particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab vesus Gurmit Singh[5] and has found reiteration in a recent judgment in Rajinder @ Raju versus State of H.P[6], para 19 whereof may be usefully extracted : “19. In the context of Indian culture, a woman – victim of sexual aggression – would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.” 15. Insofar as the involvement of the uncle of the victim, the Police Constable, in setting up a concocted case against the accused is concerned, we do not find any evidence whatsoever in support of the contentions advanced. There is no material on record to show that any rent was due to the accused by the aforesaid person or that a sum of Rs.18,000/- was due to the accused from the family of the deceased. 16. For the aforesaid reasons, we do not find any merit in this appeal. It is accordingly dismissed and the judgment and order of the High Court of is affirmed.

                                             NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELATE JURISDICTION

                       CRIMINAL APPEAL No. 133 of 2007



O.M. Baby (Dead)  by Lrs.                    … Appellant (s)



Versus



State of Kerala                              … Respondent



                            J  U  D  G  M  E  N T



RANJAN GOGOI, J



      The appellant O.M. Baby (since deceased), had been  convicted  by  the
learned Sessions Judge, Wayanad, Kalpetta, Kerala under  Sections  376,  506
(ii) and 342 IPC.  He was sentenced to  undergo  rigorous  imprisonment  for
seven years for the offence  under  Section  376  IPC;  two  years  for  the
offence under Section 506 (ii) IPC and for a period  of  one  year  for  the
offence under Section 342 IPC.  Additionally, for the offence under  Section
376 IPC, a fine of Rs.50,000/-,  in default,  further imprisonment  for  two
years was imposed on the appellant.  The fine  amount  was  directed  to  be
paid to the prosecutrix (PW 2).  The learned trial court had  also  directed
that the sentences are to run consecutively.

2.    Aggrieved, the deceased-appellant filed appeal before the  High  Court
of Kerala.  By the judgment and  order  dated  13.01.2005,  the  appeal  was
dismissed by the High Court.  However, the sentence  imposed  under  Section
376 IPC was reduced to three years.  The sentences  imposed  under  Sections
506  (ii)  and  342  IPC  were  maintained  but   were   directed   to   run
concurrently.  Aggrieved by the aforesaid, this appeal has been filed.

3.    During the pendency of the appeal, the appellant, O.M. Baby,  died  on
07.10.2008.  On an application filed, the wife of the deceased  was  allowed
to be pursue  the appeal.

4.    At the outset, the case of the prosecution, in brief, may be  noticed.
 According to  the  prosecution,  the  family  of  the  victim  (PW  2)  was
maintaining an account with the appellant, who was running a provision  shop
in the locality.  Different articles were purchased from  the  shop  of  the
accused on credit which were adjusted from time to time by payments made  as
well as by the amount due to the family of the victim  who  used  to  supply
milk to the accused.  The prosecution has  alleged  that  on  25.12.1993  at
about 8 AM, PW 2 who, was then aged about 12 years, went to the shop of  the
accused with milk and also to make a few purchases.  As 25.12.1993  happened
to be Christmas day, the shop was closed from the front.  After PW 2  handed
over milk to the accused she wanted some articles from the shop  on  credit.
The accused, according to the prosecution, asked PW  2   to  go  inside  the
shop.  Thereafter, the accused supplied the articles as demanded  by  PW  2;
however, soon thereafter, the accused came from behind, put a cloth  on  the
face of PW 2, took her to adjacent  room  and  closed  the  same.   He  then
committed rape on her after putting her into fear of  death.   Consequently,
according to the prosecution, PW 2 did not offer  any  resistance  and  also
did not raise any alarm.

5.    The further case of the prosecution is that after  PW  2  reached  her
house, she told her mother about the incident.  As the father of the  victim
was away, her mother (PW 4) informed her own brother (PW 3)  and  after  his
arrival, they took the victim to the Taluka Headquarter hospital.   However,
as there was no Gynaecologist in the hospital they took the  victim  to  the
District hospital where PW 1 examined her at about midnight  of  25.12.1993.
According to the  prosecution,  PW  1  issued  the  report  of  the  medical
examination (Ext. P 1) and also informed the Gynaecologist (PW 18) who  came
to the hospital and took the vaginal swab and smear of the victim which  was
sent for chemical  analysis.   Thereafter,  according  to  the  prosecution,
report of the analysis dated 13.07.1994 (Ext. 2) was submitted.

6.    The prosecution had further alleged that as PW 4 (the  mother  of  the
victim) suspected that the  doctors  of  the  District  hospital  where  the
victim was taken on 25.12.1993 may not be fair, she had filed a petition  in
the Court of the Judicial Magistrate First Class,  Sulthan  Bathery  and  on
the basis thereof, the Investigating Officer of the case  (PW  13)  got  the
victim examined by another Gynaecologist  (PW  8)  in  the  Medical  College
Hospital at Calicut.  PW 8 took the vaginal swab and  smear  of  the  victim
and sent the  same  for  chemical  analysis.   The  report  of  the  medical
examination of the victim by PW  8  (Ext.  P-8)  as  well  as  the  chemical
analysis report dated 13.07.1994 (Ext. P-9), according to  the  prosecution,
were received in due course.  It may be noticed, at this stage,  that  while
in the first report of  chemical analysis i.e. Ext. P-2 it is recorded  that
the sample did not show the presence of spermatozoa, the  second  report  of
analysis (Ext. P-9) was to the  contrary.

7.    On these facts, the FIR (P-10) was registered  and  the  Investigation
was conducted by PW 13, the Circle  Inspector  of  Police  Station,  Sulthan
Bathery.  The accused was arrested in the course  of  investigation  and  he
was also medically examined by PW 7 who submitted  the  Potency  Certificate
of the accused (Ext. P-7).   On  completion  of  the  investigation,  charge
sheet was filed and the case  was  committed  for  trial  to  the  Court  of
Learned Sessions Judge, Sulthan  Bathery  who  framed  charges  against  the
accused.  The accused having denied the charges was  put  on  trial  in  the
course of which the prosecution examined as many as 14  witnesses  and  also
Exhibited 15 documents.  No evidence was adduced on behalf  of  the  accused
who, however, had proved certain contradictions  in  the  First  Information
Report and the evidence of PW 2.  The same were marked as Ext. D-1 and  D-2.
 The accused was also examined under Section 313 Cr. P.C. wherein he  denied
the allegations levelled against him.  Thereafter, at the conclusion of  the
trial, the accused-appellant was convicted and sentenced  as  already  noted
above.

8.    Learned counsel for the appellant has submitted that in  view  of  the
two contradictory reports of chemical analysis  of  the  sample  of  vaginal
swab and smear (Ext. P-2 and P-9), the benefit of the first report (Ext.  P-
2) which did not indicate presence of spermatozoa should  go  in  favour  of
the accused.  In this regard, it has  been  submitted  that  the  sample  in
respect of which Ext. P-2 report was submitted was taken on the day  of  the
incident itself, i.e. 25.12.1993 whereas the  sample, which is  the  subject
matter of the second report (Ext. P-9) was taken ten  days  later,  i.e.  on
06.01.1994.  Learned counsel for the appellant has submitted that  there  is
no material on record to show any lacuna in taking of the first  sample  and
that  the  prosecution  has  failed  to  satisfactorily  explain   the   two
contradictory  reports.   Learned  counsel  has  further  argued  that   the
evidence on record discloses that there were no  external  injuries  on  any
part of the body of the alleged victim which can  corroborate  the  evidence
of the prosecutrix tendered in court.  Pointing out the evidence  of  PW  2,
learned counsel has urged that there  are  several  inconsistencies  in  the
evidence of the prosecutrix which would make it unsafe for the court to  act
on the uncorroborated testimony of the said witness.

9.     Learned  counsel,  while  pointing  out  the  relevant  part  of  the
evidence, has also urged  that the uncle of the  alleged  victim,  a  Police
Constable, was a tenant in the house of the  accused  and  the  said  person
bore a grudge against the  accused  for  being  evicted  from  the  tenanted
premises.  Above all, according to the learned counsel, the  family  of  the
victim owed a sum  of  about  Rs.18,000/-  to  the  accused  on  account  of
purchase of different articles.  On account of the said facts, a  false  and
concocted case has been brought  against  the  accused  with  the  help  and
connivance  of  the  Police  Constable.   Learned  counsel,  therefore,  has
contended that the order of conviction should  be  set  aside  so  that  the
stigma attached to the family of the deceased accused is removed.



10.   Controverting the submissions advanced on  behalf  of  the  appellant,
the learned State Counsel has submitted that from  the  evidence  of  PW  4,
i.e. the mother of the victim, it is clear and  evident that  she  had  some
doubts with regard to the fairness of the doctors in the  District  hospital
and therefore, PW 4 had filed an application  dated  04.01.1994  (Ext  P-14)
before the concerned court for a second medical examination of  the  victim.
 Accordingly, the second medical examination of the victim was conducted  on
06.01.1994 by P.W.8.  The sample of vaginal swab and smear was  again  taken
on 06.01.1994  and  the  report  submitted  on  13.07.1994  (Ext.  P-9)  had
confirmed the presence of spermatozoa.  Learned State Counsel has  submitted
that the above circumstances show that  there  is  nothing  unusual  or  any
suspicious  circumstance  surrounding  Ext.  P-9   to   throw   any   doubt,
particularly, when the second medical examination and the taking  of  second
set of samples was performed by the doctors of the medical college  hospital
to whose no motive or interest can be  attributed.  Insofar  as  absence  of
injuries on the victim is concerned the learned State Counsel has  submitted
that even in Ext. P-1 (Report of the first medical examination held  on  the
day of occurrence) it is recorded that  the  victim  was  in  pain.   It  is
further argued that the alleged discrepancy in the  report  of  the  medical
examination conducted by PW 11 to determine the age of the  victim  (Ext.  P
12) and the evidence of PW 2 with regard to bite marks on  the  breast;  and
the further statement of PW 2 in court that she  fell  unconscious  and  her
failure to make such statement before the police as pointed  out  on  behalf
of the appellant are minor discrepancies which do not  affect  the  core  of
the prosecution case.  According to the learned State  counsel,  the  victim
(PW 2) has given a vivid account of the incident and there is no reason  why
the same should be disbelieved.  So far as  role  of  the  Police  Constable
(I.O.), uncle of the victim in instituting a false  and  concocted  case  on
account of the reasons noticed  is  concerned,  learned  State  counsel  has
pointed that the said  facts  are  not  substantiated  by  the  evidence  on
records.

11.   While it is correct  that the two reports of the analysis  of  vaginal
swab and smear are contradictory,  we are of the view that  in  the  present
case the prosecution has clearly proved and  established  the  circumstances
which necessitated the second  medical  examination  of  the  victim  and  a
second set of sample of vaginal swab and smear to  be  taken  and  sent  for
chemical analysis.  The aforesaid exercise was carried out on the  basis  of
the application filed by the mother of the victim (PW 4)  before  the  court
of learned Judicial Magistrate as she had serious doubts with regard to  the
fairness of the doctors in the District hospital who  had  carried  out  the
first medical examination and had taken the  samples  of  vaginal  swab  and
smear on the date of the occurrence.  The application by  PW  4  before  the
learned Court was filed without delay, i.e. on  04.01.1994  and  the  second
round of  medical  examination  and  taking  of  samples  was  completed  on
06.01.1994.  No motive and interest can be  attributed  to  PW  8   who  had
conducted the second round of medical examination and had taken  the  second
set of sample of vaginal swab and smear for chemical analysis.  That  apart,
it is clear from the evidence of PW 8 that after sexual intercourse,  though
active spermatozoa would be present for 36 hours, the same would  remain  in
the vaginal canal for as long as 17 days.   There  is  no  evidence  to  the
contrary. In the aforesaid circumstances  we  do  not  see  how  the  second
report of the analysis (Ext. P-9) can be ignored by us.

12.   Insofar  as  absence  of  injuries  on  the  body  of  the  victim  is
concerned, the evidence on  record  discloses  that  in  the  first  medical
examination itself, i.e. Ext.  P-1  it  is  recorded  that  the  victim  was
walking in pain.  The  evidence  of  PW  11,  Dr.  Shirley  Vasu,  Assistant
Professor  of  Forensic  Medicine,  who  had   examined   the   victim   for
determination of her age,  clearly  shows  that  circum  areolar  bite  mark
contusion of both breast was noted along with laceration of lower  lip.   In
these circumstances, it cannot  be  said  that  in  the  present  case,  the
prosecution has not succeeded in showing that the victim  had  not  suffered
any external injuries whatsoever.  In any  event,  absence  of  injuries  or
mark of violence on the person of the prosecutrix may    not   be  decisive,
particularly, in a situation where the   victim   did not

offer any resistance on account of threat or fear meted out  to  her  as  in
the present case. Such a view has already been expressed by  this  Court  in
Gurcharan Singh V. State of Haryana [1]  and Devinder Singh V. State of  H.P
[2].

13.   An argument has been made by the learned  counsel  for  the  appellant
that in view of certain inconsistencies in the evidence of  the  prosecutrix
her testimony  should not be accepted without any corroboration. As  already
noted, not only corroboration in the form of external injuries is  available
in the present case, even otherwise i.e. in  the  absence  of  corroboration
the testimony of the victim cannot be ignored,  unless  the  inconsistencies
or contradictions are sufficiently serious  to  warrant  such  a  course  of
action.  We have already observed that the inconsistencies in the  statement
of PW 2 are on minor aspects which do not affect the core of the case.   The
golden rule of appreciation of the testimony of a prosecutrix laid  down  in
Rameswar Vs. State of Rajasthan[3]  and amplified in  State  of  Maharashtra
Vs. Chandraprakash Kewalchand Jain[4] has been  consistently  followed  till
date.  It will, therefore, be useful to reproduce  herein  para  16  of  the
judgment of this  Court  in  the  above  case  of  State  of  Maharashtra  V
Chandraprakash Kewalchand Jain (supra):

            “16.  A prosecutrix of a sex offence cannot be put on a par with
         an accomplice.  She is in fact a victim of the crime.  The Evidence
         Act nowhere says that her evidence cannot be accepted unless it  is
         corroborated  in  material  particulars.   She  is  undoubtedly   a
         competent witness under Section 118 and her evidence  must  receive
         the same weight as is attached to an injured in cases  of  physical
         violence.  The same degree of care and caution must attach  in  the
         evaluation of her evidence as in the case of an injured complainant
         or witness and no more.  What is necessary is that the  court  must
         be alive to and conscious of the fact that it is dealing  with  the
         evidence of a person who is interested in the outcome of the charge
         levelled by her.  If  the  court  keeps  this  in  mind  and  feels
         satisfied that it can act on the evidence of the prosecutrix, there
         is no rule of law or practice  incorporated  in  the  Evidence  Act
         similar to Illustration (b) to Section 114  which  requires  it  to
         look for corroboration.  If for some reason the court  is  hesitant
         to place implicit reliance on the testimony of the  prosecutrix  it
         may look for evidence which may lend  assurance  to  her  testimony
         short of corroboration required in the case of an accomplice.   The
         nature of evidence required to lend assurance to the  testimony  of
         the  prosecutrix  must  necessarily  depend  on   the   facts   and
         circumstances of each case.  But if a prosecutrix is an  adult  and
         of full understanding the court is entitled to base a conviction on
         her evidence unless  the  same  is  shown  to  be  infirm  and  not
         trustworthy.  If the totality of the circumstances appearing on the
         record of the case disclose that the prosecutrix does  not  have  a
         strong motive to falsely involve  the  person  charged,  the  court
         should ordinarily have no hesitation in accepting her evidence.”




14.   We would further like to observe that while appreciating the  evidence
of the prosecutrix, the court must keep in mind that in the context  of  the
values prevailing in the country, particularly in rural India, it  would  be
unusual for a woman to come up with a false  story  of  being  a  victim  of
sexual assault so as to implicate an innocent person.  Such a view has  been
expressed by the judgment of this Court in  the  case  of  State  of  Punjab
vesus Gurmit Singh[5]  and  has found reiteration in a recent  judgment   in
Rajinder @ Raju versus State of H.P[6], para  19  whereof  may  be  usefully
extracted :

           “19. In the context of Indian  culture,  a  woman  –  victim  of
        sexual aggression – would rather suffer silently  than  to  falsely
        implicate  somebody.   Any  statement  of  rape  is  an   extremely
        humiliating experience for a woman and until she is a victim of sex
        crime, she would not blame anyone  but  the  real  culprit.   While
        appreciating the evidence  of  the  prosecutrix,  the  courts  must
        always keep in mind that no self-respecting  woman  would  put  her
        honour at stake by falsely alleging commission of rape on  her  and
        therefore, ordinarily a look for corroboration of her testimony  is
        unnecessary and uncalled for.  But for high  improbability  in  the
        prosecution case, the conviction in the case of sex  crime  may  be
        based on the sole  testimony  of  the  prosecutrix.   It  has  been
        rightly said that  corroborative  evidence  is  not  an  imperative
        component of judicial credence  in  every  case  of  rape  nor  the
        absence of injuries on the private  parts  of  the  victim  can  be
        construed as evidence of consent.”




15.   Insofar as the involvement of the uncle  of  the  victim,  the  Police
Constable, in setting up a concocted case against the accused is  concerned,
we do not find  any  evidence  whatsoever  in  support  of  the  contentions
advanced.  There is no material on record to show that any rent was  due  to
the accused by the aforesaid person or that a sum of Rs.18,000/- was due  to
the accused from the family of the deceased.

16.   For the aforesaid reasons, we do not find any merit  in  this  appeal.
It is accordingly dismissed and the judgment and order of the High Court  of
 is affirmed.



                                        …………………………………J.

                                        [SWATANTER KUMAR]







                                        ………………………………..J.

                                        [RANJAN GOGOI]



New Delhi,

July 3 , 2012



sks

-----------------------
[1]         (1972)    2       SCC        749

[2]           (2003) 11      SCC     488

[3]            AIR  (1952)   SC        54

[4]           (1990)   1      SCC    550

[5]         (1996)  2   SCC  384

[6]         (2009)  16  SCC 69



-----------------------
13

Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 could be recorded. There was no direct evidence. The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 120-B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved. 38. The learned trial Judge himself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence, connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code.” 20. Though the above discussions would lead us to the conclusion that the prosecution, in the present case, has succeeded in proving a highly incriminating circumstance against the accused –appellant, yet, we do not consider that it would be wholly safe to hold that the only conclusion that can follow from the aforesaid proved circumstance is that the accused Brijesh is responsible for the death of the deceased that had occurred on 06.06.2001. We have also noticed that the High Court has convicted the accused-appellant under Section 302 as well as Section 460 IPC with the aid of Section 34. In a situation where co-accused Satish had died during the trial and the other co-accused Med Singh had been acquitted by the High Court, the culpability of the present accused-appellant with the aid of Section 34 will be open to serious doubt. Such culpability will have to be determined on the basis of individual overt acts on the part of the accused appellant for which we do not find any cogent and reliable material on record. 21. Consequently, we hold that while the conviction of accused-appellant under Section 25 of the Arms Act and the sentence imposed is justified, the accused-appellant is entitled to the benefit of our doubts with regard to the offences under Section 302 and Section 460 read with Section 34 of the IPC. We, therefore, set aside the judgment of the High Court insofar as the offence under Section 302 and Section 460 read with Section 34 of the IPC is concerned. The conviction of the accused-appellant under Section 25 of the Arms Act and the sentence imposed is upheld. If the appellant is presently in custody and he has undergone the sentence imposed under Section 25 of the Arms Act he be released forthwith unless wanted in any other case. The appeals are disposed of in the aforesaid terms.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELATE JURISDICTION

                    CRIMINAL APPEAL Nos. 824 -825 of 2011



Brijesh Mavi                                 … Appellant

Versus

State of NCT of Delhi                        … Respondent





                            J  U  D  G  M  E  N T



RANJAN GOGOI, J



      These appeals are directed  against  the  common  judgment  and  order
dated 10.08.2009 passed by the High Court of Delhi  whereby  the  conviction
of the appellant under Sections 302 and 460 read with Section 34 of the  IPC
as well as under Section  25  of  the  Arms  Act  has  been  affirmed.   The
appellant has been sentenced to undergo rigorous imprisonment for  life  for
the offence under Section 302 read with  Section  34  IPC  whereas  for  the
offence under Section 460 read with Section 34 IPC sentence of  seven  years
rigorous imprisonment has been imposed.  Insofar as the  offence  under  the
Arms Act is concerned, the accused-appellant has been sentenced  to  undergo
rigorous imprisonment for one year.  All the   sentences have been  directed
to run concurrently.

2.    The short case of the prosecution is that  on  06.06.2001,  H.C.  Brij
Pal (PW 11), who was posted in the PCR, received  an  information  at  about
10.35 PM that firing is taking place at Savitri Nagar  near  a  sweet  shop.
Accordingly,  PW 11 alongwith other police personnel reached the said  place
and saw that a  crowd  had  gathered  near  a  STD  booth  where  blood  was
splattered and some articles were lying scattered in broken condition.   The
STD booth belonged to one Omiyo Das  Of  Malik  Communications,  who  having
been injured in the firing had already been removed to the hospital.

      The said information was passed on to the local police  station  which
was duly recorded in the Daily Diary of the Police Station  and   marked  to
SI – Sudhir Sharma,  PW  24,  who  along  with  Constable-  Bajrang  Bahadur
reached the place of occurrence.  On reaching  the  said  place  the  police
party could come to know  that  the  injured  Omiyo  Das  had  already  been
declared brought dead to the hospital.

      Further more, according to the prosecution, one Vicky  Malik   (PW  1)
was an eye witness to the occurrence.  Accordingly,  his  statement  (Ex.PW-
1/A) was recorded where he had stated that  on  06.06.2001  at  about  10.20
P.M. when he was sitting outside his STD booth  and  sweet  shop  at  J-196,
Savitri Nagar, he had noticed a white Maruti Car stopping on the other  side
of the road.  In the  statement recorded by the police,  PW  1   has  stated
that two men alighted from the vehicle and entered the STD booth  whereafter
they started firing at his maternal uncle, Omiyo Das.  According to PW 1  he
tried to intervene and in fact had brought a palta  from  his  nearby  sweet
shop but his uncle told him to run away from the place and  save  his  life.
PW 1 had further  stated  that  blood  was  oozing  out  from  the  injuries
suffered by his uncle and he ran  towards  his  house  No.86B  shouting  for
help.  According to PW 1, thereafter, the assailants fled away  and  he  had
along with his younger brother –Raj Kumar Malik –PW 3 and  another  maternal
uncle – Ravi Kumar Dass – PW 4 had removed the injured to the hospital.   In
his statement, PW 1 had categorically stated that one Satish Kumar  who  had
killed his father and who had been acquitted about a month ago in  the  case
arising from the said  incident  was  one  of  the  assailants  whereas  the
other/second assailant was about 25-26 years of age and  was  a  well  built
person.  On the basis of the aforesaid  statement  made  by  PW  1  –  Vicky
Malik, the FIR –Ex.PW-6/A was lodged  and  FIR  Case  No.  438/2006,  Police
Station Malviya Nagar (hereinafter referred to  as  the  present  case)  was
registered.  Three live cartridges cage of 0.380 bore; one  empty  cartridge
of 0.380 bore and four lead pieces of fired bullets  were  seized  from  the
place of occurrence by PW 24 – Sudhir Sharma.  The   blood  stained  baniyan
of PW 3; blood stained earth  etc.  were  also  seized  from  the  place  of
occurrence by the Investigating Team.

3.    The further case of the prosecution is that on the next day,  i.e.  on
07.06.2001, PW 9 –Dr. T.Milo had conducted the post mortem on  the  body  of
the deceased in the course of which nine ante-mortem  bullet  injuries  were
noted and four bullets had been extracted from the body  which   along  with
one  cotton underwear;    one cotton baniyan, one long pant was handed  over
to the Investigating Officer, PW 24- SI- Sudhir Sharma.  The cause of  death
was stated to be coma due to head injuries caused by a firearm.

4.    According to the  prosecution  on  16.11.2001,  the  IO-  PW  24-   SI
–Sudhir Sharma arrested accused Satish Kumar who  was  already  arrested  by
the Faridabad police in connection with FIR No.339/2004  of  Police  Station
GRP, Faridabad under Section 25  of  the  Arms  Act.   The  prosecution  has
alleged that Satish Kumar made a disclosure statement  (Ex.PW-24/D)  in  the
instant case and had also disclosed  about  the  involvement  of  two  other
persons in the offence, i.e. one Med  Singh  and  the  present  appellant  –
Brijesh.  On the basis of the said  disclosure  statement  made  by  accused
Satish, a .30” pistol along with 3(three) .30” calibre live  cartridges  was
recovered.  Thereafter, on 09.01.2002, PW 25 – SI – Sanjeev Sharma  arrested
Med Singh who was already arrested on 05.01.2002 in a  separate  case  under
the Arms Act. Three sealed parcels containing the .30” calibre  pistol  with
three 7.62mm/.30” live cartridges  recovered  at  the  instance  of  accused
Satish, the three .380” live  cartridges;  one  .380”  cartridge  cage,  two
bullets and two defused bullets recovered from the place of  occurrence  and
the four bullets recovered from the dead body in the course  of  post-mortem
examination were all sent to the Forensic Science Laboratory, Rohini,  Delhi
on 03.12.2001.   Thereafter, the report of one   Shri  KC  Varshney,  Senior
Scientific Officer, FSL, Rohini, Delhi (Ex.PW-21/A) was received  which  was
to the effect that the bullets marked as  EB-1,  EB-3   to  EB-8  (seven  in
number) had been discharged through a standard .380”  calibre  firearm.   On
these facts, the two apprehended accused Satish and Med Singh were sent  for
trial.  As the two accused persons denied the charges levelled against  them
the trial proceeded. The third accused was  neither  identified  nor  traced
out at that stage.

5.    While the trial of the case was in  progress  the  present  appellant,
Brijesh, was arrested on 12.8.2003 in connection with  another  case,  i.e.,
FIR  No.575/2003  Police  Station,  Malviya   Nagar.    According   to   the
prosecution, on interrogation, the accused appellant disclosed/admitted  his
involvement in the present case  and made a statement on the basis of  which
a .380”  calibre  revolver  was  recovered  from  the  second  floor  of  an
Apartment bearing No.F-4/64, Sector  16,  Rohini,  Delhi  alongwith  3  live
.380” calibre cartridges.  In respect of the said incident  a  separate  FIR
No.456 of 2003 under Section 25 of the Arms Act  of  Prashant  Vihar  Police
Station was registered.   It  may  be  noticed,  at  this  stage,  that  the
aforesaid recovery of the weapon was in the presence of  SI-  Satish  Kumar,
ASI – Ravinder and Head Constable – Rajiv Mohan who had  been  examined   as
PWs. 1, 2 and 3 in the case arising out of FIR No. 456/2003.   It  may  also
be noticed  that Head Constable -  Rajiv  who  was   examined  as  PW  3  in
connection with FIR No.456/2003 was again examined in the  present  case  as
PW 19.  Both the cases, i.e. the present  as  well  FIR  No.  456/2003  were
clubbed together by order of the learned Additional  District  and  Sessions
Judge dated 10.03.2005 and charges under Sections 302 and  460  of  the  IPC
read with Section 34  were  framed  against  the  accused-appellant  in  the
present case.  A separate charge under Section 25 of the Arms Act  was  also
framed against the appellant in FIR Case No. 456/2003.

      PW 1 – Vicky Malik who was already examined was recalled  for  further
examination  after  charges  were  framed  against  the  present  appellant.
While the trial of the two cases was in progress, accused  Satish  died  and
the proceedings stood abated against him.  As  many  as  25  witnesses  were
examined by the prosecution in the  present  case  and  a  large  number  of
documents were also exhibited.  Two witnesses were examined by the  defence.
 DW-1 –Vijay Gupta claimed to be owner of the  Apartment  No.F-4/64,  Sector
16, Rohini.  This witness has stated that while he had occupied  the  ground
floor of the apartment the first floor was vacant for repairs.   The  second
floor was under the occupation of a tenant, one  Rajiv  Chauhan.   According
to DW-1, no recovery was made as claimed by the police on 12.08.2003.  DW-2-
 Rajiv Chauhan, the tenant, had fully corroborated the above version  of  DW
1.  Both the  accused  persons  –  Med  Singh  and  appellant  Brijesh  were
examined under Section 313 Cr.P.C.  At the conclusion of the trial both  Med
Singh and the present appellant Brijesh were convicted for the offences  for
which they were charged.  Separate appeals were filed by  both  the  accused
before the High Court.  By the impugned judgment dated 10.08.2009 while  the
accused Med Singh was acquitted, the present appellant  has  been  convicted
of the charges framed in both the cases and sentenced  as  aforesaid  giving
rise to the present appeal.

6.    Before proceeding to notice and  examine  the  arguments  advanced  on
behalf of the appellant, the  bare  facts  proved  and  established  by  the
evidence on record which would be required to be considered may be  set  out
hereinbelow.

7.    In the initial deposition tendered in court by PW  1  –  Vicky  Malik,
the witness had categorically stated  that  the  second  assailant  who  was
accompanying accused Satish was not known to him.  After the arrest  of  the
present accused-appellant on 11.08.2003 PW 1 was recalled and examined  once
again on 21.10.2005.  On this occasion PW 1 had clearly denied that  in  his
statement to the police that he had named the  accused-appellant-Brijesh  or
that he had identified the present accused-appellant before the police.   In
fact, in his further examination PW 1 had  categorically  stated  that  “the
accused-appellant Brijesh Mavi present in court was not there  on  the  date
of incident” and further that “accused present in the court Brijesh Mavi  is
not the person who had killed my uncle.  I  have  seen  Brijesh  Mavi  first
time”.  PW 1 was not declared hostile.

8.    PW 24 – Sudhir Kumar, the IO  of  the  case,  in  his  deposition,  as
already noted,  had deposed about the recovery  of  three  live  cartridges,
one empty cartridge and 4 bullets ( all of 0.380 calibre) from the place  of
occurrence.  He has also deposed about the receipt  of  four  bullets  which
were extracted from the body of the deceased at  the  time  of  post-mortem.
According to PW 24 the cartridges and bullets recovered from the  spot  were
sealed with the initial SK whereas the bullets recovered from the dead  body
 were sealed with the seal of  Forensic Medicine AIIMS Hospital.  PW 24  has
also deposed with regard to the arrest of  accused  Satish;  the  disclosure
statement made by him and  the  recovery  of  one  pistol  of  .30”  calibre
alongwith three  live  cartridges.   In  his  cross-examination,     he  has
stated that in the course of interrogation it was  revealed  that  the  .380
calibre revolver was with the accused Satish and  the  .30”  calibre  pistol
was with accused Brijesh.

9.     From the evidence of  PW  21  –  Shri  KC  Varshney,  Sr.  Scientific
Officer and his report  Ex.PW-21/A it is evident that along  with  the  .30”
calibre pistol and  the  three  .30”  calibre  live   cartridges,  the  .380
cartridges(3 in No.), one .380 cartidge cage and the four bullets  recovered
from the spot along with the four bullets recovered from  the  body  of  the
deceased were sent for the examination and the  report  thereof  is  that  7
bullets marked as EB-1, EB-3 to EB-8 had been  fired  from  a  .380  calibre
fire arm.

10.   From the evidence of PW 25, SI-Sanjiv Sharma,  it  also  appears  that
after the recovery of the .380 calibre revolver from Apartment  No.  F-4/64,
Sector 16, Rohini, Delhi, the said revolver and  the  empty  and  live  .380
calibre cartridges  and  the  four  bullets  recovered  from  the  place  of
occurrence were sent to the CFSL, Chandigarh for examination and  “matching”
report, namely, whether the cartridges and bullets bore any relation to  the
fire arm recovered .  The report of examination (Ex. PW -20/B) submitted  by
Dr. P. Siddambary Junior Scientific Officer (Ballastics),  CFSL,  Chandigarh
(PW 20) is to the effect that the .380 revolver (bearing No. 25502)  was  in
working condition and  the  crime fired bullets marked B/1, B/3 and B/4  had
been fired through the said .38”  revolver   bearing  No.25502  and  further
that the said  bullets  could  not  have  been    fired  through  any  other
firearm.  Insofar as the live cartridges are concerned, the report of PW  20
is silent where as in regard to the cartridge cage marked  as  EC.1  by  the
Ballistic Expert the opinion was inconclusive.    From the  above,  it  will
be clear that the four bullets sent to the CFSL, Chanidgarh and examined  by
PW 20 were the bullets recovered from the place of occurrence.  The  bullets
recovered from the dead body  though  sent  to  the  FSL,  Rohini  and  were
examined by PW 21 were however not sent by  the  prosecution  to  the  CFSL,
Chandigarh and are not a part of the report  submitted  by  PW  20   in  his
report (Ex. PW-20/B)



11.   Another significant fact that has to be noticed is that in the  report
of CFSL, Chandigarh Ex. PW- 20/B  it  is  not  mentioned  that  one  of  the
bullets recovered from the place of occurrence and  marked  as  B.2  by  the
Ballistic Expert  had been fired from the revolver bearing  No.25502  though
according to both the reports,  i.e.  Ex.PW-21/A  and  Ex.PW-20/B  the  said
bullet is also a .380 calibre bullet.

12.   Shri A. Sharan, learned senior counsel for the appellant,  has  argued
that from the evidence of the sole eye witness, PW  1  Vicky  Malik,  it  is
clear and evident that he had not identified the  accused-appellant  Brijesh
to be the person accompanying the accused Satish to the STD booth where  the
firing took place.  In fact, according   to the learned counsel,  PW  1  has
categorically stated in Court that the accused-appellant   Brijesh  was  not
present at the place  of  occurrence  and  that  he  had  seen  the  accused
appellant for the first  time  in  court.   Learned  counsel  therefore  has
contended that there is no direct evidence  to  link  the  accused-appellant
with the offence  for  which  he  has  been  charged.   In  the  absence  of
identification of the accused-appellant, the conviction,  it  is  contended,
is wholly without any basis.  Shri Sharan has  further  contended  that  the
recovery of the  revolver  from  Apartment  No.F-4/64,  Sector  16,  Rohini,
Delhi,  as claimed by the prosecution, has not been  proved  in  any  manner
inasmuch as no independent witness has been  examined  to  prove  the  same.
Furthermore, DW 1 and DW 2 had clearly deposed  that  no  police  party  has
come to the apartment on 12.08.2003 and no recovery had taken place  on  the
said date.  Shri  Sharan  has  also  contended  that  the  scrutiny  of  the
evidence tendered  by the defence witnesses  would go to show that there  is
no basis for not accepting the same.

      Continuing, Shri Sharan has argued that  the  bullets  extracted  from
the body of the deceased, admittedly, had not been sent for  examination  to
the ballastic expert to prove that the same were  fired  from  revolver  No.
25502 allegedly recovered from  Apartment  No.F-4/64,  Sector  16,   Rohini,
Delhi. Therefore, according to learned counsel, even if the recovery of  the
revolver is to be assumed there is no proof  that  the  same  was  fired  to
cause the injuries resulting in the death of the deceased.  In sofar as  the
three bullets proved by Ex.PW -20/B to have been fired  from  the  recovered
weapon is concerned, Shri Sharan has argued that the same had not been  sent
for serological    examination to prove the presence of human  blood  so  as
to establish that the said bullets had entered and exited the  body  of  the
deceased.  It is also argued that the report of the CFSL Chandigarh  (Ex.PW-
20/B) read with the report of the FSL, Rohini (Ex.PW-21/A) would go to  show
that the bullet marked as Ex.B2 in the report of  CFSL,  Chandigarh  (Ex.PW-
20/B) was not fired from  the  recovered  weapon.   Yet,  according  to  the
prosecution, the same was a .380 calibre bullet recovered from the place  of
occurrence which facts open up the possibility of the use of  another   .380
revolver  in  the  incident.   No  Evidence  to  the  aforesaid  effect   is
forthcoming.  In  these  circumstances  Shri  Sharan  has  argued  that  the
conviction of  the  accused  –appellant  cannot  be  approved.  In  support,
reliance has been placed  on  the  judgment  of  this  court  in  Abdulwahab
Abdulmajid Baloch vs. State of  Gujarat  [1].   Placing  the  said  judgment
before the court Shri Sharan has contended that in the present case even  if
it is assumed that recovery of the offending weapon has been proved  by  the
prosecution the said fact is only  one  adverse   circumstance  against  the
appellant.  The same by itself, would not give rise to a complete  chain  of
events and circumstances from which the only inference that can be drawn  is
one of culpability of the accused.  Shri Sharan has also sought to draw  the
attention of the court to a recent judgment in Musheer  Khan  Alias  Badshah
Khan     and     anr.     Versus     State     of     Madhya      Pradesh[2]
    to contend that the recovery of the alleged  weapon,  even  if  assumed,
cannot reasonably lead to a conclusion which would  justify  the  conviction
of the accused-appellant.

13.   In reply Shri J.S. Attri, learned senior counsel  for  the  State  has
contended that the failure of PW 1  to  identify  the  accused-appellant  as
being present at  the  place  of  occurrence  would  not  be  fatal  to  the
prosecution case, inasmuch as  in  the  present  case  the  prosecution  has
succeeded  in  proving,  beyond  all  reasonable  doubt,  that  the   weapon
recovered at the instance of the accused-appellant  from  Apartment  No.  F-
4/64, Sector 16, Rohini, Delhi was used to fire upon the  deceased.   It  is
contended that the three bullets recovered from the  spot  have  been  fired
from the said weapon (Ex. PW 20/B).  The  said  circumstance,  according  to
the learned State counsel, clinches the issue beyond all  reasonable  doubt.
It is argued that a firm conclusion with regard to the  culpability  of  the
accused can be reasonably drawn from the aforesaid  circumstance  proved  in
the present case.

14.   The brief conspectus of facts set out above  demonstrates  that  there
is no direct evidence to  connect  the  accused-appellant  with  the  firing
incident involving the deceased.   The  only  eye-witness  examined  by  the
prosecution, namely, PW  1  has  categorically  deposed  that  the  accused-
appellant Brijesh was not present  at the place of the crime on the date  of
occurrence and, in fact, he had seen the  accused-appellant  for  the  first
time in court.  The second person accompanying the deceased  accused  Satish
to the STD booth along with the  firearm  therefore  remained  unidentified.
The prosecution, in the absence of any direct evidence, has sought to  build
up its case on the basis of circumstantial evidence.

15.   The principles  of  law  governing  proof  of  a  criminal  charge  by
circumstantial evidence  need  hardly  any  reiteration.  From  the  several
decisions of this court available on the issue the said  principles  can  be
summed up by stating that not only the prosecution must prove and  establish
the incriminating circumstance(s) against the accused beyond all  reasonable
doubt   but the said circumstance(s) must give rise to only  one  conclusion
to the exclusion of all others, namely, that it is accused and  nobody  else
who had  committed the crime. The above  principle  is  deducible  from  the
five propositions laid down by this Court in Sharad  Birdhichand  Sarda  vs.
State of Maharashtra[3] which principles have been consistenly  followed  in
Tanviben Pankajkumar Divetia vs. State of Gujarat  [4],   Vikram  Singh  vs.
State of Punjab[5],  Aftab Ahmad Anasari  vs. State  of  Uttaranchal  [6]  ,
Sanatan Naskar and anr. vs. State of West Bengal [7]  and Mohd.  Arif  alias
ASshfaq vs. State (NCT of Delhi) [8].

16.   The next question that has to  engage the attention of the  court   is
what are the circumstances that the prosecution has succeeded in proving  in
the present case and if so  proved  what  is  the  conclusion  that  can  be
reached on the proved circumstances in the light of the  principles  of  law
indicated above.

17.    The  prosecution  has  asserted  that  on  12.08.2003  the   accused-
appellant, after being arrested in connection  with  another  case  admitted
his involvement in the present case. On the basis of statement made  by  him
before SI – Satish Kumar (PW 1); ASI –  Ravinder  (PW  2)  and  Constable  –
Rajiv (PW 3) a .380 Calibre revolver was recovered from the second floor  of
Apartment No. F-4/64,  Rohini,Delhi.   The  evidence  of  PWs  1,  2  and  3
examined in connection with FIR Case No. 456/03 as well as the  evidence  of
Head Constable Rajiv (PW 3 ) in FIR Case No.456 who was examined  as  PW  19
in the present case indicates  without  doubt  or  ambiguity   the  detailed
facts in which the recovery was effected.  The  cross-examination  of  three
witnesses has not revealed  any  fact  which  would  go  in  favour  of  the
accused.  The defence witnesses, DW 1 and DW 2, examined, in our  considered
view, have not succeeded in demolishing the prosecution version inasmuch  as
DW 1 – Vijay Gupta admittedly was being interrogated in the  police  station
on the date when the recovery was made.  On the  other  hand,  DW  2  –Rajiv
Chauhan has failed to prove that he was a tenant under DW 1, in  respect  of
the second floor of the Apartment in question  at  the  relevant  time.   In
such  circumstances the court will have to proceed on  the  basis  that  the
recovery, as claimed by the  prosecution, has been proved  by  the  evidence
on record.

18.   Our  above  finding  would  render  the  conviction  of  the  accused-
appellant under Section 25 of  the  Arms  Act  wholly  justified.   However,
insofar as the charges under Section 302 and Section 460 read  with  Section
34 of the IPC is concerned, there are  certain  other  connected  facts  and
circumstances proved by the  evidence  on  record  which  will  have  to  be
weighed by  us  in  order  to  determine  the  consequence(s)  that  can  be
attributed to the accused from the recovery of the weapon in question.   The
recovery was affected after more than two years.  The incident had  occurred
on 06.06.2001 and the recovery was made on 12.08.2003.  The prosecution  has
not proved that during the intervening period the  weapon  had  not  changed
hands and the same was  consistently  possessed  by  the  accused  appellant
Brijesh. The live and fired cartridges alongwith the bullets recovered  from
the place of occurrence and also the bullets recovered from  the  dead  body
in the course of post mortem were sent to the FSL Rohini.   The  report  has
been exhibited as  Ex.PW-21/A.  The said report is  dated  28.02.2002,  i.e.
before the recovery of the .380 calibre revolver.   After  the  recovery  of
the weapon said was made, the weapon itself along with the cartridges  (live
and empty) as  well  as  the  four  bullets  recovered  from  the  place  of
occurrence was sent to the CFSL Chandigarh and is covered by the  report  of
PW 20 dated 28.11.2003 (Ex.PW-20/B).   However,  surprisingly,  the  bullets
recovered from the dead body at the time of post mortem  were  not  sent  to
the CFSL, Chandigarh.  This is evident from  the evidence of  PW  25  –  SI-
Sanjiv Sharma.  No explanation for what appears to us to be a serious  lapse
on the part of the prosecution is forthcoming.  That  apart,  in  Ex.PW-20/B
it is recorded that three out of the four bullets (recovered from the  place
of occurrence) were fired from the recovered weapon.  The said bullets  were
not sent for serological examination to establish  that  the  three  bullets
fired from the recovered weapon had entered and exited from the body of  the
deceased.  In such a situation a lingering doubt remains as to  whether  the
prosecution in the  present  case   has  succeeded  in  proving  the  charge
against the accused-appellant beyond  all  reasonable  doubt.   Furthermore,
from  Ex.PW-20/B it is evident  that  one  bullet  (marked  as  B.2  by  the
Expert) was not fired  from  the  .380  calibre  firearm  recovered  at  the
instance of the appellant.  The first report of the  FSL,  Rohini,  Delhi  –
EX.PW21/A also indicates that one bullet of .380 calibre did  not  have  any
striations of riffling marks.  The prosecution has remained  silent  on  the
aforesaid  aspect  of  the  matter,  though,  from  the  two  reports,   the
possibility of use of another fire arm of  .380  calibres  cannot  be  ruled
out.

19.   In the  above  context  the  decision  of  this  court  in  Abdulwahab
Abdulmajid Baloch vs.  State  of  Gujarat  (supra)  would  be  a  particular
significance.  Though the observations contained in  Paragraphs  37  and  38
of the judgment have to be understood to have been rendered in  the  context
of the facts of the case we find that the said observations  would  squarely
apply to  the present case.  Consequently the aforesaid two  paragraphs  may
be usefully extracted hereinbelow :

      “ 37.  Be that as it may, we feel that only because the recovery of  a
      weapon was made and the expert opined that the  bullet  found  in  the
      body of the deceased was fired from one  of  the  weapons  seized,  by
      itself cannot be the sole premise on which a  judgment  of  conviction
      under Section 302 could be recorded.  There was  no  direct  evidence.
      The accused, as noticed  hereinbefore,  was  charged  not  only  under
      Section 302 read with Section 34 of the  Penal  Code  but  also  under
      Section 302 read with  Section  120-B  thereof.   The  murder  of  the
      deceased was said to have been committed by all  the  accused  persons
      upon hatching a conspiracy.  This charge has not been proved.

      38. The learned trial Judge himself opined that  the  recovery  having
      been made after nine months, the weapon might  have  changed  in  many
      hands.  In absence of any other evidence, connecting the accused  with
      commission of crime of murder of the deceased, in our opinion,  it  is
      not possible to hold that the appellant on the basis of  such  slander
      evidence could have  been  found  guilty  for  commission  of  offence
      punishable under Section 302 of the Penal Code.”




20.   Though the above discussions would lead us to the conclusion that  the
prosecution, in  the  present  case,  has  succeeded  in  proving  a  highly
incriminating circumstance against the accused –appellant, yet,  we  do  not
consider  that it would be wholly safe to  hold  that  the  only  conclusion
that can  follow from the aforesaid proved circumstance is that the  accused
Brijesh is responsible for the death of the deceased that  had  occurred  on
06.06.2001.  We have also noticed that the  High  Court  has  convicted  the
accused-appellant under Section 302 as well as Section 460 IPC with the  aid
of Section 34.  In a situation where co-accused Satish had died  during  the
trial and the other co-accused  Med Singh had been  acquitted  by  the  High
Court, the culpability  of the present accused-appellant  with  the  aid  of
Section 34 will be open to serious doubt.  Such culpability will have to  be
determined on the basis of individual overt acts on the part of the  accused
appellant for which we do not find  any  cogent  and  reliable  material  on
record.

21.   Consequently, we hold that while the conviction  of  accused-appellant
under Section 25 of the Arms Act and the sentence imposed is justified,  the
accused-appellant is entitled to the benefit of our doubts  with  regard  to
the offences under Section 302 and Section 460 read with Section 34  of  the
IPC.  We, therefore, set aside the judgment of the  High  Court  insofar  as
the offence under Section 302 and Section 460 read with Section  34  of  the
IPC is concerned.  The conviction of the accused-appellant under Section  25
of the Arms Act and the sentence imposed is upheld.   If  the  appellant  is
presently in custody  and  he  has  undergone  the  sentence  imposed  under
Section 25 of the Arms Act he be released forthwith  unless  wanted  in  any
other case.

      The appeals are disposed of in the aforesaid terms.





                                        ……………………………..J.

                                        [SWATANTER KUMAR]







                                        ……………………………..j.

                                        [RANJAN GOGOI]




      New Delhi,

      July 3, 2012










-----------------------
[1]        ( 2009)  11  SCC  625

[2]         (2010)  2  SCC 748

[3]         (1984) 4  SCC  116 (para 153)

[4]         (1997) 7  SCC  156

[5]         (2010) 3  SCC  56

[6]         (2010)  2 SCC  583

[7]         (2010)   8   SCC  249

[8]         (2011) 13  SCC   621



-----------------------
24

Rejection of plaint- Order VII Rule 11, Rule 14(1) and Rule 14(2), Form Nos. 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the 1st defendant, the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the plaintiff was given to the 2nd defendant in the suit and rightly rejected the plaint as against the 1st defendant. Unfortunately, the Division bench failed to consider all those relevant aspects and erroneously reversed the decision of the learned single Judge. We are unable to agree with the reasoning of the Division Bench of the High Court. 22) In the light of the above discussion, the judgment and order dated 16.08.2011 passed by the Division Bench of the High Court in OSA No. 100 of 2006 is set aside and the order dated 25.01.2006 passed by the learned single Judge in Application No. 3560 of 2005 is restored. The civil appeal is allowed with costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                                      1


                       2 CIVIL APPEAL NO. 4841 OF 2012


                3 (Arising out of SLP (C) No.30632  of 2011)



The Church of Christ Charitable
Trust & Educational Charitable
Society, represented by its Chairman            .... Appellant (s)

            Versus

M/s Ponniamman Educational
Trust represented by its
Chairperson/Managing Trustee                      .... Respondent(s)




                               J U D G M E N T

P. Sathasivam, J.
1)    Leave granted.
2)    This appeal is directed against the final  judgment  and  order  dated
16.08.2011 passed by the High  Court  of  judicature  at  Madras  in  O.S.A.
Nos.100-102 of 2006 whereby the Division  Bench  of  the  High  Court  while
rejecting OSA Nos. 101 and 102 of 2006 allowed the appeal being OSA No.  100
of 2006 filed by the respondent herein in respect of the  rejection  of  the
plaint against the appellant herein (1st  defendant  in  the  suit)  by  the
learned single Judge of the High Court.
3)    Brief facts:
(a)   On 07.01.1990, the appellant-Society (first defendant), the  owner  of
the property situated at Door No. 35, Lock Street, Kottur,  Chennai  entered
into an Agreement for Sale of the property in favour of one S. Velayutham  -
2nd defendant in the suit on the condition that the  transaction  should  be
completed within 6 months after obtaining  clearance  from  Income  Tax  and
other departments and also received an amount of Rs. 5 lakhs as an  advance.
On 19.10.1990, the 1st defendant-Society  executed  a  registered  power  of
attorney in  favour  of  the  2nd  defendant  limited  for  the  purpose  of
empowering him to represent the Society before  the  statutory  authorities.
On 15.10.1991, the 1st defendant-Society revoked  the  registered  power  of
attorney executed in favour of the 2nd defendant by  a  registered  document
alleging various reasons.  On 19.11.1991, as the  2nd  defendant  failed  to
comply with the commitments made, the 1st  defendant-Society  cancelled  the
agreement for sale dated 07.01.1990.
(b)   Questioning the said cancellation, the 2nd defendant  instituted  C.S.
No. 1576 of 1991 against the 1st defendant-Society before the High Court  of
Madras for specific performance of the agreement dated 07.01.1990.   In  the
said suit, an injunction was granted restraining the  1st  defendant-Society
from alienating  the  property.   In  the  year  2006,  the  said  suit  was
withdrawn by the 2nd defendant.
(c)   M/s Karthik Granites Pvt. Ltd., a sister  concern  of  the  respondent
herein filed C.S. No. 915 of  1994  on  the  file  of  the  High  Court  for
specific performance of the agreement  to  sell  the  larger  extent  of  56
grounds based on an alleged agreement entered into with  the  2nd  defendant
which  was  dismissed  as  settled  on  the  basis  of  the  Memorandum   of
Understanding (MoU) dated 13.02.1997.
(d)   Again on 04.08.2001, a Memorandum of Understanding (MoU)  was  entered
into between the respondent herein and 2nd defendant in which 2nd  defendant
agreed to sell the remaining portion of the property, viz., 28  grounds  and
1952 sq. ft. to the respondent, sister concern of M/s Karthik Granites  Pvt.
Ltd. as the agreement holder and power of attorney agent of  the  appellant.
On 24.11.2004, the plaintiff-respondent herein filed C.S. No.  115  of  2005
for specific performance of the agreement dated 04.08.2001.  The  plaintiff-
respondent also filed O.A. No. 132 of 2005 in the said suit praying  for  an
interim injunction restraining the defendants  from,  in  any  way,  dealing
with or alienating the suit property pending disposal  of  the  suit.    The
1st defendant therein-the Society also filed Application No.  3560  of  2005
under Order VII Rule 11 of the Code of  Civil  Procedure,  1908  (for  short
“the Code”)  praying for  rejection  of  the  plaint.   On  18.01.2006,  the
plaintiff-respondent filed Application No.179 of 2006 for amendment  of  the
plaint.
(e)    The learned single Judge  of  the  High  Court  rejected  the  plaint
insofar as 1st defendant is concerned and directed  that  the  suit  can  be
proceeded  against  the  2nd  defendant.   The  applications  bearing   Nos.
O.A.No.132 of 2005 and 179 of 2006 filed  by  the  plaintiff-respondent  for
interim injunction and amendment of the plaint were  also  rejected  by  the
learned single Judge.
(f)   Challenging the said orders, the  plaintiff-respondent  filed  appeals
before the Division Bench of  the  High  Court.   By  impugned  order  dated
16.08.2011, the Division Bench while  dismissing  the  appeals  against  the
order rejecting the applications for amendment and for  interim  injunction,
allowed the appeal against the rejection of the plaint.
(g)   Aggrieved by the said  judgment  insofar  as  it  allowed  the  appeal
against the rejection of the plaint, the appellant-Society  (1st  defendant)
has filed this appeal by way of special leave petition before this Court.
4)    Heard Mr. K. Parasaran and Mr. Ranjit Kumar,  learned  senior  counsel
for the appellant and Mr. Mukul Rohatgi,  learned  senior  counsel  for  the
respondent.
Points for consideration:
5)    The points for consideration in this appeal are:
a)    whether the learned single Judge of the High Court  was  justified  in
ordering rejection of the plaint insofar as the first  defendant  (appellant
herein) is concerned; and
b)    whether the Division Bench of the High Court was  right  in  reversing
the said decision?
6)    Since the appellant herein, as the first defendant  before  the  trial
Judge, filed application under Order VII Rule 11 of  the Code for  rejection
of the plaint on the ground that it  does  not  show  any  cause  of  action
against him, at the foremost, it is useful to refer the relevant provision:
Order VII Rule 11 of the Code:
      “11. Rejection  of  plaint—  The  plaint  shall  be  rejected  in  the
      following cases:—
      (a) where it does not disclose a cause of action;
      (b) where the relief claimed is undervalued,  and  the  plaintiff,  on
      being required by the Court to correct the valuation within a time  to
      be fixed by the Court, fails to do so;
      (c) where the relief claimed is properly valued,  but  the  plaint  is
      returned upon paper insufficiently  stamped,  and  the  plaintiff,  on
      being required by the Court to supply the requisite stamp-paper within
      a time to be fixed by the Court, fails to do so;
      (d) where the suit appears from the statement  in  the  plaint  to  be
      barred by any law;
      (e) where it is not filed in duplicate;
      (f) where the plaintiff fails to comply with the provision of Rule 9:
      Provided that the time fixed by the Court for the  correction  of  the
      valuation or supplying of  the  requisite  stamp-paper  shall  not  be
      extended unless the Court, for reasons to be  recorded,  is  satisfied
      that the plaintiff was prevented by any cause of an exceptional nature
      for correcting the valuation or supplying the  requisite  stamp-paper,
      as the case may be, within the  time  fixed  by  the  Court  and  that
      refusal to extend  such  time  would  cause  grave  injustice  to  the
      plaintiff.”
It is clear from the above that where the plaint does not disclose  a  cause
of action, the relief claimed is undervalued and not  corrected  within  the
time allowed by the Court, insufficiently stamped and not  rectified  within
the time fixed by the Court, barred  by  any  law,  failed  to  enclose  the
required copies and the plaintiff fail to  comply  with  the  provisions  of
Rule 9, the Court has no other option except to reject the same.  A  reading
of the above provision also makes it clear that power under Order  VII  Rule
11 of the Code can be exercised at any  stage  of  the  suit  either  before
registering the plaint or after the issuance of summons  to  the  defendants
or at any time before the  conclusion  of  the  trial.   This  position  was
explained by this Court in Saleem Bhai & Ors. vs. State of  Maharashtra  and
Others, (2003) 1 SCC 557, in which, while considering Order VII Rule  11  of
the Code, it was held as under:
      “9. A perusal of Order VII  Rule  11  CPC  makes  it  clear  that  the
      relevant  facts  which  need  to  be  looked  into  for  deciding   an
      application thereunder are the averments  in  the  plaint.  The  trial
      court can exercise the power under Order VII Rule 11 CPC at any  stage
      of the suit — before registering the plaint or after  issuing  summons
      to the defendant at any time before the conclusion of the  trial.  For
      the purposes of deciding an application under clauses (a) and  (d)  of
      Rule 11 of Order VII CPC, the averments in the plaint are germane; the
      pleas taken by the defendant in the written statement would be  wholly
      irrelevant at that stage, therefore, a direction to file  the  written
      statement without deciding the application under Order VII Rule 11 CPC
      cannot  but  be  procedural  irregularity  touching  the  exercise  of
      jurisdiction by the trial court…….”

It is clear that in order to consider Order VII Rule 11, the  Court  has  to
look into the averments in the plaint and the same can be exercised  by  the
trial Court at any stage of the suit.  It is also clear that  the  averments
in the written statement are immaterial and it is the duty of the  Court  to
scrutinize the averments/pleas in the plaint.  In other  words,  what  needs
to be looked into in deciding such an application are the averments  in  the
plaint.  At that stage, the pleas taken by  the  defendant  in  the  written
statement are wholly irrelevant and the matter is to be decided only on  the
plaint averments. These principles have been reiterated in Raptakos Brett  &
Co. Ltd. vs. Ganesh Property (1998) 7 SCC 184  and  Mayar  (H.K.)  Ltd.  and
Others vs. Owners & Parties, Vessel M.V. Fortune Express and  Others  (2006)
3 SCC 100.
7)    It is also useful to refer the judgment in T.  Arivandandam  vs.  T.V.
Satyapal & Anr., (1977) 4 SCC 467, wherein while considering the  very  same
provision, i.e. Order VII Rule 11  and  the  duty  of  the  trial  Court  in
considering such application, this Court has reminded the trial Judges  with
the following observation:
      “5. ……….The learned Munsif must remember that if on a meaningful – for
      formal – reading  of  the  plaint  it  is  manifestly  vexatious,  and
      meritless, in the sense of not disclosing a clear  right  to  sue,  he
      should exercise his power under Order VII, Rule 11 C.P.C. taking  care
      to see that the ground mentioned therein is fulfilled.  And if  clever
      drafting has created the illusion of a cause of action nip it  in  the
      bud at the first hearing by  examining  the  party  searchingly  under
      Order X, C.P.C.  An activist Judge is the answer to irresponsible  law
      suits.  The trial Courts would insist imperatively  on  examining  the
      party at the first hearing so that bogus litigation can be  shot  down
      at the earliest stage.  The Penal Code is also resourceful  enough  to
      meet such men, (Cr.XI) and must be triggered against them…..”


It is clear that if the allegations are  vexatious  and  meritless  and  not
disclosing a clear right or material(s) to sue, it is the duty of the  trial
Judge to exercise his power under Order VII Rule  11.   If  clever  drafting
has created the illusion of a cause of action as observed  by  Krishna  Iyer
J., in the above referred decision, it should be nipped in the  bud  at  the
first hearing by examining the parties under Order X of the Code.


Cause of Action:
8)    While scrutinizing the plaint averments, it is  the  bounden  duty  of
the trial Court to ascertain the materials for cause of action.   The  cause
of action is a bundle of facts which taken with the law applicable  to  them
gives the plaintiff the right to relief against the defendant.   Every  fact
which is necessary for the plaintiff to prove to enable him to get a  decree
should be set out in clear terms.  It is worthwhile to find out the  meaning
of the words “cause of action”.  A cause of action  must  include  some  act
done by the defendant since in the absence  of  such  an  act  no  cause  of
action can possibly accrue.
9)    In A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem (1989)  2
SCC 163, this Court explained the meaning of “cause of action” as follows:
      “12. A cause of action means every fact, which if traversed, it  would
      be necessary for the plaintiff to prove in order to support his  right
      to a judgment of the court. In other words, it is a  bundle  of  facts
      which taken with the law applicable to  them  gives  the  plaintiff  a
      right to relief against the defendant. It must include some  act  done
      by the defendant since in the absence of  such  an  act  no  cause  of
      action  can  possibly  accrue.  It  is  not  limited  to  the   actual
      infringement of the right sued on but includes all the material  facts
      on which it is founded. It does not  comprise  evidence  necessary  to
      prove such facts, but every fact necessary for the plaintiff to  prove
      to enable him to obtain a decree. Everything which if not proved would
      give the defendant a right to immediate judgment must be part  of  the
      cause of action. But it has no relation whatever to the defence  which
      may be set up by the defendant nor does it depend upon  the  character
      of the relief prayed for by the plaintiff.”

10)   It is useful to refer the judgment in Bloom  Dekor  Ltd.  vs.  Subhash
Himatlal Desai & Ors. (1994) 6 SCC 322, wherein a three Judge Bench of  this
Court held as under:

      “28. By “cause of action” it is meant every fact, which, if traversed,
      it would be necessary for the plaintiff to prove in order  to  support
      his right to a judgment of the Court, (Cooke v. Gill,  1873  LR  8  CP
      107). In other words, a bundle of facts which it is necessary for  the
      plaintiff to prove in order to succeed in the suit.”

It is mandatory that in order to get relief, the plaintiff has to  aver  all
material facts.  In other words, it is necessary for the plaintiff  to  aver
and prove in order to succeed in the suit.
Forms 47 and 48 of Appendix A of the Code
11)   Mr. K. Parasaran, learned senior counsel by  taking  us  through  Form
Nos. 47 and 48 of Appendix A of the Code which relate to suit  for  specific
performance submitted that inasmuch as those forms are statutory  in  nature
with regard to the claim filed for the relief for specific performance,  the
Court has to be satisfied that the plaint discloses a cause of  action.   In
view of  Order VII Rule 11(a) and 11(d), the Court has to satisfy  that  the
plaint discloses a cause of action and does not appear to be barred  by  any
law.  The statutory forms require the date of agreement to be  mentioned  to
reflect that it does not appear to be barred by limitation.  In addition  to
the same, in a suit for specific performance, there should be  an  agreement
by the defendant or by a person duly  authorized  by  a  power  of  attorney
executed in his favour by the owner.
12)   In the case on hand, the plaintiff-respondent  to  get  a  decree  for
specific performance has to prove that there is a  subsisting  agreement  in
his favour and the second defendant has the necessary  authority  under  the
power of attorney.  Order VII Rule 14 mandates that  the  plaintiff  has  to
produce the documents on which the cause of action is based,  therefore,  he
has to produce the power of attorney when the plaint  is  presented  by  him
and if he is not in possession of the same, he has to state as to  in  whose
possession it is.  In the case on  hand,  only  the  agreement  between  the
plaintiff and the second defendant has been  filed  along  with  the  plaint
under Order VII Rule 14(1).  As rightly pointed out by  the  learned  senior
counsel for the appellant, if he is  not  in  possession  of  the  power  of
attorney,  it  being  a  registered  document,  he  should  have   filed   a
registration copy of the same.  There is no such explanation  even  for  not
filing the registration copy of the power  of  attorney.   Under  Order  VII
Rule 14(2) instead of explaining in whose custody the power of attorney  is,
the plaintiff has simply stated ‘Nil’.  It clearly shows  non-compliance  of
Order VII Rule 14(2).
13)   In the light  of  the  controversy,  we  have  gone  through  all  the
averments in the plaint.  In paragraph 4 of the plaint, it is  alleged  that
the 2nd defendant as agreement holder of the 1st defendant and also  as  the
registered power of attorney  holder  of  the  1st  defendant  executed  the
agreement of sale.  In spite of our best efforts,  we  could  not  find  any
particulars showing as to the documents which are referred to as  “agreement
holder”.  We are satisfied that neither the documents were filed along  with
the plaint nor the terms thereof have been  set  out  in  the  plaint.   The
abovementioned two documents were to be treated as part  of  the  plaint  as
being the part of the cause of action.  It  is  settled  law  that  where  a
document is sued upon and its terms are  not  set  out  in  the  plaint  but
referred to in the plaint, the said document gets incorporated by  reference
in the plaint.  This position has been reiterated in U.S. Sasidharan vs.  K.
Karunakaran and Another (1989)  4  SCC  482  and  Manohar  Joshi  vs.  Nitin
Bhaurao Patil and Another (1996) 1 SCC 169.
Power of Attorney:
14)   Next, we have to consider the power of attorney.  It is  settled  that
a power of attorney has to be strictly construed.   In  order  to  agree  to
sell or effect a sale  by  a  power  of  attorney,  the  power  should  also
expressly authorize the power to agent to execute  the  sale  agreement/sale
deed i.e., (a) to present the document before  the  Registrar;  and  (b)  to
admit execution of the document before the  Registrar.   A  perusal  of  the
power of attorney, in the present case, only  authorizes  certain  specified
acts but not any act authorizing entering into an agreement of  sale  or  to
execute sale deed or admit execution before  the  Registrar.   In  a  recent
decision of this Court in Suraj Lamp and Industries Pvt. Ltd. vs.  State  of
Haryana and Another (2012) 1 SCC 656, the scope of  power  of  attorney  has
been explained in the following words:

      “20. A power of attorney is not an instrument of transfer in regard to
      any right, title or interest in an immovable property.  The  power  of
      attorney is creation of an agency whereby the grantor  authorises  the
      grantee to do the acts specified therein, on behalf of grantor,  which
      when executed will be binding on the grantor as if done  by  him  (see
      Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It  is
      revocable or terminable at any time unless it is made irrevocable in a
      manner known to law. Even an irrevocable attorney does  not  have  the
      effect of transferring title to the grantee.

           21. In State of Rajasthan v. Basant Nahata, (2005)  12  SCC  77.
      this Court held: (SCC pp.    90 & 101, paras 13 & 52)

           “13. A grant of power of attorney  is  essentially  governed  by
      Chapter X of the Contract Act.  By  reason  of  a  deed  of  power  of
      attorney, an agent is formally appointed to act for the  principal  in
      one transaction or a series of transactions or to manage  the  affairs
      of the principal generally conferring necessary authority upon another
      person. A deed of power of attorney is executed by  the  principal  in
      favour of the agent. The agent derives a right to use his name and all
      acts, deeds and things done by him  and  subject  to  the  limitations
      contained in the said deed, the same shall be read as if done  by  the
      donor. A power of attorney  is,  as  is  well  known,  a  document  of
      convenience.

                 *     *    *

           52. Execution of a power of attorney in terms of the  provisions
      of the Contract Act as also the Powers of Attorney  Act  is  valid.  A
      power of attorney, we have noticed hereinbefore, is  executed  by  the
      donor so as to enable the donee to act on his behalf. Except in  cases
      where power of attorney is coupled with interest, it is revocable. The
      donee in exercise of his power under such power of attorney only  acts
      in place of the donor subject of course to the powers granted  to  him
      by reason thereof. He cannot use the power of  attorney  for  his  own
      benefit. He acts in a fiduciary capacity. Any  act  of  infidelity  or
      breach of trust is a matter between the donor and the donee.”

           An attorney-holder may however execute a deed of  conveyance  in
      exercise of the power granted under the power of attorney  and  convey
      title on behalf of the grantor.”




15)   It is clear that from the date the power of attorney  is  executed  by
the principal in favour of the agent and by virtue of the  terms  the  agent
derives a right to use his name and all acts, deeds and things done  by  him
are subject to the limitations contained in the said deed.   It  is  further
clear that the power of attorney holder executed a  deed  of  conveyance  in
exercise of the power granted under it and conveys title on  behalf  of  the
grantor.   In the case on  hand,  though  the  plaint  avers  that  the  2nd
defendant is the agreement holder of the 1st defendant, the  said  agreement
is not produced.  It was also pointed out that  the  date  of  agreement  is
also not given in the plaint.  We have already mentioned Form  Nos.  47  and
48 of Appendix  A  and  failure  to  mention  date  violates  the  statutory
requirement and if the date is one which attracts  the  bar  of  limitation,
the plaint has to conform to Order VII Rule 6  and  specifically  plead  the
ground upon which exemption from limitation  is  claimed.   It  was  rightly
pointed out on the side of the appellant that in order to get over  the  bar
of limitation all the required details have been omitted.

Relief of Specific Performance is discretionary:

16)   Under Section 20 of the Specific Relief Act, 1963, it is settled  that
the jurisdiction to grant specific performance is discretionary.  The  above
position has been reiterated by the Division Bench of the Madras High  Court
even in 1937  vide  Sirigineedi  Subbarayadu  vs.  Kopanathi  Tatayya,  1937
Madras Weekly Notes 1158, 1159.  The same  view  has  been  reiterated  once
again by the Madras High Court in Ramaswamy Gounder vs.  K.M.  Venkatachalam
1976(1) Madras Law Journal 243, 248, 249 paras 11-13.  The similar view  has
been reiterated by this Court in  Mohammadia  Cooperative  Building  Society
Ltd. vs. Lakshmi Srinivasa Cooperative  Building  Society  Ltd.  and  Others
(2008) 7 SCC 310.



Non-joinder of Defendant No. 2 in the  application  filed  under  Order  VII
Rule 11



17)   In view of the conduct of the plaintiff, bereft of required  materials
as mandated by  the  statutory  provisions,  the  plaint  is  liable  to  be
rejected at this stage itself as the cause of action pleaded in  the  plaint
is  vitiated.   Learned  senior  counsel  for  the   respondent   vehemently
contended that inasmuch as in the application for rejection of  plaint,  the
1st defendant has not impleaded the 2nd defendant, the said  application  is
liable to be dismissed on the ground of non-joinder of  the  2nd  defendant,
who is a necessary party.  On the other hand,  learned  senior  counsel  for
the appellant submitted that 2nd defendant is not a necessary party  to  the
application for rejection of plaint and according to him non-joinder of  the
2nd defendant does not affect the merit of the application as the  plaintiff
alone is a necessary party to the application for rejection of plaint.   The
stand taken by the appellant, who has filed the  application  for  rejection
of the plaint, is sustainable and acceptable.  We have already  adverted  to
the averments in the plaint and we have held that the plaint has  not  shown
a complete cause of action of privity of contract between the plaintiff  and
the first defendant or on behalf  of  the  1st  defendant.   To  reject  the
plaint even before registration  of  the  plaint  on  one  or  more  grounds
mentioned in Order VII Rule 11 of the Code, the other  defendants  need  not
necessarily be heard at all as it  does  not  affect  their  rights.   As  a
matter of fact, this Court in Saleem Bhai (supra) held that the  plaint  can
be rejected even before the issuance of summons.  This  Court  has  taken  a
view that the trial Court can exercise its power under Order VII Rule 11  of
the Code at any stage of the suit i.e.  before  registering  the  plaint  or
after issuance of summons to the  defendants  or  at  any  time  before  the
conclusion of the trial.  We respectfully  agree  with  the  said  view  and
reiterate the same.  On the other hand, when the plaintiff  itself  persists
in not impleading a necessary party in spite of objection, the  consequences
of non-joinder may follow.  However, the said objection should be  taken  in
the trial Court itself so that the plaintiff  may  have  an  opportunity  to
rectify the defect.   The said plea cannot be raised in this Court  for  the
first time.  This position has been reiterated in State  of  U.P.   vs.  Ram
Swarup Saroj (2000) 3 SCC 699.  We hold that a plea as  to  the  non-joinder
of the party cannot be raised for the first time before this  Court  if  the
same was not raised before the trial Court and has not resulted  in  failure
of justice.  In the case of non-joinder, if the objection is raised for  the
first time before this Court, the Court can always implead the party on  the
application wherever necessary.   However, in the  case  on  hand,  for  the
disposal of application filed for rejection of the plaint  under  Order  VII
Rule 11, 2nd defendant is not a  necessary  party,  hence  he  need  not  be
impleaded.  Accordingly, we reject the  said  objection  of  the  respondent
herein.

18)   Apart from the above aspect, in the case on hand, the application  for
rejection of the plaint of  the  appellant-1st  defendant  seeks  no  relief
against the respondent herein-2nd defendant.  It is settled  legal  position
that a party against whom no relief is claimed in the application is  not  a
necessary party at all.

19)   Mr. Mukul Rohatgi, learned senior counsel for the  respondent  pointed
out that the learned single Judge while accepting the case of the appellant-
1st defendant in allowing the application for rejection of plaint has  taken
into consideration extraneous material, i.e., the suit filed by M/s  Karthik
Granites (P) Ltd. (C.S.No. 915 of 1994) and the Memorandum of  Understanding
(MoU) dated 13.02.1997.  It is brought to our notice that it is the  counsel
for the plaintiff who relied on these two extraneous  materials  beyond  the
plaint for sustaining the plaint though  that  material  was  sought  to  be
incorporated by amendment of the plaint.  Apart from these, in  addition  to
the application  for  rejection  of  the  plaint,  two  other  applications,
namely, for injunction and for  amendment  of  plaint  were  also  taken  up
together which led to the situation considering  materials  other  than  the
plaint  averments  for  the  purpose  of  considering  the  application  for
rejection of the  plaint.    Accordingly,  the  contention  of  the  learned
senior counsel for the respondent is liable to be rejected.

20)   Finally, learned senior counsel for the respondent submitted  that  in
view of a decision of this Court  in Roop Lal  Sathi  vs.  Nachhattar  Singh
Gill (1982) 3 SCC 487, rejection of the plaint in  respect  of  one  of  the
defendants is not sustainable.  We have  gone  through  the  facts  in  that
decision and the materials placed for rejection of plaint  in  the  case  on
hand.  We are satisfied that the principles of the said  decision  does  not
apply to the facts of the present case where the appellant-1st defendant  is
not seeking rejection of the plaint in part.  On the  other  hand,  the  1st
defendant has prayed for rejection of the plaint as a whole for  the  reason
that it does  not  disclose  a  cause  of  action  and  not  fulfilling  the
statutory provisions.   In addition to  the  same,  it  is  brought  to  our
notice that this contention  was  not  raised  before  the  High  Court  and
particularly in view of the  factual  details,  the  said  decision  is  not
applicable to the case on hand.

21)   In the light of the above discussion, in view of the shortfall in  the
plaint averments, statutory provisions, namely,  Order  VII  Rule  11,  Rule
14(1) and Rule 14(2), Form Nos. 47 and 48 in Appendix A of  the  Code  which
are statutory in nature, we hold that the learned single Judge of  the  High
Court has correctly concluded that in the absence of  any  cause  of  action
shown as against the 1st defendant, the suit cannot be proceeded either  for
specific performance or for the recovery of money advanced  which  according
to the plaintiff was given to the 2nd defendant  in  the  suit  and  rightly
rejected the plaint  as  against  the  1st  defendant.   Unfortunately,  the
Division  bench  failed  to  consider  all  those   relevant   aspects   and
erroneously reversed the decision of  the  learned  single  Judge.   We  are
unable to agree with the reasoning of the Division Bench of the High Court.

22) In the light of the above  discussion,  the  judgment  and  order  dated
16.08.2011 passed by the Division Bench of the High Court in OSA No. 100  of
2006 is set aside and the order  dated  25.01.2006  passed  by  the  learned
single Judge in Application No. 3560 of 2005 is restored.  The civil  appeal
is allowed with costs.




                             ...…………….…………………………J.


                                 (P. SATHASIVAM)






                              .…....…………………………………J.


                              (J. CHELAMESWAR)


NEW DELHI;
JULY 03, 2012.
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