evacuee property = It is clear from Section 16 that on account of the non-obstante clause, the provisions of Section 16 will prevail over any other law for the time being in force and the right of occupancy in any land of an evacuee shall not be extinguished. Accordingly, in the event the tenants were enjoying occupancy rights in respect of the lands in their possession, they could not be evicted therefrom by virtue of the Notification published under Section 6 of the 2006 Act. The fact situation of this case is different from the circumstances contemplated under Rule 13-C of the 2008 Rules. In the present case, the lands covered by the Settlement were not vacant and were not, therefore, within the ambit of Rule 13-C when the Settlement was at the gestation stage. It is only under the Settlement that the claims and rights, if any, of the writ petitioners were required to be surrendered and, therefore, the question of actual surrender of possession of 22 kanals of land out of 37 kanals and 5 marlas, was to follow, leaving a balance of 15 kanals and 5 marlas to be allotted to the occupancy rights and tenants-at-will in respect thereof. 36. The special facts of the case set the present Agreement/Settlement apart from the cases of grant of lease of vacant lands in terms of Rule 13- C and has, therefore, to be treated differently. Firstly, as the lands were not vacant, the very first criterion of Rule 13-C, was not satisfied and the lease of the lands were to be granted as part of the settlement packet, which included surrender of 22 kanals of prime land. We are inclined to agree with the views expressed by Mansoor Ahmad Mir, J. that in the special facts of this case, Rule 13-C of the 2008 Rules would have no application to the Settlement arrived at between the parties and the same were not, therefore, vitiated for not putting the lands to auction to determine the premium to be paid for the leases to be granted in respect thereof. As observed by His Lordship, it was nobody's case that the Settlement was the outcome of any fraud or was unlawful and the same, having been signed and acted upon, was binding on the parties and could not be withdrawn unilaterally. 37. In our view, the Settlement arrived at between the parties and filed before the High Court for acceptance by way of CMP No.128 of 2006 is lawful and within the scope of Sub-Rule (3) of Order 23 of the Code of Civil Procedure. The decision holding the Settlement to be contrary to the provisions of Rule 13-C of the 2008 Rules, as held by H. Imtiyaz Hussain, J. on 15th September, 2007, and affirmed by the third learned Judge, Y.P. Nargotra, J. by his judgment and order dated 25th March, 2008, cannot be sustained and is set aside. Consequently, the view expressed by Mansoor Ahmad Mir, J. is upheld. CMP No.525 of 2006 is, accordingly, dismissed and CMP No.128 of 2006 is allowed. The High Court shall proceed to pass appropriate orders for acceptance of the out-of-Court settlement and for adjustment of the rights of the parties in terms thereof in the LPA as well as in OWP No.480 of 2003 and OWP No.454 of 2005. 38. Since, in these appeals we have only been called upon to consider as to whether the Settlement arrived at between the parties stood vitiated on account of non-compliance with the provisions of Rule 13-C of the 2008 Rules, we have not expressed any opinion with regard to the second limb of the submissions advanced regarding the constitutionality of Section 6 of the 2006 Act. The said issue is, accordingly, left to the High Court for decision. We make it clear that whatever has been expressed in this judgment, shall not in any way prejudice and/or affect the outcome of the decision of the High Court in the said matter. 39. The appeals are, accordingly, disposed of. There will, however, be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NOS.6-7 OF 2013
               (Arising out of SLP(C)Nos.11221-11222 of 2008)


1 GHULAM NABI DAR & ORS.             …  APPELLANTS


           Vs.



           2 STATE OF J&K & ORS.                …  RESPONDENTS


                                    WITH

                        CIVIL APPEAL NOS.8-9 OF 2013
               (Arising out of SLP(C)Nos.14286-14287 of 2008)



                               J U D G M E N T


ALTAMAS KABIR, CJI.


1.    Leave granted.



2.    The disputes between the parties relate to lands measuring  37  Kanals
5 marlas comprised in several survey numbers forming the subject  matter  of
OWP No. 480 of 2003 and OWP No. 454 of 2005.  On 21st  November,  1980,
 the
Custodian of Evacuee Property, Kashmir, issued a Notification under  Section
6 of the Jammu and Kashmir  State  Evacuees'  (Administration  of  Property)
Act, 2006,  hereinafter  referred  to  as  "the  2006  Act",  declaring  the
aforesaid land to be evacuee property, being in the ownership of one  Qamar-
ud-Din and other evacuees.  
Inasmuch as, the writ  petitioners  in  OWP  No.
480 of 2003, claiming to the tenants-at-will of the  land  involved  in  the
writ petition, commenced earth filling, they were stopped from doing  so  by
the  Evacuee Department. 
 It is the case of the writ petitioners  that  when
they  made  inquiries,  they  were  able  to  lay  their  hands  on  records
indicating that the lands measuring 11 kanals  6  marlas  out  of  the  land
comprised in the said survey numbers had been  taken  over  by  the  Evacuee
Department and placed at the supurdnama of the Custodian vide three  seizure
memos dated 22nd January, 2003 and 1st February, 2003.  
Claiming  that  they
were in possession of the land in  the  capacity  of  tenants-at-will  since
before the aforesaid Act came to be enacted, the petitioner in OWP  No.  480
of 2003 prayed for the following reliefs:-
       "(i)  it  be  declared  that  Section   6   of   the   J&K   Evacuee
       (Administration of Property) Act, 2006 is unconstitutional;


       (ii) it be declared that Section 3 of the Agrarian Reforms Act, 1976
       in so far as it excludes the application of Sections 4 and 8 of  the
       tenants of evacuee land is ultra vires the Constitution.


       (iii)     That by an appropriate writ, direction or order  including
       the    writ    in    the    nature    of    certiorari     following
       notification/communication be quashed:-


           1.    Notification dated 21.11.1980


           2.    Communication No. CEPS/GE/2002/2766-70 dated 17.12.2002.


           3.     Communication  No.CG(EP)1020/  2003/  167-Misc.  K  dated
           23.1.2003


           4.    Three seizure memo dated 2.2.2003


           5.    Communication No. CEPE-JE/2002/3347-50 dated 6.2.2003


           6.    Communication No. DFI/SG/378 dated 22.2.2003


        (iv)      That by an appropriate writ, direction or order  including
        a writ in the nature of prohibition respondents be  restrained  from
        interfering in the rights of possession of the  petitioners  in  the
        land and in their levelling of land and from fencing.


        (v) ........"




       Along  with  the  writ  petition,  the  petitioners  also  filed   a
miscellaneous petition seeking interim relief in which it was ordered  that
the Respondents were not to dispossess the petitioners from  the  lands  in
dispute, till the next date.  The petitioners  were  also  restrained  from
raising any construction or changing the nature and character of  the  said
lands during the said period.  However, when during  the  pendency  of  the
writ petition, the Custodian started construction of a shopping complex, in
violation of the said order of injunction, the  petitioners  filed  another
CMP in which notice was issued on 22nd April, 2004, returnable within  four
weeks, and till then the parties were  directed  to  maintain  status  quo.
Subsequently, by  an  order  dated  30th  September,  2004,  the  Registrar
(Judicial) of the High Court was appointed as  Commissioner  to  visit  and
submit a report which he did on 7th October, 2004.



3.    On receipt of the report and on  being  satisfied  that  construction
work had been undertaken by the Custodian on the aforesaid  lands  and  was
being proceeded with, the High Court by  its  order  dated  19th  November,
2004, restrained the Respondents from raising any construction on the spot.
 Since its earlier orders had been violated by the Custodian,  the  Station
House Officer of the concerned Police Station was directed to see that  the
order of the Court was duly complied with, till the petition was considered
for admission, or until further orders.



4.    Aggrieved by the aforesaid order of  the  learned  Civil  Judge,  the
Custodian of Evacuee Property filed  LPA  No.  169  of  2004.   Other  writ
petitioners, who also claimed to be in possession of their lands as tenants-
at-will and as "protected tenants", have also challenged  the  validity  of
the  provisions  of  Section  6  of   the   Jammu   and   Kashmir   Evacuee
(Administration of Property) Act,  2006  and  Section  3  of  the  Agrarian
Reforms Act, 1976, insofar as it excludes the application of Sections 4 and
8 to the tenants of evacuee properties.



5.    While the matters were pending, serious  efforts  were  made  by  the
parties for an out of court settlement which ultimately fructified in terms
of a settlement which was submitted before the Court by way of CMP No.  128
of 2006.
The Settlement presented before the Court was duly signed by  the
Custodian of Evacuee Property, Kashmir and by all the writ petitioners  and
their  counsel.  
While  the  above  miscellaneous  petition   was   pending
consideration, the Advocate General filed an application on 23rd May, 2006,
praying that the Settlement be not accepted, which  application  was  later
withdrawn.
In the meantime, there was a change in the Government  and  the
Custodian was also transferred.  The new Custodian took a decision to refer
the matter back to the  State  Government.  
On  10th  October,  2006,  the
Custodian filed an application praying for  withdrawal  of  the  Settlement
contained in CMP No. 128 of 2006, and in support of such  application,  the
Custodian placed reliance upon a letter of the Revenue Department in  which
it was stated that the Revenue Minister had accorded approval for reversing
the earlier decision taken on 27/28th March,  2005,  for  entering  into  a
settlement  with  the  occupants  of  the  evacuee  property.  
The   said
application for withdrawal of the Settlement filed by the Custodian came to
be registered as CMP No. 525 of 2006.



6.    The two miscellaneous petitions, being CMP No. 128 of 2006,  filed  by
the parties for disposing of the appeal and writ petitions in terms  of  the
compromise and CMP No. 525 of 2006, filed by the  Custodian  for  withdrawal
of the Settlement, came up for consideration before the  Division  Bench  of
the Hon’ble Mr. Justice H.  Imtiaz  Hussain  and  the  Hon’ble  Mr.  Justice
Mansoor Ahmad Mir, on 15th September, 2007.
As indicated  hereinbefore,  the
Hon’ble Judges differed on the relief prayed for.
While H.  Imtiaz  Hussain,
J. held that the Settlement violated Rule 13-C  of  the  Jammu  and  Kashmir
State  Evacuees’  (Administration  of  Property)  Rules,  2008,  hereinafter
referred to as “the 2008 Rules” and could not,  therefore,  be  accepted  by
the Court,
Mansoor Ahmad Mir J. held that the aforesaid Rule did not  apply
to the facts of the case and that it was nobody’s case, that the  Settlement
arrived at was the outcome of fraud or unlawful. His Lordship  was  also  of
the view that the Settlement having been duly signed and acted upon  by  the
parties, the same was binding on the parties  and  could  not  be  withdrawn
unilaterally. His Lordship, therefore, dismissed CMP No. 525 of 2006,  filed
by the Custodian for withdrawal of the Settlement and directed  the  listing
of LPA No. 169 of 2004 and CMP No. 128 of 2006, for  further  arguments.
 In
view of such differences, the matter  was  referred  to  Hon’ble  the  Chief
Justice in terms of Rule 36(2) of the Jammu and Kashmir  High  Court  Rules,
for referring the matter to a Third Judge.

      The learned third Judge  framed  three  questions  for  consideration,
namely,



    . (a)   whether Rule 13-C of the 2008 Rules is attracted  to  the
      Settlement arrived at by    the parties?



    . (b)   whether the Settlement contravenes Rule      13-C?



    . (c)   whether the Custodian can  withdraw  from the  Settlement unilaterally?

7.    Before the learned third Judge it was sought to be urged on behalf  of
the State that
the chunk of the land in question belonged to  one  Qamar-ud-
Din  who  had  two  brothers,  namely,  Ahmad  Din  and  Imam  Din.
In  the
disturbances of 1947, Qamar-ud-Din left the State and became an evacuee  and
his property was declared as evacuee property.
In 1949 or 1950 there was  no
such record available in the Custodians Department.
Subsequently, Ahmad  Din
submitted three applications dated 11th Assuj 2009, before the Custodian  of
Evacuee properties with a  request  that  three  bungalows  along  with  the
premises be declared as non-evacuee property  as  the  entire  property  was
held by the three brothers, Qamar-ud-Din, Ahmad Din and Imam Din.
The  said
three applications were dismissed on grounds of default on 28th July,  1956.
An application for review of the said order  was  filed  on  20th  November,
1956, which was disposed  of  by  the  Custodian  by  his  Order  dated  5th
September, 1963, whereby the close relatives of the evacuees were  appointed
as managers of the properties provided they gave an  undertaking  that  they
would submit yearly accounts of income and  expenditure  to  the  Department
and deposit the income from the properties regularly so that the same  could
be credited against the names of the evacuees.
It was, therefore,  contended
on behalf of the State that in terms of the above Orders, the property  came
under the control of the  Evacuee  Department  and  was  being  administered
through its allottees and managers appointed by it. 
It was  also  the  stand
of the State that once the  Custodian  came  into  control  of  the  evacuee
properties, he decided to construct  a  Shopping  Mall  over  the  land  and
allotted the work of construction to a contractor, who started  raising  the
construction thereupon. 
It was also urged that notwithstanding the claim  of
the writ petitioners to be in possession of  the  lands  as  tenants,  their
rights, if any, in the land, were extinguished  once  the  Evacuee  Property
Act came into effect and in any case by virtue  of  the  declaration  issued
under Section 6 of the 2006 Act.

8.    It was also the  case  of  the  State  that  any  allotment  of  lands
belonging to the State could not have been settled  without  complying  with
the provisions of Rule  13-C  of  the  2008  Rules  and  such  contravention
invalidated the Settlement which was, therefore,  illegal  and  was  rightly
declared to be so by H. Imtiaz Hussain, J.

      On the other hand, it was contended by Mr.  Shah,  appearing  for  the
writ petitioners, that the Settlement between the parties was in the  nature
of a contract and had been  arrived  at  by  the  parties  who  enjoyed  the
freedom to contract. It was also submitted by him that Rule 13-C could  have
applied if the land to be allotted was vacant. According to Mr. Shah,  since
the writ petitioners were holding the land as tenants,  it  was  not  vacant
for the purposes of Rule 13-C of the  Rules.  According  to  Mr.  Shah,  the
views expressed by the Hon’ble Justice Mansoor Ahmad Mir was  in  consonance
with Rule 13-C, which  in  the  facts  of  the  case,  could  not  have  any
application to the lands in question.



9.    It was also contended by Mr. Shah that even assuming  that  Rule  13-C
was applicable, even then there was no violation of its  provisions  as  the
premium was fixed in the present case by taking into consideration the  fact
that the writ petitioners were surrendering all their rights in  respect  of
the whole land. The premium was fixed by the members of a  committee  headed
by none else than the Minister-in-Charge of the  Custodian  Department.  Mr.
Shah also submitted before the learned third Judge that the  rate  of  Rs.30
lakhs per kanal, as indicated by  the  Appellants,  was  not  based  on  any
relevant material.

10.   As mentioned hereinbefore, the controversy in  this  case  related  to
the applicability of Rule 13-C in regard to the land in question.

      In his judgment and order dated 25th March, 2008,  the  learned  third
Judge, Y.P. Nargotra. J. agreed with the view taken by  H.  Imtiaz  Hussain,
J. that the parties had violated Rule 13-C of the above-mentioned Rules  and
the Custodian was, therefore, competent to unilaterally withdraw  the  same.
The Learned Judge came to such a conclusion on the ground that in  terms  of
the Settlement arrived at, the writ petitioners would have to surrender  all
their rights over the entire  land,  which  would  render  the  land  vacant
within the meaning of Rule 13-C.

11.   On the question as to whether the Settlement  contravened  Rule  13-C,
the learned third Judge was of the view that the premium to be paid for  the
lease  to  be  granted  to  the  respondents/writ  petitioners   under   the
Settlement had not been determined by putting the lease to an  open  auction
which was in contravention of the mandatory requirement of  Rule  13-C.  The
learned Judge, therefore, held that the Settlement contravened Rule 13-C  on
the point of determining the premium payable.

12.   On the third question as to whether the Custodian could withdraw  from
the Settlement unilaterally, the learned third Judge held  that  Rule  3  of
Order 23 CPC, which related to compromise of suits, would  have  application
provided it was proved to the satisfaction of the Court that  the  suit  had
been adjusted wholly or in part by any lawful agreement  or  compromise.  In
such case, the Court would have the discretion to order  such  agreement  or
compromise to be recorded and shall pass a decree  in  accordance  therewith
in so far as it related to the parties to the suit. The learned third  Judge
took note of the Explanation to Rule 3 of Order 23 CPC, which provides  that
an agreement or compromise which is void or voidable under the Contract  Act
shall  not  be  deemed  to  be  lawful  within  the  meaning  of  the  Rule.
Accordingly, in terms of the above Explanation, an agreement  not  found  to
be lawful, could be rejected by the Court  for  the  purpose  of  passing  a
decree.



      The learned third Judge then referred to Section 23  of  the  Contract
Act, 1872, whereby any agreement which  the  Court  regards  as  immoral  or
opposed to public policy, is void. The learned third  Judge  held  that  the
Settlement was directly hit  by  Section  23  of  the  Contract  Act  as  it
defeated the object of Rule  13-C  and  was,  therefore,  unlawful  for  the
purposes of Rule 3 of Order 23 CPC. The Learned Third Judge  held  that  the
Settlement being unlawful, the Custodian was entitled to withdraw  from  the
Settlement unilaterally. Agreeing with the  views  expressed  by  H.  Imtiaz
Hussain, J., the learned third Judge observed that by consent or  agreement,
the parties cannot achieve what is contrary to law and that  the  Settlement
arrived at between the parties could not be accepted.

13.   As a result of the above, while the two miscellaneous petitions  were
disposed of by the High Court, LPA No. 169 of 2004 and OWP No. 480 of 2003,
filed by the Appellants challenging the Notification dated  21st  November,
1980, are still pending decision in the High Court.



14.   These two Appeals arise from the final judgment and order dated  25th
March, 2008, passed by the learned third Judge of the Jammu & Kashmir  High
Court at Srinagar, in the said miscellaneous applications.



15.   Briefly stated, the grievance of the Appellants is  directed  against
the order passed by H. Imtiaz Hussain,  J.,  holding  that  the  Settlement
violated Rule 13-C of the 2008 Rules and could not, therefore, be  accepted
by the Court.



16.   Appearing for the Appellants, Mr. Zaffar Ahmad Shah,  learned  senior
counsel,  reiterated  the  submissions  made  before  the  High  Court  and
submitted that, although, the Evacuee Department  issued  the  Notification
dated 21st November, 1980, the same was neither  gazetted  nor  implemented
till 1999, when an entry was made in the Revenue Records  in  that  regard.
Mr. Shah urged that all the Appellants were occupancy tenants in respect of
the lands in  which  they  were  in  possession  and  such  possession  was
protected under Section 16 of the 2006 Act.   The  impugned  order  of  the
Custodian General, being contrary to the said provisions, was  illegal  and
liable to be quashed.



17.   Mr. Shah contended that the lands in question and the lands comprised
in the surrounding areas were agricultural lands and had been utilised  for
cultivation of paddy for decades.  There  was  a  change  in  user  of  the
surrounding lands, when a bye-pass road and a new airport was  constructed.
As a result of such developments and the expansion of  the  city,  a  large
number of residential houses  and  commercial  establishments  came  to  be
constructed in and around the area called Hyder Pora.  On account  of  such
unrestrained  construction  activities,  the  level   of   land   used   in
construction work was raised considerably on account of earth filling.  The
lands of the Appellants, on the other hand, continued to be  low-lying  and
gradually became receptacles of water, making them unfit  for  cultivation.
In order to render the lands usable,  the Appellants also resorted to earth
filling to prevent collection and stagnation of  water.   It  is,  at  this
stage, that the functionaries of  the  Evacuee  Department  intervened  and
stopped the Appellants continuing  with  earth  filling  of  the  lands  in
question.



18.   Mr. Shah submitted that after purported ex parte enquiries were  made
by the Custodian General's Office, letters were issued to the Custodian  of
Evacuee Property directing him to resume possession of the lands under  the
occupation of the Appellants.  However, the Appellants were kept completely
in the dark regarding such enquiry and the procedure adopted by the  Office
of the Custodian General, in arriving at a final conclusion  regarding  the
status of the land behind the back of the  Appellants,  was  without  legal
sanction and was liable to be quashed.



19.   Mr. Shah urged that the Appellants and their predecessors-in-interest
had been holding and possessing the lands  in  question  much  before  14th
August, 1947, in their capacity as tenants and are, therefore, protected in
law against any action of the Respondents.  Mr. Shah urged that,  although,
the Respondents claimed that the property in question belongs to one Qamer-
ud-Din, he was never in possession of the lands as on 1st March,  1947,  or
on 14th August, 1947 and the  predecessors-in-interest  of  the  Appellants
were all along in occupation of the property as tenants and, at  no  stage,
did they cease to occupy the said property.



20.   Mr. Shah urged that under Section 5 of  the  2006  Act,  all  evacuee
property situated in the State would  be  deemed  to  have  vested  in  the
Custodian.  However, in order to vest in the Custodian, the properties  had
to be evacuee property.  Mr. Shah submitted that in the instant case, Qamer-
ud-Din was not an evacuee within the meaning of Section 2(c) of  the  above
Act, nor did he acquire the property in the  manner  indicated  in  Section
2(c)(iii) thereof.  Mr. Shah submitted  that  the  property  has  not  been
registered as evacuee property by the Custodian, in terms of Section  5  of
the 2006 Act.



21.   The learned counsel then submitted that Section 6 of the 2006 Act was
unconstitutional and was liable to be  struck  down.   It  was  urged  that
before issuing a notification under Section 6 of the 2006 Act, it was  only
incumbent upon the authorities to ensure that  the  principles  of  natural
justice were followed.



22.   Mr. Shah contended that the 2008 Rules provide that in respect of any
evacuee property which vests in the Custodian, but is in the possession  of
some other person having no lawful title to such possession, the  Custodian
may evict the person from such property in the manner indicated in the 2006
Act and the 2008 Rules.



23.   Mr. Bhaskar Gupta, learned Senior  Advocate,  who  appeared  for  the
Appellants, Ghulam Mohammad Dar and  others,  emphasised  the  use  of  the
expression "vacant" in Rule 13-C of the 2008 Rules.   Mr.  Gupta  submitted
that the expression "vacant" has been defined in Black's Law Dictionary  to
mean "empty, unoccupied, absolutely  free,  and  unclaimed".   Accordingly,
land in possession of any person prior to coming into force of the Act  and
the Rules, could not be said to be vacant land and, accordingly, Rule  13-C
of the 2008 Rules would have no application to the  lands  in  question  at
all.



24.   Mr. Gupta submitted that in terms of the Settlement  which  has  been
arrived at between the Appellants and the State  agencies,  the  Appellants
had surrendered possession of 22 kanals of prime land out of 37 kanals  and
5 marlas in favour of the Custodian Department and the Appellants continued
to be in possession of the remaining lands.
Furthermore, according to  Mr.
Gupta, by the  raising  of  constructions  on  the  surrendered  land,  the
Settlement had been duly acted upon and the State could not, therefore, now
resile therefrom.  It was no longer open for the State to contend that they
had wrongly arrived at the Settlement.  Mr. Gupta also pointed out that the
fact that the Appellants were and continued to  be  in  possession  of  the
lands in question, would be evident also from a letter written on behalf of
the State Government, in its Revenue Department, to the  Custodian  General
on 10th October, 2006 regarding the Settlement to be filed in LPA  No.  169
of 2004 and OWP No. 480 of 2003.  It was pointed  out  that,  in  the  said
letter, the State Government had acknowledged the fact that the  Appellants
were the occupants of the property in question, even though such occupation
was referred to as illegal.  Mr. Gupta submitted that  what  was  important
was the acknowledgement of the fact that  the  Appellants  were  in  actual
possession of the lands in question.



25.   It was  lastly  submitted  that  Rule  3  of  Order  23  CPC  permits
compromise of suits and where it is proved to the satisfaction of the Court
that the same had been adjusted wholly or in part by any  lawful  agreement
or compromise in writing and signed by the parties, the Court  shall  order
such agreement, compromise or satisfaction to be recorded and then  proceed
to pass a decree.



26.   Mr. Sunil Fernandes, learned counsel, who appeared for the  State  of
Jammu  and  Kashmir,  submitted  that  the  two  writ  petitions  regarding
resumption of possession of the lands in question were still pending before
the High Court and the validity of Section  6  of  the  2006  Act  was  the
subject matter of challenge therein.  The ambit of the dispute between  the
parties before the High Court was confined to the question of  validity  of
Section 6 of the 2006 Act, as also the challenge to the Settlement  arrived
at between the parties.



27.   Mr. Fernandes  urged  that  the  view  of  the  learned  third  Judge
represented the majority view in the matter,  which  did  not  warrant  any
interference. These appeals were, therefore, liable to be dismissed.



28.   The main plank of the submissions made on behalf of the Appellants is
that the lands in  question  are  not  evacuee  property,  and,  that,  the
Appellants were tenants thereof since before the Act came into  force.   In
fact, it is the case of some of the Appellants that their  predecessors-in-
interest were in occupation of the lands in  question  even  prior  to  1st
March, 1947, and 14th August, 1947, which clearly excluded  the  Appellants
from the operation of the provisions of the 2006 Act and  the  2008  Rules.
On the other hand, as "protected tenants", the Appellants were entitled  to
continue in possession of the lands and, particularly so, in  view  of  the
Settlement arrived at between the Appellants and the State authorities.



29.   That, there was a settlement arrived at between the parties is not in
issue.  It is also not in issue that after filing the Settlement  in  Court
and asking the Court to take action thereupon, an application was  made  on
behalf of the Custodian of Evacuee Property, Jammu and Kashmir,  for  leave
to withdraw CMP No. 128 of 2006 on the ground that the Chief  Minister  had
reversed the earlier decision taken  on  27/28th  March,  2005  and,  that,
accordingly, the deponent, in the affidavit, was  not  competent  to  enter
into the Settlement, as the decision to do so had  been  withdrawn  by  the
competent authority.



30.   The  question  to  be  decided  is
whether  having  entered  into  a
Settlement, which stood concluded and had been  acted  upon  by  the  State
Government by raising constructions on the  surrendered  lands,  could  the
Settlement have been withdrawn unilaterally only at  the  instance  of  the
State Government?



31.  The other branch of submissions made  on  behalf  of  the  Appellants,
which merits consideration, is
whether on Section 8 of the 2006 Act  having
been declared ultra vires, a party could be left without a  remedy  as  the
right to challenge a Notification issued under Section 6 stood extinguished
by such declaration?



32.   In addition to the above, the provisions of Section 16  of  the  2006
Act may also be noticed.   Section  16,  which  deals  with  occupancy  and
tenancy rights provides as follows :-
         "16.     Occupancy or  tenancy  right  not  to  be  extinguished  -
         Notwithstanding anything contained in any other law  for  the  time
         being in force, the right of occupancy in any land  of  an  evacuee
         which has vested in the Custodian shall not  be  extinguished,  nor
         shall an evacuee or the Custodian, whether as an occupancy  tenant,
         or a tenant for a fixed term of any land, be liable to  be  ejected
         or deemed to have become so liable on any ground whatsoever for any
         default of the Custodian."




      It is clear from Section 16  that  on  account  of  the  non-obstante clause, the provisions of Section 16 will prevail over any  other  law  for the time being in force and the right  of  occupancy  in  any  land  of  an evacuee shall not be extinguished.  
Accordingly, in the event  the  tenants
were enjoying occupancy rights in respect of the lands in their possession,
they could not be evicted therefrom by virtue of the Notification published under Section 6 of the 2006 Act.



      However, the protection under Section 16 will be  available  only  in
respect of evacuee property after a determination to such effect  is  made.
A unilateral declaration is clearly opposed to the  principles  of  natural
justice and administrative fair play and cannot be supported.



33.   As far as the second limb of Mr. Shah and Mr. Gupta's submissions  is
concerned, the same being  the  subject  matter  of  the  writ  proceedings
pending before the High Court, it would  not  be  proper  on  our  part  to
express any opinion in respect thereof.



34.   Having considered the submissions made on behalf  of  the  respective
parties,
  we are inclined to accept the submission made  on  behalf  of  the
Appellants that the Notification published on 21st  November,  1980,  under
Section 6 of the 2006 Act, declaring the lands under the possession of  the
Appellants to be  vested  in  the  Custodian  of  Evacuee  Property,  stood
vitiated, as the Appellants had been denied an  opportunity  of  explaining
that they were not mere occupants of the property in question, but  tenants
thereof, in which case, neither the provisions of Rule 9 nor Rule  13-C  of
the 2008 Rules would have any application to the facts of this case.



35.    Apart from the above, the Settlement which was entered into  between
the writ petitioners and the  State,  was  dependent  on  several  factors,
including the fact  that  the  occupants  of  the  lands  in  question  had
surrendered 22 kanals of prime land out of 37 kanals and 5 marlas in favour
of the  Custodian Department while remaining in possession of 15 kanals and
5 marlas, which were to be settled with them.
While, on the one  hand,  the
State authorities took advantage of the Settlement and  constructions  were
raised on the surrendered lands, a stand was later taken on behalf  of  the
State Government that the Settlement stood  vitiated  on  account  of  non-
compliance with the provisions of Rule 13-C of the 2008  Rules.   
The  fact
situation of this case is different  from  the  circumstances  contemplated
under Rule 13-C of the 2008 Rules.  In the present case, the lands  covered
by the Settlement were not vacant and were not, therefore, within the ambit
of Rule 13-C when the Settlement was at the gestation  stage.  It  is  only
under the Settlement that the claims  and  rights,  if  any,  of  the  writ
petitioners were required to be surrendered and, therefore, the question of
actual surrender of possession of 22 kanals of land out of    37 kanals and
5 marlas, was to follow, leaving a balance of 15 kanals and 5 marlas to  be
allotted to the occupancy rights and tenants-at-will in respect thereof.



36.   The special facts of the case set  the  present  Agreement/Settlement
apart from the cases of grant of lease of vacant lands in terms of Rule 13-
C and has, therefore, to be treated differently.  
Firstly,  as  the  lands
were not vacant, the very first criterion of Rule 13-C, was  not  satisfied
and the lease of the lands were to be granted as  part  of  the  settlement
packet, which included surrender of  22  kanals  of  prime  land.
 We  are
inclined to agree with the views expressed by Mansoor Ahmad Mir, J. that in
the special facts of this case, Rule 13-C of the 2008 Rules would  have  no
application to the Settlement arrived at between the parties and  the  same
were not, therefore, vitiated for not  putting  the  lands  to  auction  to
determine the premium to be paid for the leases to be  granted  in  respect
thereof.
As observed by His  Lordship,  it  was  nobody's  case  that  the
Settlement was the outcome of any fraud  or  was  unlawful  and  the  same,
having been signed and acted upon, was binding on the parties and could not
be withdrawn unilaterally.



37.   In our view, the Settlement arrived at between the parties and  filed
before the High Court for acceptance by way of CMP No.128 of 2006 is lawful
and within the scope of Sub-Rule (3) of Order  23  of  the  Code  of  Civil
Procedure.  
The decision holding the  Settlement  to  be  contrary  to  the
provisions of Rule 13-C of the 2008 Rules, as held by H.  Imtiyaz  Hussain, J. on 15th September, 2007, and affirmed by the third learned  Judge,  Y.P. Nargotra, J. by his judgment and order dated 25th March,  2008,  cannot  be sustained and is set aside.  
Consequently, the view  expressed  by  Mansoor
Ahmad Mir, J. is upheld.  CMP No.525 of 2006 is, accordingly, dismissed and CMP No.128 of 2006 is  allowed.  

The  High  Court  shall  proceed  to  pass
appropriate orders for acceptance of the out-of-Court  settlement  and  
for
adjustment of the rights of the parties in terms thereof in the LPA as well
as in OWP No.480 of 2003 and OWP No.454 of 2005.



38.   Since, in these appeals we have only been called upon to consider  as
to
whether the Settlement arrived at between the parties stood vitiated  on
account of non-compliance with the provisions of  Rule  13-C  of  the  2008
Rules, we have not expressed any opinion with regard to the second limb  of
the submissions advanced regarding the constitutionality of  Section  6  of
the 2006 Act.  
The said issue is, accordingly, left to the High  Court  for
decision.  We make it clear  that  whatever  has  been  expressed  in  this
judgment, shall not in any way prejudice and/or affect the outcome  of  the
decision of the High Court in the said matter.



39.    The appeals are, accordingly, disposed of.  There will, however,  be
no order as to costs.




                                                     ...................CJI.
                                                             (ALTAMAS KABIR)



                                                     .....................J.
                                                     (SURINDER SINGH NIJJAR)



                                                     .....................J.
                                                            (J. CHELAMESWAR)

New Delhi
Dated: January 03, 2013.

498-A and 306 of the IPC. = wife beating is a normal facet of married life. Does that mean giving one or two slaps to a wife by a husband just does not matter? We do not think that that can be a right approach. It is one thing to say that every wear and tear of married life need not lead to suicide and it is another thing to put it so crudely and suggest that one or two assaults on a woman is an accepted social norm. Judges have to be sensitive to women’s problems. Perhaps learned Sessions Judge wanted to convey that the circumstances on record were not strong enough to drive Girija to commit suicide. But to make light of slaps given to Girija which resulted in loss of her eyesight is to show extreme insensitivity. Assault on a woman offends her dignity. What effect it will have on a woman depends on facts and circumstances of each case. There cannot be any generalization on this issue. Our observation, however, must not be understood to mean that in all cases of assault suicide must follow. Our objection is to the tenor of learned Sessions Judge’s observations. We do not suggest that where there is no evidence the court should go out of its way, ferret out evidence and convict the accused in such cases. It is of course the duty of the court to see that an innocent person is not convicted. But it is equally the duty of the court to see that perpetrators of heinous crimes are brought to book. The above quoted extracts add to the reasons why learned Sessions Judge’s judgment can be characterized as perverse. They show a mindset which needs to change. There is a phenomenal rise in crime against women and protection granted to women by the Constitution of India and other laws can be meaningful only if those who are entrusted with the job of doing justice are sensitized towards women’s problems. In the ultimate analysis we are of the opinion that the appellant has not been able to rebut presumption under Section 113A of the Evidence Act. Girija committed suicide within seven years from the date of her marriage in her matrimonial home. Impact of this circumstance was clearly missed by the trial court. The evidence on record establishes that Girija was subjected to mental and physical cruelty by the appellant in their matrimonial home which drove her to commit suicide. The appellant is guilty of abetment of suicide. The High Court has rightly reversed the judgment of the trial court acquitting the appellant. Appeal is, therefore, dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 12  OF 2013
       [Arising out of Special Leave Petition (Crl.)No. 2038 of 2012]



Vajresh Venkatray Anvekar               …          APPELLANT

                                   Versus

State of Karnataka                      …          RESPONDENT


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.



1.    Leave granted.


2.    The appellant (original accused 2 –  A2)  was  tried  along  with  his
father Venkatray Narayan Anvekar (original accused 1 – A1)  and  his  mother
Smt. Vidyabai Venkatray Anvekar (original  accused  3  –  A3)  for  offences
punishable under Sections 498-A, 304-B and 306 read with Section 34  of  the
Indian Penal Code (for short ‘the IPC’) and Sections  3,  4  and  6  of  the
Dowry Prohibition Act, 1961 by the Sessions Judge, Fast  Track  Court-II  at
Karwar in Sessions Case No.59/02.  By his judgment dated 30/03/2007  learned
Sessions Judge acquitted all the accused.
The State  of  Karnataka  carried
an appeal to the High Court of Karnataka, Circuit Bench at Dharwad from  the
said judgment.  
The High  Court  by  the  impugned judgment  confirmed  the
acquittal of A1 and A3.  
The High Court, however, reversed the acquittal  of
the appellant and convicted him for the offences punishable  under  Sections
498-A and 306 of the IPC.  
For offence punishable  under  Section   306   of the IPC,  the appellant  was  sentenced  to  imprisonment  for  five   years and  to  pay  fine  of Rs.1,00,000/- and in default  of   payment  of  fine, to undergo further imprisonment for one year.  For offence punishable  under Section 498-A the appellant was sentenced to imprisonment  for  three  years and to pay fine of Rs.10,000/-  and  in  default  of  payment  of  fine,  to
undergo further imprisonment for  six  months.                                           The  substantive  sentences
were ordered to run concurrently.  Fine amount was directed to  be  paid  to
the parents of deceased Girija.  The appellant was acquitted  of  the  other
charges.  Being aggrieved by the said judgment, the appellant has filed  the
present appeal.

3.    Admittedly, PW1-Suresh father of Girija  stays  at  Nandangad  Karwar.
The appellant’s family stays at Habbuwada Karwar.   Girija  was  married  to
the appellant on 17/12/2001 at Karwar. The gist of the prosecution case  can
be gathered from the F.I.R. lodged by  PW1-Suresh.   It  is  stated  in  the
F.I.R. that one month after the marriage the appellant went to Mumbai  where
he has a jewellery shop along with Girija. About two  months  prior  to  the
date of  the F.I.R. Girija had developed eye  problem.   Instead  of  taking
her to a doctor the appellant  took  her  to  one  Swamiji.   When  the  eye
ailment could not be cured, she was brought to Karwar  for  check-up.   When
she came to Karwar she told PW1-Suresh that the  appellant,  her  sister-in-
law and A1 used to torture her and her sister-in-law used  to  assault  her.
They used to wake her up at 5  a.m. and pressurize  her  to  work.   At  the
instigation of her sister-in-law and A1, the appellant used to assault  her.
 They used to ask her to get money from her parents.   On  11/06/2002,  PW1-
Suresh, his son, Girija and the appellant went to  Hubli  and  got  Girija’s
eyes checked from eye specialist Dr. Anant Revankar.  On 12/06/2002,  Girija
informed them that she  was  being  tortured.   She  stated  that  when  she
requested the appellant to take her for honeymoon, he refused  and told  her
that if she continues with the demand, she will have to go to  her  parent’s
house.  She stated that the appellant tortures her  mentally  and  when  she
visits Karwar the torture increases.  On  12/06/2002,  at  4.00  p.m.,  PW1-
Suresh, his son and wife took Girija to the appellant’s house  at  Hubbuwada
and informed them that they would  take  her  back  next  day  evening.   On
13/06/2002, at 12 noon, he called-up Girija  and  told  her  that  he  would
visit her matrimonial home and speak to A1 about the harassment and  torture
meted out to her.  Girija told him that if he visits her house, her  in-laws
would torture her more and, therefore, he should not come.   On  13/06/2002,
at 2.30 p.m, the appellant phoned and told him that Girija was not  speaking
anything.  He went to the appellant’s house along with his  wife  and  sons.
His son Sandeep saw Girija in the bedroom situated on the upper  floor.  She
was not able to speak.  Sandeep lifted her and  brought  her  downstairs  in
order to show her to the doctor.  The moment  the  doctor  checked  her,  he
pronounced her dead.  PW1-Suresh stated that Girija  had  committed  suicide
by consuming poison or  some  tablets  because  the  appellant,  A1  and  A3
tortured her.  The complaint was lodged at 2215  hours.   PW1-Suresh  stated
that because he had gone  to  inform  about  the  death  of  Girija  to  his
relatives there was some delay in lodging the complaint.

4.    In  support  of  its  case  the  prosecution  examined  24  witnesses.
Prominent amongst them are PW1-Suresh and PW18-Anuradha, the parents of  the
deceased, PW19- Jayant the brother of the deceased, PW2-Manjunath and  PW12-
Sripad Anvekar  who  attended  appellant’s  marriage,  PW11-Digvijay,  PW16-
Prasanna Revankar and PW17-Dr. Raj Kumar, the sons-in-law of PW1-Suresh  and
PW3-Shruti, friend of Girija.  The appellant  denied  the  prosecution  case
and submitted a written explanation. We shall soon advert to it.

5.    Assailing the impugned judgment of the High Court Smt.  Suri,  learned
counsel for the appellant, contended that the view taken by the trial  court
while acquitting the accused was a reasonably possible view which ought  not
to have been interfered with by the High Court. Counsel submitted  that  the
High Court erred  in  relying  on  the  evidence  of  interested  witnesses.
Counsel submitted that though, evidence shows that several  police  officers
were there at the  scene  of  offence,  PW1  did  not  lodge  the  complaint
immediately.  He lodged the complaint at 2215 hours, though he got  to  know
about Girija’s death at 2.30 p.m. The  complaint  is,  therefore,  doctored.
Counsel submitted that the High Court has held that demand of dowry  is  not
proved. The High Court, therefore, could not have proceeded to  convict  the
appellant under Sections 498A and 306 of the IPC by reversing the  order  of
acquittal.  There was no  credible  evidence  on  the  basis  of  which  the
appellant could be held guilty of the said offences.  Counsel  requested  us
to go through the explanation offered by  the  appellant  in  his  statement
recorded under Section 313 of the Criminal Procedure Code, 1973  (for  short
‘the Code’) which according to  her  establishes  his  innocence.    Learned
counsel for the State strenuously supported the impugned order.

6.    Two most vital circumstances which must be kept in mind while  dealing
with this case are that Girija had  committed  suicide  in  the  matrimonial
home  and  her  death  took  place  within  seven  years  of  her  marriage.
Presumption under Section 113A of the  Indian  Evidence  Act,  1872  springs
into action which says that when the question is whether the  commission  of
suicide by a woman had been abetted by her husband and it is shown that  she
had committed suicide within a period of seven years from the  date  of  her
marriage and that her husband or such relative of her husband had  subjected
her to cruelty, the court may  presume,  having  regard  to  all  the  other
circumstances of the case,  that  such  suicide  had  been  abetted  by  her
husband or by such relative of her husband.  The  question  is  whether  the
appellant has been able to rebut this presumption.

7.    Medical evidence is of great importance in this case. PW7-Dr.  Sailaja
had done Girija’s post-mortem. She found the following injuries on Girija:
      “1.   On right side of head there was little swelling and wound on the
      forehead.


      2.    On the right eye lower eyelid and on the neck there  was  weal’s
      of specific area and the eye was bleeded.


      3.    There was swelling on the right side of neck.


      4.    On the right hand thumb bottom there was  blue  mark  having  an
      area 3’x2 ½’.


      5.    To the inner side of the arm the blood  was  clotted  having  an
      area of 2’ x 1’.


      6.    To the inner side of the wrist the skin was blackened having  an
      area 1’ x ½’.
      7.    Below the thumb the blood was clotted covering an area 2’ x 1’.”



      Dr. Sailaja opined that cyanide poisoning was the cause of death.  She
stated that all the  external  wounds  were  caused  prior  to  post-mortem.
According to her, the wounds on the right side of head can be  sustained  if
a person is beaten with hands.  According  to  her  report,  they  could  be
caused by hard and blunt object when the deceased was alive.  In the  cross-
examination, it was suggested to her that if the dead body  falls  on  rough
surface, the wounds, which she had seen, could be  caused.  She  denied  the
suggestion.   Thus, it is clear that Girija  was  beaten  up  prior  to  the
death. In the facts of this case, it is difficult and absurd to  come  to  a
conclusion that the injuries were self-inflicted. Pertinently,  Girija  died
in her matrimonial home. We have no  hesitation,  therefore,  in  concluding
that prior to taking cyanide, Girija was assaulted in her matrimonial  home.
PW6- Laxman  Kudani, the then Tahsildar and  Taluka  Magistrate  Karwar  who
drew the inquest panchnama also referred to blackening of the  skin  at  the
wrist and on the left and right side of the cheeks of  the  dead  body.   He
denied the suggestion that because of the pressure  exerted  by  PW1-Suresh,
it was so stated in the inquest panchnama.

8.    It would be appropriate at this stage to go to the evidence  of  PW20-
Dr. Anil Kolvekar.  This evidence takes us little  backwards.  Dr.  Kolvekar
stated that on 30/5/2002 Girija had visited his nursing home  for  treatment
with her brother.  He found following injuries on her body:
      “(1) Contusion on right inner thigh aspect and 1/3rd circular –  3  cm
      in diameter;


      (2) Contusion of left inner  thigh  aspect  and  1/3rd  circular  zoom
      diameter;


      (3) Contusion over back right side 6 cm injuries. “


She told him that she sustained  those  injuries  because  her  husband  had
beaten her.  Dr. Kolvekar stated that those injuries were caused  within  24
hours and they could be caused due to beating by sticks and  pinching.   Dr.
Kolvekar identified his signature  on  the  injury  certificate  (Ex.  P66).
Strangely, learned Sessions Judge has given no importance to  this  evidence
and has observed that from  the  evidence  of  this  witness  one  can  only
conclude that on 30/5/2002 when Girija visited him, she had  three  injuries
on her body which were caused 24 hours prior to the treatment and it is  for
the prosecution to  prove  that  the  accused  had  caused  those  injuries.
Learned Sessions Judge  has  not  disbelieved  Dr.   Kolvekar.   Girija  was
brought to him by her brother. She told him  that  her  husband  had  caused
those injuries.  We fail to understand what more  evidence  the  prosecution
could have  adduced  to  prove  that  those  injuries  were  caused  by  the
appellant. In the peculiar circumstances of the case, only  this  conclusion
can be drawn from Dr. Kolvekar’s evidence.  It is  pertinent  to  note  that
PW3-Shruti Vernekar, a friend of Girija, has supported the case of  PW20-Dr.
Kolvekar that the deceased had visited him in May, 2002.  PW3-Shruti  stated
that she met Girija at Dr. Kolvekar’s nursing home  in  May,  2002.   Girija
appeared to be disturbed and she complained of body ache.  According to PW3-
Shruti, she told her that the appellant  and  members  of  his  family  were
beating her and that she was fed up.  Learned Sessions Judge  discarded  the
evidence of this witness on the ground that there is a  delay  in  recording
her statement. So far as delay is concerned, we cannot  lose  sight  of  the
fact that  the  investigation  of  this  case  was  entrusted  to  PW24-A.K.
Sidamma, Deputy Superintendent of Police in COD in  Dowry  Prohibition  Cell
on 21/06/2002.  Thereafter, she  appears  to  have  recorded  certain  vital
statements.   In  the  peculiar  facts  of  this  case  delay  in  recording
statements of witnesses cannot be taken against the prosecution.  So far  as
PW3-Shruti is concerned, despite the delay in  recording  her  statement  we
find her to be a reliable witness.  The High Court has rightly  relied  upon
her evidence.

9.    Learned Sessions Judge has refused to rely upon the  evidence  of  the
parents, brother and brothers-in-law of Girija primarily on the ground  that
they  are  interested  witnesses.   We  find  this  approach  to   be   very
unfortunate.  When a woman is subjected to  ill-treatment  within  the  four
walls of her matrimonial house,  ill-treatment  is  witnessed  only  by  the
perpetrators of the crime.  They would certainly not depose  about  it.   It
is common knowledge that independent witnesses like servants  or  neighbours
do not want to get involved.  In fact, in this case, a maid employed in  the
house of the appellant who was examined by the prosecution  turned  hostile.
It is true that chances of exaggeration by the interested  witnesses  cannot
be ruled out. Witnesses are prone to exaggeration.   It is for  the  trained
judicial mind to find out the truth.  If the exaggeration is of such  nature
as to make the witness wholly unreliable,  the  court  would  obviously  not
rely on him.  If attendant circumstances  and  evidence  on  record  clearly
support and corroborate the witness, then merely because  he  is  interested
witness he cannot be  disbelieved  because  of  some  exaggeration,  if  his
evidence is otherwise reliable.  In this case,  we  do  not  find  any  such
exaggeration qua the appellant. The witnesses have stood the test of  cross-
examination  very  well.   There  are  telltale  circumstances  which  speak
volumes.  Injuries suffered  by  Girija  prior  to  the  suicide  cannot  be
ignored.  The pathetic story of Girija’s woes disclosed by her parents,  her
brother and her brothers-in-law deserves to  be  accepted  and  has  rightly
been accepted by the High Court.  A1 and  A3  have  been  acquitted  by  the
Sessions Court.  That acquittal has been confirmed by the High  Court.   The
State has not appealed against that order.  We do not want to  therefore  go
into that aspect.  But, we must record  that  we  are  not  happy  with  the
manner in which learned Sessions Judge has ignored vital evidence.


10.   PW1-Suresh the  father  of  Girija  stated  how  Girija  was  harassed
mentally and physically.  Learned Sessions  Judge  has  recorded  a  finding
that Girija did not  receive  eye  injury  prior  to  marriage.   PW1-Suresh
stated that the appellant assaulted Girija on her face and she received  eye
injury.  This evidence inspires confidence.  The story  that  the  appellant
had taken her to Dr. Kumta appears to have been created  to  get  over  PW1-
Suresh’s version.  In any event, taking Girija to a doctor after  assaulting
her does not absolve the appellant of the crime.   PW11-Digvijay  Kudtarkar,
brother-in-law of Girija resides in Bombay.  He stated that when Girija  had
come to his house along with the appellant she appeared  to  be  frightened.
She was not able to talk properly.  When she came alone she  told  him  that
she was scared of living in the appellant’s  house.   He  noticed  that  her
left cheek had become red and the right  portion  of  her  face  had  become
dark.  PW17-Rajkumar Diwakar, another brother-in-law of Girija  spoke  about
the ill-treatment meted out to Girija, the eye injury received  by  her  and
the assault on her left cheek.  PW19-Jayant, brother of Girija also  deposed
as to how Girija was ill-treated. Despite all this  learned  Sessions  Judge
acquitted the appellant.  Surprisingly,  six  hours  delay  in  lodging  the
F.I.R. is taken against the prosecution.  Learned Sessions Judge also  finds
the F.I.R.  cryptic.   Learned  Sessions  Judge’s  observation  need  to  be
quoted:

      “… … …When the death of the deceased had  come  to  the  knowledge  of
           P.W.1, it was around 2.30 p.m. and that house of the accused  in
           which deceased committed suicide was hardly 2  K.Ms.  away  from
           the P.S.  I feel that P.W.1, reaching the police station as late
           at 22.15 hours., is a delay and this  delay  is  not  explained.
           The possibility of P.W.1Suresh  discussing  with  his  relatives
           also to net in the in-laws as A-1  and  3  with  oblique  motive
           cannot be ruled out.  Therefore this delay of 5 to 6 hours which
           is un-explained is a fatal to the case of prosecution. … … …”





      We are amazed at this observation.  When a man looses his daughter due
to cyanide poisoning, he is bound to break down.   He  would  take  time  to
recover from the shock.  Six hours delay cannot make his  case  untrue.   It
is also not proper to expect him to give all minute details at  that  stage.
The F.I.R. contains  sufficient  details.   It  is  not  expected  to  be  a
treatise.  We feel that the comments on alleged delay in lodging the  F.I.R.
and its contents are totally unwarranted. For  the  same  reasons,  we  also
reject the submission of counsel for the appellant that  because  PW1-Suresh
did not tell the police officers who were present at the  scene  of  offence
that the appellant was responsible for the suicide his FIR lodged after  six
hours is suspect.


11.   We  have  carefully  gone  through  the  explanation  offered  by  the
appellant in his statement  recorded  under  Section  313  of  the  Code  as
requested by his counsel.  It confirms our view that the  appellant  is  not
innocent.  After denying  the  allegations  of  ill-treatment,  cruelty  and
demand of dowry, the appellant goes on  to  paint  a  rosy  picture  of  his
married life.  He refers to certain photographs and a Valentine  day’s  card
sent by Girija to him in 2002.  Valentine day’s  card sent by Girija to  the
appellant does not help him to probablise his alleged good conduct.  In  the
facts of this case it appears to us to  be  an  effort  made  by  Girija  to
please the appellant. The photographs were produced in  the  court  to  show
that Girija was taken to religious places and hill  stations.   Trial  court
has rightly not placed reliance on them.   As regard the photographs it  has
observed that  in  the  photographs  Girija  is  seen  standing  alone  and,
therefore, on the basis of these photographs it  cannot  be  said  that  the
appellant had taken her to religious places or for  honeymoon.   Perhaps  to
create  an  impression  that  Girija  was  suffering  from  depression,  the
appellant comes out with a story that Girija used to consume pills  everyday
and when he enquired about it she used to give evasive  answers.   According
to him  she  used  to  lead  a  life  of  an  introvert  and  she  preferred
loneliness.  She never watched  T.V.,  she  never  read  any  newspapers  or
books.  When he asked her about it she stated that she had an  eye  problem.
He has further gone on to say that he blamed Girija’s parents that they  had
suppressed her eye trouble from him and got her married to him.  He  further
goes on to say that for this reason she was not willing to give birth  to  a
child.  This story is palpably false and is a crude  attempt  to  create  an
impression that Girija was mentally unstable.  No such evidence  is  brought
on record. In this connection, at the cost of repetition, it must be  stated
that the trial court has rejected the defence of the appellant  that  Girija
had lost her eye sight even before her  marriage  and  that  this  fact  was
concealed from him.   The  trial  court  has  observed  that  Girija  was  a
graduate.  If she had really lost eye sight, the appellant and  his  parents
would have noticed the defect earlier.   Further  part  of  the  explanation
which refers to the appellant’s alleged conduct of getting  Girija  examined
by Dr.  Kumta,  an  eye  specialist  and  allegedly  giving  her  money  for
operation will have to be understood against the background of above  facts.
 We are not inclined to believe that the appellant took  Girija  to  an  eye
specialist and if he did take Girija to an eye specialist we have no  manner
of doubt that it was too late in the day. The  evidence  on  record  clearly
indicates that Girija received injury on her cheek  and  to  her  eye  after
marriage.   She  had  no  eye  trouble  before  marriage.   The  injury  was
certainly not self-inflicted.  Circumstances  on  record  clearly  establish
that Girija received  the  eye  injury  in  the  matrimonial  home  and  the
appellant was responsible for it.

12.   We are  wary  of  passing  comments  against  the  subordinate  courts
because such comments tend to demoralize them. But, in this  case,  we  will
be failing in our duty if we  ignore  the  insensitivity  shown  by  learned
Sessions Judge to a serious crime committed against  a  hapless  woman.   We
need to quote certain extracts from learned Sessions Judge’s judgment  which
will show why we are so anguished.


      “The other allegations in Ex-P1 complaint is that  the  deceased   was
      asked to get up at 5.00 a.m. early in the morning and she was asked to
      attend to house-hold work.  Even the accused had asked the deceased to
      attend to house hold chorus, that is not the act of cruelty, so as  to
      drive the deceased to commit suicide………………………………… …………………………Conduct of
      the accused in reprimanding the deceased  for  her  lethargic  habits,
      strongly advising her to be more compatible with members of the family
      and to evince interest in the domestic shores cannot be considered  as
      acts of cruelty.”

      It is pertinent to note that even in this case  Girija  was  asked  to
wake-up at 5.00 a.m. and start work.  This kind of orders may not always  be
innocuous.

13.   Learned Sessions Judge further observes as under:


      “In 1995, Cri.  L.J.  Page  -2472,  (Neelakanth  Patil  vs.  State  of
      Orissa), it is held that; mere statement that the  deceased  wife  was
      not happy with the husband-accused, is not  sufficient.   Particularly
      in the absence of any direct evidence, oral or documentary  about  ill
      treatment one or two incident of assault by the accused-husband is not
      likely to drive the wife to commit  suicide.  Therefore,  the  Hon’ble
      High Court held  the  conviction  of  the  husband  was  not  proper.”
      (emphasis supplied)




      Reproduction of Orissa High Court’s judgment does  not  appear  to  be
accurate.  Learned Sessions Judge further observes as under:


      “PW-11 has not stated the particular day of the noticing face  of  the
      deceased turning brownish and right eye upper portion blackening.   He
      has not stated particular day on which he found deceased to be  panic.
      He has not stated particular  day  on  which  he  found  the  deceased
      physically weak.  Therefore, again these imputations are  all  general
      allegations.  As I said earlier  even if upper eye portion or face  of
      Girija had changed their colour because of A-2 giving  beatings,  that
      alone as I said earlier is not the act of cruelty driving the deceased
      to commit suicide.” (emphasis supplied)

      “As I said earlier A-1 and 3 are the ordinary residents of Karwar.  In
      between the date of the marriage and the  death  of  the  deceased  on
      13.6.2002 she was very much staying with her husband  A-2  in  Bombay.
      Therefore, giving one or two beating  is  not  cruelty  to  drive  the
      deceased to commit suicide.” (emphasis supplied)

      “The learned Public Prosecutor has argued that blackening of  skin  on
      various parts of the body of the deceased is proved.  Therefore, court
      has to believe those injuries to hold the accused responsible for  the
      sake of argument, it is assumed that those injuries were inflicted  by
      the accused, they are not sufficient to bring death  in  the  ordinary
      course. One or two beats are not sufficient in the ordinary course  of
      woman to commit suicide.” (emphasis supplied)





14.   The tenor of the judgment suggests  that
wife  beating  is  a  normal facet of married life. 

 Does  that  mean  giving  one or  two  slaps  to   a wife by a husband just does not matter?   
We do not think that 
that can  be a right approach. 
It is one thing  to  say  that  every  wear  and  tear  of married life need not lead to suicide and it is another thing to put  it  so crudely and suggest that one or two assaults  on  a  woman  is  an  accepted social norm.  

Judges have to  be  sensitive  to  women’s  problems.  
Perhaps
learned Sessions Judge wanted to convey that  the  circumstances  on  record
were not strong enough to drive Girija to commit suicide. 
But to make  light of slaps given to Girija which resulted in loss of her eyesight is  to  show extreme insensitivity.  
Assault on a woman offends her dignity. What  effect
it will have on a woman depends on facts and  circumstances  of  each  case.
There  cannot  be  any  generalization  on  this  issue.  
Our  observation,
however, must not be understood  to  mean  that  in  all  cases  of  assault suicide must follow.
Our objection is to  the  tenor  of  learned  Sessions
Judge’s observations. We do not suggest that where there is no evidence  the
court should go out of its way, ferret out evidence and convict the  accused
in such cases.  
It is of course the  duty  of  the  court  to  see  that  an
innocent person is not convicted.  
But it is equally the duty of  the  court
to see that perpetrators of heinous crimes are brought to book.   
The  above
quoted extracts add to the reasons why  learned  Sessions  Judge’s  judgment
can be characterized as perverse.   They  show  a  mindset  which  needs  to
change.  
There is a phenomenal rise in crime against  women  and  protection
granted to women by  the  Constitution  of  India  and  other  laws  can  be
meaningful only if those who are entrusted with the  job  of  doing  justice
are sensitized towards women’s problems.


15.   In the ultimate analysis we are of the opinion that the appellant  has
not been able to rebut presumption under Section 113A of the  Evidence  Act.
Girija committed suicide within seven years from the date  of  her  marriage in her matrimonial home.  
Impact of this circumstance was clearly missed  by
the trial court.   
The  evidence  on  record  establishes  that  Girija  was
subjected  to  mental  and  physical  cruelty  by  the  appellant  in  their matrimonial home which drove  her  to  commit  suicide.   The  appellant  is guilty of abetment of suicide.  
The High  Court  has  rightly  reversed  the
judgment  of  the  trial  court  acquitting  the  appellant.    Appeal   is,
therefore, dismissed.




                                                       ……………………………………………..J.
                                (AFTAB ALAM)







                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)
NEW DELHI,
JANUARY 3, 2013.
-----------------------
21

There is no evidence on record to establish that infuriated by his removal from service and non-payment of dues, the appellant masterminded the plot to abduct the children or played any active role in abducting them. If a telephone call was received making ransom demand and making grievance about alleged ill-treatment of the appellant, the police should have traced the calls and identified the caller. The police have failed to do so. Criminal courts recognize only legally admissible evidence and not farfetched conjectures and surmises. The High Court’s observation that there was a pre-conceived plan to abduct the children would not be applicable to the appellant because there is nothing on record to establish that the appellant met the co-accused and planned a strategy to abduct the children and demand ransom. His case stands on a different footing from that of the other accused. The case of the other accused will have to be dealt with on its own merit. The High Court was carried away by the heinous nature of the crime and, in that, it lost sight of the basic principle underlying criminal jurisprudence that suspicion, however grave, cannot take the place of proof. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence. We hope and trust that this is just an aberration. 12. In the result, we allow the appeal and set aside the impugned order. The appellant – Md. Faizan Ahmad @ Kalu is ordered to be released forthwith, if he is not required in any other case. 13. The appeal is disposed of in the afore-stated terms.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 11  OF 2013
       [Arising out of Special Leave Petition (Crl.) No.1636 of 2012]


MD. FAIZAN AHMAD @ KALU                 …          Appellant

                                   Versus

THE STATE OF BIHAR                      …          Respondent


                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.    This appeal, by special leave, arises out of judgment and order  dated
7/9/2005 passed  by  the  Additional  Sessions  Judge,  FTCI,  Begusarai  in
Sessions Trial No.304 of 2003.   In the said Sessions  Case,  the  appellant
(A1)  along  with  Mohd.  Naushad  Alam  and  Mohd.  Sultan   (A2   and   A3
respectively) was tried for offences  punishable  under  Section  364A  read
with Section 149 and Section 120B of the Indian Penal Code (for short,  “the
IPC”).  Accused Mohd. Dawood, Sahini Khatoon and Tabbasum Aara (A4,  A5  and
A6 respectively) were tried for offences punishable under Section  368  read
with Section 149 and Section 120B of the IPC.

3.    Learned Sessions Judge convicted the appellant and  A2  and  A3  under
Section 364A read with Section 149 of the IPC and sentenced them to  undergo
rigorous imprisonment for life.  They were also sentenced  to  pay  fine  of
Rs.10,000/-.  On failure to deposit the fine, they were directed to  undergo
simple imprisonment for one year.  They were also  convicted  under  Section
120B of the IPC and sentenced to undergo  rigorous  imprisonment  for  life.
A4, A5 and A6 were convicted under Section 368 read with Section 149 of  the
IPC and under Section 120B of the IPC.   They   were  sentenced  to  undergo
rigorous  imprisonment for life and  to  pay  a  fine  of  Rs.10,000/-.   On
failure  to  deposit  the  fine,  they  were  directed  to  undergo   simple
imprisonment for one year.  They  were  also  convicted  for  offence  under
Section 120B of the IPC and sentenced to undergo rigorous  imprisonment  for
life.  All the sentences were ordered to run concurrently.  Being  aggrieved
by the said  judgment  and  order,  the  appellant  and  the  other  accused
preferred appeals to  the  Patna  High  Court.   The  Patna  High  Court  by
judgment dated 14/09/2011 confirmed the order  of  conviction  and  sentence
and dismissed the appeals.  The said judgment is challenged in  this  appeal
by the appellant (A1).

4.    PW-5 Sazia, aged about 8 years, is the daughter of  PW-11  Takki  Imam
and PW-6 Shirri, aged about 7 years, PW-7 Rehan,  aged  about  5  years  and
Arfa Jamal, aged about 3  years  are  the  children  of  PW-4  Nusrat  Bano.
According to the prosecution, on 5/10/2002,  these  children  returned  from
Masjid at about 4.00 p.m. after completing their studies.  They went out  to
play.  As the children did not return till 6.00 p.m. PW-11  Takki  Imam  and
PW-4 Nusrat Bano started searching for them all  over,  but  in  vain.    At
about 9.00 p.m. on the same day, PW-11 Takki  Imam  went  to  Sahebpur  Kaml
Police Station and lodged his FIR.  We shall deal with the evidence  of  PW-
11 Takki Imam and the FIR lodged by him, a little later but  suffice  it  to
say, at this stage, that PW-11 Takki Imam, inter alia,  stated  in  the  FIR
that he suspected that the appellant had played a role in the  disappearance
of the children.  Investigation was started on  the  basis  of  PW-11  Takki
Imam’s complaint.  Statements of PW-5 Sazia,  PW-6  Shirri  and  PW-7  Rehan
were recorded under Section 164 of the Code of Criminal Procedure,  1973  by
PW-10 Nagendra Tripathi, the then Judicial Magistrate, Begusarai.   Pursuant
to the statement made  by  Dawood  (A4),  the  children  were  recovered  on
8/3/2003 i.e. after about 5 months from the  tunnel  (Surang)  made  in  the
house of Sultan (A3).  At the trial, the prosecution placed  heavy  reliance
on the evidence of PW-1 Ziauddin and PW-4 Nusrat Bano, who are  the  parents
of PW-6 Shirri, PW-7 Rehan and Arfa Jamal.  Reliance was also placed on  the
evidence of PW-11 Takki Imam.  Evidence of PW-5 Sazia, PW-6 Shirri and  PW-7
Rehan proved to be crucial. The appellant denied the prosecution case.

5.    Learned Sessions  Judge  convicted  and  sentenced  the  appellant  as
aforesaid.  As stated by us, the said order having  been  confirmed  by  the
High Court, the appellant is before us.
6.    Mr. Manish Kumar Saran, counsel for the appellant  contended  that  so
far as the appellant is concerned, this is a case of no  evidence.   He  has
been involved in this case on the basis of hearsay evidence and,  hence,  he
deserves to be acquitted.  Mr. Samir Ali Khan,  counsel  for  the  State  of
Bihar, on the other hand, supported the impugned judgment.

7.    Since learned counsel for the appellant  has  pitched  his  case  very
high and stated that there is no evidence against the appellant at  all,  we
have carefully perused the evidence.  In the  complaint,  PW-11  Takki  Imam
stated that the appellant was employed in the telephone booth of his  cousin
PW-4 Nusrat Bano.  PW-4 Nusrat Bano removed him from service due to his  bad
conduct.  He further added that he has no enmity  with  anyone  else  except
the appellant and, therefore, he suspects that the appellant must be  behind
this abduction.  Thus, the FIR is based only on suspicion.  In his  evidence
in the court, PW-11 Takki Imam reiterated the same story.   He  stated  that
PW-4 Nusrat Bano had removed the appellant  from  the  job  because  of  his
activities.  The appellant used to come to the  village  and  threaten  PW-1
Ziauddin, husband of PW-4 Nusrat Bano and, therefore, he was convinced  that
the appellant had a hand in the kidnapping.  He stated  that  the  appellant
used to meet Naushad (A2) and Sultan (A3) but in the  cross-examination,  he
stated that he could not tell the date on which the  appellant  met  Naushad
(A2) and Sultan (A3). His evidence does not connect  the  appellant  to  the
abduction at all.

8.    PW-1 Ziauddin supported PW-11 Takki Imam  about  the  appellant  being
employed in the telephone booth of PW-4 Nusrat Bano.  He  also  stated  that
the appellant was removed  from  job  because  of  his  bad  behaviour.   He
described how the appellant used to get drunk and threaten them.  He  stated
that on the day of incident, the appellant was seen riding a bicycle in  the
locality.  After the abduction of children, a phone  call  was  received  in
his house.  Someone said on the phone that “your child has  been  kidnapped,
inform/talk to you later”.  He  further  stated  that  at  10.00  O’  Clock,
another call was received saying “you all  pester/disturb  Kalu  by  sending
police, has Master Saheb come?” He then referred to the phone call  received
by him on 7/10/2002 at 12 O’ Clock making a demand  of  Rs.50,000/-.   After
referring to the calls received by him, he referred to the  search  made  by
him for the children and stated  that  on  7/03/2003,  the  police  arrested
Dawood (A4) and pursuant to the statement made by him,  the  police  visited
Sultan (A3) and Tabbasum Aara (A6)’s house.  The children  were  found  tied
with chains in the underground tunnel of the house of  Tabbasum  Aara  (A6).
In the cross-examination, he stated that the appellant worked in  his  booth
from 2001 to 2/1/2002.  He paid him a salary  of  Rs.700/-  per  month.   He
stated that the appellant fired at Iftikhar.  But, he  added  that  Iftikhar
had not made any complaint.  He stated that the  appellant  had  got  drunk,
eight days prior to the date on which he had sent  him  out  of  employment.
He added  that  he  was  not  aware  of  any  case  registered  against  the
appellant.  He stated that he has not made any complaint about  the  threats
given  by  the  appellant.   He  clarified  that  the  telephone  call   was
anonymous.  He stated that he had  seen  Tabbasum  Aara  (A6)  visiting  the
appellant’s house, but he could tell the exact time  and  date.   Thus,  the
evidence of this witness does not, in any way, involve the appellant in  the
abduction of the children. It appears that this witness also suspected  that
the appellant was behind the abduction.

9.    PW-4 Nusrat Bano confirmed that the  appellant  was  employed  in  her
telephone booth and she had removed him from the job because he used to  get
drunk and his conduct was not good.   According  to  her,  Nushad  (A2)  and
Sultan (A3)  used  to  visit  the  booth.   In  the  cross-examination,  she
reiterated the same story.  She stated that they had  not  complained  about
the threats given by the appellant.  It is difficult to connect the  accused
with the abduction on the basis of the evidence of this witness.

10.    It is now necessary to go to the  evidence  of  three  children,  who
were abducted.  All the three  children  stated  that  Chanda,  daughter  of
Tabbasum Aara (A6) had come to call them and that they  were  given  laddoos
to eat at her house.  They described how Tabbasum Aara  (A6)  took  them  to
the tunnel and how chains were put on their feet.   They  stated  that  they
were beaten up and burnt with candle.  They  stated  that  they  were  given
salt and bread to eat. PW-5 Sazia stated that during five months  and  three
days, when they were in the tunnel, Tabbasum Aara (A6) used  to  beat  them.
She stated that Naushad (A2), Sultan (A3), Daud (A4) and Shahini  (A5)  used
to come there. PW-6 Shirri also gave the  gory  details  of  the  children’s
confinement in the tunnel.  She stated that Dawood (A4)  and  an  old  woman
used to come there.  After narrating  similar  details,  PW-7  Rehan  stated
that Tabbasum Aara (A6) and Sultan (A3) used to come to  meet  them.   Thus,
none of the children stated that the appellant used to visit  them.   It  is
pertinent to note that PW-1 Ziauddin stated that the appellant  was  working
in his telephone booth and  was  familiar  with  his  children.   Since  the
appellant was known to PW-6 Shirri and PW-7 Rehan -  the  children  of  PW-1
Ziauddin, they would have referred to him if he  had  visited  them.   PW-11
Takki Imam stated that he had seen the appellant riding  a  bicycle  in  the
locality on the day of incident.  None of the witnesses  have  claimed  that
they had seen the appellant on that day nearby the house of the  prosecution
witnesses.  In any case, on the mere statement  made  by  PW-11  Takki  Imam
that he had seen the appellant riding a  bicycle,  it  cannot  be  concluded
that he was involved in the abduction of  children.   PW-1  Ziauddin  stated
that the anonymous caller told him that they were harassing  the  appellant.
The investigating agency has not traced the calls.   The  callers  have  not
been identified.  Therefore, merely on the  basis  of  the  said  call,  the
appellant’s involvement cannot be held proved.  The material witnesses  have
expressed suspicion but there is not a single  credible  piece  of  evidence
linking the appellant to the crime in question.  We have no manner of  doubt
that the offence is grave; the children were abducted and kept in  a  tunnel
for over five months and anonymous calls were made  for  ransom.     Accused
whose involvement in such crimes is proved must be dealt with  with  a  firm
hand, but the seriousness or gravity of the crime  must  not  influence  the
court to punish a person against whom there is no credible  evidence.    The
trial court, therefore, erred in convicting the appellant.

11.   We are distressed to note that by affirming the trial  court’s  order, the High Court has compounded the error.     
The  circumstances  which  the
High Court has taken against the appellant  are:
  (a)  the  fact  that  the
appellant was employed in the telephone booth of PW-4 Nusrat Bano;
(b)  that
he was removed from the service due to his misconduct;
(c) that he  used  to
give threats and claim his dues from  PW-4 Nusrat Bano and her husband;
 (d)
that on the day of incident he was seen in the locality; and
 (e) that  after
the incident telephone  call  was  received  by  the  prosecution  witnesses
warning them not to harass the appellant.
According to the High  Court  all
this indicates a well conceived plan with role  assigned  to  everyone.  
We
have already noted that except PW-11 Takki Imam nobody  has  said  that  the
appellant was seen in the locality on the day  of  incident.  
That  he  was
employed in PW-4 Nusrat Bano’s telephone booth  and  was  removed  from  the
service because of his bad conduct appears to be true.
 But,  even  if  the
story that he used to give threats to the prosecution witnesses  and  demand
his dues is accepted, it does not further the prosecution  case.  
There  is
no evidence on record to establish  that  infuriated  by  his  removal  from service and non-payment of dues, the  appellant  masterminded  the  plot  to abduct the children or played any active  role  in  abducting  them.  
 If  a
telephone call was received making ransom demand and making grievance  about alleged ill-treatment of the appellant, the police should  have  traced  the calls and  identified  the  caller.  
The  police  have  failed  to  do  so.
Criminal  courts  recognize  only  legally  admissible  evidence   and   not farfetched conjectures and surmises.  
The  High  Court’s  observation  that
there was a  pre-conceived  plan   to  abduct  the  children  would  not  be
applicable to the appellant because there is nothing on record to  establish
that the appellant met the co-accused and planned a strategy to  abduct  the
children and demand ransom.
 His case stands on  a  different  footing  from
that of the other accused.  The case of the other accused will  have  to  be dealt with on its own merit.  
The  High  Court  was  carried  away  by  the
heinous nature of the crime and,  in  that,  it  lost  sight  of  the  basic
principle underlying criminal jurisprudence that suspicion,  however  grave,
cannot take the place of proof. 
 If a criminal court allows its mind  to  be
swayed by the gravity of the offence and proceeds to hand out punishment  on
that basis, in the absence of any  credible  evidence,  it  would  be  doing
great violence to the basic tenets of criminal jurisprudence.  
We  hope  and
trust that this is just an aberration.

12.    In the result, we allow the appeal and set aside the impugned  order.
  The appellant – Md.  Faizan  Ahmad  @  Kalu  is  ordered  to  be  released
forthwith, if he is not required in any other case.

13.   The appeal is disposed of in the afore-stated terms.

                                                       ……………………………………………..J.
                                        (AFTAB ALAM)


                                                       ……………………………………………..J.
                           (RANJANA PRAKASH DESAI)

NEW DELHI
JANUARY 3, 2013