be realised from the mortgaged property and a  suit for
rent  alone which was in reality interest would not he.  It
was  held  by  the High Court that the fact  that  the two
documents  had varying periods of operation would  not make
any  difference in the determination of the question  as  to
whether they  formed part of the same transaction  or not.
Further the rent to be realised from the tenant  Mansukhlal
was  to be credited towards interest  and  the significant
circumstance  was  that the rent payable  by  the  defendant
under  the rent note was fixed with a view to making up the
interest  on the mortgage sum at 9%.  Although the  mortgage
deed  recited that the plaintiff could let out the  property
to  anyone he liked but as the property was  already  wholly
occupied, the High Court took the view that the question  of
leasing it out to another tenant was not in contemplation of
the  parties.  As a result of the above findings  the  court
held  that  the rent note was a mere  device  for  securing
payment of interest.  Reliance was placed on  Ramnarain  v.
Sukhi(2)  and  it  was held that -although  the decree for
eviction of
(1) A.I. R. 1958 Bombay 8.
(2) A.T.R.1957 Patna 24.
SupCI(NP)/70-2
730
the  defendant from the suit property could not stand, that
awarding arrears of rent was to be maintained.
    In Ramnarain v. Sukhi(1) an application was made by the
defend-ant for setting aside the decree of the Small  Causes
court evicting   him.  The  defendant  had executed   a
usufructuary  mortgage in favour of the plaintiff and  by  a
kerayanama executed on the same day had taken back the house
on a rent of Rs. 6 per month from the plaintiff.  He had not
paid any rent for over three years and the suit was  brought
for recovery of arrears of rent for the said period.  It was
his  contention that the agreement between the parties was
not  for execution-of a usufructuary mortgage but one  of  a
simple mortgage.   It was further contended on his  behalf
that  the mortgage and the kerayanama were one and the same
transaction  and no relationship of landlord and tenant was
created and the ijara term having expired  the plaintiff's
remedy to  recover  the house rent  which  represented the
interest  the mortgage money could only lie under S.  68  of
the  Transfer of Property Act. The High Court referred  to
several decisions  and came to  the  conclusion  that the
intention  of the parties was that the mortgagee  would not
get possession of the mortgaged property but would only get
interest on the amount advanced in the shape of rent so long
as  the lease continued and the amount payable  under the
kerayanama  was interest on the mortgage money and not rent
for  use  and  occupation of the  mortgaged  property. The
mortgage  bond and the kerayanama being part  of  the same
transaction  the  mortgagee in execution of his decree for
money obtained in respect of the so-called rent of the house
against the mortgagor would not be entitled to execute the
decree for arrears of rent by sale of the property, as such
a  case would be governed by 0. 34 R. 14  Civil  Procedure
Code.  In the result the claim of the creditor in excess  of
9  %  p.a.  was rejected but as the defendant  had  been  in
occupation of the house, although under an invalid lease, he
was  directed to pay, compensation to the plaintiff for use
and   occupation  of  the  house  for  the  period  of his
occupation.
    Reference  may  also  be made to the  case of  Umeshwar
Prasad v.  Dwarika Prasad(2). In this case  the  mortgagor
executed  a usufructuary mortgage of certain properties for
Rs. 14,400 for a period of seven years. Soon thereafter the
mortgagee  leased back the entire property to the  mortgagor
for a period of about seven years at the annual rent of Rs.
432 which was equal to the interest on the sum advanced.  It
was held by the Patna High Court that the mortgage bond and
the  lease deed were parts of the same transaction  and the
fact  that the periods of the two deeds were  not  identical
was immaterial and the case was governed by 0. 34 r. 14
(1) A.I.R. 1957 Patna 24.
(2) A.I.R. 1944 Patna 5.
731
and  as such the mortgagee could not execute the decree for
arrear of rent by sale of equity of redemption.
    In Ganpat Ruri v. Md.  Asraf Ali(') the  plaintiff had
filed a suit claiming arrears of rent at the rate of Rs.  20
per month in respect of a house which had been given to him
by  the defendant in usufructuary mortgage by  a  registered
document,  the property being let out to the  defendant  on
lease  on  the same  day at the monthly  rent of  Rs. 20.
Applying the test as to whether on a reasonable construction
of the two documents the property given in security was not
only  for  the principal amount secured under the  bond but
also  for  the interest accruing thereupon, the court held
that  the transactions were two different  transactions and
for  this  reliance was placed on the fact that no  rate  of
interest  was prescribed in the bond and Rs. 20 p.m.  could
not  possibly  be treated as interest due on  the  principal
amount of Rs. 500.
     In contrast with the above cases reference may be made
to the case of Jankidas v. Laxminarain(2).  In this case the
plaintiffs who were usufructuary mortgagees of a house gave
a lease of it to the defendant mortgagor on rent and put the
lessee in  possession thereof on the same  day.   The rent
remaining  unpaid the plaintiff filed a suit for arrears  of
rent  and ejectment.  Ultimately however the High  Court  of
the  former State of Marwar granted a decree for arrears  of
rent  but refused the prayer for ejectment.   The  plaintiff
thereupon  filed the suit in 1953 claiming arrears  of rent
amounting to Rs. 126/- for three years preceding the date of
the suit.  The suit was resisted by the defendant who, among
other pleas, contended that the suit was barred by 0. II  r.
2  C.P.C. There was said that although the mortgage and the
deed  of  lease represented one transaction that  would not
mean that no tenancy came into existence by the execution of
the  deed of lease.  It was held that the right which  arose
to  the mortgagees  to sue for  rent was  an independent
obligation  though it might be part of the same transaction
in  the sense that it was brought  into  existence  by  an
arrangement made at the same time for a common purpose.
     In Lalchand v. Nenuram(3) the defendants had executed a
mortgage  in  favour  of  the  plaintiffs  agreeing  to pay
interest  at  8 % p.a. which came to Rs. 27-8-0 per  month.
The  mortgagors had delivered possession to  the  mortgagees
and a registered qabuliat reciting that they were taking  on
lease  the  property described at a monthly  rental  of Rs.
27-8-0.  The lower courts took the view that  the  mortgage
deed  was  a  rent  note and part and  parcel  of  the same
transaction  and the plaintiffs were not entitled to  get  a
decree for
(1)   A.I.R. 1961 Patna 133.   (2) I.L.R. 7 Rajasthan 268.
(3)  I.L.R. 12 Rajasthan 947.
732
ejectment on the basis of the rent note.  Rejecting this the
Rajasthan High Court observed at p. 952 :
"Whether  the two documents  represent one
     transaction  or two different transactions,  a
     court of law should be anxious to give  effect
     to the terms in both the documents instead  of
     being unduly critical about them. . .  Having
   secured  the  possession of the  mortg
age,  the
     mortgagee is further entitled to lease it out
     even to the mortgagor.  It is in the  interest
     of the mortgagor that the property is;  leased
     out  to  him as he can better look  after it.
     There is nothing objectionable-in this, nor is
     there  any  statutory  prohibition  for  'such
     transactions.   Now if the parties do this  by
     executing proper documents, it is the duty  of
     the court of law to give effect to them."
    The reasoning  of the Rajasthan judgment  seems  to  be
logical and commends itself to us.  In all such  cases the
leasing back of the property arises because of the  mortgage
with  possession but we find ourselves unable to  hold that
the  mortgagee does not secure to himself any  rights  under
the  deed of lease but must proceed on his mortgage in case
the  -amount secured to him under the deed of lease  is not
paid. If  the security  is  good  and  considered  to  be
sufficient by the mortgagee there is no reason why he should
be driven to file a suit on his mortgage when he can file  a
suit for realisation of the moneys due under the rent  note.
The  position  of the creditor is strengthened where  as  in
this case the interest on the amount of the mortgage is not
the same as the rental fixed.  If during the continuance  of
the security the mortgagee wants to sue the mortgagor on the
basis  of  the rent note and take possession himself  or  to
induct some  other tenant thereby securing to himself the
amount which the mortgagor had covenanted to pay, there can
be no legal objection to it.  Under the provisions of 0.  34
r. 4 he cannot deprive the mortgagor of his right to  redeem
excepting  by  proceeding  on  his  mortgage. Although  we
express no  final opinion on this point it may be  that  a
mortgagee  who secures a decree for payment of arrears  of
rent cannot put the property to sale for realisation of the
amount decreed but there can be no objection to  his  suing
for  possession if the rent note entitles him to do so.  So
long as the mortgagor had a right to redeem the mortgage  he
can  always pay off the mortgagee and get  back possession.
This position would continue so long as the property is not
sold  under a final decree for Sale under the provisions  of
0. 34 C.P.C.
    In our  opinion the second contention  put forward  on
behalf of  the appellant has no force.  The  rights  of  a
mortgagee  do not merge in his rights under the preliminary
decree for sale.  As already mentioned, the mortgagee lost
his right to recover the money
733
by  sale of the mortgaged property; otherwise  his  security
remained  intact  and the mortgagor continued  to  have his
right to redeem the property.
     As regards the third point the only statutory provision
to  which  ,a  reference  was made was section 28  of the
Limitation Act of 1908 which provided that :
     "At  the determination of the  period  hereby
     limited  to any person for instituting a suit
     for  possession of any property, his right  to
     such property shall be extinguished."
If  the right of the mortgagee arose on the strength of the
rent  note  which continued to be in  force  notwithstanding
that the period for applying for a final decree for sale had
expired there could be no extinction of his right to sue for
possession because of s. 28 of the Limitation Act.
     In the result the appeal fails and is  dismissed with
costs.
G.C.      Appeal dismissed.
734



Thursday, July 28, 2016

conviction basing on 161 statement is erroneous in law= placing reliance upon their statements under Section 161 [who turned hostile ] by the High Court to record the finding of conviction is erroneous in law. = The material evidence on record does not reveal anything which incriminates both the appellants. Further, the depositions of parents of the deceased i.e., PW-13 and PW-14 in no way implicate both the appellants as the offenders. Rest of the prosecution witnesses have turned hostile and have not supported the prosecution story on material facts to show that both the appellants are involved in the crime as alleged against them.In the instant case, the prosecution has failed to prove the guilt of both the appellants beyond reasonable doubt. Though the prosecution witnesses Nos. 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 have turned hostile, their alleged statements made to the police under Section 161 of CrPC were not confronted to them and marked as exhibits and further the I.O. has not spoken in his evidence anything about the alleged statements of the above hostile witnesses recorded under Section 161 as held by this Court in three Judge Bench in the case of V.K. Mishra v. State of Uttarakhand[10]. Thus, placing reliance upon their statements under Section 161 by the High Court to record the finding of conviction is erroneous in law. The High Court has failed to appreciate the same in arriving at different conclusion other than the Trial Court in exercise of its appellate jurisdiction. Therefore, the impugned judgment and order passed by the High Court must be set aside by this Court in exercise of its appellate jurisdiction. For the reasons stated supra, this criminal appeal is allowed. The impugned judgment and order dated 09.06.2009 passed by the High Court of Kerala at Ernakulam in Criminal appeal No. 1898 of 2005 is set aside and the judgment and order of acquittal passed by the Trial Court is restored. Both the accused-appellants are acquitted of all the charges levelled against them.

                               NON-REPORTABLE
                         IN THE SUPREME COURT OF INDIA
                        CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 952  OF 2010


BABY @ SEBASTIAN & ANR.             ………APPELLANTS

                                     Vs.

CIRCLE INSPECTOR OF POLICE, ADIMALY  ……RESPONDENT



                               J U D G M E N T


V.GOPALA GOWDA, J.

  This criminal appeal is directed against the impugned judgment  and  order
dated 09.06.2009 in Crl. Appeal No. 1898 of 2005 passed by  the  High  Court
of Kerala at Ernakulam whereby it  has  allowed  the  said  criminal  appeal
filed by the respondent herein, by setting  aside  the  order  of  acquittal
passed by the Court of the Addl. Sessions  Judge,  Thodupuzha,  in  Sessions
Case No.461 of 2001. The High Court convicted both the  appellants  for  the
offence punishable under Section 302 read with Section 34  of  Indian  Penal
Code, 1860 (for short ‘IPC’) and has sentenced them to undergo  imprisonment
for life with a fine of Rs.25,000/- each. In  default  of  payment  of  fine
they shall suffer rigorous imprisonment for two years each.



Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:



    The case of the prosecution is that one  young  man  named  Jojo  (since
deceased),  an  auto  rickshaw  driver  by  profession,  was   in   romantic
relationship  with  a  minor  girl  named  Smitha  (PW-2)  daughter  of  the
appellant no.1. The relationship between the two was vehemently  opposed  by
the girl’s family. The appellant no.1 completely ruled out  the  possibility
of marriage between the two and allegedly extended threats  to  Jojo.  After
having found the strong opposition from the girl’s  family  with  regard  to
their marriage, Jojo and Smitha (PW-2) planned to  elope  on  19.07.2000  at
about  11  pm.  Accordingly,  both  started   at   about   11.45   pm   from
Mammattikkanam Kara. Both the appellants sensed their plan and with  a  view
to foil the same, they followed and intercepted Jojo and Smitha (PW-2).



Thereafter, allegedly the appellant no.1 caught hold of  the  neck  of  Jojo
and pushed him down into the paddy field  which  was  filled  with  mud  and
water. He sat on his body and the appellant no.2 caught  hold  of  his  neck
from back side and immersed his face in the muddy  water  again  and  again,
thereby strangulated and killed him. Manoj (PW-1)  residing  a  little  away
from the scene  of  occurrence  informed  the  matter  to  one  Ravi.  Ravi,
Secretary of the local Gram Panchayat in turn informed the matter to  Idukki
police Station, Rajakkad.



Soon after, the Sub-Inspector (PW-31) reached the place  of  occurrence  and
recorded the statement  of  PW-1.  Thereafter,  FIR  No.  102  of  2000  was
registered  against  three  persons  viz.,  appellant  nos.1,  2   and   one
Thressiamma for offence punishable under Section 302 read  with  Section  34
of IPC.



However, Thressiamma was discharged by the learned  Sessions  Judge  of  all
the charges against her. The trial court commenced the  trial  against  both
the appellants. During trial,  the  prosecution  examined  32  witnesses  to
prove beyond reasonable doubt the  guilt  of  both  the  appellants  on  the
charges. The Trial Court after proper appreciation of evidence on record  by
its judgment and order dated 13.11.2003 acquitted  both  the  appellants  of
all the charges levelled against them  holding  that  the  prosecution  case
against the appellants/accused persons is not free from reasonable doubt.



  Aggrieved  by  the  decision  of  the  Trial  Court  the  respondent-State
approached the High Court of Kerala at Ernakulam by filing  Criminal  Appeal
No. 1898 of 2005. The High Court by its judgment and order dated  09.06.2009
allowed the criminal appeal by setting aside the acquittal order  passed  by
the Trial Court.  The High Court has convicted  both  the  appellants  under
Section 302 read with Section 34  of  IPC  and  sentenced  them  to  undergo
imprisonment for life with a fine of Rs. 25,000/- each. Hence, this appeal.



Mr. M. Karpaga Vinayagam, the learned senior counsel on behalf of  both  the
appellants contended that the High Court has erred in  convicting  both  the
appellants  without  adhering  to  the  well  settled  proposition  of   law
regarding appeal against acquittal that the order of acquittal shall not  be
generally interfered  with  by  the  appellate  court  in  exercise  of  its
jurisdiction because of the presumption of  innocence  of  the  accused  who
were acquitted by the Trial Court by recording cogent and valid  reasons  on
proper appreciation of evidence on record. It was further submitted  by  him
that the above said legal principle has to  be  followed  by  the  appellate
court considering the appeal against the judgment  of  acquittal,  the  same
can be interfered with  only  when  there  are  compelling  and  substantial
reasons namely,  the  findings  and  reasons  recorded  on  the  charge  are
patently  either  perverse  or  erroneous  in  law  in  order   to   prevent
miscarriage of justice in the case. In the present  case,  the  Trial  Court
after appreciating the evidence on record has  rightly  acquitted  both  the
appellants from  the  charges.  There  exists  no  legal  infirmity  in  the
judgment passed by the Trial Court. However, the High  Court  has  proceeded
on surmises and conjectures and reversed  the  order  of  acquittal  without
examining the correctness of the findings and reasons recorded by the  Trial
Court on proper appreciation of evidence on record. Therefore, he  submitted
that  the  impugned  judgment  and  order  passed  by  the  High  Court   is
unsustainable in law and deserves  to  be  set  aside  in  the  interest  of
justice by this Court in exercise of its appellate jurisdiction.



It was further contended by the learned senior counsel that the  High  Court
has grossly erred in convicting both the appellants on the  assumption  that
the presence of the appellants at the scene of occurrence as stated by  PW-6
has not been disowned by him and it stands  on  a  better  footing.  It  was
further submitted by him that PW-1 has not seen the  incident.  In  fact  in
his statement recorded under Section 164 of CrPC before  the  court  he  has
denied having said to the police that he saw the  appellants  or  any  other
person at the place of occurrence. The prosecution  has  not  been  able  to
discredit  the  version  of  this   witness   and   his   testimony   stands
uncontroverted. In such circumstances the High Court has  erred  in  holding
that the testimony of PW-1 should be disbelieved as he was  trying  to  help
the appellants.



The learned senior counsel further contended that the High Court has  failed
to  appreciate  the  fact  that  the  testimony   of   PW-6   is   full   of
contradictions. It was submitted that the  Trial  Court  has  rightly  taken
note of the fact that PW-6 after witnessing the incident did not inform  the
same to anybody neither to the police nor  his  family  members  rather  the
next morning he reached the place of  occurrence  and  on  police  enquiring
with the people gathered there as to whether anyone witnessed the  incident,
he ventured and told  the  police.  The  conduct  of  this  witness  in  not
disclosing the fact that he has witnessed the  incident  to  anybody  either
immediately or within reasonable time from the time of occurrence  of  crime
casts serious suspicion on his veracity and reliability of his evidence.  In
this regard the learned senior counsel placed reliance upon the decision  of
this Court in the case of Chanan Singh v. State of Haryana[1].



It was further submitted by the learned senior counsel that the  High  Court
has erred by placing reliance on the testimony of PW-6 without  appreciating
the testimony of PW-5 which  further  casts  a  shadow  of  doubt  upon  the
evidence of PW-6 whose evidence is  accepted  by  the  appellate  court  for
reversing the order of acquittal of both the appellants passed by the  Trial
Court.



It was further contended by the learned senior counsel that the  High  Court
has failed to look into the suspicious circumstances  surrounding  the  case
of the prosecution. As per the statement of the father of the deceased  (PW-
13), he left his house with two bags, a gold chain  and  Rs.  25,000/-  with
him. It is the case of  the  prosecution  that  all  the  said  things  went
missing and nothing has been recovered. The possibility  of  involvement  of
some third person committing the crime for money  and  valuables  cannot  be
ruled out. Therefore, the appellant  court  should  have  given  benefit  of
doubt to both the appellants in the  absence  of  any  concrete  and  cogent
evidence to prove their involvement in the crime.



It was further submitted by the learned senior counsel that the  High  Court
has not noted the contradictions between the statements of PWs-13 and 16  as
to the threat alleged to have  been  issued  by  the  appellants  and  their
family to the deceased. The High Court  should  have  appreciated  the  fact
that PW-13 being the father of the deceased is  an  interested  witness  and
could not have been relied  upon  by  the  High  Court  in  the  absence  of
corroboration by other evidence  on  record.  In  fact,  PW-16,  who  is  an
impartial witness has contradicted the statement  of  PW-13  by  stating  on
oath that no such threats were ever issued  by  the  appellants  or  any  of
their family members.



The learned senior counsel  further  contended  that  the  Trial  Court  has
rightly taken note of the facts narrated by  PW-17  that  he  had  left  the
locality along with  his  family  after  the  occurrence  and  shifting  his
residence to a place 80 kms away. It was further submitted by him  that  the
aforesaid strange behaviour on the part of PW-17 has  to  be  read  with  in
conjunction with the fact that two bags carried by the deceased  along  with
a gold chain and Rs. 25,000/- have gone missing and has not  been  recovered
as stated by the police. PW-17 did not report the occurrence to  anyone  and
absconded from the place of incident. His  statement  was  recorded  by  the
police after 6 days of the incident. The aforesaid  fact  should  have  been
considered  by  the  High  Court  with  seriousness  and  carefully   before
accepting his evidence. The evidence of PW-17 is  completely  unreliable  to
record the finding of the guilt of both the appellants.



It was further contended by the learned senior counsel that in  the  present
case, PWs 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 did  not  support  the
prosecution case and they were declared as hostile witnesses. Therefore,  it
was highly inappropriate on the part of the High Court to convict  both  the
appellants on the basis of statements given by such aforesaid  witnesses  to
the police under Section 161 of CrPC alone  in  the  absence  of  any  other
corroborative evidence placed on record by the prosecution. In  this  regard
reliance is placed upon the decision of this Court in  Ramswaroop  v.  State
of Rajasthan[2] and Rajendra Singh v. State of U.P.[3].



In his further submissions the learned senior counsel assailed the  fact  of
the presence of injuries on the person  of  PW-2  and  appellant  No.2  upon
which reliance is placed by the High  Court  in  reversing  the  finding  of
acquittal and convicting both the appellants in the manner that  the  nature
of the wound on the person of PW-2 was incised wound  caused  by  the  sharp
object and it is the specific case  of  PW-2  that  she  sustained  injuries
while she was cutting grass. This statement of the  above  witness  has  not
been demolished by the prosecution. Moreover, there is no recovery  of  such
sharp edged weapon from the place of occurrence or from  the  house  of  the
appellants. It is  not  even  the  case  of  the  prosecution  that  similar
injuries were found on the person of the deceased. As regards  the  injuries
sustained to appellant no.2, the Court has not even gone into the nature  of
injuries on his person.  He  further  submitted  that  the  High  Court  has
grossly erred in relying upon  the  version  of  the  prosecution  that  the
injuries could have been caused in the course of fight between the  deceased
and the accused persons.



The learned senior counsel further contended  that  the  High  Court  should
have re-appreciated the case of prosecution that  the  Christmas  cards  and
other letters alleged to have been written by PW-2 to  Jojo  have  not  been
proved to have been sent by PW-2 as the same were never sent to  handwriting
expert for examination to prove the fact that it was in the  handwriting  of
PW-2. In this regard he  further  submitted  that  in  the  absence  of  any
evidence to show that the alleged letters and cards were  sent  by  PW-2  to
the deceased-Jojo, the High Court has erred in relying on the same  to  hold
that both PW-2 and the deceased were in a romantic relationship and  terming
the same as the reason for  the  incident  involving  both  the  appellants.




While concluding his contentions the learned senior counsel  submitted  that
in convicting both the appellants the High Court  has  ignored  the  settled
principles of criminal law that every person  is  presumed  to  be  innocent
until proved otherwise and the standard of proof in criminal law  is  ‘proof
beyond reasonable doubt’, in the guise of protecting the credibility of  the
judicial system. It has based its reasoning only to ensure that  the  people
in whom the investigating agencies has reposed faith should not  be  allowed
to turn back at the crucial moment. The High Court  has  relied  upon  those
evidences which are completely unreliable. Therefore, the impugned  judgment
and order deserves to be set aside in the interest of justice by this  Court
in exercise of its appellate jurisdiction.



Per Contra, Ms. Liz Mathew, the learned counsel on behalf of the  respondent
sought to justify the impugned judgment and order passed by the  High  Court
on the ground that the same is well founded and is not vitiated in law.   It
was submitted by her that no interference  of  this  Court  is  required  in
exercise of its appellate jurisdiction.



It was contended by her that the High  Court  has  rightly  appreciated  the
evidence of PW-6 in proper perspective by holding that  PW-6  took  time  to
disclose the incident to police for the reason that he  was  a  stranger  to
the locality. The observation of the High Court is only  an  enunciation  of
normal behaviour of any reasonable person which does not require  any  other
evidence.



With regard to  the  identification  of  the  appellants  by  PW-6,  it  was
submitted by the learned counsel that  dock  identification  is  substantive
evidence.  This  witness  has   clearly   identified   the   appellants   as
perpetrators of the crime. It was further contended that since this  is  not
a case where the witness could only have a fleeting glance  of  the  accused
persons, the absence of a test identification  parade  does  not  shake  the
prosecution case in any manner. It was  further  submitted  by  the  learned
counsel that apart from some trifling contradictions that  may  have  arisen
on account of the long lapse of time, no material contradictions  have  been
brought from this witness to shake the prosecution case despite having  been
cross-examined by  the  defence  counsel  at  length.  The  learned  counsel
further submitted that when the incident is taking place in a public  place,
persons passing by are the best  witnesses  and  therefore,  their  evidence
could not be discarded. In  this  regard  the  learned  counsel  has  placed
reliance  upon  the  decision  of  this  Court   in   Raju   v.   State   of
Maharashtra[4], para 6 of which reads thus:

“In the absence of anything elicited in the  cross-examination  to  indicate
that  these  two  witnesses  were  interested  in  the  prosecution  of  the
appellants we are in full agreement with the  above-quoted  observations  of
the High Court. The other criticism levelled by the trial  court  that  they
were chance witnesses  is  also  wholly  unmerited  for  in  respect  of  an
incident that takes place on a public road,  the  passers-by  would  be  the
best witnesses. We have, therefore, no hesitation  in  concluding  that  the
claim of the above two witnesses that they had seen the incident  cannot  be
disputed at all.”


With regard to the credibility of evidence of PW-17,  it  was  submitted  by
the learned counsel that PW-17 after witnessing the  incident  narrated  the
same to a neighbour. A perusal of the testimony of this witness  reveals  no
concoction in his version and therefore he is completely  reliable.  It  was
further submitted that the reason for this witness  to  leave  the  locality
along with his family members and shifting his residence to a place  80  kms
away from the place of occurrence has been duly  explained  by  him  in  his
evidence. Being a tenant in the premises belonging  to  the  appellants,  he
moved out of fear as the appellants had threatened to kill him. He  appeared
before the police soon after the arrest of the appellants and  narrated  the
incident.



It was further contended by the learned counsel  that  the  non-recovery  of
the baggage, gold chain and Rs. 25,000/- which  the  deceased  was  carrying
can at best be stated to be a defect in the investigation. There is  nothing
on record to  suggest  that  PW-17  has  any  connection  with  the  missing
articles.



The learned counsel further contended that the appellants were named in  all
contemporaneous documents prepared after the occurrence, especially the  FIR
which was lodged soon after the occurrence. It is settled principle  of  law
that prompt lodging of FIR precludes  the  possibility  of  deliberation  to
falsely  implicate  any  person.  A  prompt  FIR  in  a  criminal  case  and
particularly in a murder case is a vital and  valuable  piece  of  evidence.
The learned counsel has placed reliance upon the decision of this  Court  in
Meharaj Singh v. State of Uttar Pradesh[5].



While concluding her contentions the  learned  counsel  submitted  that  the
statement of PW-6 is duly corroborated by statement of PW-17 and  admissible
portions of testimonies of other witnesses  and  medical  evidence  in  this
regard. There is no infirmity with the impugned judgment  and  order  passed
by the High Court which requires interference by this Court.



We have heard both the parties  at  length  and  have  given  our  conscious
thought to the material evidence on record and the  relevant  provisions  of
law. The question for our consideration is whether the prosecution  evidence
establishes beyond reasonable doubt the commission of  the  offence  by  the
accused-appellants under Section 302 read with Section 34 of IPC.



This Court in the case of Bindeshwari Prasad  Singh  alias  B.P.  Singh  and
Ors. v. State of Bihar and Anr.[6] has held that in the absence of  manifest
illegality  and  perversity  in  the  trial  court’s  findings  and  reasons
resulting in grave miscarriage of justice, the High Court is  not  justified
in interfering with the  trial  court’s  order  in  exercise  of  revisional
jurisdiction. The relevant para 13 reads thus:
“13. The instant case is not one where any such illegality was committed  by
the trial court. In the  absence  of  any  legal  infirmity  either  in  the
procedure or in the conduct of the trial, there  was  no  justification  for
the High Court to interfere in exercise of its revisional  jurisdiction.  It
has repeatedly been held that the High Court should  not  re-appreciate  the
evidence to reach a finding different from the trial court. In  the  absence
of manifest illegality resulting in grave miscarriage of  justice,  exercise
of revisional jurisdiction in such cases is not warranted.”
             (emphasis supplied by this Court)

Further, this Court in Sunil Kumar Sambu Dayal Gupta  &  Anr.  v.  State  of
Maharashtra[7] has held that presumption of innocence is a human right.  The
appellate court should not interfere with the acquittal order passed by  the
trial court merely because two views are  possible  in  a  given  case.  The
relevant paras 38 and 39 read thus:
“38. It is a well-established principle  of  law,  consistently  re-iterated
and followed by this  Court  is  that  while  dealing  with  a  judgment  of
acquittal, an appellate court must consider the entire evidence  on  record,
so as to arrive at a finding as to whether the  views  of  the  trial  Court
were perverse or otherwise unsustainable. Even though  the  appellate  court
is entitled to consider, whether in arriving  at  a  finding  of  fact,  the
trial Court had placed the burden of proof incorrectly  or  failed  to  take
into  consideration  any  admissible  evidence   and/or   had   taken   into
consideration evidence brought on record  contrary  to  law;  the  appellate
court should not ordinarily set aside a judgment  of  acquittal  in  a  case
where two views are possible, though the view of the appellate court may  be
the more probable one. The trial court which has  the  benefit  of  watching
the demeanor of the witnesses is the best judge of the  credibility  of  the
witnesses.

39. Every accused is presumed to be innocent unless  his  guilt  is  proved.
The presumption of innocence is a human  right.  Subject  to  the  statutory
exceptions, the said principle forms the basis of criminal jurisprudence  in
India. The nature of the offence, its seriousness  and  gravity  has  to  be
taken into consideration. The  appellate  court  should  bear  in  mind  the
presumption of innocence  of  the  accused,  and  further,  that  the  trial
court's acquittal bolsters the presumption of  his  innocence.  Interference
with the decision of the Trial Court in a casual or  cavalier  manner  where
the other view is possible should be avoided, unless there are good  reasons
for such interference.”
            (emphasis supplied by this Court)

The said view is further reiterated by this Court in the case of Rathinam  @
Rathinam V. State of Tamil Nadu & Anr.[8] The relevant para 30 reads thus:

“30. It is now beyond dispute that interference in such an appeal should  be
made sparingly in a situation where the  findings  of  the  High  Court  are
perverse and not possible on the evidence and if two views are possible  the
one leading to  acquittal  should  not  be  disturbed.  The  presumption  of
innocence which is  always  raised  in  favour  of  an  accused  is  further
strengthened by an acquittal and bolsters the  claim  of  the  accused.  The
aforesaid time-honoured  principles  have  been  recently  set  out  in  the
judgment of this Court in Arulvelu and Anr. v. State....”
        (emphasis supplied by this Court)


In the instant case, the High Court is not justified in holding PW-6 and PW-
17 are as reliable witnesses after re-appreciating the  evidence  on  record
when  there  is  absence  of  manifest  illegality  and  perversity  in  the
acquittal order passed by the Trial Court.


A careful reading of the evidence on record clearly highlights the  material
contradictions and discrepancies in the prosecution evidence especially  the
testimonies of Mathai (PW-6) and Eldose (PW-17) upon which  strong  reliance
has been placed by the High Court  in  convicting  both  the  appellants  by
setting aside the acquittal order  passed  by  the  Trial  Court.  From  the
testimony of PW-6 one thing is  clear  that  he  is  a  chance  witness  who
happened to have witnessed the incident by chance.  It  is  a  well  settled
legal principle that the evidence of a  chance  witness  cannot  be  brushed
aside simply because he is a chance witness but his presence  at  the  place
of occurrence must be satisfactorily explained by the prosecution so  as  to
make his testimony free from doubt and thus, reliable . This  Court  in  the
case of Jarnail Singh v. State of Punjab[9] has  elaborately  explained  the
reliability of a chance witness as under:

“21. In Sachchey Lal Tiwari v. State of U.P. this  Court  while  considering
the evidentiary value of the chance witness in a case of  murder  which  had
taken place in a street and passerby had deposed that he had  witnessed  the
incident, observed as under:
If the offence is committed in a street only passer-by will be the  witness.
His evidence cannot be brushed aside lightly or  viewed  with  suspicion  on
the ground that he was a mere chance witness.  However,  there  must  be  an
explanation for his presence there.
The  Court  further  explained  that  the  expression  “chance  witness”  is
borrowed from countries where every man's home is considered his castle  and
every one must have an explanation for his presence elsewhere or in  another
man's castle. It is quite unsuitable an expression in a country  like  India
where people are less formal and more casual, at any rate in the  matter  of
explaining their presence.

22. The evidence of a chance witness requires  a  very  cautious  and  close
scrutiny and a chance witness must adequately explain his  presence  at  the
place of occurrence (Satbir v. Surat  Singh, Harjinder  Singh  v.  State  of
Gujarat, Acharaparambath Pradeepan and Anr. v. State  of  Kerala and Sarvesh
Narain Shukla v.  Daroga  Singh).  Deposition  of  a  chance  witness  whose
presence at the place of  incident  remains  doubtful  should  be  discarded
(vide Shankarlal v. State of Rajasthan).”
            (emphasis supplied by this Court)



However, in the instant case, the presence of PW-6,  a  chance  witness,  at
the place of occurrence is not free from doubt. PW-6 in  his  testimony  has
stated that he along with PW-5 while proceeding from Rajakkad  to  Kuthungal
at about 11.45 pm  witnessed  the  occurrence.  He  has  accounted  for  his
presence at the place of occurrence by stating thus:



“PW-5 Thomas asked me a loan of Rs. 500/-. He requested for money  5/6  days
back. I had agreed to pay him the money, as  soon  as  I  get  it  from  the
contractor. Had not stated, when would I get the money. After asking me  for
a loan, he reminded me about it twice. Had told Thomas that  we  would  meet
at Rajakkad. I went to Rajakkad, reaching there at 6.00 am along  with  PW-5
I went to  the  contractor  K.S’s  office.  The  contractor  is  K.S.  Kunju
Mohammed. Had met PW-5 Thomas that day. That was at Rajakkad. We sat at  the
room of K.S. for an hour. We spent there from 6.00pm  to  7.00pm.  Since  we
could not meet K.S we went to the cinema at the nearby  theatre.  After  the
show was over, we again went to the room of K.S. K.S could not  be  met.  We
took food from fast food (thattukada) shop. After that when  we  were  going
home, we witnessed incident.”





However, PW-5 has not supported this version of PW-6. PW-5 in his  testimony
has stated that he did not witness anything. Further, the deposition of  PW-
6 is full of contradictions. On the one hand he says:

“...Two persons were standing in the field. One  among  them  was  searching
for something. After a while a head came out  of  slush.  A  person  wearing
shirt again pushed the head into the slush forcibly.  A-1  standing  in  the
dock was the person without shirt, and A-2 is the  person  who  was  wearing
the shirt who pushed the head into the slush) is in the dock.”



On the other hand, while deposing he says:

“...I had no personal knowledge when I left as to who attacked whom.”





Further, the conduct of PW-6  in  not  disclosing  the  incident  either  to
police or to anyone in the village  creates  a  suspicion  and  renders  his
version of the incident is doubtful. PW-6 according to  his  testimony  left
the place of occurrence quietly and did not inform  about  the  incident  to
anyone. The relevant portion from his testimony reads thus:



“...I did not tell anybody at anybody at the house what all I  saw  then.  I
did not make any noise (cry out); nor did I attempt  to  save  the  drowning
person. Before telling the police, I had  not  spoken  about  the  event  to
anybody else. That was on the next day at the scene of occurrence...

    xx                xx              xx

...Except for  the  statement  to  the  police,  I  am  speaking  about  the
occurrence only before the court now.  If  I  were  not  questioned  by  the
police, I would not have spoken about the occurrence which I saw to  anybody
else. I went to the scene of occurrence and stood there.  That  was  on  the
next day. Police invited those who had seen the occurrence to  come  forward
and state the facts. At this juncture, I  went  forward  and  explained  the
facts.”



From the aforesaid  evidence,  it  is  clear  that  PW-6  has  acted  in  an
unnatural manner. In this backdrop this Court is of  the  opinion  that  the
learned senior counsel for both the appellants has rightly pointed out  that
this unusual behaviour on the part of PW-6 in not telling anyone  about  the
incident of murder which he allegedly witnessed certainly  casts  a  serious
doubt upon his testimony. Therefore, the Trial Court  has  rightly  rejected
the evidence of PW-6 stating that the same is highly unreliable  as  it  has
failed to inspire confidence with regard to the  presence  of  PW-6  at  the
place of occurrence at the time of incident.  Hence,  the  Trial  Court  has
rightly held thus:



“6....His conduct in immediately not disclosing the fact that  he  witnessed
the murder to anybody casts a suspicion on his veracity...According to  PW-6
he had walked 3.5 kms at about midnight and reached the place of  occurrence
when the incident was happening and without making any  attempt  to  prevent
the murder he just proceeded to his house still 3.5 kms  away  by  walk.  In
the considered opinion of this court the above evidence  of  PW-6  does  not
inspire confidence. It will be highly unsafe to rely upon  the  evidence  of
PW-6.”





As far as evidence of PW-17 is concerned, it  is  clear  from  the  material
placed on record that he is not an eye-witness to the  incident.  The  Trial
Court has rightly dealt with the evidence of PW-17 as under:



“7. PW 17 is the other witness who has given incriminating evidence  against
the accused. According to him he had resided at the vicinity  of  the  place
of occurrence at the relevant period. On the date of  occurrence  namely  on
19.7.00 at about 10 pm the deceased came to his house  with  two  bags.  The
deceased told him that he was going to live together with his  lover  Smitha
(PW2). At about 11 pm he went away with the two  bags.  After  sometime  the
deceased and PW2 Smitha came there. Then he and his wife were standing  near
the way near their house as directed by the deceased. The deceased  and  PW2
bid farewell and went away and PW 17 and wife returned to  their  house  and
slept. After about one hour somebody knocked on the  door  and  PW17  opened
the door and saw the discharged accused. Thressiamma who is  the  mother  of
accused No.1 there. Then  Thressiama  told  him  that  they  were  going  to
hospital with Shajan (A2). She requested PW 17 to come  to  her  house.  She
further told that their child had  eloped  with  one  person  and  they  had
killed him. PW 17 went to the house  of  the  accused.  Then  he  saw  PW  2
(Smitha) standing there weeping. There was mud  on  her  body.  Smitha  told
that Jojo Chettayi was killed by father and brother. PW 17 immediately  went
to the paddy field and saw the body of the deceased. He again  went  to  the
house of the accused. Then the  discharged  accused  Thressiamma  gave  some
money to accused No. 1. After getting the money  the  accused  persons  went
away.



8.    The above is the circumstantial evidence furnished by  PW  17  Eldhose
against  the  accused.  Of  course  the  statements  attributed  by  him  to
Thressiamma and Smitha cannot be covered by  any  section  of  the  Evidence
Act/concerned with the relevancy of facts and so the said statements  cannot
be considered legal evidence. PW 17 was very vehemently  cross  examined  on
behalf of the accused. He admitted that immediately after the occurrence  he
himself and family left the place and  shifted  his  residence  to  a  place
named Thalakode which is 80 kms  away  from  the  place  of  occurrence.  He
admitted that for the next 5 days of the occurrence  himself  and  his  wife
were not present in the house. Immediately after that they shifted  resident
to the place 80 kms away from the place of  occurrence.  The  suggestion  by
the  defence  to  this  witness  is  that  the  deceased  had  two  bags   a
considerable amount of money and some gold ornaments were with  him  and  PW
17 is involved in the death of the deceased. Of  course  PW  17  denied  the
said suggestion. From the evidence of PWs 13  to  15  who  are  the  father,
mother and brother of the deceased it is clear that the  deceased  had  some
ornaments and a considerable amount of money with  him.  He  had  bags  also
with  him.  The  bags  and  the  money  have  not  been  recovered  by   the
investigating agency. The prosecution has no case that the  accused  persons
murdered the deceased for taking these valuable. The strange conduct  of  PW
17 in leaving the locality immediately after  the  occurrence  and  shifting
his residence from there to  far  away  place  80  kms  from  the  place  of
occurrence is suspicious. Of course in re-examination  the  prosecution  has
made desperate attempt to bring out from him that as the accused  threatened
him he shifted his residence. But he has not stated such  a  very  important
fact before police and  the  said  omission  obviously  amounts  a  material
contradicting and so above version of threat  from  the  accused  cannot  be
relied upon. As already mentioned above the conduct of PW 17 in  immediately
going into a sort of abscondence for the ensuing 5 day  of  the  murder  and
there after shifting his residence to a distance  of  80kms  appears  to  be
very suspicious. Further  admittedly  the  relatives  of  accused  etc.  are
residing in the neighbourhood.  PW 17 admitted that he did not report  these
facts to any of them. Considering all these facts  and  circumstances   this
court is of the view that  it  will  be  highly   unsafe  to  act  upon  the
evidence against the accused furnished by PW 17 Eldhose.”

                  (emphasis laid by this Court)



Further the fact that the age of injuries present on the person of PW-2  and
appellant no.2 matches with the approximate  time  of  incident  in  no  way
carves out an active role on the part of both the appellants  in  commission
of murder of Jojo.



The material evidence on record does not reveal anything which  incriminates
both the appellants. Further, the depositions of  parents  of  the  deceased
i.e., PW-13 and PW-14 in  no  way  implicate  both  the  appellants  as  the
offenders. Rest of the prosecution witnesses have turned  hostile  and  have
not supported the prosecution story on material facts to show that both  the
appellants are involved in the crime as alleged against them.



In the instant case, the prosecution has failed to prove the guilt  of  both
the appellants beyond reasonable doubt.  Though  the  prosecution  witnesses
Nos. 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 have turned hostile,  their
alleged statements made to the police under Section 161  of  CrPC  were  not
confronted to them and marked as exhibits  and  further  the  I.O.  has  not
spoken in his evidence anything about the alleged statements  of  the  above
hostile witnesses recorded under Section 161 as held by this Court in  three
Judge Bench in the case of  V.K. Mishra v. State of  Uttarakhand[10].  Thus,
placing reliance upon their statements under Section 161 by the  High  Court
to record the finding of conviction is erroneous in law. The High Court  has
failed to appreciate the same     in arriving at different conclusion  other
than the Trial Court in exercise of its appellate  jurisdiction.  Therefore,
the impugned judgment and    order passed by the  High  Court  must
be set aside by this Court in exercise of its appellate jurisdiction.



For the reasons stated supra, this criminal appeal is allowed. The  impugned
judgment and order dated 09.06.2009 passed by the High Court  of  Kerala  at
Ernakulam in Criminal appeal No. 1898 of 2005 is set aside and the  judgment
and order of acquittal passed by the  Trial  Court  is  restored.  Both  the
accused-appellants are acquitted of all the charges levelled  against  them.
Since both the appellants are in jail, the jail authorities are directed  to
release them forthwith if they are  not  required  in  connection  with  any
other case.







                                                    …………………………………………………………J.
                                          [V. GOPALA GOWDA]



                                                    …………………………………………………………J.
                                             [R.K. AGRAWAL]

New Delhi,                                                 26th July, 2016


ITEM NO.1A-For Judgment    COURT NO.8            SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  952/2010
BABY @ SEBASTIAN & ANR.                         Appellant(s)

                                VERSUS

CIRCLE INSPECTOR OF POLICE ADIMALY             Respondent(s)

Date : 26/07/2016 This appeal was called on for  pronouncement  of  JUDGMENT
today.

For Appellant(s)  Mr. M. Karpaga Vinayagam, Sr. Adv.
                        Mrs. V.S. Lakshmi, Adv.
                     Mr. A. Venayagam Balan,Adv.

For Respondent(s)       Mr. C.K. Sasi, Adv.
                     Ms. Liz Mathew,Adv.


      Hon'ble Mr. Justice V.Gopala Gowda  pronounced  the  judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice R.K. Agrawal.
      The appeal is allowed in terms of the signed Non-Reportable judgment.
      Both the accused-appellants are acquitted of all the charges  levelled
against them. Since both the appellants are in jail,  the  jail  authorities
are directed  to  release  them  forthwith  if  they  are  not  required  in
connection with any other case.


       (VINOD KR.JHA)                        (SUMAN JAIN)
         COURT MASTER                        COURT MASTER
    (Signed Non-Reportable judgment is placed on the file)

-----------------------
[1]   [2] (1971) 3 SCC 466
[3]   [4] (2004) 13 SCC 134
[5]   [6] (2007) 7 SCC 378
[7]   [8] (1998) 1 SCC 169
[9]   [10] (1994) 5 SCC 188
[11]  [12] (2002) 6 SCC 650
[13]  [14] (2010) 13 SCC 657
[15]  [16] (2011) 11 SCC 140
[17]  [18] (2009) 9 SCC 719
[19]  [20]  (2015) 9 SCC 588 (paras 16-19)