ACQUITTAL under Section 302 read with Section 201 of the Indian Penal Code 1860 (hereinafter referred to as the ‘IPC’).= Admittedly, there was a divorce between the parties. Therefore, the question of demand of dowry or ill-treatment or harassment could not arise after 8 years of divorce decree by the court. The mother of Ratna has deposed about the illicit relationship of the appellant and another woman and the appellant wanted to marry that woman. In case the parties had separated by a divorce through court, we fail to understand how Ratna (deceased) or her parents were concerned about such a relationship. 15. It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same.= whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant (s). - In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The High Court did not consider the matter in correct perspective nor observed the parameters laid down by this court to interfere against the order of acquittal. In view of the above, the appeal is allowed and the judgment and order of the High Court is set aside. The judgment and order of the Sessions Court is restored. The appellant is on bail. His bail bonds stand discharged.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.248 of 2007
Bhadragiri Venkata Ravi …Appellant
Versus
Public Prosecutor
High Court of A.P., Hyderabad …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated
13.9.2006, passed by the High Court of Andhra Pradesh at Hyderabad
in Criminal Appeal No.863 of 2004, by way of which the High Court
reversed the judgment and order of the Sessions Judge, Vijianagaram
dated 19.10.2001, passed in Sessions Case No.40 of 2001, by way of
which and whereunder the appellant stood acquitted of the charges
Page 2
under Section 302 read with Section 201 of the Indian Penal Code
1860 (hereinafter referred to as the ‘IPC’).
2. Facts and circumstances giving rise to this appeal are that:
A. The appellant had developed intimacy with Ratna Kumari
(deceased) and got an inter caste marriage, registered on 26.10.1991
under the Hindu Marriage Act, 1955. Their married life was not very
happy, therefore, Divorce Petition being O.P. No.37/92 was filed and
the same was rejected by the Family Court on the ground that one
year had not elapsed after their marriage.
B. Thus, a fresh Divorce Petition, i.e., O.P. No.65 of 1992 was
filed on 31.12.1992. Their marriage was dissolved and the appellant
and deceased stood separated. There was no child out of the said
wedlock.
C. The deceased was a well qualified woman as she has obtained
M.Com., LL.B. qualification. In order to earn her livelihood, she had
been giving tuitions to the students in a rented premises i.e. House
no.754, Phoolbagh Colony, Vijianagaram. The appellant, as alleged,
in spite of their divorce, was having visiting terms with the deceased.
2Page 3
D. On 15.4.2000, Ratna Kumari was admitted in the Govt.
Headquarter Hospital, Vijianagaram at 1.30 p.m. with 44% burns.
Her statement/complaint was recorded by the head constable of police
wherein she had stated that a stove full of kerosene oil fell upon her
and thus, she suffered burn injuries. On the basis of the same an FIR
was registered.
E. On the same day, her dying declaration was recorded by the
Executive Magistrate after getting certificate of fitness from the
Doctor, wherein a similar statement had been recorded. She remained
admitted in the hospital.
On 28.4.2000, her another dying declaration was recorded by
the Executive Magistrate wherein she alleged that on 14.4.2000 at
about 1.30 p.m. while the deceased was cooking food and all the
students had gone home, the appellant poured kerosene on her body
and threw the burning stove on her, due to which she received severe
burn injuries. The deceased raised hue and cry which attracted some
of the neighbours.
F. Ratna Kumari (deceased) expired on 3.6.2000 in the hospital
and on getting the information, the police altered the FIR into Section
302 and 498A IPC. The doctor conducted the post mortem and
3Page 4
opined that the cause of death was septicemia shock due to antemortem burns.
G. After necessary investigation, the police filed charge sheet on
2.12.2000 against the appellant and his parents for offences under
Sections 302 and 498A IPC. After committal of the proceedings, the
trial commenced on 6.8.2001. After conclusion of the trial, the Trial
Court vide judgment and order dated 19.10.2001 acquitted all the
accused observing that prosecution could not prove any case
whatsoever against either of them as there was no iota of evidence to
show the involvement of either of them.
H. Aggrieved, the State preferred Criminal Appeal No.863 of 2004
before the High Court of Andhra Pradesh at Hyderabad. The court
dismissed the appeal against the parents of the appellant at the stage of
admission itself. The appeal was admitted only qua the appellant. The
appeal of the State has been allowed by the High Court vide judgment
and order dated 13.9.2006, convicting the appellant under Section 302
IPC and awarding the sentence to undergo life imprisonment and to
pay fine of Rs.5,000/-, in default, to undergo further S.I. for a period
of one year. Appellant was acquitted of all other charges.
Hence, this appeal.
4Page 5
3. Shri H.S. Phoolka, learned senior counsel appearing for the
appellant has submitted that admittedly after the marriage the parties
had separated themselves and therefore, there was no question of
living as husband and wife even after 8 years of their divorce. Just
immediately after the incident when Ratna Kumari, deceased was
taken to the hospital, she lodged a complaint/FIR which was recorded
by the Head Constable though after her death the same was treated as
her dying declaration. On the same day, her dying declaration was
also recorded by the Executive Magistrate and both these dying
declarations clearly speak non-involvement of the appellant or
anybody else. It is a clear case of accident. The deceased was tutored
by her mother and hence in third dying declaration, the appellant and
his parents were enroped, in the offence. The declaration dated
28.4.2000 is self contradictory. The appeal deserves to be allowed.
4. Per contra, Shri Nachiketa Joshi, learned counsel appearing for
the State has submitted that the High Court has appreciated the
evidence and the dying declarations of Ratna (deceased) recorded on
15.4.2000 and on 28.4.2000, and the latter clearly involved the
appellant and his parents. The High Court has taken a lenient view
5Page 6
and did not admit the appeal against the parents of the appellant.
While deciding the appeal, the High Court has met all the parameters
laid down by this Court for interfering against the order of acquittal.
Hence, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
The FIR/dying declaration recorded on 15.4.2000 reads as
under:-
“I belong to Phoolbagh Colony, Vijianagaram. I married
10 years back with Ramana of Kamma while I was
studying at Tirupathi. After one year living together, we
got divorced through Vijianagaram District. I am living
alone and gave tuitions to children and studying law.
I forgone my relation with my own people. There are
nobody of my own. Yesterday on 14.04.2000 night at
about 8 hours time the current was cut off. I lit my
kerosene stove and prepared tea. In the darkness my
polyster saree worned by me got fire and my entire body,
chest, hands, face, legs, foot and some portion of the
stomach were burnt. I phoned to my known friend
i.e. Bhadragin Lalita of Pradeep Nagar. She came and
took me to the Pradeep Nagar. By then I purchased
ointment and applied it. Not cured. Today i.e. 15.04.2000
morning by 10 hours I came to Government Hospital,
Vijianagaram with the help of my friend Bhadragin
Lalitha. Nobody is aware due to air and rain while I was
burning. I poured water and put of. Then I felt nothing.
Doctor gave medicines.” (Emphasis added)
6Page 7
The Doctor has put an endorsement on the declaration that she
was fit to make the declaration and signed the same. The declaration
bears signature of the maker (deceased) and the person recording the
same.
6. The dying declaration recorded by the Executive Magistrate
dated 15.4.2000 reads as under:
“Yesterday night at about 8 hours when I was
litting the kerosene stove to prepare tea, huge winds are
coming in the meanwhile my saree was burnt and flames
came out. Likewise my body was burnt. I have no
children. I got divorced with my husband through Court
ten years back. I alone present when this happened. There
are no disputes in between myself and my husband. My
husband never came to my house after divorce. There
are no disputes between myself and neighbours. Though I
raised cries none of neighbours came as huge winds are
flowing. Hence it might not be heard. My friend Lalitha
took me to the Hospital. As myself has poured water
vessel on me available in the kitchen. The flames were
put of. I have no relationship with my parent-in-law's
house. This is happened unexpectedly. No body did
this.” (Emphasis added)
This declaration also contains the endorsement by the Doctor in
respect of the fit condition of the maker. It bears the signature of the
deceased and the Executive Magistrate.
7Page 8
7. However, in the third dying declaration made on 28.4.2000
before the Magistrate, she has stated that she had been brought to the
hospital by her husband Ravi, mother-in-law Lolitha, and father-inlaw Gangaraju. That they got married on 26.10.1991. She was
preparing food on kerosene stove in the mid day between 1.30 to 2.00
p.m. on 14.4.2000. Her husband asked her whether she had paid the
electricity bill. She replied that she could not deposit as the office was
closed. Her husband sent one student, namely Matcha Basava Raju to
the electricity office to see whether it was opened or closed. He came
back and answered that it was closed. However, there was exchange
of words between them. He took up a kerosene tin lying there and
poured the kerosene on her shoulders and immediately threw her on
the burnt stove. She got burn injuries. Her husband took the water
from the bath room and poured on her. Srinu, a next door neighbour
came there and also poured water on her. The flames were put of. No
neighbour came except Srinu. Her husband requested Srinu not to
reveal anything about the incident to anybody. Her husband arranged
some medicines and gave injections to her. He gave her tablets
frequently. He had given six injections within a period of 3 days at
home. Her parents-in-law came from Rajahmundry on 15.4.2000.
8Page 9
They also requested the deceased not to reveal anyone about the
incident. On 16.4.2000, her husband and parents-in-law took her
to a private hospital. The doctor gave her glucose and one injection.
On the same day at about 12 noon, she was taken to Government
hospital on cot by her husband and in-laws and thereafter, none
of them could be found. She had earlier made a statement before the
police as narrated by her husband and in-laws. She has no
consciousness to such extent, but the persons were visible.
Previously, the police or Magistrate had not taken any statement
forcibly from her.
8. The first two dying declarations were made in the Government
Headquarter Hospital, Vijianagaram and the Magistrate had reached
there on being called by the police. There is no inconsistency
between the first two dying declarations and it is evident from the said
dying declarations recorded on 15.4.2000 that both of them had been
recorded in the Government Headquarter Hospital, Vijianagaram.
The third dying declaration makes it evident that on 15.4.2000
she had not been taken to the Government Hospital and her in-laws
were not available on 14.4.2000. Her husband had been treating her at
9Page 10
home and had also given her injections for two-three days. Her
parents-in-laws reached on 15.4.2000 from Rajahmundry and then she
was admitted to the private hospital on 16.4.2000. As she could not
recover therein, then she was transferred to Government Headquarter
Hospital, Vijianagaram on that day.
9. Satyavarapu Anasuya (PW.1), mother of the deceased has
deposed that Ratna (deceased) used to tell her that she was harassed
by her husband to bring dowry, though she had given sufficient dowry
at the time of marriage. She came to know about the burn injuries of
her daughter on 15.4.2000 and immediately went to the Government
Hospital. There she found the appellant and his parents. On being
asked, Ratna Kumari told her that she suffered the burn injuries by
accident. Ten days later, she told the witness that the appellant poured
kerosene on her and pushed her on a burning stove, that is why she
sustained burn injuries. That her another daughter was a police
constable and therefore, the appellant apprehended some action by the
police against him and his parents. She has further deposed that prior
to the death of her daughter, the appellant had developed illicit
relationship with another woman just after Sankranthi festival and she
10Page 11
had been informed about this by her daughter that appellant wanted to
marry that woman.
10. Kondru Srinivasrao (PW.7), a second year student and
neighbour of the deceased used to come for tuition to the deceased.
He deposed that he had heard shrieks coming from the house of Ratna
and reached the place of occurrence. He found Ratna in bath room
and appellant was pouring water on her. On her request, the witness
also brought water from the well and given to the appellant who
poured the water on her. He has further deposed that he had not told
about this incident to anybody.
11. Matcha Basavaraju (PW.8), a young student coming for tuition
to the deceased deposed that he was not knowing the husband of
Ratna but he had seen the appellant going on his scooter in Phoolbagh
colony. He had never seen the appellant in the house of Ratna.
12. Dr. Ch. Suryanarayana (PW.16) deposed that he had signed the
dying declaration dated 28.4.2000. That Ratna was having 44% of
burns. The record of the hospital revealed that she had been admitted
11Page 12
in the hospital on 14.5.2000 and had been given regular treatment
and blood many times between 14.5.2000 and 31.5.2000. As per the
hospital record she had been brought there by Lalita, a friend of Ratna
(deceased). She had given the name of her husband as Ramana and it
has further been mentioned in the hospital record that the patient
herself had stated that she suffered with burn injuries accidentally.
13. The Trial Court has found material inconsistencies in the case
of the prosecution and did not see any reason whatsoever to rely upon
the dying declaration dated 28.4.2000 as the contents thereof were
admittedly false and could not be relied upon. If the dying declaration
has been recorded by the Executive Magistrate on 15.4.2000 in the
Government hospital, the question of her being treated by her husband
for 2-3 days and then her admission in a private hospital did not arise
at all. Her version that she was admitted to the Government
Headquarter hospital, Vijianagaram on 16.4.2000 could not be true.
The contents of the dying declaration dated 28.4.2000 being full of
contradiction do not inspire confidence.
12Page 13
14. Admittedly, there was a divorce between the parties. Therefore,
the question of demand of dowry or ill-treatment or harassment could
not arise after 8 years of divorce decree by the court. The mother of
Ratna has deposed about the illicit relationship of the appellant and
another woman and the appellant wanted to marry that woman. In
case the parties had separated by a divorce through court, we fail to
understand how Ratna (deceased) or her parents were concerned about
such a relationship. 
15. It is a settled legal proposition that in case there are apparent
discrepancies in two dying declarations, it would be unsafe to convict
the accused. In such a fact-situation, the accused gets the benefit of
doubt. (Vide: Sanjay v. State of Maharashtra, (2007) 9 SCC 148;
and Heeralal v. State of Madhya Pradesh, (2009) 12 SCC 671).
16. In case of plural/multiple dying declarations, the court has to
scrutinise the evidence cautiously and must find out whether there is
consistency particularly in material particulars therein. In case there
are inter-se discrepancies in the depositions of the witnesses given in
support of one of the dying declarations, it would not be safe to rely
13Page 14
upon the same. In fact it is not the plurality of the dying declarations
but the reliability thereof that adds weigh to the prosecution case. If
the dying declaration is found to be voluntary, reliable and made in a
fit mental condition, it can be relied upon without any corroboration.
But the statements should be consistent throughout.
17. In case of inconsistencies, the court has to examine the nature
of the same, i.e. 
whether they are material or not and while
scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances.
 In case of dying declaration, as the accused does not
have right to cross-examine the maker and not able to elicit the truth
as happens in the case of other witnesses, it would not be safe to rely
if the dying declaration does not inspire full confidence of the court
about its correctness, as it may be result of tutoring, prompting or
product of imagination. 
The court has to be satisfied that the maker
was in a fit state of mind and had a clear opportunity to observe and
identify the assailant (s). 
(Vide: Smt. Kamla v. State of Punjab, AIR 1993 SC 374; Kishan
Lal v. State of Rajasthan, AIR 1999 SC 3062; Lella Srinivasa Rao
14Page 15
v. State of A.P., AIR 2004 SC 1720; Amol Singh v. State of
Madhya Pradesh, (2008) 5 SCC 468; State of Andhra Pradesh v.
P. Khaja Hussain, (2009) 15 SCC 120; and Sharda v. State of
Rajasthan, AIR 2010 SC 408).
18. This court has time and again laid down parameters for
interference by a superior court against the order of acquittal. 
In
exceptional cases where there are compelling circumstances and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. 
The appellate court should bear in
mind the presumption of innocence of the accused and further that the
trial Court’s acquittal bolsters the presumption of his innocence.

Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
19. The High Court did not consider the matter in correct
perspective nor observed the parameters laid down by this court to interfere against the order of acquittal.
15Page 16
20. In view of the above, the appeal is allowed and the judgment
and order of the High Court is set aside. The judgment and order of
the Sessions Court is restored. The appellant is on bail. His bail
bonds stand discharged.
………………………………J.
(Dr. B.S. CHAUHAN)
………………………………J.
(DIPAK MISRA)
New Delhi,
May 29, 2013
16Page 17
17

WHEN discrepancies not pointed out while cross examining the I.O., those can not be considered as failure of prosecution = . The entry register maintained in the Girls Hostel for visitors was never produced in court. B. The finger prints taken from the glass and tea cups recovered from the hostel, to prove that the same had been used by the appellant, did not test positive. C. The rope allegedly used in the crime, was not recovered, nor has any positive evidence been produced to show that the appellant had gone to the hostel armed with a rock. D. A large number of girl students had been staying in the hostel, and none of them were examined. E. The postmortem report does not in any way prove the case of the prosecution, for the reason that the throttling, smothering and breaking of various ribs of the deceased, may not have been caused by a single person. F. The mobile phone recovered from Itarsi (M.P.) was not deposited in the Malkhana. G. The telephone number that had allegedly been purchased by Sonia (deceased), and later recovered, showed some variance. H. The journey from Faridabad to Itarsi and from Itarsi to Faridabad has not been proved. I. The Booking Register of the Taneja Guest House does not prove that the appellant had stayed in the said Guest House. 41. We have examined the aforesaid discrepancies pointed out by the learned counsel. It may be stated herein that some of the issues have been explained by the prosecution, however, no attempt was ever made by the defence to put most of these issues to SI Vinod Kumar (PW.20), the Investigating Officer in his cross-examination. It is evident from his deposition that he had, in fact, answered all the questions that were put to him in the cross-examination. However, it is pertinent to clarify that most of these questions that are being currently raised before us were not put to him. For example, he has explained that nobody from the said market had been ready to become the Panch witness for recovery of the mobile phone from Sonu’s shop at Itarsi, and that even Sonu was not ready to do so. Further, no question had been put to him in the cross-examination regarding the different EMEI number of the said mobile phone. The mobile phone that was recovered, bore the EMEI No. 3534000004033852 (Ex.P- 19), though the EMEI number of mobile phone that belonged to Sonia was 3534000004033853. Furthermore, no question had been put as to why the mobile phone, after the recovery, had not been deposited in the Malkhana. In light of such a fact situation, it is not permissible for us to consider such discrepancies. So far as the inconsistencies in the depositions of the witnesses are concerned, none of them can be held to be material inconsistency. 42. The facts so established by the prosecution do not warrant further review of the judgments of the courts below by this court. The appeal lacks merit and is, accordingly, dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 896 of 2011
Rohtash Kumar …Appellant
Versus
State of Haryana …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated
5.2.2009 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 862-DB of 2006, by which it has
affirmed the judgment and order of the Sessions Court, by way of
which and whereunder the appellant has been convicted for the
offences punishable under Sections 302 and 404 of the Indian Penal
Code, 1860 (hereinafter referred to as `the IPC’), and sentenced to
undergo life imprisonment and to pay a fine of Rs.5,000/-, and inPage 2
default of payment of fine, to undergo further rigorous imprisonment
for one year under Section 302 IPC; and was also sentenced to
undergo rigorous imprisonment for two years and to pay a fine of
Rs.500/-, and in default of payment of fine, to undergo further
rigorous imprisonment for three months under Section 404 IPC.
However, both the substantive sentences have been ordered to run
concurrently.
2. Facts and circumstances as per the prosecution in brief, are as
under:
A. Appellant got married to Sonia (since deceased), aged 30 years,
in March 2003. It was an inter-caste marriage, and thus, was not
approved of by Sonia’s family members. They had both studied
Pharmacy together. After passing the Pharmacy Course, Sonia
(deceased) was appointed as a Lecturer in the B.S.A. Pharmacy
College, Faridabad, and she was also working as a Warden in the
Girls’ hostel of the said Pharmacy College, situated in Kothi No. 783,
Sector 21-A, Faridabad. The married life of the couple was not happy
and they thus filed a Divorce Petition on the basis of mutual consent
under Section 13-B of the Hindu Marriage Act, 1955 before the
2Page 3
Family Court, Rohtak. The first motion was complete and the second
motion had been fixed for 3.9.2004.
B. On 2.9.2004, Sonia (deceased) sent a telephonic message to her
mother, Smt. Dhanpati Devi (PW.3), stating that in the previous
evening, the appellant Rohtash had come to meet her in the hostel at
8.00 P.M. and had told her that he would appear in the Family Court
at Rohtak on 3.9.2004, to make his statement for getting the divorce.
C. In view of the above, on 2.9.2004 at about 5.00 P.M., Sube
Singh (PW.1), father of Sonia (deceased), came alongwith his nephew
Wazir Singh to meet Sonia in her hostel at Faridabad. However, when
they reached there, Ghanshyam (Security Guard), Arjun (Cook) and
Bimla (Caretaker) of the hostel came and met them. Bimla (PW.8)
(Caretaker) told them that on the same day at about 1.00 P.M., the
appellant had come to the hostel to meet Sonia. Both of them had
engaged in conversation for about one hour, while sitting in the
verandah of the hostel and also had tea together. After the appellant
had left the hostel, Bimla (PW.8) had gone to bathroom to wash
clothes. Later on, when she had gone in search of Sonia (deceased),
she had found her lying dead among the plants, in the gallery of the
hostel. She had died of strangulation.
3Page 4
D. Sube Singh (PW.1), had gone to the police station and lodged a
complaint giving all the details, also stating that the appellant might
have committed the said offence, as she had scratch marks on her
neck, as well as on her breasts.
E. In view of the complaint made by Sube Singh (PW.1), an FIR
was registered (Ex.P-12). Necessary investigation was conducted,
statements of witnesses were recorded, and the postmortem
examination on the dead body of Sonia (deceased) was also
performed. The appellant was arrested only on 8.9.2004. The articles
collected from the place of occurrence and samples taken from the
appellant, particularly, specimens of his hair etc., were sent to the
Forensic Science Laboratory, Madhuban, for the preparation of an
FSL report. After completion of the investigation, a chargesheet was
filed against the appellant in court.
F. After committal proceedings, charges were framed against the
appellant under Sections 302 and 404 IPC. The prosecution examined
21 witnesses in support of its case, including the parents and relatives
of the deceased, as well as Dr. Virender Yadav (PW.4), Ms. Anita
Dahiya, the then Chief Judicial Magistrate, Faridabad (PW.17), Dr.
4Page 5
O.P. Sethi, (PW.21), and SI Vinod Kumar (PW.20), the investigating
officer. Some of the cited witnesses were given up, and a large
number of documents etc., were filed.
G. The appellant was examined under Section 313 of the Code of
Criminal Procedure, 1973, (hereinafter referred to as `the Cr.P.C.’),
and all the incriminating material/circumstances were put to him one
by one. He denied each allegation levelled against him by repeatedly
stating, “It is incorrect.” The appellant did not himself, adduce any
evidence in defence.
The learned Sessions Court, after appreciating all the evidence
and the submissions made by the public prosecutor and the defence
counsel, convicted and sentenced the appellant as has been referred to
hereinabove.
H. Aggrieved, the appellant preferred an Appeal before the High
Court, which has been dismissed vide impugned judgment and order
dated 5.2.2009.
Hence, this appeal.
3. Dr. Sushil Balwada, learned counsel appearing on behalf of the
appellant has submitted, that there was no eye-witness to the
5Page 6
occurrence and that the prosecution had failed to prove and meet the
parameters laid down by this Court for conviction in a case of
circumstantial evidence. Even if there had been some discord in their
marriage, they had agreed to separate mutually and the second motion
of the Divorce Petition filed by mutual consent, had been fixed for
next day i.e. 3.9.2004. Thus, there had been no occasion for the
appellant to commit the offence. The material witnesses to the
incident, particularly Ghanshyam and Arjun, who had been working
as the Guard and Cook respectively in the Girls’ hostel, and Mahender
(Attendant) of the Taneja Guest House, where the appellant is alleged
to have stayed under a fake name, have not been examined. The
prosecution was under an obligation to examine each of them. The
evidence of Jagatpal (PW.2), a hostile witness, could not have been
considered at all. In light of the facts of this case, the theory of “last
seen” together cannot be applied. Furthermore, the prosecution has
created an entirely improbable story to the effect that after killing
Sonia, the appellant had taken away her mobile phone, and had in the
evening on the same day, telephoned his mother-in-law Dhanpati
(PW.3), as well as several other relatives of Sonia, making an extrajudicial confession stating that he had killed Sonia, and that he would
6Page 7
now himself commit suicide. The recovery of mobile phone from
Itarsi (M.P.) cannot be relied upon, as this place is far away from
Faridabad. There are material inconsistencies in the statements of the
witnesses. The chain of circumstances is not complete. The
prosecution must prove its case beyond reasonable doubt, and cannot
take advantage of the weaknesses in the case of the defence. Thus,
the appeal deserves to be allowed.
4. Per contra, Shri Ramesh Kumar, learned counsel appearing on
behalf of the State, has opposed the appeal contending that the
appellant had last been seen with Sonia (deceased), by several persons
including Bimla (PW.8), in the hostel. The appellant had thereafter
left the hostel alone, just before Sonia had been found dead. The
appellant, after committing the offence, had run away and stayed at
the Taneja Guest House, Faridabad, under a fictitious name and by
providing a fake address. He had also made an attempt to commit
suicide in the said Guest House, and on being asked about the same by
the attendant, he had run away from there. The appellant had left his
diary and wrist watch, as well as a letter in the name of the
Superintendent of Police, the Deputy Commissioner of Faridabad, the
Chief Justice of the Punjab & Haryana High Court, and the Chairman
7Page 8
of the Human Rights Commission, complaining about the family
members of Sonia. The diary had also contained a suicide note. The
conduct of the appellant clearly indicates that he has committed the
offence. The concurrent findings of fact recorded by the courts below
do not warrant any interference and therefore, the appeal is liable to
be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties, and perused the record.
Before we enter into the merits of the case and its factual
matrix, it is desirable to deal with the legal issues involved herein.
Case of Circumstantial evidence:
6. The present case is of circumstantial evidence, as there exists
no eye-witness to the occurrence. The primary issue herein involves
determination of the requirements for deciding a case of
circumstantial evidence.
7. This Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651
has held, “the prosecution must establish its case beyond reasonable
doubt, and cannot derive any strength from the weaknesses in the
defence put up by the accused. However, a false defence may be
8Page 9
brought to notice, only to lend assurance to the Court as regards the
various links in the chain of circumstantial evidence, which are in
themselves complete. The circumstances on the basis of which the
conclusion of guilt is to be drawn, must be fully established. The same
must be of a conclusive nature, and must exclude all possible
hypothesis, except the one to be proved. Facts so established must be
consistent with the hypothesis of the guilt of the accused, and the
chain of evidence must be complete, so as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused,
and must further show, that in all probability, the said offence must
have been committed by the accused.”
(See also: Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622; and Paramjeet Singh @ Pamma v. State of
Uttarakhand, AIR 2011 SC 200).
Thus, the Court while convicting a person on the basis of the
circumstantial evidence, must apply the aforesaid principles.
Whether prosecution must examine all the witnesses:
8. A common issue that may arise in such cases where some of the
witnesses have not been examined, though the same may be material
9Page 10
witnesses is, whether the prosecution is bound to examine all the
listed/cited witnesses.
This Court, in Abdul Gani & Ors. v. State of Madhya
Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held,
that as a general rule, all witnesses must be called upon to testify in
the course of the hearing of the prosecution, but that there is no
obligation compelling the public prosecutor to call upon all the
witnesses available who can depose regarding the facts that the
prosecution desires to prove. Ultimately, it is a matter left to the
discretion of the public prosecutor, and though a court ought to and no
doubt would, take into consideration the absence of witnesses whose
testimony would reasonably be expected, it must adjudge the evidence
as a whole and arrive at its conclusion accordingly, taking into
consideration the persuasiveness of the testimony given in the light of
such criticism, as may be levelled at the absence of possible material
witnesses.
9. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a
similar view has been reiterated, observing that a court cannot,
normally compel the prosecution to examine a witness which the
10Page 11
prosecution does not choose to examine, and that the duty of a fair
prosecutor extends only to the extent of examination of such
witnesses, who are necessary for the purpose of disclosing the story of
the prosecution with all its essentials.
10. In Masalti v. State of U.P., AIR 1965 SC 202, this Court held
that it would be unsound to lay down as a general rule, that every
witness must be examined, even though, the evidence provided by
such witness may not be very material, or even if it is a known fact
that the said witness has either been won over or terrorised. “In such
cases, it is always open to the defence to examine such witnesses as
their own witnesses, and the court itself may also call upon such a
witness in the interests of justice under Section 540 Cr.P.C.”.
(See also: Bir Singh & Ors. v. State of U.P., (1977) 4 SCC 420)
11. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328,
this Court reiterated a similar view and held that if the eye-witness(s)
is deliberately kept back, the Court may draw inference against the
prosecution and may, in a proper case, regard the failure of the
prosecutor to examine the said witnesses as constituting a serious
infirmity in the proof of the prosecution case.
11Page 12
12. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this
Court held as under:
“…Material witnesses considered necessary by the
prosecution for unfolding the prosecution story alone
need be produced without unnecessary and redundant
multiplication of witnesses. The appellant's counsel has
not shown how the prosecution story is rendered less
trustworthy as a result of the non-production of the
witnesses mentioned by him. No material and important
witness was deliberately kept back by the prosecution.
Incidentally we may point out that the accused too have
not considered it proper to produce those persons as
witnesses for controverting the prosecution version…..”
 (Emphasis added)
13. In Harpal Singh v. Devinder Singh & Anr., AIR 1997 SC
2914, this Court reiterated a similar view and further observed:
“….The illustration (g) in Section 114 of the Evidence
Act is only a permissible inference and not a necessary
inference. Unless there are other circumstances also to
facilitate the drawing of an adverse inference, it should
not be a mechanical process to draw the adverse
inference merely on the strength of non-examination of a
witness even if it is a material witness…..”
14. In Mohanlal Shamji Soni v. Union of India & Anr., AIR
1991 SC 1346, this Court held:
“10. It is cardinal rule in the law of evidence that the
best available evidence should be brought before the
Court to prove a fact or the points in issue. But it is left
either for the prosecution or for the defence to establish
its respective case by adducing the best available
12Page 13
evidence and the Court is not empowered under the
provisions of the Code to compel either the prosecution
or the defence to examine any particular witness or
witnesses on their sides. Nonetheless if either of the
parties withholds any evidence which could be produced
and which, if produced, be unfavourable to the party
withholding such evidence, the Court can draw a
presumption under illustration (g) to Section 114 of the
Evidence Act…. In order to enable the Court to find out
the truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311 of the
new Code) are enacted whereunder any Court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in attendance
though not summoned as a witness or recall or reexamine any person in attendance though not summoned
as a witness or recall and re-examine any person already
examined who are expected to be able to throw light
upon the matter in dispute; because if judgments happen
to be rendered on inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be
defeated.”
15. In Banti @ Guddu v. State of M.P., AIR 2004 SC 261, this
Court held:
 “In trials before a Court of Session the prosecution
"shall be conducted by a Public Prosecutor". Section 226
of the Code of Criminal Procedure, 1973 enjoins on him
to open up his case by describing the charge brought
against the accused. He has to state what evidence he
proposes to adduce for proving the guilt of the accused.
……If that version is not in support of the prosecution
case it would be unreasonable to insist on the Public
Prosecutor to examine those persons as witnesses for
prosecution.
13Page 14
 When the case reaches the stage envisages in
Section 231 of the Code the Sessions Judge is obliged "to
take all such evidence as may be produced in support of
the prosecution". It is clear form the said section that the
Public Prosecutor is expected to produce evidence "in
support of the prosecution" and not in derogation of the
prosecution case. At the said stage the Public Prosecutor
would be in a position to take a decision as to which
among the presence cited are to be examined. If there
are too many witnesses on the same point the Public
Prosecutor is at liberty to choose two or some among
them alone so that the time of the Court can be saved
from repetitious depositions on the same factual aspects.
……This will help not only the prosecution in relieving
itself of the strain of adducing repetitive evidence on the
same point but also help the Court considerably in
lessening the workload. Time has come to make every
effort possible to lessen the workload, particularly those
courts crammed with cases, but without impairing the
cause of justice. ……It is open to the defence to cite him
and examine him as a defence witness……..”
16. The said issue was also considered by this Court in R. Shaji
(supra), and the Court, after placing reliance upon its judgments in
Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; and Kishan
Chand v. State of Haryana, JT 2013( 1) SC 222), held as under: .
“22. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses, but the
quality of their evidence which is important, as there is
no requirement in the law of evidence stating that a
particular number of witnesses must be examined in
order to prove/disprove a fact. It is a time-honoured
principle, that evidence must be weighed and not
counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy, or otherwise.
14Page 15
The legal system has laid emphasis on the value provided
by each witness, as opposed to the multiplicity or
plurality of witnesses. It is thus, the quality and not
quantity, which determines the adequacy of evidence, as
has been provided by Section 134 of the Evidence Act.
Where the law requires the examination of at least one
attesting witness, it has been held that the number of
witnesses produced over and above this, does not carry
any weight.”
17. Thus, the prosecution is not bound to examine all the cited
witnesses, and it can drop witnesses to avoid multiplicity or plurality
of witnesses. The accused can also examine the cited, but not
examined witnesses, if he so desires, in his defence. It is the discretion
of the prosecutor to tender the witnesses to prove the case of the
prosecution and “the court will not interfere with the exercise of that
discretion unless, perhaps, it can be shown that the prosecution has
been influenced by some oblique motive.” In an extra-ordinary
situation, if the court comes to the conclusion that a material witness
has been withheld, it can draw an adverse inference against the
prosecution, as has been provided under Section 114 of the Evidence
Act. Undoubtedly, the public prosecutor must not take the liberty to
“pick and choose” his witnesses, as he must be fair to the court, and
therefore, to the truth. In a given case, the Court can always examine
a witness as a court witness, if it is so warranted in the interests of
15Page 16
justice. In fact, the evidence of the witnesses, must be tested on the
touchstone of reliability, credibility and trustworthiness. If the court
finds the same to be untruthful, there is no legal bar for it to discard
the same.
Discrepancies in the depositions:
18. It is a settled legal proposition that while appreciating the
evidence of a witness, minor discrepancies on trivial matters which do
not affect the core of the case of the prosecution, must not prompt the
court to reject the evidence in its entirety. Therefore, unless irrelevant
details which do not in any way corrode the credibility of a witness
should be ignored. The court has to examine whether evidence read as
a whole appears to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the court to scrutinize the
evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general tenor of the
evidence given by the witnesses and whether the earlier evaluation of
the evidence is shaken, as to render it unworthy of belief. Thus, the
court is not supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the heart of the
16Page 17
matter, and shake the basic version of the prosecution witness. Thus,
the court must read the evidence of a witness as a whole, and consider
the case in light of the entirety of the circumstances, ignoring the
minor discrepancies with respect to trivial matters, which do not affect
the core of the case of the prosecution. The said discrepancies as
mentioned above, should not be taken into consideration, as they
cannot form grounds for rejecting the evidence on record as a whole.
(See: State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. by
Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and
Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).
Evidence of a hostile witness:
19. It is a settled legal proposition that evidence of a prosecution
witness cannot be rejected in toto, merely because the prosecution
chose to treat him as hostile and cross examined him. The evidence of
such witnesses cannot be treated as effaced, or washed off the record
altogether. The same can be accepted to the extent that their version
is found to be dependable, upon a careful scrutiny thereof.
20. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996
SC 2766, this Court held, that evidence of a hostile witness would not
17Page 18
be rejected in entirety, if the same has been given in favour of either
the prosecution, or the accused, but is required to be subjected to
careful scrutiny, and thereafter, that portion of the evidence which is
consistent with the either case of the prosecution, or that of the
defence, may be relied upon. (See also: C. Muniappan & Ors. v.
State of Tamil Nadu, AIR 2010 SC 3718; Himanshu @ Chintu v.
State (NCT of Delhi), (2011) 2 SCC 36; and Ramesh Harijan v.
State of U.P., AIR 2012 SC 1979).
Therefore, the law permits the court to take into consideration
the deposition of a hostile witness, to the extent that the same is in
consonance with the case of the prosecution, and is found to be
reliable in careful judicial scrutiny.
Motive:
21. The evidence regarding the existence of a motive which
operates in the mind of the accused is very often very limited, and
may not be within the reach of others. The motive driving the accused
to commit an offence may be known only to him and to no other. In a
case of circumstantial evidence, motive may be a very relevant factor.
However, it is the perpetrator of the crime alone who is aware of the
circumstances that prompted him to adopt a certain course of action,
18Page 19
leading to the commission of the crime. Therefore, if the evidence on
record suggests adequately, the existence of the necessary motive
required to commit a crime, it may be conceived that the accused has
in fact, committed the same. (Vide: Subedar Tewari v. State of U.P.
& Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of
Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of
Punjab, (2012) 11 SCC 205).
Explanation of the accused:
22. It is obligatory on the part of the accused while being examined
under Section 313 Cr.P.C., to furnish some explanation with respect to
the incriminating circumstances associated with him, and the court
must take note of such explanation even in a case of circumstantial
evidence, to decide whether or not, the chain of circumstances is
complete. [Vide: Musheer Khan @ Badshah Khan & Anr. v. State
of Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford
Daniel (supra)].
23. This Court, in State of Maharashtra v. Suresh, (2000) 1 SCC
471, held as under:
“When the attention of the accused is drawn to such
circumstances that inculpate him in relation to the
19Page 20
commission of the crime, and he fails to offer an
appropriate explanation or gives a false answer with
respect to the same, the said act may be counted as
providing a missing link for completing the chain of
circumstances.”
Undoubtedly, the prosecution has to prove its case beyond
reasonable doubt. However, in certain circumstances, the accused has
to furnish some explanation to the incriminating circumstances, which
has come in evidence, put to him. A false explanation may be counted
as providing a missing link for completing a chain of circumstances.
Last seen together theory:
24. In cases where the accused was last seen with the deceased
victim (last seen-together theory) just before the incident, it becomes
the duty of the accused to explain the circumstances under which the
death of the victim occurred. (Vide: Nika Ram v. State of Himachal
Pradesh, AIR 1972 SC 2077; and Ganeshlal v. State of
Maharashtra, (1992) 3 SCC 106).
25. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006)
10 SCC 681, this Court held as under:
“Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
20Page 21
leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation
which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of
the crime.”
(See also: Prithipal Singh & Ors. v. State of Punjab & Anr.,
(2012) 1 SCC 10)
Thus, the doctrine of “last seen together” shifts the burden of
proof on the accused, requiring him to explain how the incident had
occurred. Failure on the part of the accused to furnish any
explanation in this regard, would give rise to a very strong
presumption against him.
Police official as a witness:
26. The term witness, means a person who is capable of providing
information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in Court, or
otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of
Maharashtra, AIR 1995 SC 1930, this Court examined the issue of
21Page 22
the requirement of the examination of an independent witness, and
whether the evidence of a police witness requires corroboration. The
Court herein held, that the same must be subject to strict scrutiny.
However, the evidence of police officials cannot be discarded merely
on the ground that they belonged to the police force, and are either
interested in the investigating or the prosecuting agency. However, as
far as possible the corroboration of their evidence on material
particulars, should be sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212;
Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State
(Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant
Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311;
and Ravinderan v. Superintendent of Customs, AIR 2007 SC
2040).
Thus, a witness is normally considered to be independent,
unless he springs from sources which are likely to be tainted and this
usually means that the said witness has cause, to bear such enmity
against the accused, so as to implicate him falsely. In view of the
above, there can be no prohibition to the effect that a policeman
cannot be a witness, or that his deposition cannot be relied upon.
22Page 23
27. The instant case requires to be considered in light of the
aforesaid settled legal propositions.
Sube Singh (PW.1), father of Sonia, deceased, had sufficient
reason to go to go to Faridabad to meet his daughter, in view of the
fact that the second motion of divorce between the appellant and the
deceased was fixed for next day, and Sonia, deceased had telephoned
her mother regarding the arrival of the appellant one day before,
stating that she had doubts about the promise made by the appellant to
the extent that he would make a statement before the Family Court at
Rohtak, to facilitate their divorce by mutual consent. It is but natural
for any parent, even if they dis-approve of the inter-caste marriage of
their children, to want to be with them at the time of such
proceedings, that would affect the life of their child. Sube Singh
(PW.1) has further deposed, that the police had recovered clothes,
rope, handkerchief, hairpin and blood stained earth etc. from the place
of occurrence, and had kept these articles in separate parcels.
28. Dhanpati (PW.3), mother of the deceased, has corroborated the
deposition of Sube Singh (PW.1), and has further deposed, that she
had received a phone call from the accused which had been made
23Page 24
from the mobile phone number that had belonged to Sonia deceased.
On being asked, about the same by her, he had told her that he had
murdered Sonia in her hostel by strangulating her, and that thereafter,
he had run away from the place of occurrence. He had also stated that
he would commit suicide.
29. Bimla (PW.8), the caretaker of the hostel, has deposed that
while she was working as a caretaker in the Girls’ hostel, on 1.9.2004
at about 8-9 p.m., Sonia (deceased) had come to the hostel and
immediately had gone to make a phone call. After about 10 minutes,
her husband, i.e., the appellant accused had reached there. They had
engaged in some conversation. The next day, Sonia had come back
from college at about 1.00 p.m., and shortly after, the appellant had
also arrived there. Ghanshyam, the watchman had been told by the
appellant that he was husband of the warden and wanted to meet her.
Ghanshyam had not initially permitted him to enter the hostel, but had
allowed his entry after taking permission from Sonia. The appellant
and Sonia had then sat together in the verandah of the hostel, and had
spoken for about 30-40 minutes. Both of them had then left the hostel,
and had returned only after about one hour. After their arrival, the
witness had served them tea. Thereafter, she had gone to bathroom to
24Page 25
wash clothes, and when she returned after about 20-25 minutes, she
had enquired from Ghanshyam regarding the whereabouts of Sonia
and her husband. She had then been told that Sonia was in her room,
whereas the appellant had already left the hostel alone. While going
Sonia’s room, she had found her lying dead in the garden, near the
plants in the hostel. Seeing her dead, the witness was frightened.
30. Mukesh Chand (PW.9), has proved the pendency of the case for
divorce by mutual consent before the Family Court, Rohtak and the
fact that the date of the second motion had been fixed for 3.9.2004.
31. Narender Singh (PW.12), is the brother-in-law of Sonia
(deceased). He has deposed that he had received a phone call at about
5.30 p.m. on 2.9.2004, from the mobile phone number belonging to
Sonia. The said phone call had been made by the appellant, and he
had informed the witness that he had killed Sonia, and had further told
him he had also had an illicit relationship with the wife of the witness.
The witness has deposed, that on hearing this, he had lost his temper
and had used abusive language in relation to the appellant, after which
he had disconnected the call.
25Page 26
Virender Singh (PW.19), a relative of Sonia’s, had also
received a similar phone call from the appellant from the mobile
phone number belonging to of Sonia.
32. Ms. Anita Dahiya (PW.17), the then Chief Judicial Magistrate,
Faridabad, has deposed that the investigating officer had wanted to
have an identification parade, but that the appellant had not agreed to
the same.
33. Jagatpal (PW.2), an attendant at the Taneja Rest House, NIT,
Faridabad, has deposed in his examination-in-chief that a person had
stayed in the said guest house, after disclosing his identity as Amit,
and by providing his address as 535, Model Town, Simla. He had
even made the requisite entries in the register in his own handwriting.
As regards the rest of the situation, he has stated that since his duty
was then over, his colleague Mahender, had come on duty at 9.00 a.m.
on 2.9.2004, and that therefore, he had no further information to offer.
At this stage, he was declared hostile as it was found that he was
suppressing the truth and thus, he was cross-examined. Undoubtedly,
he has turned hostile. However, he has admitted that on 2.9.2004, at
about 6.30 p.m., attendant Mahender had come to his place, and had
26Page 27
told him that the occupant of room no. 114 was attempting to commit
suicide, and this was when he, alongwith Mahender had gone to his
room. The appellant had thereafter, run away from the guest house.
They had tried to chase him but in vain. From his room, one diary, a
letter and wrist watch were recovered, and the said articles were
handed over to the police vide memo Ex.P5, which bore his
signature.
34. Dr. Virender Yadav (PW.4), had conducted the post-mortem
examination on the body of Sonia, and he has deposed that there was
bleeding with clotted blood present in the bilateral nostrils, and on the
right side of the mouth. Rigor mortis was present in all the four limbs
with postmortem staining on dependent parts. Multiple abrasions were
present on the front of the neck, with large reddish contusionsbilateral shoulders, more on the right side. Abrasions numbering four
of the size 2.5 x 0.75 cms., were present on the right side, just below
the clavicle and four of these in number were present on its left side.
On dissection, the muscle of the neck was contused with
hemorrhage with a fracture of the thyroid cartilage, and a fracture of
the tracheal rings with blood clots in the trachea. The adjoining
muscles and upper chest muscles were contused extensively with
27Page 28
blood clots, with bilateral fractures of the clavicle bone and the upper
second and third ribs.
In his opinion, the cause of death was asphyxia caused as a
result of smothering and throttling, which was ante-mortem in nature
and was sufficient to cause death in the natural course.
He has further deposed, that she had died within two minutes of
the offence, and before 24 hours of the post-mortem.
35. There is evidence on record to show that the mobile phone had
been purchased by Sonia from Itarsi on 10.9.2004. The same mobile
phone was recovered from the shop of Sonu at Itarsi upon the
disclosure statement made by the appellant, vide recovery memo
Ex.P-19.
36. In view of the aforesaid depositions, facts emerge as under:-
(i) The appellant and Sonia (deceased) had been classmates and
had developed intimacy. In spite of the fact that they belonged to
different castes, they had thereafter gotten married, knowing fully
well that their marriage would not be approved by at least one of the
two families.
28Page 29
(ii) Their marriage was not cordial and within an year of such
marriage, they had mutually decided to separate and had thus, filed a
petition for divorce by mutual consent under Section 13-B of the
Hindu Marriage Act, 1955, before the Family Court, Rohtak. The
first motion was clear, and the case was fixed for second motion on
3.9.2004. Just before the said date, the appellant had met Sonia
(deceased), and had assured her that he would agree to the said
divorce in the second motion on 3.9.2004, before the Family Court at
Rohtak.
(iii) The said information was furnished by Sonia (deceased), to her
mother Smt. Dhanpati Devi (PW.3), and it was in view thereof that
Sube Singh (PW.1), father of the deceased had come to Faridabad
only to meet Sonia.
(iv) While reaching there, Sube Singh (PW.1) had been informed by
Ghanshyam (Security Guard), Arjun (Cook) and Bimla, Caretaker
(PW.8), that the appellant had come to meet Sonia, and that now she
was lying dead in the garden. Bimla (PW.8) had also furnished him
with all the requisite details, as regards the visit of the appellant. Sube
29Page 30
Singh, father of the deceased, had lodged an FIR. Hence, criminal
law was set into motion and the investigation began.
(v) The Police had recovered the dead body, as well as various
material objects lying near it, including a rope.
(vi) The post-mortem report suggests that Sonia had died of
asphyxia caused as a result of smothering and throttling, and that it
had taken hardly any time to kill her.
(vii) The appellant had stayed at the Taneja Guest House, by
providing a fictitious name and address, and the next day had tried to
commit suicide. He had been chased by the hostel staff, but had
managed to run away. While running away, he had left a diary (Ex.P-
54), a wrist watch (Ex.P-56), and a letter (Ext.P-55).
(viii) On 2.9.2004, the appellant had made certain telephone calls
from the mobile phone belonging to Sonia, to the mother as well as to
several other relatives of the deceased, informing them about the
murder of Sonia that had been committed by him, and had further
stated that he would commit suicide.
30Page 31
(ix) A diary (Ex. P-54), a letter (Ex.P-55) and a wrist watch (Ex.P-
56), belonging to the appellant were recovered from the Taneja Guest
House. A suicide note had been written in the said diary by the
appellant, and a letter had also been written by him to the
Superintendent of Police, Faridabad, the District Collector, the Chief
Justice, High Court of Punjab & Haryana, and the Human Rights
Commissioner, suggesting his involvement. The recovery memo of
the same (Ex.P-5), bears the signatures of Jagatpal (PW.2) and
Mahender Singh, employees of the Taneja Guest House, Faridabad.
(x) The appellant had remained absconding for several days, and
after his apprehension, the mobile phone belonging to Sonia was
recovered from the shop of Sonu at Itarsi, Madhya Pradesh on the
basis of a disclosure statement made by him. The disclosure
statement made by the appellant on the basis of which the recovery
was made, bears the signatures of the appellant and of a police
personnel as a witness.
(xi) The call records clearly prove that the mobile phone belonging
to Sonia (deceased), had been used even after her death and that the
same had been in the possession of the appellant, as no body else
31Page 32
could have used the same. Sonia had died before 2.30 p.m. on
2.9.2004. The call records of her telephone, which have been
exhibited before the court, clearly disclose the outgoing calls that
were made from her telephone to her mother and other relatives, as
has been referred to hereinabove at 1620.55; 1625.47; 1637.17;
1707.46; and 1744.03 as Exh.P.21.
(xii) During the investigation, the appellant had refused to participate
in the Test Identification Parade, as he could have been identified by
Ghanshyam (Security Guard) of the hostel, Arjun (Cook) and Bimla,
Caretaker (PW.8), as well as by the staff of the Taneja Guest House.
(xiii) Jagatpal (PW.2), though had turned hostile, has provided
material information, and has also accepted his signatures on the
recovery memo and his statements, as well as those of Mahender, the
other attendant.
(xiv) The appellant has given a specimen of his hair to be compared
with the hair recovered from the place of occurrence, and the FSL
report (Ex.P-8) that was tendered as evidence has showed, that the
hair that was recovered from the place of occurrence, was found to be
32Page 33
similar in most of its morphological and microscopical characteristics,
to the sample of the hair provided by the appellant.
37. In view of the aforesaid factors, the Trial Court, as well as the
High Court, have convicted the appellant and awarded the sentences
as referred to hereinabove.
We have also been taken through the evidence on record, as
well as through the judgments of the courts below. Bimla, Caretaker
(PW.8), is definitely an independent witness. She had “last seen
together” the appellant and Sonia (deceased), just before her death,
and we do not see any reason to doubt the veracity of her statement. It
is also on record that the appellant had left alone from the hostel. The
appellant has not furnished any explanation with respect to what could
have happened to Sonia (deceased) while she was with him, if he was
not responsible for her death. No explanation was furnished by him
as regards why he had stayed at the Taneja Guest House, by providing
a fictitious name and false address and nor was any explanation
provided by him with respect to the circumstances under which, the
mobile phone belonging to Sonia, had come to be in his possession.
Admittedly, this is a case of a love marriage which had gone wrong.
Owing to such marital discord, they had decided to separate and to get
33Page 34
divorce by mutual consent. Therefore, it might have been frustration
which had forced the appellant to commit such a heinous crime.
38. From the undelivered letter that had been written by the
appellant in the name of Superintendent of Police and to others, in
Ex.P-54 recovered from the Taneja Guest House, it is evident that the
appellant had developed intimacy with Sonia (deceased) much earlier,
and had claimed to have married her in a temple, though, the formal
marriage between them had taken place in the year 2003. The said
letter reveals, that Sonia (deceased) and her family members had
tortured him mentally, and had extracted a huge amount of money
from him over a period of the past ten years. He had even persuaded
his friends, relatives and family members to give a loan to the
complainant, Sube Singh, which had never been returned by him.
Several threats had been made to the appellant by the family of the
deceased stating that they would involve him in a false dowry demand
case, eliminate him. The family members of the appellant had
severed all relations with him.
In the suicide note (Ex.P-55), the same story has been depicted.
Thus, the feelings of the appellant towards Sonia (deceased), and her
34Page 35
family members were such, that they could have given rise to a
motive for him to commit the said offence.
39. The non-examination of Sonu, from whose shop, the mobile
phone was recovered, cannot be said to be fatal for the reason that the
recovery memo bears the signature of the appellant himself. One
police Head Constable has also signed the same as a witness, and it is
not the case of the appellant that he had been forced to sign the said
recovery memo. Similarly, we do not find any force in the
submissions advanced on behalf of the appellant, stating that the nonexamination of Ghanshyam and Arjun from the girls’ hostel, or of
Mahender from the Taneja Guest House, requires the court to draw
adverse inference, as there is no need to provide the same evidence in
multiplicity. The appellant could have examined them or some of
them as defence witnesse(s). However, no such attempt was made on
his part.
40. A large number of discrepancies have been pointed out by the
learned counsel appearing on behalf of the appellant, and some of
them are reproduced as under:
35Page 36
A. The entry register maintained in the Girls Hostel for visitors
was never produced in court.
B. The finger prints taken from the glass and tea cups recovered
from the hostel, to prove that the same had been used by the
appellant, did not test positive. 
C. The rope allegedly used in the crime, was not recovered, nor
has any positive evidence been produced to show that the
appellant had gone to the hostel armed with a rock. 
D. A large number of girl students had been staying in the hostel,
and none of them were examined. 
E. The postmortem report does not in any way prove the case of
the prosecution, for the reason that the throttling, smothering
and breaking of various ribs of the deceased, may not have been
caused by a single person.
F. The mobile phone recovered from Itarsi (M.P.) was not
deposited in the Malkhana. 
G. The telephone number that had allegedly been purchased by
Sonia (deceased), and later recovered, showed some variance.
H. The journey from Faridabad to Itarsi and from Itarsi to
Faridabad has not been proved. 
36Page 37
I. The Booking Register of the Taneja Guest House does not
prove that the appellant had stayed in the said Guest House. 
41. We have examined the aforesaid discrepancies pointed out by
the learned counsel. 
It may be stated herein that some of the issues
have been explained by the prosecution, however, no attempt was ever
made by the defence to put most of these issues to SI Vinod Kumar
(PW.20), the Investigating Officer in his cross-examination. It is
evident from his deposition that he had, in fact, answered all the
questions that were put to him in the cross-examination. 
However, it
is pertinent to clarify that most of these questions that are being
currently raised before us were not put to him. 
For example, he has
explained that nobody from the said market had been ready to become
the Panch witness for recovery of the mobile phone from Sonu’s shop
at Itarsi, and that even Sonu was not ready to do so. 
Further, no
question had been put to him in the cross-examination regarding the
different EMEI number of the said mobile phone. 
The mobile phone
that was recovered, bore the EMEI No. 3534000004033852 (Ex.P-
19), though the EMEI number of mobile phone that belonged to Sonia
was 3534000004033853. 
Furthermore, no question had been put as
to why the mobile phone, after the recovery, had not been deposited in
37Page 38
the Malkhana. In light of such a fact situation, it is not permissible for
us to consider such discrepancies. 
So far as the inconsistencies in the depositions of the witnesses
are concerned, none of them can be held to be material inconsistency.
42. The facts so established by the prosecution do not warrant
further review of the judgments of the courts below by this court. The
appeal lacks merit and is, accordingly, dismissed. 
……………………………...J.
 [DR. B.S. CHAUHAN]
 ...…….…….......................... J.
 [DIPAK MISRA]
NEW DELHI;
MAY 29, 2013
38

service matter= advertisements were issued to fill up the posts of Director General in All India Radio and Doordarshan on 20.10.2010 and 20.12.2010 respectively.= Section 4 of the Act deals with appointment of Chairman and other Members. Sub-sections (1) and (2) of Section 4 read thus: - “4. Appointment of Chairman and other Members. – (1) The Chairman and the other Members, except the ex officio Members, the nominated Member and the elected Members shall be appointed by the President of India on the recommendation of a committee consisting of- (a) the Chairman of the Council of States, who shall be the Chairman of the Committee; (b) the Chairman of the Press Council of India established under section 4 of the Press Council Act, 1978 (37 of 1978); and (c) one nominee of the President of India. (2) No appointment of Member shall be invalidated merely by reason of any vacancy in, or any defect in the constitution of, the committee appointed under sub-section (1).” 18. Regulation 5 of the Prasar Bharati (Broadcasting Corporation of India) Director General (Akashvani) and Director General (Doordarshan) (Recruitment) Regulations, 2001 reads as follows: - “5. Appointing Authority : The appointment to the post specified in column 1 of the Schedule shall be made by the Corporation, after consultation with the Recruitment Board established under sub-section (1) of Section 10 of the Act.”= By efflux of time, some of the Members of the Board were substituted and different Members were inducted. The tribunal thought it appropriate to remit the matter to the Board to reconsider the matter after due deliberation. Keeping in view the minutes of the meeting, it is manifest that the Board has gone through the whole deliberations by the recommending authority, as we find from the records, and expressed the view. Thus, it was not necessary to hold a further interview to find out the preference as the minutes were absolutely clear as day that no preference was given. Therefore, we do not find any flaw in the three Members participating in the short-listing of the names and giving preference. That apart, the majority of the earlier Members were there and they had given preference in favour of the fourth respondent and, therefore, factually, it would not have made any difference.

Page 1
Rep
ortable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4665 OF 2013
G. Jayalal ...Appellant
Versus
Union of India and others ...Respondents
J U D G M E N T
Dipak Misra, J.
In this appeal, the pregnability of the order dated
17.2.2012 passed by the High Court of Delhi in WP (C) No.
61 of 2012 affirming the order dated 30.11.2011 passed
by the Central Administrative Tribunal, Principal Bench,
New Delhi (for short “the Tribunal”) in O.A. No. 1290 of
2011 is called in question.
Page 2
2. The facts, as have been exposited, are that
advertisements were issued to fill up the posts of
Director General in All India Radio and Doordarshan
on 20.10.2010 and 20.12.2010 respectively.
 A
Committee headed by the Chairperson, Prasar
Bharati Board, was constituted to make the
recommendations for appointment to the aforesaid
two posts. 
Names of nine persons including that of
the appellant and the fourth respondent herein were
recommended to be interviewed by the Selection
Committee. 
The recommendations of the Selection
Committee were forwarded to the Government of
India vide letter dated 16.3.2011 by the Member
(Personnel), Prasar Bharati. 
The Committee
forwarded three names for the post of Director
General, Doordarshan and names of two persons,
that of the appellant and the fourth respondent, for
the post of Director General, All India Radio. 
On
receipt of the recommendations, a letter dated
21.3.2011 was circulated by the Officer on Special
Duty in Prasar Bharati to all the Members of the
2Page 3
Selection Committee. It was mentioned in the letter
that in the special meeting held on 15.3.2011, the
Selection Board, after interviewing the candidates
and taking into account all the relevant factors, had
decided to recommend a panel of candidates for the
two posts but as the names recommended were not
put in any particular order of preference by the
Selection Board, the Government had desired that
the names in the panel be put in the order of
preference. After receipt of the letter, it was decided
by the Board to short-list the candidates in order of
preference by way of circulation. Thereafter, each
Member of the Selection Committee gave his
recommendation by way of separate endorsement.
Eight Members of the Selection Committee, that
constituted of nine Members, placed the fourth
respondent at serial No. 1 and the appellant at serial
No. 2 in order of preference for the post of Director
General, All India Radio. Five out of nine Members of
the Committee placed Shri Tripurari Sharan at serial
No. 1, Shri Ram Subhag Singh at serial No. 2, and
3Page 4
Shri L.D. Mandloi at serial No. 3 in the said order of
preference for the post of Director General,
Doordarshan. It is evident from the record that the
majority of the members of the Selection Committee
placed the fourth respondent in order of preference
at No. 1 for the post of Director General, All India
Radio and Shri Tripurari Sharan for the post of
Director General, Doordarshan. Be it noted, the
name of the appellant was also recommended for the
post of Director General, Doordarshan. The aforesaid
recommendations of the Selection Committee
indicating preference were sent to the Government
of India as per letter dated 21.3.2011 by the Joint
Secretary (B), Ministry of Information and
Broadcasting.
3. At that stage, the appellant preferred O.A. No.
1290 of 2011 before the tribunal seeking quashment
of the recommendations dated 21.3.2011 and also
sought for issuance of a direction to the respondents
to act as per the recommendations dated 15.3.2011.
Such a prayer was made as the stand of the
4Page 5
appellant was that he was placed at No. 1 in order of
preference for appointment to the post of Director
General, All India Radio. 
The tribunal did not accept
the contentions raised by the appellant pertaining to
placing of names in order of preference. The plea of
mala fide pertaining to the act of any authority in the
Government in changing the decision of the Selection
Committee was also not accepted. However, the
tribunal opined that the order of preference that has
been decided on 21.3.2011 could not have been so
decided by circulation and a meeting of Prasar
Bharati Board (Selection Committee) was required to
be held for the said purpose and the decision was
required to be taken after due deliberations and
consultations amongst the Members of the Board.
Being of this view, the tribunal directed the
respondents to convene a meeting of the Board to
determine the order of merit of the candidates. It
was further observed by the tribunal that if the
outcome of the meeting would result in the
endorsement of the earlier view, nothing more was
5Page 6
required to be done. In pursuance of the order
passed by the tribunal, a meeting of the Board was
convened and the decision that was taken by
circulation was reiterated.
4. Being dissatisfied with the said confirmation, the
appellant approached the High Court as the tribunal
had foreclosed the issue by stating that if there
would be confirmation or endorsement of the earlier
view, nothing more was required to be done. Be it
noted, by the time the tribunal decided the Original
Application, the tenure of three Members had come
to an end either by virtue of retirement or expiry of
the term. It was urged before the High Court that
since three new Members of the Board had not
interviewed the candidates, they were not in a
position to take an informed view with respect to the
merits of the candidates. The High Court declined to
enter into the said arena by holding that if the
appellant is aggrieved by the decision taken in the
meeting of the Board convened pursuant to the
direction of the tribunal, it was open to file an
6Page 7
application before the tribunal. The High Court
adverted to the singular issue whether the Selection
Committee, in its meeting held on 15.3.2011, had
placed the appellant herein, in order of preference,
for the post of Director General, All India Radio, or
not. After perusing the minutes of the meeting, the
High Court opined that the recommendations could
not be interpreted to mean that the person whose
name was shown at No. 1 ranked first in order of
merit. The allegation that someone in the
Government was instrumental in influencing the
Members of the Selection Committee to change the
recommendation as decided in the meeting on
15.3.2011 to deprive the appellant of a legitimate
claim was not accepted. The High Court proceeded
to deal with the allegation of mala fide and opined
that as no particulars were given about any
Governmental authority showing any favour to any
particular candidate, the said allegations were not
acceptable. The plea of legal malice to the effect
that the Government directed Prasar Bharati Board to
7Page 8
act in a particular manner was repelled by the High
Court as the same was not based on any material.
Being of this view, the High Court dismissed the writ
petition.
5. We have heard Mr. M.N. Krishnamani, learned
senior counsel for the appellant, Mr. Paras Kuhad,
learned Additional Solicitor General, Mr. Vikas Singh,
learned senior counsel for the fifth respondent, Mr.
M.C. Dhingra, learned counsel for the fourth
respondent, Mr. Rajeev Sharma and Mr. Rajesh
Srivastava, learned counsel for the respondents.
6. Mr. Krishnamani, learned senior counsel
appearing for the appellant, has basically raised
three contentions, namely, (i) on a perusal of the
recommendations of the Selection Committee, it is
clearly demonstrable that it had sent the names in
order of preference, regard being had to the
seniority, merit and suitability, but the same was
changed by the Board which had no authority to do
so; (ii) after the tribunal had quashed the decision
taken by way of circulation, the matter was directed
8Page 9
to be reconsidered by proper deliberation but three
Members of the Selection Committee who had not
interviewed the candidates had been replaced and
hence, the decision of the Board is vitiated; and (iii)
the Government has indirectly influenced the
decision by a proposal and the same tantamounts to
legal malice which makes the selection vulnerable in
law.
7. Mr. Paras Kuhad, learned Additional Solicitor
General, has submitted that the recommendations
did not indicate any preference based on merit and,
therefore, the presumption in that regard is
absolutely erroneous. It is urged by him that the
Officer on Special Duty had clarified the position
before the tribunal that as per his understanding,
there was no preference and there was no
interference by the Government requiring the
Committee to do any act in any particular manner
and hence, there is nothing to suggest any legal
malice. He has produced the proceedings of
selection before this Court.
9Page 10
8. Mr. Dhingra, learned counsel appearing for the
fourth respondent, has submitted that the order
passed by the High Court is absolutely impregnable
and defensible and does not warrant any interference
by this Court.
9. Mr. Vikas Singh, learned senior counsel appearing
for the fifth respondent, the Director General,
Doordarshan, submitted that there was no
recommendation by preference and further nonavailability of the three Members due to their
retirement or expiry of tenure and constitution of the
Board by inducting three new Members would not
vitiate the selection. For the aforesaid purpose, he
has placed reliance on Section 4(2) of the Prasar
Bharati (Broadcasting Corporation of India) Act, 1990
(for short “the Act”) and commended us to the
decision in B.K. Srinivasan and others v. State of
Karnataka and others1
.
1
 (1987) 1 SCC 658
10Page 11
10. To appreciate the aforesaid submissions, we shall
refer to the minutes of the meeting dated 15.3.2011.
The relevant part of the minutes reads as under: -
“2. The Board interviewed the following
officers (who responded to the intimation in
respect of the interview) for the post of Director
General, All India Radio: -
i. Shri G. Jayalal
ii. Shri L.D. Mandloi
iii. Shri Ashok Jailkhani
3. The Board interviewed the following
officers (who responded to the intimation in
respect of the interview) for the post of Director
General, Doordarshan: -
EXTERNAL CANDIDATES
(i) Shri Sunil Kumar Singh
(ii) Shri Ram Subhag Singh
(iii) Shri Anil Kumar Aggarwal
(iv) Shri Manoj Kumar Panda
(v) Shri Jagmohan Singh Raju
(vi) Shri Tripurari Sharan
DEPARTMENTAL CANDIDATES
(i) Shri G. Jayalal
(ii) Shri L.D. Mandloi
(iii) Shri Ashok Jailkhani
4. Taking into account the considerations of
overall merit and experience and with due
11Page 12
regard to an assessment of suitability, the
Board decided to forward recommendations to
the Government of India, as given below: -
For the post of Director General,
Doordarshan
1. Sh. L.D. Mandloi
2. Sh. Tripurari Sharan
3. Sh. Ramsubhag Singh
For the post of Director General, All India
Radio
1. Sh. G. Jayalal
2. Sh. L.D. Mandloi”
11. It has been contended that it was a
recommendation in order of preference. On a
perusal of the file, it is perceptible that after the
recommendations were sent, the OSD circulated a
letter stating that the Board had not sent the names
in order of merit or preference and, therefore, it was
necessary that the names should be short-listed in
order of preference. It is also evident from the
record that each of the Members of the Selection
Committee gave his recommendation separately on
the proposed decision circulated by the OSD. No
Member of the Selection Committee, while giving his
12Page 13
recommendation, stated that in the meeting held on
15.3.2011, the Board had recommended the names
in order of merit. It is also noticeable that one of the
Members, namely, Dr. George Verghese, who had
recommended the appellant to be placed at No. 1,
had also not mentioned that the names had already
been placed in order of preference of merit. We have
only referred to the same to indicate that the
Members of the Board had understood the minutes in
that perspective.
12. At this juncture, we think it appropriate to advert
to when preference is given on the basis of merit and
suitability. Conceptual preference, fundamentally,
would mean that all aspects, namely, merit,
suitability, fitness, etc. being equal, preference is
given regard being had to some other higher
qualifications or experience, etc. In this regard, we
may refer with profit to the dictum in Secretary,
A.P. Public Service Commission v. Y.V.V.R.
Srinivasulu and others2
 wherein a two-Judge
2
 (2003) 5 SCC 341
13Page 14
Bench stated about the preference. Though the
principle was laid down in the context of a particular
rule, yet we reproduce the same with profit: -
“Whenever, a selection is to be made on the
basis of merit performance involving
competition, and possession of any additional
qualification or factor is also envisaged to
accord preference, it cannot be for the purpose
of putting them as a whole lot ahead of others,
dehors their intrinsic worth or proven inter se
merit and suitability, duly assessed by the
competent authority. Preference, in the context
of all such competitive scheme of selection
would only mean that other things being
qualitatively and quantitatively equal, those
with the additional qualification have to be
preferred.”
13. In the case at hand, it is not disputed that both
the candidates were eligible. If the minutes of the
meeting which we have reproduced hereinbefore are
minutely studied, it is perceptible that three
departmental candidates were interviewed for the
post of Director General, All India Radio. The names
of the appellant and the fourth respondent were
placed at serial Nos. 1 and 2 respectively. When the
Committee recommended, it also placed them in the
same seriatim. The language used in paragraph 4 of
14Page 15
the minutes states that taking into account the
consideration of overall merit and experience and
with due regard to the assessment of suitability, the
Board decided to forward the recommendations to
the Government of India. But it does not specifically
state that the recommendations were in order of
merit or in order of preference as determined by the
Board. On the contrary, it is suggestive of the fact
that the Board has placed the names in the same
order as sent by the department for consideration.
Thus, the submission of Mr. Krishnamani that the
names were sent in order of merit or preference does
not merit acceptance.
14. The next limb of argument is that there was
interference by the Government to take the decision
in a particular manner. The said aspect is linked with
legal malice and hence, it is necessary to deal with
both the aspects in a singular compartment. The
High Court has referred to the facts in detail after
referring to the affidavit filed by the Officer on
Special Duty. In the letter circulated on 21.3.2011 by
15Page 16
the Officer on Special Duty, he had only suggested
that the Board was required to short-list the
candidates in order of preference. The decision in
entirety was left to the Board. No suggestion was
given. Mr. Krishnamani has very fairly stated that
the appellant does not intend to allege any kind of
personal mala fide but legal malice as the suggestion
had been given for short-listing the candidates which
was absolutely unnecessary. In essence, the
submission of the learned senior counsel is that the
action of the authorities is not bonafide in law. In this
context, we may refer with profit to the decision in
State of A.P. and others v. Goverdhanlal Pitti3
wherein this Court has ruled thus: -
“ “Legal malice” or “malice in law” means
“something done without lawful excuse”. In
other words, “it is an act done wrongfully and
wilfully without reasonable or probable cause,
and not necessarily an act done from ill feeling
and spite. It is a deliberate act in disregard of
the rights of others”. (See Words and Phrases
Legally Defined, 3rd Edn., London Butterworths,
1989.)”
xxx xxx xxx
3
 (2003) 4 SCC 739
16Page 17
“Where malice is attributed to the State, it can
never be a case of personal ill-will or spite on
the part of the State. If at all it is malice in legal
sense, it can be described as an act which is
taken with an oblique or indirect object.”
15. Similar view has been expressed in West Bengal
State Electricity Board v. Dilip Kumar Ray4
 and
Kalabharati Advertising v. Hemant Vimalnath
Narichania and others5
.
16. Tested on the anvil of the aforesaid principles of
law, it cannot be said that any wrongful act has been
done to inflict any legal injury on the appellant. It is
difficult to hold that any act has been done to
disregard or defeat his legal rights. What has been
stated by the OSD is basically requiring the Board to
short-list the names in order of preference. The
Members of the Board could have reiterated that
they had earlier recommended the names in
accordance with preference. They, we are inclined to
think correctly, did not say that the
recommendations already made were in order of
preference but gave the preference initially by
4
 (2007) 14 SCC 568
5
 (2010) 9 SCC 437
17Page 18
circulation and when it was set aside by the tribunal,
thereafter, by deliberation. Thus, the submission
pertaining to legal malice, being sans substratum,
stands repelled.
17. The last plank of argument of the learned senior
counsel is that the inclusion of three new Members
who had not interviewed the candidates would vitiate
the decision of the Board. The High Court has not
dealt with it and opined that if the said decision was
required to be assailed, it was open to the appellant
to knock at the doors of the tribunal. There is no
dispute from any quarter that three Members had to
be substituted because some had retired and the
tenure of some had expired.
Section 4 of the Act
deals with appointment of Chairman and other
Members. Sub-sections (1) and (2) of Section 4 read
thus: -
“4. Appointment of Chairman and other
Members. – (1) The Chairman and the other
Members, except the ex officio Members, the
nominated Member and the elected Members
shall be appointed by the President of India on
the recommendation of a committee consisting
of-
18Page 19
(a) the Chairman of the Council of States, who
shall be the Chairman of the Committee;
(b) the Chairman of the Press Council of India
established under section 4 of the Press
Council Act, 1978 (37 of 1978); and
(c) one nominee of the President of India.
(2) No appointment of Member shall be
invalidated merely by reason of any vacancy in,
or any defect in the constitution of, the
committee appointed under sub-section (1).”
18. Regulation 5 of the Prasar Bharati (Broadcasting
Corporation of India) Director General (Akashvani)
and Director General (Doordarshan) (Recruitment)
Regulations, 2001 reads as follows: -
“5. Appointing Authority : The appointment to
the post specified in column 1 of the Schedule
shall be made by the Corporation, after
consultation with the Recruitment Board
established under sub-section (1) of Section 10
of the Act.”
19. There is no cavil that three Members, who have
been appointed, have been validly appointed.
Though Mr. Vikas Singh, learned senior counsel, has
drawn inspiration from the concept of principle of
“Ganga” clause as enshrined in B.K. Srinivasan
(supra), yet the same need not be adverted to as
neither the appointment of the Member of the Board
19Page 20
nor their holding the office as Member is called in
question. The issue is slightly different. 
By efflux of
time, some of the Members of the Board were
substituted and different Members were inducted.
The tribunal thought it appropriate to remit the
matter to the Board to reconsider the matter after
due deliberation. Keeping in view the minutes of the
meeting, it is manifest that the Board has gone
through the whole deliberations by the
recommending authority, as we find from the
records, and expressed the view. Thus, it was not
necessary to hold a further interview to find out the
preference as the minutes were absolutely clear as
day that no preference was given. Therefore, we do
not find any flaw in the three Members participating
in the short-listing of the names and giving
preference. That apart, the majority of the earlier
Members were there and they had given preference
in favour of the fourth respondent and, therefore,
factually, it would not have made any difference.
20Page 21
Thus analysed, we perceive no merit in this
contention.
20. In view of the aforesaid premised reasons, the
appeal is devoid of any substance and, accordingly,
stands dismissed without any order as to costs.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 29, 2013.
21