West Bengal Premises Tenancy Act, 1956- PARTIAL EVICTION NOT APPLICABLE TO THIS CASE = " Considering the evidence adduced by both parties and the principles of law discussed above, I find that the plaintiff is the owner of the suit premises, the compromise decree in T.S. No.55/86 is admissible in evidence, the present accommodation of the plaintiff is not suitable and the suit premises is required for the reasonable requirement of the plaintiff for own use and occupation and for augmentation of her income from the suit premises and there cannot be any partial eviction and as such all these issues be disposed of in favour of the plaintiff."- "It is not expected that the plaintiff being divorcee will reside in the house of her brother and at mercy of her brother and brother's wife. In order to reside peacefully one privy, one kitchen, one bath room and one dining space in other words complete flat is required for the purpose of the residence of the plaintiff, so in the circumstances I hold that the plaintiff has bonafide reasonable requirement of the suit premises for her own use and occupation."- the provision contained in the West Bengal Premises Tenancy Act, 1956 mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire building should be directed to be vacated. However, while deciding the issue of reasonable personal requirement of the landlord, if the trial court or the appellate court also considers the extent of requirement and records a finding that the entire premises or part thereof satisfies the need of the landlord, then, in our considered opinion, there is sufficient compliance of the provision contained in the said Act. 20. Taking into consideration these facts and also having regard to the finding recorded both by the trial court and the appellate court after discussing the question of partial eviction, the substantial question of law framed by the High Court does not arise. Consequently, the impugned judgment passed by the High Court cannot be sustained in law. 21. For the reasons aforesaid, this appeal is allowed. The impugned judgment of the High court is set aside and the judgment and decree of the trial court is affirmed. However, there shall be no order as to costs. 22. The defendant-respondents are directed to vacate the suit premises within three months and hand over vacant possession of the same to the appellant.

' 
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4539 OF 2013
(Arising out of Special Leave Petition (Civil) No.30300 of 2011)


ANAMIKA ROY Appellant(s)
VERSUS
JATINDRA CHOWRASIYA AND OTHERS Respondent(s)

M.Y. EQBAL, J.:
Leave granted.

2. Aggrieved by the judgment dated 10.2.2011 passed by learned
Single Judge of the Calcutta High Court in S.A. No.342 of 2007,
whereby the second appeal filed by the defendant-respondents was
allowed, the judgments and decrees of the courts below were set aside
and the matter was remitted to the trial court after expressing the
view that considering the provisions of Section 13(4) of the West
Bengal Premises Tenancy Act, 1956 it is a duty cast upon the Court
to consider whether the requirement of the plaintiff could be
satisfied by evicting the defendant from a part only of the suit
property, plaintiff-appellant has preferred this appeal by special
leave under Article 136 of the Constitution of India. The trial
court and the first appellate court had passed decree for eviction
against the defendant/tenant in respect of the entire suit premises in
question.

3. The litigation between the parties started on the filing of
Title Suit No.66 of 1993 by the plaintiff in the Court of 4th Civil
Judge (Senior Division) at Alipore, District 24 Parganas (South) for
eviction and recovery of khas possession of the suit premises against
the original defendant/tenant - Lalji Chowrasia (predecessor of the
respondents) and for mesne profits and compensation for damages to the
suit property. The suit property happens to be a portion of the
ground floor flat consisting of three bed rooms with attached three
bathrooms with modern fittings, sanitary privy, one store room, one
kitchen, one dining room and one covered verandah in the front portion
with grill in the premises No.128/15, Hazra Road, Kolkata.

4. The case of the plaintiff in the above mentioned suit, inter
alia, is that she is the owner and landlady of suit property in terms
of a decree passed on 17.3.1988 in Title Suit No.55 of 1986. She
requires the suit property in occupation of the defendant for her own
use and occupation. She alleges that she is a divorcee and is
occupying one room on the second floor of the three-storeyed building
where her brother with his family is residing. Entire first floor of
the building has been in occupation of a Bank (State Bank of India) as
a tenant. The plaintiff alleges that she has been permitted by her
brother to stay in one room, but since she is having bitter
relationship with her brother's wife, she wants to reside in the suit
property. Her further case is that she does not have any source of
income except a paltry amount of Rs.500/- which she gets as her share
in the rent collected from the tenant-bank. According to her, if she
rearranges the suit premises and makes provision for one room flat,
she will be able to augment a minimum income of Rs.2500/- per month by
letting or leasing it out. She alleges that the original defendant
was guilty of causing damage to the suit premises.

5. The suit was contested by the defendant by filing written
statement contending inter alia that there was no relationship of
landlord and tenant between the parties to the suit. Defendant
further alleged that although the plaintiff might have realized rent
from the defendant and the defendant might have paid/deposited monthly
rent in the name of the plaintiff, yet there could not be any
relationship of landlord and tenant in between the plaintiff and the
defendant. Although defendant did not dispute the fact that plaintiff
has been residing with her brother and his family on the second floor
of the suit holding, but he denied that the plaintiff requires the
suit premises for her own use and occupation. According to the
defendant, her present accommodation is suitable and her statement
that she had no alternative suitable accommodation elsewhere is not
correct. The defendant also disputed the plaintiff's claim of
ownership of the suit premises on the basis of compromise decree
passed in the said Title Suit No.55 of 1986. It is further contended
that the alleged decree is not binding upon the defendant. It appears
from the judgments of the courts below that after the original
defendant died, the respondents herein were substituted in place of
the original defendant. Defendant No.5 also filed a separate written
statement denying pleas of the plaintiff.

6. The trial court by its judgment dated 30.7.2002 decreed the
said suit and directed the defendants to hand over the vacant
possession of the suit premises to the plaintiff within a stipulated
period of time. The trial court found that the defendant had admitted
in evidence that the plaintiff is the landlady of the defendant and
that the suit premises is the portion of the ground floor and the
remaining portion of the ground floor is in possession of the
plaintiff's brother's son. The trial court further found that
admittedly the original defendant was inducted in the suit premises as
a tenant by the father of the plaintiff and the defendants have been
substituted on the death of the original defendant. However, the
trial court did not find any cogent evidence with regard to the
alleged damage to the suit property. The trial court found that the
present accommodation of the plaintiff on the second floor is not
suitable where she has got only one room as per the Will of her father
and she has got no separate kitchen and bath-cum-privy for herself.
Finding the said Title Suit No.55 of 1986 being suit for declaration
and not a partition suit, the trial court found that the decree passed
in the suit was a compromise decree, from which it is clear that the
plaintiff has got title in respect of the suit premises and from Ex.4
- the probate of the Will executed by plaintiff's father it is clear
that the plaintiff has got life-estate in one room on the second floor
and 15% share of rent from the said bank-tenant on the first floor.
Admitting the compromise decree, the trial court concluded that the
plaintiff is the owner of the suit premises and the present
accommodation of the plaintiff is not suitable and the suit premises
is reasonably and in good faith required by the plaintiff for own use
and occupation and for augmentation of her income from the suit
premises and there cannot be any partial eviction as such.

7. Challenging the judgment and decree of the trial court, the
defendants filed Title Appeal No.280 of 2002, which was placed before
the Additional District and Sessions Judge, Fast Track Court-II,
Alipore, who also opined that a complete flat is required for the
purpose of the residence of the plaintiff and the plaintiff has bona
fide requirement of the suit premises for her own use and occupation.
Dismissing the title appeal on 28.2.2005, the first appellate court
took note of the fact that the trial court had already decided that
there was a relationship of landlord and tenant between the parties
and held that the trial court had rightly decreed the suit. The lower
appellate court also found that there is bitter relationship between
the plaintiff and her brother's wife and it is not expected that the
plaintiff being a divorcee will reside in the house of her brother at
the mercy of her brother's wife.

8. The defendants (contesting Respondent Nos.1 and 2 herein)
challenged aforesaid judgment and decree of the lower appellate court
before the High Court by way of second appeal. It appears that the
second appeal was admitted by the High Court on the following
substantial questions of law:
(a) Whether the learned Courts below committed substantial
error of law in not considering the question of partial eviction
of the appellants from the suit property?
(b) Whether the learned Court of appeal below committed
substantial error of law in refusing to consider the question of
partial eviction on the ground that no such prayer was made by
the defendants by totally overlooking the fact that in view of
the provision contained in Section 13(4) of the West Bengal
Premises Tenancy Act, a duty is cast upon the Court to consider
whether the requirement of the plaintiff can be satisfied by
evicting the tenants from a part of the property?

9. On the aforesaid substantial questions of law, it was contended
by the defendants (appellants in second appeal) in the High Court that the
courts below did not consider question of partial eviction and it is the
plaintiff's case to let out a part of the suit property for augmenting her
income. It is the case of the defendant that there is a vacant flat in the
ground floor of the suit holding which was allowed to the brother of the
plaintiff and the same can be provided to the plaintiff for residence.
There is no dispute that in the instant case no local inspection was held
in respect of the suit premises and/or suit building itself.

10. Defendants referred to a decision reported in AIR 1978 SC 413
(Rahman Jeo Wangnoo vs. Ram Chand and others) in support of their
contention submitting that it is mandatory for the Court to consider the
question of partial eviction as contemplated under the West Bengal Premises
Tenancy Act, 1956. Reference was also made to this Court's judgment in
Krishna Murari Prasad vs. Mitar Singh, 1993 Supp (1) SCC 439, in which this
Court has observed that the landlord's requirement having been found
proved, the Court had to consider the matter further according to the
relevant provision of law and the order for eviction from the entire
premises could be made only if a decree for partial eviction in the manner
provided could not substantially satisfy the landlord's requirement.
Plaintiff (respondent in second appeal), on the other hand, submitted that
the question of local inspection in the present case does not arise as the
present occupation of the plaintiff is precarious and that is enough to
prove her reasonable requirement for own use and occupation and there can
be no partial eviction in the present case.

11. The learned Single Judge of the High Court was not inclined to
upset the concurrent finding with regard to the right of the plaintiff in
respect of the suit premises as found by the courts below. From the
materials on record, it appeared to the High Court that the plaintiff
proved her bona fide requirement. However, the High Court is of the view
that the decisions reported in AIR 1978 SC 413 (supra) and 1993 (Supp) (1)
SCC 439 (supra) supported the case of the defendants in so far as their
stand on the question of partial eviction is concerned. Without disturbing
the finding of the courts below with regard to the relationship of landlord
and tenant between the parties to the suit and the plaintiff's ownership in
respect of the suit property, the High Court allowed the second appeal
filed by the defendants and made it clear that the inquiry, that will
thereafter be done by the courts below, shall be limited to the question
whether or not the eviction of the defendants from a part only of the suit
premises can substantially satisfy the plaintiff's need. Liberty has also
been given by the High Court to the parties to the proceedings to adduce
appropriate evidence before the trial court and also to make an appropriate
application for appointment of a Local Commissioner for holding a local
inspection in respect of the suit premises and/or the suit holding.

12. The relevant portion of the findings recorded by the High Court
is extracted herein below:-
"In the facts of the present case no Commissioner was appointed
to hold a local inspection and consequently no local inspection
report is on record. The description of the suit property
appears to be a ground floor flat consisting of three bedrooms
with attached three bathrooms with modern fittings, sanitary
privy, one store, one kitchen, one dining room, one covered
verandah in the front portion with grill in the suit holding,
that is, premises No.128/15, Hazra Road: P.S. Bhowanipore
Kolkata 700026. The learned Lower Appellate Court has found
that the plaintiff would require one privy, one kitchen, one
bathroom and one dinning space that is a complete flat for the
purpose of her residence. As it appears to this Court that none
of the Courts below has examined the question of partial
eviction, the matter should be remitted back to the learned
Trial court since this Court is of the view that considering the
said provisions of Section 13(4) of the said Act of 1956 it is a
duty cast upon the Court to consider whether the requirement of
the plaintiff could be satisfied by evicting the defendant from
a part only of the suit property. The decisions reported at AIR
1978 Supreme Court 413 (supra) and 1993 SUPP(1) SCC 439 (supra)
supported the case of the appellants in so far as their stand on
the question of partial eviction is concerned. In the present
case, the plaintiff's reasonable requirement has been found to
be proved by both the learned Courts below and, accordingly, the
inquiry is now required to be made only with regard to the
question of partial eviction. This Court is also not disturbing
the finding of the learned Courts below with regard to the
relationship of landlord and tenant in between the parties to
the suit and the plaintiff's ownership in respect of the suit
property."

13. We have heard Mr. R.K. Gupta, learned counsel appearing for the
appellant and Mr. Shymal Chakravarti, learned counsel appearing for the
respondent.

14. The question that falls for consideration is as to whether the
High Court is justified in holding that both the trial court and the
appellate court have not examined the question of partial eviction.

15. Both the courts have recorded the concurrent finding of fact
that the appellant is a divorcee old lady and is occupying one room on
second floor of three-storeyed building owned by her brother. The first
appellate court has taken note of the fact that there is a bitter
relationship between the plaintiff and her brother's wife and it is not
expected that the plaintiff being a divorcee resides in the house of her
brother at the mercy of her brother's wife.

16. The trial court while deciding the issue as to whether the suit
premises is reasonably required by the plaintiff or not, has gone into the
details of the difficulties, which the old landlady is facing. While
discussing the question of partial eviction, the trial court referred to a
decision reported as 2001 (3) CHN 244 (Jagat Bandhu Batabayal vs. Jiban
Krishna Roy) for the proposition that the question of partial eviction was
rightly not considered in that case by the appellate court as the tenant
never raised such issue before the appellate court nor any material was
available before the learned Judge to form an opinion that the requirement
of plaintiff can be substantially satisfied by ejecting the tenant from a
portion of the suit premises. In the concluding portion of the judgment,
the trial court observed:-
" Considering the evidence adduced by both parties and the
principles of law discussed above, I find that the plaintiff is
the owner of the suit premises, the compromise decree in T.S.
No.55/86 is admissible in evidence, the present accommodation of
the plaintiff is not suitable and the suit premises is required
for the reasonable requirement of the plaintiff for own use and
occupation and for augmentation of her income from the suit
premises and there cannot be any partial eviction and as such
all these issues be disposed of in favour of the plaintiff."

17. Similarly, in the appeal filed by the respondent-tenant, the
appellate court has also gone into the question as to the reasonable
requirement of the landlady and held that a complete flat is required for
the purpose of residence of the plaintiff. The appellate court held that:-
"It is not expected that the plaintiff being divorcee will
reside in the house of her brother and at mercy of her brother
and brother's wife.
In order to reside peacefully one privy, one kitchen, one
bath room and one dining space in other words complete flat is
required for the purpose of the residence of the plaintiff, so
in the circumstances I hold that the plaintiff has bonafide
reasonable requirement of the suit premises for her own use and
occupation."



18. Having regard to the finding recorded both by the trial court
and the appellate court that the entire flat is required by the plaintiff
landlady for her use and occupation, the High Court has committed grave
error in formulating a question mentioned hereinabove and holding that the
question of partial eviction has to be considered since it is a mandatory
requirement of law. The High Court has further committed serious error of
law in setting aside the judgment and decree of the trial court and that of
the appellate court. Indisputably, the appellant-landlady has been
residing in one room at the mercy of her brother and she needs the suit
premises on the ground of her personal requirement. The suit premises is a
flat consisting of three bedrooms with bathroom, one store room, one
kitchen and one dining room. The suit was filed in the year 1993 and for
the last 20 years the appellant-landlady, who is 58 years old, has been
fighting with the tenant for getting her flat for her own use and
occupation. Both the trial court and the appellate court have considered
the question of partial eviction as noticed above and recorded the finding
that the appellant-landlady needs the entire flat to live there
comfortably. In our considered opinion, it would be too harsh if the flat
which consists of three rooms is divided and a decree in respect of the
portion of the flat is passed which will result in inconvenience for both
the parties. Moreover, the defendant- respondent neither before the
appellate court nor before the trial court or in the High Court has
asserted that a portion of the premises will satisfy the requirement of the
appellant.
19. There is no dispute with regard to the ratio laid down by this
Court in Rahman Jeo Wangnoo vs. Ram Chand and Others (AIR 1978 SC 413) that
the provision contained in the West Bengal Premises Tenancy Act, 1956
mandates the court to consider whether partial eviction as contemplated
therein should be ordered or the entire building should be directed to be
vacated. However, while deciding the issue of reasonable personal
requirement of the landlord, if the trial court or the appellate court also
considers the extent of requirement and records a finding that the entire
premises or part thereof satisfies the need of the landlord, then, in our
considered opinion, there is sufficient compliance of the provision
contained in the said Act.
20. Taking into consideration these facts and also having regard to
the finding recorded both by the trial court and the appellate court after
discussing the question of partial eviction, the substantial question of
law framed by the High Court does not arise. Consequently, the impugned
judgment passed by the High Court cannot be sustained in law.
21. For the reasons aforesaid, this appeal is allowed. The
impugned judgment of the High court is set aside and the judgment and
decree of the trial court is affirmed. However, there shall be no order as
to costs.
22. The defendant-respondents are directed to vacate the suit
premises within three months and hand over vacant possession of the same to
the appellant.

...............................J.
(P. Sathasivam)



...............................J.
(M.Y. Eqbal)
New Delhi,
May 9, 2013.
ITEM NO. IF COURT NO.2 SECTION XVI
(FOR JUDGMENT)



S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


CIVIL APPEAL NO..4539 OF 2013 @
PETITION FOR SPECIAL LEAVE TO APPEAL ) NO. 30300/2011


|ANAMIKA ROY |.. |Appellant(s) |
| | Versus | |
|JATINDRA CHOWRASIYA & ORS. |.. |Respondent(s) |






DATE : 09/05/2013 This matter was called on for
pronouncement of judgment today.





For Appellant(s) Mr. Shekhar Kumar,Adv.


For Respondent(s) Mr.Braj Kishore Mishra,Adv.




---


Hon'ble Mr. Justice M.Y. Eqbal pronounced the judgment of
the Bench comprising Hon'ble Mr. Justice P. Sathasivam and His
Lordship.


Leave granted.


The appeal is allowed in terms of the signed reportable
judgment.






| [ Madhu Bala ] | | [ Savita Sainani ] |
|Sr.PA | |Court Master |




[ Signed reportable judgment is placed on the file


-----------------------
16

sub-section (1) of Section 50 of the NDPS Act NOT APPLICABLE IN SEARCH OF BAGS ETC., = But, a significant one, in the case at hand 32 bags of poppy straw powder weighing 64 Kgs. had been seized from two bags. It has not been seized from the person of the accused-appellant. It has been established by adducing cogent and reliable evidence that the bags belonged to the appellant. “Thus, applying the interpretation of the word “search of person” as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance with Section 50 of the Act.”

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1327 of 2010
Ram Swaroop ... Appellant
Versus
State (Govt. NCT) of Delhi
...Respondent
J U D G M E N T
Dipak Misra, J.
The appellant herein has been found guilty of the
offence under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the NDPS
Act”) and sentenced to undergo rigorous imprisonment for
a period of ten years and to pay a fine of rupees one lakh
and, in default of payment of fine, to suffer simple
imprisonment for two years.Page 2
2. On 22.7.2005, Ritesh Kumar, a Sub-Inspector, while
patrolling reached at the outer gate of ISBT where
Constable Balwant Singh met him and both of them
found the accused-appellant sitting on two white
coloured bags on the left side of the footpath. On
seeing the police party he tried to run away leaving
the bags which raised a suspicion in the mind of the
Sub-Inspector and that led to the apprehension and
interrogation of the accused. Eventually, on search
of the bags, it was found that those contained 64
Kgs. of poppy straw powder packed in 32 bags of
polythene. After the search was carried out samples
were sealed and sent to the Forensic Science
Laboratory for examination. The investigating
agency on completion of other formalities filed the
charge-sheet before the trial Court.
3. The accused pleaded false implication and claimed
to be tried.
4. On behalf of the prosecution eight witnesses were
examined including the Sub-Inspector, Ritesh Kumar,
and Constable Balwant Singh. The learned Additional
2Page 3
Sessions Judge, Delhi in Sessions Case No. 90 of
2006, considering the material on record, found the
accused guilty of the offence and imposed the
sentence as has been stated hereinbefore.
5. Ms. Sushmita Lal, learned counsel for the appellant,
has raised two contentions, namely, (i) though the
alleged seizure had taken place at a crowded place,
yet the prosecution chose not to examine any
independent witness and in the absence of
corroboration from independent witnesses the
evidence of only police officials should not have been
given credence to and (ii) there has been noncompliance of Section 50 of the NDPS Act inasmuch
as the accused was not informed his right to be
searched in presence of a gazetted officer or a
Magistrate despite the mandatory nature of the
provision and, therefore, the conviction is vitiated.
6. Per contra, it is urged by Mr. Rakesh Khanna, learned
Additional Solicitor General and Mr. Vivek Chib,
learned advocate appearing for the respondent, state
that the learned trial Judge as well as the High Court
3Page 4
has correctly placed reliance on the testimony of the
official witnesses and there is no mandatory rule that
non-examination of independent witnesses in all
circumstances would vitiate the trial. It is their
further submission that Section 50 of the NDPS Act is
not attracted to the case at hand as two bags were
searched and not the person of the accusedappellant.
7. To appreciate the first limb of submission, we have
carefully scrutinized the evidence brought on record
and perused the judgment of the High Court and that
of the trial Court. It is noticeable that the evidence
of PW-7, namely, Ritesh Kumar, has been supported
by Balwant Singh, PW-5, as well as other witnesses.
It has come in the evidence of Ritesh Kumar that he
had asked the passerby to be witnesses but none of
them agreed and left without disclosing their names
and addresses. On a careful perusal of their version
we do not notice anything by which their evidence
can be treated to be untrustworthy. On the contrary
it is absolutely unimpeachable. We may note here
4Page 5
with profit there is no absolute rule that police
officers cannot be cited as witnesses and their
depositions should be treated with suspect. In this
context we may refer with profit to the dictum in
State of U.P. v. Anil Singh1
, wherein this Court
took note of the fact that generally the public at large
are reluctant to come forward to depose before the
court and, therefore, the prosecution case cannot be
doubted for non-examining the independent
witnesses.
8. At this juncture a passage from State, Govt. of NCT
of Delhi v. Sunil and another2
 is apt to quote : -
“21. We feel that it is an archaic notion that
actions of the police officer should be
approached with initial distrust. We are
aware that such a notion was lavishly
entertained during the British period and
policemen also knew about it. Its hangover
persisted during post-independent years but
it is time now to start placing at least initial
trust on the actions and the documents made
by the police. At any rate, the court cannot
start with the presumption that the police
1
 1988 Supp SCC 686
2
 (2001) 1 SCC 652
5Page 6
records are untrustworthy. As a proposition of
law the presumption should be the other way
around. That official acts of the police have
been regularly performed is a wise principle
of presumption and recognised even by the
legislature. Hence when a police officer gives
evidence in court that a certain article was
recovered by him on the strength of the
statement made by the accused it is open to
the court to believe the version to be correct
if it is not otherwise shown to be unreliable. It
is for the accused, through cross-examination
of witnesses or through any other materials,
to show that the evidence of the police officer
is either unreliable or at least unsafe to be
acted upon in a particular case. If the court
has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the
fact that no other independent person was
present at the time of recovery. But it is not a
legally approvable procedure to presume the
police action as unreliable to start with, nor
to jettison such action merely for the reason
that police did not collect signatures of
independent persons in the documents made
contemporaneous with such actions.”
6Page 7
9. In Ramjee Rai and others v. State of Bihar3
, it
has been opined as follows: -
“26. It is now well settled that what is
necessary for proving the prosecution case is
not the quantity but quality of the evidence.
The court cannot overlook the changes in the
value system in the society. When an
offence is committed in a village owing to
land dispute, the independent witnesses may
not come forward.”
10. Keeping in view the aforesaid authorities, it can
safely be stated that in the case at hand there is no
reason to hold that non-examination of the
independent witnesses affect the prosecution case
and, hence, we unhesitatingly repel the submission
advanced by the learned counsel for the appellant.
11. The second limb of proponement of the learned
counsel for the appellant pertains to non-compliance
of Section 50 of the NDPS Act. In this context, the
learned counsel has drawn inspiration from the
pronouncement of the Constitution Bench in
3
 (2006) 13 SCC 229
7Page 8
Vijaysinh Chandubha Jadeja v. State of
Gujarat4
. The larger Bench after referring to Objects
and Reasons of the NDPS Act and various provisions,
namely, Sections 41, 42 and 50 of the said Act, to the
earlier Constitution Bench decisions in State of
Punjab v. Baldev5
 and Karnail Singh v. State of
Haryana6
, and certain other authorities, eventually,
opined thus: -
“29. In view of the foregoing discussion, we
are of the firm opinion that the object with
which the right under Section 50(1) of the
NDPS Act, by way of a safeguard, has been
conferred on the suspect viz. to check the
misuse of power, to avoid harm to innocent
persons and to minimise the allegations of
planting or foisting of false cases by the law
enforcement agencies, it would be imperative
on the part of the empowered officer to
apprise the person intended to be searched
of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation
in holding that insofar as the obligation of the
authorised officer under sub-section (1) of
Section 50 of the NDPS Act is concerned, it is
4
 (2011) 1 SCC 609
5
 (1999) 6 SCC 172
6
 (2009) 8 SCC 539
8Page 9
mandatory and requires strict compliance.
Failure to comply with the provision would
render the recovery of the illicit article
suspect and vitiate the conviction if the same
is recorded only on the basis of the recovery
of the illicit article from the person of the
accused during such search. Thereafter, the
suspect may or may not choose to exercise
the right provided to him under the said
provision.”
12. The principle of substantial compliance, as laid down
in Joseph Fernandez v. State of Goa7
 and Prabha
Shankar Dubey v. State of M.P.8
, was not
accepted as the ratio laid therein was not in
consonance with the dictum laid down in Baldev
Singh’s case (supra). Similar principle has been
reiterated in Myla Venkateswarlu v. State of
Andhra Pradesh9
 and Ashok Kumar Sharma v.
State of Rajasthan10
.
13. We have referred to the aforesaid decisions as the
learned counsel has strenuously urged that the
7
 (2000) 1 SCC 707
8
 (2004) 2 SCC 56
9
 (2012) 5 SCC 226
10 (2013) 2 SCC 67
9Page 10
provision, being mandatory, there has to be strict
compliance. But, a significant one, in the case at
hand 32 bags of poppy straw powder weighing 64
Kgs. had been seized from two bags. It has not been
seized from the person of the accused-appellant. It
has been established by adducing cogent and
reliable evidence that the bags belonged to the
appellant. In Ajmer Singh v. State of Haryana11
the appellant was carrying a bag on his shoulder and
the said bag was searched and contraband articles
were seized. While dealing with the applicability of
Section 50 of the NDPS Act, two learned Judges
referred to the decisions in Madan Lal v. State of
H.P.12 and State of H.P. v. Pawan Kumar13, and
came to hold as follows: -
“Thus, applying the interpretation of the word
“search of person” as laid down by this Court
in the decision mentioned above, to facts of
present case, it is clear that the compliance
with Section 50 of the Act is not required.
Therefore, the search conducted by the
11 (2010) 3 SCC 746
12 (2003) 7 SCC 465
13 (2005) 4 SCC 350
1Page 11
investigating officer and the evidence
collected thereby, is not illegal.
Consequently, we do not find any merit in the
contention of the learned counsel of the
appellant as regards the non-compliance with
Section 50 of the Act.”
14. Tested on the bedrock of the aforesaid dictum, the
contention, so assiduously raised, that there has
been non-compliance of Section 50 of the NDPS Act is
wholly sans substance.
15. In view of the aforesaid premised reasons, the
appeal, being devoid of merit, stands dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 21, 2013.
1

Constitution of India, 1950-Article 226-Writ Petition-Seeking investigation by CBI-Of a case, investigation whereof already conducted by railway Police and Army authorities-Maintainability of-Held: Not maintainable-An aggrieved person has no right to claim investigation of a case by any particular agency of his choice-He can only claim proper investigation-Alternative remedy of approaching u/ss. 36, 154 (3), 156 (3) and 200 Cr. P.C. is available to the person, if his FIR is not registered by the police-Availability of alternative remedy is not an absolute bar to a writ petition-But if available, High Court should not ordinarily interfere-Supreme Court and High Court also have power under Article 136 or Article 226 if the Constitution to order investigation by the CBI-But that should be done only in rare and exceptional case-Code of Criminal Procedure, 1973-ss. 36, 154 (3), 156(3), 200 and 482-Constitution of India, 1950-Article 136. Code of Criminal Procedure, 1973-s. 156 (3)-Power under-Of Magistrate-Scope of-Discussed. Doctrines/Principles-Doctrine of implied power. The son of the appellant was an Officer in the Indian Army. His dead body was found at Mathura Railway Station. G.R.P. investigated the matter and gave its report stating that the death was caused due to accident or suicide. Army officials held a Court of Inquiry. It was concluded therein that the deceased had committed suicide at the railway track. The appellant made a representation to the Chief of the Army Staff alleging that it was a case of murder and not suicide. As a result another Court of Inquiry was held. Wherein it was concluded that it was a case of suicide. The appellant then filed a writ petition, seeking direction that the matter be ordered to be investigated the Central Bureau of Investigation. The petition was dismissed. Hence the present appeal. Citation: 2008 AIR 907 ,2007(12 )SCR1100,2008(2 )SCC409 ,2007(13 )SCALE693 ,2007(13 )JT466- Dismissing the appeal, the Court HELD: 1.1. In the instant case, the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption, cannot justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. [Paras 34 and 10] CBI and ANOTHER v. Rajesh Gandhi and ANOTHER, (1997) Cr.L.J 63, relied on. 1.2. If a person has a grievance that his FIR has not been registered by the police station, his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36, his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. [Para 26] 2.1. If an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. [Paras 11 and 15] Mohd. Yousuf v. Smt. Afaq Jahan and ANOTHER, JT (2006) 1 SC 10; Dilawar Singh v. State of Delhi, JT (2007) 10 SC 585 ; CBI v. State of Rajasthan and ANOTHER, (2001) 3 SCC 333; R.P. Kapur v. S.P. Singh, AIR (1961) SC 1117; and State of Bihar v. A.C. Saldanna, AIR (1980) SC 326, relied on. 2.2. It is clarified that even if an FIR has been registered and the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and, if the Magistrate is satisfied, he can order a proper investigation and take other suitable steps and pass other order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. The words `as abovementioned' occurring in s.190 Cr.P.C. obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station. The Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). [Paras 13, 14 and 27] Union of India v. Prakash P. Hinduja and ANOTHER, distinguished. 2.3. The power vested in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report under Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report. State of Bihar v. A.C. Saldanna, AIR (1980) SC 326, relied on. 2.4. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. [Paras 18, 19 and 21] ITO, Cannanore v. M.K. Mohammad Kunhi, AIR (1969) SC 430; Union of India v. Paras Laminates, AIR (1991) SC 696, Reserve Bank of India v. Peerless General Finance and Investment Company Ltd; AIR (1996) SC 646; Chief Executive Officer AND Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu, [1996] 11 SCC 23, J.K. Synthetics Ltd. v. Collector of Central Excise, AIR (1996) SC 3527, State of Karnataka v. Vishwabharati House Building Co-op Society, 2003 (2) SCC 412 and Savitri v. Govind Singh Rawat, AIR (1986) SC 984, relied on. Statutory Construction (3rd Edition) by Crawford, referred to. 2.5. Although Section 156(3) is very briefly worded, it is wide enough to include all such incidental powers in a Magistrate which are necessary for ensuring a proper investigation. There is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., they are implied in the above provision. [Paras 17 and 24] 3. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. [Para 28] 4. No doubt the Magistrate cannot order investigation by the CBI but this Court or the High Court has power under Article 136 or Article 226, as the case may be, to order investigation by the CBI. That, however, should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. [Para 31] CBI v. State of Rajasthan and ANOTHER, [2001] 3 SCC 333; Secretary, Minor Irrigation and Rural Engineering Services U.P. and OTHERS v. Sahngoo Ram Arya and ANOTHER, [2002] 5 SCC 521, relied on. 5. It is not clear whether the report by G.R.P. Mathura was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above. [Para 35] Dinesh Kumar Garg for the Appellant,.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (crl.) 1685 of 2007
PETITIONER:
Sakiri Vasu
RESPONDENT:
State of U.P. and others
DATE OF JUDGMENT: 07/12/2007
BENCH:
A.K. Mathur & Markandey Katju
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1685 OF 2007
(Arising out of Special Leave Petition (Criminal) No.6404/ 2007)
MARKANDEY KATJU, J.
1. Leave granted.
2. This appeal is directed against the impugned judgment and order
dated 13.7.2007 passed by the Allahabad High Court in Criminal Misc. Writ
Petition No. 9308 of 2007.
3. Heard learned counsel for the parties and perused the record.
4. The son of the appellant was a Major in the Indian Army. His dead
body was found on 23.8.2003 at Mathura Railway Station. The G.R.P,
Mathura investigated the matter and gave a detailed report on 29.8.2003
stating that the death was due to an accident or suicide.
5. The Army officials at Mathura also held two Courts of Inquiry and
both times submitted the report that the deceased Major S. Ravishankar had
committed suicide at the railway track at Mathura junction. The Court of
Inquiry relied on the statement of the Sahayak (domestic servant) Pradeep
Kumar who made a statement that \023deceased Major Ravishankar never
looked cheerful; he used to sit on a chair in the verandah gazing at the roof
with blank eyes and deeply involved in some thoughts and used to remain
oblivious of the surroundings\024. The Court of Inquiry also relied on the
deposition of the main eye-witness, gangman Roop Singh, who stated that
Major Ravishankar was hit by a goods train that came from Delhi.
6. The appellant who is the father of Major Ravishankar alleged that in
fact it was a case of murder and not suicide. He alleged that in the Mathura
unit of the Army there was rampant corruption about which Major
Ravishankar came to know and he made oral complaints about it to his
superiors and also to his father. According to the appellant, it was for this
reason that his son was murdered.
7. The first Court of Inquiry was held by the Army which gave its report
in September, 2003 stating that it was a case of suicide. The appellant was
not satisfied with the findings of this Court of Inquiry and hence on
22.4.2004 he made a representation to the then Chief of the Army Staff,
General N.C. Vij, as a result of which another Court of Inquiry was held.
However, the second Court of Inquiry came to the same conclusion as that
of the first inquiry namely, that it was a case of suicide.
8. Aggrieved, a writ petition was filed in the High Court which was http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
dismissed by the impugned judgment. Hence this appeal.
9. The petitioner (appellant herein) prayed in the writ petition that the
matter be ordered to be investigated by the Central Bureau of Investigation
(in short \021CBI\022). Since his prayer was rejected by the High Court, hence this
appeal by way of special leave.
10. It has been held by this Court in CBI & another vs. Rajesh Gandhi
and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an
offence be investigated by a particular agency. We fully agree with the view
in the aforesaid decision. An aggrieved person can only claim that the
offence he alleges be investigated properly, but he has no right to claim that
it be investigated by any particular agency of his choice.
11. In this connection we would like to state that if a person has a
grievance that the police station is not registering his FIR under Section 154
Cr.P.C., then he can approach the Superintendent of Police under Section
154(3) Cr.P.C. by an application in writing. Even if that does not yield any
satisfactory result in the sense that either the FIR is still not registered, or
that even after registering it no proper investigation is held, it is open to the
aggrieved person to file an application under Section 156 (3) Cr.P.C. before
the learned Magistrate concerned. If such an application under Section 156
(3) is filed before the Magistrate, the Magistrate can direct the FIR to be
registered and also can direct a proper investigation to be made, in a case
where, according to the aggrieved person, no proper investigation was made.
The Magistrate can also under the same provision monitor the investigation
to ensure a proper investigation.
12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC
10, this Court observed:
\023The clear position therefore is that any judicial
Magistrate, before taking cognizance of the offence, can
order investigation under Section 156(3) of the Code. If
he does so, he is not to examine the complainant on oath
because he was not taking cognizance of any offence
therein. For the purpose of enabling the police to start
investigation it is open to the Magistrate to direct the
police to register an FIR. There is nothing illegal in
doing so. After all registration of an FIR involves only
the process of entering the substance of the information
relating to the commission of the cognizable offence in a
book kept by the officer in charge of the police station as
indicated in Section 154 of the Code. Even if a
Magistrate does not say in so many words while directing
investigating under Section 156(3) of the Code that an
FIR should be registered, it is the duty of the officer in
charge of the police station to register the FIR regarding
the cognizable offence disclosed by the complaint
because that police officer could take further steps
contemplated in Chapter XII of the Code only
thereafter.\024.
13. The same view was taken by this Court in Dilawar Singh vs. State of
Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that
even if an FIR has been registered and even if the police has made the
investigation, or is actually making the investigation, which the aggrieved
person feels is not proper, such a person can approach the Magistrate under
Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a
proper investigation and take other suitable steps and pass such order orders
as he thinks necessary for ensuring a proper investigation. All these powers
a Magistrate enjoys under Section 156(3) Cr.P.C.
14. Section 156 (3) states:http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
\023Any Magistrate empowered under Section 190 may
order such an investigation as abovementioned.\024
The words ‘as abovementioned\022 obviously refer to Section 156 (1), which
contemplates investigation by the officer in charge of the Police Station.
15. Section 156(3) provides for a check by the Magistrate on the police
performing its duties under Chapter XII Cr.P.C. In cases where the
Magistrate finds that the police has not done its duty of investigating the
case at all, or has not done it satisfactorily, he can issue a direction to the
police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under
Section 156(3) is an independent power, and does not affect the power of the
investigating officer to further investigate the case even after submission of
his report vide Section 173(8). Hence the Magistrate can order re-opening
of the investigation even after the police submits the final report, vide State
of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all
such powers in a Magistrate which are necessary for ensuring a proper
investigation, and it includes the power to order registration of an F.I.R. and
of ordering a proper investigation if the Magistrate is satisfied that a proper
investigation has not been done, or is not being done by the police. Section
156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it
will include all such incidental powers as are necessary for ensuring a proper
investigation.
18. It is well-settled that when a power is given to an authority to do
something it includes such incidental or implied powers which would ensure
the proper doing of that thing. In other words, when any power is expressly
granted by the statute, there is impliedly included in the grant, even without
special mention, every power and every control the denial of which would
render the grant itself ineffective. Thus where an Act confers jurisdiction it
impliedly also grants the power of doing all such acts or employ such means
as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent.
Many matters of minor details are omitted from legislation. As Crawford
observes in his \021Statutory Construction\022 (3rd edn. page 267):-
\023If these details could not be inserted by implication, the
drafting of legislation would be an indeterminable
process and the legislative intent would likely be
defeated by a most insignificant omission\024.
20. In ascertaining a necessary implication, the Court simply determines
the legislative will and makes it effective. What is necessarily implied is as
much part of the statute as if it were specifically written therein.
21. An express grant of statutory powers carries with it by necessary
implication the authority to use all reasonable means to make such grant
effective. Thus in ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR
1969 SC 430, this Court held that the income tax appellate tribunal has
implied powers to grant stay, although no such power has been expressly
granted to it by the Income Tax Act.
22. Similar examples where this Court has affirmed the doctrine of
implied powers are Union of India vs. Paras Laminates AIR 1991 SC
696, Reserve Bank of India vs. Peerless General Finance and
Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive
Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji
Harun Abu 1996 (11) SCC 23, J.K. Synthetics Ltd. vs. Collector of
Central Excise, AIR 1996 SC 3527, State of Karnataka vs. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p.
432) etc.
23. In Savitri vs. Govind Singh Rawat AIR 1986 SC 984 this Court held
that the power conferred on the Magistrate under Section 125Cr.P.C. to
grant maintenance to the wife implies the power to grant interim
maintenance during the pendency of the proceeding, otherwise she may
starve during this period.
24. In view of the abovementioned legal position, we are of the view that
although Section 156(3) is verybriefly worded, there is an implied power in
the Magistrate under Section 156(3) Cr.P.C. to order registration of a
criminal offence and /or to direct the officer in charge of the concerned
police station to hold a proper investigation and take all such necessary steps
that may be necessary for ensuring a proper investigation including
monitoring the same. Even though these powers have not been expressly
mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are
implied in the above provision.
25. We have elaborated on the above matter because we often find that
when someone has a grievance that his FIR has not been registered at the
police station and/or a proper investigation is not being done by the police,
he rushes to the High Court to file a writ petition or a petition under Section
482 Cr.P.C. We are of the opinion that the High Court should not encourage
this practice and should ordinarily refuse to interfere in such matters, and
relegate the petitioner to his alternating remedy, firstly under Section 154(3)
and Section 36 Cr.P.C. before the concerned police officers, and if that is of
no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the
police station his first remedy is to approach the Superintendent of Police
under Section 154(3) Cr.P.C. or other police officer referred to in Section 36
Cr.P.C. If despite approaching the Superintendent of Police or the officer
referred to in Section 36 his grievance still persists, then he can approach a
Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High
Court by way of a writ petition or a petition under Section 482 Cr.P.C.
Moreover he has a further remedy of filing a criminal complaint under
Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions
be entertained when there are so many alternative remedies?
27. As we have already observed above, the Magistrate has very wide
powers to direct registration of an FIR and to ensure a proper investigation,
and for this purpose he can monitor the investigation to ensure that the
investigation is done properly (though he cannot investigate himself). The
High Court should discourage the practice of filing a writ petition or petition
under Section 482 Cr.P.C. simply because a person has a grievance that his
FIR has not been registered by the police, or after being registered, proper
investigation has not been done by the police. For this grievance, the
remedy lies under Sections 36 and 154(3) before the concerned police
officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the
Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and
not by filing a writ petition or a petition under Section 482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to a writ
petition, but it is equally well settled that if there is an alternative remedy the
High Court should not ordinarily interfere.
29. In Union of India vs. Prakash P. Hinduja and another 2003 (6)
SCC 195 (vide para 13), it has been observed by this Court that a Magistrate
cannot interfere with the investigation by the police. However, in our
opinion, the ratio of this decision would only apply when a proper
investigation is being done by the police. If the Magistrate on an application
under Section 156(3) Cr.P.C. is satisfied that proper investigation has not
been done, or is not being done by the officer-in-charge of the concerned
police station, he can certainly direct the officer in charge of the police http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
station to make a proper investigation and can further monitor the same
(though he should not himself investigate).
30. It may be further mentioned that in view of Section 36 Cr.P.C. if a
person is aggrieved that a proper investigation has not been made by the
officer-in-charge of the concerned police station, such aggrieved person can
approach the Superintendent of Police or other police officer superior in rank
to the officer-in-charge of the police station and such superior officer can, if
he so wishes, do the investigation vide CBI vs. State of Rajasthan and
another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR
1961 SC 1117 etc. Also, the State Government is competent to direct the
Inspector General, Vigilance to take over the investigation of a cognizable
offence registered at a police station vide State of Bihar vs. A.C. Saldanna
(supra).
31. No doubt the Magistrate cannot order investigation by the CBI vide
CBI vs. State of Rajasthan and another (Supra), but this Court or the High
Court has power under Article 136 or Article 226 to order investigation by
the CBI. That, however should be done only in some rare and exceptional
case, otherwise, the CBI would be flooded with a large number of cases and
would find it impossible to properly investigate all of them.
32. In the present case, there was an investigation by the G.R.P., Mathura
and also two Courts of Inquiry held by the Army authorities and they found
that it was a case of suicide. Hence, in our opinion, the High Court was
justified in rejecting the prayer for a CBI inquiry.
33. In Secretary, Minor Irrigation & Rural Engineering Services U.P.
and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide
para 6) , this Court observed that although the High Court has power to order
a CBI inquiry, that power should only be exercised if the High Court after
considering the material on record comes to a conclusion that such material
discloses prima facie a case calling for investigation by the CBI or by any
other similar agency. A CBI inquiry cannot be ordered as a matter of routine
or merely because the party makes some allegation.
34. In the present case, we are of the opinion that the material on record
does not disclose a prima facie case calling for an investigation by the CBI.
The mere allegation of the appellant that his son was murdered because he
had discovered some corruption cannot, in our opinion, justify a CBI
inquiry, particularly when inquiries were held by the Army authorities as
well as by the G.R.P. at Mathura, which revealed that it was a case of
suicide.
35. It has been stated in the impugned order of the High Court that the
G.R.P. at Mathura had investigated the matter and gave a detailed report on
29.8.2003. It is not clear whether this report was accepted by the Magistrate
or not. If the report has been accepted by the Magistrate and no
appeal/revision was filed against the order of the learned Magistrate
accepting the police report, then that is the end of the matter. However, if
the Magistrate has not yet passed any order on the police report, he may do
so in accordance with law and in the light of the observations made above.
36. With the above observations, this appeal stands dismissed.
37. Let a copy of this judgment be sent by the Secretary General of this
Court to the Registrar Generals/Registrars of all the High Courts, who shall
circulate a copy of this Judgment to all the Hon\022ble Judges of the High
Courts.

A person having 100 per cent burns can make a statement, and a certificate of fitness provided by a doctor is not a condition precedent for placing reliance upon a dying declaration.= her mother-in-law gave her few slaps, as a result of which the deceased began to cry. Her mother-in law then directed her husband to burn her alive. Her father-in-law had thus poured kerosene on her and had asked his wife to set her on fire, as a result of which her mother-in-law lit a matchstick and threw the same at her. Since the deceased began to scream, her parents-in-law came out of the house and bolted the door from the outside. On hearing her shriek, a few villagers sent news of the same to her parents who resided in a neighboring village, at a distance of about half a kilometer. Her father, mother and uncle thus came to the place of occurrence. The door was opened by them, and the deceased was taken out.= In our opinion, as the defence did not put any question either to the executive magistrate, or to the I.O., or to the doctors who had examined her or conducted the post-mortem, with respect to whether any part of the thumb had skin on it or not, as in both the dying declarations, ridges and curves had been clearly found to exist, we do not see any reason to dis-believe the version of events provided by the executive magistrate and the I.O., who had recorded the dying declarations. No suggestion was made to either of them in this regard, nor was any explanation furnished with respect to why these two independent persons who had recorded the dying declarations, would have deposed against the respondents accused. In the event that both of them had found the deceased to be in a fit physical and mental condition to make a statement, there exists no reason to disbelieve the same. In light of such a fact-situation, the concept of placing of a thumb impression, loses its significance altogether.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2303 of 2009
State of Madhya Pradesh …Appellant
Versus
Dal Singh & Ors. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 30.8.2006, passed by the High Court of Madhya
Pradesh at Jabalpur in Criminal Appeal No.2152 of 2003, by way of
which it has set aside the conviction of the respondents under Sections
498-A and 302, read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’) and acquitted them.
2. Facts and circumstances giving rise to this appeal are :-
A. That the deceased Kusum Rani got married to Hallu @
Chandrabhan, the 2nd respondent herein, in the year 2001. In herPage 2
marital home, she was ill-treated by her parents-in-law, respondents 1
and 3 herein. They would constantly tell her that she was incapable of
doing the house work properly, and her mother-in-law did not give her
sufficient food to eat.
B. On 29.11.2002 at noon, when the deceased returned home after
her bath in the pond, her mother-in-law hurled abuses at her and
inquired what she had been doing at the pond. When she replied that
she had been washing clothes there, 
her mother-in-law gave her few
slaps, as a result of which the deceased began to cry. 
Her mother-in law then directed her husband to burn her alive. 
Her father-in-law had
thus poured kerosene on her and had asked his wife to set her on fire,
as a result of which her mother-in-law lit a matchstick and threw the
same at her. Since the deceased began to scream, her parents-in-law
came out of the house and bolted the door from the outside. On
hearing her shriek, a few villagers sent news of the same to her
parents who resided in a neighboring village, at a distance of about
half a kilometer. Her father, mother and uncle thus came to the place
of occurrence. The door was opened by them, and the deceased was
taken out.
2Page 3
C. The deceased Kusum narrated the said incident to her parents,
and thereafter she was taken in a trolley to the Police Station, Nohta in
a severely burnt condition, where she herself lodged a report narrating
the incident, and at about 2 p.m., on the basis of the complaint, an
FIR, Ex.P-17 was recorded.
D. The Investigating Agency made all the necessary arrangements
in order to record her dying declaration and the Executive Magistrate
P.K. Chaturvedi (PW.12), was called for the aforementioned purpose.
Her dying declaration was recorded by the Executive Magistrate and
subsequently, the deceased was admitted to the Government Hospital,
Damoh at 3.25 p.m., where she died at 3.35 p.m. Intimation of her
death was communicated by the hospital officials to the Police. The
Investigating Agency thus took over the dead body of the deceased,
and sent it for post-mortem. They also seized all the necessary
articles from the spot, prepared the panchnama, and after recording
the statements of the witnesses, submitted a charge sheet before the
competent court, which in turn, committed the case to the Court of
Sessions. Hence, trial commenced after framing charges under
Sections 498-A, 302 and 306 IPC. The accused persons abjured their
guilt.
3Page 4
E. In order to prove the charges, the prosecution examined as
many as 17 witnesses, and placed reliance on Ex.P1 to P24. The
respondents-accused took the defence of an alibi in their statement
recorded under Section 313 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the ‘Cr.P.C’), stating that they had been in
their agricultural field at the time of the said incident and it was here
that they had received information about the incident. The deceased
had committed suicide and they were being falsely been implicated.
F. The learned Additional Sessions Judge, Damoh, in Sessions
Trial No.305 of 2002, vide judgment and order dated 6.12.2003, after
appreciating the material on record, recorded findings of fact to the
effect that the deceased had not committed suicide, and that the
respondents-accused were guilty of the offences punishable under
Sections 498-A and 302, r/w Section 34 IPC. They were convicted
and sentenced under Section 498-A IPC for two years RI and a fine of
Rs.500/- each, in default of payment of fine, to further undergo one
month RI; and under Section 302/34 IPC, to undergo imprisonment
for life and a fine of Rs.2,000/- each, in default of payment of fine, to
suffer further RI for 6 months.
4Page 5
G. Aggrieved by the aforesaid order of conviction and sentence,
the respondents-accused challenged the same before the High Court,
preferring Criminal Appeal No.2152 of 2003, which was allowed by
the High Court vide its impugned judgment and order, acquitting all
the accused.
Hence, this appeal.
3. Ms. Vibha Datta Makhija, learned standing counsel has
submitted, that the only ground taken by the High Court for reversing
the judgment and order of the Trial Court was that conviction can be
based solely upon a dying declaration, provided that the same is found
to be trustworthy. However, in the instant case, as the deceased had
100 per cent burn injuries, she would not have in all probability, been
in a position to make a statement. Additionally, in the absence of a
certificate provided by a doctor to the extent that she had in fact been
fit enough to make such a statement, the said dying declaration could
not be relied upon, as she had died as a result of such injuries on her
person, after traveling about 10 k.ms. from the place of occurrence to
the Police Station. The High Court doubted her ability to speak and
also the lodging of the FIR. There is sufficient evidence on record to
show that Kusum had been ill-treated by her parents-in-law, and thus
5Page 6
that they were responsible for causing her death.
  A person having 100
per cent burns can make a statement, and a certificate of fitness
provided by a doctor is not a condition precedent for placing reliance upon a dying declaration.
Therefore, the appeal deserves to be
allowed.
4. Per contra, Ms. Nidhi, learned counsel for the respondents has
submitted, that the FIR alleged to have been lodged by Kusum,
deceased, bore her thumb impression and has also stated that she had
narrated the entire incident, on the basis of which an FIR was lodged.
The High Court has rightly reached the conclusion that a person with
100 per cent burns could neither affix a thumb impression, nor
manage to speak, and therefore, the respondents have rightly been
acquitted. The parameters laid down by this Court for interference
against an order of acquittal by the High Court do not require
interference. Moreover, the said incident took place about 12 years
ago. The respondents have suffered considerably. Thus, at such a
belated stage, no interference is called for. There are material
contradictions in the two dying declarations, as well as in the
depositions of the witnesses. The appeal is liable to be dismissed.
6Page 7
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Appeal against acquittal:
6. It is a settled legal proposition that in exceptional
circumstances, the appellate court for compelling reasons should not
hesitate to reverse a judgment of acquittal passed by the court below,
if the findings so recorded by the court below are found to be
perverse, i.e. if the conclusions arrived at by the court below are
contrary to the evidence on record, or if the court’s entire approach
with respect to dealing with the evidence is found to be patently
illegal, leading to the miscarriage of justice, or if its judgment is
unreasonable and is based on an erroneous understanding of the law
and of the facts of the case. While doing so, the appellate court must
bear in mind the presumption of innocence in favour of the accused,
and also that an acquittal by the court below bolsters such
presumption of innocence. (Vide: Abrar v. State of U.P., AIR 2011
SC 354; and Rukia Begum v. State of Karnataka, AIR 2011 SC
1585).
7Page 8
Discrepancies:
7. So far as the discrepancies, embellishments and improvements
are concerned, in every criminal case the same are bound to occur for
the reason that witnesses, owing to common errors in observation, i.e.,
errors of memory due to lapse of time, or errors owing to mental
disposition, such as feelings shock or horror that existed at the time of
occurrence.
The court must form its opinion about the credibility of a
witness, and record a finding with respect to whether his deposition
inspires confidence. “Exaggeration per se does not render the
evidence brittle. But it can be one of the factors against which the
credibility of the prosecution’s story can be tested, when the entire
evidence is put in a crucible to test the same on the touchstone of
credibility.” Therefore, mere marginal variations in the statements of a
witness cannot be dubbed as improvements, as the same may be
elaborations of a statement made by the witness at an earlier stage.
“Irrelevant details which do not in any way corrode the credibility of
a witness cannot be labelled as omissions or contradictions.” The
omissions which amount to contradictions in material particulars, i.e.
which materially affect the trial, or the core of the case of the
8Page 9
prosecution, render the testimony of the witness as liable to be
discredited.
Where such omission(s) amount to contradiction(s), raising
serious doubts about the truthfulness of a witness, and other witnesses
also make material improvements before the court in order to make
their evidence acceptable, it cannot be said that it is safe to rely upon
such evidence. (Vide: A. Shankar v. State of Karnataka, AIR 2011
SC 2302).
Whether 100 per cent burnt person can make a dying declaration
or put a thumb impression:
8. In Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992
SC 2186, this Court dealt with a case wherein a question arose with
respect to whether a person suffering from 99 per cent burn injuries
could be deemed capable enough for the purpose of making a dying
declaration. The learned trial Judge thought that the same was not at
all possible, as the victim had gone into shock after receiving such
high degree burns. He had consequently opined, that the moment the
deceased had seen the flame, she was likely to have sustained mental
shock. Development of such shock from the very beginning, was the
ground on which the Trial Court had disbelieved the medical evidence
9Page 10
available. This Court then held, that the doctor who had conducted
her post-mortem was a competent person, and had deposed in this
respect. Therefore, unless there existed some inherent and apparent
defect, the court could not have substitute its opinion for that of the
doctor’s. Hence, in light of the facts of the case, the dying
declarations made, were found by this Court to be worthy of reliance,
as the same had been made truthfully and voluntarily. There was no
evidence on record to suggest that the victim had provided a tutored
version, and the argument of the defence stating that the condition of
the deceased was so serious that she could not have made such a
statement was not accepted, and the dying declarations were relied
upon.
A similar view has been re-iterated by this Court in Rambai v.
State of Chhatisgarh, (2002) 8 SCC 83.
9. In Laxman v. State of Maharashtra, AIR 2002 SC 2973, this
Court held, that a dying declaration can either be oral or in writing,
and that any adequate method of communication, whether the use of
words, signs or otherwise will suffice, provided that the indication is
positive and definite. There is no requirement of law stating that a
dying declaration must necessarily be made before a Magistrate, and
10Page 11
when such statement is recorded by a Magistrate, there is no specified
statutory form for such recording. Consequently, the evidentiary value
or weight that has to be attached to such a statement, necessarily
depends on the facts and circumstances of each individual case. What
is essentially required, is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of
mind, and where the same is proved by the testimony of the
Magistrate, to the extent that the declarant was in fact fit to make the
statements, then even without examination by the doctor, the said
declaration can be relied and acted upon, provided that the court
ultimately holds the same to be voluntary and definite. Certification
by a doctor is essentially a rule of caution, and therefore, the voluntary
and truthful nature of the declaration can also be established
otherwise.
10. In Koli Chunilal Savji v. State of Gujarat, AIR 1999 SC
3695, this Court held, that the ultimate test is whether a dying
declaration can be held to be truthfully and voluntarily given, and if
before recording such dying declaration, the officer concerned has
ensured that the declarant was in fact, in a fit condition to make the
statement in question, then if both these aforementioned conditions
11Page 12
are satisfactorily met, the declaration should be relied upon. (See
also: Babu Ram & Ors. v. State of Punjab, AIR 1998 SC 2808).
11. In Laxmi v. Om Prakash & Ors., AIR 2001 SC 2383, this
court held, that if the court finds that the capacity of the maker of the
statement to narrate the facts was impaired, or if the court entertains
grave doubts regarding whether the deceased was in a fit physical and
mental state to make such a statement, then the court may, in the
absence of corroborating evidence lending assurance to the contents
of the declaration, refuse to act upon it.
12. In Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC
533, it was argued that the Executive Magistrate, while recording the
dying declaration did not get any certificate from the medical officer
regarding the condition of the deceased. This Court then held, that
such a circumstance itself is not sufficient to discard the dying
declaration. Certification by a doctor regarding the fit state of mind of
the deceased, for the purpose of giving a dying declaration, is
essentially a rule of caution and therefore, the voluntary and truthful
nature of such a declaration, may also be established otherwise. Such
a dying declaration must be recorded on the basis that normally, a
12Page 13
person on the verge of death would not implicate somebody falsely.
Thus, a dying declaration must be given due weight in evidence.
13. In State of Punjab v. Gian Kaur & Anr., AIR 1998 SC 2809,
an issue arose regarding the acceptability in evidence, of the thumb
impression of Rita, the deceased, that appeared on the dying
declaration, as the trial court had found that there were clear ridges
and curves, and the doctor was unable to explain how such ridges
and curves could in fact be present, when the skin of the thumb had
been completely burnt. The court gave the situation the benefit of
doubt.
14. The law on the issue can be summarised to the effect that law
does not provide who can record a dying declaration, nor is there any
prescribed form, format, or procedure for the same. The person who
records a dying declaration must be satisfied that the maker is in a fit
state of mind and is capable of making such a statement. Moreover,
the requirement of a certificate provided by a Doctor in respect of
such state of the deceased, is not essential in every case.
Undoubtedly, the subject of the evidentiary value and
acceptability of a dying declaration, must be approached with caution
13Page 14
for the reason that the maker of such a statement cannot be subjected
to cross-examination. However, the court may not look for
corroboration of a dying declaration, unless the declaration suffers
from any infirmity.
So far as the question of thumb impression is concerned, the
same depends upon facts, as regards whether the skin of the thumb
that was placed upon the dying declaration was also burnt. Even in
case of such burns in the body, the skin of a small part of the body, i.e.
of the thumb, may remain intact. Therefore, it is a question of fact
regarding whether the skin of the thumb had in fact been completely
burnt, and if not, whether the ridges and curves had remained intact.
15. The present case requires to be examined in light of the
aforesaid settled legal propositions.
With the help of the learned counsel for the parties, i.e. Ms.
Vibha Datta Makhija and Ms. Nidhi, we have gone through the entire
evidence on record, and it may be necessary to provide a bird’s eye
view of the same, particularly of the portion provided by the
magistrate, who had recorded the deceased’s dying declaration.
14Page 15
16. P.K. Chaturvedi (PW.12), the Executive Magistrate had
recorded the dying declaration of the deceased, and he deposed that
no doctor had been available at Nohta at the relevant time. He had
been called by the police, and despite this fact he had asked the police
officer to call a doctor. He further deposed that he had recorded the
dying declaration in the form of questions and answers and that he had
satisfied himself that Kusumbai, had in fact been fit enough to make
such a statement. While making her statement, Kusumbai had been
fully conscious, and she had placed her thumb impression on the
same. When her statement was recorded, she was tutored by anybody,
though some other persons had been present at such time. Kusumbai,
deceased, had spoken continuously and clearly.
17. Similarly, R.S. Parmar (PW.14), the Investigating Officer has
deposed, that he had recorded the report as had been narrated by
Kusumbai. He had not added/omitted anything in the said report. He
had read over the same to her after writing it, after which she admitted
it to be true, and thus put her thumb impression upon the same. He
has further deposed that he had called Naib Tehsildar Jabera to record
the dying declaration of Kusumbai, and as no doctor had been
available in Nohta at the said time, a doctor could not be arranged.
15Page 16
18. In the dying declaration recorded by P.K. Chaturvedi (PW.12),
it is stated that the mother-in-law of Kusumbai had set her on fire by
throwing kerosene oil on her, and that her father-in-law had also set
her on fire. Her husband Chandrabhan, had closed the door. While
she screamed in pain, her uncle Hakam Singh had brought her out by
opening the door. While lodging the FIR, it was recorded by R.S.
Parmar (PW.14), that her father-in-law Dal Singh had said, ‘burn this
bitch’. Her father-in-law had then lifted the kuppi of kerosene oil, and
had poured the same on her, after which he had told his wife to set her
ablaze. Thereafter, her mother-in-law had lit a matchstick and set her
on fire. She had started to scream because of pain. Her husband Hallu
had then closed the door of the room. After hearing the hue and cry
raised by her, a person from the village had informed her family who
lived closeby. Her father Nirpat Singh, uncle Hakam Singh and
several other persons had come there, and her uncle Hakam Singh,
had opened the door and had brought her out. There is thus, some
discrepancy in both the dying declarations.
19. Dr. S.K. Jain (PW.8) deposed on 7.4.2003, stating that he had
been the medical officer in the district hospital Damoh on 29.11.2002.
Kusumbai had been brought for medical examination from the police
16Page 17
station in an injured state and he had examined her. According to him,
she had on her person, 100% superficial burn injuries, and the smell of
kerosene oil had also been present in the body of the victim. She was
unconscious at the time, and her pulse and blood pressure had been
difficult to detect. She was able to breathe, but with great difficulty.
She had died after some time. In his cross-examination, he has
deposed that at the time of examination at the initial stage, Kusumbai
had been unconscious, and had been unable to speak. He has further
opined that if a person suffers 100% burn injuries, then he may not be
able to speak.
20. Burn injuries are normally classified into three degrees. The
first is characterised by the reddening and blistering of the skin alone;
the second is characterised by the charring and destruction of the full
thickness of the skin; and the third is characterized by the charring of
tissues beneath skin, e.g. of the fat, muscles and bone. If a burn is of a
distinctive shape, a corresponding hot object may be identified as
having been applied to the skin, and thus the abrasions will have
distinctive patterns.
17Page 18
21. There may also be in a given case, a situation where a part of
the body may bear upon it severe burns, but a small part of the body
may have none. When burns occur on the scalp, they may cause
greater difficulties. They can usually be distinguished from wounds
inflicted before the body was burnt by their appearance, their position
in areas highly susceptible to burning, and on fleshy areas by the
findings recorded after internal examination. Shock suffered due to
extensive burns is the usual cause of death, and delayed death may be
a result of inflammation of the respiratory tract, caused by the
inhalation of smoke. Severe damage to the extent of blistering of the
tongue and the upper respiratory tract, can follow due to the inhalation
of smoke. (See: Modi’s Medical Jurisprudence and Toxicology by
Lexis Nexis Butterworths Chapter 20).
22. FIR (Ex. P-17) – It was recorded by Kusum Bai – deceased,
on 29.11.2002 at about 2.00 p.m. According to the FIR, the said
incident had occurred at 10.00 a.m. and the distance between the
police station and place of occurrence is about 10 Kms. The deceased
in the FIR, has named all the three accused. The deceased has
mentioned that her mother-in-law had not been giving her adequate
meals, and continuously harassed her for not working. On that fateful
18Page 19
day, her mother-in-law had slapped her 2-3 times and she had started
to cry loudly. Thereafter, her father-in-law had asked the other
accused, if this bitch should be burnt alive? He had then brought a can
of kerosene oil and poured its contents over her. Her mother-in-law
lit a matchstick and had thrown its contents on her, setting her ablaze.
She had then begun to scream owing to the pain. Her husband had
locked the door. Her parents-in-law and husband had set her on
fire with the intention of causing her death. She had burns all over
her body.
There is a thumb impression on the FIR which appears to be
normal. It has ridges and curves.
23. Ex.P-14 is the dying declaration recorded by the Executive
Magistrate, Jabera. The original reveals that the executive Magistrate
had asked the SHO to call a doctor at 2.25 p.m., but there is an
endorsement stating that there was no government doctor available at
Nohta. What the deceased has said, is that her mother in law had set
her on fire. Her father-in-law and husband had also been party to the
same. She has also stated that they had never provided her adequate
food. She, in anger, had told them not to harass her everyday and to
simply kill her (set me ablaze). Her mother-in-law had poured
19Page 20
kerosene oil on her and had then set her ablaze, (humari saas ne mitti
ka tal dalkar jalaya). Her father-in-law set her on fire (Sasur ne aag
lagayi). Her husband bolted the door.
There is thumb impression of the deceased on the FIR also. We
have carefully seen the thumb impression of the deceased on the said
dying declaration. The same has ridges and curves.
24. It is evident from the record that defence neither put any
question in cross-examination to either the Executive Magistrate, or to
the doctor who had examined the deceased in the hospital, or to Dr.
S.K. Jain (PW.8), who had conducted the autopsy on the body of the
deceased with respect to whether the skin of the thumb was also burnt,
or whether the same was intact. Nor was any such question put to
R.S. Parmar (PW.14), who had recorded the FIR, which can also be
treated as a dying declaration.
25. The respondents in their statements under Section 313 Cr.P.C.
denied their presence at home at the time of incident, taking the plea
that they had been working in their agricultural field. They had rushed
to the place of occurrence only after learning about the incident. They
further took the defence that Kusumbai had committed suicide by
20Page 21
burning herself, and that it was on being tutored by her parents that
she had given a dying declaration against them. The trial court
however, rejected the suggestion made by Mannu Singh (PW.5), to
the effect that Kusumbai had caught fire while preparing food on the
ground. Kerosene oil had been found on her body and in her burnt
clothes and hair. Evidence has been led by the prosecution witnesses
to the extent that she had died within a short span of 10 months of her
marriage, and that she had been ill-treated by her parents-in-law as she
was not being given proper food etc. She had been harassed and
tortured by her in-laws, as she was not good looking, could not cook
well, and had been unable to do household work properly. She was
considered to have a temperamental nature, and thus had also been
slapped. This evidence has not been challenged by the defence.
26. The contradictions raised by the defence in the two dying
declarations, as regards who had put the kerosene oil on her, and who
had lit the fire have been carefully examined and explained by the trial
court. Furthermore, in such a state of mind, one cannot expect that a
person in such a physical condition, would be able to give the exact
version of the incident. She had been suffering from great mental and
physical agony. Upon proper appreciation of the evidence on record,
21Page 22
the trial court had found the dying declarations to be entirely
believable, and worth placing reliance upon, but the High Court on a
rather flimsy ground, without appreciating material facts, has taken a
contrary view. In our opinion, as the defence did not put any question
either to the executive magistrate, or to the I.O., or to the doctors who had examined her or conducted the post-mortem, with respect to
whether any part of the thumb had skin on it or not, as in both the dying declarations, ridges and curves had been clearly found to exist,
we do not see any reason to dis-believe the version of events provided
by the executive magistrate and the I.O., who had recorded the dying declarations. 
No suggestion was made to either of them in this regard,
nor was any explanation furnished with respect to why these two
independent persons who had recorded the dying declarations, would
have deposed against the respondents accused. In the event that both
of them had found the deceased to be in a fit physical and mental
condition to make a statement, there exists no reason to disbelieve the
same. In light of such a fact-situation, the concept of placing of a
thumb impression, loses its significance altogether. 
27. We cannot accept the submissions made on behalf of the
respondents stating that Kusumbai had been tutored by her parents, as
22Page 23
the evidence on record clearly reveals that the tractor had been
brought at the instance of the respondents, and that they had been
present in the trolley with her parents and other relatives throughout.
Therefore, her parents and other relatives could have had no
opportunity to implicate the respondents, or to tutor her.
28. Thus, in view of the above, the appeal succeeds and is allowed.
The judgment and order impugned before us, passed by the High
Court is set aside, and the judgment and order of the trial court is
restored. The respondents are directed to surrender within a period of
four weeks from today, failing which the learned Chief Judicial
Magistrate, Damoh, Madhya Pradesh, shall take them into custody
and send them to jail to serve out the remaining part of their sentence.
A copy of the order be sent to the CJM by the registry.
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
(DIPAK MISRA)
New Delhi,
May 21, 2013
23

murder case = i) As per site plan (Ex.P-9) mustard crop, standing on the land in dispute was destroyed by the tractor. ii) As many as 14 member of the complainant party sustained injuries. Veerpal died as a result of injuries received by him. iii) Member of complainant party had gone to the land in question unarmed and asked the accused party not to disturb mustard crop whereas accused party had gone with lethal weapons. iv) There is chequered history of litigation between the complainant party and the accused party. v) Accused Sita Ram and Ranveer had guns whereas accused Ranveer, Yogendra and Balla had kattas (country made pistols) and they indiscriminately opened fire at the members of complainant party. vi) According to Prahlad Singh I.O. (PW.29) cross case bearing FIR No.254/99 under sections 447, 323, 341, 147 and 148 IPC was registered against the members of accused party. Ghambhir Singh (appellant) sustained simple injuries that were incorporated in injury report (Ex.D.15).” 12. The High Court, after re-appreciating the evidence on record, has rightly rejected the contention of self-defence that had been raised, and acquitted some of the convicted accused, giving them the benefit of doubt. In light of such a fact-situation, we do not see any cogent reason to interfere with the impugned judgment.

Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1946 of 2009
Yogendra @ Yogesh & Ors. …Appellants
Versus
State of Rajasthan …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 3.12.2007, passed by the High Court of Rajasthan
(Jaipur Bench), in Criminal Appeal No.583 of 2003, by way of which
the High Court has affirmed the judgment and order dated 8.4.2003,
passed by the learned Additional District and Sessions (Fast Track)
Judge No.1, Bharatpur, so far as the appellants are concerned. The
Trial Court therein, had convicted 9 accused, including the present 5
appellants as under:-Page 2
Sita Ram and Ramveer, under Section 302 of the Indian Penal
Code, 1860 (hereinafter referred to as the ‘IPC’). Yogendra @
Yogesh, Rattan Singh, Kalwa, Ranveer, Ghambhir Singh, Paras Ram
and Balla under Section 302/149 IPC. They have been awarded the
sentence of life imprisonment and a fine of Rs.1,000/- each has been
imposed on them. In default of payment of such fine, they have been
directed to suffer further Simple Imprisonment for a period of 2
months. All of them have further been convicted under Section 148
IPC, and punishments of 7 years’ RI, alongwith a fine of Rs.1,000/-
each, has been imposed on them, and in default, they have been
directed to suffer further SI for 1 month under Section 307/149 IPC.
The appellants Sita Ram, Ranveer and Yogendra have further been
convicted under Section 3/25 of the Arms Act, 1959, and have been
awarded the sentence of 3 years’ RI, alongwith a fine of Rs.1,000/-
each, and in default of payment of such fine, they must further suffer
SI for a period of 1 month. However, the substantive sentences were
ordered to run concurrently.
2. The High Court has modified the judgment and order of the
Trial Court, dismissing the appeal of some of the appellants and
convicting Sita Ram, Ranveer, Yogendra, Ramveer and Balla. Sita
2Page 3
Ram and Ramveer have been convicted under Section 302/149 IPC,
instead of Section 302 IPC, and the sentences awarded to them have
remained the same. Their conviction under Section 307/149 IPC and
under Section 3/25 of the Arms Act have remained intact. Conviction
and sentence of Yogendra, Ranveer and Balla under Section 302/149
IPC and 307/149 IPC, and of Ranveer and Yogendra under Section
3/25 Arms Act have remained intact. However, they have been
acquitted of the charge under Section 148 IPC. The appeals of the
other accused persons, namely, Ratan Singh, Kalwa, Ghambhir Singh
and Paras Ram were allowed.
3. Facts and circumstances giving rise to this appeal are that:-
A. That Karan Singh and Kewal Singh of the same village had
purchased some land in village Ajan from Shodan Singh and Raghubir
Singh in the year 1979. Since then they have been cultivating the said
land. On 18.10.1999, a written report Ex.P-1 was lodged by Shodan
Singh (PW.1), at the Police Station Udyog Nagar, Bharatpur, alleging
that 7-8 days prior to the incident, Karan Singh and others had sown
some mustard on the said land. On 18.10.1999 at about 12 noon, the
complainant party was informed by Shiv Singh, that the mustard that
had been sown by them was being removed by the appellants
3Page 4
alongwith others, with the help of a tractor. On receiving the said
information, the complainant party, i.e. Karan Singh, Kewal Singh,
Badan Singh, and a few other family members had proceeded to the
place of incident. They had seen the accused persons destroying the
mustard that had been sown by them. The accused persons had been
fully armed with lathis, kattas, and farsas. One of them had been
armed with a gun. When the complainant party had tried to stop the
accused, Ratan Singh had instigated the other accused persons to
assault the complainant party, and thus, the assault began. On hearing
the hue and cry raised as a result of the same, Vijay Pal and few others
had reached the place of occurrence. Shodan Singh (PW.1),
informant, had also witnessed the incident, as he had been coming
back from his fields at the relevant time. Some people from the
complainant’s side had received firearm injuries. Some of them had
also received injuries from lathis and farsas. The accused had then
fled away from the scene after injuring 15 people. The injured persons
had been taken to the hospital. Veer Pal and Satyendra had suffered
grievous injuries. They had been referred to Jaipur, and a case was
registered against the accused under Sections 147, 148, 149, 323, 341,
447 and 307 IPC, and investigation commenced in this respect.
4Page 5
B. During the course of the investigation, Veer Pal succumbed to
his injuries and therefore, Section 302 IPC was also added. His dead
body was subjected to an autopsy, and necessary memos had been
prepared. Statements of witnesses were recorded. The accused
persons were arrested, and on completion of the investigation, a
chargesheet had been filed. Upon conclusion of the trial, the Trial
Court had convicted the appellants alongwith several others, as has
been mentioned hereinabove, vide judgment and order dated 8.4.2003.
C. Aggrieved, they preferred Criminal Appeal No. 583 of 2003
which was disposed of vide impugned judgment dated 3.12.2007,
which acquitted a few people, but the conviction of the appellants
with certain modifications was upheld, as has been referred to
hereinabove.
Hence, this appeal.
4. Shri Altaf Hussain, learned counsel appearing for the appellants
has submitted, that the Trial Court had convicted 9 persons, out of
which, 4 have been acquitted by the High Court, though they had also
earlier been convicted on the basis of the same evidence. Hence, in
light of the same, the conviction of the appellants can also not be
sustained, owing to the fact that if the High Court has disbelieved
5Page 6
certain evidence with respect to 4 of the acquitted accused, the same
could not have been relied upon by it, so far as the appellants are
concerned. There are material discrepancies and contradictions in the
evidence of the witnesses. The same should not therefore, have been
relied upon. The judgments of the courts below are liable to be set
aside.
5. Per contra, Shri Ram Naresh Yadav, learned counsel for the
State has opposed the appeal, contending that the High Court has reappreciated the entire evidence on record, and has thereafter come to
the conclusion that the present appellants had been responsible for
causing the death of one person, and for causing grievous injuries to
fourteen others. Most of the injured persons have appeared as
witnesses, and their presence cannot be doubted. There may be a
possibility of false implication of some of the accused in the present
case, but the evidence of the injured witnesses deserves to be
accepted. It is not possible that such injured persons, in a case where
there has been loss of life, would spare the real culprit, and falsely
implicate anyone. Thus, the appeal lacks merit and is liable to be
dismissed.
6Page 7
6. We have considered the rival submissions made by learned
counsel for the parties, and perused the record.
7. The Trial Court has examined the evidence on record very
intricately, and after properly appreciating the same, has convicted all
9 accused. The High Court, after re-appreciating the evidence has
given 4 accused persons the benefit of doubt, in view of the fact that
they had not been in possession of any arms. Both the courts below
have rejected the theory of self-defence, and have held the appellants
to be aggressors. The courts have found that the presence of the
present appellants at the place of occurrence stands fully established
beyond any reasonable doubt. They had in fact been present at the
place of the incident, and had been armed with a gun and kattas. The
complainant party had in contrast, been entirely unarmed, and they
had remained outside the land in dispute and had simply requested
the appellants and others to not destroy the mustard crops that had
been sown by them. Even otherwise, the absence of any injury made
on the part of any of the assailants except Ghambhir Singh (acquitted
accused), renders false, the defence’s version. There was no question
raised regarding how so many injuries could have been caused to so
many persons. In the instant case, complainant Shodan Singh (PW.1),
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and all other injured witnesses have deposed consistently, as regards
the involvement of the present appellants. They have also deposed
that the appellants had been heavily armed with weapons, and had
caused injuries to the deceased, as well as to the witnesses.
8. The post-mortem on the body of Veer Pal, had been conducted
on 19.10.1999, and the following ante-mortem injuries had been
found on his body:-
(i) Multiple punctured lacerated wound ¼ x ¼ cm oval to round
shape on (Rt) side lower neck to shoulder and upper part of
anterior and frontal medial (Rt) side of chest.
(ii) Punctured lacerated wound has entered (Rt.) side peritoneum to
(Rt.) liver lobe.
In the opinion of the Doctor, the cause of death was shock
hemorrhage, caused as a result of ante-mortem injuries to the lung and
liver, which was sufficient to cause death in the ordinary course of
nature. Duration of injuries was fresh before death, by projectile
firearm weapon gun shot injury.
So far as the other injured persons are concerned, it is evident
from the record and the evidence provided by the doctors, that Padam
Singh had two injuries on his person. Satish Kumar also had various
8Page 9
wounds caused by trampling. Radhey Shyam had suffered two
injuries. Maharaj Singh had on his person, four injuries which had
been caused by a fire arm. Injury Nos. 1 & 4 were found to have been
caused by a blunt weapon. Chander Hans had two injuries on his
person. Bachcho Singh also had two injuries. Similarly, Raj Kumar
had two injuries, and Vijaypal also had two injuries. Kewal Singh had
suffered two injuries by a fire arm. Pushpender had also suffered
grievous injuries caused by a fire arm. Karan Singh had four injuries
on his person, out of which two injuries were found to be grievous.
Satyendra had only one injury on his person. The said injuries have all
been proved by doctor B.L. Meena (PW.18), and it has also been
deposed by various doctors, that such injuries were caused by fire
arm, lathis, sticks and farsas, thus collaborating the deposition of Dr.
Suman Dutta (PW.24).
9. The argument advanced by Shri Altaf Hussain, learned counsel
for the appellants, stating that the evidence which has been
disbelieved in respect of certain accused, cannot be enough to convict
the present appellants, has no force.
This Court, in Ranjit Singh & Ors. v. State of Madhya
Pradesh, AIR 2011 SC 255, has dealt with a similar issue. The Court
9Page 10
herein, considered its earlier judgments in Balaka Singh v. State of
Punjab, AIR 1975 SC 1962; Ugar Ahir & Ors., v. State of Bihar,
AIR 1965 SC 277; and Nathu Singh Yadav v. State of Madhya
Pradesh, AIR 2003 SC 4451, and has referred to the doctrine, "falsus
in uno, falsus in omnibus" and held, that the same has no application
in India. The court must assess the extent to which the deposition of a
witness can be relied upon. The court must make every attempt to
separate falsehoods from the truth, and it must only be in exceptional
circumstances, when it is entirely impossible to separate the grain
from the chaff, for the same are so inextricably entertwined, that the
entire evidence of such a witness must be discarded.
10. The courts below have examined the evidence and have
appreciated the same in correct perspective. The Trial Court, after
appreciating the medical evidence and the injuries etc. on the persons
of the injured witnesses, has come to the following conclusions:
“In this case there are a total 14 injured persons of
whom Veerpal has died due to injuries and the injured
Padma could not be examined due to his death and
Kewal could not be examined due to his mental
incapacity. In the remaining injured persons PW.1
Shodan (complainant), PW.5 Satish, PW.7 Maharaj
Singh, PW.10 Bachcho Singh, PW.12 Radhey Shyam,
PW.15 Pushpender, PW.16 Satyendra and PW.19 Karan
Singh have received injuries due to fire arm and PW.2
10Page 11
Raj Kumar, PW.4 Chander Hans and PW.11 Vijay Pal
have received injuries by the impact of blunt weapon.
Padma and Kewal who respectively expired and lost
mental balance could not be examined and they have
received fire arm injury. In the head of injured Karan
Singh and in the finger of his hand grievous injury has
been caused by the impact of a blunt weapon. From the
statement of Karan Singh it is clear that Paras Ram gave
lathi blow on his head and Ghambhir gave farsa blow on
his head and caused injuries thereon and one blow of the
farsa is stated to have landed on his finger also. Both the
injuries in the head and the hand are grievous. Firstly
the medical examination of Karan Singh was conducted
by Dr. B.L. Meena (PW.18) and found 4 injuries on his
person but after that Karan Singh was treated in the SMS
Hospital and from the statement of PW.35 Dr.
Vivekanand Goswami it is clear that on the person of
Karan Singh there were six injuries instead of four and
he had grievous injury on his head and there was a
punctured wound on the middle finger of his left hand.
This injury was also found to be grievous. On the right
hand of Karan Singh there were three trampling wounds
of fire arms.”
11. The High Court has re-appreciated the evidence on record and
considered the case taking into account the gravity of the injuries, as
well as the death of Veerpal, and has come to a conclusion as under:
“From the evidence of Shodan Singh (PW.1), Raj Kumar
(PW.2), Chandra Hans (PW.4), Satish Chand (PW.5),
Shiv Singh (PW.6), Maharaj Singh (PW.7), Foren Singh
(PW.8), Bachcho Singh (PW.10), Vijay Pal (PW.11),
Radhey Shyam (PW.12), Pushpendra (PW.15), Satyendra
Singh (PW.16) and Karan Singh (PW.19), the fact
situation that emerges may be summarized thus:
11Page 12
i) As per site plan (Ex.P-9) mustard crop, standing
on the land in dispute was destroyed by the
tractor.
ii) As many as 14 member of the complainant party
sustained injuries. Veerpal died as a result of
injuries received by him. 
iii) Member of complainant party had gone to the land
in question unarmed and asked the accused party
not to disturb mustard crop whereas accused party
had gone with lethal weapons. 
iv) There is chequered history of litigation between
the complainant party and the accused party.
v) Accused Sita Ram and Ranveer had guns whereas
accused Ranveer, Yogendra and Balla had kattas
(country made pistols) and they indiscriminately
opened fire at the members of complainant party.
vi) According to Prahlad Singh I.O. (PW.29) cross
case bearing FIR No.254/99 under sections 447,
323, 341, 147 and 148 IPC was registered against
the members of accused party. Ghambhir Singh
(appellant) sustained simple injuries that were
incorporated in injury report (Ex.D.15).” 
12. The High Court, after re-appreciating the evidence on record,
has rightly rejected the contention of self-defence that had been
raised, and acquitted some of the convicted accused, giving
them the benefit of doubt. In light of such a fact-situation, we
do not see any cogent reason to interfere with the impugned
judgment. The present appeal thus lacks merit, and is
12Page 13
accordingly dismissed. The appellants are on bail. Their bail
bonds are cancelled, and they are directed to surrender within a
period of four weeks from today, failing which the learned
Chief Judicial Magistrate, Bharatpur shall take them into
custody, and send them to jail to serve out the remaining part of
their sentence. A copy of this order be sent to the CJM,
Bharatpur by the registry for information and compliance.
……….………………………J.
 (Dr. B.S. CHAUHAN)
 ………………………………J.
 (DIPAK MISRA)
New Delhi,
May 21, 2013
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