whether the will of one Smt. Nagammanni was validly executed, and whether the same was duly proved by the respondent no.1 and another (original plaintiffs). - whether a learned Judge of the High Court of Karnataka was right in interfering in Second Appeal, into the concurrent findings of the Trial Court and the Lower Appellate Court in exercise of High Court’s powers under Section 100 of Code of Civil Procedure.- A Will, has to be executed in the manner required by S 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances”, as observed by this Court in paragraph 11 of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available. - we do hold that the plaintiffs/respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue no.2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him. Accordingly, we dismiss the present civil appeal. The Suit No.32 of 1975 filed by the respondents in the Court of Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the defendants from interfering with their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the concerned property, with future mesne profits. In the facts of the present case, however, we do not order any costs. ………..

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1071 OF 2006
M.B. Ramesh (D) By LRS. …Appellants
Versus
K.M. Veeraje Urs (D) By LRS. & Ors. …Respondents
J U D G E M E N T
H.L. Gokhale J.
This Civil Appeal raises the question as to
 whether
the will of one Smt. Nagammanni was validly executed, and
whether the same was duly proved by the respondent no.1
and another (original plaintiffs). 
There is one more connected
issue raised in this appeal as to
whether a learned Judge of
the High Court of Karnataka was right in interfering in Second
Appeal, into the concurrent findings of the Trial Court and the
Page 2
Lower Appellate Court in exercise of High Court’s powers
under Section 100 of Code of Civil Procedure.
Facts leading to this Civil Appeal are as follows:-
2. The respondent no.1 and another, the original
plaintiffs are the sons of a cousin of one Smt. Nagammanni
who died on 21.11.1970. It is claimed by them that she left
behind a will executed way back on 24.10.1943, and
registered with the Sub-Registrar at Mysore, on 25.10.1943.
The original plaintiffs claimed that through the said will she
has bequeathed her property in their favour. The property
referred in the will is her ancestral property. The property of
late Smt. Nagammanni consisted of 11 parcels of dry land
situated in village Mallinathpuram, and 2 parcels of wet land
situated in village Kaggalli, both in taluk Mallavalli in district
Mandya, State of Karnatka. Out of these 11 parcels of dry
land those at Sl. Nos.2, 5 and 10 (from the list referred in the
plaint) were not covered in the will.
3. It was the case of the original plaintiffs that they
were in possession of these parcels of land, and their
possession was sought to be disturbed by the appellant herein
2Page 3
(original defendant no.1 and others). Smt. Nagammanni is
the widow of one C. Basavaraje Urs, whereas the appellant is
the son of this C. Basavaraje Urs from his second wife. After
the death of Smt. Nagammanni, the plaintiffs, as well as the
defendants, applied for entering their names in the revenue
records as the owners of the concerned lands. The Mutation
Registrar however passed an order on 29.3.1971, in favour of
the defendants. The plaintiffs preferred an appeal against the
same to the Assistant Commissioner Mandya. However, when
they found that taking advantage of the said order the
defendant No 1 was trying to disturb their possession over the
suit properties, they were required to file a suit, on the basis
of the will, which they filed in the Court of Principal Civil Judge
at Mandya, and which was numbered as Suit No.32 of 1975.
They prayed for a declaration of their title to the suit property,
and for a permanent injunction restraining the defendants
from interfering with their possession thereof. Alternatively,
they prayed that in case it is held that they were not in
possession, a decree be granted for recovery of possession of
the property with future mesne profits.
3Page 4
4. The suit was contested by the defendants, the
appellant herein, by contending that Smt. Nagammanni was
not the owner of the suit property, and in any case the will
relied upon by the respondents was not a valid one. It was
additionally submitted that the relations of Smt. Nagammanni
and the appellant were cordial, and the claimed will must
have been revoked, which revocation was being suppressed
by the respondents.
5. The learned trial judge raised in all ten issues. The
first out of these issues was whether the plaintiffs proved that
the suit property rightly belonged to Smt. Nagammanni, and
the learned Judge answered it in the affirmative. This finding
has not been disturbed by the fist appellate court, nor
seriously contested in the present Civil Appeal also. It is the
second issue framed by the trial judge which is the crucial
one, namely, whether the plaintiffs prove that Smt.
Nagammanni executed a registered will dated 24.10.1943 in
favour of the plaintiffs, and bequeathed the suit properties to
them.
4Page 5
6. The plaintiff no.1 (PW-1) examined himself in
support of his case. He examined three more witnesses in
support, out of whom the second witness P. Basavaraje Urs
(PW-2) is the most relevant one. The defendants examined
three witnesses though nothing much turns on their evidence.
Documentary evidence was also produced by both the
parties, which has been considered by the courts below. The
respondent no.1/plaintiff identified the signatures made by
Smt. Nagammanni at two different places on the will (exhibit
P-3). Those signatures were marked as P-3 (a) and P-3(d).
While cross-examining him, the appellant produced two inland
letters written by Smt. Nagammanni to claim that their
relations had become cordial, but it must also be noted that
therein she had claimed her maintenance amount from the
appellant.
The respondent no.1 identified the signatures of
Smt. Nagammanni on those two letters, and they were
marked as Exhibits D4 and D5. 
Theses signatures were clearly
comparable with her signatures on the will. 
This was
accepted by the learned trial judge by observing that “on a
comparison of the signatures I find there is some force in this
5Page 6
contention. The signatures tally”. This finding of the trial
judge is neither disturbed by the first appellate court nor by
the High Court.
7. The next witness on behalf of the respondent
no.1/plaintiff was one P. Basavaraje Urs (PW-2). He was
working as a Patel (Village Officer) at village Mallinathpuram,
in district Mandya, at the relevant time. He is an
attesting witness to the will. He produced land revenue
receipts containing his signatures, which were marked as
Exhibits P7 to P14 and P19. He proved his own signature on
the will by comparing it with his signatures on these Exhibits
P7 to P14 and P19. He stated in his cross-examination that,
apart from him, two other persons were attesting witnesses,
namely, M. Mallaraje Urs and Sampat Iyanger. However, by
the time his evidence was being recorded in November 1978,
both of them had passed away. He stated that he could
identify the hand writing and signature of M. Mallaraje Urs.
The signature of M. Mallaraje Urs on the will was marked as
Exhibit P3 (h). He also identified the signatures of Smt.
Nagammanni on the will i.e. P3 (a) and P3 (d). He stated that
6Page 7
she signed the will in his presence and he also signed the
same in her presence. This part of the evidence of PW1 and
PW-2 has remained undisturbed. Thus, it can be safely said
that Smt. Nagammanni has executed the will (Exhibit P3)
which also bears the signatures of PW-2 P. Basavaraje Urs,
and one M. Mallaraje Urs. 
8. The appellants tried to dispute the validity of the
will by drawing attention of the Court to various
circumstances. They disputed the presence of P. Basavaraje
Urs at the time of signing of the will by asking him questions
as to when did he come down to Mysore on that day from
Mallinathpuram, and what did he do on that date. The
learned trial judge, as well as the judge of the first appellate
court, has been impressed by some of the discrepancies in
this behalf appearing in his statement, and which were
highlighted by the appellant. The fact, however, remains that
PW-2 was giving his deposition some 35 years subsequent to
the execution of the will, and therefore not much credence
can be given to such discrepancies in his evidence. It was
also submitted on behalf of the appellant that it was not clear
7Page 8
as to how and when the will was discovered by the
respondents/plaintiffs herein. Further, much emphasis was
laid on the fact that when the will was made by Smt.
Nagammanni, she was just about 40 years of age, and still
described herself in the will as old and infirm. It was also
contended that it was surprising that though the will was
made some 35 years ago, the respondents/plaintiffs did not
know anything about it until the death of Smt. Nagammanni.
As far as the writing of the will is concerned, certain doubts
were raised by pointing out that the writing was not so very
continuous, and the signatures thereon appeared to have
been adjusted. The evidence of PW-2 was also sought to be
assailed by contending that he was an interested witness. It
was pointed out, for that purpose, that in an earlier suit,
arising out of a mortgage of a property of Smt. Nagammanni,
he had feigned ignorance about the place where the will was
written or the persons who were present at that time.
9. As far as this objection is concerned, it must be
stated and cannot be denied that in the earlier suit, PW2 had
very much deposed that he was an attesting witness to the
8Page 9
will. Similarly, about Smt. Nagammani describing herself as an
old person, it must be noted that what she had stated was
that she was getting old. Such a statement by a person will
always depend upon the perception of the person concerned
about the condition of his or her health. It appears that, in
view of her strained relations with her husband, she wanted
her property to be protected, and wanted to make a provision
that it should devolve on her relatives. It is another matter
that she lived long, thereafter. Similarly, there is no substance
in the plea of the defendant No 1 that his relations with Smt.
Nagammani had become cordial and she must have revoked
the will. If that was so, he would have surely produced such a
document of revocation. Similarly, no issue can be made out
of the production and reliance on the will, some 35 years
subsequent to its execution. There is no dispute about Smt.
Nagammani’s signature on the will, and her wishes are clear.
It is only when the properties bequeathed under the will had
to be protected, that the will was required to be produced and
relied upon. A will is required to be acted upon, only after the
testator passes away, and in the instant case immediately
9Page 10
when the occasion arose, the will was produced and relied
upon. In the circumstances, we do not find much force in any
of these objections.
10. As against these discrepancies in the evidence of
PW-2, it was emphasized on behalf of the respondent
no.1/plaintiff that C. Basavaraje Urs, the husband of Smt.
Nagammanni had earlier filed a suit against her, claiming
these very properties as his own properties and that suit
came to be dismissed, which finding was confirmed in appeal.
It was also pointed out that the appellant was the son of C.
Basavaraje Urs from his second wife, and was required to pay
maintenance to Smt. Nagammanni, as required by a Court
order. It was also submitted by the plaintiffs that the will was
a document which was more than 30 years old, and under
Section 90 of Evidence Act, the Court is expected to presume
that the signature in every part of the document is in the
hand writing of the person concerned, and that the document
was duly executed.
11. The trial court accepted the submissions on behalf
of the appellant herein, and held that the plaintiffs had failed
10Page 11
to prove the will since it had not come in the evidence of PW-2
that Smt. Nagammanni had executed the will in the presence
of the second witness M. Mallaraje Urs, or that this M.
Mallaraje Urs had also signed the will in her presence. Thus,
the requirement of Section 63 (c) of the Indian Succession
Act, 1925 (‘Succession Act’ for short) was not fulfilled viz. that
two or more witnesses have to see the testator sign or affix
his mark to the will, and each of the witnesses have also to
sign the will in the presence of the testator. The Court,
therefore, decided issue no.2 against the plaintiffs and
dismissed the suit. The first appellate Court also took the
same view in Regular Appeal No. 30 of 1989, and dismissed
the appeal filed by the respondents herein.
12. The respondent/plaintiff thereafter filed a second
appeal bearing R.S.A No. 546 of 1996, wherein, a learned
Single Judge of the High Court framed the question of law in
the following words:-
“Whether the concurrent findings of the
Appellate Court that the plaintiff have not proved
the will is bad in law and the finding in that regard
is perverse and contrary to the evidence on
record?”
11Page 12
The learned Single Judge decided the said question of law in
favour of the respondents-original plaintiffs by his impugned
judgment and order dated 23.1.2004, which has led to the
present appeal by special leave. When the special leave
petition came up for consideration on 11.10.2004, this court
issued notice and directed that the status-quo as then
obtaining be maintained. Leave to appeal was granted
thereafter on 6.2.2006. We may note that an attempt was
made to settle the dispute by referring it to mediation, but
that has not succeeded.
Consideration of the submissions of the rival
parties:
13. The first submission on behalf of the appellant has
been that the learned judge of the high Court has erred by
framing the question of law, in the manner in which he has. It
was submitted that when the trial court and the first appellate
court have given a concurrent finding about the invalidity of
the will, it was a finding of fact, and the High Court could not
have disturbed the finding of fact by framing a question of law
as to whether the finding was bad in law, and perverse or
12Page 13
contrary to the evidence on record. Reliance was placed, in
this behalf, on the observations of this Court in Narayanan
Rajendran Vs. Lekshmy Sarojini reported in 2009 (5) SCC
264. That apart, it was submitted that in any case, the
findings of the Courts below could not in any way be
categorized as perverse, since they were not contrary to the
evidence on record.
14. We may, however, note in this behalf that as held
by a Constitution bench of this Court in Chunilal Mehta Vs.
Century Spinning and Manufacturing Company reported
in AIR 1962 SC 1314, it is well settled that the construction
of a document of title or of a document which is the
foundation of the rights of parties, necessarily raises a
question of law. That apart, as held by a bench of three
judges in Santosh Hazari Vs. Purushottam Tiwari
reported in 2001 (3) SCC 179, whether a particular question
is a substantial question of law or not, depends on the facts
and circumstances of each case. When the execution of the
will of Smt. Nagammanni and construction thereof was the
subject matter of consideration, the framing of the question of
13Page 14
law cannot be faulted. Recently, in Union of India Vs.
Ibrahim Uddin reported in 2012 (8) SCC 148, this Court
referred to various previous judgments in this behalf and
clarified the legal position in the following words:-
“67. There is no prohibition to entertain a
second appeal even on question of fact, provided
the Court is satisfied that the findings of the courts
below were vitiated by non-consideration of
relevant evidence or by showing erroneous
approach to the matter and findings recorded in
the court below are perverse.”
15. At the same time we cannot accept the submission
on behalf of the respondents as well that merely because the
will was more than 30 years old, a presumption under Section
90 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short)
ought to be drawn that the document has been duly executed
and attested by the persons by whom it purports to have
been executed and attested. As held by this Court in
Bharpur Singh Vs. Shamsher Singh reported in 2009 (3)
SCC 687, a presumption regarding documents 30 years old
does not apply to a will. A will has to be proved in terms of
Section 63 (c) of the Succession Act read with Section 68 of
the Evidence Act. 
14Page 15
16. That takes us to the crucial issue involved in the
present case, viz. with respect to the validity and proving of
the concerned will.
A Will, has to be executed in the manner
required by S 63 of the Succession Act.
 Section 68 of the
Evidence Act requires the will to be proved by examining at
least one attesting witness. 
Section 71 of the Evidence Act is
another connected section “which is permissive and an
enabling section permitting a party to lead other evidence in
certain circumstances”, as observed by this Court in
paragraph 11 of Janki Narayan Bhoir Vs. Narayan
Namdeo Kadam reported in 2003 (2) SCC 91 and in a way
reduces the rigour of the mandatory provision of Section 68.
As held in that judgment Section 71 is meant to lend
assistance and come to the rescue of a party who had done
his best, but would otherwise be let down if other means of
proving due execution by other evidence are not permitted.
At the same time, as held in that very judgment the section
cannot be read to absolve a party of his obligation under
Section 68 of the Evidence Act read with Section 63 of the
Succession Act to present in evidence a witness, though alive
15Page 16
and available. 
The relevant provisions of these three
sections read as follows:
”Section 63 of the Succession Act
"63. Execution of unprivileged wills.- Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at
sea, shall execute his will according to the
following rules:-
(a) .....
(b) .....
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator
sign or affix his mark to the will or has seen some
other person sign the will, in the presence and by
the direction of the testator, or has received from
the testator a personal acknowledgement of his
signature or mark, or of the signature of such
other person; and each of the witnesses shall sign
the will in the presence of the testator, but it shall
not be necessary that more than one witness be
present at the same time, and no particular form
of attestation shall be necessary."
Section 68 of the Evidence Act
"68. Proof of execution of document required
by law to be attested.- If a document is required
by law to be attested, it shall not be used as
evidence until one attesting witness at least has
been called for the purpose of proving it's
execution, if there be an attesting witness alive,
and subject to the process of the Court and
capable of giving evidence..."
Section 71 of the Evidence Act
16Page 17
"71. Proof when attesting witness denies the
execution.- If the attesting witness denies or does
not recollect the execution of the document, its
execution may be proved by other evidence."
17. In the present matter, there is no dispute that the
requirement of Section 68 of the Evidence Act is satisfied,
since one attesting witness i.e. PW-2 was called for the
purpose of proving the execution of the will, and he has
deposed to that effect. The question, however, arises as to
whether the will itself could be said to have been executed in
the manner required by law, namely, as per Section 63 (c) of
the Succession Act. PW-2 has stated that he has signed the
will in the presence of Smt. Nagammanni, and she has also
signed the will in his presence. It is however contended that
his evidence is silent on the issue as to whether Smt.
Nagammanni executed the will in the presence of M. Mallaraje
Urs, and whether M. Mallaraje Urs also signed as attesting
witness in the presence of Smt. Nagammanni. Section 63 (c)
of the Succession Act very much lays down the requirement of
a valid and enforceable will that it shall be attested by two or
more witnesses, each of whom has seen the testator sign or
affix his mark to the will, and each of the witnesses has
17Page 18
signed the will in the presence of the testator. As held by a
bench of three judges of this Court (per Gajendragadkar J, as
he then was) way back in
R. Venkatachala Iyengar Vs. B N. Thimmajamma
reported in AIR 1959 SC 443, that a will has to be proved
like any other document except that evidence tendered in
proof of a will should additionally satisfy the requirement of
Section 63 of the Succession Act, apart from the one under
Section 68 of the Evidence Act.
18. The propositions laid down in Venkatachala
Iyengar (supra) have been followed and explained in
another judgment of a bench of three Judges in Smt. Jaswant
Kaur Vs. Smt Amrit Kaur, reported in AIR 1977 SC 74,
wherein the law has been crystallized by Y.V. Chandrachud J
(as he then was), into the following propositions:-
“10. There is a long line of decisions bearing
on the nature and standard of evidence required
to prove a will. Those decisions have been
reviewed in an elaborate judgment of this Court in
R. Venkatachala Iyengar v. B.N. Thirnmajamma
and Ors. [1959] Su. 1 S.C.R. 426. The Court,
speaking through Gajendragadkar J., laid down in
that case the following propositions :-
18Page 19
1. Stated generally, a will has to be proved like
any other document, the test to be applied
being the usual test of the satisfaction of the
prudent mind in such matters. As in the case of
proof of other documents, so in the case of
proof of wills, one cannot insist on proof with
mathematical certainty.
2. Since Section 63 of the Succession Act
requires a will to be attested, it cannot be used
as evidence until, as required by Section 63 of
the Evidence Act, one attesting witness at least
has been called for the purpose of proving its
execution, if there be an attesting witness alive
and subject to the process of the court and
capable of giving evidence.
3. Unlike other documents, the will speaks from
the death of the testator and therefore the
maker of the will is never available for deposing
as to the circumstances in which the will came
to be executed. This aspect introduces an
element of solemnity in the decision of the
question whether the document propounded is
proved to be the last will and testament of the
testator. Normally, the onus which lies on the
propounder can be taken to be discharged on
proof of the essential facts which go into the
making of the will.
4. Cases in which the execution of the will is
surrounded by suspicious circumstances stand
on a different footing. A shaky signature, a
feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a
leading part in the making of the will under
which he receives a substantial benefit and
such other circumstances raise suspicion about
the execution of the will. That suspicion cannot
be removed by the mere assertion of the
propounder that the will bears the signature of
the testator or that the testator was in a sound
19Page 20
and disposing state of mind and memory at the
time when the will was made, or that those like
the wife and children of the testator who would
normally receive their due share in his estate
were disinherited because the testator might
have had his own reasons for excluding them.
The presence of suspicious circumstances
makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon
the execution of the will excite the suspicion of
the court, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
5. It is in connection with wills, the execution of
which is surrounded by suspicious circumstance
that the test of satisfaction of the judicial
conscience has been evolved. That test
emphasises that in determining the question as
to whether an instrument produced before the
court is the last will of the testator, the court is
called upon to decide a solemn question and by
reason of suspicious circumstances the court
has to be satisfied fully that the will has been
validly executed by the testator.
6. If a caveator alleges fraud, undue influence,
coercion etc. in regard to the execution of the
will, such pleas have to be proved by him, but
even in the absence of such pleas, the very
circumstances surrounding the execution of the
will may raise a doubt as to whether the
testator was acting of his own free will. And
then it is a part of the initial onus of the
propounder to remove all reasonable doubts in
the matter.”
19. In Janki Narayan Bhoir (supra), this Court has
explained the inter-relation between Section 63 (c) of the
20Page 21
Succession Act, 1925 and Section 68 and 71 of the Evidence
Act, 1872. In that matter only one attesting witness to the
will was examined to prove the will, but he had not stated in
his deposition that the other attesting witness had attested
the will in his presence. The other attesting witness, though
alive and available, was not examined. The Court noted the
relevant facts in para 5 of the judgment (as reported in SCC)
as follows:-
“Prabhakar Sinkar, the attesting witness, in
his deposition stated that he did not know whether
the other attesting witness Ramkrishna Wagle was
present in the house of the respondent at the time
of execution of the will. He also stated that he did
not remember as to whether himself and Raikar
were present when he put his signature. He did
not see the witness Wagle at that time; he did not
identify the person who had put the thumb
impression on the will. The scribe Raikar in his
evidence stated that he wrote the will and he also
stated that he signed on the will deed as a scribe.
He further stated that the attesting witnesses,
namely, Wagle and Prabhakar Sinkar are alive.”
On this background, the Court held at the end of the para 6 of
the judgment that “it is true that although a will is required to
be attested by two witnesses it could be proved by examining
one of the attesting witnesses as per Section 68 of the Indian
21Page 22
Evidence Act”, but it also noted in paragraph 9 that “that one
of the requirements of due execution of a will is its attestation
by two or more witnesses, which is mandatory.” In
paragraphs 11 and 12 of the judgment, the Court noted the
relevance of Section 71 of the Evidence Act by stating that
“aid of Section 71 can be taken only when the attesting
witnesses who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence.”
“Section 71 has no application when the one attesting
witness, who alone has been summoned, has failed to prove
the execution of the will and the other attesting witness
though available has not been examined.” In the facts of the
case, therefore, the Court held that attestation of the will as
required by Section 63 of the Succession Act was not
established which was equally necessary.
20. In the present case, we may note that in para 21 of
his cross examination, P. Basavaraje Urs has in terms stated,
“Mr. Mallaraje Urs and Smt. Nagammanni, myself and one
Sampat Iyanger were present while writing the will.” One Mr.
Narayanmurti was also present. In para 22 he has stated that
22Page 23
Narayanmurti had written Exhibit 3 (will) in his own
handwriting continuously. The fact that M.Mallaraje Urs was
present at the time of execution of the will is not contested by
the defendants by putting it to PW2 that M. Mallaraje Urs was
not present when the will was executed. As held by a Division
Bench of the Calcutta High Court in a matter concerning a will,
in para 10 of A.E.G. Carapiet Vs. A.Y. Derderian reported
in [AIR 1961 Calcutta 359],….”Wherever the opponent has
declined to avail himself of the opportunity to put his
essential and material case in cross-examination, it must
follow that he believed that the testimony given could not be
disputed at all. It is a rule of essential justice”. As noted
earlier the will was executed on 24.10.1943 in the office of
the advocate Shri Subha Rao situated at Mysore, and was
registered on the very next day at Mysore. The fact that the
will is signed by Smt. Nagammanni in the presence of PW2 on
24.10.1943 has been proved, that PW2 signed in her presence
has also been proved. Can the signing of the will by Smt.
Nagammanni in the presence of M. Mallaraje Urs and his
signing in her presence as well not be inferred from the above
23Page 24
facts on record? In our view, in the facts of the present case,
the omission on the part of PW2 to specifically state that the
signature of M. Mallaraje Urs on the will (which he identified)
was placed in the presence of Smt. Nagammani, and that her
signature (which he identified) was also placed in the
presence of M. Mallaraje Urs, can be said to be a facet of not
recollecting about the same. This deficiency can be taken care
of by looking to the other evidence of attendant
circumstances placed on record, which is permissible under
Section 71 of the Evidence Act.
21. The issue of validity of the will in the present case
will have to be considered in the context of these facts. It is
true that in the case at hand, there is no specific statement by
PW2 that he had seen the other attesting witness sign the will
in the presence of the testator, but he has stated that the
other witness had also signed the document. He has proved
his signature, and on the top of it he has also stated in the
Cross examination that the other witness (Mr. Mallaraje Urs),
Smt. Nagammani, himself and one Sampat Iyanger and the
writer of the will were all present while writing the will on
24Page 25
24.10.1943 which was registered on the very next day. This
statement by implication and inference will have to be held as
proving the required attestation by the other witness. This
statement alongwith the attendant circumstances placed on
record would certainly constitute proving of the will by other
evidence as permitted by Section 71 of the Evidence Act.
22. While drawing the appropriate inference in a matter
like this, a Court cannot disregard the evidence on the
attendant circumstances brought on record. In this context,
we may profitably refer to the observations of a Division
Bench of the Assam High Court in Mahalaxmi Bank Limited
Vs. Kamkhyalal Goenka reported in [AIR 1958 Assam 56],
which was a case concerning the claim of the appellant bank
for certain amounts based on the execution of a mortgage
deed. The execution thereof was being disputed by the
respondents, amongst other pleas, by contending that the
same was by a purdahnashin lady, and the same was not
done in the presence of witnesses. Though the evidence of
the plaintiff was not so categorical, looking to the totality of
the evidence on record, the Court held that the execution of
25Page 26
the mortgage had been duly proved. While arriving at that
inference, the Division Bench observed:-
“11………It was, therefore, incumbent on the
plaintiff to prove its execution and attestation
according to law. It must be conceded that the
witnesses required to prove attestation has (sic)
not categorically stated that he and the other
attesting witnesses put their signatures (after
having seen the execution of the document) in the
presence of the executants. Nevertheless, the
fact that they actually did so can be easily
gathered from the circumstances disclosed in the
evidence. It appears that the execution and
registration of the document all took place at
about the same time in the house of the
defendants. The witnesses not only saw the
executants put their signatures on the document,
but that they also saw the document being
explained to the lady by the husband as also by
the registering officer.
They also saw the executants admit receipt
of the consideration, which was paid in their
presence. As all this happened at the same time,
it can be legitimately inferred that the witnesses
also put their signatures in the presence of the
executants after having seen them signing the
instrument………
………There is no suggestion here that the
execution and attestation was not done at the
same sitting. In fact, the definite evidence here is
that the execution and registration took place at
the same time. It is, therefore, almost certain that
the witnesses must have signed the document in
the presence of the executants…….”
26Page 27
23. The approach to be adopted in matters concerning
wills has been elucidated in a decision on a first appeal by a
Division Bench of Bombay High Court in Vishnu
Ramkrishana Vs. Nathu Vithal reported in [AIR 1949
Bombay 266]. In that matter, the respondent Nathu was the
beneficiary of the will. The appellant filed a suit claiming
possession of the property which was bequeathed in favour of
Nathu, by the testatrix Gangabai. The suit was defended on
the basis of the will, and it came to be dismissed, as the will
was held to be duly proved. In appeal it was submitted that
the dismissal of the suit was erroneous, because the will was
not proved to have been executed in the manner in which it is
required to be, under Section 63 of Indian Succession Act.
The High Court was of the view that if at all there was any
deficiency, it was because of not examining more than one
witness, though it was not convinced that the testatrix
Gangabai had not executed the will. The Court remanded the
matter for additional evidence under its powers under Order
41 Rule 27 CPC. The observations of Chagla C.J., sitting in the
Division Bench with Gajendragadkar J. (as he then was in
27Page 28
Bombay High Court) in paragraph 15 of the judgment are
relevant for our purpose:-
“15……… We are dealing with the case of a
will and we must approach the problem as a Court
of Conscience. It is for us to be satisfied
whether
the document put forward is the last will and
testament of Gangabai. If we find that the
wishes of the testatrix are likely to be
defeated or thwarted merely by reason of
want of some technicality, we as a Court of
Conscience would not permit such a thing to
happen. We have not heard Mr. Dharap on the
other point; but assuming that Gangabai had a
sound and disposing mind and that she wanted to
dispose of her property as she in fact has done,
the mere fact that the propounders of the will
were negligent – and grossly negligent in not
complying with the requirements of S.63 and
proving the will as they ought to have should not
deter us from calling for the necessary evidence in
order to satisfy ourselves whether the will was
duly executed or not………..”
(emphasis
supplied)
24. As stated by this Court also in R. Venkatachala
Iyengar and Smt. Jaswant Kaur (both supra), while
arriving at the finding as to
whether the will was duly
executed, the Court must satisfy its conscience having regard
to the totality of circumstances. The Court’s role in matters
concerning the wills is limited to examining whether the
28Page 29
instrument propounded as the last will of the deceased is or is
not that by the testator, and whether it is the product of the
free and sound disposing mind [as observed by this Court in
paragraph 77 of Gurdev Kaur Vs. Kaki reported in 2006 (1)
SCC 546].
In the present matter, there is no dispute about
these factors.
The issue raised in the present matter was with
respect to the due execution of the will, and what we find is
that the same was decided by the trial Court, as well as by the
first appellate Court on the basis of an erroneous
interpretation of the evidence on record regarding the
circumstances attendant to the execution of the will.
 The
property mentioned in the will is admittedly ancestral
property of Smt. Nagammanni. She had to face a litigation,
initiated by her husband, to retain her title and possession
over this property. 
Besides, she could get the amounts for
her maintenance from her husband only after a court battle,
and thereafter also she had to enter into a correspondence
with the appellant to get those amounts from time to time.
The appellant is her stepson whereas the respondents are
sons of her cousin. She would definitely desire that her
29Page 30
ancestral property protected by her in a litigation with her
husband does not go to a stepson, but would rather go to the
relatives on her side.
We cannot ignore this context while
examining the validity of the will.
25. In view of the above factual and legal position,
 we
do hold that 
the plaintiffs/respondents had proved that Smt.
Nagammanni had duly executed a will on 24.10.1943 in
favour of the plaintiffs, and bequeathed the suit properties to
them. 
She got the will registered on the very next day. 
The
finding of the Trial Court as well as the First Appellate Court
on issue no.2 was clearly erroneous. 
The learned Judge of the
High Court was right in holding that the findings of the Trial
and Appellate Court, though concurrent, were bad in law and
perverse and contrary to the evidence on record. 
The second
appeal was, therefore, rightly allowed by him. 
Accordingly,
we dismiss the present civil appeal. 
The Suit No.32 of 1975
filed by the respondents in the Court of Principal Civil Judge at
Mandya in Karnataka will stand decreed. 
They are hereby
granted a declaration of their title to the suit property, and for
a permanent injunction restraining the defendants from
30Page 31
interfering with their possession thereof. In case their
possession has been in any way disturbed, they will be
entitled to recover the possession of the concerned property,
with future mesne profits. In the facts of the present case,
however, we do not order any costs. 
 ………..
………………………..J.
[ H.L. Gokhale ]
…………………………………..J.
[ Ranjana Prakash Desai ]
New Delhi
Dated : May 03, 2013
31

NOT AMOUNTING TO MURDER = The deceased objected to the appellant beating the dog, whereupon the appellant started abusing the former and told him to keep quiet or else he too would be beaten like a dog. The exchange of hot words, it appears, led to a scuffle between the deceased and the accused persons in the course whereof, while accused Nos.2 and 3 beat the deceased with fist and kicks, the appellant hit the deceased with the iron pipe on the head. On account of the injury inflicted upon him, the deceased fell to the ground whereupon all the three accused persons ran away from the spot. = whether in the facts and circumstances of the case the appellant has been rightly convicted for the capital offence and if not whether the act attributed to him would constitute a lesser offence like culpable homicide not amounting to murder punishable under Section 304 Part I or II of the I.P.C.= In the result, we allow this appeal but only to the extent that instead of Section 302 IPC the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of five years. The fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered. The appeal is disposed of in the above terms in modification of the order passed by the Courts below. A copy of this order be forwarded to the Registrars General of the High Courts in the country for circulation among the Judges handling criminal trials and hearing appeals.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2013
(Arising out of S.L.P. (Crl.) No.6287 of 2011)
Ankush Shivaji Gaikwad …Appellant
Versus
State of Maharashtra …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgement and order dated
24th August, 2010 passed by the High Court of Judicature at
Bombay, Aurangabad Bench, whereby Criminal Appeal
No.359 of 2008 filed by the appellant and two others has
been dismissed in so far as the appellant is concerned and
allowed qua the remaining two, thereby upholding the
1Page 2
appellant’s conviction for the offence of murder punishable
under Section 302 of the I.P.C and the sentence of
imprisonment for life with a fine of Rs.2,000/- awarded to
him. In default of payment of fine the appellant has been
sentenced to undergo a further imprisonment for a period of
three months.
3. The factual matrix in which the appellant came to be
prosecuted and convicted has been set out in detail by the
trial Court as also the High Court in the orders passed by
them. We need not, therefore, recapitulate the same all over
again except to the extent it is necessary to do so for the
disposal of this appeal. Briefly stated, the incident that
culminated in the death of deceased-Nilkanth Pawar and the
consequent prosecution of the appellant and two others
occurred at about 10.00 p.m. on 3rd February, 2006 while the
deceased and his wife P.W.1-Mangalbai were guarding their
Jaggery crop growing in their field. The prosecution story is
that the appellant-Ankush Shivaji Gaikwad accompanied by
Madhav Shivaji Gaikwad (accused No.2) and Shivaji Bhivaji
Gaikwad (accused No.3) were walking past the field of the
2Page 3
deceased when a dog owned by the deceased started
barking at them.
Angered by the barking of the animal, the
appellant is alleged to have hit the dog with the iron pipe
that he was carrying in his hand. The deceased objected to
the appellant beating the dog, whereupon the appellant
started abusing the former and told him to keep quiet or else
he too would be beaten like a dog. The exchange of hot
words, it appears, led to a scuffle between the deceased and
the accused persons in the course whereof, while accused
Nos.2 and 3 beat the deceased with fist and kicks, the
appellant hit the deceased with the iron pipe on the head. On
account of the injury inflicted upon him, the deceased fell to
the ground whereupon all the three accused persons ran
away from the spot.
The incident was witnessed by the wife
of the deceased, P.W.1- Mangalbai and by P.W.5-Ramesh
Ganpati Pawar who was also present in the field nearby at
the time of the occurrence. The deceased was carried on a
motorcycle to the hospital of one Dr. Chinchole at Omerga
from where he was shifted to Solapur for further treatment.
Two days after the occurrence when the condition of the
deceased became precarious, P.W.1-Mangalbai filed a
3Page 4
complaint at the Police Station, Omerga on 5th February,
2006 on the basis whereby Crime No.25 of 2006 under
Sections 326, 504 and 323 read with Section 34 of the I.P.C
was registered by the police. Investigation of the case was
taken up by P.W.6-Police Sub Inspector Parihar who recorded
the panchnama of the scene of the crime and arrested the
accused persons. The deceased eventually succumbed to his
injuries on 7th February, 2006 whereupon Section 302 read
with Section 34 of the I.P.C. was added to the case.
4. Post-mortem examination of the deceased revealed a
contusion behind his right ear, a contusion on the right arm
and an abrasion on the right ankle joint. Internal
examination, however, showed that the deceased had
sustained an internal injury to the temporal and occipital
region under the scalp and a fracture on the base of the
skull. Blood clots were noted in the brain tissues and the
base of the skull, besides internal bleeding. According to the
doctor, the death was caused by the injury to the head. After
completion of the investigation that included seizure of the
alleged weapon used by the appellant, the police filed a
4Page 5
chargesheet before the judicial Magistrate, who committed
the appellant and co-accused to face trial for the offence of
murder punishable under Section 302 read with Section 34 of
the I.P.C. before the Sessions Court. Before the Sessions
Court the appellant and his co-accused pleaded not guilty
and claimed a trial.
5. The prosecution examined as many as six witnesses
including P.W.1-Mangalbai, the widow of the deceased and
P.W.5-Ramesh, both of whom were presented as eye
witnesses to the occurrence. The remaining witnesses
included P.W.3-Dr. Kamble and P.W.6-Police Sub-Inspector
Parihar. Appraisal of the evidence adduced by the
prosecution led the trial Court to hold the appellant and his
co-accused guilty for the offence of murder and sentenced
them to imprisonment for life besides a fine of Rs.2,000/-
each and a default sentence of three months rigorous
imprisonment.
6. The appellant and his co-accused preferred Criminal
Appeal No.359 of 2008 before the High Court of Judicature at
Bombay, Bench at Aurangabad. The High Court has by the
5Page 6
judgment impugned in this appeal dismissed the appeal of
the appellant before us but allowed the same in so far as the
co-accused are concerned. The correctness of the said
judgment and order is under challenge before us.
7. When the matter initially came up before us for hearing
on 2nd September, 2011 we issued notice to the respondent
State confined to the question of the nature of offence only.
We have accordingly heard learned counsel for the parties on
the said question. The trial Court as also the High Court
have, as noticed earlier, found the appellant guilty of
murder. The question, however, is whether in the facts and
circumstances of the case the appellant has been rightly
convicted for the capital offence and if not whether the act
attributed to him would constitute a lesser offence like
culpable homicide not amounting to murder punishable under
Section 304 Part I or II of the I.P.C.
8. On behalf of the appellant it was contended that the
appellant’s case fell within Exception 4 to Section 300 of the
I.P.C. which reads as under:
6Page 7
“Exception 4.— Culpable homicide is not murder if it
is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue
advantage or acted in a cruel or unusual manner.”
9. It was argued that the incident in question took place
on a sudden fight without any premeditation and the act of
the appellant hitting the deceased was committed in the heat
of passion upon a sudden quarrel without the appellant
having taken undue advantage or acting in a cruel or unusual
manner. There is, in our opinion, considerable merit in that
contention. We say so for three distinct reasons. Firstly,
because even according to the prosecution version, there
was no premeditation in the commission of the crime. There
is not even a suggestion that the appellant had any enmity
or motive to commit any offence against the deceased, leave
alone a serious offence like murder. The prosecution case, as
seen earlier, is that the deceased and his wife were guarding
their Jaggery crop in their field at around 10 p.m. when their
dog started barking at the appellant and his two companions
who were walking along a mud path by the side of the field
nearby. It was the barking of the dog that provoked the
7Page 8
appellant to beat the dog with the rod that he was carrying
apparently to protect himself against being harmed by any
stray dog or animal. The deceased took objection to the
beating of the dog without in the least anticipating that the
same would escalate into a serious incident in the heat of the
moment. The exchange of hot words in the quarrel over the
barking of the dog led to a sudden fight which in turn
culminated in the deceased being hit with the rod
unfortunately on a vital part like the head. Secondly,
because the weapon used was not lethal nor was the
deceased given a second blow once he had collapsed to the
ground. The prosecution case is that no sooner the deceased
fell to the ground on account of the blow on the head, the
appellant and his companions took to their heels – a
circumstance that shows that the appellant had not acted in
an unusual or cruel manner in the prevailing situation so as
to deprive him of the benefit of Exception 4. Thirdly, because
during the exchange of hot words between the deceased and
the appellant all that was said by the appellant was that if
the deceased did not keep quiet even he would be beaten
like a dog. The use of these words also clearly shows that the
8Page 9
intention of the appellant and his companions was at best to
belabour him and not to kill him as such. The cumulative
effect of all these circumstances, in our opinion, should
entitle the appellant to the benefit of Exception 4 to Section
300 of the I.P.C.
10. Time now to refer to a few decisions of this Court where
in similar circumstances this Court has held Exception 4 to
Section 300 of the I.P.C. to be applicable and converted the
offence against the appellant in those cases from murder to
culpable homicide not amounting murder. In Surinder
Kumar v. Union Territory, Chandigarh (1989) 2 SCC
217, this Court held that if on a sudden quarrel a person in
the heat of the moment picks up a weapon which is handy
and causes injuries out of which only one proves fatal, he
would be entitled to the benefit of the Exception provided he
has not acted cruelly. This Court held that the number of
wounds caused during the occurrence in such a situation was
not the decisive factor. What was important was that the
occurrence had taken place on account of a sudden and
unpremeditated fight and the offender must have acted in a
9Page 10
fit of anger. Dealing with the provision of Exception 4 to
Section 300 this Court observed:
“….. To invoke this exception four requirements
must be satisfied, namely, (i) it was a sudden fight;
(ii) there was no premeditation; (iii) the act was
done in a heat of passion; and (iv) the assailant had
not taken any undue advantage or acted in a cruel
manner. The cause of the quarrel is not relevant nor
is it relevant who offered the provocation or started
the assault. The number of wounds caused during
the occurrence is not a decisive factor but what is
important is that the occurrence must have been
sudden and unpremeditated and the offender must
have acted in a fit of anger. Of course, the offender
must not have taken any undue advantage or acted
in a cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a weapon
which is handy and causes injuries, one of which
proves fatal, he would be entitled to the benefit of
this exception provided he has not acted cruelly.”
(emphasis
supplied)
11. We may also refer to the decision of this Court in
Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC
528, where this Court held that in a heat of passion there
must be no time for the passions to cool down and that the
parties had in that case before the Court worked themselves
into a fury on account of the verbal altercation in the
beginning. Apart from the incident being the result of a
sudden quarrel without premeditation, the law requires that
10Page 11
the offender should not have taken undue advantage or
acted in a cruel or unusual manner to be able to claim the
benefit of Exception 4 to Section 300 IPC. Whether or not the
fight was sudden, was declared by the Court to be decided in
the facts and circumstances of each case. The following
passage from the decision is apposite:
“...The help of Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a sudden
fight: (c) without the offender's having taken undue
advantage or acted in a cruel or unusual manner;
and (d) the fight must have been with the person
killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to
be noted that the 'fight' occurring in Exception 4 to
Section 300. IPC is not defined in the IPC. It takes
two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down
and in this case, the parties have worked
themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat
between two and more persons whether with or
without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether
a quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the
application of Exception 4 It is not sufficient to show
that there was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted in
cruel or unusual manner. The expression 'undue
advantage' as used in the provision means 'unfair
advantage'.”
xxx xxx xxx
...After the injuries were inflicted the injured
has fallen down, but there is no material to show
11Page 12
that thereafter any injury was inflicted when he was
in a helpless condition. The assaults were made at
random. Even the previous altercations were verbal
and not physical. It is not the case of the
prosecution that the accused appellants had come
prepared and armed for attacking the
deceased....This goes to show that in the heat of
passion upon a sudden quarrel followed by a fight
the accused persons had caused injuries on the
deceased, but had not acted in cruel or unusual
manner. That being so, Exception 4 to Section
300 IPC is clearly applicable…”
(emphasis supplied)
12. In Sukbhir Singh v. State of Haryana (2002) 3 SCC
327, the appellant caused two Bhala blows on the vital part
of the body of the deceased that was sufficient in the
ordinary course of nature to cause death. The High Court
held that the appellant had acted in a cruel and unusual
manner. Reversing the view taken by the High Court this
Court held that all fatal injuries resulting in death cannot be
termed as cruel or unusual for the purposes of Exception 4 of
Section 300 IPC. In cases where after the injured had fallen
down, the appellant did not inflict any further injury when he
was in a helpless position, it may indicate that he had not
acted in a cruel or unusual manner. The Court observed:
12Page 13
“...All fatal injuries resulting in death cannot be
termed as cruel or unusual for the purposes of not
availing the benefit of Exception 4 of Section 300
IPC. After the injuries were inflicted and the injured
had fallen down, the appellant is not shown to have
inflicted any other injury upon his person when he
was in a helpless position. It is proved that in the
heat of passion upon a sudden quarrel followed by a
fight, the accused who was armed with Bhala caused
injuries at random and thus did not act in a cruel or
unusual manner.”
(emphasis supplied)
13. Reference may also be made to the decision in Mahesh
v. State of MP (1996) 10 SCC 668, where the appellant
had assaulted the deceased in a sudden fight and after giving
him one blow he had not caused any further injury to the
deceased which fact situation was held by this Court to be
sufficient to bring the case under Exception 4 to Section 300
of the IPC. This Court held:
“...Thus, placed as the appellant and the deceased
were at the time of the occurrence, it appears to us
that the appellant assaulted the deceased in that
sudden fight and after giving him one blow took to
his heels. He did not cause any other injury to the
deceased and therefore it cannot be said that he
acted in any cruel or unusual manner. Admittedly,
he did not assault PW-2 or PW-6 who were also
present also with the deceased and who had also
requested the appellant not to allow his cattle to
graze in the field of PW-1. This fortifies our belief
that the assault on the deceased was made during a
sudden quarrel without any premeditation. In this
fact situation, we are of the opinion that Exception-4
13Page 14
to Section 300 IPC is clearly attracted to the case of
the appellant and the offence of which the appellant
can be said to be guilty would squarely fall under
Section 304 (Part-I) IPC...”
(emphasis supplied)
14. To the same effect are the decisions of this Court in
Vadla Chandraiah v. State of Andhra Pradesh (2006)
14 SCALE 108, and Shankar Diwal Wadu v. State of
Maharashtra (2007) 12 SCC 518.
15. The next question then is whether the case falls under
Section 304 Part I or Part II of the IPC. The distinction
between the two parts of that provision was drawn by this
Court in Alister Anthony Pareira v. State of
Maharashtra (2012) 2 SCC 648, in the following words:
“..... For punishment under Section 304 Part I, the
prosecution must prove: the death of the person in
question; that such death was caused by the act of
the accused and that the accused intended by such
act to cause death or cause such bodily injury as
was likely to cause death. As regards punishment for
Section 304 Part II, the prosecution has to prove the
death of the person in question; that such death was
caused by the act of the accused and that he knew
that such act of his was likely to cause death....”
14Page 15
16. Reference may also be made to the decision of this
Court in Singapagu Anjaiah v. State of Andhra Pradesh
(2010) 9 SCC 799 where this Court observed:
“16. In our opinion, as nobody can enter into the
mind of the accused, its intention has to be gathered
from the weapon used, the part of the body chosen
for the assault and the nature of the injuries
caused...”
(emphasis supplied)
17. The decision of this Court in Basdev v. The State of
PEPSU AIR 1956 SC 488, drew a distinction between
motive, intention and knowledge in the following words:
“....Of course, we have to distinguish between
motive, intention and knowledge. Motive is
something which prompts a man to form an
intention and knowledge is an awareness of the
consequences of the act. In many cases intention
and knowledge merge into each other and mean the
same thing more or less and intention can be
presumed from knowledge. The demarcating line
between knowledge and intention is no doubt thin
but it is not difficult to perceive that they connote
different things...”
18. This Court in the above decisions quoted the following
passage from Reg. v. Monkhouse (1849) 4 Cox C. C. 55
where Coleridge J. speaking for the Court observed:
"The inquiry as to intent is far less simple than that
as to whether an act has been committed, because
15Page 16
you cannot look into a man's mind to see what was
passing there at any given time. What he intends
can only be judged of by what he does or says, and
if he says nothing, then his act alone must guide
you to your decision. It is a general rule in criminal
law, and one founded on common sense, that juries
are to presume a man to do what is the natural
consequence of his act. The consequence is
sometimes so apparent as to leave no doubt of the
intention. A man could not put a pistol which he
knew to be loaded to another's head, and fire it off,
without intending to kill him; but even there the
state of mind of the party is most material to be
considered...”
 (emphasis
supplied)
19. In Camilo Vaz v. State of Goa (2000) 9 SCC 1, the
accused had hit the deceased with a danda during a
premeditated gang-fight, resulting in the death of the victim.
Both the Trial Court and the Bombay High Court convicted
the appellant under Section 302 I.P.C. This Court, however,
converted the conviction to one under Section 304, Part II,
I.P.C. and observed:
“....When a person hits another with a danda on a
vital part of the body with such a force that the
person hit meets his death, knowledge has to be
imputed to the accused. In that situation case will
fall in Part II of Section 304, IPC as in the present
case...”
(emphasis supplied)
16Page 17
20. In Jagrup Singh v. State of Haryana (1981) 3 SCC
616 the accused had given a blow on the head of the
deceased with the blunt side of a gandhala during a sudden
fight causing a fracture to the skull and consequent death.
This Court altered the conviction from Section 302 to Section
304, Part II IPC placing reliance upon the decision in
Chamru Budhwa v. State of Madhya Pradesh AIR 1954
SC 652 in which case also the exchange of abuses had led
both the parties to use lathis in a fight that ensued in which
the deceased was hit on the head by one of the lathi blows
causing a fracture of the skull and his ultimate death. The
accused was convicted for the offence of culpable homicide
not amounting to murder under Section 304, Part II of the
IPC.
21. Reference may also be made to the decisions of this
Court in Sarabjeet Singh and Ors. v. State of Uttar
Pradesh (1984) 1 SCC 673, Mer Dhana Sida v. State of
Gujarat (1985) 1 SCC 200 and Sukhmandar Singh v.
State of Punjab AIR 1995 SC 583 in which cases also the
cause of death was a fracture to the skull in a sudden fight
17Page 18
without premeditation. The Court altered the conviction from
Section 302 IPC to Section 304, Part II of IPC.
22. Though the accused had inflicted only one injury upon
the deceased, the fact that he had attempted to stab him a
second time was taken as an indication of the accused having
any intention to kill for the purpose of Section 304 Part I, IPC
in Kasam Abdulla Hafiz v. State of Maharashtra (1998)
1 SCC 526, where this Court observed:
“....Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated
above the conclusion is irresistible that the death
was caused by the acts of the accused done with the
intention of causing such bodily injury as is likely to
cause death and therefore the offence would
squarely come within the Ist part of Section
304 I.P.C. The guilty intention of the accused to
cause such bodily injury as is likely to cause death is
apparent from the fact that he did attempt a second
blow though did not succeed in the same and it
somehow missed...”
(emphasis supplied)
23. We may lastly refer to the decision of this Court in
Pulicherla Nagaraju @ Nagaraja Reddy v. State of
Andhra Pradesh (2006) 11 SCC 444 where this Court
enumerated some of the circumstances relevant to finding
18Page 19
out whether there was any intention to cause death on the
part of the accused. This Court observed:
“...Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution,
as that will decide whether the case falls under
Section 302 or 304 Part I or 304 Part II. Many petty
or insignificant matters - plucking of a fruit, straying
of a cattle, quarrel of children, utterance of a rude
word or even an objectionable glance, may lead to
altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases.
There may be no intention. There may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there
may be cases of murder where the accused attempts
to avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause
death. It is for the courts to ensure that the cases of
murder punishable under Section 302, are not
converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder
punishable under Section 302. The intention to
cause death can be gathered generally from a
combination of a few or several of the following,
among other, circumstances : (i) nature of the
weapon used; (ii) whether the weapon was carried
by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the
body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of
sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or
whether there was any pre- meditation; (vii)
whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was
any grave and sudden provocation, and if so, the
cause for such provocation; (ix) whether it was in
the heat of passion; (x) whether the person inflicting
the injury has taken undue advantage or has acted
in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The
above list of circumstances is, of course, not
exhaustive and there may be several other special
19Page 20
circumstances with reference to individual cases
which may throw light on the question of
intention...”
(emphasis supplied)
24. Coming back to the case at hand, we are of the opinion
that the nature of the simple injury inflicted by the accused,
the part of the body on which it was inflicted, the weapon
used to inflict the same and the circumstances in which the
injury was inflicted do not suggest that the appellant had the
intention to kill the deceased. All that can be said is that the
appellant had the knowledge that the injury inflicted by him
was likely to cause the death of the deceased. The case
would, therefore, more appropriately fall under Section 304
Part II of the IPC.
25. The only other aspect that needs to be examined is
whether any compensation be awarded against the appellant
and in favour of the bereaved family under Section 357 of
the Code of Criminal Procedure, 1973. This aspect arises
very often and has been a subject matter of several
pronouncements of this Court. The same may require some
elaboration to place in bold relief certain aspects that need to
20Page 21
be addressed by Courts but have despite the decisions of this
Court remained obscure and neglected by the Courts at
different levels in this country.
26. More than four decades back Krishna Iyer J. speaking
for the Court in Maru Ram & Ors. v. Union of India and
Ors. (1981) 1 SCC 107, in his inimitable style said that
while social responsibility of the criminal to restore the loss or
heal the injury is a part of the punitive exercise, the length of
the prison term is no reparation to the crippled or bereaved
but is futility compounded with cruelty. Victimology must find
fulfilment said the Court, not through barbarity but by
compulsory recoupment by the wrong doer of the damage
inflicted not by giving more pain to the offender but by
lessening the loss of the forlorn. In Hari Singh v. Sukhbir
Singh and Ors. (1988) 4 SCC 551, this Court lamented
the failure of the Courts in awarding compensation to the
victims in terms of Section 357 (1) of the Cr.P.C. The Court
recommended to all Courts to exercise the power available
under Section 357 of the Cr.P.C. liberally so as to meet the
ends of justice. The Court said:
21Page 22
“…. Sub-section (1) of Section 357 provides power
to award compensation to victims of the offence out
of the sentence of fine imposed on accused… It is an
important provision but Courts have seldom invoked
it. Perhaps due to ignorance of the object of it. It
empowers the Court to award compensation to
victims while passing judgment of conviction. In
addition to conviction, the Court may order the
accused to pay some amount by way of
compensation to victim who has suffered by the
action of accused. It may be noted that this power
of Courts to award compensation is not ancillary to
other sentences but it is in addition thereto. This
power was intended to do something to reassure the
victim that he or she is not forgotten in the criminal
justice system. It is a measure of responding
appropriately to crime as well of reconciling the
victim with the offender. It is, to some extent, a
constructive approach to crimes. It is indeed a step
forward in our criminal justice system. We,
therefore, recommend to all Courts to exercise this
power liberally so as to meet the ends of justice in a
better way.
(emphasis supplied)
27. The amount of compensation, observed this Court, was
to be determined by the Courts depending upon the facts
and circumstances of each case, the nature of the crime, the
justness of the claim and the capacity of the accused to pay.
28. In Sarwan Singh and others v. State of Punjab
(1978) 4 SCC 111, Balraj v. State of U.P. (1994) 4 SCC
29, Baldev Singh and Anr. v. State of Punjab (1995) 6
SCC 593, Dilip S. Dahanukar v. Kotak Mahindra Co.
22Page 23
Ltd. and Anr. (2007) 6 SCC 528, this Court held that the
power of the Courts to award compensation to victims under
Section 357 is not ancillary to other sentences but in addition
thereto and that imposition of fine and/or grant of
compensation to a great extent must depend upon the
relevant factors apart from such fine or compensation being
just and reasonable. In Dilip S. Dahanukar’s case (supra)
this Court even favoured an inquiry albeit summary in nature
to determine the paying capacity of the offender. The Court
said:
“.... The purpose of imposition of fine and/or grant
of compensation to a great extent must be
considered having the relevant factors therefore in
mind. It may be compensating the person in one
way or the other. The amount of compensation
sought to be imposed, thus, must be reasonable and
not arbitrary. Before issuing a direction to pay
compensation, the capacity of accused to pay the
same must be judged. A fortiori, an enquiry in this
behalf even in a summary way may be necessary.
Some reasons, which may not be very elaborate,
may also have to be assigned; the purpose being
that whereas the power to impose fine is limited and
direction to pay compensation can be made for one
or the other factors enumerated out of the same;
but sub- Section (3) of Section 357 does not impose
any such limitation and thus, power thereunder
should be exercised only in appropriate cases. Such
a jurisdiction cannot be exercised at the whims and
caprice of a judge.”
23Page 24
29. The long line of judicial pronouncements of this Court
recognised in no uncertain terms a paradigm shift in the
approach towards victims of crimes who were held entitled to
reparation, restitution or compensation for loss or injury
suffered by them. This shift from retribution to restitution
began in the mid 1960s and gained momentum in the
decades that followed. Interestingly the clock appears to
have come full circle by the law makers and courts going
back in a great measure to what was in ancient times
common place. Harvard Law Review (1984) in an article
on “Victim Restitution in Criminal Law Process: A
Procedural Analysis” sums up the historical perspective of
the concept of restitution in the following words:
“Far from being a novel approach to sentencing,
restitution has been employed as a punitive sanction
throughout history. In ancient societies, before the
conceptual separation of civil and criminal law, it
was standard practice to require an offender to
reimburse the victim or his family for any loss
caused by the offense. The primary purpose of such
restitution was not to compensate the victim, but to
protect the offender from violent retaliation by the
victim or the community. It was a means by which
the offender could buy back the peace he had
broken. As the state gradually established a
monopoly over the institution of punishment, and a
division between civil and criminal law emerged, the
victim's right to compensation was incorporated into
civil law.”
24Page 25
30. With modern concepts creating a distinction between
civil and criminal law in which civil law provides for remedies
to award compensation for private wrongs and the criminal
law takes care of punishing the wrong doer, the legal position
that emerged till recent times was that criminal law need not
concern itself with compensation to the victims since
compensation was a civil remedy that fell within the domain
of the civil Courts. This conventional position has in recent
times undergone a notable sea change, as societies world
over have increasingly felt that victims of the crimes were
being neglected by the legislatures and the Courts alike.
Legislations have, therefore, been introduced in many
countries including Canada, Australia, England, New Zealand,
Northern Ireland and in certain States in the USA providing
for restitution/reparation by Courts administering criminal
justice.
31. England was perhaps the first to adopt a separate
statutory scheme for victim compensation by the State under
the Criminal Injuries Compensation Scheme, 1964. Under
the Criminal Justice Act, 1972 the idea of payment of
25Page 26
compensation by the offender was introduced. The following
extract from the Oxford Handbook of Criminology (1994
Edn., p.1237-1238), which has been quoted with approval in
Delhi Domestic Working Women's Forum v. Union of
India and Ors. (1995) 1 SCC 14 is apposite:
“Compensation payable by the offender was
introduced in the Criminal Justice Act 1972 which
gave the Courts powers to make an ancillary order
for compensation in addition to the main penalty in
cases where 'injury', loss, or damage' had resulted.
The Criminal Justice Act 1982 made it possible for
the first time to make a compensation order as the
sole penalty. It also required that in cases where
fines and compensation orders were given together,
the payment of compensation should take priority
over the fine. These developments signified a major
shift in penology thinking, reflecting the growing
importance attached to restitution and reparation
over the more narrowly retributive aims of
conventional punishment. The Criminal Justice Act
1982 furthered this shift. It required courts to
consider the making of a compensation order in
every case of death, injury, loss or damage and,
where such an order was not given, imposed a duty
on the court to give reasons for not doing so. It also
extended the range of injuries eligible for
compensation. These new requirements mean that if
the court fails to make a compensation order it must
furnish reasons. Where reasons are given, the victim
may apply for these to be subject to judicial review.
The 1991 Criminal Justice Act contains a number of
provisions which directly or indirectly encourage an
even greater role for compensation...”
(emphasis supplied)
26Page 27
32. In the United States of America, the Victim and Witness
Protection Act of 1982 authorizes a federal court to award
restitution by means of monetary compensation as a part of
a convict's sentence. Section 3553(a)(7) of Title 18 of the
Act requires Courts to consider in every case “the need to
provide restitution to any victims of the offense”. Though it is
not mandatory for the Court to award restitution in every
case, the Act demands that the Court provide its reasons for
denying the same. Section 3553(c) of Title 18 of the Act
states as follows:
“If the court does not order restitution or orders only
partial restitution, the court shall include in the
statement the reason thereof.”
(emphasis supplied)
33. In order to be better equipped to decide the quantum of
money to be paid in a restitution order, the United States
federal law requires that details such as the financial history
of the offender, the monetary loss caused to the victim by
the offence, etc. be obtained during a Presentence
Investigation, which is carried out over a period of 5 weeks
after an offender is convicted.
27Page 28
34. Domestic/Municipal Legislation apart even the UN
General Assembly recognized the right of victims of crimes to
receive compensation by passing a resolution titled
'Declaration on Basic Principles of Justice for Victims
and Abuse of Power, 1985'. The Resolution contained the
following provisions on restitution and compensation:
“Restitution
8. Offenders or third parties responsible for their
behaviour should, where appropriate, make fair
restitution to victims, their families or dependants.
Such restitution should include the return of
property or payment for the harm or loss suffered,
reimbursement of expenses incurred as a result of
the victimization, the provision of services and the
restoration of rights.
9. Governments should review their practices,
regulations and laws to consider restitution as an
available sentencing option in criminal cases, in
addition to other criminal sanctions.
10. In cases of substantial harm to the environment,
restitution, if ordered, should include, as far as
possible, restoration of the environment,
reconstruction of the infrastructure, replacement of
community facilities and reimbursement of the
expenses of relocation, whenever such harm results
in the dislocation of a community.
11. Where public officials or other agents acting in
an official or quasi-official capacity have violated
national criminal laws, the victims should receive
restitution from the State whose officials or agents
were responsible for the harm inflicted. In cases
where the Government under whose authority the
victimizing act or omission occurred is no longer in
existence, the State or Government successor in
title should provide restitution to the victims.
28Page 29
Compensation
12. When compensation is not fully available from
the offender or other sources, States should
endeavour to provide financial compensation to:
(a) Victims who have sustained significant bodily
injury or impairment of physical or mental health as
a result of serious crimes;
(b) The family, in particular dependants of persons
who have died or become physically or mentally
incapacitated as a result of such victimization.
13. The establishment, strengthening and expansion
of national funds for compensation to victims should
be encouraged. Where appropriate, other funds may
also be established for this purpose, including in
those cases where the State of which the victim is a
national is not in a position to compensate the
victim for the harm.”
35. The UN General Assembly passed a resolution titled
Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious
Violations of International Humanitarian Law, 2005
which deals with the rights of victims of international crimes
and human rights violations. These Principles (while in their
Draft form) were quoted with approval by this Court in State
of Gujarat and Anr. v. Hon'ble High Court of Gujarat
(1998) 7 SCC 392 in the following words:
“94. In recent years the right to reparation for
victims of violation of human rights is gaining
ground. United Nations Commission of Human
29Page 30
Rights has circulated draft Basic Principles and
Guidelines on the Right to Reparation for Victims of
Violation of Human Rights, (see Annexure).”
36. Amongst others the following provisions on restitution
and compensation have been made:
“12. Restitution shall be provided to reestablish the
situation that existed prior to the violations of
human rights or international humanitarian law.
Restitution requires inter alia, restoration of liberty,
family life citizenship, return to one's place of
residence, and restoration of employment or
property.
13. Compensation shall be provided for any
economically assessable damage resulting from
violations of human rights or international
humanitarian law, such as :
(a) Physical or mental harm, including pain,
suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including
loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance,
medicines and medical services.”
37. Back home the Criminal Procedure Code of 1898
contained a provision for restitution in the form of Section
545, which stated in sub-clause 1(b) that the Court may
direct “payment to any person of compensation for any loss
or injury caused by the offence when substantial
30Page 31
compensation is, in the opinion of the Court, recoverable by
such person in a Civil Court”.
38. The Law Commission of India in its 41st Report
submitted in 1969 discussed Section 545 of the Cr.P.C. of
1898 extensively and stated as follows:
“46.12. Under clause (b) of sub-sec. (1) of Section
545, the Court may direct “payment to any person
of compensation for any loss or injury caused by the
offence when substantial compensation is, in the
opinion of the Court, recoverable by such person in
a Civil Court.” The significance of the requirement
that compensation should be recoverable in a Civil
Court is that the act which constitutes the offence in
question should also be a tort. The word
“substantial” appears to have been used to exclude
cases where only nominal damages would be
recoverable. We think it is hardly necessary to
emphasise this aspect, since in any event it is purely
within the discretion of the Criminal Courts to order
or not to order payment of compensation, and in
practice, they are not particularly liberal in utilizing
this provision. We propose to omit the word
“substantial” from the clause.”
(emphasis supplied)
39. On the basis of the recommendations made by the Law
Commission in the above report, the Government of India
introduced the Criminal Procedure Code Bill, 1970, which
aimed at revising Section 545 and introducing it in the form
31Page 32
of Section 357 as it reads today. The Statement of Objects
and Reasons underlying the Bill was as follows:
“Clause 365 [now s.357] which corresponds to
section 545 makes provision for payment of
compensation to victims of crimes. At present such
compensation can be ordered only when the Court
imposes a fine the amount is limited to the amount
of fine. Under the new provision, compensation can
be awarded irrespective of whether the offence is
punishable with fine and fine is actually imposed,
but such compensation can be ordered only if the
accused is convicted. The compensation should be
payable for any loss or injury whether physical or
pecuniary and the Court shall have due regard to
the nature of injury, the manner of inflicting the
same, the capacity of the accused to pay and other
relevant factors.”
(emphasis supplied)
40. As regards the need for Courts to obtain comprehensive
details regarding the background of the offender for the
purpose of sentencing, the Law Commission in its 48th Report
on 'Some Questions Under the Code of Criminal Procedure
Bill, 1970' submitted in 1972 discussed the matter in some
detail, stating as follows:
“45. It is now being increasingly recognised that a
rational and consistent sentencing policy requires
the removal of several deficiencies in the present
system. One such deficiency is a lack of
comprehensive information as to the characteristics
and background of the offender.
The aims of sentencing-–themselves obscure--
become all the more so in the absence of
32Page 33
comprehensive information on which the correctional
process is to operate. The public as well as the as
the courts themselves are in the dark about judicial
approach in this regard.
We are of the view that the taking of evidence
as to the circumstances relevant to sentencing
should be encouraged, and both the prosecution and
the accused should be allowed to cooperate in the
process.”
(emphasis supplied)
41. The Cr.P.C. of 1973 which incorporated the changes
proposed in the said Bill of 1970 states in its Objects and
Reasons that s.357 was “intended to provide relief to the
proper sections of the community” and that the amended
CrPC empowered the Court to order payment of
compensation by the accused to the victims of crimes “to a
larger extent” than was previously permissible under the
Code. The changes brought about by the introduction of
s.357 were as follows:
(i) The word “substantial” was excluded.
(ii) A new sub-section (3) was added which provides for
payment of compensation even in cases where the fine does
not form part of the sentence imposed.
33Page 34
(iii) Sub-section (4) was introduced which states that an
order awarding compensation may be made by an Appellate
Court or by the High Court or Court of Session when
exercising its powers of revision.
42. The amendments to the Cr.P.C. brought about in 2008
focused heavily on the rights of victims in a criminal trial,
particularly in trials relating to sexual offences. Though the
2008 amendments left Section 357 unchanged, they
introduced Section 357A under which the Court is
empowered to direct the State to pay compensation to the
victim in such cases where “the compensation awarded
under Section 357 is not adequate for such rehabilitation, or
where the case ends in acquittal or discharge and the victim
has to be rehabilitated.” Under this provision, even if the
accused is not tried but the victim needs to be rehabilitated,
the victim may request the State or District Legal Services
Authority to award him/her compensation. This provision was
introduced due to the recommendations made by the Law
Commission of India in its 152nd and 154th Reports in 1994
and 1996 respectively.
34Page 35
43. The 154th Law Commission Report on the CrPC devoted
an entire chapter to ‘Victimology’ in which the growing
emphasis on victim’s rights in criminal trials was discussed
extensively as under:
“1. Increasingly the attention of criminologists,
penologists and reformers of criminal justice system
has been directed to victimology, control of
victimization and protection of victims of crimes.
Crimes often entail substantive harms to people and
not merely symbolic harm to the social order.
Consequently the needs and rights of victims of
crime should receive priority attention in the total
response to crime. One recognized method of
protection of victims is compensation to victims of
crime. The needs of victims and their family are
extensive and varied.
xx xx xx xx xx
9.1 The principles of victimology has foundations in
Indian constitutional jurisprudence. The provision on
Fundamental Rights (Part III) and Directive
Principles of State Policy (Part IV) form the bulwark
for a new social order in which social and economic
justice would blossom in the national life of the
country (Article 38). Article 41 mandates inter alia
that the State shall make effective provisions for
“securing the right to public assistance in cases of
disablement and in other cases of undeserved
want.” So also Article 51-A makes it a fundamental
duty of every Indian citizen, inter alia ‘to have
compassion for living creatures’ and to ‘develop
humanism’. If emphatically interpreted and
imaginatively expanded these provisions can form
the constitutional underpinnings for victimology.
9.2 However, in India the criminal law provides
compensation to the victims and their dependants
only in a limited manner. Section 357 of the Code of
Criminal Procedure incorporates this concept to an
extent and empowers the Criminal Courts to grant
compensation to the victims.
35Page 36
xx xx xx xx
11. In India the principles of compensation to crime
victims need to be reviewed and expanded to cover
all cases. The compensation should not be limited
only to fines, penalties and forfeitures realized. The
State should accept the principle of providing
assistance to victims out of its own funds…”
44. The question then is whether the plenitude of the power
vested in the Courts under Section 357 & 357-A,
notwithstanding, the Courts can simply ignore the provisions
or neglect the exercise of a power that is primarily meant to
be exercised for the benefit of the victims of crimes that are
so often committed though less frequently punished by the
Courts. In other words, whether Courts have a duty to
advert to the question of awarding compensation to the
victim and record reasons while granting or refusing relief to
them?
45. The language of Section 357 Cr.P.C. at a glance may
not suggest that any obligation is cast upon a Court to apply
its mind to the question of compensation. Sub-section (1) of
s.357 states that the Court “may” order for the whole or any
36Page 37
part of a fine recovered to be applied towards compensation
in the following cases:
(i) To any person who has suffered loss or injury by the
offence, when in the opinion of the Court, such
compensation would be recoverable by such person in a
Civil Court.
(ii) To a person who is entitled to recover damages
under the Fatal Accidents Act, when there is a
conviction for causing death or abetment thereof.
(iii) To a bona fide purchaser of property, which has
become the subject of theft, criminal misappropriation,
criminal breach of trust, cheating, or receiving or
retaining or disposing of stolen property, and which is
ordered to be restored to its rightful owner.
46. Sub-section (3) of Section 357 further empowers the
Court by stating that it “may” award compensation even in
such cases where the sentence imposed does not include a
fine. The legal position is, however, well-established that
cases may arise where a provision is mandatory despite the
use of language that makes it discretionary. We may at the
37Page 38
outset, refer to the oft quoted passage from Julius v. Lord
Bishop of Oxford (1880) 5 AC 214 where the Court
summed up the legal position thus:
“The words 'it shall be lawful' are not equivocal.
They are plain and unambiguous. They are words
merely making that legal and possible which there
would otherwise be no right or authority to do. They
confer a faculty or power and they do not of
themselves do more than confer a faculty or
power. But there may be something in the nature of
the thing empowered to be done, something in the
object for which it is to be done, something in the
title of the person or persons for whose benefit the
power is to be exercised, which may couple the
power with a duty, and make it the duty of the
person in whom the power is reposed, to exercise
that power when called upon to do so...”
47. There is no gainsaying that Section 357 confers a power
on the Court in so far as it makes it “legal and possible which
there would otherwise be no right or authority to do” viz. to
award compensation to victims in criminal cases. The
question is whether despite the use of discretionary language
such as the word “may”, there is “something” in the nature
of the power to award compensation in criminal cases, in the
object for which the power is conferred or in the title of the
persons for whose benefit it is to be exercised which, coupled
with the power conferred under the provision, casts a duty
38Page 39
on the Court to apply its mind to the question of exercise of
this power in every criminal case.
48. In Smt. Bachahan Devi and Anr. v. Nagar Nigam,
Gorakhpur and Anr. AIR 2008 SC 1282, this Court while
dealing with the use of the word “may” summoned up the
legal position thus:
“...It is well-settled that the use of word `may' in a
statutory provision would not by itself show that the
provision is directory in nature. In some cases, the
legislature may use the word `may' as a matter of
pure conventional courtesy and yet intend a
mandatory force. In order, therefore, to interpret
the legal import of the word `may', the court has to
consider various factors, namely, the object and the
scheme of the Act, the context and the background
against which the words have been used, the
purpose and the advantages sought to be achieved
by the use of this word, and the like. It is equally
well-settled that where the word `may' involves a
discretion coupled with an obligation or where it
confers a positive benefit to a general class of
subjects in a utility Act, or where the court advances
a remedy and suppresses the mischief, or where
giving the words directory significance would defeat
the very object of the Act, the word `may' should be
interpreted to convey a mandatory force...”
(emphasis supplied)
49. Similarly in Dhampur Sugar Mills Ltd. v. State of U.
P. and Ors. (2007) 8 SCC 338, this Court held that the
mere use of word 'may' or 'shall' was not conclusive. The
39Page 40
question whether a particular provision of a statute is
directory or mandatory, held the Court, can be resolved by
ascertaining the intention of the Legislature and not by
looking at the language in which the provision is clothed. And
for finding out the legislative intent, the Court must examine
the scheme of the Act, purpose and object underlying the
provision, consequences likely to ensue or inconvenience
likely to result if the provision is read one way or the other
and many more considerations relevant thereto.
50. Applying the tests which emerge from the above cases
to Section 357, it appears to us that the provision confers a
power coupled with a duty on the Courts to apply its mind to
the question of awarding compensation in every criminal
case. We say so because in the background and context in
which it was introduced, the power to award compensation
was intended to reassure the victim that he or she is not
forgotten in the criminal justice system. The victim would
remain forgotten in the criminal justice system if despite
Legislature having gone so far as to enact specific provisions
relating to victim compensation, Courts choose to ignore the
40Page 41
provisions altogether and do not even apply their mind to the
question of compensation. It follows that unless Section 357
is read to confer an obligation on Courts to apply their mind
to the question of compensation, it would defeat the very
object behind the introduction of the provision.
51. If application of mind is not considered mandatory, the
entire provision would be rendered a dead letter. It was held
in NEPC Micon Ltd. and Ors. v. Magma Leasing Ltd.
(1999) 4 SCC 253, albeit in the context of s.138 of the
Negotiable Instruments Act that even in regard to a penal
provision, any interpretation, which withdraws the life and
blood of the provision and makes it ineffective and a
dead letter should be avoided.
52. Similarly in Swantraj and Ors. v. State of
Maharashtra (1975) 3 SCC 322, this Court speaking
through Justice Krishna Iyer held:
“1. Every legislation is a social document and
judicial construction seeks to decipher the statutory
mission, language permitting, taking the cue from
the rule in Heydon's case of suppressing the evil and
advancing the remedy...”
41Page 42
53. The Court extracted with approval the following passage
from Maxwell on Interpretation of Statutes:
“There is no doubt that 'the office of the Judge is, to
make such construction as will suppress the
mischief, and advance the remedy, and to suppress
all evasions for the continuance of the mischief.' To
carry out effectually the object of a statute, it must
be so construed as to defeat all attempts to do, or
avoid doing, in an indirect or circuitous manner that
which it has prohibited or enjoined : quando aliquid
prohibetur, prohibetur et omne per quod devenitur
ad illud.”
54. This Court has through a line of cases beginning with
Hari Singh's case (supra) held that the power to award
compensation under Section 357 is not ancillary to other
sentences but in addition thereto. It would necessarily follow
that the Court has a duty to apply its mind to the question of
awarding compensation under Section 357 too. Reference
may also be made to the decision of this Court in State of
Andhra Pradesh v. Polamala Raju @ Rajarao (2000) 7
SCC 75 where a three-judge bench of this Court set aside a
judgment of the High Court for non-application of mind to
the question of sentencing. In that case, this Court
reprimanded the High Court for having reduced the sentence
of the accused convicted under Section 376, IPC from 10
42Page 43
years imprisonment to 5 years without recording any reasons
for the same. This Court said:
“...We are of the considered opinion that it is an
obligation of the sentencing court to consider all
relevant facts and circumstances bearing on the
question of sentence and impose a sentence
commensurate with the gravity of the offence...
xx xx xx xx
...To say the least, the order contains no reasons,
much less “special or adequate reasons”. The
sentence has been reduced in a rather mechanical
manner without proper application of mind...”
55. In State of Punjab v. Prem Sagar and Ors. (2008)
7 SCC 550 this Court stressed the need for greater
application of mind of the Courts in the field of sentencing.
Setting aside the order granting probation by the High Court,
the Court stated as follows:
“30....The High Court does not rest its decision on
any legal principle. No sufficient or cogent reason
has been arrived.
31. We have noticed the development of law in
this behalf in other countries only to emphasise that
the courts while imposing sentence must take into
consideration the principles applicable thereto. It
requires application of mind. The purpose of
imposition of sentence must also be kept in mind...”
56. Although speaking in the context of capital punishment,
the following observation of this Court in Sangeet & Anr. v.
43Page 44
State of Haryana (2013) 2 SCC 452 could be said to
apply to other sentences as well, particularly the award of
compensation to the victim:
“In the sentencing process, both the crime and the
criminal are equally important. We have
unfortunately, not taken the sentencing process as
seriously as it should be with the result that in
capital offences, it has become judge-centric
sentencing rather than principled sentencing.”
57. Section 357 Cr.P.C. confers a duty on the Court to apply
its mind to the question of compensation in every criminal
case. It necessarily follows that the Court must disclose that
it has applied its mind to this question in every criminal case.
In Maya Devi (Dead) through LRs and Ors. v. Raj
Kumari Batra (Dead) through LRs and Ors. (2010) 9
SCC 486, this Court held that disclosure of application of
mind is best demonstrated by recording reasons in support of
the order or conclusion. The Court observed:
“28. ...There is nothing like a power without any limits
or constraints. That is so even when a court or other
authority may be vested with wide discretionary
power, for even discretion has to be exercised only
along well-recognised and sound juristic principles
with a view to promoting fairness, inducing
transparency and aiding equity.
29. What then are the safeguards against an arbitrary
exercise of power? The first and the most effective
check against any such exercise is the well-recognised
44Page 45
legal principle that orders can be made only after due
application of mind. Application of mind brings
reasonableness not only to the exercise of power but
to the ultimate conclusion also. Application of mind in
turn is best demonstrated by disclosure of mind. And
disclosure is best demonstrated by recording reasons
in support of the order or conclusion.
30. Recording of reasons in cases where the order is
subject to further appeal is very important from yet
another angle. An appellate court or the authority
ought to have the advantage of examining the
reasons that prevailed with the court or the authority
making the order. Conversely, absence of reasons in
an appealable order deprives the appellate court or
the authority of that advantage and casts an onerous
responsibility upon it to examine and determine the
question on its own...”
(emphasis supplied)
58. Similarly, in State of Rajasthan v. Sohan Lal and
Ors. (2004) 5 SCC 573, this Court emphasised the need
for reasons thus:
“...The giving of reasons for a decision is an
essential attribute of judicial and judicious disposal
of a matter before courts, and which is the only
indication to know about the manner and quality of
exercise undertaken, as also the fact that the court
concerned had really applied its mind...”
59. In Hindustan Times Ltd. v. Union of India (1998)
2 SCC 242 this Court stated that the absence of reasons in
an order would burden the appellate court with the
45Page 46
responsibility of going through the evidence or law for the
first time. The Court observed :
“...In our view, the satisfaction which a reasoned
Judgment gives to the losing party or his lawyer is
the test of a good Judgment. Disposal of cases is no
doubt important but quality of the judgment is
equally, if not more, important. There is no point in
shifting the burden to the higher Court either to
support the judgment by reasons or to consider the
evidence or law for the first time to see if the
judgment needs a reversal...”
60. In Director, Horticulture Punjab and Ors. v.
Jagjivan Parshad (2008) 5 SCC 539, this Court stated
that the spelling out of reasons in an order is a requirement
of natural justice:
“...Reasons substitute subjectivity by objectivity.
The emphasis on recording reasons is that if the
decision reveals the “inscrutable face of the sphinx”,
it can, by its silence, render it virtually impossible
for the courts to perform their appellate function or
exercise the power of judicial review in adjudging
the validity of the decision. Right to reason is an
indispensable part of a sound judicial system.
Another rationale is that the affected party can know
why the decision has gone against him. One of the
salutary requirements of natural justice is spelling
out reasons for the order made, in other words, a
speaking-out. The “inscrutable face of the sphinx” is
ordinarily incongruous with a judicial or quasijudicial performance...”
46Page 47
61. In Maya Devi's case (supra), this Court summarised
the existing case law on the need for reasoned orders as
follows:
“22. The juristic basis underlying the requirement
that courts and indeed all such authorities, as
exercise the power to determine the rights and
obligations of individuals must give reasons in
support of their orders has been examined in a long
line of decisions rendered by this Court. In
Hindustan Times Ltd. v. Union of India (1998)
2 SCC 242 the need to give reasons has been held
to arise out of the need to minimise chances of
arbitrariness and induce clarity.
23. In Arun v. Inspector General of Police
(1986) 3 SCC 696 the recording of reasons in
support of the order passed by the High Court has
been held to inspire public confidence in
administration of justice, and help the Apex Court to
dispose of appeals filed against such orders.
24. In Union of India v. Jai Prakash Singh
(2007) 10 SCC 712, reasons were held to be live
links between the mind of the decision-maker and
the controversy in question as also the decision or
conclusion arrived at.
25. In Victoria Memorial Hall v. Howrah
Ganatantrik Nagrik Samity (2010) 3 SCC 732,
reasons were held to be the heartbeat of every
conclusion, apart from being an essential feature of
the principles of natural justice, that ensure
transparency and fairness, in the decision-making
process.
26. In Ram Phal v. State of Haryana (2009) 3
SCC 258, giving of satisfactory reasons was held to
be a requirement arising out of an ordinary man's
sense of justice and a healthy discipline for all those
who exercise power over others.
27. In Director, Horticulture, Punjab v. Jagjivan
Parshad (2008) 5 SCC 539, the recording of
reasons was held to be indicative of application of
47Page 48
mind specially when the order is amenable to further
avenues of challenge.”
62. To sum up: While the award or refusal of compensation
in a particular case may be within the Court's discretion,
there exists a mandatory duty on the Court to apply its mind
to the question in every criminal case. Application of mind to
the question is best disclosed by recording reasons for
awarding/refusing compensation. It is axiomatic that for any
exercise involving application of mind, the Court ought to
have the necessary material which it would evaluate to arrive
at a fair and reasonable conclusion. It is also beyond dispute
that the occasion to consider the question of award of
compensation would logically arise only after the court
records a conviction of the accused. Capacity of the accused
to pay which constitutes an important aspect of any order
under Section 357 Cr.P.C. would involve a certain enquiry
albeit summary unless of course the facts as emerging in the
course of the trial are so clear that the court considers it
unnecessary to do so. Such an enquiry can precede an order
on sentence to enable the court to take a view, both on the
48Page 49
question of sentence and compensation that it may in its
wisdom decide to award to the victim or his/her family.
63. Coming then to the case at hand, we regret to say that
the trial Court and the High Court appear to have remained
oblivious to the provisions of Section 357 Cr.P.C. The
judgments under appeal betray ignorance of the Courts
below about the statutory provisions and the duty cast upon
the Courts. Remand at this distant point of time does not
appear to be a good option either. This may not be a happy
situation but having regard to the facts and the
circumstances of the case and the time lag since the offence
was committed, we conclude this chapter in the hope that
the courts remain careful in future.
64. In the result, we allow this appeal but only to the extent
that instead of Section 302 IPC the appellant shall stand
convicted for the offence of culpable homicide not amounting
to murder punishable under Section 304 Part II IPC and
sentenced to undergo rigorous imprisonment for a period of
five years. The fine imposed upon the appellant and the
default sentence awarded to him shall remain unaltered. The
49Page 50
appeal is disposed of in the above terms in modification of
the order passed by the Courts below. A copy of this order be
forwarded to the Registrars General of the High Courts in the
country for circulation among the Judges handling criminal
trials and hearing appeals. 
……...………….……….…..…J.
(T.S. Thakur)
 …………………………..…..…J.
(Gyan Sudha Misra)
New Delhi
May 3, 2013
50