ike them because they were born female. Whether a male child or female child, a child is a child to the parents. They did not make any difference. They should not have the feeling that they (parents) were made burdensome. Now-a-days, women are ahead of men in all fields. Unlike male, women plays multifarious roles. They suffer in silence from their birth till death. They suffer as mother, wife, sister, daughter and daughter-in-law. Every parent must feel that when girl children were born, they are gifted. No religion preaches killing of children merely because they were born as female. In fact, they advocates treating them as Gods themselves. In stead of killing them, they could very well give them in adoption to those issueless couples, who are longing for a child. There is no meaning in killing innocent children. They shall not be nipped (killed) at the bud and prevent blossoming of 'Karuthammas'.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/02/2012 CORAM THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE P.DEVADASS Criminal Appeal (MD) No.175 of 2011 Jeyaraj ... Appellant Vs. The State represented by The Inspector of Police, Thalavaipuram Police Station Thalavaipuram, Virudhunagar District. ... Respondent Prayer Appeal filed under Section 374 of Criminal Procedure Code to set aside the judgment of the learned Principal Sessions Judge, Srivilliputtur, Virudhunagar District in S.C.No.102 of 2009 by his judgment dated 30/9/2010 and acquit the appellant from the charges. !For appellant ... Mr.A.R.Jeyaruthran ^For respondent ... Mr.K.S.Duraipandian, Additional Public Prosecutor :JUDGMENT (Judgment of the Court was delivered by P.DEVADASS ,J) 1. This is a most unfortunate case concerning two innocent children who have died under tragic circumstances. 2. On account of their death, their father, Jayaraj, was convicted on 30.9.2010 under section 302 IPC (2 counts), in S.C.No.102 of 2009, by the learned Principal Sessions Judge, Virudhunagar Sessions Division at Srivilliputhur and awarded him double life sentences and fined him Rs.2,000/- and directed both the life sentences shall run concurrently. 3. The lifer is challenging his said conviction and sentences. 4. The prosecution case may briefly be recounted as under:- (1) Murugeshwari (P.W.2) married her uncle's son Jayaraj (accused). He is a palmarah climber. She is an insurance agent. They are residing in Meenakshipuram, in Sankarankoil Taluk, in Tirunelveli District. P.W.2's brother P.W.1 Arunachalam and their mother P.W.3 Sevanammal are residing in the nearby Mangudi Village. (2) P.W.2 used to go out to collect the insurance amount. But, the accused suspected her. Successively, she gave birth to female children only. Out of the four, two have died. The remaining two are Gnanaselvi and Selvapriya. Accused wished to have male children through another wife. P.W.2 and the children are hurdle for him. There used to be frequent quarrel between the spouses. Accused used to beat P.W.2 mercilessly. She used to go to her mother's house. Stay there for few days. P.Ws.1 and 3 used to pacify them. (3) On 30/3/2009, at about 3 p.m., P.W.2 came to P.W.1's house and told that her husband had beaten her and also threatened to marry another woman. Accused complained to P.W.1 that his sister is leading a wayward life, so, he is going to marry another woman. P.W.2 told that she will not live with him and thrown away the mangalsutram. He demanded his gold ring and cell phone. She gave them. P.Ws.1 and 3 reminded him of the future of the children. Accused replied that the children will die soon. Then, he had gone to his house. At about 8 p.m., on his request, P.W.2 was sent back to his house. But, again, he had beaten her. (4) On 31/3/2009, at about 3.30 p.m., Gnanaselvi and Selvipriya returned home from the School. The accused gave them Rs.50/- each to buy cool drinks. The children went to the shop. (5) In the meanwhile, accused asked water from P.W.2. She gave him water in M.O.1 - ever silver vessel. He drank the water and hide M.O.1. Accused was in a rage. He burnt her LIC documents. (6) From P.W.4 Arockiasamy's petty-shop in Meenakshipuram, the children purchased 7 up cool drinks contained in plastic containers. They brought them to the house. Accused directed each to bring a vessel. Accordingly, they brought. He poured the cool drinks into that and gave them. They drank. He gave M.O.1 to his wife containing drinks. But, she refused to drink. He had beaten her. At about that time, P.W.3 came. She pleaded him to spare her and their problem could be solved through talk. P.Ws.2 and 3 went to accused's mother Jothiammal's house. Accused also came there. (7) At about 6.30 p.m., Gnanaselvi informed P.W.1 that her parents are quarrelling and requested him to come. At about 7.15 p.m., P.W.1 visited their house. P.W.2 and her husband were not there. Selvapriya was found vomiting. Gnanaselvi could not reply. Soon the children swooned. P.W.1 rushed to Jothiammal's house. He told the accused and P.W.2 that both are fighting but their children have fainted in their house. (8) The children were found in a most deplorable condition. P.Ws.1 to 3 and the accused took them in the van driven by P.W.5 Balamurugan to P.W.11 Dr.Meenakshisundaram's hospital in Thalavaipuram. P.W.11 found the children in a very serious condition. He smelt organo phosphorous compound, a pesticide (Ex.P.15 - report). He advised them to take the children immediately to Government Hospital, Rajapalayam. But, the van had left. So, they took the children in an auto to the home. (9) At about 10.30 p.m., the children passed away. At about 12.30 a.m., at Thalavaipuram Police Station, P.W.1 gave Ex.P.1 complaint to P.W.10 AyyalSamy, Head Constable. He registered a case of suspicious death in Crime No.67 of 2009 under Section 174 Code of Criminal Procedure. Sent the First Information Report [Ex.P.14] to P.W.16 Kalimuthu, Tahsildar, Rajapalayam. (10) P.W.15 David Rajan, Sub-Inspector of Police, Thalavaipuram, did preliminary investigation. At about 2 a.m., he visited the house of the accused. In the presence of P.W.6 Ramasamy and Kasirajan, prepared Ex.P.2 observation mahazar. Drew Ex.P.18 site-plan. Recovered M.O.1 ever silver vessel, M.O.4 7-up plastic containers with remaining contents, M.O.7 half-burnt insurance document, M.O.3 match-box, M.O.2 kumkum-box. In the presence of witnesses, he poured the contents of M.O.1 in an another 7-up container and sealed. Seized them under Ex.P.3 mahazar. (11) In the presence of Panchayatdhars, P.W.15 held inquest over the dead bodies. (Exs.P.19 and P.20 - Inquest Reports). He examined P.Ws.1 to 3 and other material witnesses and recorded their statements. From P.W.4's shop, P.W.15 purchased M.O.5 7-up cool drinks. Sealed it. Seized it under Ex.P.4 mahazar in the presence of witnesses. He sent the seized items to P.W.16. P.W.17 sent the dead bodies to Government Hospital, Rajapalayam for autopsy. (12) On 1/4/2009, at about 11.45 a.m., at the said Hospital, P.W.13 Dr.Ponnusamy conducted autopsy on the dead body of Priya and found the following: A female body lied flat not decomposed arms by the side fixed at elbows. Moderately nourished. No discharge from ear or nose. Mouth closed. Tongue within. No external injury. Internal examination Abdomen: Stomach dieted with 350 ml fluid Stomach congested. Liver, spleen, kidney, intact c/s congested. Intestine: intact c/s congested. Chest: heart lungs intact c/s congested Skull: skin bones brain intact, brain C/s congested. Hyoid bone intact. (Ex.P.16 Post-Mortem certificate). (13) At about 12.45 p.m., P.W.13 conducted autopsy on the dead body of Gnanaselvi and found the following:- A female body lied flat not decomposed, arms by the side fixed at elbows moderately nourished. No discharge from ear or nose. Mouth closed. Tongue within. No external injury. Internal examination: Abdomen: Stomach dieted with 300 ml fluid Stomach: congested liver, spleen, kidney, intact c/s congested Intestine: intact c/s congested Chest: Heart lungs intact c/s congested. Skull: Bones, (nc) skin intact. Brain intact c/s congested Hyoid bone intact. (Ex.P.17 Postmortem Certificate) (14) P.W.15 having come to know that the children were murdered, submitted the Case-Diary to P.W.17 Anand Arockiaraj, Inspector, Thalavaipuram. He took up his investigation. Altered the Section of law to Section 302 IPC. Sent Ex.P.21 alteration memo to Court. (15) On 4/4/2009, at about 10 a.m., the accused appeared before P.W.7 Krishnamurthi, VAO, Puthur. He confessed his killing of the children by giving 7-up cool drinks mixed with poison and if he goes to Police, they will torture him and thus, he has surrendered. (16) At about 11 a.m., at the Dhalavaipuram Police Station, P.W.7 produced the accused with his Ex.P.5 report. P.W.17 arrested him. In pursuance of that, from his home, he had produced ten pockets, each containing light yellow colour powder weighing 10 grams (M.O.8 series) and 2 pockets containing light ash colour powder, each weighing 10 grams (M.O.9). He seized them in the presence of witnesses, under Ex.P.7 mahazar. P.W.17 produced the accused to the Court for judicial custody. He sent the case-properties to the Lab for chemical analysis. (17) The visceras of Gnanaselvi and Priya contained Phospide, a poisonous ingredient. It is rodenticide (Exs.P.12 and P.13 - viscera reports). The plastic containers received from P.W.16 found contained Phosphide. The 7-up cool drinks purchased from P.W.4's shop does not contain Phosphide. (Ex.P.8 chemical report). The contents of M.O.8 found contained diazepam. The contents of M.O.9 is Aluminium Phosphide (Ex.P.11 chemical report). P.W.13 opined that the children died due to phosphide poisoning (Exs.P.16 and P.17 postmortem certificates). (18) P.W.17 further examined P.W.13 and perused the chemical and toxicology reports and concluding his investigation, filed the Final Report for offence under Section 302 IPC (2 counts). 5. The accused has been examined under Section 313 Cr.P.C., on the incriminating aspects in the prosecution evidence. He denied his complicity in this case. He did not produce any witness. 6. Analysing the evidence, the trial Court came to the conclusion that the circumstances projected by the prosecution are proved, thus, the prosecution has proved its case beyond all reasonable doubts and found the accused guilty of offence under Section 302 IPC (2 counts) and sentenced him as stated earlier. 7. According to Mr.A.R.Jeyaruthran, learned counsel for the appellant, the prosecution failed to establish the guilt alleged as against the accused. Elaborating his submissions, the learned counsel submitted as under:- (i) P.Ws.1 to 3 are closely related and are highly interested. They cannot be believed. (ii) P.W.2 is an unfaithful wife. She has been living in adultery with one Murugan, she distanced herself from the case and involved her husband in this case. (iii) P.Ws.1 and 3, who are brother and mother of P.W.2 interested in excluding her from the case, thus, no reliance can be placed on their evidence. (iv) There is no proof that particular poisonous substance has been administered to the children. (v) The vomitous material has not been recovered from the scene place, scientifically tested and co-related with the poisonous substance found in the visceras of the children. (vi) Aluminium Phosphide by its nature have pungent smell, so, it cannot be kept openly. There is no evidence of such scent having emanated from the scene place or from the bodies of the deceased children. (vii) The accused also took the children to P.W.11's hospital. If he is the cause for their death, he would not have accompanied them to the hospital. (viii) P.Ws.1 to 3 have stated that the accused told them that soon the children will die. However, in his Ex.P.1 complaint, P.W.1 did not mention about this nor the name of the accused. (ix) Already, the accused was taken away by the Police. That being so, the accused having appeared before P.W.7 VAO and confessed to his poisoning of the children is not genuine. (x) There is no written extra-judicial confession. (xi) The accused was stated to have been handed over by the Revenue Staff to P.W.17 - Investigation Officer, when the accused surrendered before P.W.7 itself is doubtful, his arrest by P.W.17, his confession and recovery of M.Os.8 and 9 pockets containing poisonous powder and other materials are farce and are Police desk work. 8. On the other hand, the learned Additional Public Prosecutor submitted as under: (i) Although P.Ws.1 to 3 are relatives, their evidence is consistent, cogent and natural and does not suffer from any infirmity. (ii) There are very many telling circumstances which goes to fasten the accused with criminal liability. (iii) The accused suspected the fidelity of his wife and there was strained relationship between them. She had begotten him only female children. However, the accused was interested in having male children. He is interested in replacing P.W.2 by another lady and through a new wife, he wished to begot male children. For this, the children are hurdle for him, thus, he had poisoned them. Thus, they have died. (iv) There is extra-judicial confession of the accused to a non- Police/private person/P.W.7. It is relevant evidence under Section 24 of the Indian Evidence Act. In the facts and circumstances, merely on account of absence of a writing when the extra-judicial confession is genuine and voluntary, it cannot be brushed aside. (v) The medical evidence discloses that the poisonous substance found in the visceras tallied with the poisonous substance recovered from the house of the accused. (vi) The poisonous substance had been mixed with 7-up cool drinks. Purchasing of 7-up cool drinks by the children from his shop had been spoken to by P.W.4. (vii) The accused did not evince interest in saving the life of his children. He did not make any complaint. His conduct was quite strange. He did not give any explanation for this during his examination under Section 313 Cr.P.C. (viii) Thus, the accused had poisoned his own daughters and he is guilty of double murder. Thus, he has been rightly convicted and sentenced. 7. We have given our anxious consideration to the rival submissions. We have meticulously perused the voluminous oral, documentary evidence and the materials produced. We have also gone through the findings of the trial Court. 8. Meenakshipuram and Mangudi in Sankarankoil Taluk in Tirunelveli District are nearby villages. There is a distance of 1 Kilometer between them. The nearest big town is Dhalavaipuram. It is at a distance of 10 Kilometers. Accused Jeyaraj and his mother Jothiammal are residing in Meenakshipuram. Accused married P.W.3 Sevanammal's daughter P.W.2 Murugeswari. She is his own Aunt's daughter. Her brother is P.W.1 Arunachalam. P.Ws.1 and 3 are residing in Mangudi. P.W.2 and the accused resided in Meenakshipuram. 9. Gnanaselvi and Selvapriya, then about 10 and 7 years old respectively are the children of accused and P.W.2. On 31.03.2009, at about 10 p.m., they died in their house. Their Viscera Reports (Exs.P.12 and P.13) and the postmortem findings (Exs.P.16 and P.17) revealed that they died of poisoning. 10. Who poisoned them? According to prosecution, their own father had administered them poison. 11. In this case, there is no ocular witness. The case is based on circumstantial evidence. 12. Sir Alfred Wills in his book Wills' "Circumstantial Evidence" (Chapter VI) lays down the following rules to be observed in the case of circumstantial evidence: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 13. In PADALA VEERA REDDY Vs. STATE OF A.P. [AIR 1990 SC - 79], it was laid down that when a case rests on circumstantial evidence, it must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 14. In STATE OF RAJASTHAN Vs. RAJA RAM [(2003) 8 SCC 180], it is observed as follows:- "8. ......The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See HUKAM SINGH Vs. STATE OF RAJASTHAN, ERADU Vs. STATE OF HYDERABAD, EARABHADRAPPA Vs. STATE OF KARNATAKA, STATE OF U.P. Vs. SUKHBASI, BALWINDER SINGH Vs. STATE OF PUNJAB and ASHOK KUMAR CHATTERJEE Vs. STATE of M.P.). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In BHAGAT RAM Vs. STATE OF PUNJAB it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt." 15. In SK.YUSUF Vs. STATE OF WEST BENGAL reported in (2011) 3 SCC (Cri) 620, on the aspect of circumstantial evidence, Honourable Apex Court observed as under:- "32. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that the act must have been done by the accused." 16. To make the accused responsible for the untimely death of the children, prosecution relies on the following circumstances: (i) Begetting of female children alone by P.W.2. (ii) The accused desired to have male children through another wife. (iii) The strained relationship between the accused and his wife/P.W.2. (iv) Medical evidence/death by poisoning. (v) Extra-judicial confession to P.W.7 - V.A.O. (vi) Section 27 Indian Evidence Act recovery. (vii) Non-lodging of F.I.R. by the accused. 17. In this case, P.Ws.1 to 3 namely, Arunachalam, Murugeswari and Sevanammal are the main witnesses. They are brother, sister and mother respectively. On account of they being so closely related, it has been argued on behalf of the accused that their interested testimony is to be discarded. 18. In SARWAN SINGH Vs. STATE OF PUNJAB [(1976) 4 SCC 369], a three-Judge Bench of the Hon'ble Apex Court, while considering the evidence of an interested witness held as follows: "10. . it is not the law that the evidence of an interested witness should be equated with that of a tainted [witness] or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of the interested [witness has] a ring of truth such evidence could be relied upon even without corroboration." 19. The fact of being a relative cannot by itself discredit the evidence. In the above said case, the witness relied on by the prosecution was the brother of the wife of the deceased and was living with the deceased for quite a few years. The Hon'ble Supreme Court in the above said case (SARWAN SINGH V. STATE OF PUNJAB [(1976) 4 SCC 369], SCC p. 379, para 16) held as follows. "16. . But that by itself is not a ground to discredit the testimony of this witness, if it is otherwise found to be consistent and true." 20. In BALRAJE v. STATE OF MAHARASHTRA [(2010) 6 SCC 673], the Hon'ble Supreme Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, the Hon'ble Apex Court held in the following manner: (SCC p. 679, para 30) "30. . if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 21. In PRAHALAD PATEL V. STATE OF M.P. [(2011) 4 SCC 262], in para 15, the Hon'ble Supreme Court held that: (SCC p. 265) "15. . Though PWs 2 and 7 are brothers of the deceased, relationship is not a factor to affect credibility of a witness. In a series of decisions this Court has accepted the above principle (vide Israr v. State of U.P., (2005) 9 SCC 616 and S. Sudershan Reddy v. State of A.P., (2006) 10 SCC 163)." 22. In STATE OF U.P. V. NARESH, [(2011) 4 SCC 324] the Hon'ble Apex Court has emphasised that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29) "29. . The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide JARNAIL SINGH V. STATE OF PUNJAB, [(2009) 9 SCC 719], VISHNU v. STATE OF RAJASTHAN [(2009) 10 SCC 477] and BALRAJE V. STATE OF MAHARASHTRA [(2010) 6 SCC 673.]" 23. Keeping the above guidelines in our mind let us approach with meticulous care and caution, the testimony of P.Ws.1 to 3. 24. Now, let us proceed to see the circumstances stated by the prosecution one by one and see whether they are established. If established, whether they are incriminating in nature? and whether they form a complete chain unerringly proceeding towards the accused as the killer of the children. 25. The accused and Murugeswari (P.W.2) are not happy couples. The accused is a palmarah climber During the seasons, he used to go to several places, stay there for months together and return home. P.W.2, as insurance agent used to leave the house very often to collect the insurance premium amount and remit it in the Office in Virudhunagar. Totally, P.W.2 gave birth to four children. All are female children. Out of them, two have died already. The remaining are Gnanaselvi and Selvapriya. 26. A close reading of the evidence of P.W.2 reveals that the accused is not happy about P.W.2 having given birth to female children only. He longed for male children. He wished to have them through another wife. On this aspect, no dent has been made by the defence during her cross-examination. On this aspect, her evidence is consistent and cogent. Further, the reality of the situation, namely, she having given birth to only female children also lent credence to it. Thus, the accused is disgusted with P.W.2 having given him only female children and he wanted to have male children through another woman. 27. The accused suspected his wife's fidelity also. There was strained relationship between the spouses. It is the evidence of P.W.2 that very often she received beatings from her husband and on such occasions she used to go to Mangudi and complain about him to her mother (P.W.3) and brother (P.W.1). This has been spoken to by them. They have withstood the lengthy cross-examination of the defence. 28. It is the evidence of P.W.2 that on 30.03.2009, at about 4 p.m., when P.W.2 returned from Virudhunagar after remitting the insurance premium amount, quarrel arose between her and the accused. When she demanded his wages, he told her that when she is coming with money after sharing her bed with many in Virudhunagar, why should he give her money and he also slapped her. Then the children were there. They started crying. In these circumstances, P.W.2 went to her brother's house. It is also her evidence that the accused also followed her. 29. It is the evidence of P.W.1 that in his house his sister (P.W.2) complained about she having been harassed by her husband and the accused told P.W.1 that his sister is leading a wayward life, so, he is going to marry another woman. At this juncture, P.W.2 throw away her Thali saying that she will not live with him and when the accused demanded the gold ring and cellphone, she immediately gave them to him. These aspects were also clearly spoken to by P.Ws.1 and 2. Their mother (P.W.3) also stated about the strained relationship between her daughter and her son-in-law. The evidence of P.Ws.1 to 3 are clear and cogent. There was much strained relationship between the accused and P.W.2. 30. When died, Gnanaselvi was 10 years old and Selvapriya was 7 years old. On 31.03.2009, at about 7.15 p.m., on intimation, P.W.1 Arunachalam visited the children's home, he found Selvapriya vomiting and Gnanaselvi was in a deplorable condition and soon they have fainted. At about 8 p.m., first aid was given to them by P.W.11 Dr.Meenakshisundaram at his hospital in Thalavaipuram. P.W.11 had noticed sweating, breathlessness, severe diarrhea, semi consciousness in them. There was smell of insecticide also. He was of the view that they might have had Organo Phosphorous Compound, an insecticide. He advised them to take the children immediately to Government Hospital, Rajapalayam. These aspects were stated by P.W.11 in his evidence and also in his Medical Report Ex.P.15. In these circumstances, at about 10 p.m. in their house, the children have died one after the other. 31. The Pathological findings of their Visceras is that they died of Phosphide, a poisonous ingredients. It was detected in their stomach, stomach contents, intestine, intestine contents, liver and Kidney (See Exs.P.12 and 13 Viscera Reports). 32. P.W.13 Dr.Ponnusamy, who conducted autopsy on the dead bodies by the children stated that the children died of phosphide, a poisonous substance. The children's stomach, intestine, chest, liver, spleen, kidney, heart, lungs, throat were found congested. 33. Phosphide is an organic non-metallic poisonous substance. Its symptoms are acute vomiting, diarrhea, loosing consciousness, foul and punchant stench and possibility of death within 24 hours of administration of fatal dose. 34. These symptoms were seen on the children by P.W.11 Dr.Meenakshisundaram, who gave them first aid and on dissection the internal contents of their dead bodies also revealed the presence of evidence/symptoms of phosphide poisoning. 35. On the same day, at about 12.30 a.m. at Thalavaipuram police station, P.W.1 gave Ex.P.1 complaint to P.W.10 Ayyasamy, Head Constable. The distance between the scene village and Thalavaipuram is about 10 kilometers. Thereafter, the F.I.R. was despatched and handed over to the Judicial Magistrate, Rajapalayam. Neither in lodging the F.I.R. nor in despatching it to the Judicial Magistrate, there is no delay. 36. It is significant to note that the F.I.R. was lodged not by the children's father/accused. He was present when the children died. He knows their death. He did not make any complaint. When he was examined under Section 313 Cr.P.C. he did not give any explanation as to why he did not prefer complaint on the death of his daughters. In the facts and circumstances of the case, this is an incriminating circumstance as against him. 37. P.W.7 Krishnamoorthy is V.A.O, Puthur Village. He is also the V.A.O. for Meenakshipuram. He has stated that he knows the accused. He is not a stranger or unknown person to him. His evidence is that on 04.04.2009, at about 10 a.m., when he was in his office, the accused appeared before him and told him as follows: "ehd; vdJ FHe;ijfis brtd;mg; ghl;oypy; tprg;bgho fye;JbfhLj;J bfhd;Wtpl;Bld;. fhty;Jiwf;F brd;why; vd;id Jd;g[Wj;Jthh;fs;." He confessed to him about his killing of his children by giving them 7 Up cool drinks mixed with poisonous powder. Thereafter, at about 11 a.m. at the Thalavaipuram Police station, P.W.7 handed over him to P.W.17 Anand Arockiaraj, Inspector with his report Ex.P.5, wherein he had stated exactly what the accused had confessed to him. Thereafter, P.W.17 arrested him in connection with this double murder. 38. P.W.7 had stated that the accused had confessed to him orally and he did not write it. P.W.7 is V.A.O. of his village. He knows him. He had no reason to implicate him. Accused had approached him for fear of police harassment. He sought his help and through him he had surrendered to police. 39. Section 24 of the Indian Evidence Act, 1872 prohibits obtaining of confession from a person implicating himself in a crime under threat, coercion, undue influence or out of any inducement or promise of help. The law prohibits confession to police. The law does not prohibits confession to non - police persons/ private persons. This has been recognized under Section 24 of the Indian Evidence Act. In fact confession is the best form of evidence, because it emanates from the very author/accused. It becomes reliable because, it is made by the maker/accused as against his own interest. But, it should not be tainted. Since the confession is made to private persons, to a non-judicial person/outside the Court, it is called extra-judicial confession. 40. It is relevant here to mention the observations of Hon'ble Supreme Court in STATE OF RAJASTHAN V. RAJA RAM, [2003] 8 SCC 180, wherein it was observed as under: "An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witness who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." 41. Extra-judicial confession should be genuine and voluntary. There is no requirement of law that extra-judicial confession must always be in writing. Under certain circumstances, though the extra-judicial confession is voluntary and genuine, it may not be written. In such circumstances, it cannot be said that for want of written proof, it should be thrown out. When extra-judicial confession is made by the accused to a private person and that person has repeated it in Court what the accused had stated, for want of writing of the same, we cannot say it cannot be relied on, when otherwise it is reliable and acceptable. 42. Now, in this case, P.W.7 is not a stranger to the accused. What exactly he had stated to him about the occurrence had been repeated by him in the Court, the reason why the accused has approached his help/ surrendered before him has also been stated by P.W.7. That apart, immediately, P.W.7 had also submitted Ex.P.5 Report to P.W.17. It also contains exactly what the accused had stated to him on that day and that was also marked in the Court and was also subjected to cross-examination. In the facts and circumstances, we are not to exclude the oral extra-judicial confession made by the accused to P.W.7, merely on account of want of a written record for the same. 43. P.W.2 had stated that on the next day, after the children have died, police took her husband to Thalavaipuram. This is also what stated by P.Ws.1 and 3. In Ex.P.1 - complaint, P.W.1 had entertained suspicion on the death of the children. That is why initially the case has been registered as suspicious death under Section 174 Cr.P.C. When the children started vomiting and soon fainted P.Ws.1 and 2 and their relatives took the children to P.W.11 Dr.Meenakshisundaram. It is to be noted that the accused also accompanied them. The accused is the father of the children. Then nobody suspected him. He was also present all along like others. That is why initially his name did not figure in the F.I.R. Children have died on 31.03.2009 at about 10 p.m. F.I.R. was lodged on 12.30 a.m. Naturally the police will also ask about the accused as to what had happened. In the facts and circumstances, it cannot be stated that he was arrested and kept under police custody. In the circumstances, non- mentioning of his name in the F.I.R. is not fatal to the prosecution case. 44. After the inquest and the postmortem was over, the Section of law was altered to Section 302 I.P.C. and Ex.P.21 Alteration Memo was submitted to Court by P.W.17. In Ex.P.21 accused's name has not been mentioned. So he was not arrested. His involvement was known first on 04.04.2009, when he made extra- judicial confession to P.W.7. 45. On 04.04.2009 at about 11 a.m, P.W.17 arrested the accused. It is the evidence of P.W.17 that the accused gave him Ex.P.6 confessional statement that if he is taken to his house, he will produce powder pockets and silver vessel. It was recorded by P.W.17 in the presence of P.W.7 and his Assistant. It is also the evidence of P.W.7 that the accused took them to his house and produced 10 powder pockets (M.O.8) and 2 powder pockets (M.O.9) and the Silver Vessel (M.O.1) and they were seized under Ex.P.7 seizure mahazar. On this aspect there is no material contradiction between P.W.7 and P.W.17. There is nothing significant to discard the recovery of M.Os.1, 8 and 9. 46. On 31.03.2009, in the evening, when the children returned home, the accused gave them Rs.50/- each and directed them to purchase 7 Up cool drinks and this has been spoken to by P.W.2. She had also stated that the children have brought 7 Up cool drinks. P.W.4 Arockiasamy, the petty shop owner stated that on 31.03.2009 at about 5.30 p.m., he sold 7 Up cool drinks in plastic containers to the two children of the accused. Nothing has been obtained by the defence in his cross examination disturbing his such evidence. P.W.15 David Rajan, Sub- Inspector of Police purchased a 7 Up cool drinks container (M.O.5) from P.W.4 under Ex.P.4 mahazar. 47. P.W.17 sent the said seized items to Chemical Lab for analysis through Court (See Ex.P.10 Court letter). On analysis of M.Os.5, 8 and 9, M.O.8 ten powder pockets seized from the house of the accused found contained diazepam. M.O.9 two powder pockets, which were also seized from the house of the accused found contained Aluminium phosphide, a poisonous rodenticide (Ex.P.11 - chemical report). The contents of 7 Up container seized from the house of the accused on 01.03.2009 was sent through proper authority to the chemical lab for analysis. On analysis, the contents are found to be phosphide. It is a poisonous ingredient. It is a rodenticide (Ex.P.8 - chemical report). The contents of sample M.O.5 - Plastic container on analysis found not containing phosphide. The pathological findings on the visceras of the children's dead bodies revealed the presence of phosphide inside their bodies. Thus it is seen that the 7 Up plastic containers seized from the house of the accused contained phosphide. The visceras of the children also found contained phosphide. M.O.9 - the two powder pockets seized from the house of the accused also contained phosphide. On 31.03.2009, at about 7.30 p.m., all the symptoms which will be found in phosphide poisonous cases were found in children and the postmortem findings also show that they died of phosphide poisoning. 48. The evidence of P.Ws.1 to 3 reveals that now P.W.2 is living in Devipattinam with one Murugan as his living partner. They denied that P.W.2 had illegal relationship with him even prior to the occurrence. Her so living has no bearing so far as the prosecution case is concerned. 49. The children lived with their parents in their house in Meenakshipuram. On 31.03.2009, at about 7.30 p.m. they were found in a serious condition in their house. They were noticed vomiting by P.W.1 and subsequently by P.Ws.2 and 3, that is what also noticed by P.W.11 and that has been stated in his report Ex.P.15. 50. No doubt vomited material has not been recovered from the scene house. It is not the case of the accused that the children have not been poisoned at all. It is also not the case that the children did not die due to poisoning. They were found struggling for life in their house. In these circumstances, failure to collect vomited material is not fatal to the prosecution case. 51. The accused was fed up with his wife having given birth to female children only. He was interested in begetting male children and decided to have them through another wife. P.W.2 and her children were stumbling block for him to do so. The accused suspected P.W.2's fidelity also. On 30.03.2009, when the accused and P.W.2 quarrelled, they stared blaming each other in P.W.1's house at Mangudi. When, P.W.1 expressed his concern for the future of the children, he had stated that the accused had stated that soon they will die. This has also been stated by P.Ws.2 and 3. In these circumstances, in the house of the accused his two children were found dead with the symptoms of they having had poisonous substances and later they died. It is found that they were administered phosphide, a rodenticide mixed in 7-Up cool drinks and phosphide poison also has been recovered from the house of the accused, based on his disclosure statement. The accused also gave extra-judicial confession that he had killed his children by giving them 7-Up cool drinks mixed with poison. As to the death of the children, he did not make complaint to the police at all. As to this, he did not give any satisfactory explanation, when he was examined under Section 313 Cr.P.C. 52. A cumulative consideration of all the above incriminating circumstances forms a complete chain without any missing link and unerringly proceeding towards the accused as the killer of the children. The children's killer is none other than their father himself. He had poisoned them. The prosecution has established its case beyond all reasonable doubts. 53. In these circumstances, we do not find any flaw in the finding of guilt recorded under Section 302 I.P.C. (2 counts) by the learned Principal Sessions Judge, Virudhunagar Sessions Division at Srivilliputhur and his awarding of double life sentences to him. 54. From this case, it is seen that so much of antipathy exists towards girl children. Even their own father did not like them because they were born female. Whether a male child or female child, a child is a child to the parents. They did not make any difference. They should not have the feeling that they (parents) were made burdensome. Now-a-days, women are ahead of men in all fields. Unlike male, women plays multifarious roles. They suffer in silence from their birth till death. They suffer as mother, wife, sister, daughter and daughter-in-law. Every parent must feel that when girl children were born, they are gifted. No religion preaches killing of children merely because they were born as female. In fact, they advocates treating them as Gods themselves. In stead of killing them, they could very well give them in adoption to those issueless couples, who are longing for a child. There is no meaning in killing innocent children. They shall not be nipped (killed) at the bud and prevent blossoming of 'Karuthammas'. 55. In the result, this Criminal Appeal is dismissed, confirming the conviction and sentences imposed upon the appellant in S.C.No.102 of 2009 on 30.09.2010 by the learned Principal Sessions Judge, Virudhunagar Sessions Division at Srivilliputtur. mvs/sj To (1) The Principal Sessions Judge, Srivilliputtur. (2) The District Collector, Virudhunagar District, Virudhunagar. (3) The Superintendent of Police, Virudhunagar District, Virudhunagar. (4) The Superintendent of Prisons, Central Prison, Madurai. (5) The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. (6) The Inspector of Police, Thalavaipuram Police Station Thalavaipuram, Virudhunagar District.

whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. =even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010 V.D. BHANOT ... PETITIONER Vs. SAVITA BHANOT ... RESPONDENT O R D E R ALTAMAS KABIR, J. 1. The Special Leave Petition is directed against the judgment and order dated 22nd March, 2010, passed by the Delhi High Court in Cr.M.C.No.3959 of 2009 filed by the Respondent wife, Mrs. Savita Bhanot, questioning the order passed by the learned Additional Sessions Judge on 18th September, 2009, 2 dismissing the appeal filed by her against the order of the Metropolitan Magistrate dated 11th May, 2009. 2. There is no dispute that marriage between the parties was solemnized on 23rd August, 1980 and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006, the Respondent filed a petition before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as the "PWD Act", seeking various reliefs. By his order dated 8th December, 2006, the learned Magistrate granted interim relief to the Respondent and directed the Petitioner to pay her a sum of Rs.6,000/- per month. By a subsequent order dated 17th February, 2007, the Magistrate passed a protection/residence order under Sections 18 and 19 of the above Act, 3 protecting the right of the Respondent wife to reside in her matrimonial home in Mathura. The said order was challenged before the Delhi High Court, but such challenge was rejected. 3. In the meantime, the Petitioner, who was a member of the Armed Forces, retired from service on 6th December, 2007, and on 26th February, 2008, he filed an application for the Respondent's eviction from the Government accommodation in Mathura Cantonment. The learned Magistrate directed the Petitioner herein to find an alternative accommodation for the Respondent who had in the meantime received an eviction notice requiring her to vacate the official accommodation occupied by her. By an order dated 11th May, 2009, the learned Magistrate directed the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, which she claimed to be her permanent matrimonial home. The learned 4 Magistrate directed that if this was not possible, a reasonable accommodation in the vicinity of Nirman Vihar was to be made available to the Respondent wife. She further directed that if the second option was also not possible, the Petitioner would be required to pay a sum of Rs.10,000/- per month to the Respondent as rental charges, so that she could find a house of her choice. 4. Being dissatisfied with the order passed by the learned Metropolitan Magistrate, the Respondent preferred an appeal, which came to be dismissed on 18th September, 2009, by the learned Additional Sessions Judge, who was of the view that since the Respondent had left the matrimonial home on 4th July, 2005, and the Act came into force on 26th October, 2006, the claim of a woman living in domestic relationship or living together prior to 26th October, 2006, was not maintainable. The learned Additional Sessions Judge was of the view 5 that since the cause of action arose prior to coming into force of the PWD Act, the Court could not adjudicate upon the merits of the Respondent's case. 5. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis-`-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the 6 Constitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Respondent wife on merits. 7 6. As indicated hereinbefore, the Special Leave Petition is directed against the said order dated 22nd March, 2010, passed by the Delhi High Court and the findings contained therein. 7. During the pendency of the Special Leave Petition, on 15th September, 2011, the Petitioner appearing in-person submitted that the disputes between him and the Respondent had been resolved and the parties had decided to file an application for withdrawal of the Special Leave Petition. The matter was, thereafter, referred to the Supreme Court Mediation Centre and during the mediation, a mutual settlement signed by both the parties was prepared so that the same could be filed in the Court for appropriate orders to be passed thereupon. However, despite the said settlement, which was mutually arrived at by the parties, on 17th January, 2011, when the matter was listed for orders to be passed on the settlement arrived at 8 between the parties, an application filed by the Petitioner was brought to the notice of the Court praying that the settlement arrived at between the parties be annulled. Thereafter, the matter was listed in-camera in Chambers and we had occasion to interact with the parties in order to ascertain the reason for change of heart. We found that while the wife was wanting to rejoin her husband's company, the husband was reluctant to accept the same. For reasons best known to the Petitioner, he insisted that the mutual settlement be annulled as he was not prepared to take back the Respondent to live with him. 8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming 9 into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005. 9. On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the Petitioner at Mathura, being his official residence, while in service. After more than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum of 10 Rs.6,000/- which the Petitioner was directed by the Magistrate by order dated 8th December, 2006, to give to the Respondent each month. By a subsequent order dated 17th February, 2007, the Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the Respondent wife to reside in her matrimonial home in Mathura. Thereafter, on the Petitioner's retirement from service, the Respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum of Rs.10,000/- per month to the Respondent towards rental charges for acquiring an accommodation of her choice. 10. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005, 11 which defines "domestic violence" in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court. However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified. We, therefore, modify the order passed by the High Court and direct that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under Section 19 of the PWD Act, and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate and 12 in terms of the said order, the Respondent is receiving a sum of Rs.6,000/- per month towards her expenses. 11. Accordingly, in terms of Section 19 of the PWD Act, 2005, we direct the Petitioner to provide a suitable portion of his residence to the Respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the Respondent, within 29th February, 2012. The said portion of the premises will be properly furnished according to the choice of the Respondent to enable her to live in dignity in the shared household. Consequently, the sum of Rs.10,000/- directed to be paid to the Respondent for obtaining alternative accommodation in the event the Petitioner was reluctant to live in the same house with the Respondent, shall stand reduced from Rs.10,000/- to Rs.4,000/-, which will be paid to the Respondent in addition to the sum of 13 Rs.6,000/- directed to be paid to her towards her maintenance. In other words, in addition to providing the residential accommodation to the Respondent, the Petitioner shall also pay a total sum of Rs.10,000/- per month to the Respondent towards her maintenance and day-to-day expenses. 12. In the event, the aforesaid arrangement does not work, the parties will be at liberty to apply to this Court for further directions and orders. The Special Leave Petition is disposed of accordingly. 13. There shall, however, be no order as to costs. ...................................................J. (ALTAMAS KABIR) New Delhi ...................................................J. Dated:07.02.2012 (J. CHELAMESWAR)

the Customs Excise & Service Tax Appellate Tribunal, New Delhi (for short "the Tribunal"). By the impugned order the Tribunal has quashed the additional excise duty demand of `9,34,89,367/- under Section 11A of the Act; penalties of `1.5 crores each on respondent Nos.1 and 2 1 =whether the Assessee and Heinz are related persons. It based its decision solely on the observation made by the Adjudicating Authority "that the status of the Assessee was not better than that of a hired labour". We are, therefore, of the opinion that in the light of the above discussion, it would be necessary for the Tribunal to examine in depth the agreement between the Assessee and Heinz as also any other additional material, the 16

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6539-6540 OF 2010 COMMISSIONER OF CENTRAL EXCISE, -- APPELLANT FARIDABAD VERSUS M/S. FOOD & HEALTHCARE -- RESPONDENTS SPECIALITIES & ANR. JUDGMENT D.K. JAIN, J.: 1. These appeals under Section 35L(b) of the Central Excise Act, 1944 (for short "the Act") are directed against a common final order, dated 2nd February 2005 in Appeal No. E/5261-62/04-NB(A), passed by the Customs Excise & Service Tax Appellate Tribunal, New Delhi (for short "the Tribunal"). By the impugned order the Tribunal has quashed the additional excise duty demand of `9,34,89,367/- under Section 11A of the Act; penalties of `1.5 crores each on respondent Nos.1 and 2 1 under Rule 173Q of the Central Excise Rules, 1944 (for short "the 1944 Rules") and Rule 25(1) of the Central Excise Rules, 2001 (for short "the 2001 Rules") read with Section 38A of the Act and a penalty of `2 crores under Rule 209A of the 1944 Rules and Rule 26 of 2001 Rules read with Section 38A of the Act on Respondent No. 2 as confirmed by the Deputy Commissioner of Central Excise. 2. Succinctly put, the material facts giving rise to the present appeals are as under: Respondent No.1--M/s Food & Healthcare Specialities (for short "the Assessee") was engaged in the blending and packing of `Glucon D' for M/s Heinz India Pvt. Ltd. (for short "Heinz"), respondent No.2 in these appeals, pursuant to an agreement commencing from 1st March 2000. Under the agreement, Heinz was to supply raw material, packing material and the technical know-how to the Assessee for the blending and packing of the said product. From March 2000 to September 2000, the Assessee paid excise duty on the basis of wholesale price of the product at the depots of Heinz. However, for the period commencing from October 2000, they filed price declarations seeking to modify the assessable value of the product as the aggregate of cost of raw material, packing material and their job work 2 charges and started paying duty on the same. During the course of investigations undertaken by the revenue, it was found that the said product was also being processed at the Aligarh factory of Heinz and the duty on those clearances was being paid at the assessable value/depot sale price of Heinz. Consequently, three notices were issued to the Assessee for the period October 2000 to December 2000; January 2001 to June 2001 and July 2001 to February 2002, to show-cause as to why the assessable value declared by them be not rejected and the price declarations submitted by them be not amended by determining the assessable value on the basis of the sale price fixed by Heinz at its depots and the duty so paid be not recovered along with penalty under Rule 173Q of the 1944 Rules. Upon consideration of the cause shown by the Assessee, the Adjudicating Authority, by its order dated 31st August 2004, confirmed the differential demand indicated in the show cause notices and imposed the aforesaid penalties on the Assessee as also on Heinz. On appeals preferred against the said order, the Tribunal, by an exceptionally short order, set aside the order-in-original, concluding that since the Adjudicating Authority has itself given a specific finding that the status of the Assessee was not better than that of hired labour and Heinz is the manufacturer, the duty is leviable only on the manufacturer. Being aggrieved by the dismissal of its appeal 3 under Section 35G of the Act by the High Court, as not maintainable, the revenue is before us in these appeals. 3. Mr. B. Bhattacharyya, learned Additional Solicitor General appearing for the appellant, referring to several clauses of the agreement between the Assessee and Heinz, in particular, clauses (d), (1), (2), (5), (7), (9),(13), (15) and (16), vehemently submitted that the relationship between the Assessee and Heinz was one of principal and agent and not of principal to principal and therefore, the price at which, Heinz sold `Glocon-D' in the wholesale market must be taken as the assessable value. According to the learned counsel, Heinz had complete control over the activities of the Assessee, who was merely a job worker. To bring home his point that the Assessee was merely an extended arm of Heinz, he laid emphasis on the fact that processed `Glocon- D' was stored at the same premises from where Heinz was operating; Heinz had also taken an exemption from registration under Rule 9(2) of the erstwhile Central Excise (No.2) Rules, 2001, in terms of Notification No. 36/2001 dated 26th June 2001, which was available to a manufacturer who got his goods manufactured on his account from any other person, subject to the condition that the said manufacturer authorised the person, who actually manufactured or fabricated the said goods, to comply with all the procedural 4 formalities under the Act and the rules made thereunder, in respect of the goods manufactured on behalf of the said manufacturer. Relying heavily on the decision of this Court in Commissioner of Central Excise, Indore Vs. S. Kumars Ltd. & Ors.1, wherein dealing with the question of assessable value of the processed goods in relation to the processor the earlier decisions of this Court in M/s Ujagar Prints & Ors. (II) Vs. Union of India & Ors.2 (for short "Ujagar Prints (II)"), M/s Ujagar Prints & Ors. (III) Vs. Union of India & Ors.3 (for short "Ujagar Prints (III)"), Empire Industries Limited & Ors. Vs. Union of India & Ors.4 and Pawan Biscuits Co. Pvt. Ltd. Vs. Collector of Central Excise, Patna5, were discussed. Learned counsel argued that the formula laid down in the Ujagar Prints (II) or (III) would not apply to the fact-situation. It was stressed that having failed to examine the relationship between the Assessee and Heinz, the Tribunal's order deserved to be set aside and the matter was fit to be remitted back to the Tribunal for fresh adjudication on the touchstone of the ratio of S. Kumars. 1 (2005) 13 SCC 266 2 (1989) 3 SCC 488 3 (1989) 3 SCC 531 4 (1985) 3 SCC 314 5 (2000) 6 SCC 489 5 4. Per Contra Mr. V. Lakshmi Kumaran, learned counsel appearing on behalf of the respondents submitted that in the show cause notice there was no allegation that the Assessee and Heinz are related persons and therefore, Section 4 (1)(b) of the Act could not be invoked to determine the assessable value. It was asserted that in reply to the show cause notice, it was clearly stated that apart from the fact that dealings between the Assessee and Heinz were on principal to principal basis, the Assessee was also processing goods for other manufacturers. In support of this argument, learned counsel relied upon clause 22 of the agreement between the said parties, which stipulated that: "Nothing herein contained shall constitute or be deemed to or is intended to constitute F&HS as an agent of Heinz. It is hereby expressly agreed and declared that F&HS shall not at any time- a) Enter into a contract in the name of or purporting to be made on behalf of Heinz. b) .............................................................." It was argued that the clause clearly shows that the parties were at arm's length and the Assessee was processing `Glucon-D' only on job-work basis. It was thus asserted that dealings between the Assessee and Heinz being on principal to principal basis, the principle laid down in Ujagar Prints (II), as clarified in Ujagar Prints (III), for determining the assessable value, was on 6 all fours with the fact-situation at hand and as such the ratio of the judgment in S. Kumars will not apply. In the compilation filed on behalf of the Assessee, reliance is also placed on Circular No.: 619/10/2002-CX dated 19th February 2002, which clarifies that even after the introduction of new valuation provisions with effect from 1st July 2000, in respect of goods manufactured on job-work basis, valuation would be governed by Rule 11 read with Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (for short "the 2000 Rules") and the decisions of this Court in Ujagar Prints II and Pawan Biscuits. According to the learned counsel, the issue raised by the revenue stands concluded by the ratio of Pawan Biscuits, and therefore, the appeals deserve to be dismissed. 5. The principles of valuation of excisable goods for the purpose of charging excise duty are contained in Section 4 of the Act (as amended with effect from 1st July 2000), which, insofar as it is relevant, reads as follows: "4. Valuation of excisable goods for purposes of charging of duty of excise.--(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall-- (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of goods are not related and the price is the sole consideration for the sale, be the transaction value; 7 (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. (2) .................................................................... (3) For the purposes of this section,-- (a) ............................................................ (b) persons shall be deemed to be "related" if-- (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is a relative and distributor of the assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation.--In this clause-- (i) "inter-connected undertakings" shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and (ii) "relative" shall have the meaning assigned to it in clause (41) of section 2 of the Companies Act, 1956 (1 of 1956); (c) ............................................................ (d) "transaction value" means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not 8 limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods." The new Section 4 of the Act, substituted w.e.f 1st July 2000, and material for our purpose, prescribes that the value of excisable goods shall be the transaction value subject to satisfying the conditions that: (i) the price must be the sole consideration; (ii) the buyer must not be a related person and (iii) the goods must be sold by the assessee for delivery at the time and place of removal. The basic principle underlying Section 4(1)(a) of the Act is the transaction value as defined in clause (d) of sub-section 3 of Section 4 of the Act, which inter-alia, means the price actually paid or payable for the goods when sold, provided the assessee and the buyer of goods are not related. Clause (b) of sub-section (3) of Section 4 of the Act, inter-alia, stipulates that person shall be deemed to be "related" if they are so associated that they have interest, directly or indirectly, in the business of each other. It is clear that if the assessee and the buyer are related, valuation has to be under Section 4(1) (b) of the Act read with the 2000 Rules. We may, however, note that conceptually there is no significant change in the definition of "related person" in the new and repealed Section 4 of the Act. 9 6. Thus, the pivotal question on which learned counsel for both the parties addressed us, is whether the Assessee was merely a processor of `Glucon-D', independent of Heinz or it was related to Heinz. In other words, whether the relationship between the Assessee and Heinz was one of principal to principal or that of an agent and principal. As aforesaid, the stand of the revenue is that the Assessee, as the processor, is not independent of Heinz and therefore, ratio of Ujagar Prints (III) would not apply. It is evident from the order of the Tribunal that it has not addressed this aspect of the matter in detail, and has not considered whether the Assessee and Heinz were related persons. Nevertheless, since the rival contentions urged before us mainly related to the question as to whether the formula laid down in Ujagar Prints (III) and reiterated in Pawan Biscuits, would apply or the principle enunciated in S. Kumar will govern the present case, it will be useful to notice the principle enunciated in Ujagar Prints (II) and (III) as also the ratio of S. Kumar. 7. In Ujagar Prints (II), a Constitution Bench of this Court was called upon to consider the correctness of the view taken by this Court in Empire Industries. In Empire Industries, it was held that the Central Excises and Salt and Additional Duties of Excise (Amendment) Act, 10 1980, by which, the processes of bleaching, dying and printing were brought within the definition of `manufacture' for the purposes of the Central Excise and Salt Act, 1944 and the Additional Duties of Excise (Goods of Special Importance) Act, 1957 were constitutionally valid. While upholding the validity of the Amendment Act, it was observed that when the textile fabrics are subjected to the processes like bleaching, dyeing and printing etc. by independent processes, whether on their own account or on job charges basis, the value for the purposes of assessment under Section 4 of the said Act will not be the processing charges alone but the intrinsic value of the processed fabrics which is the price at which such fabrics are sold for the first time in the wholesale market. The principle enumerated in Section 4(1)(a) of the Act was applied to the processed goods. In other words, the assessable value of the processed goods, as far as the processor was concerned, had to be the same irrespective of the fact whether the processor manufactures the goods and then processes them itself or gives the goods and merely undertakes processing before returning the same to the manufacturer/owner. That common norm was the wholesale price. 11 8. On an application filed for clarification of the judgment in Ujagar Prints (II), this Court by a short order in Ujagar Prints (III) clarified as follows: "1...it is made clear that the assessable value of the processed fabric would be the value of the grey cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses whatever these may be, which will either be included in the price at the factory gate or deemed to be the price at the factory gate for the processed fabric. The factory gate here means the "deemed" factory gate as if the processed fabric was sold by the processor..." The Court went on to explain: "2. If the trader, who entrusts cotton or man-made fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the excise authorities as the assessable value of the processed fabric and excise duty would be charged to the processor on that basis provided that the declaration as to the price at which he would be selling the processed goods in the market, would include only the price or deemed price at which the processed fabric would leave the processor's factory plus his profit..." 9. The decision in Ujagar Prints (III) was subsequently followed by this Court in Pawan Biscuits. In that case, the Tribunal had held that the assessee was, in reality, an agent of Britannia Industries Ltd. and, 12 therefore, the price at which Britannia was selling the manufactured goods in the wholesale market was to be taken as the assessable value. The decision of the Tribunal was reversed by this Court. It was found that the agreement between Pawan Biscuits and Britannia indicated that their relationship was one of principal to principal and not that of principal and agent and also that the assessee (Pawan Biscuits) could manufacture biscuits of other brands and sell them. Observing that Pawan Biscuits had been established much prior to its agreement with Britannia, it was held that the decisions in Ujagar Prints (II) and (III) could not be factually distinguished. In short, it was held that for the purpose of determining assessable value, it is necessary to include the processor's expenses, costs, and charges plus profit, but it is not necessary to include the trader's profits who gets the fabrics processed, because those would be post-manufacturing profits. 10. A similar issue again came up for consideration of this Court in S. Kumars. In that case, the assessee was processing grey fabrics. Sometimes the grey fabrics were processed on their own account and sometimes the grey fabrics were received for processing on job charge basis from others, referred to in the judgment as the merchant manufacturers. The assessee paid excise duty on the fabrics processed 13 by it treating the value of the processed fabric as being that at which, the merchant manufacturers were selling the processed goods. This, according to the assessee was in accordance with the decision in Empire Industries. However, on the fabrics processed by it which had been received from the merchant manufacturers, the assessee valued the processed goods on the basis of the cost of grey fabrics plus the processing charges as well as its manufacturing expenses and profits. In other words, the price at which the merchant manufacturers were selling the processed goods was not taken into consideration. According to the assessee, this was done in light of the decision in Ujagar Prints (II) and (III). A notice was issued to the assessee to show-cause as to why differential duty of Excise along with penalty be not recovered from it as the assessee and the merchant manufacturers were all firms and companies having a common management and control with some of them selling grey fabrics to the assessee, which after processing the fabrics was sold to some independent dealers. All such independent dealers as well as the merchant manufacturers were described as `S. Kumars' and the revenue asserted to treat the price charged by the merchant manufacturers from independent dealers as the assessable value of the processed fabrics and to levy excise duty 14 thereon. The assessee denied that the merchant manufacturers were related persons and thus disputed the basis on which claim for additional excise duty was made. The stand of the assessee was that by virtue of the decision of this Court in Ujagar Prints (III), they were liable to treat the notional sale by the assessee to the merchant manufacturers as the relevant point for determining the assessable value. Examining the provisions of Section 4 of the Act, as it existed at the relevant time, with reference to the Central Excise Valuation Rules, 1975 and the decisions of this Court in Ujagar Prints (II) and Ujagar Prints (III) and Pawan Biscuits, the Court held as follows: "We, therefore, do not agree that Ujagar Prints (III) would apply even to a processor who is not independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is not a mere processor but also a merchant manufacturer who purchases/manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is not of a processor but of a merchant manufacturer and a trader. If the transaction is between related persons, the profit would not be "normally earned" within the meaning of Rule 6(b)(ii). If it is established that the dealings were with related persons of the manufacturer, the sale of the processed fabrics would not be limited to the formula prescribed by Ujagar Prints (III) but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints (II), incorporating t he arms length principle." (Emphasis supplied by us) 15 11. It is manifest from the above that the only distinctive feature of S. Kumars in comparison with Ujagar Prints (II) and (III) is the emphasis on the factum of relationship between the parties viz., the processor and the merchant manufacturers/traders, in the former. In short, S. Kumars holds that if the processor-assessee is not at arm's length with the merchant manufacturer and is a related person, the formula prescribed in Ujagar Prints (III) would not apply and assessable value for the purpose of levy of excise duty will have to be determined in terms of the ratio of S. Kumar i.e. in accordance with the procedure contemplated in Section 4(1)(b) of the Act read with the relevant valuation Rules. We deferentially concur with the ratio of S. Kumars. 12. In the present case, as aforesaid, neither did the Tribunal address this aspect of the matter, nor did it consider whether the Assessee and Heinz are related persons. It based its decision solely on the observation made by the Adjudicating Authority "that the status of the Assessee was not better than that of a hired labour". We are, therefore, of the opinion that in the light of the above discussion, it would be necessary for the Tribunal to examine in depth the agreement between the Assessee and Heinz as also any other additional material, the 16 parties may like to adduce and determine the question whether or not both of them are related persons. 13. Resultantly, the appeals are allowed and the matter is remanded back to the Tribunal for the purpose of determining the nature of relationship between the Assessee and Heinz. If it is found that they are not related persons, then the present decision of the Tribunal will stand affirmed. However, if the Tribunal finds that the Assessee and Heinz are related, it shall remit the matter to the Adjudicating Authority for fresh determination of the assessable value of the goods in question in accordance with law. However, having regard to the facts and circumstances of the case, there will be no order as to costs. ............................................. (D.K. JAIN, J.) ............................................. (ANIL R. DAVE, J.) NEW DELHI; FEBRUARY 13, 2012. RS 17 18

Representation of the People Act (43 of 1951), s. 123(4)- Elections-Corrupt Practice-Statement alleging a candidate to be greatest of all thieves-Whether a statement of fact or of opinion only-Candidate with whose consent such statement is made must believe it to be true-Nature of onus in proving such belief.

The appellant was the winning candidate In an election to the Rajasthan Legislative Assembly. The respondent who was one of the unsuccessful candidates filed an'-election petition and alleged therein that the appellant was guilty of corrupt practice within the meaning of a. 123(4) of the Representation of the People Act, 1951. The corrupt practice alleged was that at a meeting presided over by the appellant a poem was read out which represented the respondent to be the greatest of all thieves'. The Election Tribunal as well as the High Court gave their findings against the 'appellant who came to this Court with certificate. It was contended on behalf of the appellant that : (i) the statement in question was not a statement of fact but only of opinion, (ii) No attempt had been made to prove that the person who recited the poem containing the statement believed it to be false or did not believe that it was true, (iii) the onus to prove that corrupt practice had been committed lay on the respondent and that had not been discharged. HELD (i) The mere -absence of details as to time and place would not turn a statement of fact into a mere expression of opinion. [130 F-G] In the present case taking the poem as a whole there could be no doubt that when the respondent was called the greatest of all thieves there was a clear statement of fact about his personal character and conduct. [133 E-F] (ii) The appellant presided and his election agent was present at the meeting at which the poem in question was read.- The responsibility for the publication in the circumstances of the case was that of the appellant and it was the appellant's belief that mattered and not- the belief of the person who read it with the consent of the appellant. [135 E-G] (iii) The onus on an election petitioner under s. 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. This onus is very light and can be discharged by the complaining candidate swearing to that effect. Once that is done the burden shifts to the candidate, making the false statement of fact to show what his belief was. [136E-F] It was for the appellant to show either that the statement was true or that he believed it to be true. The appellant had failed to do so. The High Court therefore rightly held that the respondent had discharged the burden which lay on him. [137 A-B] Case law considered. 128 1967 AIR 808, 1967( 2 )SCR 127, , , PETITIONER: KUMARA NAND Vs. RESPONDENT: BRIJMOHAN LAL SHARMA DATE OF JUDGMENT: 29/11/1966 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. SHELAT, J.M. CITATION: 1967 AIR 808 1967 SCR (2) 127 CITATOR INFO : R 1969 SC1201 (42,54) D 1970 SC1231 (12) R 1990 SC1731 (9) ACT: Representation of the People Act (43 of 1951), s. 123(4)- Elections-Corrupt Practice-Statement alleging a candidate to be greatest of all thieves-Whether a statement of fact or of opinion only-Candidate with whose consent such statement is made must believe it to be true-Nature of onus in proving such belief. HEADNOTE: The appellant was the winning candidate In an election to the Rajasthan Legislative Assembly. The respondent who was one of the unsuccessful candidates filed an'-election petition and alleged therein that the appellant was guilty of corrupt practice within the meaning of a. 123(4) of the Representation of the People Act, 1951. The corrupt practice alleged was that at a meeting presided over by the appellant a poem was read out which represented the respondent to be the greatest of all thieves'. The Election Tribunal as well as the High Court gave their findings against the 'appellant who came to this Court with certificate. It was contended on behalf of the appellant that : (i) the statement in question was not a statement of fact but only of opinion, (ii) No attempt had been made to prove that the person who recited the poem containing the statement believed it to be false or did not believe that it was true, (iii) the onus to prove that corrupt practice had been committed lay on the respondent and that had not been discharged. HELD (i) The mere -absence of details as to time and place would not turn a statement of fact into a mere expression of opinion. [130 F-G] In the present case taking the poem as a whole there could be no doubt that when the respondent was called the greatest of all thieves there was a clear statement of fact about his personal character and conduct. [133 E-F] (ii) The appellant presided and his election agent was present at the meeting at which the poem in question was read.- The responsibility for the publication in the circumstances of the case was that of the appellant and it was the appellant's belief that mattered and not- the belief of the person who read it with the consent of the appellant. [135 E-G] (iii) The onus on an election petitioner under s. 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. This onus is very light and can be discharged by the complaining candidate swearing to that effect. Once that is done the burden shifts to the candidate, making the false statement of fact to show what his belief was. [136E-F] It was for the appellant to show either that the statement was true or that he believed it to be true. The appellant had failed to do so. The High Court therefore rightly held that the respondent had discharged the burden which lay on him. [137 A-B] Case law considered. 128 JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2135 of 1966. Appeal from the judgment and order dated January 27, 1965 of the Rajasthan High Court in D. D. Election Appeal No. 93 of 1963. R. K. Garg, D. P. Singh and S. C Agarwal, for the appellant. B.D. Sharma and L. D. Sharma, for the respondent. The Judgment of the Court was delivered by Wanchoo, J. This is an appeal 'on a certificate granted by the Rajasthan High Court and arises in the following circumstances. There was an election to the Rajasthan Legislative Assembly from the Beawar constituency at the general election in 1962. A number of persons stood for election, two of whom were the appellant and the respondent. The appellant secured the highest number of votes while the respondent came second. The appellant was declared successful at the election and this led to an election petition by the respondent. A number of grounds were taken in the election petition for invalidating the election of the appellant; but in the present appeal we are concerned with one ground and shall refer to that only. That ground was that the appellant had commited a corrupt practice as defined in s. 123(4) of the Representation of the People Act, No. 3 of 1951, (hereinafter referred to as the Act). The case of the respondent was that the appellant had published a statement of fact in relation to the respondent's personal character or conduct and that statement of fact was false, and the appellant either believed it to be false or did not believe it to be true. The statement was reasonably calculated to prejudice the prospects of the respondent's election. In consequence, the respondent prayed that the election of the appellant be set aside. It is unnecessary to refer to the reply of the appellant to the above contention, for learned counsel for the appellant does not dispute the findings of fact arrived at by the High Court. It will therefore be enough to refer to these findings with respect to the corrupt practice alleged by the respondent. The High Court found that the appellant was responsible for the publication of a poem entitled Mang raha hoon de bhai vote : (I am an applicant and request your vote). This poem was composed by one Avinash Chander of Beawar. It was not disputed before the High Court that the poem in question was aimed at the respondent and he was the target of the attack made therein. The High Court also found that the poem in question was read at an election meeting on February 21, 1962 at which the appellant himself was presiding. Avinash Chander had recited this poem at that meeting. It was also found 129 that the booklet containing the poem was printed at the instance of one Chand Mohammad, who was polling and counting agent of the appellant and who had also paid the author (Avinash Chander) something for it. The appellant had seen the booklet containing this poem sometime before the meeting of February 21, 1962 and had read it. Further the High Court held that the booklet containing the poem was printed with the knowledge and approval of the election agent of the appellant. Finally, the High Court held that the poem was recited at the meeting of February 21, 1962 by Avinash Chander and the appellant was presiding at that meeting and Kalyan Singh, his election agent, was also present in it, and thus there was sufficient publication within the meaning of s. 123(4) of the Act, for which the appellant was responsible. The Tribunal had held that the appellant was responsible for the publication of the booklet containing this poem and it contained statements of fact which the appellant either believed to be false or did not believe to be true. These statements of fact were held to be in relation to the personal character or conduct of the respondent and were reasonably calculated to prejudice the prospects of the respondent's election. In consequence the Tribunal had held the appellant guilty of the corrupt practice within the meaning of s. 123(4) and allowed the election petition. The appellant then went in appeal to the High Court and three main points were urged on his behalf there. In the first place, it was contended that there was no statement of fact at all in the poem in question. Secondly, it was contended that even if there was any statement of fact in the poem it should have been proved that Avinash Chander who had recited it either believed it to be false or did not believe it to be true and that no attempt was made to prove this. Lastly, it was contended that the onus to prove that corrupt practice had been committed lay on the respondent and that had not been discharged. The High Court rejected all the three contentions and held that there was one statement of fact in the poem in question. That statement was either believed to be false or was not believed to be true by the appellant. The High Court also held that the belief of Avinash Chander was immaterial and the respondent had discharged the onus that lay on him. In the result the appeal was dismissed. The appellant then applied for and obtained a certificate from the High Court, and that is how the matter has come before us. The same three points which were raised before the High Court have also been raised before us in the appeal. The first question that we shall consider is whether there was a statement of fact at all in the poem in question. The contention on behalf of the appellant is that there was no statement of fact with respect to the character or conduct of the respondent in the poem and that it merely expressed opinions which did not come within the ambit of s. 123(4 130 Now there is no doubt that the poem was aimed at the respondent which is made clear by the second stanza which starts with the words "Pakka Pandit Sharma Hoon": (I am pucca Pandit Sharma). It is not in dispute that the respondent was the only Sharma who contested the election. Considering the heading of the poem to which we have already referred it is obvious that the respondent was depicted therein as requesting for votes. In the sixth stanza, the respondent is made to say: sab choron ka sartaj: (I am the greatest of all thieves); and it is this phrase which the High Court has held to be a statement of fact. We are of opinion that this passage states as a fact that the respondent is the greatest of all thieves, though in the poem the statement is put as if it was coming from the mouth of the respondent. The question is whether a statement to the effect that one of the candidates standing for election is the greatest of all thieves is a statement of fact or is a mere expression of opinion about the candidate. It is not in dispute that if it is a statement of fact it is clearly in respect of the personal character or conduct of the candidate concerned. It seems to us that if a candidate is called the greatest 0 all thieves, the person saying so is making a statement of fact. The statement that a person is a thief or the greatest of all thieves cannot in our view be a mere opinion, and we agree with the High Court that when the respondent was called the greatest of all thieves a statement of fact was being made as to his personal character or conduct. It is however urged on behalf of the appellant that there are no details as to the time when the respondent committed thefts or the place where he committed them, and therefore a mere bald statement that the respondent was a thief or the greatest of all thieves could be an expression of opinion only and not a statement of fact. We are unable to accept this. Section 123(4) in our opinion does not require that when a statement of fact is made as to the personal character or conduct of a candidate details which one generally finds (for example) in a charge in a criminal case, must also be there and that in the absence of such details a statement to the effect that a person is (for example) a thief or murderer is a mere expression of opinion. To say that a person is a thief or murderer is a statement of fact and the mere absence of details as to time and place would not turn a statement of fact of this nature into a mere expression of opinion. Learned counsel for the appellant relies on a number of cases in support of his contention that such a bald statement without particulars could not be a statement of fact. The first case to which reference may be made is Ellis v. National Union of Conservative and Constitutional Association.(1) It has not been possible for us to get the report of this case. But in Parker's Election Agent and 1. 109, Law Times Journal 493; & Times Newspaper, October 3rd, 1900:44 Sol. Journ. 750. 131 Returning Officer, 6th Edition, p. 91, it has been mentioned. There it is stated that "a statement which imputed that the candidate was a traitor, and was one of certain persons who were in correspondence with the enemy shortly before the South African war broke out in 1899" was not held to be a statement of fact and did not come within the mischief of the relevant provision of English law relating to elections. But in Rogers on Elections, Vol. 11, 20th Edition, p. 368, the same case is referred and the facts given there seem to be different. It is stated there that a poster was published stating that Radical members of the House of Commons were in correspondence with the enemy, and this statement was held not to come within the ambit of the law on the ground that it did not state that the plaintiff was in correspondence with the Boers. As the report is not available it is very difficult to judge what exactly was decided in that case. If the facts are as given in Rogers, it seems that there was no statement of fact with respect to the candidate in that case and all that was said was that Radical members of the House of Commons were in correspondence with the Boers, and the candidate happened to be one of the Radical members. If that is so, it was not clearly a statement of fact with respect to the candidate in particular and that case would not be of any assistance to the appellant. The next case to which reference may be made is A. S. Radha- krishna Ayyar v. Emperor.(1) It was held there that for the purpose of s. 171-G of the Indian Penal Code, something must be stated as a fact and not as a general imputation or as a matter of opinion. In that case, a candidate was prosecuted under s. 500 of the Indian Penal Code, and he took the plea that he should have been prosecuted under s. 171-G of the Indian Penal Code and that this could not be done without the sanction of government, which was not obtained. In that case a defamatory document was published with respect to the candidate. That document contained only one or two statements of fact, but the bulk of it consisted of mere general expression, and it was held that a prosecution under s. 500 of the Indian Penal Code was not barred. But one of the statements which was held not to be a statement of fact was this, namely, they are misappropriating government money by committing forgeries. Now it must be remembered that the question there was whether prosecution under s. 171-G would lie and the High Court was of the view that it would not and gave its reasons thus: "When it is alleged that a man does many kinds of harm to the poor, that he misappropriates government money, that he commits forgery and so forth, how would it be possible, in the absence of particulars, to prove prima facie that the allegations are false?" Consequently, the High Court held that the offending document on the whole was one to which s. 171-G could not be applied. We (1) A.I.R. 1932 Mad. 511. 132 are of opinion that the view taken by the High Court, at any rate, with respect to 'the allegation that the candidate in question was misappropriating government money was not a statement of fact is not correct. The next case to which reference may be made is Narayana- swamy Naichker and Others v. D. Devaraja Mudaliar & Others.(1) There also the question was whether a person should be prosecuted under s. 500 and not under s. 171-G of the Indian Penal Code. This case does not seem to support the appellant, for it was held there that the statement that the candidate had committed fraud in respect of money in the fund office and was removed by the general body or by the department, was a statement of fact. The next case to which reference may be made is Hajee Moham- mad Kadir Sheriff v. Rahimatullah Sahib.(2) In that case also the question was whether the prosecution should have been under s. 500 or under s. 171-G of the Indian Penal Code. The statement there was that the candidate was a leper, and the High Court held that this was not a case which fell within s. 171-G but no reasons were given for the view. It seems to us that this case does not help the appellant for the allegation that a person is a leper cannot be said to relate to personal character or conduct of the candidate; it only mentions a physical defect. The last case to which reference may be made is V. P. Shan- mugam and Another v. Thangavelu.(3) That also dealt with s. 171-G of the Indian Penal Code. In that case, a printed notice was published containing a series of rhetorical questions viz. whether it was true or not that the candidate used to receive money and withdraw from contest in elections. The exact words used are not to be found in the report and the High Court seems to have held that as no particulars were mentioned it would not be a statement of fact. It seems to us however that if an allegation is made that a candidate had withdrawn from context at previous elections after taking money that would be a statement of fact and the view taken by the High Court is not correct. The question whether a particular statement with respect to a candidate at an election is a statement of fact or is a mere expression of opinion would depend on the facts of each case and will have to be judged in the circumstances in which the statement was made and in the context of the writing in which it appears, in case it is part of a writing. But it is not in our opinion correct to say that a statement with respect to a candidate can never be a statement of fact, unless it is accompanied by particulars as to time, place and date which one finds (for example) in a charge-sheet in a crimi- (1) A.I.R. [1936] Madras 360. (2) A.I.R. 1940, Madras 230. (3) A.I.R. 1958, Madras 240. 133 nal case. Whether in a particular setting a bald statement without particulars would be a mere expression of opinion or would amount to a statement of fact would depend upon the circumstances of each case and the court will have to consider the setting in which the statement was made and the entire writing in the context of which it appears and the nature of the statement itself before it comes to the conclusion that it is a statement of fact or an expression of opinion. Where particulars are given it may not be difficult to come to the conclusion that the statement is a statement of fact; but even a bald statement without particulars may be a statement of fact and not a mere expression of opinion. It seems to us that mere absence of particulars would not necessarily mean that a statement without particulars is always an expression of opinion. Take a case where a candidate is said to be a murderer. The mere fact that the name of the victim or the date when the murder took place or the place where it happened is not mentioned, would not detract from the statement being a statement of fact. At the same time a similar bald statement that a candidate is a murderer in the context in which it appears if it is in writing may not be a statement of fact and may be a mere matter of opinion, as, for, example, where it is said that a candidate is a murderer of all decencies in life. The question whether a bald statement amounts to a statement of fact or a mere expression of opinion would depend on the facts and circum- stances of each case and also on the setting in which the statement appears whether it is in writing or oral. In the present case, taking the poem as a whole there can be no doubt that when the respondent was called the greatest of all thieves there was a clear statement of fact that he was a thief or the greatest of all thieves and not a mere expression of opinion. This is the impression that one gets from reading the poem as a whole, and we agree with the High Court that in the setting in which the statement was made in the poem and in the circumstances in which it came to be made, there is no question of the statement being a matter of opinion; it was undoubtedly a statement of fact. We may in this connection refer to Inder Lal v. Lai singh,(1) where this Court held that an allegation to the effect that a candidate was purchaser of the opponents of the Congress by means of money, ,without any particulars as to who was purchased and when, was taken as a statement of fact relating to the personal conduct or character of the candidate. It is true that in that case the question was whether the statement was with respect to personal conduct or character of the candidate and there was no dispute that it was a statement of fact. Even so we are of opinion that that case shows that particulars are not necessary before a bald statement with respect to personal character or conduct of the candidate can be said (1) [1962] Supp. 3 S.C.R. 114. 134 to be a statement of fact. As we have said already, presence of particulars will make it easier to come to the conclusion that it is a statement of fact; but the absence thereof does not necessarily mean that it is always an opinion and can never be a statement of fact. It will all depend, as we have said already, on the facts and circumstances of each case. Then it is said that the Madras Hi Court had already taken a certain view as to the meaning of the words "statement of fact" under the election law as it was before the Act, and as the words in S. 123(4) of the Act are more or less similar to the earlier law it should be taken that the legislature had approved of the view taken by the Madras High Court which seems to suggest that particulars are necessary before a statement can be said to be a statement of fact. Reliance in this connection is placed on the following observations of Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd.(1) "It has long been a well established principle, to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously, been assigned to it." We are of opinion that this principle does not apply in the present. case. We are here concerned with the meaning of the words "statement of fact". This is not a phrase of doubtful meaning and merely because one High Court took one view it does not follow that when the Act was passed in 1951 the legislature intended that no statement can be a statement of fact unless particulars were mentioned therein. We therefore agree with the High Court that the statement that the respondent was the greatest of all thieves is a statement of fact in the facts and circumstances of this case and in the context in which the words appear in the poem. This takes us to the next point, namely, that it should have been proved that Avinash Chander who recited the poem at the meeting believed the statement to be false or did not believe it to be true and that on this point Avinash Chander was not even questioned though he appeared as a witness. The High Court has held that the belief of Avinash Chander is immaterial, and that it is the belief of the appellant that matters. We are of opinion that this view of the High Court is correct section 123(4) runs thus (1) [1933] A.C. 402, 411. 135 "(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. The sub-section requires; (i) publication of any statement of fact by a candidate, (ii) that fact is false, (iii) the candidate believes it to be false or does not believe it to be true, (iv) the statement is in, relation to the personal character or conduct of another candidate; and (v) the said statement is one being reasonably calculated to prejudice the prospects of the other candidate's election : (see Sheopat Singh v. Ram Pratap.(1). This case thus lays down that the person with whose belief the provision is concerned is ordinarily the candidate who, if we may say so, is responsible for the, publication. The responsibility of the candidate for the publication arises if he publishes the thing himself. He is equally responsible for the publication if it is published by his agent. Thirdly he is also responsible where the thing is published by any other person but with the consent of the candidate or his election agent. In all three cases the responsibility is of the candidate and it is ordinarily the candidate's belief that matters for this purpose. If the candidate either believes the statement to be false or does not believe it to be true he would be responsible under s. 123(4). In the present case the poem was not actually read by the appellant, but it was read in his presence at a meeting at which he was -presiding by Avinash Chander. In these circumstances the High Court was right in coming to the conclusion that the recitation of the poem by Avinash Chander at the meeting amounted to the publication of the false statement of fact contained in it by another person with the consent of the candidate, and in this case, even of his election agent who was also present at the meeting. But the responsibility for such publication in the circumstances of this case is of the candidate and it is the candidate's belief that matters and not the belief of the person who actually read it with the consent of the candidate. What would be the position in a case where the candidate had no knowledge at all of the publication before it was made need not be considered for that is not so here. It is not disputed in this case that the statement that the respondent was the greatest of all thieves, was false. It is, also not seriously challenged that the appellant did not believe it to be true' The contention that Avinash Chander's belief should have been proved must therefore fail. (1) [1965] 1 S.C.R. 175. 136 Then we come to the question of onus. In this connection reliance is placed on Dr. Jagjit Singh v. Giani Kartar Singh(1). In that case it was held that the onus to prove the essential ingredients prescribed by sub-s. (4) of s. 123 of the Act is on him who alleges publication of false statements of fact. The election petitioner has to prove that the impugned statement has been published by the candidate or his agent, or if by any other person, with the consent of the candidate or his election agent. He has further to show that the impugned statement of fact is false and that the candidate either believed that statement to be false or did not believe it to be true. It has further to be proved inter alia that the statement was in relation to the personal character or conduct of the complaining candidate. Finally, it has to be shown that the publication was reasonably calculated to prejudice the prospects of the complaining candidate's election. But though the onus is on the election petitioner to show all these things, the main things that the election petitioner has to prove are that such a publication was made of a statement of fact and that that statement is false and is with respect to the personal character or conduct of the election petitioner. The burden of proving that the candidate publishing the statement believed it to be false or did not believe it to be true though on the complaining candidate is very light and would be discharged by the complaining candidate swearing to that effect. Thereafter it would be for the candidate publishing the statement to prove otherwise. The question whether the statement was reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made would generally be a matter of inference. So the main onus on an election petitioner under s. 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate ,or his election agent and also to show that that statement was false and related to his personal character or conduct. Once that is proved and the complaining candidate has sworn as above indicated, the burden shifts to the candidate making the false statement of fact to show what his belief was. The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case. In the present case the main onus that lay on the respondent has been discharged. He has proved that there was a publication ,of the nature envisaged under s. 123(4) of the Act. He has also proved that the statement of fact was made with respect to him. He has further proved that that statement was false and related to his personal character or conduct. There can be no doubt that a statement of this nature calling one candidate a thief or the greatest -of all thieves is reasonably calculated to prejudice the prospects of (1) A.I.R. 1966 S.C. 773 137 this election. He further swore that the statement was false to the knowledge of the appellant and the latter did not believe it to be true. It was then for the appellant to show what his belief was. The burden having thus shifted we are of opinion that it was for the appellant to show either that the statement was true or that he believed it to be true. This the appellant has failed to do. The High Court therefore rightly held that the respondent had discharged the burden which lay on him. The appeal therefore fails and is hereby dismissed with costs. G.C. Appeal dismissed. M19 Sup. C. I./66--10 138

loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). = The case of the Complainant M/s Biswanath Traders before the State Commission was that they were storage agent of the State Civil Supply Corporation; in which capacity they had a storage godown in Jagathsinghpur District. Stocks of rice, wheat, sugar etc. stored in this godown were covered under a policy of protection against burglary and house breaking up to a limit of Rs.6 lakhs. The policy was taken on 15.7.1999 and was designed to indemnify the insured against any loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). =It is not the case of the appellant/National Insurance Company, that the burglary was occasioned by any act of commission or omission on the part of the complainant. Therefore, the question of violation of the terms of the policy does not arise. 13. As for resort to the exclusion clause 4 (a) to justify the repudiation, we note that the case of the appellant/insurance company does not travel beyond stating that the burglary occurred two days after the cyclone. The State Commission has therefore noted the absence of any material, which could suggest that the burglary happened because of the cyclone. It is also not the case of the appellant that the cyclone had so destroyed or damaged the godown as to expose the stocks to burglars. The Written Response of the OP (appellant before us) shows that the burglars had forced opened the grill gate to enter the godown. This kind of forcible entry could have taken place even before the cyclone. Therefore, in our view, the State Commission has rightly and justifiably rejected the argument of the insurance company and rejection of the claim by resort to exclusion 4(a). 14. In the result, we find no merit in this appeal.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 673 OF 2006 (Against the order dated 18.8.2006 in C.D. Case No.86 of 2001 of the State Commission, Orissa) National Insurance Company Ltd., Cuttack Divisional Office –II, Managalabag, Cuttack Through Regional Office –I, Jeewan Bharti Building, Connaught Circus, New Delhi- 110 001 ……….Appellant Versus M/s. Biswanath Traders Through its Proprietor, Mrs. Urmila Acharya, W/o Narayan Acharya, Vill. Okala, P.O. Kathamal, P.S. Tirtol, Jagatsinghpur Orissa .........Respondent BEFORE HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Kishore Rawat, Advocate For the Respondent : Mr.Suchit Mohanty, Advocate & Mr. G. Biswal, Advocate PRONOUNCED ON: 31.01.2012 ORDER PER MR.VINAY KUMAR, MEMBER This appeal is filed by the National Insurance Company Ltd. against the order of the Orissa State Consumer Disputes Redressal Commission in CD No.86 of 2001 pronounced on 18.8.2006. 2. The case of the Complainant M/s Biswanath Traders before the State Commission was that they were storage agent of the State Civil Supply Corporation; in which capacity they had a storage godown in Jagathsinghpur District. Stocks of rice, wheat, sugar etc. stored in this godown were covered under a policy of protection against burglary and house breaking up to a limit of Rs.6 lakhs. The policy was taken on 15.7.1999 and was designed to indemnify the insured against any loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). 3. On 29.10.1999, the area was hit by a cyclone. Two days later, on 31.10.1999 a theft took place, by breaking open the lock and grill of the godown. An FIR was lodged on the same day. Police investigation, which followed led to arrest of some persons and recovery of some stolen goods. The police thereafter filed a chargesheet against the concerned. In the meanwhile, the Complainant made a claim under the insurance policy on 8.11.1999, which was repudiated by the OP/National Insurance Company through their letter of 31.7.2001 i.e. after a lapse of 20 months. 4. The letter of the Insurance Company explained its decision to reject the claim in the following terms:- “Please refer Clause 4 (A) of Exclusion of Burglary and Housebreaking Policy (business premises) which states that “Loss or damage directly or indirectly proximately or remotely occasioned by cyclone or other convulsion of nature or atmospheric disturbance”. In view of the above exclusion of Burglary Policy we express our inability to accept the liability in the above claim.” 5. It is alleged by the Complainant that the grounds for rejection of the claim is flimsy, colourable and illegal, which has put the Complainant to financial and mental suffering. The Complainant therefore claimed a sum of Rs.6 lakhs with 18% interest from 31.10.1999, i.e. the date of the incident together with Rs.2 lakhs for loss of goodwill/mental agony and Rs.10,000/- towards costs. Per contra, the case of the National Insurance Company was that it is not a case of deficiency in service, but of consideration of the claim as per the terms of the contract. 6. The State Commission noted that there was no dispute about the stocks being covered under the policy. The fact of burglary on 31.10.1999 is also not denied by the OP, Insurance Company. It also noted that an FIR had been registered on the same day and investigation taken up by the Police. In the chargesheet, which was filed it was mentioned that local people numbering 2000 to 3000 came with deadly weapons and forcibly broke open the grill gate of the store and took away the stored article. In the course of investigation, two quintals of rice, 20 kg of sugar and 4 liters of pamolein were seized from the house of some accused persons. 7. The claim of the Insurance Company, that this incident was occasioned by the cyclone of 29.10.1999 and therefore, covered under Exclusion Clause 4 (a) of the Policy, was rejected by the State Commission observing that:- “It is a fact that just prior to the date of occurrence the area was hit by super cyclone but in our opinion that has got nothing to do with the burglary committed by the accused persons who were charge sheeted. It is futile to argue that because of cyclone theft was committed by the accused persons. There is nothing on record to suggest it. Therefore in absence of any material, it cannot be held that the burglary was occasioned because of cyclone. Stock of essential commodities was removed dishonestly from the petitioner’s possession without his consent. It is a clear case of theft or burglary. For the reasons mentioned above, we hereby overrule the objection of the opposite party that the claim is hit by the exclusion clause.” 8. In the above background, the State Commission accepted the assessment of the Surveyor appointed by the OP/Insurance Company and directed the OP to pay Rs.5 lakhs with interest at 9% for delay in payment after October, 2006. 9. We have seen the records as produced by the appellant/national Insurance Company and heard the counsels for the two parties. The appeal has been filed with a delay of 38 days. We do not feel that this delay has been adequately explained. Therefore, on this count alone, it is liable to be dismissed. 10. Coming to the merits, the main ground of appeal is that the State Commission has grossly erred in holding that the super cyclone, which hit the area had nothing to do with the burglary. According to the appellant, the facts and circumstances of the case clearly indicates that the loss was directly and proximately caused by the super cyclone and lawlessness and chaos that prevailed after it. It is also argued that if the interpretation of the State Commission is to be accepted, the purpose of Exclusion Clause 4 (a) in the policy would get defeated. The intention and purpose of the exclusion, it is alleged, have not been correctly appreciated by the State Commission. 11. The written response of the OP before the State Commission had also claimed:- “That admittedly, there being a contract of Insurance between the complainant and the opp. Party, the parties are bound by the specific terms and conditions of the said contract of insurance. The policy in question being admittedly a Burglary and House breaking one in respect of the business firms, it has been always subject to the exclusion clauses. The present matter being squarely covered under the violation of the terms and conditions of the policy and not being related to any deficiency of service as alleged by the complainant, the instant complaint, therefore, deserves to be dismissed on the ground of maintainability and unsustainability.” 12. We are unable to appreciate this argument of the appellant that it was a case of violation of the terms and conditions of the contact. It is not the case of the appellant/National Insurance Company, that the burglary was occasioned by any act of commission or omission on the part of the complainant. Therefore, the question of violation of the terms of the policy does not arise. 13. As for resort to the exclusion clause 4 (a) to justify the repudiation, we note that the case of the appellant/insurance company does not travel beyond stating that the burglary occurred two days after the cyclone. The State Commission has therefore noted the absence of any material, which could suggest that the burglary happened because of the cyclone. It is also not the case of the appellant that the cyclone had so destroyed or damaged the godown as to expose the stocks to burglars. The Written Response of the OP (appellant before us) shows that the burglars had forced opened the grill gate to enter the godown. This kind of forcible entry could have taken place even before the cyclone. Therefore, in our view, the State Commission has rightly and justifiably rejected the argument of the insurance company and rejection of the claim by resort to exclusion 4(a). 14. In the result, we find no merit in this appeal. The same is dismissed on the ground of limitation as well as merit. The order of the Orissa State Consumer Disputes Redressal Commission in CD Case No. 86 of 2001 is confirmed. The parties shall bear their own costs. .………………………… (V.B.GUPTA,J.) PRESIDING MEMBER …………………………. (VINAY KUMAR) MEMBER s./-