Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case.= Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix a date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross examine them.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.709 of 2013
(Arising out of SLP (Crl.) No.3271 of 2013)
Natasha Singh …Appellant
Versus
CBI (State) …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the impugned judgment
and order dated 8.4.2013 in Criminal Misc. Case No.1324 of 2013,
passed by the High Court of Delhi at New Delhi, by way of which it
has affirmed the order dated 16.3.2013, passed by the Trial Court,
dismissing the application filed by the appellant under Section 311 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the
‘Cr.P.C.’), observing that examination of the witnesses sought to be
Page 2
examined by the appellant-accused was in fact unnecessary, and
would in no way assist in the process of arriving at a just decision
with respect to the case.
3. Facts and circumstances giving rise to this appeal are as under:
A. An FIR dated 10.8.1998 was registered under Section 120B
read with Sections 420, 467, 468, 471 of the Indian Penal Code, 1860
(hereinafter referred to as the `IPC’) and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988
(hereinafter referred to as ‘the Act 1988’) against the appellant and
other accused persons. After the conclusion of the investigation, a
chargesheet was filed on 19.7.2001 by the investigating agency, i.e.,
CBI against Smt. Rita Singh (A-1), Mrs. Natasha Singh (A-2),
appellant, and Mr. Y.V. Luthra (A-3), a Public Servant.
B. In view thereof, charges were framed by the learned Trial Court
on 5.5.2003 against all the three accused.
C. In support of its case, the prosecution examined 52 witnesses in
the course of over 50 hearings and subsequent thereto, the statement
of the appellant-accused was recorded on 28-29.1.2013 and 5.2.2013.
The appellant, in her defence examined only one witness, namely,
2Page 3
Sudhir Kumar (DW-2) and after proving certain documents closed her
defence on 18.2.2013. The other accused, namely, Mr. Y.V. Luthra
concluded his defence on 19.2.2013, after examining two defence
witnesses, namely, Mr. A.K. Saxena and Mr. Satpal Arora. The Trial
Court thereafter, fixed the date for hearing final arguments as
5.3.2013. The appellant preferred an application under Section 311
Cr.P.C. on 5.3.2013 for permission to examine three witnesses. The
said application was dismissed by the Trial Court vide order dated
16.3.2013, against which the Criminal Misc. petition filed by the
appellant was also dismissed by the High Court, by way of impugned
order dated 8.4.2013.
Hence, this appeal.
4. Shri U.U. Lalit, learned senior counsel appearing for the
appellant, has submitted that the FIR was lodged in 1998 and if the
prosecution has taken more than a decade to examine 52 witnesses,
and that if after the appellant had closed her defence, the other
accused had laid evidence in his defence, and that thereafter, without
losing any time, the appellant had preferred an application seeking
permission to examine three witnesses in her defence, and had even
given reasons for their examination, the same should not have been
3Page 4
dismissed. The Trial Court has committed an error in appreciating the
evidence which could have been provided by the said three witnesses
in anticipation. It has also been stated that further, there was no delay
on the part of the appellant in moving the application. Had this
application been allowed by the courts below, no prejudice would
have been caused to the respondent. Thus, the appeal deserves to be
allowed.
5. On the contrary, Shri S.P. Singh, learned senior counsel
appearing for the respondent, has opposed the appeal contending that
the courts below have recorded a finding of fact to the extent that the
said evidence was not necessary to arrive a just decision, and that it
was left to the discretion of the court whether to allow such an
application or not. This Court should not interfere with the manner in
which such a discretion has been exercised by the courts below. The
courts below have considered the case in correct perspective and thus,
no interference is called for. The appeal lacks merit and is liable to be
dismissed.
6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
4Page 5
7. Section 311 Cr.P.C. empowers the court to summon a material
witness, or to examine a person present at “any stage” of “any
enquiry”, or “trial”, or “any other proceedings” under the Cr.P.C., or
to summon any person as a witness, or to recall and re-examine any
person who has already been examined if his evidence appears to it,
to be essential to the arrival of a just decision of the case.
Undoubtedly, the Cr.P.C. has conferred a very wide discretionary
power upon the court in this respect, but such a discretion is to be
exercised judiciously and not arbitrarily. The power of the court in
this context is very wide, and in exercise of the same, it may summon
any person as a witness at any stage of the trial, or other proceedings.
The court is competent to exercise such power even suo motu if no
such application has been filed by either of the parties. However, the
court must satisfy itself, that it was in fact essential to examine such a
witness, or to recall him for further examination in order to arrive at a
just decision of the case.
8. In Mir Mohd. Omar & Ors. v. State of West Bengal, AIR
1989 SC 1785, this Court examined an issue wherein, after the
statement of the accused under Section 313 Cr.P.C. had been
5Page 6
recorded, the prosecution had filed an application to further examine a
witness and the High Court had allowed the same. This Court then
held, that once the accused has been examined under Section 313
Cr.P.C., in the event that liberty is given to the prosecution to recall a
witness, the same may amount to filling up a lacuna existing in the
case of the prosecution and therefore, that such an order was uncalled
for.
9. In Mohanlal Shamji Soni v. Union of India & Anr., AIR
1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C.,
and held that it is a cardinal rule of the law of evidence, that the best
available evidence must be brought before the court to prove a fact, or
a point in issue. However, the court is under an obligation to
discharge its statutory functions, whether discretionary or obligatory,
according to law and hence ensure that justice is done. The court has
a duty to determine the truth, and to render a just decision. The same
is also the object of Section 311 Cr.P.C., wherein the court may
exercise its discretionary authority at any stage of the enquiry, trial or
other proceedings, to summon any person as a witness though not yet
summoned as a witness, or to recall or re-examine any person, though
not yet summoned as a witness, who are expected to be able to
6Page 7
throw light upon the matter in dispute, because if the judgments
happen to be rendered on an inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be defeated.
10. In Rajeswar Prasad Misra v. The State of West Bengal &
Anr., AIR 1965 SC 1887, this Court dealt with the ample power and
jurisdiction vested in the court, with respect to taking additional
evidence, and observed, that it may not be possible for the legislature
to foresee all situations and possibilities and therefore, the court must
examine the facts and circumstances of each case before it, and if it
comes to the conclusion that additional evidence is necessary, not
because it would be impossible to pronounce the judgment without it,
but because there would be a failure of justice without such evidence
being considered, and if such an action on its part is justified, then the
court must exercise such power. The Court further held as under:-
“…..the Criminal Court has ample power to summon any
person as a witness or recall and re-examine any such
person even if the evidence on both sides is closed and
the jurisdiction of the Court must obviously be dictated
by exigency of the situation, and fair play and good
sense appear to be the only safe guides and that only the
requirements of justice command the examination of any
person which would depend on the facts and
circumstances of each case.” (Emphasis added)
7Page 8
11. In Rajendra Prasad v. Narcotic Cell through its Officer-inCharge, Delhi, AIR 1999 SC 2292, this Court considered a similar
issue and held as under:-
“Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution case. The advantage of it should normally go
to the accused in the trial of the case, but an over sight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can be foreclosed
from correcting, errors. If proper evidence was not
adduced or a relevant material was not brought on
record due to any inadvertence, the Court should be
magnanimous in permitting such mistakes to be
rectified. After all, function of the criminal Court is
administration of criminal justice and not to count errors
committed by the parties or to find out and declare who
among the parties performed better.” (Emphasis added)
12. Similarly, in P. Sanjeeva Rao v. State of A.P., AIR 2012 SC
2242, this Court examined the scope of the provisions of Section 311
Cr.P.C. and held as under:-
“Grant of fairest opportunity to the accused to prove his
innocence was the object of every fair trial, observed this
Court in Hoffman Andreas v. Inspector of Customs,
Amritsar, (2000) 10 SCC 430. The following passage is
in this regard apposite:
`In such circumstances, if the new Counsel thought
to have the material witnesses further examined, the
Court could adopt latitude and a liberal view in the
8Page 9
interest of justice, particularly when the Court has
unbridled powers in the matter as enshrined in Section
311 of the Code. After all the trial is basically for the
prisoners and courts should afford the opportunity to
them in the fairest manner possible.’
xxx xxx xxx xxx
 We are conscious of the fact that recall of the witnesses
is being directed nearly four years after they were
examined in chief about an incident that is nearly seven
years old….. we are of the opinion that on a parity of
reasoning and looking to the consequences of denial of
opportunity to cross-examine the witnesses, we would
prefer to err in favour of the appellant getting an
opportunity rather than protecting the prosecution
against a possible prejudice at his cost. Fairness of the
trial is a virtue that is sacrosanct in our judicial system
and no price is too heavy to protect that virtue. A
possible prejudice to prosecution is not even a price,
leave alone one that would justify denial of a fair
opportunity to the accused to defend himself.”
13. In T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010, this
Court held, that 
while considering such an application, the court must
not imagine or assume what the deposition of the witness would be, in
the event that an application under Section 311 Cr.P.C. is allowed and
appreciate in its entirety, the said anticipated evidence. The Court
held as under:
“What should be the nature of evidence is not a matter
which should be left only to the discretion of the court. It
9Page 10
is the accused who knows how to prove his defence. It is
true that the court being the master of the proceedings
must determine as to whether the application filed by the
accused in terms of sub-section (2) of Section 243 of the
Code is bona fide or not or whether thereby he intends to
bring on record a relevant material. But ordinarily an
accused should be allowed to approach the court for
obtaining its assistance with regard to summoning of
witnesses, etc. If permitted to do so, steps therefor,
however, must be taken within a limited time. There
cannot be any doubt whatsoever that the accused should
not be allowed to unnecessarily protract the trial or
summon witnesses whose evidence would not be at all
relevant.”
14. The scope and object of the provision is to enable the Court to
determine the truth and to render a just decision after discovering all
relevant facts and obtaining proper proof of such facts, to arrive at a
just decision of the case. Power must be exercised judiciously and not
capriciously or arbitrarily, as any improper or capricious exercise of
such power may lead to undesirable results. An application under
Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the
case of the prosecution, or of the defence, or to the disadvantage of
the accused, or to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the opposite party.
Further, the additional evidence must not be received as a disguise for
retrial, or to change the nature of the case against either of the parties.
10Page 11
Such a power must be exercised, provided that the evidence that is
likely to be tendered by a witness, is germane to the issue involved.
An opportunity of rebuttal however, must be given to the other party.
The power conferred under Section 311 Cr.P.C. must therefore,
be invoked by the Court only in order to meet the ends of justice, for
strong and valid reasons, and the same must be exercised with great
caution and circumspection.
The very use of words such as ‘any Court’, ‘at any stage”, or
‘or any enquiry, trial or other proceedings’, ‘any person’ and ‘any
such person’ clearly spells out that the provisions of this section have
been expressed in the widest possible terms, and do not limit the
discretion of the Court in any way. There is thus no escape if the
fresh evidence to be obtained is essential to the just decision of the
case. The determinative factor should therefore be, whether the
summoning/recalling of the said witness is in fact, essential to the just
decision of the case.
15. Fair trial is the main object of criminal procedure, and it is the
duty of the court to ensure that such fairness is not hampered or
threatened in any manner. Fair trial entails the interests of the
11Page 12
accused, the victim and of the society, and therefore, fair trial includes
the grant of fair and proper opportunities to the person concerned, and
the same must be ensured as this is a constitutional, as well as a
human right. Thus, under no circumstances can a person’s right to
fair trial be jeopardized. Adducing evidence in support of the
defence is a valuable right. Denial of such right would amount to the
denial of a fair trial. Thus, it is essential that the rules of procedure
that have been designed to ensure justice are scrupulously followed,
and the court must be zealous in ensuring that there is no breach of the
same. (Vide: Talab Haji Hussain v. Madhukar Purshottam
Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh
& Anr. v. State of Gujarat & Ors., AIR 2004 SC 3114; Zahira
Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006
SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.),
(2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8
SCC 136; and Sudevanand v. State through C.B.I., (2012) 3 SCC
387)
16. The instant case is required to be examined in light of the
aforesaid settled legal propositions. The relevant part of the
chargesheet dated 19.7.2001 states, that the insurance claim filed by
12Page 13
the appellant was inflated and that therefore, the collusion of a Public
Servant in this respect attracted the provisions of Sections 420, 467,
468, 471 and 13 of the Act 1988. The chargesheet further revealed
that:
“Investigation has revealed that in order to obtain
insurance claim, accused Rita Singh (A-1) in her
capacity as Director, Mideast India Ltd. accused
Natasha Singh (A-2) in her capacity as Director,
approached IFCI and in view of the aforesaid necessity
for obtaining NOC from Financial Institutions/Banks,
Sh. S.S. Batra, Company Secretary, MIL vide letter dated
1.3.96 requested IFCI, New Delhi for issuing a NOC for
releasing a sum of Rs.3.75 crores as interim on account
payment. Sh. B.B. Huria the then Chief General
Manager, IFCI recorded a note on this letter for issuing
NOC subject to payment of over dues aggregating to Rs.
58 lacs. Despite the fact that there were over dues to the
tune of Rs.58,92,197/- against Mideast (India) Limited,
accused Y.V.Luthra dishonestly and fraudulently issued
NOC dated 1.3.96 for release of Rs.3.75 crores by the
insurance Company in respect of property at B-12/A
Phase II, Noida and he on 2.3.96 recorded a note in the
office copy of the letter dated 1.3.96 that NOC was
issued as there were no over dues as confirmed from
Accounts Department. This NOC dated 1.3.96 was
handed over to the representative of Mideast (India)
Limited, which was presented to Delhi Regional Office of
UIICL and on the strength of the said false NOC the
Insurance Company's Head Office at Chennai released a
payment of Rs.3.60 crores to Mideast (India) Limited
vide cheque No.454431 dated 8.3.96 which was credited
to the account of Mideast (India) Limited. A sum of Rs.15
lacs was retained out of the approved amount of Rs.3.75
crores towards payment to PNB Capital Finance.”
13Page 14
17. The Trial Court, while entertaining the application filed under
Section 311 Cr.P.C., had asked the appellant to provide a brief
summary of the nature of evidence that would be provided by the
defence witnesses mentioned in the application, and in keeping with
this, the appellant had furnished an application stating that the
appellant wished to examine one Shri B.B. Sharma who was one of
the panchnama witnesses, and who the prosecution had neither listed
nor examined in court. Therefore, the appellant wished to examine
him in defence. The second person was Shri S.S. Batra, Company
Secretary of the appellant, as he was the best person to provide greater
details of the company of which the appellant is the Director. The
third witness was a hand-writing expert, and it was necessary for the
defence to examine him regarding the correctness of the signatures of
the appellant and others, particularly with respect to the signatures of
the appellant.
18. Undoubtedly, an application filed under Section 311 Cr.P.C.
must be allowed if fresh evidence is being produced to facilitate a just
decision, however, in the instant case, the learned Trial Court
prejudged the evidence of the witness sought to be examined by the
appellant, and thereby cause grave and material prejudice to the
14Page 15
appellant as regards her defence, which tantamounts to a flagrant
violation of the principles of law governing the production of such
evidence in keeping with the provisions of Section 311 Cr.P.C.
By
doing so, the Trial Court reached the conclusion that the production of
such evidence by the defence was not essential to facilitate a just
decision of the case.
 Such an assumption is wholly misconceived, and
is not tenable in law as the accused has every right to adduce evidence
in rebuttal of the evidence brought on record by the prosecution. 
The
court must examine whether such additional evidence is necessary to
facilitate a just and proper decision of the case. 
The examination of
the hand-writing expert may therefore be necessary to rebut the
evidence of Rabi Lal Thapa (PW.40), and a request made for his
examination ought not to have been rejected on the sole ground that
the opinion of the hand-writing expert would not be conclusive.
 In
such a situation, the only issue that ought to have been considered by
the courts below, is whether the evidence proposed to be adduced was
relevant or not. 
Identical is the position regarding the panchnama
witness, and the court is justified in weighing evidence, only and only
once the same has been laid before it and brought on record. 
Mr. B.B.
Sharma, thus, may be in a position to depose with respect to whether
15Page 16
the documents alleged to have been found, or to have been seized,
were actually recovered or not, and therefore, from the point of view
of the appellant, his examination might prove to be essential and
imperative for facilitating a just decision of the case. 
19. The High Court has simply quoted relevant paragraphs from the
judgment of the Trial Court and has approved the same without giving
proper reasons, 
merely observing that the additional evidence sought
to be brought on record was not essential for the purpose of arriving at
a just decision. 
Furthermore, the same is
not a case where if the application
filed by the appellant had been allowed, the process would have taken much time. 
In fact, disallowing the said application, has caused delay.
No prejudice would have been caused to the prosecution, if the
defence had been permitted to examine said three witnesses. 
20. In view of above, the appeal succeeds and is allowed. The
judgment and order of the Trial Court, as well as of the High Court
impugned before us, are set aside. The application under Section 311
Cr.P.C. filed by the appellant is allowed. The parties are directed to
appear before the learned Trial Court on the 17th of May, 2013, and
16Page 17
the learned Trial Court is requested to fix a date on which the
appellant shall produce the three witnesses, and the same may
thereafter be examined expeditiously in accordance with law, and
without causing any further delay. Needless to say that the
prosecution will be entitled to cross examine them.
………………………………..................................J.
 (Dr. B.S. CHAUHAN)
………………………………...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 8, 2013
17

murder case =version of P.W.3, the so-called eye-witness, that when the High Court chose to disbelieve his version, insofar as it related to the other three accused on the same reasoning, it ought to have acquitted the appellant as well.= when the presence of P.W.3 at the place of happening of the occurrence was thus fully established with the support of P.W.4, as rightly concluded by the trial Court, as well as, the High Court, the only other question was whether the rest of the statement made by P.W.3 merited any acceptance. In that respect, we find that the High Court made a close scrutiny of the version of P.W.3 and has found that he was a totally independent witness and he had no axe to grind against the appellant. In fact, his statement that he could not identify the other accused, as rightly held by the Division Bench of the High Court, was a very fair statement. When he also belonged to the same village, there was no reason for him to implicate the appellant alone. Therefore, the conclusion of the High Court that such a fair statement made by the witness, namely, P.W.3 cannot be used to totally erase his version, was perfectly justified. Further, because he did not make any attempt to go to rescue of the deceased cannot be put against the witness, inasmuch as when four persons were assaulting the deceased with dangerous weapons that too in the night hour in the present day set up, one cannot expect an unarmed person to get himself entangled and suffer unnecessary harm to himself. Moreover, the occurrence took place late in the light at around 9 pm and, therefore, prudence might have dawned upon him not to fall a cheap prey at the hands of such criminals who were already assaulting a person with a dagger and other weapons. Equally his conduct in having come back to the place of occurrence in the early morning at around 7.30 am along with P.W.4 only shows his earnestness in disclosing what he witnessed on the previous night to the police. The recoveries made at the instance of the appellants also fully supported the case of the prosecution.- We say so, since we are convinced that the version of P.W.3 was wholly reliable and there was no reason to doubt his version in order to apply the principles set out in the above referred decisions. 20. We, therefore, do not find any merit in this appeal. The appeal fails and the same is dismissed.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2356 OF 2009
Palwinder Singh ….Appellant
VERSUS
State of Punjab ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal is directed against the judgment of the Division
Bench of Punjab & Haryana High Court at Chandigarh dated
12.09.2008 in Criminal Appeal No.350-DB of 1998.
2. The case of the prosecution as projected before the Court
below was that the deceased Dr. Jasbir Singh was running a
chemist shop in the village Wadala Banger, that on 20.08.1996
at 08:00 pm, the cousin of the deceased P.W.2 Gurmeet Singh,
along with one Baldev Singh wanted to meet the deceased,
that he was proceeding from Kalanaur in his scooter and that
near Mir Kachana, near a brick kiln, they found people
gathered around on the road and learnt that somebody was
Criminal Appeal No.2356 of 2009 1 of 14Page 2
murdered. When they went to the spot P.W.2 found that his
cousin Dr. Jasbir Singh was found dead with stab wounds and
blood was oozing out. He also found the scooter belonging to
the deceased lying nearby. He further found 100 rupee
currency notes were also lying scattered around the deceased.
P.W.2, thereafter, asked his companion Baldev Singh to remain
at the spot and proceeded to lodge a report, which came to be
registered as FIR No.115 under Section 302, 392 read with 34
IPC on 20.8.1996.
3. P.W.11 the Assistant Sub-Inspector visited the place of
occurrence, examined the body of the deceased, prepared the
inquest report and sent the body for postmortem. He also
collected the currency notes, which were in 100 rupee
denomination, the scooter and a rope measuring about 24
feet, which was lying near the dead body. Blood stained earth
was also collected from the spot.
4. P.W.1 Dr. Kulwant Singh, conducted the postmortem
examination on the body of the deceased on 21.08.1996.
Exhibit PA is the postmortem certificate issued by him
Criminal Appeal No.2356 of 2009 2 of 14Page 3
wherein, as many as 8 injuries were noted by him. At the
instance of P.W.14, Om Prakash, P.W.12, the Investigating
Officer, arrested four accused including the appellant on
26.08.1996. Based on the admissible portion of the
confessional statement of the appellant, as well as the other
accused, various recoveries were made including weapons,
cash, two gold rings with the inscription ‘JSK’ and one wrist
watch.
5. The prosecution examined 15 witnesses and marked PA
postmortem certificate, PV and PX Report of Chemical
Examiner and PY and PZ report of Serologists. When the
incriminating circumstances were put against the appellant
and the other accused under Section 313, they denied the
same and pleaded that they have been falsely implicated.
They also examined D.Ws.1 and 2 on their side. P.Ws.3 and 4
were examined as eye-witnesses of whom P.W.4 was treated
hostile.
6. Having considered the evidence of the prosecution, in
particular the version of P.Ws.1 to 4, the medical report, the
Criminal Appeal No.2356 of 2009 3 of 14Page 4
serologist report, chemical examiner’s report and the
recoveries made at the instance of the accused, the trial Court
found all the accused guilty of the offences alleged against
them and while convicting them for the said offences, imposed
the sentence of life with fine of Rs.2500/- each and in default
to undergo further rigorous imprisonment for six months under
Section 302 read with 34 IPC. For the offence proved under
Section 392 read with 34 IPC, sentence of 10 years rigorous
imprisonment with a fine of Rs.1000/- and in default to
undergo rigorous imprisonment for three months was imposed.
The sentences were directed to run concurrently.
7. On appeal by all the four accused, the High Court by the
judgment impugned in this appeal confirmed the conviction
and sentence imposed on the appellant and acquitted the rest
of the accused from all the charges.
8. We heard Mr. Vikas Mahajan, learned counsel for the appellant
and Ms. Bansuri Swaraj, learned counsel for the
respondent/State. Learned counsel for the appellant mainly
contended that there were too many contradictions in the
Criminal Appeal No.2356 of 2009 4 of 14Page 5
version of P.W.3, the so-called eye-witness, that when the High
Court chose to disbelieve his version, insofar as it related to
the other three accused on the same reasoning, it ought to
have acquitted the appellant as well.
The learned counsel
contended that the arrest of the appellant based on the
version of P.W.14, was not true, that since the appellant was
involved in some other criminal case earlier, he was falsely
implicated in the case on hand. Learned counsel contended
that there was no evidence to show that there was any
matching of blood group in order to hold that the appellant
was involved in the murder of the deceased.
9. As against the above submissions, Ms. Bansuri Swaraj, learned
counsel for the State contended that though P.W.4 was treated
hostile, his version insofar as his going along with P.W.3 to the
place of occurrence and the factum of the deceased being
attacked by certain persons as stated by PW-3 was fully
corroborated and consequently the conclusion reached by the
trial Court based on the eye-witness account of P.W.3,
supported by the version of P.W.4 to that extent read along
with the medical evidence for convicting appellant and the
Criminal Appeal No.2356 of 2009 5 of 14Page 6
confirmation of the same by the High Court in the impugned
judgment, does not call for interference.
10. Having heard learned counsel for the appellant as well
as the respondent/State and having bestowed our serious
consideration to the case pleaded and on perusal of the
material papers including the judgment of the High Court, as
well as the trial Court, we are also convinced that the
conviction and sentence imposed on the appellant cannot be
assailed.
11. The thrust of the submission of the learned counsel for
the appellant was that the whole case of the prosecution was
built upon P.W.3 and his version was wholly unreliable. The
learned counsel in support of his submission, placed reliance
upon the decisions reported in Govindaraju alias Govinda v.
State by Sriramapuram Police Station and another -
(2012) 4 SCC 722 paragraph 25 and Lallu Manjhi and
another v. State of Jharkhand - (2003) 2 SCC 401. By
relying upon the above-said decisions, learned counsel
Criminal Appeal No.2356 of 2009 6 of 14Page 7
contended that P.W.3 could not have witness the occurrence
as deposed by him.
12. We perused the evidence of P.W.3. The version of
P.W.3 was that on the date of occurrence, namely, 20.08.1996,
he went to Batala to see his sister who was married in
Sagarpura adjoining Batala, that around 8.00 p.m. he started
from his sister’s house and on the way he met P.W.4 who
agreed to provide a lift to P.W.3. It is his further version that
when both of them reached a brick kiln at Mir Kachana around
8.45 or 9.00 p.m. they saw the deceased as well as the
accused in a melee among whom the appellant was one of
them. He, however, stated that he was not able to identify the
rest of the accused. He also stated that appellant and the
three other persons were attacking the deceased by giving
dagger blows and that he saw the appellant giving such
specific dagger blows on the palm of the right hand of the
deceased, as well as, wrist on the chest. He also stated that
further dagger blows were also inflicted upon the deceased.
According to P.W.3, he could notice the above incident with
the aid of the head lamp of the scooter.
Criminal Appeal No.2356 of 2009 7 of 14Page 8
13. In the cross-examination, he stated that the other
accused muffled their faces and he was able to mention their
names with the help of the police personnel. He also stated
that it was 10 p.m. and, therefore, he left that place and on
the next day morning he first informed his family members
and along with P.W.4 he met police officials by around 8 or
8.40 a.m. at the place of occurrence where the body was still
lying where he also gave his statement. According to him,
none of the relatives of the deceased met him. He also fairly
stated that he did not make any attempt to rescue the
deceased.
14. P.W.4 who was treated as hostile supported the
version of P.W.3 upto the factum of assault on the deceased
by 4 or 5 persons near brick kiln of Mir Kachana, including the
lift which he extended to P.W.3 on Dera Baba Nanak Road near
Tonga stand. He also mentioned that both of them were going
to village Wadala Banger. He, however, stated that he could
not identify any of the accused who were assaulting the
Criminal Appeal No.2356 of 2009 8 of 14Page 9
deceased. He also expressed his inability to identify the
appellant.
15. P.W.1, Dr. Kulwant Singh identified the postmortem
certificate issued by him as Exhibit PA and deposed that he
noticed the following injuries on the body of the deceased:
“1. An incised wound C shaped 4 cm x ¼ cm on the
Palmer side of right wrist joint, muscle deep.
2. An incised wound 1½ x ¼ cm on the palmer side
of right hand in the middle, muscle deep.
3. An incised penetrating (both sides) wound
spindle shaped 3 cm x 1 cm on the front of right
shoulder joint, muscle deep.
4. An incised penetrating (both sides) wound
spindle shaped 2 ½ cm x 1 cm on right lateral
side and lower part of the chest on the interior
axillaries line 17 cm from the axilla.
On dissection underlying liyar was ruptured and
whole abdominal cavity was full of blood.
5. An incised penetrating wound (both side) spindle
shaped 2 ½ cm x 1 cm on the front and upper
part of left side of chest, 6 cm from midline 2 cm
below clavical.
On dissection: underlying left lung was ruptured
and thorax cavity is full of blood
6. An incised penetrating wound (both side) spindle
shaped 2 ½ cm x ½ cm on the front and left side
of chest 2 cm medial to the left nipple.
Criminal Appeal No.2356 of 2009 9 of 14Page 10
On dissection: underlying chest wall and
pericardieum was pierced. Heart was ruptured
and pericardieum was full of blood.
7. Incised penetrating wound ¾ cm x 1 ½ cm (both
side) spindle shaped on the left side of abdomen
19 cm from the umbilicus and parallel) do it.
On dissection: The abdominal cavity was
ruptured. Colon on left side was ruptured.
Abdominal cavity was full of blood.
8. 6 incised penetrating wounds (spindle shaped,
sharp from both sides) 2 cm x 1 cm, 3cm x 1½
cm, 2 ½ cm x 1cm, 2cm x ½ cm, 2 cm x ½ cm,
2cm x ½ cm on the back and left side of chest.
All were muscle deep.”
16. The Investigating Officer, P.W.12, deposed that based
on the interrogation, the appellant made a confessional
statement and the admissible portion of which was to the
effect that he had concealed one dagger used in the crime
near a Shisham tree near brick kiln of Mir Kachana, apart from
the concealment of one ring, one shirt and pant and Rs.1200/-
in the iron box lying in his house, which were recovered under
Exhibit PQ attested by Harjinder Singh. P.W.14 Om Prakash
deposed that all the four accused met him and confessed
about the killing of the deceased and that he produced them
before the police. P.W.5, the wife of the deceased Jasbir Singh
stated that her husband used to wear two gold rings with the
Criminal Appeal No.2356 of 2009 10 of 14Page 11
impression ‘JSK’, one Titan wrist watch and one purse and that
above articles were missing from the dead body of her
husband.
17. The above evidence led by the prosecution, disclosed
that the deceased died of ante-mortem injuries and that it was
a homicidal death, which was fully supported by the version of
P.W.1 Dr. Kulwant Singh.
The injuries were all grievous in
nature and the deceased met with gruesome death. When we
come to the evidence of P.W.3 it is true that with regard to the
identity of the rest of the accused other than the appellant, he
stated that he could name them only at the instance of the
police personnel.
As far as his presence at the place of
occurrence was concerned, his version read along with the
evidence of P.W.4 discloses that the presence of both of them
was beyond any pale of controversy. Even as regards the
assault on the deceased, the version of P.W.3 was fully
corroborated by P.W.4.
Therefore, when the presence of P.W.3
at the place of happening of the occurrence was thus fully
established with the support of P.W.4, as rightly concluded by
the trial Court, as well as, the High Court, the only other
Criminal Appeal No.2356 of 2009 11 of 14Page 12
question was whether the rest of the statement made by P.W.3
merited any acceptance.
 In that respect, we find that the High
Court made a close scrutiny of the version of P.W.3 and has
found that he was a totally independent witness and he had no
axe to grind against the appellant. 
In fact, his statement that
he could not identify the other accused, as rightly held by the
Division Bench of the High Court, was a very fair statement.
When he also belonged to the same village, there was no
reason for him to implicate the appellant alone. 
He could have
simply stated that he knew the other accused also and that he
had noted their presence at the place of occurrence.
Therefore, the conclusion of the High Court that such a fair
statement made by the witness, namely, P.W.3 cannot be used
to totally erase his version, was perfectly justified.
 Further,
because he did not make any attempt to go to rescue of the
deceased cannot be put against the witness, inasmuch as
when four persons were assaulting the deceased with
dangerous weapons that too in the night hour in the present
day set up, one cannot expect an unarmed person to get
himself entangled and suffer unnecessary harm to himself.
Moreover, the occurrence took place late in the light at around
Criminal Appeal No.2356 of 2009 12 of 14Page 13
9 pm and, therefore, prudence might have dawned upon him
not to fall a cheap prey at the hands of such criminals who
were already assaulting a person with a dagger and other
weapons.
  Equally his conduct in having come back to the place
of occurrence in the early morning at around 7.30 am along
with P.W.4 only shows his earnestness in disclosing what he
witnessed on the previous night to the police. 
18. Therefore, we find force in the submission of the
learned counsel for the State that the presence of P.W.3 along
with P.W.4 at the time when the occurrence took place and the
identity of the appellant by P.W.3 and describing his
involvement in the commission of the offence as narrated by
him, was rightly believed by the trial Court, as well as, by the
High Court and we are also convinced that such a reliance
placed upon the eye-witness account of P.W.3 for convicting
the appellant with the aid of other witnesses is perfectly
justified. 
The recoveries made at the instance of the
appellants also fully supported the case of the prosecution.
19. Having reached the above conclusion, we find that the
reliance placed upon the decision reported in Govindaraju
Criminal Appeal No.2356 of 2009 13 of 14Page 14
alias Govinda (supra), as well as, Lallu Manjhi (supra) will
be of no avail to the appellant. 
We say so, since we are
convinced that the version of P.W.3 was wholly reliable and
there was no reason to doubt his version in order to apply the
principles set out in the above referred decisions. 
20. We, therefore, do not find any merit in this appeal. The
appeal fails and the same is dismissed. 
………….……….…………………………..J.
[Dr. B.S. Chauhan]
...……….…….………………………………J.
 [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
May 08, 2013.
Criminal Appeal No.2356 of 2009 14 of 14

Sections 302, 376 and 201 of the Indian Penal Code, 1860 Pooja, a 4 year old girl, went missing on 22.5.2001. Her family members searched for her relentlessly and also reported the matter to the police. She was eventually found lying dead on the roof of a lonely house on 24.5.2001. Rohtash (PW.1), father of the deceased, submitted a written report (Ex.P-1) of the incident at Police Station, Kotputli and upon the receipt of such report, a case under Sections 302 and 201 IPC was registered, and investigation pertaining to the same also commenced. Thereafter, postmortem was performed on the dead body, necessary memos were drawn, and statements of witnesses were recorded. The appellant was arrested on 27.5.2001 and upon completion of the investigation, chargesheet was filed. = “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”= if the discrepancies are material it would be safer to err in acquitting than in convicting the accused. = a significant omission in the statement of a witness recorded under Section 161 Cr.P.C. may amount to a major contradiction.= Thus, we find force in the submissions advanced by Ms. Makhija, learned Amicus Curiae, that evidence produced by the prosecution had been very shaky and the chain of links connecting the appellant with the crime appears inconclusive. The circumstantial evidence is completely wanting in this respect. To accept the description of the evidence collected as flimsy, or no evidence would be too short for convicting the appellant for the offence, as many issues/circumstances virtually remained unexplained. In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the appellant are set aside. The appellant be released forthwith unless wanted in some other case. Before parting with the case, we record our appreciation to Ms. Vibha Datta Makhija, Advocate who rendered invaluable service as Amicus Curiae in disposal of these appeals.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 931-932 of 2009
Raj Kumar Singh @ Raju @ Batya …Appellant
Versus
State of Rajasthan …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned
judgment and order dated 4.1.2008, passed by the High Court of
Rajasthan (Jaipur Bench) in D.B. Crl.A. Nos. 1250 and 1749 of 2003
by way of which, the High Court has dismissed the aforesaid appeals
and affirmed the judgment and order dated 5.8.2003 of the learned
Additional Sessions Judge (Fast Track) No. 1, Jaipur District in
Sessions Case No. 19 of 2002 by way of which, the appellant stood
convicted for the offences punishable under Sections 302, 376 and
Page 2
201 of the Indian Penal Code, 1860, (hereinafter referred to as `the
IPC’), and was awarded a sentence of life imprisonment alongwith a
fine of Rs.1,000/- under Section 302 IPC; 10 years rigorous
imprisonment alongwith a fine of Rs.1,000/- under Section 376 IPC,
and rigorous imprisonment of 5 years alongwith a fine of Rs.500/-
under Section 201 IPC, and in default of depositing such fine, to
further suffer rigorous imprisonment for a period of six months.
The
substantive sentences, however, were ordered to run concurrently.
2. As per the case of the prosecution, the necessary facts related to
the present case are as under:
A. Pooja, a 4 year old girl, went missing on 22.5.2001.
Her family
members searched for her relentlessly and also reported the matter to
the police.
She was eventually found lying dead on the roof of a
lonely house on 24.5.2001. 
Rohtash (PW.1), father of the deceased,
submitted a written report (Ex.P-1) of the incident at Police Station,
Kotputli and upon the receipt of such report, a case under Sections
302 and 201 IPC was registered, and investigation pertaining to the
same also commenced. 
Thereafter, postmortem was performed on the
dead body, necessary memos were drawn, and statements of witnesses
2Page 3
were recorded. 
The appellant was arrested on 27.5.2001 and upon
completion of the investigation, chargesheet was filed. 
B. The trial court concluded the trial and convicted the appellant
under Sections 302, 376 and 201 IPC, vide impugned judgment and
order dated 5.8.2003 and awarded the sentence as referred to
hereinabove .
C. Aggrieved, the appellant filed an appeal in the High Court
which was dismissed vide impugned judgment and order dated
4.1.2008.
Hence, these appeals.
3. Ms. Vibha Datta Makhija, learned Amicus Curiae, has
submitted that the circumstances relied upon by the prosecution have
not been satisfactorily established, and that additionally, the
circumstances said to have been established against the appellant do
not provide a complete chain that is required to prove the guilt of the
appellant. There are material contradictions in the depositions of
Rohtash (PW.1), Indira (PW.2), Kalawati (PW.3) and Naurang
(PW.4), who are father, mother, grandmother and grandfather of the
deceased, respectively. Their depositions have wrongly been relied
upon by the courts below, as no reliance can be placed on their
3Page 4
evidence. Moreover, the statements of the witnesses are self
contradictory, and the standard of proof required to convict a person
in a case of circumstantial evidence, has not been met either. The law
requires, that the circumstances relied upon in support of the
conviction must be fully established, and that the chain of evidence
furnished by those circumstances must be so complete, so as not to
leave any reasonable doubt for a conclusion, consistent with the
innocence of the accused. The circumstances from which the
conclusion of guilt is to be drawn, must not only be fully established,
but also be of a conclusive nature and consistent only with the
hypothesis of the guilt of the accused. They must not be capable of
being explained by way of any other hypothesis except the guilt of the
accused, and when all the said circumstances are collectively
considered, the same must lead only to the irresistible conclusion that
the accused alone is the perpetrator of the crime in question. Thus,
the appeals deserve to be allowed.
4. Per contra Ms. Pragati Neekhra, learned counsel appearing on
behalf of the State, has opposed the appeals, contending that the
judgments of the courts below do not warrant any interference. The
circumstances relied upon by the courts below stand fully established,
4Page 5
the chain of circumstances is complete, and every link in the said
chain indicates that the appellant alone, could be the accused. The
discrepancies in the evidence of the witnesses are so minor, that none
of the same go to the root of the case and disturb such a conclusion as
mentioned hereinabove. The medical evidence also fully supports the
ocular evidence, and there is no contradiction between the two. The
appellant had approached the family of the victim and asked them to
pay to him, a sum of Rs.2,000/-, as he would bring Pooja back to
them. The injuries found on the person of the deceased and the
appellant-accused co-relate him to the evidence relating to the
recoveries, clearly indicating that the appellant alone is guilty of the
offence. Thus, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel and perused the record.
There is no ocular version of the incident and the entire case of
the prosecution is based on circumstantial evidence.
6. The courts below have found the following circumstances
forming an incriminating chain against the appellant:
I. Conduct of the appellant.
5Page 6
II. False explanation given by the appellant.
III. Evidence relating to injuries on the person of the deceased.
IV. Evidence relating to injuries on the appellant.
7. The depositions with respect to the conduct of the appellant
have been considered by the courts below, and 4 witnesses (family
members of the deceased) have been examined in this respect. All 4
have deposed that the appellant had approached them and had asked
them for the payment of a sum of Rs.2,000/-, to bring Pooja home,
and this circumstance has thus been held to have been proved against
him.
8. We have also been taken through the evidence of the witnesses
on this aspect.
Rohtash (PW.1), the father of the deceased, has deposed that
they had reported the case to the police in the morning at around 8 O’
Clock as Pooja was found to be missing. The appellant had thereafter
arrived at around 4 O’Clock in the evening, and had asked Rohtash
(PW.1), to pay to him, a sum of Rs.2,000/-, stating that he would
bring Pooja back. They had informed the police about this fact while
lodging the FIR. In his cross examination, Rohtash (PW.1) admitted
6Page 7
that the issue of the appellant asking for a sum of Rs.2,000/- had not
been mentioned in the FIR. Then the witness himself voluntarily
deposed, that the sum of Rs.2,000/- was asked for after the said report
had already been written. He further deposed that he had never seen
the appellant before he had asked him for the said amount of
Rs.2,000/-. The witness also deposed that the police had not made
any inquiry from him in this regard, and then made a statement to the
contrary alleging that the police had questioned him vigorously. It
may also be pertinent to mention that in his deposition, Rohtash
(PW.1) was unable to mention the particular date on which the
appellant had approached his family, and had asked for a sum of
Rs.2,000/-.
9. Indira (PW.2), the mother of the deceased, Kalawati (PW.3),
grandmother and Naurang (PW.4), grandfather of Pooja (deceased)
had deposed that Rohtash (PW.1) had registered a report in the police
station at 8 O’Clock about the fact that their daughter Pooja had gone
missing and further deposed that, at about 4 O’Clock in the evening,
on the same day, one boy had come to her and had asked her to pay to
him a sum of Rs.2,000/-, as in return for the same he would bring
back her daughter. Indira (PW.2) identified the appellant in court as
7Page 8
the person who had asked to pay the said sum of Rs.2,000/-. All of
them have further deposed that he had been caught by them and had
been handed over to the police. In her cross-examination, she has
admitted that the appellant had also been beaten up by them, and
thereafter, had been handed over to the police on the same day.
If the evidence of the 4 witnesses on this very issue is carefully
examined, it becomes evident that material contradictions exist
therein, and that further, not only do such material contradictions
exist, but embellishments and improvements have also been made to
the version of events. In the event that the appellant had come to them
and asked them for money, and they had caught hold of him and
called the police, and the police had arrested him, there exists no
rational explanation as regards why such a pertinent fact has been
excluded from the FIR. Secondly, in case the witnesses i.e. the family
members of the deceased had caught hold of the appellant, why has
PW.4, grandfather of the deceased, deposed that the appellant was
shown to them immediately after his arrest, if the witnesses had in fact
caught hold of him, and had themselves handed him over to the
police, the question of the police showing the appellant to them could
not arise.
8Page 9
10. All recoveries were made on 24.5.2001, and the appellant was
identified as the accused only on the ground that four witnesses i.e.
PWs. 1 to 4, had deposed to the effect that he had asked them for a
sum of Rs.2,000/- to bring back their child. No one has explained
how the appellant was actually arrested. PWs.1 to 4 have made
categorical statements to the effect that when the appellant had asked
them for money to bring back the girl, they had caught hold of him
and handed him over to the police on 24.5.2001 itself. However, Gopi
Singh (PW.14), the Investigating Officer has made it clear that the
appellant had been arrested on 27.5.2001 by Ext. P-14, and that there
was no independent witness for the said arrest. An FIR was lodged on
24.5.2001 without naming any person, as the FIR itself reveals that
some one had killed Pooja and had dumped her in the abandoned
dharamshala.
Naurang (PW.4), grandfather of Pooja has deposed that the
police had shown the accused to them as soon as he was arrested.
Therefore, there exists a material contradiction as regards the issue of
the arrest of the appellant.
We have examined the original documents/records. There is
over-writing on the arrest memo and Gopi Singh (PW.14), the
9Page 10
Investigating Officer has admitted in his cross-examination that there
did in fact exist some over-writing underneath the signatures in Ext.
D-1, and that the same, i.e., the over-writing, did not bear his initials.
11. So far as the recovery of the clothes of the accused which were
recovered with blood and semen stains is concerned, there are
numerous contradictions. Hari Singh (PW.9), the constable who made
the said recoveries has deposed that on 27.5.2001, he had made the
recovery of a light brown shirt, a white coloured vest on which there
were blood like stains, one cream coloured underwear on which blood
like stains and semen stains were found. The same were recovered
from the appellant. Therefore, it is clear that the recoveries of the
clothes of the appellant were made on 27.5.2001, and not on
24.5.2001. If the appellant had in fact been arrested as per the version
of events narrated by PWs.1 to 4 on 24.5.2001, there would be no
occasion for the police to make the recovery of his clothes on
27.5.2001. The statement of Rohtash (PW.1) was recorded on
27.5.2001, though the same was shown as recorded on 24.5.2001, and
the statement of all other witnesses was recorded on 27.5.2001. It is
thus, difficult to understand how such a material discrepancy in the
evidence has been ignored by the courts below while convicting the
10Page 11
appellant. Exts.P-23 to P-39 are the relevant photographs. They do
not bear the signature of any person and therefore, it is difficult to
comprehend how these material exhibits were sent for FSL report.
The High Court has doubted and in fact disbelieved the
recovery of clothes at the instance of the appellant, and has remarked
that the evidence of such recovery was fabricated and false.
12. The postmortem report (Ex.P-21) revealed the following antimortem injuries on her body:
 “Body swollen, Abdomen distended, eyes protruded, lips
swollen, no maggots over body, skin pealed off here and
there, mouth semi opened, bleeding from both nostrils
and Lt. ear, PM rigidly absent due to second stage of
relaxer, PM lividity present over dependent parts of
body, back of chest presents and both buttocks blush
black, labia majora swollen and teared, hymen teared,
vaginal walls teared. Rectum protruding through
posterior vagina wall, posterior fornix ruptured.
In the opinion of Medical Board the cause of death
was neurogenic shock, coma due to head injury.”
13. As already described, the dead body of Pooja was subjected to
an autopsy by the Medical Board. Dr. Laxman Singh (PW.12)
deposed that the body was swollen, abdomen distended, eyes
protruding, lips swollen, no maggots over body, skin pealed off here
and there, mouth semi opened, bleeding from both nostrils and left
11Page 12
ear. PM rigidly absent due to second stage of relaxation, PM lividity
present over dependent parts of body, back of chest present and both
buttocks bluish black. Labia majora swollen and hymen torn. Vaginal
walls torn. Rectum protruding through posterior vaginal wall,
posterior fornix ruptured. The cause of death was neurogenic shock,
coma due to head injury. The testimony of Dr. Laxman Singh clearly
reveals that the innocent helpless soul Pooja was first subjected to
monstrous sexual assault, and was then mercilessly killed by inflicting
injuries on her head so that there remains no direct evidence against
culprit.
14. The appellant after his arrest on 27.5.2001 was medically
examined by Dr. Laxman Singh (PW.12) on May 28, 2001 and vide
his medical examination report (Ext. P-22), an abrasion of the size of
0.2 x 0.2 cm on the corona penis was found. The body of the penis
and glands therein were swollen and tenderness and inflammation was
present. There was nothing to suggest that the appellant was incapable
of indulging in intercourse.
15. The evidence of Daulat Ram (PW.7), the driver had been to the
extent that on 22.5.2001, the appellant had travelled with him to
12Page 13
certain places and had slept in his jeep that night and did not go to his
house, and the appellant could not furnish any explanation as to why
he had slept in the jeep and did not go to his house. Therefore, his
conduct was suggestive of the fact that the offence had been
committed by him.
The trial court also doubted the conduct of the appellant for the
reason that he had slept in the jeep though he was neither the driver of
a jeep nor the servant of Daulat Ram (PW.7), the driver. The High
Court had taken note of the appellant’s statement under Section 313 of
Code of Criminal Procedure, 1973, (hereinafter referred to as
`Cr.P.C.’), wherein the appellant had replied that the aforesaid
deposition was wrong, and held that explanation furnished by him was
false.
16. The courts below have proceeded on the basis that there was no
evidence of enmity against any of the witnesses which may lead to the
presumption that the appellant has been falsely implicated in the case.
17. Suspicion, however grave it may be, cannot take the place of
proof, and there is a large difference between something that `may be’
proved and `will be proved’. In a criminal trial, suspicion no matter
13Page 14
how strong, cannot and must not be permitted to take place of proof.
This is for the reason, that the mental distance between `may be’ and
`must be’ is quite large and divides vague conjectures from sure
conclusions. In a criminal case, the court has a duty to ensure that
mere conjectures or suspicion do not take the place of legal proof.
The large distance between `may be’ true and `must be’ true, must be
covered by way of clear, cogent and unimpeachable evidence
produced by the prosecution, before an accused is condemned as a
convict, and the basic and golden rule must be applied. In such cases,
while keeping in mind the distance between `may be’ true and `must
be’ true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the touchstone of
dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case, as well as the
quality and credibility of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided and if the facts and
circumstances of a case so demand, then the benefit of doubt must be
given to the accused, keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a fair doubt that is
based upon reason and common sense. (Vide: Hanumant Govind
14Page 15
Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji
Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC
2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR
1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC
702; Ashish Batham v. State of M.P., AIR 2002 SC 3206; Narendra
Singh & Anr. v. State of M.P., AIR 2004 SC 3249; State through
CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh
Harijan v. State of U.P., AIR 2012 SC 1979)
18. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC
2773, this Court observed as under:
"Another golden thread which runs through the web of
the administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the
case one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to
the accused should be adopted. This principle has a
special relevance in cases where in the guilt of the
accused is sought to be established by circumstantial
evidence."
19. In R. v. Hodge 168 ER 1163, the court held that before a
person is convicted entirely on circumstantial evidence, the court must
be satisfied not only that those circumstances were consistent with his
having committed the act, but also that the facts were such, so as to be
15Page 16
inconsistent with any other rational conclusion other than the one that
the accused is the guilty person.
20. In Sharad Birdhichand Sarda (Supra), this Court held as
under:
“The facts so established should be consistent only with
the hypothesis of the guilt of the accused. There should
not be explainable on any other hypothesis except that
the accused is guilty. The circumstances should be of a
conclusive nature and tendency. There must be a chain
of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence
of the accused and must show that in all human
probability the act must have been done by the accused."
A similar view has been reiterated in Krishnan v. State
Represented by Inspector of Police, (2008) 15 SCC 430; Pawan v.
State of Uttaranchal, etc. etc. (2009) 15 SCC 259; and State of
Maharashtra v. Mangilal, (2009) 15 SCC 418.
21. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200,
this Court held, that if the circumstances proved in a case are
consistent either with the innocence of the accused, or with his guilt,
then the accused is entitled to the benefit of doubt. When it is held that
a certain fact has been proved, then the question that arises is whether
such a fact leads to the inference of guilt on the part of the accused
16Page 17
person or not, and in dealing with this aspect of the problem, benefit
of doubt must be given to the accused and a final inference of guilt
against him must be drawn only if the proved fact is wholly
inconsistent with the innocence of the accused, and is entirely
consistent with his guilt.
Similarly, in Sharad Birdhichand Sarda (Supra), this Court
held as under:
 “Graver the crime, greater should be the standard of
proof. An accused may appear to be guilty on the basis
of suspicion but that cannot amount to legal proof. When
on the evidence two possibilities are available or open,
one which goes in the favour of the prosecution and the
other benefits an accused, the accused is undoubtedly
entitled to the benefit of doubt. The principle has special
relevance where the guilt or the accused is sought to be
established by circumstantial evidence.
22. In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. & J.W. Johnson & Co. 1872, it has been
explained as under:
“In matters of direct testimony, if credence be given to
the relators, the act of hearing and the act of belief,
though really not so, seem to be contemporaneous. But
the case is very different when we have to determine
upon circumstantial evidence, the judgment in respect of
which is essentially inferential. There is no apparent
necessary connection between the facts and the
inference; the facts may be true, and the inference
erroneous, and it is only by comparison with the results
17Page 18
of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our
conclusions. ·
The term PRESUMPTIVE is frequently used as
synonymous with CIRCUMSTANTIAL EVIDENCE; but
it is not so used with strict accuracy, The word"
presumption," ex vi termini, imports an inference from
facts; and the adjunct "presumptive," as applied to
evidentiary facts, implies the certainty of some relation
between the facts and the inference. Circumstances
generally, but not necessarily, lead to particular
inferences; for the facts may be indisputable, and yet
their relation to the principal fact may be only apparent,
and not real; and even when the connection is real, the
deduction may be erroneous. Circumstantial and
presumptive evidence differ, therefore, as genus and
species.
The force and effect of circumstantial evidence
depend upon its incompatibility with, and incapability of,
explanation or solution upon any other supposition than
that of the truth of the fact which it is adduced to prove;
the mode of argument resembling the method of
demonstration by the reductio ad absurdum.”
23. Thus, in view of the above, the Court must consider a case of
circumstantial evidence in light of the aforesaid settled legal
propositions. In a case of circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular inferences.
The Court has to draw an inference with respect to whether the chain
of circumstances is complete, and when the circumstances therein are
collectively considered, the same must lead only to the irresistible
18Page 19
conclusion, that the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be of a
conclusive nature, and consistent only with the hypothesis of the guilt
of the accused.
24. This Court in Babu v. State of Kerala, (2010) 9 SCC 189 has
dealt with the doctrine of innocence elaborately and held as under:
“27. Every accused is presumed to be innocent unless
the guilt is proved. The presumption of innocence is a
human right. However, subject to the statutory
exceptions, the said principle forms the basis of criminal
jurisprudence. For this purpose, the nature of the
offence, its seriousness and gravity thereof has to be
taken into consideration. The courts must be on guard to
see that merely on the application of the presumption,
the same may not lead to any injustice or mistaken
conviction. Statutes like the Negotiable Instruments Act,
1881; the Prevention of Corruption Act, 1988; and the
Terrorist and Disruptive Activities (Prevention) Act,
1987, provide for presumption of guilt if the
circumstances provided in those statutes are found to be
fulfilled and shift the burden of proof of innocence on the
accused. However, such a presumption can also be
raised only when certain foundational facts are
established by the prosecution. There may be difficulty in
proving a negative fact.
28. However, in cases where the statute does not
provide for the burden of proof on the accused, it always
lies on the prosecution. It is only in exceptional
circumstances, such as those of statutes as referred to
hereinabove, that the burden of proof is on the accused.
The statutory provision even for a presumption of guilt of
the accused under a particular statute must meet the tests
19Page 20
of reasonableness and liberty enshrined in Articles 14
and 21 of the Constitution.”
25. In a criminal trial, the purpose of examining the accused person
under Section 313 Cr.P.C., is to meet the requirement of the principles
of natural justice i.e. audi alterum partem. This means that the
accused may be asked to furnish some explanation as regards the
incriminating circumstances associated with him, and the court must
take note of such explanation. In a case of circumstantial evidence,
the same is essential to decide whether or not the chain of
circumstances is complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine the accused,
and to seek his explanation as regards the incriminating material that
has surfaced against him. The circumstances which are not put to the
accused in his examination under Section 313 Cr.P.C., cannot be used
against him and have to be excluded from consideration.
26. In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC
2100, this Court observed as under:
“…if there is no evidence or circumstance appearing in
the prosecution evidence implicating the accused with
the commission of the crime with which he is charged,
there is nothing for the accused to explain and hence his
examination under Section 313 of the Code would be
20Page 21
wholly unnecessary and improper. In such a situation
the accused cannot be questioned and his answers
cannot be used to supply the gaps left by witnesses in
their evidence.”
27. In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582,
this Court held:
“The statement of the accused under Section 313 CrPC
is not a substantive piece of evidence. It can be used for
appreciating evidence led by the prosecution to accept or
reject it. It is, however, not a substitute for the evidence
of the prosecution. If the exculpatory part of his
statement is found to be false and the evidence led by the
prosecution is reliable, the inculpatory part of his
statement can be taken aid of to lend assurance to the
evidence of the prosecution. If the prosecution evidence
does not inspire confidence to sustain the conviction of
the accused, the inculpatory part of his statement under
Section 313 CrPC cannot be made the sole basis of his
conviction.”
28. In Dehal Singh v. State of H.P., AIR 2010 SC 3594, this Court
observed:
“Statement under Section 313 of the Code of Criminal
Procedure is taken into consideration to appreciate the
truthfulness or otherwise of the case of the prosecution
and it is not an evidence. Statement of an accused under
Section 313 of the Code of Criminal Procedure is
recorded without administering oath and, therefore, the
said statement cannot be treated as evidence within the
meaning of Section 3 of the Evidence Act. The appellants
have not chosen to examine any other witness to support
this plea and in case none was available they were free
to examine themselves in terms of Section 315 of the
21Page 22
Code of Criminal Procedure which, inter- alia, provides
that a person accused of an offence is a competent
witness of the defence and may give evidence on oath in
disproof of the charges. There is reason not to treat the
statement under Section 313 of the Code of Criminal
Procedure as evidence as the accused cannot be crossexamined with reference to those statements. However,
when an accused appears as a witness in defence to
disprove the charge, his version can be tested by his
cross-examination.”
29. In State of M.P. v. Ramesh, (2011) 4 SCC 786, this Court held
as under:
“The statement of the accused made under Section 313
CrPC can be taken into consideration to appreciate the
truthfulness or otherwise of the prosecution case.
However, as such a statement is not recorded after
administration of oath and the accused cannot be crossexamined. his statement so recorded under Section 313
CrPC cannot be treated to be evidence within the
meaning of Section 3 of the Evidence Act. 1872. Section
315 CrPC enables an accused to give evidence on his
own behalf to disprove the charges made against him.
However, for such a course, the accused has to offer in
writing to give his evidence in defence. Thus, the accused
becomes ready to enter into the witness box, to take oath
and to be cross-examined on behalf of the prosecution
and/or of the accomplice, if it is so required.”
30. In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114,
this Court observed as under:
“It is true that the statement under Section 313 CrPC
cannot be the sole basis for conviction of the accused but
certainly it can be a relevant consideration for the courts
22Page 23
to examine, particularly when the prosecution has
otherwise been able to establish the chain of events….”
31. In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759,
this Court held:
“The proper methodology to be adopted by the Court
while recording the statement of the accused under
Section 313 CrPC is to invite the attention of the accused
to the circumstances and substantial evidence in relation
to the offence, for which he has been charged and invite
his explanation. In other words, it provides an
opportunity to an accused to state before the court as to
what is the truth and what is his defence, in accordance
with law. It was for the accused to avail that opportunity
and if he fails to do so then it is for the court to examine
the case of the prosecution on its evidence with reference
to the statement made by the accused under Section 313
CrPC.”
32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012
SC 1357, this Court held as under:
“It is a settled principle of law that the obligation to
put material evidence to the accused under Section 313
CrPC is upon the court. One of the main objects of
recording of a statement under this provision of CrPC is
to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once
he does not avail this opportunity, then consequences in
law must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313
CrPC, insofar as it supports the case of the prosecution,
23Page 24
can be used against him for rendering conviction. Even
under the latter, he faces the consequences in law.”
33. In Munish Mubar v. State of Haryana, AIR 2013 SC 912,
this Court, while dealing with the issue of the examination of the
accused under Section 313 Cr.P.C. held, that the accused has a duty to
furnish an explanation in his statement under Section 313 Cr.P.C. as
regards any incriminating material that has been produced against
him. Such a view was taken in light of the fact that there existed
evidence to show that the accused had parked his car at the Delhi
Airport, and that the same had remained there for several hours on the
date of commission of the crime in question. Thus, in light of the fact
that such a fact had been established, and that such circumstances also
simultaneously existed, the accused was expected to explain the
reason for which he had gone to the airport, and why the car had
remained parked there for several hours.
34. In Ramnaresh (Supra), this Court had taken the view that if an
accused is given the freedom to remain silent during the investigation,
as well as before the Court, then the accused may choose to maintain
silence or even remain in complete denial, even at the time when his
24Page 25
statement under Section 313 Cr.P.C. is being recorded. However, in
such an event, the Court would be entitled to draw an inference,
including such adverse inference against the accused, as may be
permissible in accordance with law. While such an observation has
been made, this part of the judgment must be read alongwith the
subsequent observation of the court stating that if he keeps silent or
furnishes an explanation, in both cases, the same can be used against
him for rendering a conviction, in so far as it supports the case of the
prosecution.
35. In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this
Court held, that it is equally true that a statement under Section 313
Cr.P.C., simpliciter cannot normally be made the basis for convicting
the accused. But where the statement of the accused under Section
313 Cr.P.C. is in line with the case of the prosecution, then the heavy
onus of providing adequate proof on the prosecution, that is placed is
to some extent, reduced.
36. In view of the above, the law on the issue can be summarised to
the effect that statement under Section 313 Cr.P.C. is recorded to meet
the requirement of the principles of natural justice as it requires that
25Page 26
an accused may be given an opportunity to furnish explanation of the
incriminating material which had come against him in the trial.
However, his statement cannot be made a basis for his conviction. His
answers to the questions put to him under Section 313 Cr.P.C. cannot
be used to fill up the gaps left by the prosecution witnesses in their
depositions. Thus, the statement of the accused is not a substantive
piece of evidence and therefore, it can be used only for appreciating
the evidence led by the prosecution, though it cannot be a substitute
for the evidence of the prosecution. In case the prosecution’s evidence
is not found sufficient to sustain conviction of the accused, the
inculpatory part of his statement cannot be made the sole basis of his
conviction. The statement under Section 313 Cr.P.C. is not recorded
after administering oath to the accused. Therefore, it cannot be treated
as an evidence within the meaning of Section 3 of the Evidence Act,
though the accused has a right if he chooses to be a witness, and once
he makes that option, he can be administered oath and examined as a
witness in defence as required under Section 315 Cr.P.C.
An adverse inference can be taken against the accused only and
only if the incriminating material stood fully established and the
accused is not able to furnish any explanation for the same. However,
26Page 27
the accused has a right to remain silent as he cannot be forced to
become witness against himself.
37. We have considered the case in the light of the aforesaid settled
legal propositions and reached the following inescapable inferences:
I. Kalawati (PW.3), grandmother of the deceased Pooja, has
stated that Indira (PW.2), mother of the deceased Pooja, had
removed her silver Kada and had placed it near Pooja. The said
Kada has however, not been seized from either the place of
occurrence, from their cart, or from the appellant.
II. Witnesses PW.1 to PW.4 have submitted, that the pant, shirt,
vest, brief and shoes of the appellant were found lying near the
dead body of Pooja. This statement has been disbelieved in its
entirety by the High Court, and to such extent, it has been held
all the witnesses have given a false statement.
III. There has been an evidence in respect of recovery of blood
stained clothes of the appellant which stand falsified by the
deposition of Daulatram (PW.7) who had categorically deposed
that when he woke him up while sleeping in the jeep, his
clothes did not have any blood stained. Hari Singh (PW.9)
27Page 28
admitted in his deposition that in Arrest Memo, Ex.P-14 there
was no mention that there was any blood on the body of the
accused or his clothes.
IV. As per the evidence of PWs.1 to 4, the appellant was
apprehended by them when he came and made a demand of
Rs.2,000/- to bring Pooja back on 23.5.2001 and was handed
over to the police. There could be no explanation by the
Investigating Officer as how his arrest had been shown on
27.5.2001.
V. Naurang (PW.4) has categorically deposed that the appellant
was shown to such witnesses immediately after his arrest by the
police.
VI. The High Court has taken the view that the appellant has also
furnished a false explanation. Daulatram (PW.7) was a
prosecution witness and the appellant has submitted that he has
deposed falsely. Such a statement made by the appellant could
not be held to be a false explanation.
VII. The discovery of the body of Pooja by Kalawati (PW.3) is also
grossly suspect, owing to the fact that it is neither natural to
28Page 29
defecate on the roof of a house, nor to go to the roof of a vacant
building in the wee hours of the morning.
VIII. Even if the missing report was filed at 8 O’Clock in the
morning of 23.5.2001 and the appellant had approached the
witnesses to pay to him a sum of Rs.2,000/-, to bring Pooja
back the very same day, there is no reason why the said fact is
found to be missing in the FIR that was lodged on 24.5.2001.
IX. In their statements recorded under Section 161 Cr.P.C.,
witnesses PW.1 to PW.4 have expressed the doubt that they had
with respect to the appellant. It is pertinent to note however,
that all the statements were recorded on 27.5.2001 and there is
no explanation for why such a statement is missing in the FIR
lodged on 24.5.2001.
X. Statement of Rohtash (PW.1) was shown to have been recorded
on 27.5.2001 though the same was recorded on 24.5.2001 as is
evident from the overwriting in the original record.
XI. The recoveries are also highly unbelievable as Daulatram
(PW.7) and another witness Ummaid (PW.8), who had been
declared hostile, have deposed in the court stating that they had
been asked to sign on blank papers. In such circumstances, why
29Page 30
was Daulatram (PW.7) also not declared hostile by the
prosecution?
XII. Doctor Laxman Singh (PW.12), has deposed before the court,
stating that the appellant had on his person, several injuries and
that some of the said injuries that were on his right leg, could
have been caused by a blunt weapon. No explanation was
furnished by the prosecution with respect to such injuries.
Moreover, even if some injuries were found on the private parts
of the appellant, the same does not conclusively connect him to
the crime.
XIII. Gopi Singh (PW.14), the investigating officer, has deposed in
court, that a white semen like substance was seized from the
spot. Such a statement is not possible to be taken as true for the
reason that the colour of the semen is said to have remained
white even after the lapse of several hours.
38. In the instant case, there have been major contradictions/
improvements/embellishments in the deposition of witnesses which
cannot be ignored when they are examined in the correct perspective.
The chain of links connecting the appellant with the crime appears
inconclusive. It is a settled legal proposition that, while appreciating
30Page 31
the evidence of a witness, minor discrepancies on trivial matters,
which do not affect the core of the case of the prosecution, must not
prompt the court to reject the evidence thus provided, in its entirety.
The irrelevant details which do not in any way corrode the credibility
of a witness, cannot be labeled as omissions or contradictions.
Therefore, the courts must be cautious and very particular, in their
exercise of appreciating evidence. The approach to be adopted is, if
the evidence of a witness is read in its entirety, and the same appears
to have in it, a ring of truth, then it may become necessary for the
court to scrutinize the evidence more particularly, keeping in mind the
deficiencies, drawbacks and infirmities pointed out in the said
evidence as a whole, and evaluate them separately, to determine
whether the same are completely against the nature of the evidence
provided by the witnesses, and whether the validity of such evidence
is shaken by virtue of such evaluation, rendering it unworthy of belief.
“Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version,
when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”
It is in fact, the entirety of the situation
which must be taken into consideration. While appreciating the
31Page 32
evidence, the court must not attach undue importance to minor
discrepancies, rather must consider broad spectrum of the prosecution
version. The discrepancies may be due to normal errors of perception
or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting
through the evidence to separate truth from untruth, embellishments
and improvements, the court must determine whether the residuary
evidence is sufficient to convict the accused. (Vide: Bihari Nath
Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @
Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191; and
Sampath Kumar v. Inspector of Police, Krishnagiri, AIR 2012 SC
1249).
In Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC
1883, this Court has held that if the discrepancies are material it
would be safer to err in acquitting than in convicting the accused. 
39. In Subhash v. State of Haryana, AIR 2011 SC 349, 
this Court
has held that a significant omission in the statement of a witness
recorded under Section 161 Cr.P.C. may amount to a major
contradiction.
 However, it may depend upon the facts of case and in
32Page 33
case of a material contradiction the accused becomes entitled for
benefit of doubt and thus acquittal.
40. Thus, we find force in the submissions advanced by Ms.
Makhija, learned Amicus Curiae,
 that evidence produced by the
prosecution had been very shaky and the chain of links connecting the
appellant with the crime appears inconclusive. 
The circumstantial
evidence is completely wanting in this respect. 
To accept the
description of the evidence collected as flimsy, or no evidence would
be too short for convicting the appellant for the offence, as many
issues/circumstances virtually remained unexplained. 

In view of the above, we have no hesitation in holding that the
prosecution failed to prove the case against the appellant beyond
reasonable doubt and thus, he becomes entitled for benefit of doubt.
Thus, the appeals succeed and are allowed. 
The conviction and
sentence imposed on the appellant are set aside. The appellant be
released forthwith unless wanted in some other case.
Before parting with the case, we record our appreciation to Ms.
Vibha Datta Makhija, Advocate who rendered invaluable service as
Amicus Curiae in disposal of these appeals.
33Page 34
………………………………..................................J.
 (Dr. B.S. CHAUHAN)
………………………………...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 6, 2013.
34

LAND ACQUISITION ACT, = Whether the High Court, under Article 226 of the Constitution of India, can compel the State to complete the acquisition proceedings initiated under Section 4(1) of the Land Acquisition Act (for short ‘the Act’), is one of the short questions arising for consideration in these cases. Another short question is – Whether writ can be issued compelling the Land Acquisition Collector/Officer to implement the instruction issued to him by the Government otherwise than under the procedure under the Act? Act is a complete code as far as such decisions are concerned and Government is well within their jurisdiction to act as per the scheme provided under the Act. Even otherwise, the writ petition was wholly misconceived. The prayer is for direction to the land acquisition collector to act in terms of letter issued to the land acquisition collector by the secretary to the Government. Even otherwise, the writ petition was wholly misconceived. The prayer is for direction to the land acquisition collector to act in terms of letter issued to the land acquisition collector by the secretary to the Government. If a subordinate authority in the Government does not act in terms of the direction or instruction issued by the superior authority, it is not for the Court to compel that subordinate authority to comply with the instruction or direction issued by the superior authority, if it is not otherwise governed by a statutory procedure. Court is not the executing forum of the instruction issued by the Government to its subordinates. That jurisdiction lies elsewhere under the scheme of the Constitution. Therefore, on that count also, the writ petition was liable to be dismissed. = Yet with all these, the fact remains that the residential houses of the petitioners are in the seepage affected area in Mukundur village coming under 6th District Minor Hemavathi Left Bank Canal. Despite decades long efforts made by the petitioners, it appears even the cement concrete lining to the canal has been done only recently and that too in order to avoid the acquisition for which twice notifications had already been issued. It has to be noted that the agricultural land of the petitioners had already been acquired and what remained was only the residential part. Petitioners had the grievance that on account of the seepage, there was dampness resulting also in cracks on the building. In view of the miseries suffered by these poor persons, we are of the view that it will not be just and fair to relegate them to workout their remedies before the civil court for damages, at this instance of time. Therefore, in the interests of justice and in order to do complete justice, we order that each of the petitioners shall be paid a lump sum amount of Re.1 lakh each towards damages for the hardships they have already undergone on account of seepage resulting in dampness and cracks to their residential buildings. The respondents 7/8 shall see that the amount as above is deposited in the bank account of the respective petitioner within three months. We, however, make it clear that this Judgment shall not stand in the way of the respondents, if so required or warranted in public interest, acquiring the disputed lands. 12. Subject to the above, the appeals are dismissed. No costs.

Page 1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS._4345-4429_/2013
[Arising out of S.L.P.(Civil) Nos. 10230-10314/2012]
JAYAMMA & ORS. … APPELLANTS
VERSUS
THE DEPUTY COMMISSIONER,
HASSAN DIST., HASSAN AND ORS. … RESPONDENTS
J U D G M E N T
KURIAN, J.:
Leave granted.
2. Whether the High Court, under Article 226 of the
Constitution of India, can compel the State to
complete the acquisition proceedings initiated under
Section 4(1) of the Land Acquisition Act (for short ‘the
Act’), is one of the short questions arising for
consideration in these cases. Another short question
is – Whether writ can be issued compelling the Land
Acquisition Collector/Officer to implement the
1
REPORTABLEPage 2
instruction issued to him by the Government
otherwise than under the procedure under the Act? 
SHORT FACTS
3. The writ petitioners/appellants herein having their
property in Mukundur village, Hassan Taluk in
Karnataka State approached the High Court for
following directions:
“Issue Writ of Mandamus directing Deputy
Commissioner and Land Acquisition Officer to pass
the award as per the directions of the Principal
Secretary, Revenue Department, Government of
Karnataka and the decision of State Government
dated 19.11.2009.”
4. The letter dated 19.11.2009 from the Principal
Secretary to Government, Revenue Department,
addressed to the Deputy Commissioner, Hasan
District, reads as under:
“Sir,
Sub:- Framing award in respect of
Mukundooru, Gaddebindenahalli and
Chikkagondanahalli villages which are
acquired as seepage affected villages at
Hassan District - Reg.
Ref:- Your Letter No. BhuSwaSa-150:2008-09
dated 11.09.2009.
With regard to the above subject, your
attention is attracted towards your letter. As it is
already decided in the order No. RD 120 REH 1992
2Page 3
dated 15.04.1999 to shift these villages with
regard to seepage, due to Hemavathi Irrigation
canal project, it was already informed in the
earlier letter dated 16.03.1999 that, there is no
necessity to submit the same afresh before high
level committee presided by the Regional
Commissioner and further to frame award in
respect of these villages.
In furtherance, it is clearly ordered by the
Hon’ble Chief Minister to frame award with regard
to Mukundooru village and disburse compensation
amount, it is already informed in the letter dated
30.07.2009 bearing No. RD 113 BhuSwaHa 2009
to initiate action as per the said order. Wherefore,
I am directed to inform you to initiate action as
already directed by the Governor (sic
Government).”
5. The petitioners’ case was that on account of the
seepage from the distributory canal of the reservoir,
they had suffered serious damage to their houses
and, on their representations, the Government had
already taken a decision to acquire the property. The
land acquisition officer, according to the petitioners,
had on 15.04.1999, initiated proceedings under
Section 4 of the Land Acquisition Act and, thereafter,
Section 6 Declaration was issued. However, the
proceedings got lapsed since no award was passed
within the period prescribed under Section 11A of the
Act.
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6. It is seen as per Annexure-P2 – Notification dated
27.10.2007, that the Land Acquisition Collector had
initiated proceedings under Section 4(1) of the Act
for acquiring the lands of the petitioners and it was
followed by Section 6 declaration dated 15.10.2008
published on 23.10.2008. Since, no serious steps
were taken to complete the acquisition by passing
the awards, it appears, the petitioners approached
the High Court under Article 226 of the Constitution
of India in 2011 for a direction to compel the land
acquisition collector to act as per the instruction
issued by the Government and to complete the
acquisition proceedings. The learned Single Judge, by
order dated 07.03.2011 disposed of the writ petitions
directing the land acquisition collector and the State
to pass awards in the case of the petitioners and a
few others within four weeks from the receipt of the
Order. There was also a further direction that the
petitioners should vacate the property if they were
still in possession and that they should handover
possession prior to the receipt of the compensation.
4Page 5
7. Aggrieved, land acquisition collector, State and
others filed Writ Appeals leading to the impugned
Judgment dated 09.12.2011. It was contended that
the hardships on account of seepage could be
resolved by constructing ‘a drainage canal’ and
acquisition for that reason was not necessary and not
in contemplation also. The Judgment of the Single
Judge was set aside and the Appeals were disposed
of with the direction to complete the canal project
within three months. It was also clarified that the
petitioners were free to initiate appropriate legal
action in case there was still seepage. Thus,
aggrieved, the writ petitioners filed the Special Leave
Petitions.
8. Under Section 11A of the Land Acquisition Act, the
Collector is to pass the award under Section 11 within
a period of two years from the date of the publication
of the declaration and, in case no award is made
within that period, the entire proceedings for
acquisition of the land would lapse. In the instant
case, the declaration under Section 6 dated
5Page 6
15.10.2008 published on 23.10.2008 had already
lapsed by the time the writ petitioners had
approached the High Court. This crucial factual
position, unfortunately, has not been taken note of
by the High Court. The Court cannot compel the land
acquisition collector to pass awards in respect of the
land acquisition proceedings which had already
lapsed. That apart, under the scheme of the Land
Acquisition Act, the Government is at liberty to
withdraw from the acquisition of any land of which
possession has not been taken at any stage prior to
the passing of the award. In case the owner, in
consequence of such withdrawal, has suffered any
damages, he is entitled to compensation in that
regard, under Section 48 of the Act, which reads as
follows:
“48. Completion of acquisition not
compulsory, but compensation to be
awarded when not completed.-(1) Except in
the case provided for in section 36, the
Government shall be at liberty to withdraw from
the acquisition of any land of which possession has
not been taken.
(2) Whenever the Government withdraws from any
such acquisition, the Collector shall determine the
amount of compensation due for the damage
6Page 7
suffered by the owner in consequence of the
notice or of any proceedings thereunder, and shall
pay such amount to the person interested,
together with all costs reasonably incurred by him
in the prosecution of the proceedings under this
Act relating to the said land.
(3) The provisions of Part III of this Act shall apply,
so far as may be, to the determination of the
compensation payable under this section.”
9. In the case on hand, there is no question of any such
Notification on withdrawal since the proceedings had
already lapsed. Admittedly, no possession had been
taken. Therefore, Section 36 does not apply. Whether
to acquire a particular property or not is for the
Government to decide. It is not within the jurisdiction
of the Court to compel the Government to acquire
any property, otherwise than as per the Land
Acquisition Act. No doubt, the High Court exercises
judicial review of administrative action or inaction.
But having regard to the various facts and
circumstances or factors, it is for the Government to
consider at the permissible stage as to whether a
particular property is to be acquired or whether an
Award is to be passed pursuant to proceedings
already initiated under Section 4(1) of the Act. The
7Page 8
Act is a complete code as far as such decisions are
concerned and Government is well within their
jurisdiction to act as per the scheme provided under
the Act. Even otherwise, the writ petition was wholly
misconceived. The prayer is for direction to the land
acquisition collector to act in terms of letter issued to
the land acquisition collector by the secretary to the
Government.
10. Even otherwise, the writ petition was wholly
misconceived. The prayer is for direction to the land
acquisition collector to act in terms of letter issued to
the land acquisition collector by the secretary to the
Government.
If a subordinate authority in the
Government does not act in terms of the direction or
instruction issued by the superior authority, it is not
for the Court to compel that subordinate authority to
comply with the instruction or direction issued by the
superior authority, if it is not otherwise governed by a
statutory procedure. Court is not the executing forum
8Page 9
of the instruction issued by the Government to its
subordinates. That jurisdiction lies elsewhere under
the scheme of the Constitution. Therefore, on that
count also, the writ petition was liable to be
dismissed. 
11. Yet with all these, the fact remains that the
residential houses of the petitioners are in the
seepage affected area in Mukundur village coming
under 6th District Minor Hemavathi Left Bank Canal.
Despite decades long efforts made by the petitioners,
it appears even the cement concrete lining to the
canal has been done only recently and that too in
order to avoid the acquisition for which twice
notifications had already been issued. It has to be
noted that the agricultural land of the petitioners had
already been acquired and what remained was only
the residential part. Petitioners had the grievance
that on account of the seepage, there was dampness
resulting also in cracks on the building. In view of the
miseries suffered by these poor persons, we are of
the view that it will not be just and fair to relegate
9Page 10
them to workout their remedies before the civil court
for damages, at this instance of time. Therefore, in
the interests of justice and in order to do complete
justice, we order that each of the petitioners shall be
paid a lump sum amount of Re.1 lakh each towards
damages for the hardships they have already
undergone on account of seepage resulting in
dampness and cracks to their residential buildings.
The respondents 7/8 shall see that the amount as
above is deposited in the bank account of the
respective petitioner within three months. We,
however, make it clear that this Judgment shall not
stand in the way of the respondents, if so required or
warranted in public interest, acquiring the disputed
lands. 
12. Subject to the above, the appeals are dismissed. No
costs.
………………………………J.
(G.S. SINGHVI)
………………………………J.
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(KURIAN JOSEPH)
New Delhi;
May 6, 2013.
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