Sec.304 B - vs- 306 I.P.C. - when there was no demand for dowry sec.304 B not applies - Even though there is no direct provocation to go and died , Sec.306 covers widest meaning as she committed suicide due to constant harassment of the accused - Apex court held that Under these circumstances, we modify the judgment and order passed by the High Court and convict Karan Singh and Mukhtiari for an offence punishable under Section 306 of the IPC. The sentence awarded to them by the High Court would necessarily have to be modified. In our opinion, keeping in view the fact that both Karan Singh and Mukhtiari are in their mid-sixties and we are told by their learned counsel that Satbir and Sukhbir are living separately from them due to their differences and taking into consideration the fact that Manju’s son is being looked after by Karan Singh and Mukhtiari for the last almost twenty years, we are of the opinion that the ends of justice would be met if they are sentenced to rigorous imprisonment for a period of two years. We are also of the opinion that each one of them should be subjected to pay a fine of Rs. 50,000/- each and in default of payment thereof to undergo simple imprisonment for a further period of six months. With this modification in the conviction and sentence, the appeal is disposed of.= Karan Singh & Anr. …..Appellants Versus State of Haryana …Respondent= 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41414

Sec.304 B - vs- 306 I.P.C. - when there was no demand for dowry sec.304 B not applies - Even though there is no direct provocation to go and died , Sec.306 covers widest meaning as she committed suicide due to constant harassment of the accused - Apex court held that Under these circumstances, we modify the judgment and  order  passed by the High Court and convict Karan  Singh  and  Mukhtiari  for  an  offence punishable under Section 306 of the IPC.  The sentence awarded  to  them  by the High Court would necessarily have  to  be  modified.   In  our  opinion,
keeping in view the fact that both Karan Singh and Mukhtiari  are  in  their mid-sixties and we are  told  by  their  learned  counsel  that  Satbir  and Sukhbir are living separately from them due to their differences and  taking into consideration the fact that Manju’s son is being looked after by  Karan Singh and Mukhtiari for the last almost twenty years, we are of the  opinion
that the ends of justice would be met if  they  are  sentenced  to  rigorous imprisonment for a period of two years.  We are also  of  the  opinion  that each one of them should be subjected to pay a fine of Rs. 50,000/- each  and in default of payment thereof to undergo simple imprisonment for  a  further period of six months. With this modification in the conviction and  sentence,  the  appeal is disposed of.=

whether the appellants are  guilty  of  an
offence punishable under Section 304-B or under Section 306  of  the  Indian
Penal Code (IPC). In our opinion, they are guilty of an  offence  punishable
under Section 306 of the IPC. =

  Neither  Ram  Kishan  nor  Vidya  Devi  nor  Sunita  has  given  any
indication of any specific demand for dowry. Under these  circumstances,  it
is difficult for us to conclude that the provisions of Section 304-B of  the
IPC would be attracted.  It has been held times without number that,
           “To establish the offence of dowry death under Section 304-B IPC
           the prosecution has to prove beyond reasonable  doubt  that  the
           husband or his relative has subjected the deceased to cruelty or
           harassment in connection with demand of dowry  soon  before  her
           death.”[1]

As such the ill-treatment and subsequent  death  of  Manju  would  not  fall
within the meaning of a dowry death under Section 304-B of the IPC.    

 From the facts  of  the  case  it  is  quite
clear to us that although there may be no  evidence  of  Manju  having  been
compelled by Karan Singh and Mukhtiari to consume poison, they  had  created
a situation over a sufficiently long period of time  whereby  she  was  left
with no option but to take her life. It  is  quite  unlikely  that  a  young
lady, particularly one having a year old child, would take her  life  unless
she had some mental health issues (which is not the case) or  was  compelled
by circumstances to do so. An offence  of  abetment  of  suicide  punishable
under Section 306 of the IPC is  much  broader  in  scope  than  an  offence
punishable under Section 304-B of  the  IPC.[2]  In  this  case  an  offence
punishable under Section 306 of the IPC is clearly made  out  against  Karan
Singh and Mukhtiari.          
 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41414
RANJANA PRAKASH DESAI, MADAN B. LOKUR
                                             NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 666 OF 2009

Karan Singh & Anr.
…..Appellants

                                    Versus

State of Haryana
…Respondent



                               J U D G M E N T


Madan B. Lokur, J.

1.      The question before us is whether the appellants are  guilty  of  an
offence punishable under Section 304-B or under Section 306  of  the  Indian
Penal Code (IPC). In our opinion, they are guilty of an  offence  punishable
under Section 306 of the IPC.
The facts
2.      Manju and her sister PW-5 Sunita, were married on 17th May, 1993  to
Satbir and his brother Sukhbir respectively.  PW-4 Ram  Kishan,  the  father
of the two brides spent a considerable amount on  the  wedding,  beyond  his
means, and also gave several articles in dowry.   However,  the  parents  of
Satbir and Sukhbir that is Karan Singh (father) and Mukhtiari (mother)  were
apparently not satisfied with the dowry.
3.      According to the prosecution Karan Singh and Mukhtiari  would  often
harass and beat Manju and  Sunita  and  demand  some  more  dowry.   It  was
alleged that Manju and Sunita were also turned out  from  their  matrimonial
home on some occasions.
4.      Sometime in August, 1994 Manju gave birth to  a  baby  boy  and  her
father Ram Kishan again spent some money on the  occasion  and  gave  gifts.
Unfortunately, however, within ten days thereafter  Manju  and  Sunita  were
turned out from their matrimonial home.  They informed Ram Kishan that  they
were being harassed and demands were being made for  dowry.   On  this,  Ram
Kishan called and spoke to Satbir and Sukhbir and  persuaded  them  to  take
Manju and Sunita back in their matrimonial home, which  they  did.  However,
according to the prosecution there was no change in the behaviour  of  Karan
Singh and Mukhtiari.
5.      At this stage, it may  be  noted  that  Manju  and  Sunita  made  no
allegations regarding  dowry  demands  by  their  respective  husband.   The
demand for dowry and allegations of harassment were made only against  Karan
Singh and Mukhtiari.
6.      On or about 10th December, 1995  Sunita  was  given  a  beating  and
turned out of the matrimonial home.   However,  Manju  stayed  back  in  the
matrimonial home in village Raiya.
7.      On 13th December, 1995 at about 4.00  p.m.  Manju  consumed  or  was
made to consume some poison.  She was then taken  to  the  Community  Health
Centre in Jhajjar  and  thereafter  referred  to  the  Medical  College  and
Hospital (MCH) at Rohtak.
8.      At about 6.30 p.m. on 13th December, 1995  a  rukka  (Exh.  PL)  was
sent by the  Community  Health  Centre  at  Jhajjar  to  the  Station  House
Officer, Police Station, Jhajjar.
9.      Manju was taken to the MCH at Rohtak by her husband Satbir  and  was
examined at about 8.15 p.m.  The doctor in Rohtak then  sent  another  rukka
(Exh. PH) to the Police Post, MCH at Rohtak at about 9.30 p.m. along with  a
medico-legal report.
10.      PW-9  ASI  Raj  Kumar,  the  Investigating  Officer  had,  in   the
meanwhile, received the first rukka (Exh. PL)  but  since  he  was  busy  in
connection with another case, he went the next day on  14th  December,  1995
at about 8.00 a.m. to Rohtak where he picked up the rukka (Exh. PH) and  the
medico-legal report from the concerned Police Post in Rohtak.  He then  went
to the emergency ward in the MCH and learnt that at about 2.00  a.m.  (early
morning of 14th December, 1995) Manju had expired.  According to  Raj  Kumar
no one from her family was present at the spot and therefore the  dead  body
was placed in the dead house. Raj Kumar  conducted  inquest  proceedings  on
14th and 15th  December,  1995.  During  the  inquest  proceedings  on  15th
December, 1995 Ram Kishan met Raj Kumar at Rohtak and his  formal  statement
was recorded only at about 5.30 p.m. and a First  Information  Report  (FIR)
was registered under Section 304-B of the Indian Penal Code.
11.     After carrying out investigations Raj  Kumar  arrested  Karan  Singh
and Mukhtiari on 26th December, 1995 and subsequently  a  charge  sheet  was
filed against them alleging offences punishable  under  Sections  304-B  and
498-A of the IPC.
Decision of the Trial Court
12.     The Trial Judge hearing the case delivered his  judgment  and  order
on 12th February, 1997 and acquitted Karan Singh  and  Mukhtiari.   The  two
principal grounds on which they  were  acquitted  were  that  there  was  an
unexplained delay in lodging the FIR.  It was held that Manju’s mother  PW-6
Vidya Devi and her sister Sunita had come to know  on  14th  December,  1995
that Manju had died but the FIR was registered by Ram Kishan  only  on  15th
December,  1995.  In  view  of  the  unexplained  delay,  the  case  of  the
prosecution was liable to fail.
13.     It was held that the inquest report showed that Ram Kishan  had  met
Raj Kumar on 14th December, 1995.  However, we have seen the inquest  report
and find this is factually incorrect.
14.     The second ground on which the Trial  Judge  acquitted  Karan  Singh
and Mukhtiari was that there was  nothing  to  show  that  soon  before  her
death, Manju was subjected to cruelty and harassment for  or  in  connection
with  a  demand  of  dowry.   It  was  held  that  Manju  had   died   under
circumstances that were not normal and her death had occurred  within  seven
years of her marriage but there was no evidence of her  being  harassed  for
dowry. She had not sent any letter  to  her  parents  complaining  of  dowry
harassment.
15.     The Trial Judge also relied on the  statement  of  DW-2  Badlu  aged
about 75 years and a respectable person of village  Raiya  that  both  Manju
and Sunita were treated with love and affection and there was no demand  for
dowry from Karan Singh or Mukhtiari.  Badlu further stated that  Ram  Kishan
used to come to village Raiya to enquire about the welfare of his  daughters
but he was frequently  drunk.  This  was  objected  to  by  Mukhtiari  which
annoyed Ram Kishan.  It was also stated by Badlu that Ram Kishan wanted  his
daughters and their respective husband to stay separately from  Karan  Singh
and Mukhtiari and he had also tried to persuade  Karan  Singh  to  give  his
lands to Satbir  and  Sukhbir  and  live  on  his  pension.   This  was  not
acceptable to Karan Singh. The Trial Judge was of the opinion that  in  view
of all these facts, Ram Kishan blamed Karan Singh and Mukhtiari for  Manju’s
death.
Decision of the High Court
16.     Feeling aggrieved by the judgment and  order  passed  by  the  Trial
Court, the State preferred an appeal in the Punjab and  Haryana  High  Court
being Criminal Appeal No. 575-DBA of 1997.  By its Judgment and Order  dated
12th May, 2008 the High Court set aside the decision of the Trial Judge  and
convicted Karan Singh and Mukhtiari for an offence punishable under  Section
304-B of the IPC and punished them to imprisonment for  the  minimum  period
of seven years.
17.     The High Court was of the opinion that the delay in lodging the  FIR
was satisfactorily explained inasmuch as Vidya Devi and Sunita could not  be
expected to lodge the FIR and would have waited for  Ram  Kishan  to  arrive
and take necessary steps.  There was no undue delay in Ram Kishan’s  arrival
in Rohtak and the FIR was lodged thereafter within  a  reasonable  time.  We
agree with this finding since the record shows that Ram Kishan was  informed
of some untoward happening by his son Surinder Singh only on 14th  December,
1995 and thereafter he reached Rohtak at about  10.00  p.m.  the  same  day.
Not finding anybody there, he went to his  village  Dhani  Phogat  and  came
back to Rohtak on the morning of 15th December, 1995. The FIR was lodged  in
the afternoon on completion of the inquest proceedings.
18.     The High Court also held that it was  significant  that  Satbir  and
Sukhbir  were  not  examined  by  Karan  Singh  and  Mukhtiari  as   defence
witnesses.  If there was no substance in the allegations made against  them,
surely Satbir and Subkhbir would have come to their defence.   It  was  also
held that merely because there was some disagreement between Ram  Kishan  on
the one hand and Karan Singh and Mukhtiari on the other, that was no  reason
for Manju to have committed suicide or be killed.  The  evidence  of  Sunita
as well as that of Ram Kishan clearly pointed to the fact  that  both  Manju
and Sunita were being harassed for dowry and  were  turned  out  from  their
matrimonial home on more than one occasion.  It was held  that  just  a  few
days before Manju’s death, Sunita was given a beating and turned out of  her
matrimonial home.  Therefore, soon before her death, Manju was subjected  to
harassment and she died under unnatural circumstances.
19.     Accordingly, the High Court convicted Karan Singh and  Mukhtiari  of
an offence punishable under Section 304-B of the IPC and reversed the  order
of acquittal passed by the Trial Court.
20.     Karan Singh and Mukhtiari are in appeal  against  the  judgment  and
order of the High Court and the sentence awarded to them.
Discussion
21.     We have been taken through the evidence of Ram  Kishan,  Sunita  and
Vidya Devi.  On an analysis of the oral  testimony  given  by  them,  it  is
quite clear that the marriage  of  Manju  and  Sunita  was  performed  in  a
comparatively simple manner although a considerable  amount  seems  to  have
been spent. Ram Kishan categorically stated in  his  testimony  that  before
the marriage there was no demand for any dowry.  Subsequent to the  marriage
of Manju and Sunita, there also does not seem to be any specific demand  for
dowry as per the statement of Ram Kishan.  All that  he  testified  is  that
Karan Singh and Mukhtiari would say that his daughters  should  bring  money
for raising the construction of a house where they could reside  separately.
Other than this, there is no mention of  any  demand  having  been  made  by
Karan Singh and Mukhtiari for any dowry.
22.     Even the statement given by Sunita does not  disclose  any  specific
demand for dowry except that there is bald  statement  that  she  and  Manju
were taunted for bringing insufficient dowry.  The tenor  of  her  testimony
suggests that she and Manju were being generally  harassed  and  ill-treated
by Karan Singh and Mukhtiari.  The ill-treatment  and  harassment  does  not
appear to be related to any specific demand for dowry.
23.     Even Vidya Devi in her  statement  makes  a  general  allegation  of
demand for dowry and the consequent  harassment  of  Manju  and  Sunita  but
again the statement is only of a very general nature.
24.     Neither  Ram  Kishan  nor  Vidya  Devi  nor  Sunita  has  given  any
indication of any specific demand for dowry. Under these  circumstances,  it
is difficult for us to conclude that the provisions of Section 304-B of  the
IPC would be attracted.  It has been held times without number that,
           “To establish the offence of dowry death under Section 304-B IPC
           the prosecution has to prove beyond reasonable  doubt  that  the
           husband or his relative has subjected the deceased to cruelty or
           harassment in connection with demand of dowry  soon  before  her
           death.”[1]

As such the ill-treatment and subsequent  death  of  Manju  would  not  fall
within the meaning of a dowry death under Section 304-B of the IPC.
25.     But, there is no doubt that Manju and Sunita were subjected to  ill-
treatment and harassment from time to time  by  Karan  Singh  and  Mukhtiari
though it was not relatable to any demand for dowry. The evidence on  record
shows that they were turned out from the matrimonial home on more  than  one
occasion.  They were even turned out from the matrimonial home within  about
ten days after Manju gave birth to a baby boy.  Ram Kishan had spoken  about
this to Satbir and Sukhbir but in spite  of  this,  the  attitude  of  Karan
Singh and Mukhtiari did not change. As mentioned above,  no  allegation  has
been made against Satbir and Sukhbir.  Again,  a  few  days  before  Manju’s
death, Sunita was subjected to beating and turned  out  of  the  matrimonial
home. Although, Manju did not accompany her sister, she paid the  price  for
staying back in village Raiya.  From the facts  of  the  case  it  is  quite
clear to us that although there may be no  evidence  of  Manju  having  been
compelled by Karan Singh and Mukhtiari to consume poison, they  had  created
a situation over a sufficiently long period of time  whereby  she  was  left
with no option but to take her life. It  is  quite  unlikely  that  a  young
lady, particularly one having a year old child, would take her  life  unless
she had some mental health issues (which is not the case) or  was  compelled
by circumstances to do so. An offence  of  abetment  of  suicide  punishable
under Section 306 of the IPC is  much  broader  in  scope  than  an  offence
punishable under Section 304-B of  the  IPC.[2]  In  this  case  an  offence
punishable under Section 306 of the IPC is clearly made  out  against  Karan
Singh and Mukhtiari.

26.     It is significant that  when  Manju  was  admitted  in  the  MCH  at
Rohtak, and even when the inquest proceedings were being conducted  on  14th
and 15th December, 1995 neither Karan Singh nor  Mukhtiari  was  present  at
any time.  They seem to have had some antipathy  towards  Manju  and  Sunita
and this resulted in their harassing and treating Manju  with  cruelty  such
that she could not bear it any further and therefore  decided  to  take  her
life.
27.     The testimony of Badlu does not assist Karan  Singh  and  Mukhtiari.
His testimony in their favour was in the context of dowry  demands  but,  as
we have held, that is not the question  agitating  us.  His  testimony  also
showed that there was some friction between Ram Kishan on the one  hand  and
Karan Singh and Mukhtiari on the other. This part of Badlu’s testimony  does
not assist Karan Singh and Mukhtiari. On  the  contrary,  the  friction  may
have been an aggravating  factor  in  the  relationship  between  Manju  and
Sunita and their parents in law. In any event, it is not  necessary  for  us
to read too much, either way, in the statement of Badlu and we leave  it  at
that.
Conclusion
28.     Under these circumstances, we modify the judgment and  order  passed
by the High Court and convict Karan  Singh  and  Mukhtiari  for  an  offence
punishable under Section 306 of the IPC.  The sentence awarded  to  them  by
the High Court would necessarily have  to  be  modified.   In  our  opinion,
keeping in view the fact that both Karan Singh and Mukhtiari  are  in  their
mid-sixties and we are  told  by  their  learned  counsel  that  Satbir  and
Sukhbir are living separately from them due to their differences and  taking
into consideration the fact that Manju’s son is being looked after by  Karan
Singh and Mukhtiari for the last almost twenty years, we are of the  opinion
that the ends of justice would be met if  they  are  sentenced  to  rigorous
imprisonment for a period of two years.  We are also  of  the  opinion  that
each one of them should be subjected to pay a fine of Rs. 50,000/- each  and
in default of payment thereof to undergo simple imprisonment for  a  further
period of six months.
29.     With this modification in the conviction and  sentence,  the  appeal
is disposed of.


                                                             ……………………………………J
                                                     (Ranjana Prakash
Desai)


                                                             ……………………………………J
                                                     (Madan B. Lokur)
New Delhi;
April 15, 2014
-----------------------
[1]      More recently in Indrajit Sureshprasad Bind v. State of Gujarat,
  (2013) 14 SCC 678
[2]      Bhupendra v. State of U.P., (2014) 2 SCC 106

Acquittal basing on general diary and opinion of public not correct - Trial court did wrong - High court correctly reversed the order and convicted him - Apex court held that Perversity of the trial court’s judgment becomes apparent when one finds the undue importance given by it to the diary entries made by the investigating officer PW7-Sheomurthy Singh. PW7 stated that it was mentioned by him in the case diary that it was the opinion of general public that involvement of the accused except Umesh Chandra Rai-A6 is false. The trial court made a perverse observation that the investigating officer never tried to find out whether this rumour is true and submitted charge-sheet. Such reliance on diary entries is not permissible (Mohd Ankoos and Shamshul Kanwar). Besides, the general feeling of the society has no relevance to a criminal case. A court deciding a criminal case must go by the legal evidence adduced before it. The trial court’s order thus suffered from a gross error of law warranting the High Court’s interference.= ASHOK RAI …APPELLANT Versus STATE OF U.P. & ORS. …RESPONDENTS = 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41413

     Acquittal basing on general diary and opinion of public not correct - Trial court did wrong - High court correctly reversed the order and convicted him - Apex court held that Perversity of the trial court’s judgment becomes apparent  when  one finds the undue importance given by it to the  diary  entries  made  by  the investigating  officer  PW7-Sheomurthy  Singh.  PW7  stated  that   it   was mentioned by him in the case diary  that  it  was  the  opinion  of  general public that involvement of  the  accused  except  Umesh  Chandra  Rai-A6  is false.  The trial court made a perverse observation that  the  investigating officer never tried to find out whether this rumour is  true  and  submitted charge-sheet. Such reliance  on  diary  entries  is  not  permissible  (Mohd
Ankoos and Shamshul Kanwar). Besides, the general  feeling  of  the  society has no relevance to a criminal case.  A court deciding a criminal case  must go by the legal evidence adduced before it. The  trial  court’s  order  thus suffered  from  a  gross  error  of  law   warranting   the   High   Court’s interference.=

16.     It is contended that the appellant was  busy  with  his  thesis  for
M.Sc.(Agr.) and was most of the time not in the village, and  on  the  night
in question he was not present in the village.  There  is  no  substance  in
this submission.  As rightly observed by the High Court, the  incident  took
place in the month of June when most of the educational institutions  remain
closed for summer, hence, the appellant  may  be  present  in  the  village.
Pertinently, the appellant has not produced any evidence  to  show  that  he
was staying in a hostel.   There  is  no  evidence  to  show  what  was  the
distance between the village and the educational institution  in  which  the
appellant was studying.  Thus, the plea of alibi is not proved.

17.     It was wrong for the trial court to  suggest  that  Bashisht  Rai-A1
would not indulge in such activities because he  had  a  bright  career  and
future and indirectly apply that yardstick to the appellant.   Career  or  a
position of a man in life is irrelevant.  Crimes are also committed  by  men
holding high positions and having bright future.  Trial court grossly  erred
in relying on such  extraneous  circumstance  and  rightly  the  High  Court
dismissed this circumstance as irrelevant.

18.     Perversity of the trial court’s judgment becomes apparent  when  one
finds the undue importance given by it to the  diary  entries  made  by  the
investigating  officer  PW7-Sheomurthy  Singh.  PW7  stated  that   it   was
mentioned by him in the case diary  that  it  was  the  opinion  of  general
public that involvement of  the  accused  except  Umesh  Chandra  Rai-A6  is
false.  The trial court made a perverse observation that  the  investigating
officer never tried to find out whether this rumour is  true  and  submitted
charge-sheet. Such reliance  on  diary  entries  is  not  permissible  (Mohd
Ankoos and Shamshul Kanwar). Besides, the general  feeling  of  the  society
has no relevance to a criminal case.  A court deciding a criminal case  must
go by the legal evidence adduced before it. The  trial  court’s  order  thus
suffered  from  a  gross  error  of  law   warranting   the   High   Court’s
interference.

19.     It was argued that ladies of the house who were  admittedly  present
have not been examined.  We do not think  that  this  has  had  any  adverse
impact on the prosecution case.  The ladies  were  sleeping  in  a  separate
room.  When male members of the family were available to  give  evidence  it
is unlikely that female members would step in witness box.

20.     In the ultimate analysis, we are of the opinion that the High  Court
rightly overturned the trial court’s  order  so  far  as  it  acquitted  the
appellant.  The trial court’s view is  totally  perverse  and  unreasonable.
Undoubtedly, there were compelling and  substantial  reasons  for  the  High
Court to interfere with it.  We,  therefore,  confirm  the  impugned  order.
Appeal is  dismissed.   The  appellant  is  on  bail.   He  is  directed  to
surrender forthwith.  His bail bond stands cancelled.

21.     We are informed that the appellant  is  a  senior  citizen.   He  is
suffering from ‘Endstage Renal Disease’.  It appears that he is required  to
undergo dialysis twice a week.  This information is supplied to  this  Court
by  D.I.G.,  Allahabad  range.   The  appellant’s   health   condition   is,
therefore, precarious.  While we  sympathise  with  the  appellant  on  this
aspect, law must  be  allowed  to  take  its  own  course.   The  appellant,
however,  will  be  at  liberty  to  approach  the  State   Government   for
commutation of  his  sentence  or  the  Jail  Superintendent  for  premature
release under the provisions of the U.P. Jail Manual, a deemed  appropriate.

 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41413
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                        NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1508 OF 2005

ASHOK RAI                                        …APPELLANT

                                   Versus

 STATE OF U.P. & ORS.                     …RESPONDENTS


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.


1.       There were eight accused. They were Bashisht  Rai-A1,  Jai  Prakash
Rai-A2, Ashok Rai-A3, Awadh Narain Rai-A4, Hirdaya Narain-A5, Umesh  Chandra
Rai-A6, Loknath-A7 and Ramnath Rai-A8. All of them were  tried  in  Sessions
Trial No. 215 of 1979.   Bashisht Rai–A1 was tried for  the  offences  under
Sections 148, 302 and 449 of the IPC. Ashok Rai-A3 and Umesh Chandra  Rai-A6
were charged under Sections 148, 449 and 302 read with Sections 34 & 149  of
the IPC.  They were  alternatively  charged  under  Section  302  read  with
Section 34 of the IPC.  Rest of the accused were charged under Sections  147
and 302 read with Section 149 of the IPC.

2.      According to the prosecution  deceased  Kailash  Rai,  the  material
witnesses and the appellant belong to one  family  being  descendants  of  a
common ancestor. They lived in a joint family.   Umesh  Chandra  Rai-A6  was
the son of Babu Lal brother of Ram Dutt (father of deceased  Kailash  Rai  &
PW1- Kamla Rai, the informant).  Deceased Kailash Rai and other  members  of
his family lived jointly with Babu  Lal.   Umesh  Chandra  Rai-A6  separated
from the joint family 7 to 8 months before the occurrence  because  of  oral
partition.  He wanted his share from the land in Tandwa village. His  father
Babu Lal was not agreeable to this.  There was altercation between  deceased
Kailash Rai and Umesh Chandra Rai-A6 on this  issue.  Umesh  Chandra  Rai-A6
developed friendship with Loknath-A7 who had a  personal  enmity  with  PW1-
Kamla Rai. There were civil litigations pending between Loknath –A7 and PW1-
 Kamla Rai.

3.      The incident in question took place in the night intervening 26th  &
27th of June, 1979 between 1.00 a.m and 2.00 a.m.   PW1-Kamla  Rai,  Shriram
Rai, Gorakh Rai, Munna Lal and children were sleeping in the  Sehan  in  the
north of the Baithaka.  The ladies were sleeping inside  the  Zanana  house.
Deceased Kailash Rai and his wife PW4-Bijula Devi were  sleeping  on  a  cot
inside the Ahata.  Between 1.00 a.m.  and  2.00  a.m.  Ashok  Rai-A3,  Umesh
Chandra Rai–A6 and Bashisht Rai-A1 came in the Ahata by  climbing  over  the
roof through the window.  They came inside. Bashisht Rai-A1 was  armed  with
a dao.  Umesh Chandra Rai-A6 had a gandasa.  Ashok Rai-A3 was armed  with  a
sword.  Ashok Rai-A3 closed the mouth of PW4-Bijula Devi. She woke-up.   She
saw Umesh Chandra Rai-A6 pressing the head of her husband and Bashisht  Rai-
A1 cutting his  throat.   Deceased  Kailash  Rai  started  moving  his  body
restlessly.  He received two injuries on his  chest.   Thereafter,  all  the
three accused started  running  away.   PW4-Bijula  Devi  raised  cries  and
flashed the torch.  The accused reached the gate  and  looked  at  her.  She
continued to cry.  The accused  went  out  through  the  door  which  opened
towards the verandah of the Baithaka.   PW1-  Kamla  Rai,  Shriram  Rai  and
others who were sleeping outside in the Sehan woke-up due to  the  cries  of
PW4-Bijula Devi.  PW1-Kamla Rai and Shriram had  torches  with  them.   They
flashed the torches towards the door through  which  Umesh  Chandra  Rai-A6,
Bashisht Rai-A1 and Ashok Rai-A3 were coming out.  They saw Bashisht  Rai-A1
with a dao, Ashok Rai-A3 with a  sword  and  Umesh  Chandra  Rai-A6  with  a
gandasa.  They were  challenged  by  PW1-Kamla  Rai  and  others,  but  they
continued running towards the South. PW1-Kamla Rai came  in  the  Ahata  and
found Kailash Rai lying dead near his cot with a throat injury.   PW4-Bijula
Devi was  crying.   Her  clothes  were  blood  stained.   She  narrated  the
incident to him.  He dictated his report to Ram Babu.  He took  it  to  P.S.
Mohamadabad. It was lodged at 2.45 a.m. Entry was  made  in  General  Diary.
Investigation was started.   The  accused  were  arrested.   Post-mortem  of
deceased Kailash Rai revealed following external injuries.


           “1.  One incised wound on right  side  of  neck  in  the  middle
           measuring 15 cm x  4  cm,  horizontally  placed  extending  from
           anterior aspect of neck up to posterior  aspect  of  right  side
           with retracted skiing in the middle, clear cut margins, inverted
           all major vessels and muscles,  trachea,  ocsephegens  cut  upto
           bone, sprouting of blood present.


           2.   One incised wound on left side of chest horizontally placed
           measuring 7cm x 2 cm spindle shaped, 9 cm above the left nipple,
           clean cut margins muscle deep.


           3.   Incised wound measuring 2 cm x 5  cm  on  left  chest  wall
           horizontally placed 2 cm medial  to  injury  no.  2,  clean  cut
           margins muscle deep.”

On internal examination, inter alia, larynx and trachea were found cut.  The
doctor opined that ante-mortem injuries caused  by  sharp  weapons  produced
haemorrhage and shock resulting in death.

4.      After completion  of  the  investigation  the  accused  came  to  be
charged as aforesaid.  The important witnesses examined by  the  prosecution
are PW1- Kamla Rai, PW2-Kedar Rai  and  PW4-Bijula  Devi  the  wife  of  the
deceased.  The accused denied  the  charge  and  contended  that  they  were
falsely implicated.   Ashok Rai-A3 stated that at the time of occurrence  he
was at Allahabad preparing his thesis for M.Sc. (Agr).  He claimed  that  he
was working as Assistant Soil Conservative Inspector.

5.      The trial court convicted Umesh Chandra  Rai-A6  under  Section  302
read with Sections 34 and 449 of  the  IPC  and  sentenced  him  to  undergo
imprisonment for life on both the counts.  The remaining seven accused  were
acquitted.  Umesh Chandra Rai-A6 carried an appeal  against  his  conviction
to the High Court.  During the pendency of the appeal he died and  therefore
his appeal abated. The State carried an appeal against the acquittal of  the
other accused to the High Court.  The High Court held  Bashisht  Rai-A1  and
Ashok Rai-A3 guilty and convicted them for  the  offences  punishable  under
Sections 302 and 449 of the IPC and under Section 302 read with  Section  34
and Section 449 of the IPC respectively.  Each  of  them  was  sentenced  to
life imprisonment for each of the offences.   The  acquittal  of  the  other
accused was  upheld.  The  instant  appeal  is  preferred  by  Ashok  Rai-A3
(hereinafter referred to as ‘the appellant’).

6.      Mr. Santosh Mishra, learned  counsel  for  the  appellant  submitted
that the High Court has wrongly convicted the appellant.  He submitted  that
the conviction cannot be based only on  the  evidence  of  PW-4.  Since  the
prosecution has alleged that there is strong motive,  corroboration  to  PW-
4’s evidence was a  must.   In  this  connection  he  relied  on  Pulicherla
Nagaraju @ Nagaraja Reddy v. State of A.P.[1]. He submitted  that  there  is
no corroboration to PW4’s version. Counsel  submitted  that  admittedly  the
incident occurred in the dead of night.  There were  no  lights.  PW4  is  a
pardanashin lady. Out of the three accused who  entered  the  room,  as  per
prosecution, one was Umesh Chandra  Rai-A6  who  was  PW4’s  brother-in-law.
She could have perhaps identified him.  But  the  appellant  and  the  other
accused might  not  have  been  even  seen  by  her.   She  could  not  have
identified them.  PW1-Kamla Rai must have asked her to include  their  names
as the assailants.   Counsel  submitted  that  though  several  ladies  were
present at the scene of offence none of them  is  examined.   Moreover,  Ram
Babu the person who wrote the FIR dictated to him by PW1-Kamla  Rai  is  not
examined.  Counsel submitted that deceased Kailash Rai was involved  in  two
other cases of dacoity.  It is Umesh Chandra  Rai-A6  who  had  enmity  with
deceased Kailash Rai.  The appellant had no enmity with him.  There  was  no
reason for him to kill deceased Kailash Rai.  Counsel  submitted  that  PW1-
Kamla Rai was sleeping outside.  He was an easy prey.  There  is  no  reason
why the appellant would go inside and kill  the  deceased.  Counsel  further
submitted that the prosecution witnesses are  interested  witnesses.   Their
evidence must be closely scrutinized.  In this case  there  is  also  enmity
between the two sides.  Therefore, false involvement cannot  be  ruled  out.
In this connection he relied on Raju @  Balachandran  &  Ors.  v.  State  of
Tamil Nadu[2].  Counsel submitted that the  appellate  court  can  interfere
with the order of acquittal only if there  are  compelling  and  substantial
reasons for doing so.  If the impugned  judgment  of  acquittal  is  clearly
unreasonable or perverse, the appeal court can interfere with  it.   If  the
view taken by the trial court is a reasonably possible view  it  should  not
be interfered with.  In support of  this  submission  counsel  relied  on  a
number of judgments, one of them being Bihari Nath  Goswami  v.  Shiv  Kumar
Singh & Ors.[3] .  It is not necessary to refer to all the  judgments  cited
by learned counsel as all those judgments  reiterate  the  same  principles.
Counsel submitted that the impugned judgment, so  far  as  it  convicts  the
appellant may, therefore, be set aside.

7.      Mr. Shrish Kumar Misra, learned counsel appearing for the  State  of
U.P filed written  submissions.  He  submitted  that  the  trial  court  has
erroneously ignored the most vital evidence.  The trial  court  has  wrongly
termed PW2-Kedar Rai as a partisan witness.    Counsel  submitted  that,  in
any case, evidence of partisan witnesses also can be relied upon  if  it  is
found to be cogent.  In this case evidence of  PW1,  PW2  and  PW4  inspires
confidence and ought to have been relied upon.  PW4 being the  wife  of  the
deceased is the most natural witness.  She had an  opportunity  to  see  the
appellant.  The trial court wrongly held that being a pardanashin  lady  she
might not have seen the  appellant  and  hence  her  alleged  identification
cannot be relied upon.  The face of a pardanashin lady  cannot  be  seen  by
others, but she can see everybody.  The view taken by the trial  court  that
a person who has a bright future would not commit murder  is  unsustainable.
The suggestion that the appellant was not in the  village  at  the  relevant
time has rightly been rejected by the High Court as no defence  witness  was
examined to support it.  The trial court also erred  in relying on an  entry
in the case diary of the investigating officer to the  effect  that  it  was
generally felt that the appellant and others  except  Umesh  Chandra  Rai-A6
are falsely involved in this case.  In this connection he  relied  on   Mohd
Ankoos & Ors. v. Public Prosecutor High Court  of  A.P.,  Hyaderabad[4]  and
Shamshul Kanwar v. State of U.P.[5].  Counsel submitted that  in  this  case
the only possible view that can be taken is that the  appellant  is  guilty.
The High Court, therefore, rightly overturned the acquittal order.  In  this
connection he relied on K. Gopal Reddy v. State  of  Andhra  Pradesh[6]  and
G.C. Kanungo v. State of Orissa[7].  Counsel submitted that  the  appeal  be
therefore, dismissed.

8.      Several Judgments of this court have been cited  on  the  principles
which should guide the court while dealing with an appeal against  order  of
acquittal.  The law is so well settled that it is not necessary to refer  to
those judgments. Suffice it to say that the appellate court has to  be  very
cautious while reversing an order of acquittal because  order  of  acquittal
strengthens the presumption of innocence of the accused.  If the view  taken
by the  trial  court  is  a  reasonably  possible  view  it  should  not  be
disturbed, because the appellate court feels that some other  view  is  also
possible.  A perverse order of acquittal replete with gross errors of  facts
and law will have to  be  set  aside  to  prevent  miscarriage  of  justice,
because just as the court has to give  due  weight  to  the  presumption  of
innocence and see that innocent person is not sentenced, it is  equally  the
duty of the court to see that the guilty do not escape  punishment.   Unless
the appellate court finds the order of acquittal to be clearly  unreasonable
and is convinced that  there  are  substantial  and  compelling  reasons  to
interfere with it, it should not interfere with it.  We will  consider  this
case in light of these principles.

9.      The trial court has erroneously recorded that  the  accused  had  no
motive to kill deceased Kailash Rai.  The High Court  has  rightly  observed
that Umesh Chandra Rai-A6 was the first  cousin  of  deceased  Kailash  Rai.
The appellant and A1-Bashisht Rai belonged to the same  family  of  Loknath,
Ramnath Rai and Deonath  Rai  and  there  was  civil  as  well  as  criminal
litigation pending between their family and the family of  deceased  Kailash
Rai.  Umesh Chandra Rai-A6 was unhappy about the family partition.   He  had
a grouse against his first cousin PW1-Kamla Rai over the partition  dispute.
PW1-Kamla Rai is the brother of deceased Kailash Rai.  Umesh Chandra  Rai-A6
had developed intimacy with other accused who were as  it  is  not  on  good
terms with PW1-Kamla Rai’s family.  Thus, it is not  possible  to  say  that
motive is  absent  in  this  case.   Consequently,  the  argument  that  the
appellant had no enmity with deceased Kailash Rai; that  PW1-Kamla  Rai  was
sleeping outside the room and, therefore, the appellant  could  have  easily
killed PW1-Kamla Rai instead of taking the risk of going inside and  killing
deceased Kailash Rai must also be rejected.  The relations between  the  two
sides were undoubtedly strained.  In such a situation, it  is  difficult  to
fathom the undercurrents.  As to why the accused chose deceased Kailash  Rai
and not PW1-Kamla Rai is difficult to say.  But the fact remains that  there
was enmity between the two sides and there is reliable  evidence  on  record
to establish that the appellant was  involved  in  the  murder  of  deceased
Kailash Rai.  In any case, the prosecution  has  examined  PW4-Bijula  Devi,
who is an eye-witness.  When there is eye-witness  account  on  record,  the
absence of motive pales into insignificance.  It was submitted  that  if  it
is held that there is strong motive, then, there must  be  corroboration  to
PW4’s evidence to rule out false implication.  In this case evidence of  PW-
1 & PW-2 and other attendant circumstances provide  corroboration  to  PW4’s
evidence.

10.     It is  argued  that  the  prosecution  case  rests  on  evidence  of
interested witnesses.  No independent witnesses are examined.  Unless  there
is corroboration to the evidence of  interested  witnesses,  their  evidence
cannot  be  accepted.  We  cannot  accept  this  submission.   Evidence   of
interested witnesses is not infirm.  It would be good to have  corroboration
to their evidence as a matter of prudence.  But corroboration is not  always
a must.  If the evidence of interested witnesses is intrinsically  good,  it
can be accepted without corroboration. However, as held  by  this  Court  in
Raju@Balachandran, the evidence of interested witnesses must be  scrutinized
carefully. So scrutinized, the evidence of PW1, PW2 and PW4  appears  to  be
acceptable.

11.     The most important witness is PW4-Bijula Devi, the wife of  deceased
Kailash Rai.  She was sleeping in the Ahata in the courtyard,  on  the  same
cot along with her husband deceased Kailash Rai in the  night  in  question.
She is the most natural witness.  Her  clothes  were  found  blood  stained.
According to the serologist’s report the blood group of the blood  found  on
her clothes matched the blood group of the  blood  found  on  her  husband’s
clothes.  Her presence in the house at the dead of night cannot be  doubted.


12.      Evidence  of  PW4-Bijula  Devi  is   forthright   and   convincing.
According to her, she woke-up when the appellant pressed her mouth. She  saw
Umesh Chandra Rai-A6 pressing his husband’s head  hard.   She  saw  Bashisht
Rai-A1 cut her husband’s neck with a dao.  She  stated  that  Umesh  Chandra
Rai-A6 had a gandasa in his hand and the appellant had a sword in his  hand.
 She further stated that when her husband tried  to  move  he  received  two
more injuries on his chest.  We have reproduced the  injuries  sustained  by
the deceased.  They are consistent with this evidence.  PW4  further  stated
that after assaulting deceased  Kailash  Rai,  the  accused  ran  away.  She
started shouting. She lit her torch  before  the  accused  could  reach  the
door.  They turned at her; looked at her and ran away.  Hearing  her  cries,
PW1-Kamla Rai and others came there.  She narrated  the  incident  to  them.
Thus, PW4 had ample opportunity to see the  accused.   They  were  in  close
proximity with her and she had  seen  them  in  torch  light.  It  would  be
difficult for her to forget the faces of her husband’s  assailants.   It  is
stated that PW4 is a pardanashin lady.  The trial court  has  observed  that
being a pardanashin lady she would not know the accused.  It is argued  that
she may identify Umesh Chandra Rai-A6, he being her brother-in-law, but  she
could not have identified others.  This submission does not impress us.   As
rightly contended by the State counsel,  the  face  of  a  pardanashin  lady
cannot be seen by general public, but she can see  them.   The  accused  and
PW1-Kamla Rai’s family  reside  in  the  same  village.   Their  houses  are
situated in the same  area  and  in  close  vicinity.   Besides,  there  are
disputes between the two sides.  As rightly observed by the High Court,  the
appellant belonged to the clan  of  PW4’s  in-laws.   It  is  not  possible,
therefore, to hold that PW4 would not know the appellant and could not  have
seen him before, merely because she  stated  that  she  did  not  know  some
persons from the village.

13.     We are also not prepared to accept the submission that PW4 gave  the
name of the appellant because PW1 asked her to do so.   There  was  no  need
for anyone to prompt her, because she  had  seen  the  incident  from  close
quarters.  From the tenor of her evidence she appears to be a very  truthful
witness. When she was asked whether her husband was assaulted  on  the  neck
by a gandasa, she firmly stated, no not by a gandasa, but by a  dao.   There
is no reason to disbelieve her so far as  complicity  of  the  appellant  is
concerned.

14.     PW1-Kamla Rai provides corroboration to the evidence of PW4. He  has
given a general outline of the strained relationship between the two  sides.
He has then stated that at about 2.00 a.m when PW4 raised cries  he  got  up
from his sleep.  He and Ram Rai lit their torch and flashed it  towards  the
door of the meeting room which is a path for exit and which leads to  Ahata.
 In the torch light they  saw  the  appellant,  Bashisht  Rai-A1  and  Umesh
Chandra Rai -A6 coming out of the door.  The appellant had a  sword  in  his
hand.  Bashisht Rai-A1 had a weapon in his hand. Umesh Chandra Rai-A6 had  a
gandasa in his hand.  They challenged the  accused.   But  the  accused  ran
away.  They went to the Ahata.  They found Kailash Rai lying dead.  PW4  who
was crying narrated the incident to him.  He then  dictated  the  report  to
Ram Babu. Ram Babu read out the report  to  him.   Thereafter,  he  put  his
signature on the same.  Then he went to  Police  Station,  Mohammadabad  and
lodged it.  He stated that the police station is about 3 furlong  away  from
his house.  He has been cross-examined but he has stood firm in  the  cross-
examination.  This witness is  also  a  natural  witness.   Admittedly,  the
deceased and  this  witness  used  to  stay  together.  He  was,  therefore,
expected to be present in the house.  He has truthfully stated  the  events.
His claim that he saw the appellant  and  the  other  accused  running  with
weapons cannot be doubted.  He has truthfully stated that  he  dictated  the
FIR to Ram Babu.  It is true that Ram Babu is not examined.  But  that  does
not affect the veracity of the evidence of this  witness.   Pertinently,  he
has stated that Ram Babu read out the report and then he signed  it.   Thus,
he verified whether what he stated was correctly recorded or not.   Besides,
the FIR is promptly recorded at 2.45 a.m.    This witness has  rightly  been
believed by the High Court.

15.     PW2-Kedar Rai is a neighbour of Kamla Rai.  He stated  that  on  the
day of incident he was sleeping at the gate of his  house.   At  about  2.00
a.m. he woke-up from his sleep upon hearing the screams  of  PW1-Kamla  Rai.
He stated that he ran towards Kamla Rai’s house.  When he went 2 to 3  steps
from the  north-west  corner  of  his  house  he  saw  people  running.   He
identified them in the light of torch.  Bashist  Rai-A1  and  Umesh  Chandra
Rai-A6 had weapons in their hands.  The appellant had a sword in  his  hand.
From west-side Ram Babu and Chandrima Rai came with  torches.   The  accused
ran towards the South.  They ran after the accused for a while and  stopped.
 They went in the house of PW1-Kamla Rai.   They  found  Kailash  Rai  lying
dead.  According to PW2, PW4-Bijula Devi told them that  the  appellant  and
the other two accused had come to  their  courtyard  and  attacked  deceased
Kailash Rai.  This  witness  has  not  seen  the  actual  incident,  but  he
corroborates PW4 and PW1 to the extent that the appellant and the other  two
accused had weapons in their hands and they were seen running away from  the
house of PW1-Kamla Rai.  He has categorically denied the suggestion that  he
was giving false evidence due to enmity.  His house is  near  the  house  of
deceased Kailash Rai.  His presence at the  scene  of  offence  is  natural.
The trial court unnecessarily discarded his evidence holding that he  is  an
interested witness.

16.     It is contended that the appellant was  busy  with  his  thesis  for
M.Sc.(Agr.) and was most of the time not in the village, and  on  the  night
in question he was not present in the village.  There  is  no  substance  in
this submission.  As rightly observed by the High Court, the  incident  took
place in the month of June when most of the educational institutions  remain
closed for summer, hence, the appellant  may  be  present  in  the  village.
Pertinently, the appellant has not produced any evidence  to  show  that  he
was staying in a hostel.   There  is  no  evidence  to  show  what  was  the
distance between the village and the educational institution  in  which  the
appellant was studying.  Thus, the plea of alibi is not proved.

17.     It was wrong for the trial court to  suggest  that  Bashisht  Rai-A1
would not indulge in such activities because he  had  a  bright  career  and
future and indirectly apply that yardstick to the appellant.   Career  or  a
position of a man in life is irrelevant.  Crimes are also committed  by  men
holding high positions and having bright future.  Trial court grossly  erred
in relying on such  extraneous  circumstance  and  rightly  the  High  Court
dismissed this circumstance as irrelevant.

18.     Perversity of the trial court’s judgment becomes apparent  when  one
finds the undue importance given by it to the  diary  entries  made  by  the
investigating  officer  PW7-Sheomurthy  Singh.  PW7  stated  that   it   was
mentioned by him in the case diary  that  it  was  the  opinion  of  general
public that involvement of  the  accused  except  Umesh  Chandra  Rai-A6  is
false.  The trial court made a perverse observation that  the  investigating
officer never tried to find out whether this rumour is  true  and  submitted
charge-sheet. Such reliance  on  diary  entries  is  not  permissible  (Mohd
Ankoos and Shamshul Kanwar). Besides, the general  feeling  of  the  society
has no relevance to a criminal case.  A court deciding a criminal case  must
go by the legal evidence adduced before it. The  trial  court’s  order  thus
suffered  from  a  gross  error  of  law   warranting   the   High   Court’s
interference.

19.     It was argued that ladies of the house who were  admittedly  present
have not been examined.  We do not think  that  this  has  had  any  adverse
impact on the prosecution case.  The ladies  were  sleeping  in  a  separate
room.  When male members of the family were available to  give  evidence  it
is unlikely that female members would step in witness box.

20.     In the ultimate analysis, we are of the opinion that the High  Court
rightly overturned the trial court’s  order  so  far  as  it  acquitted  the
appellant.  The trial court’s view is  totally  perverse  and  unreasonable.
Undoubtedly, there were compelling and  substantial  reasons  for  the  High
Court to interfere with it.  We,  therefore,  confirm  the  impugned  order.
Appeal is  dismissed.   The  appellant  is  on  bail.   He  is  directed  to
surrender forthwith.  His bail bond stands cancelled.

21.     We are informed that the appellant  is  a  senior  citizen.   He  is
suffering from ‘Endstage Renal Disease’.  It appears that he is required  to
undergo dialysis twice a week.  This information is supplied to  this  Court
by  D.I.G.,  Allahabad  range.   The  appellant’s   health   condition   is,
therefore, precarious.  While we  sympathise  with  the  appellant  on  this
aspect, law must  be  allowed  to  take  its  own  course.   The  appellant,
however,  will  be  at  liberty  to  approach  the  State   Government   for
commutation of  his  sentence  or  the  Jail  Superintendent  for  premature
release under the provisions of the U.P. Jail Manual, a deemed  appropriate.


                                                           …………………………………..J.
                                                     (RANJANA PRAKASH DESAI)


                                                            ……………………………………J.
                                                            (MADAN B. LOKUR)
NEW DELHI;
APRIL 15, 2014.
-----------------------
[1]      2006(11) SCC 444
[2]      2012(12) SCC 701
[3]      2004 (9) SCC 186
[4]      2010(1) SCC94
[5]      1995(4) SCC 430
[6]      1979(1) SCC 355
[7]      1995(5) SCC 96

-----------------------
19

Rule 43-C of the Central Civil Services (Leave) Rules, 1972 = Rule 43-C, it is apparent that a woman government employee having minor children below 18 years can avail CCL for maximum period of 730 days i.e. during the entire service period for taking care of upto two children. The care of children is not for rearing the smaller child but also to look after any of their needs like examination, sickness etc. Sub Rule (3) of Rule 43-C allows woman government employee to combine CCL with leave of any other kind. Under Sub Rule (4) of Rule 43-C leave of the kind due and admissible to woman government employee including commuted leave not exceeding 60 days; leave not due up to a maximum of one year, can be applied for and granted in continuation with CCL granted under Sub Rule (1). From plain reading of Sub Rules (3) and (4) of Rule 43-C it is clear that CCL even beyond 730 days can be granted by combining other leave if due.= KAKALI GHOSH … APPELLANT VERSUS CHIEF SECRETARY, ANDAMAN & NICOBAR ADMINISTRATION AND ORS. … RESPONDENTS =2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41412

Rule 43-C of the  Central Civil  Services  (Leave)  Rules, 1972 =  Rule 43-C, it is apparent that a  woman government employee having minor children below 18 years can avail  CCL  for maximum period of 730 days i.e. during the entire service period for  taking care of upto two children.  The care of children  is  not  for  rearing  the smaller child but also to look after any of their  needs  like  examination, sickness etc.  Sub Rule (3) of Rule 43-C allows  woman  government  employee to combine CCL with leave of any other kind.  Under Sub Rule (4) of Rule 43-C leave of  the  kind  due  and  admissible  to  woman  government  employee
including commuted leave not exceeding 60  days;  leave  not  due  up  to  a maximum of one year, can be applied for and  granted  in  continuation  with CCL granted under Sub Rule (1).  From plain reading of  Sub  Rules  (3)  and (4) of Rule 43-C it is clear that CCL even beyond 730 days  can  be  granted by combining other leave if due.=

whether  a  woman  employee  of  the  Central  Government  can  ask  for
uninterrupted 730 days of Child Care Leave (hereinafter referred to as, -
‘the CCL’)  under Rule 43-C of the  Central Civil  Services  (Leave)  Rules,
1972 (hereinafter referred to as, ‘the Rules’). =
 she
is the only person to look after her minor son and her  mother  is  a  heart
patient and has not recovered from the shock due to  the  sudden  demise  of
her  father;  her  father-in-law  is  almost  bed   ridden   and   in   such
circumstances, she was not in a position to perform her duties  effectively.
“43-C. Child Care Leave

         1) A women Government servant having minor children below the  age
            of eighteen years and who has no earned leave  at  her  credit,
            may be granted child care leave by an  authority  competent  to
            grant leave, for a maximum period of two years, i.e.  730  days
            during the  entire  service  for  taking  care  of  up  to  two
            children, whether for rearing or to look  after  any  of  their
            needs like examination, sickness, etc.

         2) During the period of child care leave, she shall be paid  leave
            salary equal to the pay drawn immediately before proceeding  on
            leave.

         3) Child care leave may be combined with leave of any other kind.




         4)  Notwithstanding  the  requirement  of  production  of  medical
            certificate contained in sub-rule (1) of Rule  30  or  sub-rule
            (1) of Rule 31, leave of the kind due and admissible (including
            commuted leave not exceeding 60 days and leave not due) up to a
            maximum of one year, if applied for, be granted in continuation
            with child care leave granted under sub-rule (1).

         5) Child care leave may be availed of in more than one spell.

         6) Child care  leave  shall  not  be  debited  against  the  leave
            account.”

13.      On perusal of circulars and Rule 43-C, it is apparent that a  woman
government employee having minor children below 18 years can avail  CCL  for
maximum period of 730 days i.e. during the entire service period for  taking
care of upto two children.  The care of children  is  not  for  rearing  the
smaller child but also to look after any of their  needs  like  examination,
sickness etc.  Sub Rule (3) of Rule 43-C allows  woman  government  employee
to combine CCL with leave of any other kind.  Under Sub Rule (4) of Rule 43-
C leave of  the  kind  due  and  admissible  to  woman  government  employee
including commuted leave not exceeding 60  days;  leave  not  due  up  to  a
maximum of one year, can be applied for and  granted  in  continuation  with
CCL granted under Sub Rule (1).  From plain reading of  Sub  Rules  (3)  and
(4) of Rule 43-C it is clear that CCL even beyond 730 days  can  be  granted
by combining other leave if due. The finding of  the  High  Court  is  based
neither on Rule 43-C nor on guidelines issued  by  the  Central  Government.
The Tribunal was correct in directing the respondents  to  act  strictly  in
accordance with the guidelines issued by the Government of  India  and  Rule
43-C.

14.      In the present case, the appellant claimed for 730 days of  CCL  at
a stretch to ensure success of her son in the  forthcoming  secondary/senior
examinations (10th/11th standard).  It is not in dispute that son was  minor
below 18 years of age when she applied for CCL.  This is apparent  from  the
fact that the competent authority allowed 45 days of CCL in  favour  of  the
appellant.  However, no reason has been shown  by  the  competent  authority
for disallowing rest of the period of leave.

15.      Leave cannot be claimed as of right as per Rule 7, which  reads  as
follows:

      “7. Right to leave

              (1) Leave cannot be claimed as of right.

             (2) When the exigencies of public service so require, leave  of
             any kind may be refused or revoked by the  authority  competent
             to grant it, but it shall not be  open  to  that  authority  to
             alter the kind of leave due  and  applied  for  except  at  the
             written request of the Government servant.”

         However, under Sub-Rule (2) of Rule  7  leave  can  be  refused  or
revoked by the competent authority in  the  case  of  exigencies  of  public
service.

16.      In fact, Government of India from its Ministry of Home Affairs  and
Department of Personnel and Training all the time encourage  the  government
employees to take leave  regularly,  preferably  annually  by  its  Circular
issued by the Government  of   India   M.H.A.O.M.  No.  6/51/60-Ests.   (A),
dated   25th January,  1961,  reiterated  vide  Government  of

India letter dated 22/27th March, 2001.  As per those  circulars  where  all
applications for leave  cannot,  in  the  interest  of  public  service,  be
granted at the same time,  the  leave  sanctioning  authority  may  draw  up
phased programme for the grant of leave to the applicants by turn  with  due
regard to the principles enunciated under the aforesaid circulars.

17.      In the present case the respondents have not shown  any  reason  to
refuse 730 days continuous leave. The grounds taken by them and as  held  by
High Court cannot be accepted for the reasons mentioned above.

18.      For the reasons aforesaid,  we  set  aside  the  impugned  judgment
dated 18th September, 2012 passed by the Division  Bench  of  Calcutta  High
Court, Circuit Bench at Port Blair and affirm the judgment and  order  dated
30th April, 2012 passed by the Tribunal with a direction to the  respondents
to comply with the directions issued by the  Tribunal  within  three  months
from the date of receipt/production of this judgment.

19.      The appeal is allowed with aforesaid directions. No costs.

 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41412
SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA
                                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4506 OF 2014
                 (arising out of SLP (C) No. 33244 of 2012)

KAKALI GHOSH                                             … APPELLANT

                                   VERSUS

CHIEF SECRETARY,
ANDAMAN & NICOBAR
ADMINISTRATION AND ORS.                        … RESPONDENTS

                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.

         Leave granted.

2.       This appeal has been  directed  against  the  judgment  dated  18th
September, 2012 passed by the High Court of Calcutta, Circuit Bench at  Port
Blair.  By the impugned judgment, the Division Bench of  the  Calcutta  High
Court allowed the writ petition and set aside the judgment and  order  dated
30th April, 2012 passed by the  Central  Administrative  Tribunal  Calcutta,
Circuit Bench at Port Blair (hereinafter referred to as, ‘the Tribunal’).
3.       The only question which requires to be determined  in  this  appeal
is  whether  a  woman  employee  of  the  Central  Government  can  ask  for
uninterrupted 730 days of Child Care Leave (hereinafter referred to as, -
‘the CCL’)  under Rule 43-C of the  Central Civil  Services  (Leave)  Rules,
1972 (hereinafter referred to as, ‘the Rules’).
4.       The appellant initially applied for CCL for six  months  commencing
from 5th July, 2011 by her letter dated 16th May, 2011 to take care  of  her
son who was in 10th standard.  In her application, she  intimated  that  she
is the only person to look after her minor son and her  mother  is  a  heart
patient and has not recovered from the shock due to  the  sudden  demise  of
her  father;  her  father-in-law  is  almost  bed   ridden   and   in   such
circumstances, she was not in a position to perform her duties  effectively.
 While her application was pending, she was transferred to Campbell  Bay  in
Nicobar District (Andaman and Nicobar) where she joined on 06th July,  2011.
 By her subsequent letter  dated  14th  February,  2012  she  requested  the
competent authority to allow her to avail CCL for two years commencing  from
21st May, 2012.  However, the authorities allowed only 45  days  of  CCL  by
their Office Order No. 254 dated 16th March, 2012.
5.        Aggrieved  appellant  then  moved  before  the  Tribunal  in  O.A.
No.47/A&N/2012 which allowed the application  by  order  dated  30th  April,
2012 with following observation:-
      “12. Thus O.A. is allowed.  Respondents are  accordingly  directed  to
      act  strictly  in  accordance  with  DOPT  O.M.  dated  11.9.2008   as
      amended/clarified on 29.9.2008 and 18.11.2008, granting  her  CCL  for
      the due period.  No costs.”



6.       The order passed by the  Tribunal  was  challenged  by  respondents
before the Calcutta High Court which by impugned judgment  and  order  dated
18th September, 2012 while observing that  leave  cannot  be  claimed  as  a
right, held as follows:

          “It is evident from the provisions of sub r.(3) of r.43-C  of  the
      rules that CCL  can  be  granted  only  according  to  the  conditions
      mentioned in the sub-rule, and that one of the conditions is that  CCL
      shall not be granted for more than three spells in  a  calendar  year.
      It means that CCL is not to be granted for a  continuous  period,  but
      only in spells.


          From the provisions of sub r.(3) of r.43-C of the rules it is also
      evident that a spell of CCL can be for as less as 16 days.  This means
      that in a given case a person, though  eligible  to  take  CCL  for  a
      maximum period of 730 days, can be granted CCL in three  spells  in  a
      calendar year for as less as 48 days.”

      The High Court further observed:


                  “Whether an eligible person should be granted CCL at  all,
      and, if so, for what period,  are  questions  to  be  decided  by  the
      competent authority; for the person is to  work  in  the  interest  of
      public service, and  ignoring  public  service  exigencies  that  must
      prevail over private exigencies  no leave can be granted.”

7.       Learned counsel for the appellant submitted that there  is  no  bar
to grant uninterrupted 730 days of CCL under Rule 43-C.  The High Court  was
not justified in holding that CCL can  be  granted  in  three  spells  in  a
calendar year as less as 48 days at a time.  It was also contended that  the
respondents failed to record ground to deny uninterrupted CCL  to  appellant
for the rest of the period.

8.       Per contra, according to respondents, Rule  43-C  does  not  permit
uninterrupted CCL for 730 days as held by the High Court.
9.       Before we proceed to discuss the merits or otherwise of  the  above
contentions, it will be necessary for us to refer the relevant Rule and  the
guidelines issued by the Government of India from time to time.
10.      The Government of  India  from  its  Department  of  Personnel  and
Training vide O.M. No. 13018/2/2008-Estt. (L)  dated  11th  September,  2008
intimated that CCL can be granted for maximum period of 730 days during  the
entire service period to a woman government employee for taking care  of  up
to two children, relevant portion of which reads as follows:
      “(1) Child Care Leave for 730 days.
      ***
            Women  employees having minor children may be granted Child Care
      Leave by an authority competent to grant leave, for a  maximum  period
      of two years (i.e. 730 days) during their entire  service  for  taking
      care of up to two children, whether for rearing or to look  after  any
      of their needs like examination, sickness, etc. Child Care Leave shall
      not be admissible if the child is eighteen  years  of  age  or  older.
      During the period of such leave, the women  employees  shall  be  paid
      leave salary equal to the pay drawn immediately before  proceeding  on
      leave.  It may be availed of in more than one spell. Child Care  Leave
      shall not be debited against the leave account.  Child Care Leave  may
      also be  allowed  for  the  third  year  as  leave  not  due  (without
      production of medical certificate).  It may be combined with leave  of
      the kind due and admissible.”


11.      It was followed by Circular issued by Government of India from  its
Personnel  and Training Department vide O.M.  No. 13018/2/2008-  Estt.  (L),
dated   29th September,   2008   by  which    it    was    clarified    that
CCL

would  be also admissible to a  woman  government  employee  to  look  after
third child below 18 years of age, which is as follows:



          “(2) Clarifications:-

          The question as to whether child care leave  would  be  admissible
          for the third child below the age of 18 years  and  the  procedure
          for grant of child care leave have  been  under  consideration  in
          this Department, and it has now been decided as follows:-

         i)      Child  Care  Leave  shall  be  admissible  for  two  eldest
            surviving children only.

       ii)        The leave account for child care leave shall be maintained
           in the pro forma enclosed, and it shall be kept  along  with  the
           Service Book of the Government Servant concerned.”



12.      Rule  43-C  was  subsequently  inserted  by  Government  of  India,
Department of Personnel and Training, Notification No.  F.No.  11012/1/2009-
Estt. (L) dated 1st December, 2009, published  in  G.S.R.  No.  170  in  the
Gazette of India dated 5th December, 2009 giving effect from 1st  September,
2008 as quoted below:-



        “43-C. Child Care Leave

         1) A women Government servant having minor children below the  age
            of eighteen years and who has no earned leave  at  her  credit,
            may be granted child care leave by an  authority  competent  to
            grant leave, for a maximum period of two years, i.e.  730  days
            during the  entire  service  for  taking  care  of  up  to  two
            children, whether for rearing or to look  after  any  of  their
            needs like examination, sickness, etc.

         2) During the period of child care leave, she shall be paid  leave
            salary equal to the pay drawn immediately before proceeding  on
            leave.

         3) Child care leave may be combined with leave of any other kind.




         4)  Notwithstanding  the  requirement  of  production  of  medical
            certificate contained in sub-rule (1) of Rule  30  or  sub-rule
            (1) of Rule 31, leave of the kind due and admissible (including
            commuted leave not exceeding 60 days and leave not due) up to a
            maximum of one year, if applied for, be granted in continuation
            with child care leave granted under sub-rule (1).

         5) Child care leave may be availed of in more than one spell.

         6) Child care  leave  shall  not  be  debited  against  the  leave
            account.”

13.      On perusal of circulars and Rule 43-C, it is apparent that a  woman
government employee having minor children below 18 years can avail  CCL  for
maximum period of 730 days i.e. during the entire service period for  taking
care of upto two children.  The care of children  is  not  for  rearing  the
smaller child but also to look after any of their  needs  like  examination,
sickness etc.  Sub Rule (3) of Rule 43-C allows  woman  government  employee
to combine CCL with leave of any other kind.  Under Sub Rule (4) of Rule 43-
C leave of  the  kind  due  and  admissible  to  woman  government  employee
including commuted leave not exceeding 60  days;  leave  not  due  up  to  a
maximum of one year, can be applied for and  granted  in  continuation  with
CCL granted under Sub Rule (1).  From plain reading of  Sub  Rules  (3)  and
(4) of Rule 43-C it is clear that CCL even beyond 730 days  can  be  granted
by combining other leave if due. The finding of  the  High  Court  is  based
neither on Rule 43-C nor on guidelines issued  by  the  Central  Government.
The Tribunal was correct in directing the respondents  to  act  strictly  in
accordance with the guidelines issued by the Government of  India  and  Rule
43-C.

14.      In the present case, the appellant claimed for 730 days of  CCL  at
a stretch to ensure success of her son in the  forthcoming  secondary/senior
examinations (10th/11th standard).  It is not in dispute that son was  minor
below 18 years of age when she applied for CCL.  This is apparent  from  the
fact that the competent authority allowed 45 days of CCL in  favour  of  the
appellant.  However, no reason has been shown  by  the  competent  authority
for disallowing rest of the period of leave.

15.      Leave cannot be claimed as of right as per Rule 7, which  reads  as
follows:

      “7. Right to leave

              (1) Leave cannot be claimed as of right.

             (2) When the exigencies of public service so require, leave  of
             any kind may be refused or revoked by the  authority  competent
             to grant it, but it shall not be  open  to  that  authority  to
             alter the kind of leave due  and  applied  for  except  at  the
             written request of the Government servant.”

         However, under Sub-Rule (2) of Rule  7  leave  can  be  refused  or
revoked by the competent authority in  the  case  of  exigencies  of  public
service.

16.      In fact, Government of India from its Ministry of Home Affairs  and
Department of Personnel and Training all the time encourage  the  government
employees to take leave  regularly,  preferably  annually  by  its  Circular
issued by the Government  of   India   M.H.A.O.M.  No.  6/51/60-Ests.   (A),
dated   25th January,  1961,  reiterated  vide  Government  of

India letter dated 22/27th March, 2001.  As per those  circulars  where  all
applications for leave  cannot,  in  the  interest  of  public  service,  be
granted at the same time,  the  leave  sanctioning  authority  may  draw  up
phased programme for the grant of leave to the applicants by turn  with  due
regard to the principles enunciated under the aforesaid circulars.

17.      In the present case the respondents have not shown  any  reason  to
refuse 730 days continuous leave. The grounds taken by them and as  held  by
High Court cannot be accepted for the reasons mentioned above.

18.      For the reasons aforesaid,  we  set  aside  the  impugned  judgment
dated 18th September, 2012 passed by the Division  Bench  of  Calcutta  High
Court, Circuit Bench at Port Blair and affirm the judgment and  order  dated
30th April, 2012 passed by the Tribunal with a direction to the  respondents
to comply with the directions issued by the  Tribunal  within  three  months
from the date of receipt/production of this judgment.

19.      The appeal is allowed with aforesaid directions. No costs.



                                                      ………………………………………………….J.
                                  (SUDHANSU JYOTI MUKHOPADHAYA)




                                                       ……………………………………………….J.
                                     (V. GOPALA GOWDA)
NEW DELHI,
APRIL 15, 2014.