Tenders - computerization of the 38 Octroi posts and Octroi Departments situated at various locations of the Municipal limits of Respondent No. 1 Corporation.= praying for setting aside the decision of Respondent No. 1 holding Respondent No. 2 qualified for Tender No. 1 Recall 2010 and further, direct Respondent No. 1 to award that contract under Tender No. 1 Recall 2010 to the Petitioner and not to award the contract under the said tender to Respondent No. 2. = Suffice it to observe that we are not at all impressed by the principal grounds on which the Petitioner expects this Court to interdict the tender process and the work order in question. It would have been a different matter if the Petitioner had substantiated at least one ground of non­ fulfillment of qualification criteria by the Respondent No.2, in which case, the Court could have passed suitable order and moulded the relief, keeping in mind the observation made in order dated 31 st March, Page 18 of 19 J.V.Salunke,PA ::: Downloaded on - 05/01/2013 19:02:06 :::Bombay High Court WP.1653.2011.Judgment.doc 2011 that, any action taken from the date of passing of the said order shall be subject to further orders to be passed by this Court. However, in the fact situation of the present case, no interference in exercise of writ jurisdiction is warranted. 21) Hence, dismissed with no order as to costs.

Bombay  High  Court
     WP.1653.2011.Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CIVIL WRIT PETITION NO. 1653 OF 2011
Vidarbh Infotech Private Limited
A company incorporated under the
Provisions of the Companies Act, 1956
Having its registered office at
14, “Pushpkunj”, Central Bazaar Road,
Ramdaspeth, Nagpur 440010 :­ Petitioner
versus
1) Pune Municipal Corporation, Pune
2) Priyatech Solutions (Pune)
Private Limited,
A company incorporated under the
provisions of the Companies Act, 1956,
having its registered office at
203, Shukrawar Peth,
Pune 411002
3) Trimax IT Infrastructure &
Services Limited,
A company incorporated under the
provisions of the Companies Act, 1956,
having its registered office at
2
nd
 floor, Universal Mill Building,
Asha Usha Compound, Mehra Estate,
L.B.S. Road, Vikhroli (W), Mumbai :­ Respondents
Mr. Birendra Saraf, with Ms. Sonal, Mr. Filji Frederick and Ms.
Suvarna Joshi, i/b. M/s. F. F. Associates, for the Petitioner.
Mr. A. P. Kulkarni, for Respondent No. 1.
Mr. A. M. Kulkarni, for Respondent No. 2.
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CORAM:­ A.M.KHANWILKAR &
MRS. MRIDULA BHATKAR,JJ.
Judgment Reserved on :­ November 22, 2012
Judgment Pronounced on :­ January 3, 2013
JUDGMENT :­ (Per A.M.Khanwilkar, J.)
This Writ Petition, under Article 226 of the Constitution
of India, was filed on 18th February, 2011
praying for setting aside
the   decision   of   Respondent   No.   1   holding   Respondent   No.   2
qualified   for   Tender   No.   1   Recall   2010   and   further,   direct
Respondent   No.  1   to   award   that  contract  under  Tender  No.   1
Recall 2010 to the Petitioner and not to award the contract under
the  said  tender  to Respondent  No.  2.  
 However,  as  during  the
pendency   of   this   Writ   Petition,   the   work   order   was   issued   by
Respondent No. 1, in favour of Respondent No. 2,
 the Petitioner
has amended this Petition pursuant to liberty given by this Court in
terms of order dated 31st March, 2011, and has additionally asked
for setting aside the said work order dated 5th March, 2011 issued
in favour of Respondent No. 2.
2) It is  relevant  to  note  that  on  31st March,  2011,  the
Court, while granting leave to the Petitioner to amend the Petition,
made it clear that any action taken from that date will be subject
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to  the  further  orders  that may  be  passed  by  this Court in  this
Petition.  
3) As aforesaid, before this order came to be passed, the work
order was issued to Respondent No. 2 on 5th March, 2011.  Further,
the Respondent No. 2, on  the basis of  the said work order, has
already commenced the work of computerization of the 38 Octroi
posts and Octroi Departments situated at various locations of the
Municipal limits of Respondent No. 1 Corporation.
4) The Petitioner has, accordingly, challenged the tender
process and also the decision of Respondent No. 1 of issuing the
work order in favour of Respondent No. 2, on three broad counts.
The first is about the non ­fulfillment of the qualification criteria for
bidders, in terms of Clause 18.5 of the tender document.  Second
is  about  the  non ­fulfillment  of  qualification  criteria in  terms  of
Clause   7  of   the   tender  document   and   the  third   is   about   non­
fulfillment of the qualification criteria specified in Clause 2 of the
tender document.  We shall elaborate the grounds of challenge at
the appropriate place.
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5) The Respondents have countered  these points by filing
reply affidavit.   The Respondents have also relied on documents
which form part of the spiral compilation handed in to the Court in
support of its claim.     The Counsel  for  the Corporation  further
contended  that the Petitioner cannot be permitted to agitate  the
above grounds. For, this challenge is after thought. In that, it has
been raised only after the Petitioner realised that it will not be able
to match the lowest offer given by Respondent No. 2.  In addition,
it is submitted that Respondent No. 2 is performing its job to the
fullest  satisfaction  of  the Corporation  and  that,  the Corporation
has been benefited because of the substantially low offer given by
Respondent No. 2 as compared to the offer of the Petitioner i.e., at
the rate of Rs. 5.68 per receipt/post for first order and Rs. 6.78 per
receipt/post for the further two years as against the rate quoted by
the Petitioner of Rs. 14.50 per receipt.
6) We   shall   turn   to   the   first   ground   urged   before   us,
which  is about non­ fulfillment of the qualification criteria in terms
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of Clause 18.5 of the tender document.
Clause 18.5 of the tender document reads thus:­
“18.5 Bidder (at least one member in case of consortium) must
have 250 skilled Computer Operator including other technical
staff on his pay role.  Necessary proof to this effect should be
attached   along   with   the   bid   inform   of   PF   and   ESIC
acknowledgment   Or   attach   salary   certificate   from   the
concerned bank.”
7) For considering the rival stand, we deem it apposite to
also reproduce
clause 20 of the terms and conditions of the Tender,
which reads thus:
“20 Manpower­ The  contractor is  responsible  for  providing
well ­trained   staff   for   managing   the   front­ end   counters   and back end (Approximately 250 employees including Data entry operator, Hardware  Engineer,  Software Engineer, Networking Engineer, Electrical engineer  and Generator Operator)  at  the Naka.    
The  staff  should  be  trained, must  dress in  a  decent manner, should be polite and offer the services with a smile.
The  successful  Bidder  shall  submit  an  affidavit  stating
that  the  successful  bidder  or  any  of  his  employees  will  not
claim for employment in PMC on its services rendered in naka
and main office under this contract or any time in future.  The
proforma  will  be  provided  by  PMC  at  the  time   signing  the
contract.”
8) It is common ground that Respondent No. 2 relied on
the certificate given by the Bank of India, which, according to the
Petitioner, does not fulfill the requirements of Clause 18.5 of the
tender document.   
The  said certificate dated 28th January, 2011
reads thus:
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“SHV:ADV:RKS Date 28/01/2011
To,
M/s. PMC Octroi Department,
Pune
RL:M/S. Sujata Computers Pvt. Ltd.
CERTIFICATE ABOUT EMPLOYEES
M/S. Sujata Computers Pvt. Ltd. Are our clients and have
been maintaining accounts with us.
2) We may certify that there are around 250 employees on
their payroll.  This certificate is issued as per specific request of
M/S. Sujata Computers Pvt. Ltd.   This is issued without any
responsibility  obligations  on  the  part  of BANK  or  any  of it's
officials.
Thanking you
Your's faithfully,      
S/d.                
CHIEF MANAGER”   
9) There is no difficulty in accepting the argument of the
Petitioner that Clause 18.5 is a vital provision, as it concerns the
qualification criteria  for bidders.  This Clause envisages  that  the
Bidder   must   provide   proof   that   he   has   250   skilled   computer
operators including  other  technical  staff.   That  proof  should be
submitted   with   the   bid,   in   prescribed   form   of   PF   and   ESIC
acknowledgement or salary certificate  from  the concerned Bank.
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Notably, as regards the salary certificate from the concerned Bank,
no form has been prescribed.
10) Be   that   as   it   may,   Clause   18.5   will   have   to   be   read   in
conjunction with Clause 20 of the tender document dealing with
the issue of manpower.    If  so  read, it  stipulates  that  the bidder
must in aggregate have not less than 250 employees, consisting of
Data   Entry   operators,   Hardware   engineer,   Software   engineer,
Networking engineer, Electrical engineer and Generator Operator
on its payroll.  No hard and fast norm has been prescribed as to
the strength or ratio of  employees as computer operators and of
other   technical   staff.     Considering   the   expression   “including”,
occurring in Clause 18.5, by no stretch of imagination, it can be
said  that  the  bidder must  have minimum  250  skilled  computer
operators.     For,   it   refers   to   250   skilled   computer   operators
“including” other technical staff on the pay roll.  A priori, it is not
mandatory for the bidder to have employed minimum 250 skilled
computer   operators   as   such.     We   are   in   agreement   with   this
interpretation put forth by the Respondents.
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11) Having   said   this,   the   question   is,   whether   the
certificate given by Bank of India, reproduced above, can be said to
fulfill the requirement of Clause 18.5, in particular.   It mentions
that  there  are  around  250  employees  on  the  payroll  of  Sujata
Computers  Private  Limited.    The  Bank,  however,  does  not  take
responsibility/obligation   on   the   basis   of   the   later   statement
appearing in the certificate issued by the Bank.  In this context, it
was vehemently argued by  the Petitioner  that, such a certificate
will  be   of   no  value   and   more   so   because  it   was  not  a   salary
certificate issued by the Bank as such.  We are not impressed by
this argument.  Clause 18.5 predicates that the bidder must have
specified number of employees and to reassure the claim so made
by the bidder, proof in the form of PF and ESIC acknowledgement
or  salary certificate issued by  the Bank has been insisted upon.
The Bank certainly cannot take the responsibility or obligation of
the   liability   of   the   bidder   qua   its   employees.     The   certificate, however,   is   certainly   useful   to   indicate   that   the   bidder   has employed around 250 employees on its payroll.   Stricto senso  it may not be a salary certificate but, it serves the purpose of having submitted proof in support of the statements made by the bidder
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of having employed specified number of employees.
The substance
of the requirement or qualification criteria is that the bidder must
have 250 employees.  If such statement is made by the bidder and
there   is   some   dispute   or   objection   regarding   the   correctness
thereof, that would be a matter of inquiry and of substantiating the
claim in such inquiry by producing proof therefor.  It is not as if the
bid submitted does not mention the fact that the bidder has 250
and more employees in his establishment.  That is the substance of
the qualification criteria under consideration.  The nature of proof
is defined but, if during the verification, this objection were to be
raised,  the bidder could have cured  the  anomaly or could have
produced   further   material   in   support   of   the   claim   of   having
employed more  than  250 employees in  his establishment.   The
subjective  satisfaction  regarding  the  ability  and  capacity  of  the
concerned bidder is that of the scrutiny committee. Further, it is
not as if the bidder has failed to attach documents referred to in
Clause 18.5 at  all.   Thus, it is not possible  to countenance  the
argument  that Respondent No.2 did not  satisfy  the qualification
criteria.
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12) Further, the Respondents have rightly argued that if the
Petitioner had any tittle of doubt about the qualification criteria of
Respondent  No.  2,  should  have  taken  objection  at  the  time  of
scrutiny and verification of the bid documents, after it was opened
on 4
th
 February, 2011.  Instead, the minutes of 4
th
 February, 2011
clearly go to show that the Petitioner as also other bidders did not
raise any objection, whatsoever,  regarding non­fulfillment of  the
qualification   criteria   by   Respondent   No.   2.     It   is   relevant   to
mention that it is common ground that Respondent No. 2, along
with  the  bid  documents,  had  submitted list  of  253  employees,
along with their designations and experience.  The correctness of
the said disclosure was not put in issue at all.  As a matter of fact,
no   objection   regarding   qualification   was   raised   at   the   time   of
scrutiny.   
 In  any   case,  we  have  no  hesitation in  accepting   the
submission   of   the   Respondents   that   Respondent   No.   2   had
substantially complied with the requirements of Clause 18.5 and
therefore,   no   bidder   raised   any   objection   to   the   qualification
criteria   of   Respondent   No.   2   during   the   scrutiny   done   in   the
meeting on 4th February, 2011.  Taking over all view of the matter,
therefore, we  find  no  substance in  the  first  point  raised by  the
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Petitioner to persuade the Court to quash and set aside the entire
tender process or the work order issued in favour of Respondent
No. 2 on that count.
13) We may now turn to the second ground urged before
us about non­fulfillment of qualification criteria as per Clause 7 of
the tender document.  
Clause 7 reads thus:­
“7. The Bidder (or  any one of consortium members) must
provide   at   least   One   references   from   the   two   years   of
government/semi government client for whom similar type of
services has been performed.  For each reference provide …....”
14) The requirement of Clause 7 is that the bidder or any
one of consortium members must provide at least one reference
from  the  two years of Government/Semi Government client  for
whom similar types of services has been performed.
This, indeed, is a qualification criteria.
The Petitioner, relying on the documents
at Page Nos. 71, 76 and 79  to 96 of  the additional paper book
(spiral compilation) contended that 
Respondent No. 2 had relied
on the reference of Government/Semi Government client of M/s.
Priya Business Machines, which was a proprietary concern and not
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in   respect   of   Respondent   No.   2   which   is   a   Private   Limited
Company, a different entity and not the member of the consortium.
The Respondent No. 2 was the member of the consortium and not
even one reference from the two years of the Government or Semi
Government client was produced by Respondent No. 2.
No doubt,
the documents  referred  to by  the Petitioner  are part of  the bid
documents  submitted  by Respondent No.  2.    Further,  the  same
would   indicate   that   the   reference   is   to   M/s.   Priya   Business
Machines and not Respondent No. 2.  
However, the Respondents
have pressed into service other communications, amongst others,
at Page Nos. 70, 78 and 97.   These documents are indicative of
references   from   the   Government/Semi   Government   clients   of
Priyatech   Solutions   Private   Limited   Respondent   No.   2.  
The
requirement of Clause 7, is, furnishing at least one reference from
two   years   of   Government/Semi   Government   client,   for   whom,
similar services have been performed.  This requirement has been
fulfilled   by   Respondent   No.2.     Accordingly,   even   the   second
ground, on which the tender process as also challenge to the work
order in favour of Respondent No.2, will have to be stated to be
rejected, being devoid of merits.
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15) The third ground canvased before us by the Petitioner
is in the context of requirement under Clause 2 of the qualification
criteria of the bid document.  The same reads thus:
“2. Bidders are allowed to form JV or consortium.  Notarized
Stamp Document must be attached.  However not more than
Two bidders can join in a single consortium.”
16) On a bare reading of this Clause, it is obvious that the
bidders could  form  a joint venture of consortium.   Further, not
more   than   two   bidders   can   join   a   single   consortium.     The
Petitioner relies on a joint venture agreement between Respondent
No. 2 and Sujata Computers Private Limited, dated 24th December,
2004, in particular Clause 4 thereof, which provides for tenure of
the   joint   venture   upto   five   years   from   the   date   of   the   said
agreement.  Obviously, five years' term specified in this agreement
would expire by efflux of time in December, 2009.  It appears that,
an   Amendment   Articles   of   Agreement   was   executed   between
Respondent No. 2 and Sujata Computers Private Limited on 21st
February, 2005 Exhibit – 'C' to the Petition.  As per the amendment,
the Association of persons constituted under  the agreement was
deemed to have commenced from the date of execution of these
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presents   and   duration   of   the   same   was   as   per   conditions
mentioned in PMC tender.   According to the Petitioner, the PMC
tender  referred  to in  this Amended Article Deed was not  taken
forward.     In   that   sense,   the   joint   venture   agreement   between
Respondent No. 2 and Sujata Computers Private Limited did not
continue  further.    The work  order is,  however,  awarded  to  the
same joint venture, in the year 2011, on the erroneous assumption
that the said joint venture continued until and for the recall tender
in question.
17) This   argument   is   countered   by   the   Respondents   by
relying on the Joint Venture Agreement between Respondent No. 2
and  Sujata  Computers  Private  Limited,  purportedly executed in
December, 2010.
The said JVA reads thus:
“Joint Venture Agreement between
M/s. Priyatech Solutions (Pune) Pvt. Ltd.
A company incorporated and registered under the provisions of
the companies Act, 1956 having its registered office at 203
Shukrawar Peth, Pune 411002.
Through its duly authorized director
Mr. Prafulla Prabhakar Mahajan
Age 39 Occupation Business
Residing at
C­4/1 Maniratna Complex, Aranyeshwar, Pune 411009
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And
M/s. Sujata Computers Pvt. Ltd.
A company incorporated and registered under the provisions of
the companies Act, 1956 having its registered office at 66/2
Guru Chhaya Apartment, Nalstop, Karve Road, Pune 411004.
Through its duly authorized director
Mr. Sumatilal Manikchand Lodha
Age 53 years Occupation:Business
Residing at: Gandhali Apartments,
Damale Path,
Law College road,
Pune 411004
Dated 24.12.2004 is hereby extended on similar terms for Pune
Municipal Corporation Octroi Department tender No. 1/2010.
  For Priyatech Solutions (Pune) Pvt. Ltd.       For Sujata Computers Pvt. Ltd.
S/d.                                                            S/d.
Director                                                      Director”
(emphasis supplied)
18) Relying on the concluding part of this document, the
Petitioner   would   contend   that   the   same   cannot   be   treated   as
revival of the term of JVA under the joint venture Agreement dated
24th  December, 2004.   At best, it only predicates  that  the  terms
referred  to in  the  said  agreement  are extended but  there is no
mention about extending the tenure of the agreement which was
limited to five years from the commencement of the joint venture.
No doubt, if this contention of the Petitioner is to be accepted, it
may result in non­fulfillment of requirement under Clause 2 of the
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tender   document   reproduced   above.  
However,
we   are   in
agreement with the submission of the Respondents that the intent
behind the JVA reproduced above was obviously to revive the joint
venture for further period commensurate with the period specified
in  the  recall  tender in  question.   The  above  said  JVA explicitly
provides  that  the joint venture is extended  on  similar  terms in
relation   to   the   tender   in   question,   including   the   recall   tender.
Moreover, during the scrutiny, the officials of the Corporation were
satisfied   that   the   requirements   of   subsisting   joint   venture   or
consortium were fulfilled.  Further, no objection regarding validity
of joint venture agreement was put in issue during  the scrutiny.
Since  the Respondent No.2 had  substantially complied with  the
requirement of forming joint venture and on that premise, the bid
document submitted by Respondent No.2 was processed, it is too
late in the day  to raise that issue for unsettling the tender process
and  the work  order  awarded  to Respondent  No.2.
Instead, we
agree with the Respondents that the said document will have to be
liberally   construed   and   at   this   distance   of   time,   the   Petitioner
should not be permitted  to challenge  the  tender process on  this
count and more so because no public purpose would be served by
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cancelling the tender process or the work order issued in favour of
Respondent No. 2.   Indisputably, the Respondent No.2 has given
the lowest offer and also because of substantial price difference
having financial ramifications to the exchequer of the Corporation.
19) The Petitioner has countered  this  submission on  two
counts. 
Firstly, because  the Petitioner cannot be blamed  for not
having  taken  objection  on  the  date  of  scrutiny  on  4th
February, 2011, as it was impossible to wade through the entire compilation of   documents   produced  by   Respondent  No.   2,  along  with   bid.
Further,   it   is   seen   that   the   Petitioner   immediately   raised   the objection   in   writing   on   7th February,   2011,   addressed   to   the Municipal   Commissioner,   vide   Exhibit   'I'.    
According   to   the
Petitioner,  this objection was  taken in writing, much before  the
work order was awarded to Respondent No. 2.  The Corporation
was duty bound  to consider  the objection and more particularly
because it was in respect of qualification criteria.  On merits of the
objection raised by the Petitioner, we have already negatived the
same. Assuming  that  the Petitioner was right  that  the Petitioner
should not be non  suited because of having  failed  to  raise  any
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objection at the time of scrutiny on 4th February, 2011, even then,
the challenge in this Petition cannot succeed.
20) According   to   the   Petitioner,   the   Court   must   lean   in
favour  of  the  Petitioner  and  should  not  non  suit  the  Petitioner
merely   because   the   work   order   has   already   been   issued   to
Respondent  No.  2  as  back  as  on  5th March,  2011  and  equally
because Respondent No. 2 incidentally happens to have given offer
much below the offer of the Petitioner.  
This defence, contends the
petitioner,   cannot   stand   the   test   of   judicial   scrutiny,   if   the
Respondent No. 2 has failed to fulfill the qualification criteria.
For
the   reasons   already   recorded,   
we   need   not   dilate   on   this contention any further.  
Suffice it to observe that we are not at all
impressed by the principal grounds on which the Petitioner expects this Court to interdict  the  tender process and the work order in question.  
It would have been a different matter if the Petitioner
had   substantiated   at   least   one   ground   of   non­ fulfillment   of qualification criteria by the Respondent No.2, in which case, the Court could have passed  suitable order and moulded  the  relief, keeping in mind the observation made in order dated 31
st March,
Page 18 of 19
J.V.Salunke,PA
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     WP.1653.2011.Judgment.doc
2011 that, any action taken from the date of passing of the said
order shall be subject to further orders to be passed by this Court.
However, in the fact situation of the present case, no interference
in exercise of writ jurisdiction is warranted.  
21) Hence, dismissed with no order as to costs.
(MRS. MRIDULA BHATKAR,J.)     (A.M.KHANWILKAR,J.)
Page 19 of 19
J.V.Salunke,PA
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Arbitration and Conciliation Act, section 37(2) of the Act, it is clear that appeal is maintainable from the order of Arbitral Tribunal accepting the plea referred to subsection 2 or sub-section 3 of Section 16 or granting or refusing to grant any interim measures under Section 17. In my view, since the order passed by the learned arbitrator does not fall either under Section (2) (a) or (b), the present appeal is thus not maintainable. Appeal is maintainable against no other orders of the Arbitral Tribunal other than what is provided for in sub-section (2) of Section 37.

Bombay  High  Court
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ARA48_12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION APPEAL NO. 48 OF 2012
M/s.Areeb Rolling Mills Pvt. Ltd. & Ors. ..... Appellants
VERSUS
NKGSB Co-operative Bank Ltd. ..... Respondents
Mr.Bharat L.Gandhi, i/b. K.C.Pandey for the Appellants.
Mr.N.N.Bhadrashete for the Respondents.
              CORAM :   R.D. DHANUKA, J.
    DATED   :  4
th
 JANUARY, 2013
 
ORAL JUDGMENT
By this appeal filed under Section 37 of the Arbitration and Conciliation Act,
1996, appellants seek to challenge an order dated 5
th
 July, 2012 passed by the
learned arbitrator rejecting application filed by the appellants on 16
th
 September,
2011.  By the said application, the appellants had applied for a direction against the
respondent bank to opt only for one remedy between the proceedings under section
84 of the Multistate Co-operative Societies Act 2002 and the SARFAESI Act,
2002.
2. Mr.Bhadrashete,  the  learned  counsel  appearing  for  the  respondent  raises
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preliminary objection in respect of the maintainability of this appeal under Section
37 of the Act on the ground that though the appellants have in the cause title of the
Memorandum of Appeal has referred to the order passed by the learned arbitrator
as if the order passed under section 17 of the Act, on perusal of the averments and
prayers made in the said application, it is clear that the said application is not under
section 17 of the Arbitration and Conciliation Act, 1996 and such order is not an
appealable order under section 37 of the Act.
3. Perusal of the application filed by the appellants it is clear that by the said
application, appellants has sought direction to the respondents to opt only for one
remedy out of the two adopted by the bank.  Such application is rejected by the
learned  arbitrator.   On  plain  reading  of  Section  17  of  the  Arbitration  and
Conciliation Act, 1996, it is clear that the said provision is for grant of interim
measures of protection as the Arbitral Tribunal may consider necessary in respect
of the subject matter of the dispute and while considering such interim measures of
protection, the Arbitral Tribunal has power to require a party to provide appropriate
security in connection with such measure, ordered under sub-section 1 of section
17.  In my view such application for seeking inspection, interrogation filed by the
petitioner does not fall under Section 17 of the Arbitration and Conciliation Act,
1996.
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4. On  plain  reading  of  section  37(2)  of  the  Act,  it  is  clear  that  appeal  is maintainable from the order of Arbitral Tribunal accepting the plea referred to subsection 2 or sub-section 3 of Section 16 or granting or refusing to grant any interim
measures under Section 17.  
In my view, since the order passed by the learned
arbitrator does not fall either under Section (2) (a) or (b),  the present appeal is thus not maintainable.  
Appeal is maintainable against no other orders of the Arbitral
Tribunal other than what is provided for in sub-section (2) of Section 37.
5. I am, thus, inclined to accept the preliminary objection raised by the learned
counsel  appearing  for  the  respondent.   I  am  of  the  view  that  appeal  is  not
maintainable and is therefore rejected.  
6. There shall be no order as to costs.
[R.D. DHANUKA, J.]  
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Evidentiary value of Dying Declaration:=There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a MagistrateAs a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.. = “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) ….. ….. ….. ….. (8) …. ….” It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other. In spite of stringent legislations in order to curb the deteriorating condition of women across the country, the cases related to bride burning, cruelty, suicide, sexual harassment, rape, suicide by married women etc. have increased and are taking place day by day. A complete overhaul of the system is a must in the form of deterrent punishment for the offenders so that we can effectively deal with the problem. In the case on hand, Vandana died within 3 years of her marriage at the instance of her mother-in-law and sisters-in-law due to the harassment meted out to her because of the inability to conceive a child and she was poured kerosene and burnt to death. Even though, the mother-in-law, who also filed a separate appeal, died on 10.02.2012, in view of clinching evidence led in by the prosecution, there cannot be any leniency in favour of the appellants, who are sisters-in-law of the deceased and at whose instance the deceased was burnt at the hands of her mother-in-law. 19) Accordingly, while agreeing with the conclusion arrived at by the trial Court and affirmed by the High Court, we find no merit in the appeal. Consequently, the same is dismissed.

                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 1062 OF 2008



Ashabai & Anr.                                     .... Appellant(s)

            Versus

State of Maharashtra                          .... Respondent(s)

                                      2







                               J U D G M E N T

P.Sathasivam,J.

1)     This  appeal  is  directed  against  the  judgment  and  order  dated
11.04.2007 passed by the High  Court  of  Bombay,  Bench  at  Aurangabad  in
Criminal Appeal No. 252 of 2005 whereby the High Court dismissed the  appeal
filed by the appellants herein and  confirmed  the  order  dated  30.03.2005
passed by the Court of IInd Ad-hoc Additional  Sessions  Judge,  Jalgaon  in
Sessions Case No. 165 of 2003.


2)    Brief facts:
a)    On 28.02.2000, Vandana Raghunath Tayade (since deceased)  was  married
to one  Raghunath  Puna  Tayade  at  Village  Khirwad,  Taluq  Raver,  Dist.
Jalgaon, Maharashtra.  After marriage, she was staying  at  her  matrimonial
home in a joint family consisting of her husband, Kesharbai (A-1) mother-in-
law,  father-in-law  and  two  sisters-in-law,  viz.,   Ashabai  and  Kavita
(appellants herein).  Since there was no issue from the  marriage,  she  was
ill-treated by her mother-in-law and sisters-in-law.  On  that  count,  they
used to harass her and both the families were not in good terms.
b)     On  05.03.2003,  at  about  1645  hrs.,  when  Vandana  was  in   her
matrimonial home, Kesharbai (mother-in-law), in order to  get  rid  of  her,
poured kerosene on her body and Ashabai and  Kavita  (appellants  herein)  –
sisters-in-law instigated Kesharbai to lit the fire by using  a  matchstick.
She started shouting and caught hold  of  her  mother-in-law  in  the  burnt
condition.  Vandana and Kesharbai, both were taken to the Railway  Hospital,
Bhusawal and her statement was recorded  on  the  very  same  day.   Between
05.03.2003 to 06.03.2003, the injured gave, in  all,  4  dying  declarations
one by one to the authorities concerned.  On 18.04.2003,  she  succumbed  to
her injuries and the post-mortem was conducted on the same day  and  a  case
being A.D. No. 15 of 2003 was registered.
c)    After investigation,  charge  sheet  was  filed  against  six  accused
persons, i.e., Kesharbai (A-1), Ashabai Puna Tayade (A-2)  and  Kavita  Ajay
Medhe (A-3)-appellants herein, Puna Mitharam Tayade, Shobha  Sitaram  Tayade
and Sitaram Ramaji Tayade and the case was committed to  the  Court  of  the
IInd Ad-hoc Additional Sessions Judge,  Jalgaon  and  numbered  as  Sessions
Case No. 165 of  2003.   The  Additional  Sessions  Judge,  by  order  dated
30.03.2005, convicted A-1,  A-2  and  A-3  under  Section  498-A  read  with
Section 34 of the Indian Penal Code, 1860 (in short ‘IPC’  )  and  sentenced
them to undergo RI for 1 year along with a fine  of  Rs.  1,000/-  each,  in
default, to further undergo RI for  3  months.   They  were  also  convicted
under Section 302 read with Section  34  of  IPC  and  sentenced  to  suffer
imprisonment for life along with a fine of Rs. 2,000/- each, in default,  to
further undergo RI for 6 months and acquitted the other accused persons.
d)    Challenging the said judgment, the appellants  herein  filed  Criminal
Appeal No. 252 of 2005 before the  High  Court.   By  impugned  order  dated
11.04.2007, the High Court, dismissed the appeal  filed  by  the  appellants
herein and confirmed their conviction and sentence passed  against  them  by
the trial Court.
3)    Heard Mr. Sudhanshu S. Choudhari, learned counsel for the  appellants-
accused and Ms. Aprajita Singh, learned counsel for the State.
Discussion:
4)    The present appeal is by Ashabai (A-2) and Kavita  Ajay  Medhe  (A-3),
both sisters-in-law of the deceased.  Kesharbai  (A-1)  -  mother-in-law  of
the deceased, who was also convicted and sentenced to RI for  life  filed  a
separate appeal being Criminal Appeal No. 1063 of 2008  before  this  Court.
Since she  died  on  10.02.2012,  by  order  dated  13.12.2012,  this  Court
dismissed her appeal as abated.   Therefore,  we  are  concerned  about  the
present appellants, namely,  Ashabai  (A-2)  and  Kavita  Ajay  Medhe  (A-3)
respectively.
5)     The  marriage  of  the  deceased  Vandana  with  one  Raghunath   was
solemnized on 28.02.2000 and her death occurred  on  18.04.2003,  i.e.,  her
married life came to an end within 3 years  of  her  marriage.   The  entire
prosecution case lies on 4 dying declarations made by the deceased  and  the
oral evidence of PWs 1, 2, 3 and 11.
Dying Declaration No. 1 (Exh.76):
6)    The first dying declaration was recorded by Shri Dhondu (PW-14),  Sub-
inspector  of  Police,  Sarkarwade  P.S.,  Nasik  on  05.03.2003.   In   her
statement before PW-14, she narrated that her  marriage  was  solemnized  on
28.02.2000 at  Khirwar  and  she  was  residing  at  Shantinagar,  Someshwar
Colony, Bhusawal along with her husband-Raghunath,  Punna  -  father-in-law,
Kesharbai  -  mother-in-law,  Ashabai  and  Kavita  -  sisters-in-law.   She
further stated that her husband was working as an Assistant  Station  Master
at Bhusawal, her father-in-law retired from Railways and she along with  her
mother-in-law and sisters-in-law stayed at home. As  she  was  not  able  to
conceive even after 3 years of marriage, her mother-in-law  and  sisters-in-
law always used to abuse her that she was ‘barren’.  They used to  say  that
she should not stay in the house and better she would die.   On  04.01.2003,
all the three assaulted her in front of her  brother.    On  05.03.2003,  at
about 7 o’clock in the morning, when she entered into the house  along  with
her husband after their return from Mumbai, her mother-in-law  and  sisters-
in-law, viz., Ashabai and Kavita shouted that the barren lady has  come  and
telling her husband that he should not keep the unproductive lady  in  their
house.  After quarrelling with  her  mother-in-law,  her  husband  went  for
duty.  At about 4.45 p.m., when she came to her bedroom after taking a  wash
and was standing facing towards east in the place in  between  the  cupboard
and the cot, at that time, her mother-in-law –  Kesharbai  (A-1)  came  from
behind with her sisters-in-law Ashabai and Kavita. She was holding a tin  of
kerosene in her hands and she poured kerosene on  her  from  neck  to  legs.
While doing so, her sisters-in-law directed her mother-in-law to  light  the
matchstick.  Accordingly, the mother-in-law lit the matchstick.   On  seeing
this,  her  father-in-law  and  sisters-in-law  poured  water  on  her   and
extinguished the fire.  The above statement is duly certified by the  Doctor
on duty- Shri T.F. Ramesh  that  she  was  conscious  and  able  to  give  a
statement.  It is clear that in this declaration she has not implicated  her
husband and father-in-law.  On the other hand, she  asserted  that  she  was
tortured by her mother-in-law (A-1) and sisters-in-law (A-2 and  A-3).   She
also specified that it was her mother-in-law  who  poured  kerosene  on  the
direction of her sisters-in-law.
Dying Declaration No.2 (Exh. 45):
7)     This  statement  was  made  by  the  deceased  before  the  Executive
Magistrate, Bhusawal on 05.03.2003 at 11.10 p.m. which was  marked  as  Exh.
45 and is in  the  form  of  questions  and  answers.   When  the  Executive
Magistrate asked what had happened  on  that  day,  she  answered  that  “my
mother-in-law by name, Kesharbai  Puna  Tayde  poured  kerosene  on  me  and
burnt”.  She further mentioned that the said incident took  place  at  about
4.30 to 5.00 p.m. on 05.03.2003.  In respect  of  another  question  by  the
Magistrate, namely, who were there in  the  house,  she  answered  that  her
mother-in-law and sisters-in-law, by name, Ashabai and Kavita were there  in
the house and they told to light the matchstick.  She  also  mentioned  that
at the relevant time, her husband and father-in-law were not in  the  house.
The very same doctor, who certified her condition in the statement  recorded
by PW-14  also  certified  that  the  declarant  was  conscious  to  give  a
statement.  He also mentioned the date and time as 05.03.2003 at 11.10  p.m.
 This declaration, which was duly  recorded  by  the  Executive  Magistrate,
Bhusawal (PW-7) clearly shows that  it  was  her  mother-in-law  who  poured
kerosene on her on the direction of her sisters-in-law (A-2 and A-3).
Dying Declaration No.3 (Exh. 47):
8)    On 06.03.2003, injured Vandana  again  made  a  statement  before  the
Executive Magistrate, Bhusawal at 19:25 hrs.  Here again, her statement  was
recorded in the form of questions and answers.  The said document  has  been
marked  as  Exh.47.   After  narrating  that  her  marriage  took  place  on
28.02.2000 at Khirwar, she informed that her  mother-in-law  and  father-in-
law used to quarrel with her and her husband never  used  to  say  anything.
No doubt, in this statement,  she  mentioned  that  she  was  threatened  by
Shobha Sitaram Tayade (sister-in-law) and Sitaram Ramji Tayade  (husband  of
Shobha Sitaram Tayade).  After mentioning their names, (both  of  them  were
acquitted by the trial Court) she further narrated that  amongst  them,  her
mother-in-law  poured  kerosene  on  her  and  sisters-in-law  (Ashabai  and
Kavita) were standing by closing the door.  For  another  question,  namely,
whether she had suspicion on anyone, she answered that she was tried  to  be
burnt by her  mother-in-law  Kesharbai,  Ashabai,  Shobha,  Kavita,  Sitaram
Ramji Tayade.  While recording the above statement, here again, duty  Doctor
Dr. C.N. Pimprikar certified that Vandana was  fully  conscious  to  give  a
statement.  He also mentioned the time and date of recording  of  the  above
statement as 7:25 p.m. dated 06.03.2003.
9)    Learned counsel for the appellants pointed out certain  contradictions
and improvements which were not mentioned in her first two  statements.   It
is true that in the third statement made before  the  Executive  Magistrate,
she implicated Shobha and Sitaram Ramji Tayade and according  to  her,  they
also  threatened  her  along  with  her  mother-in-law  and  sisters-in-law.
Merely because she mentioned two other names,  who  were  acquitted  by  the
trial Court,  it  cannot  be  presumed  that  her  earlier  statements  were
unacceptable.  However, it is to be noted that even in the  third  statement
before the Executive Magistrate duly recorded  by  him,  she  mentioned  the
role of her  mother-in-law  and  sisters-in-law.   There  is  no  reason  to
disbelieve or reject the above statement as claimed by learned  counsel  for
the appellants.
Dying Declaration No.4 (Exh. 36):
10)   On 06.03.2003 itself, at about 7.30 p.m., again  the  injured  Vandana
made a  statement  before  Shri  Dilip,  Sub-Inspector  of  Police  who  was
examined as PW-6 and the statement was marked as Exh. 36.   Here  again,  in
respect of the questions put by  the  recording  officer,  she  answered  by
implicating her mother-in-law and sisters-in-law.  For a specific  question,
namely, on 05.03.2003, whether  she  was  at  home  and  how  she  got  burn
injuries and who was  responsible  for  the  same,  she  answered  that  “on
05.03.2003, I was at home only.  At  about  5  o’clock,  her  mother-in-law,
sisters-in-law poured kerosene and burnt”.   Here  again,  she  specifically
implicated her mother-in-law and sisters-in-law  for  pouring  kerosene  and
litting fire.
11)   Learned  counsel  for  the  appellants  argued  that  the  version  of
incident as given by the deceased in all  the  four  dying  declarations  is
inconsistent and no reliance can be placed on it.  We have already  referred
to the persons who recorded all the four statements, her condition  and  the
certificate issued by the doctor as well as the contents of the  statements.
 Though, in one of the statement, she implicated two more persons (who  were
acquitted by the trial Court) she was consistent about the  role  played  by
her mother-in-law and her sisters-in-law  (appellants  before  us).   It  is
relevant to note that  the  incident  took  place  in  the  bedroom  of  the
deceased.  It is also clear that she was subjected to  torture  as  she  had
not conceived a child even after three years of the marriage and in all  the
four dying declarations, she was conscious in mentioning  the  role  of  her
mother-in-law and  sisters-in-law.   We  are  satisfied  that  there  is  no
contradiction as to the main aspect, namely, implicating  her  mother-in-law
and sisters-in-law as well as the role played by them.
Evidentiary value of Dying Declaration:
12)   About the evidentiary value of dying declaration of the  deceased,  it is relevant to refer Section 32(1) of the Indian Evidence Act,  1872,  
which reads as under:-
      “32. Cases in which statement of relevant fact by person who  is  dead or cannot be found, etc., is relevant.- 
Statements, written or verbal,
      of relevant facts made by a person who  is  dead,  or  who  cannot  be
      found, or who has  become  incapable  of  giving  evidence,  or  whose
      attendance cannot be procured without an amount of  delay  or  expense
      which, under the circumstances of  the  case,  appears  to  the  Court
      unreasonable, are themselves relevant facts in the following cases:-


      (1) when it relates to cause of death.- When the statement is made  by
      a person as  to  the  cause  of  his  death,  or  as  to  any  of  the
      circumstances of the transaction which resulted in his death, in cases
      in which the cause of that person’s death comes into question.


      Such statements are relevant whether the person who made them  was  or
      was not, at the time when they were made, under expectation of  death,
      and whatever may be the nature of the proceeding in which the cause of
      his death comes into question.


      (2) ….. …..
           ….. …..
      (8) …. ….”



It is clear from  the  above  provision  that  the  statement  made  by  the
deceased by way of a declaration is admissible  in  evidence  under  Section
32(1) of the Evidence Act.  
It is not in dispute that her statement  relates to the cause of her  death.   

In  that  event,  it  qualifies  the  criteria mentioned in Section 32(1) of the Evidence  Act.   

There  is  no  particular form or procedure prescribed for recording a dying  declaration  nor  it  is
required to be recorded only by a Magistrate.  
As  a  general  rule, 
 it  is
advisable to get the evidence of the declarant certified from a doctor.   
In
appropriate cases, the satisfaction of the person  recording  the  statement regarding the state of mind of the deceased  would  also  be  sufficient  to hold that the deceased was in  a  position  to  make  a  statement.  
It  is
settled  law  that  if  the  prosecution  solely  depends   on   the   dying
declaration, the normal rule is that the courts must exercise due  care  and
caution to ensure genuineness of the  dying  declaration,  keeping  in  mind
that the accused had no opportunity to test the veracity  of  the  statement
of the deceased by cross-examination.   
As  rightly  observed  by  the  High
Court, 
the law does not insist upon the corroboration of  dying  declaration before it can be accepted.  The  insistence  of  corroboration  to  a  dying declaration is only a rule of prudence.  When the Court  is  satisfied  that
the dying declaration is voluntary, not tainted by  tutoring  or  animosity,
and is not a product of the imagination of the  declarant,  in  that  event,
there is no impediment in convicting the accused on the basis of such  dying
declaration.   
When  there  are  multiple  dying  declarations,  each  dying
declaration  has  to  be  separately  assessed  and  evaluated  and   assess
independently on its own merit as to its evidentiary value  and  one  cannot
be rejected because of certain variation in the other.
13)   We have already noted that in the present case, prosecution relied  on
four dying declarations of the deceased.  We have also  noted  that  at  the
time of  recording  of  these  statements,  medical  officers  on  duty  had
certified that the deceased was fully conscious and was in a  fit  state  of
mind to make the same.  As a matter of fact, the deceased has  given  proper
replies to the questions put to her by various authorities.  Further, it  is
not in dispute that the incident occurred on 05.03.2003  and  she  sustained
54% burns and, ultimately, she died only on  18.04.2003.   In  other  words,
she survived for about 1 ½ (one and a  half)  month  which  speaks  for  the
fitness of the declarant to make a statement.  The persons who recorded  the
four dying declarations were examined as PWs 14, 7 and 6 and they were  also
cross-examined about the statement made by  the  deceased  and  recorded  by
them.  In such circumstances, we fully endorse the  view  expressed  by  the
trial Court and affirmed by the High Court about the acceptability  of  four
dying  declarations  implicating  the   mother-in-law   and   sisters-in-law
(appellants herein).
Oral Evidence of PWs 1, 2 and 11:
14)    Malatabai  (PW-1)  is  the  mother  of  the  deceased  Vandana.   She
explained about the marriage of her daughter and the  strained  relationship
with her family members including the present appellants.  Sanjay  (PW-2)  -
elder brother of the deceased Vandana, in his evidence has  stated  that  he
along with  her  mother  took  the  deceased  to  her  matrimonial  home  on
04.01.2003 and as soon as the deceased entered into the house A-1, A-2,  A-3
and A-5 assaulted her in their  presence.   He  also  stated  that  when  he
protested, they also assaulted him and, thereafter, he informed his  parents
about the same.  In response to this information, his  father  and  maternal
uncle came to the matrimonial home of the deceased but  none  of  them  were
allowed to enter the house to meet the deceased.
15)   PW-11, maternal  uncle  of  the  deceased,  also  narrated  about  the
marriage of the deceased with her husband.  He also said that on receipt  of
information about  the  incident  of  burning,  he  rushed  to  the  Railway
Hospital, Bhusawal and enquired about the deceased. He noticed that  Vandana
sustained burn injuries.  However, she was conscious and he asked her as  to
what had happened.  She disclosed that her mother-in-law and  sisters-in-law
put her on fire.  PW-11 also stated that Vandana was  in  the  Hospital  for
about one and a half month.
16)   Apart from the above witnesses,  prosecution  has  also  examined  the
doctors who certified her fitness while making  the  statement,  the  doctor
who conducted her post-mortem and I.Os.,  who  completed  the  investigation
and filed charge sheet.
Conclusion:
17)   The above analysis clearly shows that the deceased was in a fit  state
of mind to make  dying  declarations  and  her  statements  in  those  dying
declarations are consistent and truthful.  In  addition  to  the  same,  the
prosecution also examined PWs 1, 2 and 11 as well  as  the  Doctors,  I.Os.,
and other witnesses  in  support  of  their  claim.   We  do  not  find  any
infirmity in the order of conviction and  sentence  recorded  by  the  trial
Judge and affirmed by the High Court.
18)   In spite of stringent legislations in order to curb the  deteriorating
condition of women across the country, the cases related to  bride  burning,
cruelty, suicide, sexual harassment, rape, suicide  by  married  women  etc.
have increased and are taking place day by day.
A complete overhaul of  the
system is a must in the form of deterrent punishment for  the  offenders  so
that we can effectively deal  with  the  problem.  
In  the  case  on  hand,
Vandana died within 3 years of her marriage at the instance of  her  mother-in-law and sisters-in-law due to the harassment meted out to her because  of the inability to conceive a child and she was poured kerosene and  burnt  to death.  
Even though, the mother-in-law, who also filed  a  separate  appeal, died  on  10.02.2012,  
in  view  of  clinching  evidence  led  in   by   the
prosecution, there cannot be any leniency in favour of the  appellants,  who are sisters-in-law of the deceased and at whose instance  the  deceased  was burnt at the hands of her mother-in-law.
19)   Accordingly, while agreeing with the  conclusion  arrived  at  by  the
trial Court and affirmed by the High Court, we find no merit in the  appeal.
 Consequently, the same is dismissed.





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


                                 (P. SATHASIVAM)








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


                              (RANJAN GOGOI)



NEW DELHI;
JANUARY 4, 2013.
-----------------------
18

there were around 300 grams semi digested food particles (rice) in the stomach of the deceased, disbelieved the time of occurrence as projected by the prosecution. It is true that PW-2, while deposing before the Court, answered in the cross-examination that the death might have occurred 34 hours prior to her performing the post mortem and the partly undigested rice would show that rice might have been consumed by the deceased 2-3 hours before his death. However, the Investigation Officer (PW-11), during the cross-examination, highlighted that during the course of his investigation, he ascertained from the father of the deceased that the deceased consumed food at 11.00 p.m. during the said intervening night. As rightly observed by the High court, since the parties are hailing from a remote village, the villagers might take food even at odd hours after finishing certain work in their fields and it cannot be precisely predict based on the undigested food particles alone. The High Court has adverted to Modi’s Medical Jurisprudence and Toxicology, 22nd Edition and after noting all the relevant details has rightly concluded that the observation of the doctor relating to the injuries and her general opinion at the time of death which occurred 28-30 hours tally with the narration of eye- witnesses and concluded that in such a case mere inference of the doctor with reference to undigested food particles could not threw the prosecution case. We fully agree with the discussion and the ultimate conclusion on this aspect by the High Court. The evidence of PWs 1 and 5 coupled with the version in Exh.P-1 would state that the occurrence took place at 5.30 a.m. while the deceased was passing stool, as such, the timings mentioned by the doctor, occurrence and other witnesses tally with the narration. Accordingly, we reject the contention raised by the counsel for the appellants with reference to existence of undigested particles n the post mortem by PW-2.

                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 2085 OF 2008



Mookkiah & Anr.                                   .... Appellant(s)

            Versus

State, rep. by the Inspector of Police,
Tamil Nadu                                        .... Respondent(s)


                                      2



                               J U D G M E N T


P.Sathasivam,J.

1)    This appeal has been preferred against the final  judgment  and  order
dated 25.01.2007 passed by the Madurai Bench of the  Madras  High  Court  in
Criminal Appeal No. 1137 of 1998 whereby the  Division  Bench  of  the  High
Court allowed the appeal filed by the State  and  set  aside  the  order  of
acquittal  of  appellants  herein  dated  24.08.1998  passed  by  the   IInd
Additional Sessions Court, Tirunelveli in Sessions Case No. 264 of 1996.
2)    The facts and circumstances giving rise to this appeal are as under:
(a)   Uluppadi Parai is  a  small  village  in  Ambasamudhram  Taluk  within
Kallidaikurichi Police Station.  The appellants herein (A-1) and  (A-2)  and
the deceased were all the residents of  the  same  hamlet  situated  in  the
aforesaid village.  The residents of that hamlet had a nearby place as  open
air latrine which was situated near a water body.
(b)   The deceased Ramaiah, in this case, was the son-in-law of Ramaiah (PW-
1), who also had the same name as that of the  deceased.   Parvathi-daughter
of PW-1, was  married  to  the  deceased-Ramaiah.   
25  days  prior  to  the
incident, when she was staying at  the  residence  of  PW-1, 
 the  deceased-
Ramaiah solicited the wife of Subbiah  (A-2)  to  have  illicit  intercourse
with him and A-2, after coming to know of such  fact,  harboured  enmity  in
his heart against the  deceased.  
The  deceased  was  also  having  previous
enmity with Mookkiah    (A-1), who was residing in the same village.
(c)   On 12.05.1992, at about 5.30 a.m., when the deceased Ramaiah  went  to
the said open air latrine to attend to the calls of the nature, A-1  and  A-
2, in furtherance of their common intention to murder Ramaiah,  dealt  blows
on him using aruval (billhooks), thereby killed him on the spot  itself  and
fled away from the scene.  
However, on the very same  day,  at  about  05:30
hours, when Ramaiah (PW-1), the father-in-law of the deceased,  Sudalaimuthu (PW-5) and Shanmugam (PW-4) were returning after pouring  water  into  their field, they heard the cries of Ramaiah, son-in-law of PW-1, shouting  “Don’t attack, Don’t attack”.  
They immediately rushed to the  spot  and  saw  that
the accused were attacking the deceased-Ramaiah on his head, neck,  shoulder and back with their aruval and on seeing them, they fled away. 
 Ramaiah (PW-
1) and Sudalaimuthu (PW-5) both witnessed  the  ghastly  crime  and  despite
they shouted at the assailants not  to  perpetrate  the  gruesome  act,  the
accused accomplished their task of murdering the accused.
(d)    Thereupon,  PW-1,  PW-4,  PW-5  and  one  Kanaka  Raj,  went  to  the
Kallidaikurichi P.S. and PW-1 lodged a complaint against  both  the  accused
persons which was registered as Crime No. 173 of 1992 under Section  302  of
the Indian Penal Code, 1860 (in short ‘IPC’).
(e) After investigation, both the accused persons were arrested and  charges
were framed against them under Section 302 read with Section 34 of  IPC  and
the case was committed to  the  Court  of  Session  which  was  numbered  as
Sessions Case No. 264 of 1996.
(f)   By order dated 24.08.1998, the trial Court, after giving  the  benefit
of doubt, acquitted both the accused of the offences with  which  they  were
charged.  Being aggrieved by the judgment of acquittal, the State  preferred
an appeal being Criminal Appeal No. 1137 of 1998 before  the  Madurai  Bench
of the Madras High Court.
(g)   The High Court, after examining all  the  materials,  by  order  dated
25.01.2007, reversed the judgment of acquittal and found A-1 and A-2  guilty
of the offence under Section 302 read with Section 34 of IPC  and  sentenced
them to suffer rigorous imprisonment (RI) for life alongwith a fine  of  Rs.
5,000/- each, in default, to further undergo RI for 6 months.
(h)   Being aggrieved by the impugned judgment of the High Court, A-1 and A-
2 (appellants herein) preferred an appeal before this  Court  under  Article
136 of the Constitution of India.
3)    Heard Mr. S. Nanda Kumar, learned counsel for  the  appellants-accused
and Mr. S. Gurukrishna  Kumar,  learned  senior  counsel  and  AAG  for  the
respondent-State.
Interference in Appeal against Acquittal:
4)    It is not in dispute that the trial Court,  on  appreciation  of  oral
and documentary evidence led in by the prosecution  and  defence,  acquitted
the accused in respect of the charges leveled against them.   On  appeal  by
the State, the High Court, by impugned order,  reversed  the  said  decision
and convicted the accused under Section 302 read with Section 34 of IPC  and
awarded RI for life.  Since counsel for the appellants very much  emphasized
that the High Court has exceeded its jurisdiction in upsetting the order  of
acquittal into conviction, let us analyze the scope and power  of  the  High
Court in an appeal filed against the order of acquittal   This  Court  in  a
series of decisions has repeatedly laid down that  as  the  first  appellate
court the High Court, even while dealing with an appeal  against  acquittal,
was also entitled, and obliged as well, to scan through and if need  be  re-
appreciate the entire evidence, though while choosing to interfere only  the
court should find an absolute assurance of the guilt on  the  basis  of  the
evidence on record and not merely because the  High  Court  could  take  one
more possible or a different view only.  Except the above, where the  matter
of the extent and depth of consideration of  the  appeal  is  concerned,  no
distinctions or differences in approach are envisaged  in  dealing  with  an
appeal as such merely because  one  was  against  conviction  or  the  other
against an acquittal. [Vide State of Rajasthan vs.  Sohan  Lal  and  Others,
(2004) 5 SCC 573]
5)    In State of Madhya Pradesh vs. Ramesh and Another, (2011) 4  SCC  786,
this Court, while considering the scope and interference in  appeal  against
acquittal held:

      “15. We are fully alive of the fact that we are dealing with an appeal
      against acquittal and  in  the  absence  of  perversity  in  the  said
      judgment  and  order,  interference  by  this  Court  exercising   its
      extraordinary  jurisdiction,  is  not   warranted.   It   is   settled
      proposition of law that the appellate court being the final  court  of
      fact is fully competent to reappreciate,  reconsider  and  review  the
      evidence and take  its  own  decision.  Law  does  not  prescribe  any
      limitation, restriction or condition on exercise of such power and the
      appellate court is free to arrive at its  own  conclusion  keeping  in
      mind that acquittal provides for presumption in favour of the accused.
      The presumption of  innocence  is  available  to  the  person  and  in
      criminal jurisprudence every person is presumed to be innocent  unless
      he is proved guilty by the competent court and there can be no quarrel
      to the said  legal  proposition  that  if  two  reasonable  views  are
      possible on the basis of the evidence on record, the  appellate  court
      should not disturb the findings of acquittal.”


6)    In Minal Das and Others vs. State of Tripura, (2011) 9 SCC 479,  while
reiterating the very same position, one of us, P. Sathasivam, J. held:

      “14. There is no limitation on the part  of  the  appellate  court  to
      review the evidence upon which the order of acquittal is found and  to
      come to its own conclusion. The appellate court can  also  review  the
      conclusion arrived at by the trial court with respect  to  both  facts
      and law. While dealing with the appeal against acquittal preferred  by
      the State, it is the duty of the appellate court to marshal the entire
      evidence on record and only by giving cogent and adequate reasons  set
      aside the judgment of acquittal.  An  order  of  acquittal  is  to  be
      interfered with  only  when  there  are  “compelling  and  substantial
      reasons” for doing so. If the order is “clearly unreasonable”, it is a
      compelling reason for interference. When the trial court  has  ignored
      the evidence or misread the material evidence or has ignored  material
      documents like dying declaration/report of ballistic experts, etc. the
      appellate court is competent to reverse  the  decision  of  the  trial
      court depending on the materials placed.”


7)    In Rohtash vs. State of Haryana, (2012) 6 SCC 589, this Court held:
      “27. The High Court interfered with the order of acquittal recorded by
      the trial court. The law of interfering with the judgment of acquittal
      is well settled. It is to the effect that only  in  exceptional  cases
      where there are compelling circumstances and the judgment in appeal is
      found to be perverse, the appellate court can interfere with the order
      of the  acquittal.  The  appellate  court  should  bear  in  mind  the
      presumption of innocence of the accused and  further  that  the  trial
      court’s acquittal bolsters the presumption of innocence.  Interference
      in a routine manner  where  the  other  view  is  possible  should  be
      avoided, unless there are good reasons for interference.  (Vide  State
      of Rajasthan v. Talevar, (2011) 11 SCC 666 and Govindaraju  v.  State,
      (2012) 4 SCC 722)”


8)    In a recent decision in Murugesan & Ors. vs. State  Through  Inspector
of Police, 2012 (10) SCC  383,  one  of  us  Ranjan  Gogoi,  J.  elaborately
considered the broad principles of law  governing  the  power  of  the  High
Court under Section 378 of the Code of Criminal Procedure while hearing  the
appeal against an order of acquittal  passed  by  the  trial  Judge.   After
adverting to the principles of  law  laid  down  in  Sheo  Swarup  vs.  King
Emperor, AIR 1934 PC 227 (2) and  series  of  subsequent  pronouncements  in
para 21 summarized various principles as found in para 42  of  Chandrappa  &
Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under:

      “21. A concise statement of the law on  the  issue  that  had  emerged
      after over half a century of evolution since Sheo  Swarup1  is  to  be
      found in para 42 of the Report in Chandrappa v.  State  of  Karnataka.
      The same may, therefore, be usefully noticed below: (SCC p. 432)

      “42. From the above decisions, in our considered view,  the  following
      general principles regarding  powers  of  the  appellate  court  while
      dealing with an appeal against an order of acquittal emerge:

        (1) An appellate court has full power to review,  reappreciate  and
        reconsider the evidence  upon  which  the  order  of  acquittal  is
        founded.

        (2) The Code  of  Criminal  Procedure,  1973  puts  no  limitation,
        restriction or condition on exercise of such power and an appellate
        court on the evidence before it may reach its own conclusion,  both
        on questions of fact and of law.

        (3) Various  expressions,  such  as,  ‘substantial  and  compelling
        reasons’,   ‘good   and   sufficient   grounds’,    ‘very    strong
        circumstances’, ‘distorted conclusions’, ‘glaring  mistakes’,  etc.
        are not intended to curtail extensive powers of an appellate  court
        in an appeal against acquittal. Such phraseologies are more in  the
        nature of ‘flourishes of language’ to emphasise the  reluctance  of
        an appellate court to interfere with acquittal than to curtail  the
        power of the court to review the evidence and to come  to  its  own
        conclusion.

        (4) An appellate court, however, must bear in mind that in case  of
        acquittal, there is double presumption in favour  of  the  accused.
        Firstly, the presumption of innocence is available to him under the
        fundamental principle of criminal jurisprudence that  every  person
        shall be presumed to be innocent unless he is proved  guilty  by  a
        competent court of law. Secondly, the accused  having  secured  his
        acquittal, the presumption of his innocence is further  reinforced,
        reaffirmed and strengthened by the trial court.

        [pic](5) If two reasonable conclusions are possible on the basis of
        the evidence on record, the appellate court should not disturb  the
        finding   of   acquittal   recorded   by    the    trial    court.”

             (emphasis supplied)



9)    With the above principles, let us analyze the reasoning  and  ultimate
conclusion of the High Court in interfering with the order of acquittal  and
awarding imprisonment for life.
10)    Among  the  materials  placed  and  relied  on  by  the  prosecution,
complaint Exh.P-1, evidence of PWs 1, 2, 4 and 5 are relevant.
Complaint (Exh.P-1):
11)   The complaint Exh. P-1 dated 12.05.1992 was made  by  Ramaiah  (PW-1).
In the complaint, it was stated that as his daughter-Parvathi was  pregnant,
she was brought to his house for delivery and a female  child  was  born  to
her 25 days back.  After delivery, her daughter stayed  in  his  house  with
her child and his son-in-law  Ramaiah  stayed  with  his  parents.   It  was
further stated that on 12.05.1992, in the early morning, about 05.30  hours,
when he was returning alongwith Sudalaimuthu  and  Shanmugam  after  pouring
water to the plantation, at that time, they heard the shouting of  his  son-
in-law “Don’t kill me”.  On hearing the same, they rushed towards  the  spot
and noticed that Subbiah (A-2) was having a big aruval (bill  hook)  in  his
hand and Mookkiah (A-1) was holding a small aruval  and  were  attacking  on
the face and back of Ramaiah-the deceased.  When all the  three  went  there
shouting “Don’t cut, Don’t cut”, at that time, Subbiah  (A-2)  and  Mookkiah
(A-1) ran towards eastern direction.  They noticed  cut  injuries  on  neck,
shoulder back and head of his son-in-law and blood was oozing from  the  cut
wounds.  They also noticed that he  was  dead.  Thereafter,  all  the  three
persons informed Alagamuthu, father  of  Ramaiah  and  the  Village  Headman
about the same and later they  along  with  others  saw  the  dead  body  of
Ramaiah.  It was further stated that approx. one week before, Subbiah  (A-2)
met him and warned that his son-in-law Ramaiah called his  (Subbiah’s)  wife
Mukkammal for sex and he threatened that he won’t spare him and as  per  the
say, Subbiah and Mookkiah murdered his son-in-law Ramaiah.   Thereafter,  he
along with Sudalaimuthu, Shanmugam, Kanaka Raj came to Kallidaikurichi  P.S.
at about 08.00 hours and informed the same which was recorded on  12.05.1992
at 08.06 hours and registered as Crime No. 173/1992 under Section  302  IPC.
A perusal of  Exh.  P-1  complaint  discloses  the  full  narration  of  the
incident by PW-1 and the persons accompanied him and  motive  for  murdering
the deceased.
Evidence of PW-1:
12)   Ramaiah (PW-1), who  is  none  else  than  the  father-in-law  of  the
deceased, even in his evidence has narrated before the  court  what  he  had
stated in the complaint (Exh. P-1).  He also identified M.O.  I  and  M.O.II
Aruvals (billhooks).  He further stated that with M.O. I small  aruval,  the
accused Mookkiah was attacking and M.O. II-big aruval was  used  by  accused
Subbiah.  He also noticed a pair of chappals  (M.O.  III),  underwear  (M.O.
IV) near the corpse of his son-in-law.  He also stated that it  was  he  who
preferred complaint to the police.  The same  was  recorded  by  the  Police
Officer and attested by Kanaka Raj, Sudalaimuthu  and  Shanmugam.   He  also
explained the statement  made  by  Subbiah  (A-2)  one  week  prior  to  the
incident warning him that his son-in-law called his  wife  for  sex  and  he
won’t spare him for this.  Even in lengthy cross-examination,  he  withstood
his stand and reiterated that he along  with  two  others  saw  the  accused
murdering his son-in-law.  There is no reason  to  disbelieve  his  version.
Though  the  trial  Court  has  rejected  his  evidence   because   of   his
relationship, we are of the view that merely because a witness  is  related,
his evidence cannot be eschewed.  On the other hand, it is the duty  of  the
Court to analyze his evidence cautiously and scrutinize the same with  other
corroborative evidence.  The High Court has rightly relied on  his  evidence
and we fully agree with the course adopted by  the  High  Court  in  relying
upon his evidence.
Evidence of PW-4:
13)   Though Shanmugam (PW-4) turned hostile  at  one  stage,  there  is  no
reason to reject his  entire  evidence  as  unacceptable.   It  was  he  who
accompanied PW-1 at the early  hours  and  noticed  that  the  accused  were
attacking the deceased by use of bill hooks.  Similar to PW-1 and PW-5,  PW-
4 reiterated that he accompanied them after pouring water  to  their  banana
fields. Even  though  he  did  not  support  the  prosecution  case  in  its
entirety, his version strengthen the evidence of PW-1 and PW-5.


Evidence of PW-5:
14)    Sudalaimuthu  (PW-5)  is  a  resident  of  Ulappadi  Parai.   In  his
evidence, he has stated that 6 years back,  on  Chithirai  month  night,  at
about 8.00 p.m., when he was proceeding to banana thope to  pass  water,  he
noticed Ramaiah (PW-1) and Shanmugam (PW-4) were also passing water.   After
completing the work  at  the  early  morning,  roughly  05.30  hours,  while
returning back along with PW-1 and PW-4, he heard a noise from the  Southern
side Ridge, namely, “Don’t cut, Don’t cut”.  On hearing the sound,  all  the
three rushed to that place and noticed that Subbiah (A-2) and  Mookkiah  (A-
1) were cutting the deceased Ramaiah.  He  further  stated  that  on  seeing
them the accused ran away from the spot and they  found  that   Ramaiah  was
done to death.  They reported the incident to Nattammai  Kanak  Raj  in  the
village and, thereafter, went to the P.S. around 08.00 o’clock  and  Ramaiah
(PW-1) gave a statement to the police.  In the said statement, viz., Exh. P-
1, he also signed as a witness.  He identified his signature in Ex.P-1.   He
was also present when the police  inspected  the  scene  of  occurrence  and
during the course of inquest.  In the cross-examination, he reiterated  what
he had stated in the Chief-Examination.
15)   A perusal of the evidence of PW-5 clearly shows that  it  corroborates
with the statement made by PW-1 in all aspects.  It also shows that  PWs  1,
4 and 5 went to their banana fields to pour water during the said night  and
while returning back after finishing the work  at  around  5.30  a.m.,  they
noticed the accused causing  fatal  injuries  on  the  deceased  by  use  of
aruvals (billhooks).  It also shows that all of them went to  the  P.S.  and
PW-1 made a complaint and other two attested the contents of  Exh.P-1.   The
High Court has rightly relied on the evidence of PWs 1 and 5  and  on  going
through their entire statement, we fully agree with the  course  adopted  by
the High Court.
Evidence of PW-2:
16)   Dr. Tmt. Bhanumathi, (PW-2) who conducted  post  mortem  on  the  dead
body of the deceased Ramaiah was examined as PW-2.  The post  mortem  report
has been marked  as  Exh.  P-3.   In  Exh.P-3,  the  doctor  has  noted  the
following injuries:
      “Injuries:
      (1) An incised wound extending from lower part of right  cheek,  above
      mandible, directed downwards to the middle of back of neck;  obliquely
      placed and of  sixe  14X6X6  cms.  Blood  vessels,  muscles,  C3,  C4,
      vertebra cut, head partially hanging and blood clots present.
      (2) An incised wound on centre of forehead close to midline  extending
      to  middle  of  scalp  vertical  in  direction  directed  upwards  and
      backwards size 14X4X6 cms. Underlying bone cut and brain matter coming
      out through the wound.
      (3) An incised wound extending from middle of right side  of  back  to
      right side of shoulder of  size  20X6X6  cms.  Oblique  in  direction,
      overlapping cut injuries on inferur border of  wound,  muscles,  blood
      vessels  cut,  blood  clots  present.   Right  scapula   injured   and
      dislocated.
      (4) An incised wound on right side of lower part of back below  injury
      no.3, oblique in direction 12X4X2 cms. Blood vessels, muscles cut  and
      blood clots present.
      (5) An incised wound horizontal in  direction  18X6X8  cms.  Extending
      from left lower part of back of left waist fort side.
      (6) An incised wound above injury no.5 oblique in  direction  on  left
      side of lower part of back to right side crossing  spine  12X6X4  cms.
      Blood vessels, muscles cut in the same direction.
      (7) An incised wound on upper third of upper  arm  right,  on  lateral
      side extending to back of 12 X 4 shoulder, oblique in direction, blood
      vessels, muscles cut.
      (8) An incised would on  right  upper  arm,  upper  third  on  medical
      aspect, skin depth 5 X 2 cms. obliquely placed.”

17)   As rightly  pointed  out  by  the  State  counsel,  the  cut  injuries
observed by the doctor tally with the narration given by PW-1 in Exh.P-1  as
well as in his evidence and the evidence of PW-5.  The  doctor  also  opined
that the death of the deceased might have occurred 28-30 hours prior to  the
post mortem.  It is not in  dispute  that  the  doctor  commenced  the  post
mortem on 13.05.1992 at 10.30 hours and as per  the  prosecution  case,  the
death of the deceased occurred at 05.30 a.m. on 12.05.1992.   A  perusal  of
these details clearly show that the opinion  given  by  the  doctor  tallies
with the prosecution version that the death might have occurred 28-30  hours
prior to the post mortem. The trial Court, taking note of  the  evidence  of
PW-2 that there were around 300 grams semi digested  food  particles  (rice) in the stomach of the  deceased,  disbelieved  the  time  of  occurrence  as projected by the prosecution.  It is true that PW-2, while  deposing  before
the Court, answered in the  cross-examination  that  the  death  might  have
occurred 34 hours prior to her performing the post  mortem  and  the  partly
undigested rice would show  that  rice  might  have  been  consumed  by  the
deceased 2-3 hours before his death.   However,  the  Investigation  Officer
(PW-11), during the cross-examination, highlighted that  during  the  course
of his investigation, he ascertained from the father of  the  deceased  that
the deceased consumed food at 11.00 p.m. during the said intervening  night.
 As rightly observed by the High court, since the parties are  hailing  from
a remote village, the villagers might take food  even  at  odd  hours  after
finishing certain work in their fields and it cannot  be  precisely  predict
based on the undigested food particles alone.  The High Court  has  adverted
to Modi’s Medical Jurisprudence  and  Toxicology,  22nd  Edition  and  after
noting all the relevant details has rightly concluded that  the  observation
of the doctor relating to the injuries and her general opinion at  the  time
of death which occurred  28-30  hours  tally  with  the  narration  of  eye-
witnesses and concluded that in such a case mere  inference  of  the  doctor
with reference to undigested food particles could not threw the  prosecution
case.  We fully agree with the discussion and  the  ultimate  conclusion  on
this aspect by the High Court.  The evidence of PWs 1  and  5  coupled  with
the version in Exh.P-1 would state that the occurrence took  place  at  5.30
a.m. while the deceased was passing stool, as such,  the  timings  mentioned
by the doctor, occurrence and other  witnesses  tally  with  the  narration.
Accordingly, we  reject  the  contention  raised  by  the  counsel  for  the
appellants with reference to existence of undigested particles  n  the  post
mortem by PW-2.


Other objections:
18)   Though an argument was advanced that there was  delay  in  filing  the
FIR in the Court of the Magistrate, a perusal of the details placed  by  the
prosecution show that the occurrence took place at 05.30 a.m. on  12.05.1992
and the FIR was registered on the same day at 08.00 hrs. and the  Magistrate
received the FIR on the same day at 02.00 p.m.  As rightly observed  by  the
High Court, it cannot  be  presumed  that  there  was  inordinate  delay  in
reaching the FIR to the Magistrate Court.  Further, it has come in  evidence
that Kallidaikurichi P.S. is situated at a distance which could  be  covered
by cycle in 45 minutes and Abdul Rahman (PW-9),  Police  Constable  Grade-I,
who was  attached  with  Kallidaikurichi  P.S.  at  the  relevant  time  has
explained in his evidence that he took the complaint (Exh.P-1) and  the  FIR
to the Magistrate Court and reached at around 10.00 or  10.15  a.m.  but  by
that time Magistrate Court’s sitting was commenced.  PW-9 further  explained
that when he approached the Head Clerk, he informed PW-9 to hand it over  to
the Magistrate after the sitting hour was over  as  it  happened  to  be  an
express FIR.  There is no reason to disbelieve the  version  of  the  Police
Constable (PW-9) and we hold that absolutely, there is no delay  at  all  in
either registering the FIR or dispatching the same to the Magistrate  Court.

19) We have already noticed the motive as spoken to  by  PW-1  both  in  his
evidence as well as in Exh.P-1.  It was pointed out  that  no  blood  stains
were noticed in the M.Os I, II and III, namely,  aruvals  (bill  hooks)  and
dress in the FSL report.  It was explained that  since  these  objects  were
lying on the earth and by  efflux  of  time,  no  blood  was  found  by  the
laboratory because of which the same cannot be doubted when  the  same  were
duly recovered in the presence of witnesses.
20)   In the light of the above discussion, we are satisfied that the  trial
Court failed to take note of relevant aspects and committed  a  grave  error
in rejecting the reliable materials placed by  the  prosecution.   The  High
Court as appellate court, analyzed the evidence as provided in  Section  378
of the Code and rightly reversed the order of acquittal and found A-1 and A-
2 guilty of  offence  under  Section  302  read  with  Section  34  IPC  for
murdering Ramaiah  in  pursuance  of  their  common  intention  and  awarded
sentence of life imprisonment.  We fully agree with the said conclusion.
21)   Consequently, the appeal fails and the same is dismissed.




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


                                       (P. SATHASIVAM)
















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


                                      (RANJAN GOGOI)
NEW DELHI;
JANUARY 04, 2013.
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