LAW FOR ALL

Friday, July 25, 2014

Khasara entries do not convey title = Suit for declaration of title and injunction - trial court dismissed the suit as it belongs to Municipality /defendant - High court reversed the trial court order basing on revenue entries by saying that " when the respondents- defendants did not produce property register to show that this property was ever recorded as property of the Municipal Corporation. At one stage it was recorded as Nazul land belonging to the State when the area had not come within the municipal limits. When the area came within the municipal limits it was mentioned to be Behatnam (under management) of the Municipal Corporation. But the possession and title of the plaintiffs has been recorded throughout even thereafter and to have established Abadi over this land, and therefore, the defendants-respondents could not object to the title and possession of the plaintiffs and the suit for declaration of title and injunction ought to have been decreed.” - Apex court set aside the judgment of High court and held that The High Court committed a grave and manifest error of law in reversing the well reasoned judgment and decree passed by the Trial Court by simply placing reliance upon Khasaras entries even without properly appreciating the settled law that Khasara entries do not convey title of the suit property as the same is only relevant for the purposes of paying land revenue and it has nothing to do with ownership.= MUNICIPAL CORPORATION, GWALIOR … APPELLANT VERSUS PURAN SINGH ALIAS PURAN CHAND & ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41724

Khasara entries do not convey title = Suit for declaration of title and injunction - trial court dismissed the suit as it belongs to Municipality /defendant - High court reversed the trial court order basing on revenue entries by saying that " when the respondents- defendants did not produce property register to show that this property was ever recorded as property of the Municipal Corporation. At one stage it was recorded as Nazul land belonging to the State when the area had not come within the municipal limits. When the area came within the municipal limits it was mentioned to be Behatnam (under management) of the Municipal Corporation. But the possession and title of the plaintiffs has been recorded throughout even thereafter and to have established Abadi over this land, and therefore, the defendants-respondents could not object to the title and possession of the plaintiffs and the suit for declaration of title and injunction ought to have been decreed.” - Apex court set aside the judgment of High court and held that The High Court committed a grave and manifest error of law in reversing the well reasoned judgment and decree passed by the Trial Court by simply placing reliance upon Khasaras entries even without properly appreciating the settled law that Khasara entries do not convey title of the suit property as the same is only relevant for the purposes of paying land revenue and it has nothing to do with ownership.=
The Original
Civil Suit No.44-A/1985 was filed by plaintiff-respondents against the
defendant- the Municipal Corporation, Gwalior seeking declaration that land
bearing Original Survey No.486/19 (old) (New Survey No.619) measuring 1
Bigha is owned and possessed by them. They also sought for permanent
injunction against the defendant on the ground that Municipal authorities
tried to interfere with their possession by dismantling the fencing
standing on their land.
3. The case of the plaintiffs was that their ancestors were the owners
of the suit land. One Ram Nath was the original tenure-holder (Mool
Krishak) and thereafter they became joint Bhumiswami. They claimed to be
in possession on the ground that they constructed fencing, Hauda (pond) and
Latrine (toilet) on the suit land.
4. By way of an amendment of paragraph 2 of the plaint the plaintiffs
had shown their pedigree.
5. Defendant – Municipal Corporation filed a written statement, denied
the allegations and asserted that the suit land is an open piece of land
belonging to the Corporation and is in its possession. It is reserved for
developing park and is used as a parking place and a sign Board to this
effect is placed at the spot and the fencing by wire too has been done by
Municipal Corporation. It was alleged that the plaintiffs manipulated
Khasara entries by committing fraud to include their names.=
The Trial court dismissed the suit holding that
In absence of notice under Section 401 of the M.P. Municipality Act, 1956
the suit is not maintainable.
The plaintiffs are not the owners of the
disputed land and the disputed land is the property within the continued
ownership and possession and management of the Municipality. =

the High Court by impugned judgment allowed the appeal
and set aside the judgment passed by the Trial Court with the following
observation:
“38. That is the position in this case as well, when the respondents-
defendants did not produce property register to show that this property was
ever recorded as property of the Municipal Corporation. At one stage it was
recorded as Nazul land belonging to the State when the area had not come
within the municipal limits. When the area came within the municipal limits
it was mentioned to be Behatnam (under management) of the Municipal
Corporation. But the possession and title of the plaintiffs has been
recorded throughout even thereafter and to have established Abadi over this
land, and therefore, the defendants-respondents could not object to the
title and possession of the plaintiffs and the suit for declaration of
title and injunction ought to have been decreed.”=

Mutation entries do not confer title. In Smt. Sawarni v. Smt.Inder
Kaur & others, 1996 (6) SCC 223, this Court held :
“7…….Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue in
question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire
judgment…….”

Merely on the basis of Khasara of the year Samvat
1992 Ex.P/10, Khasara of the year Samvat 1996 Ex.P/11, Khasara of the year
Samvat 2003 Ex.P/2 declaration has been given in favour of the plaintiffs.
The High Court also noticed the Khasara of the year Samvat 2004 Ex.P/3,
Samvat 2005 Ex.P/4 and Samvat 2006 Ex.P/5, and then Khasara of the years
Samvat 2010 to 2014 Ex.P/6, Khasara of the years Samvat 2013 to 2017 Ex.P/7
and Khasara of the years Samvat 2035 to 2038 Ex.P/8.
28. In the Khasara of the years Samvat 2035 to 2038 Ex.P/8 the nature of
the land was mentioned as Nazul Abadi. In such exhibit the Municipality has
been mentioned in column No.3. On the basis of aforesaid Khasaras, the
learned Single Judge decided the title in favour of the appellant-Municipal
Corporation.=

The High Court committed a grave and manifest error of law in
reversing the well reasoned judgment and decree passed by the Trial Court
by simply placing reliance upon Khasaras entries even without properly
appreciating the settled law that Khasara entries do not convey title of
the suit property as the same is only relevant for the purposes of paying
land revenue and it has nothing to do with ownership.
31. For the reasons aforesaid, we set aside the impugned judgment and
decree passed by the learned Single Judge in Civil First Appeal No.1 of
1995 and confirm the judgment and decree passed by the Trial Court. The
appeal is allowed. No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41724

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8605 OF 2013

MUNICIPAL CORPORATION, GWALIOR … APPELLANT

VERSUS

PURAN SINGH ALIAS PURAN CHAND
& ORS. … RESPONDENTS

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment and decree dated 15th
April, 1998 passed by the High Court of Madhya Pradesh, Jabalpur, Bench at
Gwalior in Civil First Appeal No.1 of 1995. By the impugned judgment and
decree the High Court allowed the appeal, preferred by plaintiffs-
respondents, set aside the judgment and decree passed by the Trial Court
and decreed the suit of plaintiffs-respondents.
2. The factual matrix of the case is as follows:
The respondents were plaintiffs and the appellant- Municipal
Corporation, Gwalior was a defendant in the original suit. The Original
Civil Suit No.44-A/1985 was filed by plaintiff-respondents against the
defendant- the Municipal Corporation, Gwalior seeking declaration that land
bearing Original Survey No.486/19 (old) (New Survey No.619) measuring 1
Bigha is owned and possessed by them. They also sought for permanent
injunction against the defendant on the ground that Municipal authorities
tried to interfere with their possession by dismantling the fencing
standing on their land.
3. The case of the plaintiffs was that their ancestors were the owners
of the suit land. One Ram Nath was the original tenure-holder (Mool
Krishak) and thereafter they became joint Bhumiswami. They claimed to be
in possession on the ground that they constructed fencing, Hauda (pond) and
Latrine (toilet) on the suit land.
4. By way of an amendment of paragraph 2 of the plaint the plaintiffs
had shown their pedigree.
5. Defendant – Municipal Corporation filed a written statement, denied
the allegations and asserted that the suit land is an open piece of land
belonging to the Corporation and is in its possession. It is reserved for
developing park and is used as a parking place and a sign Board to this
effect is placed at the spot and the fencing by wire too has been done by
Municipal Corporation. It was alleged that the plaintiffs manipulated
Khasara entries by committing fraud to include their names.
6. The Trial Court on the basis of the pleadings of the parties framed
the following issues :-
“1. Whether the plaintiffs are Bhumiswamis of the disputed land?

2. Whether the Court fee paid by the plaintiffs is insufficient?

3. Whether the defendants can get Rs.3000/- as compensatory cost?

4. Whether the disputed land belongs to the defendant No.2 being Nazul
land?

5. Whether the defendant can get Rs. 5,000/- as compensatory cost?

6. (a) Whether the disputed land belongs to the Nazul department?

(b) If so, whether the land being open belongs to the Municipal
Corporation and the same is not owned by the plaintiffs?

7. Reliefs and costs.”

7. On hearing the counsel for the parties and on considering the entire
evidence, by judgment and decree dated 29th September, 1994, the Trial
Court dismissed the suit and held as follows:-
“Issues 1,4 6(a) and 6(b):
In absence of notice under Section 401 of the M.P. Municipality Act, 1956
the suit is not maintainable. The plaintiffs are not the owners of the
disputed land and the disputed land is the property within the continued
ownership and possession and management of the Municipality.
Issue No.2:

The Court fee paid is sufficient.

Issue No.3 and 5:

Even though the suit of the plaintiffs failed but the defendants are not
entitled to get the special damages.

Issue No.7:

On the basis of above findings the suit of the plaintiffs for all the said
reliefs is liable to be dismissed with costs.”

8. Against the Trial Court's decision, the plaintiffs-respondents
preferred a Civil First Appeal No.1 of 1995 in the High Court. After
hearing the parties, the High Court by impugned judgment allowed the appeal
and set aside the judgment passed by the Trial Court with the following
observation:
“38. That is the position in this case as well, when the respondents-
defendants did not produce property register to show that this property was
ever recorded as property of the Municipal Corporation. At one stage it was
recorded as Nazul land belonging to the State when the area had not come
within the municipal limits. When the area came within the municipal limits
it was mentioned to be Behatnam (under management) of the Municipal
Corporation. But the possession and title of the plaintiffs has been
recorded throughout even thereafter and to have established Abadi over this
land, and therefore, the defendants-respondents could not object to the
title and possession of the plaintiffs and the suit for declaration of
title and injunction ought to have been decreed.”
9. Aggrieved appellant preferred a Letters Patent Appeal under Clause 10
of the Letters Patent Appeal Rules before the Division Bench of High Court.
The LPA No. 150 of 1998 was admitted and the order of stay was passed by
the High Court. Subsequently, in the light of a Constitution Bench
decision in Jamshed N. Guzdar vs. State of Maharashtra & Ors., (2005) 2 SCC
591, the Letters Patent Appeal was dismissed on 17th August, 2005 as not
maintainable.
10. Learned counsel for the defendant-appellant made the following
submissions:
(a) The High Court committed a grave and manifest error of law in
reversing the well reasoned judgment and decree passed by the Trial Court.

(b) The High Court has failed to consider that as there is no prior
service of notice before institution of the suit either under Section 80 of
C.P.C. or under Section 401 of the M.P. Municipal Corporation Act, 1956,
therefore, suit was not maintainable and as such it was rightly dismissed
by the Trial Court.

(c) The High Court has gravely erred in decreeing the suit without
properly considering the oral evidence led by the plaintiffs and on the
contrary the plaintiffs witnesses admitted in their evidence that in
Khasaras the Municipality is recorded as owner and even in some Khasaras
the plaintiffs are recorded as tresspassers.

11. On the other hand, according to learned counsel for the plaintiffs-
respondents, the First Appellate Court rightly decreed the suit as
predecessors-in-interest of plaintiffs were recorded to be in possession of
the land.
12. After giving our careful consideration to the facts and circumstances
of the case, evidence on record and the submission made by the learned
counsel for the parties, we find ourselves in complete agreement with the
submission made on behalf of the defendant-appellant and the judgment and
decree passed by the Trial Court.
13. The plaintiffs-respondents claimed ownership, title and possession
over the land. They are supposed to plead the fact and prove their case by
placing evidence. The plaintiffs have shown their possession in the
capacity of “Pukhta Maurusi Kashtakar” and that the land was meant for
agriculture purposes.
14. Further the case of the plaintiffs was that there was no partition
between them and the land continued to be joint family property (“Shamil
Shareek”). The plaintiffs have given the detail of their predecessor-in-
title as under:

“Table of Puran Singh, Plaintiff No.1:
Chhutti Ram, widow Manko
?
Mishrilal
?
Puran Singh (adopted son)

Table of Shyam Babu, Plaintiff No.2:

Reoti Prasad, widow Rajwati
?
Bhagwati alias Bhagwati Prasad
?
Shyam Babu”

Table of Har Narain;

Mangal Singh
?
Gopi Ram
?
Harnarain

1

2 15. Referring to the tables of the predecessor-of-interest, the Trial
Court doubted the joint-ownership of the family and rejected the claim of
the plaintiffs in view of the following facts:

16. Plaintiff no. 1, Puran Chand belongs to Shiva Hare Caste whereas
plaintiff No. 2, Sham Babu, is a ‘Kayastha’ (Shrivastava). Harinarain is a
Thakur. The plaintiff has not made clear how they claim joint ownership
and joint possession of the land if they belong to three different castes.
Neither any pleadings were made nor any evidence was placed by the
plaintiff to show how the land in dispute came under their ownership and
when they have taken possession of the land.
17. The High Court gravely erred in law as well as on facts in connecting
Ram Nath with the plaintiffs-respondents even though they have utterly
failed to prove any connection with him and the pleadings are lacking
regarding their particulars and even their names do not appear in Ext.P.11.
18. It is settled that for joint possession and ownership over any
property, firstly the plaintiffs are required to plead the same and the
said fact should be reflected in the plaint itself. There is a concept of
joint family amongst the Hindus but that is required to be pleaded and
proved. As the ancestors of the plaintiffs do not belong to one family, but
three different family having three different castes, the joint possession
of the plaintiff cannot be accepted. The High Court failed to notice the
aforesaid fact while allowing the appeal of the plaintiffs.
19. Smt. Chandra Kala widow of Shyam Babu (PW-1) and Puran Singh (PW-2)
stated that they are joint owners and are in joint possession based on
revenue records. The names of Mishrilal, Gopilal and Shyam Babu were shown.
However, the name of ancestors of Plaintiff No.2, Shyam Babu is not
recorded, but the name of Shyam Babu himself is recorded therein. In the
original plaint, it was not pleaded as to how Shyam Babu along with
Mishri Lal and Gopiram were in joint possession over the land in dispute.
In this background, we hold that the Trial Court rightly held that the
plaintiffs failed to give necessary details of their origin and ownership
rights.
20. The High Court has failed to appreciate that there was no document of
title/ownership on record placed by the plaintiffs-respondents and there
are no pleadings in this regard as such no finding of title or ownership
can be given in favour of plaintiff-respondents.
21. The evidence of Chander Kala PW-1 and other evidence on record
including map were enclosed in the plaint. Nothing was shown to suggest
that Shyam Babu was in actual possession of the land in the plaint or in
the map and no pleading as the existence of a pataur, toilet and pond
(Haudi) in the suit land was made. Therefore, the Trial Court was correct
in holding that the plaintiff- Shyam Babu was not in possession of land.
22. The Khasara entry of Samvat 1966 is exhibit P-11. The name of the
owner of Khasara No.486 (Vasarash Sadar), Rakam Tehsil Khewat 1 is recorded
whereas Kashtakar Dakhilkar in column No.7 (Basrah Sadar) Ram Chander s/o
Kashi Ram resident of Deh Dakhilkar is mentioned. Further in column No.8
the following entry is given as Skikmi Kashtakar and Muddat Kashta:-
“Manko widow Khushi Ram and Arjun-
Rajawati widow of Reoti Prasad Kayastha,
Mangal Singh and Ram Prasad.”
In the further columns the vegetables, crop and makka, channa etc. is
mentioned.
23. In second old Khasara entry Exhibit P-10 for Samvat 1992 with respect
to Khasara No.486/19 in the column No.5 for the name of the owner
‘Municipality No.1’ is mentioned and further Warelal Gopi Ram Mauru- Mangal
Singh- Bhagwati s/o Reoti Prasad Ka.Sa.Deh.Mu.Maurusi is mentioned and in
column No.20 ‘Kisam Abadi’ is mentioned. In column No.9 Chita Lagani has
been shown.
24. According to plaintiffs, the old Account No.486/19 of the land is in
dispute, and therefore, in this Khasara entry this land is reflected as
Bila Lagani Abadi under the ownership of Municipality.
25. The Trial Court on appreciation of the entries and its genuineness
which is to be presumed under the provisions of Section 117 of the Madhya
Pradesh Land Revenue Code, came to a definite conclusion that the entries
were made with different ink and hand-writing and the compliance of the
order by any competent officer is not mentioned in the Khasara. In this
regard when cross-examined, Gita Ram Verma (PW-3), Abhilekha Pal of
Rajasava Abhilekhagar Gwalior made certain statements at paragraph 5,6, and
7 of cross-examination which raised doubt about the entries in some of the
khasara placed by the plaintiff.
26. Gita Ram Verma-(PW-3) in her statement stated the record of samvat
1977 to samvat 1992 in the ‘Abhilekha Gar’ (record room) of Director Land
Record. The plaintiffs could not correspond how they could get Exhibit P-10
and P-11 which were available in the record room and could not prove the
correctness of those exhibits. Errors and omissions have been also found in
the Khasara entries produced by the plaintiffs. Hence the Trial Court
doubted the correctness of those khasaras..
27. The aforesaid fact has not been dealt with by the High Court in
proper perspective. Merely on the basis of Khasara of the year Samvat
1992 Ex.P/10, Khasara of the year Samvat 1996 Ex.P/11, Khasara of the year
Samvat 2003 Ex.P/2 declaration has been given in favour of the plaintiffs.
The High Court also noticed the Khasara of the year Samvat 2004 Ex.P/3,
Samvat 2005 Ex.P/4 and Samvat 2006 Ex.P/5, and then Khasara of the years
Samvat 2010 to 2014 Ex.P/6, Khasara of the years Samvat 2013 to 2017 Ex.P/7
and Khasara of the years Samvat 2035 to 2038 Ex.P/8.
28. In the Khasara of the years Samvat 2035 to 2038 Ex.P/8 the nature of
the land was mentioned as Nazul Abadi. In such exhibit the Municipality has
been mentioned in column No.3. On the basis of aforesaid Khasaras, the
learned Single Judge decided the title in favour of the appellant-Municipal
Corporation.
29. Mutation entries do not confer title. In Smt. Sawarni v. Smt.Inder
Kaur & others, 1996 (6) SCC 223, this Court held :
“7…….Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue in
question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire
judgment…….”

30. The High Court committed a grave and manifest error of law in
reversing the well reasoned judgment and decree passed by the Trial Court
by simply placing reliance upon Khasaras entries even without properly
appreciating the settled law that Khasara entries do not convey title of
the suit property as the same is only relevant for the purposes of paying
land revenue and it has nothing to do with ownership.
31. For the reasons aforesaid, we set aside the impugned judgment and
decree passed by the learned Single Judge in Civil First Appeal No.1 of
1995 and confirm the judgment and decree passed by the Trial Court. The
appeal is allowed. No costs.

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

…………………………………………….J.
(A.K. SIKRI)
NEW DELHI,
JULY 2,2014.

Habeas corpus type writ -as her husband in imprisonment more than 20 years as her mercy petitions were rejected twice made - meaning of life imprisonment reiterated that unless properly remitted by competent authority, life imprisonment means imprisonment for entire lifetime of convict - No court set him free beyond the law with out remission by appropriate authority= ARJUN JADAV … PETITIONER VERSUS STATE OF WEST BENGAL & ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41723

Habeas corpus type writ -as her husband - in imprisonment - more than 20 years as her mercy petitions were rejected twice made - meaning of life imprisonment reiterated that unless properly remitted by competent authority, life imprisonment means imprisonment for entire lifetime of convict - No court set him free beyond the law with out remission by appropriate authority =

In the meantime, the petitioner has undergone custody for more than
20 years including the period of remission and about 17 years of actual
custody and, therefore, it is alleged that his detention has become
unlawful and illegal.
in Life Convict Bangal alias
Khoka alias Prasanta Sen v. B.K. Srivastava and others, (2013) 3 SCC 425,
This Court while defined meaning of life imprisonment reiterated that
unless properly remitted by competent authority, life imprisonment means
imprisonment for entire lifetime of convict =
In the present case, the mercy petitions filed by the petitioner’s
wife were rejected twice.
The case of the petitioner was considered by the
Review Board constituted by the State of West Bengal, which rejected the
prayer.
Therefore, no relief can be granted by this Court under Article 32
of the Constitution of India.
However, in view of the fact that the
petitioner has actually undergone more than 18 years of imprisonment; the
Superintendant. Alipore Central Jail of his own wrote a letter dated
18.09.2003 requested for reconsideration of the case of the petitioner and
recommended release of the petitioner.
We are of the view that if any
application for remission is filed by the petitioner or on behalf of the
petitioner, the Competent Authority place the same before the Review Board
and which will reconsider the case of the petitioner for premature release
in accordance with law and guidelines issued by the State.
The appropriate
Government would be at liberty to pass appropriate order in accordance with
law.
15. The petitioner was released on bail by an order passed by this Court
on 7.01.2005. We vacate that order. The respondents would be at liberty to
take the petitioner into custody and as regards remission the State
Government may pass any appropriate order in accordance with law.
16. The Writ Petition is dismissed with aforesaid observations.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41723

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.229 OF 2004

ARJUN JADAV … PETITIONER

VERSUS

STATE OF WEST BENGAL & ORS. … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J

The petitioner, who was convicted for the offence u/s 302/34 IPC, has
preferred this writ petition under Article 32 of the Constitution of India
in the nature of habeas corpus for setting the petitioner at liberty from
the illegal custody in the prison/correctional Home.
2. The petitioner who was made an accused in a murder case no.S.T 3(9)
for offence u/s 302/34 IPC, was arrested on 5.03.1985. According to the
petitioner, he has undergone conviction in custody of the respondent, which
should be counted towards sentence are as follows:

3. After trial, the petitioner was convicted u/s 302/34 IPC vide
judgment dated 15.01.1991 along with another co-accused Partap Praharaj,
who according to the petitioner, fired one gun shot on the abdomen of the
deceased and was sentenced to “imprisonment for life simplicitor” (not
rigorous imprisonment for life) by the Court of IXth Additional Session
Judge, Alipore, Calcutta.
4. Against the conviction, the petitioner and co-accused filed Criminal
Appeal No.56 of 1991 before Calcutta High Court which was dismissed on
9.04.1992. Thereafter, special leave petition against their conviction was
also not entertained by this Court.
5. Further case of the petitioner is that he became eligible under Rule
591 (1-4) of the West Bengal Jail Code for considering his case for
premature release under 14 years Rule, including remission, which according
to the petitioner should be 10 years of actual imprisonment plus 4 years
remission. Notwithstanding the law laid down in the West Bengal Jail Code
and law laid down by this Court, the case of the petitioner was not
considered and thereby respondents are violating his statutory rights and
provisions.
6. In the year 2001, the wife of the petitioner made a mercy petition to
the Competent Authority of the State for premature release of the
petitioner but the same was rejected by the State Government on 12.4.2002
although the petitioner had a consistent good record in Jail/Correctional
Home and his case was recommended by the Prison Authority for his release.
Another mercy petition preferred by petitioner’s wife was also rejected by
the State Government. The Superintendent, Alipore Central Jail of his own
wrote a letter dated 18.9.2003 to the State Government for reconsideration
of the case of petitioner and strongly recommended his release. Thereafter
nothing was heard from the State Government.
7. In the meantime, the petitioner has undergone custody for more than
20 years including the period of remission and about 17 years of actual
custody and, therefore, it is alleged that his detention has become
unlawful and illegal.
8. Learned counsel for the petitioner contended that the length of
duration of the imprisonment for life is equivalent to 20 years of
imprisonment and that too subject to further remission admissible under the
law. The petitioner is liable to be released under Rule 751 (C) of the
West Bengal Jail Code. Reliance was also placed on the explanation to
Section 61 of the West Bengal Correctional Services Act, 1992 (West Bengal
Act XXXII of 1992) whereunder the imprisonment for life is equated to a
term of 20 years of imprisonment.
9. On 7.1.2005, this Court directed to list the matter after decision in
W.P (Crl.) No.45 of 1998 titled Md. Munna v. Union of India & Ors. since
learned counsel for the petitioner informed that the arguments in the said
case have already been concluded and judgment was awaited. By the said
order, this Court further directed to release the petitioner on parole on
his furnishing a personal bond in a sum of Rs.5,000/- to the satisfaction
of Chief Judicial Magistrate, Alipore (24 Parganas, District Kolkata-27)
pending decision of this case.
10. The aforesaid Writ Petition (Crl.) No.45 of 1998 was heard with
another Writ Petition (Crl.) No.50 of 2003. In the said case similar
argument was made that the length of the duration of the imprisonment of
life is equivalent to 20 years of imprisonment and that too subject to
further remission admissible under the law. In the said case reliance was
also placed on Rule 751(c) of the West Bengal Jail Code and explanation to
Section 61 of the West Bengal Correctional Services Act, 1992 where under
the imprisonment for life is equated to a term of 20 years imprisonment.
The aforesaid writ petitions were dismissed by this Court on 16.09.2005,
reported in (2005) 7 SCC 417, Mohd. Munna v. Union of India & Ors.
11. Similar issue was considered by Constitutional Bench of this Court in
Gopal Vinayak Godse v. State of Maharashtra, (AIR) 1961 SC 600. In the said
case this Court held that the sentence of imprisonment for life is not for
any definite period and the imprisonment for life must, prima facie, be
treated as imprisonment for the whole of the remaining period of the
convicted person’s natural life. In paragraph 5, the Court observed:

“5. … It does not say that transportation for life shall be deemed to be
transportation for twenty years for all purposes; nor does the amended
section which substitutes the words “imprisonment for life” for
“transportation for life” enable the drawing of any such all-embracing
fiction. A sentence of transportation for life or imprisonment for life
must prima facie be treated as transportation or imprisonment for the whole
of the remaining period of the convicted person’s natural life.”

In paragraph 8, this Court held:
“8. Briefly stated the legal position is this: Before Act 26 of 1955 a
sentence of transportation for life could be undergone by a prisoner by way
of rigorous imprisonment for life in a designated prison in India. After
the said Act, such a convict shall be dealt with in the same manner as one
sentenced to rigorous imprisonment for the same term. Unless the said
sentence is commuted or remitted by appropriate authority under the
relevant provisions of the Penal Code or the Code of Criminal Procedure, a
prisoner sentenced to life imprisonment is bound in law to serve the life
term in prison. The Rules framed under the Prisons Act enable such a
prisoner to earn remissions—ordinary, special and State—and the said
remissions will be given credit towards his term of imprisonment. For the
purpose of working out the remissions the sentence of transportation for
life is ordinarily equated with a definite period, but it is only for that
particular purpose and not for any other purpose. As the sentence of
transportation for life or its prison equivalent, the life imprisonment, is
one of indefinite duration, the remissions so earned do not in practice
help such a convict as it is not possible to predicate (sic predict) the
time of his death. That is why the Rules provide for a procedure to enable
the appropriate Government to remit the sentence under Section 401 of the
Code of Criminal Procedure on a consideration of the relevant factors,
including the period of remissions earned. The question of remission is
exclusively within the province of the appropriate Government; and in this
case it is admitted that, though the appropriate Government made certain
remissions under Section 401 of the Code of Criminal Procedure, it did not
remit the entire sentence. We, therefore, hold that the petitioner has not
yet acquired any right to release.”

12. In Mohd. Munna v. Union of India and others (supra) referring to
decisions of this Court in Naib Singh v. State of Punjab & Ors. (1983) 2
SCC 454, Privy Council decision in Kishori Lal v. Emperor (AIR) 32 1945 PC
64 and Constitutional Bench decision in Gopal Vinayak Godse v. State of
Maharashtra, (AIR) 1961 SC 600 this Court held:

“8. The above contention of the petitioner’s counsel is only to be
rejected. The imprisonment of the life convicts are being carried out on
the strength of the order passed by the court. The provisions contained in
the Prisoners Act are only procedural in nature. The preamble to the Act
itself states that the Act is meant to consolidate the law relating to
prisoners confined by order of a court and Section 32 of the Prisoners Act,
1900 specifically says about the persons under sentence of transportation
and when the punishment of transportation itself was deleted, the
provisions of Section 32 regarding the temporary custody of the prisoners,
there is no relevance for the appointed places within the State or outside
the State for a person under sentence of transportation. The prison
authorities are bound to keep the persons who are sentenced to imprisonment
for life in jails. Of course, some of the provisions in the Prisoners Act,
1900 were not suitably amended so as to be in conformity with the sentence
of life imprisonment introduced by Act 26 of 1955. That does not make the
detention illegal.”

9………………Therefore, it is clear that if a person is sentenced to
transportation for a term, the same is converted to rigorous imprisonment
for the same duration. Naturally, the transportation for life will only be
treated as rigorous imprisonment for life.

10. If a portion of the period of transportation for life is to be treated
as sentence of rigorous imprisonment for the same term, naturally, the
entire transportation period is to be treated as “rigorous imprisonment for
life”. Imprisonment for life is a class of punishment different from
ordinary imprisonment which could be of two descriptions, namely,
“rigorous” or “simple”. It was unnecessary for the legislature to
specifically mention that the imprisonment for life would be rigorous
imprisonment for life as it is imposed as punishment for grave offences.”

“16………….We are bound by the above dicta laid down by the Constitution Bench
and we hold that life imprisonment is not equivalent to imprisonment for
fourteen years or for twenty years as contended by the petitioner.

17. Thus, all the contentions raised by the petitioner fail and the
petitioner is not entitled to be released on any of the grounds urged in
the writ petition so long as there is no order of remission passed by the
appropriate Government in his favour. We make it clear that our decision
need not be taken as expression of our view that the petitioner is not
entitled to any remission at all. The appropriate Government would be at
liberty to pass any appropriate order of remission in accordance with law.”

13. Similar view was taken by this Court in Life Convict Bangal alias
Khoka alias Prasanta Sen v. B.K. Srivastava and others, (2013) 3 SCC 425,
This Court while defined meaning of life imprisonment reiterated that
unless properly remitted by competent authority, life imprisonment means
imprisonment for entire lifetime of convict, this Court held:
“18. It is clear that neither Section 57 IPC nor the Explanation to Section
61 of the W.B. Act lay down that a life imprisonment prisoner has to
[pic]be released after completion of 20 years. 20 years mentioned in the
Explanation to Section 61 of the W.B. Act is only for the purpose of
ordering remission. If the State Government taking into

consideration various aspects refused to grant remission of the whole
period then the petitioner cannot take advantage of the above Explanation
and
even Section 57 IPC and seek for premature release. Further, the question
of remission of the entire sentence or a part of it lies within the
exclusive domain of the appropriate Government under Section 432 of the
Code of Criminal Procedure, 1973 and neither Section 57 IPC nor any rules
or local Acts (in the case on hand, the W.B. Act) can stultify the effect
of the sentence of life imprisonment given by the Court under IPC. To put
it clear, once a person is sentenced to undergo life imprisonment unless
imprisonment for life is commuted by the competent authority, he has to
undergo imprisonment for the whole of his life. It is equally well settled
that Section 57 IPC does not, in any way, limit the punishment of
imprisonment for life to a term of 20 years.”

14. In the present case, the mercy petitions filed by the petitioner’s
wife were rejected twice. The case of the petitioner was considered by the
Review Board constituted by the State of West Bengal, which rejected the
prayer. Therefore, no relief can be granted by this Court under Article 32
of the Constitution of India. However, in view of the fact that the
petitioner has actually undergone more than 18 years of imprisonment; the
Superintendant. Alipore Central Jail of his own wrote a letter dated
18.09.2003 requested for reconsideration of the case of the petitioner and
recommended release of the petitioner. We are of the view that if any
application for remission is filed by the petitioner or on behalf of the
petitioner, the Competent Authority place the same before the Review Board
and which will reconsider the case of the petitioner for premature release
in accordance with law and guidelines issued by the State. The appropriate
Government would be at liberty to pass appropriate order in accordance with
law.
15. The petitioner was released on bail by an order passed by this Court
on 7.01.2005. We vacate that order. The respondents would be at liberty to
take the petitioner into custody and as regards remission the State
Government may pass any appropriate order in accordance with law.
16. The Writ Petition is dismissed with aforesaid observations.

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

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

NEW DELHI,
JULY 2, 2014.
-----------------------
|Period |Year |Month |Days |
|5.3.1985-20.6.1986 |1 |3 |15 |
|15.1.1987-22.9.1988 |1 |8 |7 |
|26.4.1990-22.9.1990 | |4 |26 |
|Total |3 |6 |18 |

Sec. 498 A . .304 B and 302 I.P.C - ACQUITTED UNDER SEC.498 A, 304 B - No conviction under sec.302 I.P.C. be given on doubting dying declaration - Apex court held that The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. After considering the evidence and the judgments of the Courts below, we are of the considered opinion that the evidence available on record and the dying declaration does not inspire confidence in the mind of this Court to make it the basis for the conviction of the appellants. Apart from this, the High Court basing on the same dying declaration, ought not to have convicted the appellants under Section 302 IPC, when they were acquitted under Section 304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by the High Court. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed by the High Court vide its judgment dated 24th September, 2010 in Criminal Appeal No. 495 of 2005, against the appellants for the offence under Section 302 r/w 34 IPC, is set aside. = UMAKANT & ANR. … APPELLANTS VERSUS STATE OF CHHATISGARH … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743

Sec. 498 A . .304 B and 302 I.P.C - ACQUITTED UNDER SEC.498 A, 304 B - No conviction under sec.302 I.P.C. be given on doubting dying declaration - Apex court held that The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. After considering the evidence and the judgments of the Courts below, we are of the considered opinion that the evidence available on record and the dying declaration
does not inspire confidence in the mind of this Court to make it the basis for the conviction of the appellants. Apart from this, the High Court basing on the same dying declaration, ought not to have convicted the appellants under Section 302 IPC, when they were acquitted under Section 304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by
the High Court. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed by the High Court vide its judgment dated 24th September, 2010 in Criminal Appeal No. 495 of 2005, against the appellants for the offence under Section 302 r/w 34 IPC, is set aside. =
certain guidelines while
considering a dying declaration:
1. Dying declaration can be the sole basis of conviction if it inspires
full confidence of the Court.

2. The Court should be satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was not the
result of tutoring, prompting or imagination.

3. Where the Court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further
corroboration.

4. It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborative. The rule requiring corroboration is merely a rule of
prudence.

5. Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.

6. A dying declaration which suffers from infirmities, such as the
deceased was unconscious and could never make any statement cannot
form the basis of conviction.

7. Merely because a dying declaration does not contain all the details as
to the occurrence, it is not to be rejected.

8. Even if it is a brief statement, it is not to be discarded.

9. When the eye-witness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot
prevail.

10. If after careful scrutiny the Court is satisfied that it is free from
any effort to induce the deceased to make a false statement and if it
is coherent and consistent, there shall be no legal impediment to
make it basis of conviction, even if there is no corroboration.

21. In the light of the above legal position that governs the
consideration of a dying declaration, the factual matrix has to be
scrutinised. As already extracted above, in the dying declaration Ex.P-13,
the deceased stated before the Magistrate that the appellants demanded
dowry and that the appellants set fire to her and she asked her brother-in-
law to rescue her, but he had chosen not to do so, and further on hearing
her cries, the neighbours came and extinguished the fire and admitted her
in the hospital. After she was admitted in the hospital, her parents came
and she informed them about the incident.=

The deceased is said to have stated that when she was pregnant she was
beaten up by the accused and because of which the child died in the womb.
At that time, she had taken treatment in Revival Hospital]. This statement
is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not in Ex.P13
dying declaration.
22. When we look at the dying declaration, it is not inspiring confidence
in the mind of this Court and throws serious doubt that the same is a
product of tutoring by the family members of the deceased for the reason
that, the sister of the deceased who was present when the deceased was
admitted in the hospital had signed in Ex.P-2 wherein it is stated that it
was an accident and nobody has burnt the deceased, but later she turned
around and stated that unless she signed on that, they were told that the
deceased would not be treated, and the High Court has taken this fact into
consideration, whereas in the dying declaration, the deceased has stated
that when her parents came to the hospital on 06.08.2003, she informed to
the parents for the first time and she had not mentioned that she informed
her sister or anybody before that, but according to the sister of the
deceased, on 02.08.2003, she was aware of this, which shows that the
evidence of the witness is not reliable and clouded with doubt.
23. The other circumstances which draw our attention is when the deceased
informed her parents on 06.08.2003, it is quite natural that the parents
will inform the police about the incident, because it is nobody’s case that
they were restrained in any manner from informing the police. Even the
deceased throughout the stay in the hospital for those 11 days had many an
occasion to meet the Doctors and other staff of the hospital, but she had
chosen not to give any complaint nor tried to share her agony with them,
which throws a grave doubt on the genuineness of the dying declaration. We
have gone through the judgment of the High Court, where P.W.7 who has
specifically deposed that they have tutored the deceased to state that she
was burnt by the accused.=
24. The High Court while considering Ex.P-2 has come to a conclusion that
the statement given in that one line is contradictory to one another. In
one line, it says that the injuries sustained by her are by accident.
Nobody has burnt her and she burnt herself. Hence, the High Court
discarded Ex.P-2. But, in our considered opinion, the High Court did not
appreciate the same in its proper perspective and interpreted it in a wrong
way. What Ex.P-2 states is that it is an accident, and nobody has pushed
her and for that accident, only the deceased is responsible.

The burden of proof in criminal law is beyond all reasonable doubt.
The prosecution has to prove the guilt of the accused beyond all reasonable
doubt and it is also rule of justice in criminal law that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other towards his innocence, the view which is
favourable to the accused should be adopted. After considering the
evidence and the judgments of the Courts below, we are of the considered
opinion that the evidence available on record and the dying declaration
does not inspire confidence in the mind of this Court to make it the basis
for the conviction of the appellants. Apart from this, the High Court
basing on the same dying declaration, ought not to have convicted the
appellants under Section 302 IPC, when they were acquitted under Section
304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by
the High Court.
26. Accordingly, this Criminal Appeal is allowed. The conviction and
sentence imposed by the High Court vide its judgment dated 24th September,
2010 in Criminal Appeal No. 495 of 2005, against the appellants for the
offence under Section 302 r/w 34 IPC, is set aside.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1424 OF 2012

UMAKANT & ANR. … APPELLANTS

VERSUS

STATE OF CHHATISGARH … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

Aggrieved by the judgment and order dated 24th September, 2010 of the
Division Bench of the High Court of Chhattisgarh, Bilaspur in Criminal
Appeal No. 495 of 2005 maintaining their conviction and sentence under
Section 302 read with Section 34, IPC, the appellants have filed this
appeal by special leave.
2. Brief history of the case, as per prosecution case, is that Anita
Jaiswal (deceased) was married to Umakant (appellant No.1) and after six
months of the marriage, her husband and in-laws started harassing her to
bring money from her father whenever she visits her parental home and also
made a demand of Rs.50,000/- as dowry. She was also subjected to torture
and cruelty every now and then by the husband and in-laws. On 2nd August,
2003, within one and a half years of her marriage, the appellant No. 1
(husband) beat her with an iron rod before night and while she was going to
take bath in the morning, he caught hold of her and allegedly poured
kerosene on her body. Appellant No. 2 (mother-in-law) set her ablaze by
lighting a match stick. The victim was immediately taken to Revival Medical
Centre, Bhilai where appellant No. 2 stated to the Doctors that the victim
sustained burn injuries due to accident (Ext. P-2) with a chimney (local
lamp). The victim was treated at the Revival Medical Centre till 13th
August, 2003 on which date, when the condition of the victim was getting
deteriorated, the Revival Medical Centre intimated the police about the
incident vide Ext. P-21. Immediately thereafter, F.I.R. (Ext. P-24) was
registered by the ASI, PS Newai (PW23). Investigation was taken up by PWs
26 and 27, the Superintendent of Police and the Station House Officer
respectively who also seized a bottle of kerosene oil, one wooden stool,
one iron pipe etc., and a seizure memo was accordingly prepared. On 13th
August, 2003 itself the victim’s dying declaration (Ext. P-13) was also
recorded by the Executive Magistrate (PW 12). The victim was then shifted
to Jawaharlal Nehru Hospital & Research Centre, Bhilai for further
treatment. However, on 7th September, 2003, during the course of her
treatment, the victim died.
3. After the death of the deceased, investigation continued, witnesses
were summoned, inquest was made, dead body was sent for autopsy, spot map
was prepared. Having recorded statements of witnesses under Section 161,
Cr.P.C., charge sheet was filed against the accused (husband, mother-in-law
and father-in-law). The learned Judicial Magistrate, First Class committed
the case to the Court of Session. The learned Trial Judge framed charges
against the accused under Sections 3 & 4 of Dowry Prohibition Act, 1961 and
under Sections 304B/34, 302/34 and 498-A, IPC. In their statement under
Section 313, Cr.P.C. the accused denied the charges and claimed to be
tried. At the trial, they took the plea that the deceased died as a result
of accident of chimney (local lamp) and they have been falsely implicated.
4. To bring home the charges against the accused, the prosecution in
all examined 27 witnesses whereas the accused, in their defence examined
two witnesses.
5. The Trial Court, after analyzing the statements of witnesses and
keenly considering the material evidence came to the opinion that the
prosecution had got established its case and the dying declaration (Ext. P-
13) was also proved from its writer (PW-12). After going through the entire
process of trial and in the light of various rulings of this Court, the
Trial Court came to the conclusion that all the three accused were guilty
of the offences charged against them, except charge under Section 304/B/34,
IPC against father-in-law of the deceased. The Trial Court accordingly
acquitted him of the said charge and sentenced all the accused in the
following terms.
Accused No.1-Umakant (Appellant No.1-husband of the deceased)
|Under Section 3 of |R.I. for 5 years and fine of Rs.2000/-, in |
|Dowry Prohibition |default, additional RI for one year |
|Act, 1961 | |
|Under section 4 of |R.I. for 1 year and fine of Rs.1000/-, in |
|Dowry Prohibition |default, additional RI for six months. |
|Act, 1961 | |
|Under Section 498-A |RI for 3 years and fine of Rs.2,000/-, in |
|of IPC |default, additional RI for six months. |
|Under Section 304-B |Life imprisonment and fine of Rs.2,000/-, in |
|of IPC |default, additional RI for one year |
|Under Section 302/34,|Life imprisonment and fine of Rs.2,000/-, in |
|IPC |default, additional R.I. for one year. |

Accused No. 2-Yashoda (Appellant No. 2-mother-in-law of the
deceased)
|Under Section 3 of |R.I. for 5 years and fine of Rs.1000/-, in |
|Dowry Prohibition |default, additional RI for six months. |
|Act, 1961 | |
|Under section 4 of |R.I. 6 month and fine of Rs.1000/-, in |
|Dowry Prohibition |default, additional RI for one month. |
|Act, 1961 | |
|Under Section 498-A |RI for 3 years and fine of Rs.1,000/-, in |
|of IPC |default, additional RI for six months. |
|Under Section 304-B |Life imprisonment and fine of Rs.1,000/-, in |
|of IPC |default, additional RI for six months. |
|Under Section 302/34 |Life imprisonment and fine of Rs.1,000/-, in |
|of IPC |default, additional RI for six months. |

Accused No. 3 – Om Prakash (father-in-law of the deceased)

|Under Section 3 of |R.I. for 5 years and fine of Rs.2,000/-, in |
|Dowry Prohibition |default, additional RI for six months. |
|Act, 1961 | |
|Under section 4 of |R.I. for 1 year and fine of Rs.1,000/-, in |
|Dowry Prohibition |default, additional RI for two months. |
|Act, 1961 | |
|Under Section 498-A |RI for 3 years and fine of Rs.2,000/-, in |
|of IPC |default, additional RI for six months. |

6. While dealing with the appeal filed by the accused, the High Court
formed the opinion that there was not enough evidence to uphold the
conviction and sentence of the appellants as awarded by the Trial Court
under Sections 498-A, 304-B, IPC and Sections 3 & 4 of the Dowry
Prohibition Act, 1961. Therefore, the High Court acquitted all the accused
from the charges against the aforementioned Sections. But, placing reliance
solely on the dying declaration (Ext. P-13), the High Court thought it fit
to convict the appellants under Section 302 read with Section 34, IPC on
the basis of dying declaration itself. Accordingly, the High Court
maintained the conviction and sentence awarded by the Trial Court against
the appellants under Section 302 read with Section 34, IPC.
7. In view of the above conviction and sentence maintained by the High
Court, the appellants approached this Court in this appeal finding fault
with the decision of the High Court, which is impugned herein.
8. Learned counsel for the appellants contended that the Courts below
have dealt with the case without proper application of mind and there were
several discrepancies and contradictories in the statements of witnesses.
Normally, before convicting an accused under Section 302, IPC, Courts
provide so many safeguards to the defence, whereas in the present case
those safeguards have not been provided. Thus, entire process of trial has
been vitiated and led to the miscarriage of justice against the appellants.
He also contended that when the High Court was of the opinion that there is
no cogent evidence to sustain the order of conviction passed by the Trial
Court under Sections 498A, 304B, IPC and Sections 3 & 4 of the Dowry
Prohibition Act, 1961, the dying declaration also ought not have been
relied upon for punishing the accused under Section 302/34, IPC. The
alleged dying declaration was a product of tutoring and not voluntarily
given by the deceased, hence it is not trustworthy. He, therefore, argued
that the conviction of appellants under Section 302/34, IPC. is completely
erroneous, misconceived and deserves to be set aside.
9. On the contrary, learned counsel for the State submitted that the
impugned judgment was rendered by the High Court after a thorough analysis
of the entire case with scrutiny of the evidence of all material witnesses.
Considering the facts and circumstances of the case, particularly the
nature of cruelty and torture caused by the appellants to the victim which
stands proved by the dying declaration, the High Court has rightly
convicted and sentenced the appellants and there is no illegality in the
impugned order. He therefore submitted that there is no ground calling for
interference by this Court and the appeal deserves to be dismissed.
10. We have heard learned counsel for the parties and carefully gone
through the records of both the Trial Court as well as the High Court.
11. Before we deal with the judgment of the High Court which is impugned
before us, whereby it has acquitted the accused of the charges under
Section 498-A, 304-B IPC and Sections 3 & 4 of the Dowry Prohibition Act
and convicted them for the offence under Section 302 IPC, curiously the
basis for acquittal under the other offences and conviction of the accused
under Section 302 IPC is based on the dying declaration of the deceased
which is marked as Ex.P-13. For better appreciation, we shall refer to
the important facts of the case. As per the case of the prosecution, the
deceased was admitted in the hospital i.e. Revival Medical Centre on
02.08.2003 with burn injuries. The deceased when enquired by the Doctor as
to how she sustained burn injuries, she informed him that she caught fire
accidentally. This version of the deceased, was recorded by the Doctor, in
the presence of her sister. Her sister and brother-in-law gave consent
letter, which was marked as Ex.P-2, and it reveals that the deceased
suffered burn injuries accidentally and the deceased Anita had burnt
herself. Nobody had burnt her. When the Doctor asked the deceased several
times, she gave the same answer. On 06.08.2003, her parents also came to
Bhilai and stayed with her. She remained in the hospital till 10.00 p.m.
of 13.08.2003. Thereafter, as her condition deteriorated, she was shifted
to another hospital. On 13.08.2003, for the first time, Police were
informed about the incident. On that day, her dying declaration was
recorded by the Magistrate who was later examined as P.W.12. The deceased
succumbed to the burn injuries on 07.09.2003.
12. The trial Court basing on the evidence available on record convicted
and sentenced the appellants under Section 498-A, 304-B, 302 r/w 34 IPC and
Sections 3 and 4 of the Dowry Prohibition Act. While the High Court though
acquitted the accused under Section 498-A and 304-B IPC and Sections 3 and
4 of the Dowry Prohibition Act, but found them guilty for the offence under
Sections 302 r/w 34 IPC and confirmed the sentence imposed by the trial
Court on that count.
13. We have given our anxious consideration to the judgment of the High
Court which is impugned before us, to find out the legality or otherwise of
the judgment of conviction and order of sentence passed against the
appellants for the offence under Section 302 r/w 34 IPC. The whole basis
for the High Court to convict and sentence the accused under Section 302
IPC is the dying declaration recorded by the Magistrate which was marked as
Ex.P-13. It would be appropriate to extract the same, which reads:
“Question: Whether would you able to give your statement?

Answer: Yes.

Q: What is your name? What is the name of your husband? Where do you
live at? Please tell your complete name.

A: My name is Anita Jaiswal. Umakant is the name of my husband. I
reside in Marauda Bhilai.

Q: Who had admitted you at this place and when they had admitted you?

A: My husband and mother-in-law have admitted me at this place. I do
not remember the date of my admission. I have been burnt therefore
they have admitted me.

Q: How you were burnt, the incident is of which date, please tell the
whole description.

A: My mother-in-law was committing cruelty against me, whenever I went
my Mayeka she used to tell me for taking Rs.50,000/- from my Mayeka.
We are total four sisters and four brothers. Whenever I returned from
my Mayeka, upon not taking the money she used to torture me badly,
recently some mothers back while I went to Gujarat, my mayeka, when I
came back my Sasural then they started telling about the money. One
day prior to the date of the incident my husband had heavily beaten me,
he beaten me from the Pirha (wooden structure) and from the iron rod,
on the next day to that at about 8.00 a.m. after holding me my husband
poured kerosene oil over me and after lit up a match stick my mother-in-
law thrown the same at me, after becoming frightened, I held the hands
of my Jeth, while my Jeth also started burning then after giving jolt
at me, he got me fell down, the ladies residing in the back side of my
residence arrived there and they changed my clothes after than by
arranging a temp, I got admitted in the hospital.

Q: Whether you did not tell your parents that your husband and mother-
in-law were harassing you?

A: After the marriage, I visited Mayeka for three times, then on the
third occasion while I had gone to Mayeka then I had told my father
then my father had told me that presently his position was not good,
after managing the money as earliest he would sent the money. I had
told abiout the cruelty of my husband and mother-in-law.

Q: Since how may days from the marriage they have been committing
cruelty? You have been burnt at which body parts?

A: They have been harassing me since 4 -5 months after the marriage.
They were committing cruelty for the dowry. My whole body parts below
the neck have been burnt.

Q: Whether you want to tell anything more?

A: No”.

14. According to the High Court, Ex.P-2, the alleged consent letter given
by sister and brother-in-law, which says that burn injuries sustained by
the deceased was a case of accident and Anita had burnt herself, runs
contrary to each other, because in the case of accident, the patient will
burn herself, but if she burnt herself, then it cannot be a case of
accident. Hence, the High Court disbelieved Ex.P-2. The High Court
further observed that not giving the information about the incident by the
Revival Medical Centre to the police shows that the hospital staff in
connivance with the accused, treated the deceased without informing about
the incident to the police.
15. Another reason given by the High Court for convicting the accused
under Section 302, IPC is that, as per the dying declaration, the deceased
had stated that when her mother-in-law and husband lit fire to her, she
asked the brother-in-law and caught hold of him, and at that time, he also
sustained burn injuries, which is supported by the evidence of the Doctor
P.W.13, who has deposed that the injury on the hands of the brother-in-law
P.W.14 is possible if a person who is in flames catch holds of another
person. The High Court disbelieved the evidence of Doctor Vijay Kumar
Sharma, which is in favour of the accused, basing on the contradictions in
his evidence with regard to the nature of injuries and not informing about
the incident to the police.
16. Finally, the High Court convicted and sentenced the accused, basing
on the dying declaration that the deceased was not having cordial
relationship with the accused. The appellant No.1 poured kerosene oil upon
the deceased and appellant No.2 had set her ablaze. As the dying
declaration inspires confidence, it is trustworthy and drew inference that
the appellants Umakanth and Yashoda poured kerosene oil upon the deceased,
set her afire and caused her death. However, the High Court felt that
there is no cogent evidence to convict the accused under Section 498-A and
304-B IPC and Sections 3 and 4 of the Dowry Prohibition Act.
17. Now the issue that falls for consideration before us is whether the
High Court was right in convicting and sentencing the accused under Section
302 IPC basing on the dying declaration of the deceased?
18. The philosophy of law which signifies the importance of a dying
declaration is based on the maxim “nemo moritusus prasumitus mennre”, which
means, “no one at the time of death is presumed to lie and he will not meet
his maker with a lie in his mouth”. Though a dying declaration is not
recorded in the Court in the presence of accused nor it is put to strict
proof of cross-examination by the accused, still it is admitted in evidence
against the general rule that hearsay evidence is not admissible in
evidence. The dying declaration does not even require any corroboration as
long as it inspires confidence in the mind of the Court and that it is free
from any form of tutoring. At the same time, dying declaration has to be
judged and appreciated in the light of surrounding circumstances. The
whole point in giving lot of credence and importance to the piece of dying
declaration, deviating from the rule of evidence is that such declaration
is made by the victim when he/she is on the verge of death.
19. In spite of all the importance attached and the sanctity given to the
piece of dying declaration, Courts have to be very careful while analyzing
the truthfulness, genuineness of the dying declaration and should come to a
proper conclusion that the dying declaration is not a product of prompting
or tutoring.
20. The legal position about the admissibility of a dying declaration is
settled by this Court in several judgments. This Court in Atbir v.
Government of NCT of Delhi - 2010 (9) SCC 1, taking into consideration the
earlier judgments of this Court in Paniben v. State of Gujarat - 1992 (2)
SCC 474 and another judgment of this Court in Panneerselvam v. State of
Tamilnadu - 2008 (17) SCC 190 has given certain guidelines while
considering a dying declaration:
1. Dying declaration can be the sole basis of conviction if it inspires
full confidence of the Court.

2. The Court should be satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was not the
result of tutoring, prompting or imagination.

3. Where the Court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further
corroboration.

4. It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborative. The rule requiring corroboration is merely a rule of
prudence.

5. Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.

6. A dying declaration which suffers from infirmities, such as the
deceased was unconscious and could never make any statement cannot
form the basis of conviction.

7. Merely because a dying declaration does not contain all the details as
to the occurrence, it is not to be rejected.

8. Even if it is a brief statement, it is not to be discarded.

9. When the eye-witness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot
prevail.

10. If after careful scrutiny the Court is satisfied that it is free from
any effort to induce the deceased to make a false statement and if it
is coherent and consistent, there shall be no legal impediment to
make it basis of conviction, even if there is no corroboration.

21. In the light of the above legal position that governs the
consideration of a dying declaration, the factual matrix has to be
scrutinised. As already extracted above, in the dying declaration Ex.P-13,
the deceased stated before the Magistrate that the appellants demanded
dowry and that the appellants set fire to her and she asked her brother-in-
law to rescue her, but he had chosen not to do so, and further on hearing
her cries, the neighbours came and extinguished the fire and admitted her
in the hospital. After she was admitted in the hospital, her parents came
and she informed them about the incident.
The deceased is said to have stated that when she was pregnant she was
beaten up by the accused and because of which the child died in the womb.
At that time, she had taken treatment in Revival Hospital]. This statement
is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not in Ex.P13
dying declaration.
22. When we look at the dying declaration, it is not inspiring confidence
in the mind of this Court and throws serious doubt that the same is a
product of tutoring by the family members of the deceased for the reason
that, the sister of the deceased who was present when the deceased was
admitted in the hospital had signed in Ex.P-2 wherein it is stated that it
was an accident and nobody has burnt the deceased, but later she turned
around and stated that unless she signed on that, they were told that the
deceased would not be treated, and the High Court has taken this fact into
consideration, whereas in the dying declaration, the deceased has stated
that when her parents came to the hospital on 06.08.2003, she informed to
the parents for the first time and she had not mentioned that she informed
her sister or anybody before that, but according to the sister of the
deceased, on 02.08.2003, she was aware of this, which shows that the
evidence of the witness is not reliable and clouded with doubt.
23. The other circumstances which draw our attention is when the deceased
informed her parents on 06.08.2003, it is quite natural that the parents
will inform the police about the incident, because it is nobody’s case that
they were restrained in any manner from informing the police. Even the
deceased throughout the stay in the hospital for those 11 days had many an
occasion to meet the Doctors and other staff of the hospital, but she had
chosen not to give any complaint nor tried to share her agony with them,
which throws a grave doubt on the genuineness of the dying declaration. We
have gone through the judgment of the High Court, where P.W.7 who has
specifically deposed that they have tutored the deceased to state that she
was burnt by the accused.
24. The High Court while considering Ex.P-2 has come to a conclusion that
the statement given in that one line is contradictory to one another. In
one line, it says that the injuries sustained by her are by accident.
Nobody has burnt her and she burnt herself. Hence, the High Court
discarded Ex.P-2. But, in our considered opinion, the High Court did not
appreciate the same in its proper perspective and interpreted it in a wrong
way. What Ex.P-2 states is that it is an accident, and nobody has pushed
her and for that accident, only the deceased is responsible.
25. The burden of proof in criminal law is beyond all reasonable doubt.
The prosecution has to prove the guilt of the accused beyond all reasonable
doubt and it is also rule of justice in criminal law that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other towards his innocence, the view which is
favourable to the accused should be adopted. After considering the
evidence and the judgments of the Courts below, we are of the considered
opinion that the evidence available on record and the dying declaration
does not inspire confidence in the mind of this Court to make it the basis
for the conviction of the appellants. Apart from this, the High Court
basing on the same dying declaration, ought not to have convicted the
appellants under Section 302 IPC, when they were acquitted under Section
304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by
the High Court.
26. Accordingly, this Criminal Appeal is allowed. The conviction and
sentence imposed by the High Court vide its judgment dated 24th September,
2010 in Criminal Appeal No. 495 of 2005, against the appellants for the
offence under Section 302 r/w 34 IPC, is set aside. Consequently, the
appellants shall be released forthwith, if they are not required in any
other case.

…………………………………………J.
(DIPAK MISRA)

………………………………………….J.
(N.V. RAMANA)

NEW DELHI,
JULY 01, 2014

Doctor's opinion about the injuries - cause of death not necessary = APEX COURT HELD THAT Considering the aforesaid injuries and fractures sustained by the victim, which are as dangerous as to cause death of a person, in our opinion, it is not necessary for the Doctor to give a specific report to the effect that the injuries were sufficient in ordinary course to cause death. In the facts and circumstances, it can be said that the appellants in pursuit of their common intention caused serious injuries on the victim which resulted in his death. Therefore, the stand taken by the appellants that they should not be dealt with under Section 302/34, IPC cannot be accepted.= RAM KUMAR & ORS. … APPELLANTS VERSUS STATE OF M.P. … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41742

Doctor's opinion about the injuries - cause of death not necessary =
APEX COURT HELD THAT Considering the aforesaid injuries and fractures sustained by the victim, which are as dangerous as to cause death of a person, in our opinion, it is not necessary for the Doctor to give a specific report to the effect that the injuries were sufficient in ordinary course to cause death. In the facts and circumstances, it can be said that the appellants in pursuit of their common intention caused serious injuries on the victim which resulted in his death. Therefore, the stand taken by the appellants that they should not be dealt with under Section 302/34, IPC cannot be accepted.=

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41742

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 375 OF 2010

RAM KUMAR & ORS. … APPELLANTS

VERSUS

STATE OF M.P. … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

The appellants, who were convicted under Sections 302/149 and 148,
IPC by the Trial Court and whose conviction was altered by the High Court
to Section 302/34, IPC, have filed this appeal by way of special leave,
having been dissatisfied with the judgment and order dated 4th December,
2008 of the High Court of Madhya Pradesh at Jabalpur passed in Criminal
Appeal No. 1467 of 2000.
2. The facts in brief, as discerned from the prosecution story, are that
on 8th November, 1999 at about 5.00 p.m., some quarrel took place between
the complainant Hiralal (PW-1) on one side and appellant No. 2 (Sukha
Manidas) and two other accused on the other side. The complainant then
rushed to the Police Station, Amdara along with his father (Mohanlal Sahu)
for lodging a report against the accused who quarreled with him. While the
complainant and his father (the deceased) were returning home from the
police station about 9.00 p.m., in the midway, appellant No. 3 (Suresh)
appeared suddenly from behind and attacked Mohanlal Sahu (father of the
complainant) with a stick (lathi) giving severe blows, resultantly Mohanlal
Sahu fell down on the ground. Soon thereafter, the other accused, namely,
Chintamani, armed with a sword, Sukha Manidas, carrying an iron rod and
Suresh, Ramkumar and Ramesh with lathis in their hands appeared there and
attacked Mohan Lal Sahu with their weapons/sticks giving continuous
beatings. The complainant shocked thereby and out of fear, took shelter
behind some bushes and immediately after the accused left the scene of
occurrence, the complainant along with a villager Ramkishore Sahu (PW 2)
noticed that Mohan Sahu (deceased) was soaked in the blood and he succumbed
to the injuries caused by the accused. After informing about the incident
to his brother and mother, the complainant went to the police station and
lodged F.I.R. (Ext. P-1) against the accused persons.
3. The police, after registering the case, took up the investigation
immediately. The Investigating Officer (PW-14) arrived at the spot,
conducted inquest, recorded statements of witnesses and arrested the
accused persons. At the instance of the accused, the I.O. recovered weapons
used in the crime, prepared seizure memo and sent the body of the deceased
for postmortem. Charge Sheet was accordingly filed against all the five
accused under Sections 148 and 302/149, IPC and the matter was thereafter
committed to the Court of Session. The appellants pleaded not guilty and
claimed trial.
4. At the trial, the prosecution, for establishing its case, examined as
many as 15 witnesses and the accused in their defence examined three
witnesses in order to rule out the charges against them. The Trial Court,
on the basis of analysis of entire evidence in the light of facts and
circumstances of the case, formed an opinion that the prosecution had been
able to prove the guilt of the accused beyond any reasonable doubt. The
Trial court eventually convicted all the accused and sentenced them for the
crime committed under Section 302/149, IPC to suffer imprisonment for life
and to pay a fine of Rs.500/-, in default, to further suffer imprisonment
for two months. Whereas for the offence committed under Section 148, IPC
they were sentenced to suffer imprisonment for one year. However, both the
sentences were directed to run simultaneously.
5. Having been aggrieved by the order of conviction and sentence passed
by the Trial Court, all the accused approached the High Court in appeal.
The High Court, after reconsidering the entire case on the basis of
material on record and upon reappreciation of evidence including that of
Doctor (PW 7) who performed postmortem on the body of the deceased, came to
the conclusion that the evidence of the complainant can be found to be
reliable against all the accused except one accused—Ramesh Sahu, The High
Court, therefore, giving benefit of doubt, acquitted the said Ramesh Sahu
from all the charges. Insofar as the conviction of other accused is
concerned, the High Court altered their conviction from Section 302/149,
IPC to Section 302/34, IPC and accordingly the accused were sentenced to
undergo life imprisonment and to pay a fine of Rs.500/-, in default, to
suffer further rigorous imprisonment of two months. As far as the
conviction under Section 148, IPC is concerned, all the accused were
acquitted of the charge.
6. In the present appeal, only three accused i.e. Ramkumar, Sukha
Manidas and Suresh, have challenged the impugned order passed by the High
Court.
7. The prime contention of the learned counsel for the appellants before
us is that the appellants were falsely implicated in the case. More
specifically it was argued that the name of appellant No. 3—Suresh was not
mentioned in the FIR, and he was intentionally implicated in the case by an
afterthought. The evidence of prosecution witnesses is not consistent and
there are several contradictions and infirmities in each other’s statement.
The further argument advanced by the learned counsel is that the medical
evidence does not corroborate the evidence of the complainant (eyewitness)
to prove the charges levelled against the appellants. As the Doctor has not
specified that the injuries on the body of the deceased were sufficient to
cause the death, application of Section 302, IPC is not proper. Learned
counsel, therefore, submitted that the orders of conviction and sentence
passed by the Courts below are erroneous, illegal and have to be set aside.
8. Learned counsel for the State, on the other hand, vehemently
contended that the finding of the learned Trial Judge that the appellants
are guilty of the charged offences was based on a careful appreciation of
entire material on record, supported by the ocular as well as medical
evidence. The High Court also, after reappreciation of entire evidence
found the accused guilty of the offences and accordingly affirmed their
conviction. The appellants brutally killed the deceased for which they are
justifiably punished and thus, the judgment of the High Court cannot be
questioned. He finally submitted that there is no merit in this appeal so
as to warrant interference of this Court and the same deserves to be
dismissed.
9. We have heard learned counsel for both sides and also carefully gone
through the material on record. Undisputedly, there was enmity between the
accused and the complainant party and it appears that a criminal case was
also pending between them. We find from the record that soon after
registering complaint, the I.O. (PW 14) reached the place of occurrence and
remained there till 1.00 p.m. on the next date i.e. 9th November, 1999 for
investigating the case and he also recorded statements of witnesses. At
that point of time itself, complainant (PW 1) mentioned the name and role
played by the appellant No. 3 (Suresh) as recorded by the I.O. in the case
diary. The same stand has been further affirmed by the complainant (PW 1)
in his testimony that five persons attacked and caused injuries to his
father and deposed that Suresh, Ramkumar and Sukh Manidas wielded lathis on
his father. It was specifically mentioned that Appellant No. 3 (Suresh) hit
at the kanpati of the deceased with his lathi. Another independent
eyewitness, PW-10, (Tukodilal) also affirmed the presence of Appellant No.
3 at the scene of crime causing injuries to the victim by stick (lathi). He
stated that he saw Ramkumar, Suresh and Ramesh beating Mohan Sahu
(deceased) with lathis and another accused Chintamani was hitting the
deceased with sword. Therefore, it can be said without any shadow of doubt
that the Appellant No. 3 as well as other accused have participated
actively in the crime and caused severe beatings to the deceased with their
respective weapons/sticks.
10. We find from the autopsy report (Ext. P-10) that Dr. Ganga Prasad (Pw-
7), Block Medical Officer, PHC Amdara, District Satna who conducted the
postmortem on the dead body of the deceased has recorded the following
injuries on the body of the deceased:

i) Sharp injury on the head just 3 cm above the hair line of mid
forehead. Size is 4 cm x 2 cm. Blood clot present. Direction of
wound is vertical.

ii) A stab wound is present on the left side of the Temple, size is
1 cm x 1 cm x 2 cm.

iii) Right side of the arm bone humerous is fractured at the level of
upper 1/3 portion.

(iv) Right side of the fibula bone is fractured at lower 1/3
portion.

(v) A lacerated wound present on the lateral aspect of the
right leg at the lower 1/3 portion.

vi) 4 stab wound is present on the medial aspect of the left leg.
Size of each wound is 2cm x 1 ½ cm x 2 cm. It is produced by 4
teeth like instrument.

vii) Multiple contusions bruise reddish blue in colour is found on
the both side of chest, on the abdomen as well as on the back
side.

viii) Fingers of the both hands are semi flexed, left arm is also semi
flexed position.

The medical evidence also revealed that in the internal examination of the
body it was found that skull, 10 ribs, right humorous and right tibula were
fractured, Liver, spleen and left kidney were ruptured. The Doctor (PW 7)
opined that the deceased had died due to traumatic shock and neurogenic
shock and the death might have occurred within 14 to 18 hours.
11. Considering the aforesaid injuries and fractures sustained by the
victim, which are as dangerous as to cause death of a person, in our
opinion, it is not necessary for the Doctor to give a specific report to
the effect that the injuries were sufficient in ordinary course to cause
death. In the facts and circumstances, it can be said that the appellants
in pursuit of their common intention caused serious injuries on the victim
which resulted in his death. Therefore, the stand taken by the appellants
that they should not be dealt with under Section 302/34, IPC cannot be
accepted.
12. Another stand consistently taken by the appellants before the Courts
below and also before us that there are various discrepancies and
contradictions in the statements of prosecution witnesses also cannot be
upheld in view of the corroborative statements of prosecution witnesses,
especially ocular witness PW-1 and another independent eyewitness PW-10.
13. On going through the facts and circumstances of the case, we are of
the view that there is ample evidence to prove that the accused have, with
common intention, inflicted fatal injuries on the deceased which resulted
in his death. The medical evidence completely corroborates the evidence of
prosecution witnesses. We therefore find no infirmity in the impugned
judgment passed by the High Court convicting the accused for the offences
committed by them.
14. For all the aforesaid reasons, we hold that this appeal has no merit
warranting our interference under Article 136 of the Constitution, and the
same hereby stands dismissed.

…………………………………………J.
(DIPAK MISRA)

………………………………………….J.
(N.V. RAMANA)

NEW DELHI,
JULY 01, 2014.

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Friday, July 25, 2014

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2014 – July. Part – http://judis.nic.in/supremecourt/filename=41743

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41742