The interim relief granted by this court during the pendency of this appeal to continue till an appropriate order is passed by the High Court either in the main proceedings or on prayer for grant of interim relief, after hearing the parties. We request the High Court to take up the writ petition expeditiously, considering the subject matter of the impugned notices issued by the corporation for demolition of the building being in dilapidated condition.

                                                         NON-REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3798 OF 2017
                  (Arising out of SLP (c) No.1999 of 2017)



Rufina D’ souza & Ors.                       …….Appellants

                                   Versus


Municipal Corporation of Greater             ..…..Respondents
Mumbai and Ors.






Judgment



A.M.KHANWILKAR, J.



1.    This appeal arises from the judgment  and  order  dated  13th  January
2017 passed by the Division Bench of the High Court of Judicature at  Bombay
in Writ Petition (L) No. 2644 of 2016. By the said  order,  the  High  Court
summarily dismissed the writ petition preferred by the appellants.



2.    There is a chequered history of  proceedings  between  the  appellants
and the private respondents. For the nature of  order  that  we  propose  to
pass, it may not be necessary to advert to all those facts and proceedings.



3.    The aforementioned writ petition was filed for the following reliefs:

“a)   That this Hon’ble Court be pleased to issue a writ of Certiorari of  a
writ in the nature of Certiorari or any other writ or  order  under  Article
226 of the Constitution of India quashing the Impugned  Notices  dated  18th
November 2014 bearing No.ACN/1014/2/B&F/Gen issued  by  the  2nd  Respondent
declaring J.D. House under C-1 Category;

That this Hon’ble Court be pleased to issue a writ of Certiorari or  a  writ
in the nature of Certiorari or any other writ or order under Article 226  of
the Constitution of India quashing the Impugned  Notice  dated  9th  August,
2016  bearing  No.ACN/347/Gen/B&F  issued  by   the   2nd   Respondent   for
disconnecting the electricity and water connection of  J.D.  House  situated
at C.T.S. No.244 to  247  of  Village  Ghatkopar-Kirol,  Near  Jamma  Mazid,
Chirag Nagar Road, Off L.B.S. Road, Ghatkopar (W), Mumbai 400086;



That this Hon’ble Court be pleased to restrain the  Respondents,  either  by
themselves or through their agents or servants,  by  a  permanent  order  of
injunction from taking  any  steps  pursuant  to  or  in  execution  of  the
Impugned Notice dated 9th August 2016 bearing ACN/347/Gen/B&F issued by  the
2nd Respondent in respect of J.D. House situated at C.T.S. No.244 to 247  of
Village Ghatkopar-Kirol, Near Jamma Mazid, Chirag  Nagar  Road,  Off  L.B.S.
Road, Ghatkopar (W), Mumbai 400086;



That pending the hearing and final disposal of the  present  Writ  Petition,
this Hon’ble Court be pleased to direct the 2nd Respondent  to  restore  the
water connection  and  electricity  for  all  the  premises  of  J.D.  House
situated at C.T.S. No.244 to 247 of Village Ghatkopar –  Kirol,  Near  Jamma
Mazid, Chirag Nagar Road, Off L.B.S. Road, Ghatkopar (W), Mumbai 400086;



That pending the hearing and  final  disposal  of  the  present  Suit,  this
Hon’ble Court by pleased to stay the effect and operation  of  the  Impugned
Notice dated 9th August, 2016 bearing No.ACN/347/Gen/B&F issued by  the  2nd
Respondent;



That pending the hearing and  final  disposal  of  the  present  Suit,  this
Hon’ble Court be pleased to refrain the Respondents,  either  by  themselves
or through their agents or servants, by  a  temporary  order  of  injunction
from taking any further steps pursuant to or in execution  of  the  Impugned
Notice dated 9th August, 2016 bearing No. CAN/347/Gen/B&F issued by the  2nd
Respondent;



For ad-interim and interim reliefs in terms of prayer  clause  (d)  (e)  and
(f) above;



For costs;



For such further and other reliefs as the nature and  circumstances  of  the
present case may require.”





4.    On  a  plain  reading  of  these  reliefs,  it  is  evident  that  the
appellants  were  essentially  challenging  the  action  initiated  by   the
Corporation under Section 354  of  the  Mumbai  Municipal  Corporation  Act,
1888; and the notice for disconnecting the electricity and water  connection
in respect of the building in which the appellants were occupying  tenements
therein. The Division Bench of the High Court, however, summarily  dismissed
the petition in the following terms:

“It is informed that in connection with the subject  property,  Civil  Suits
for specific performance challenging  the  action  of  the  Corporation  for
demolition of the  building  are  being  contested.  During  the  course  of
hearing, we have noticed that  parties  are  not  at  present  agreeing  for
agreement to be entered into  by  them.  Certain  issues  are  raised  which
required some inquiry to be conducted.  The  disputed  questions  cannot  be
gone into in the present proceedings. The parties may get the  same  settled
in the Civil proceedings which are pending, in the alternate forums.

2.    In this view of the matter, no interference is warranted. Keeping  all
issues  on  merits  open,  Writ  Petition  is  disposed  of.  Status-quo  be
continued for a period of one week from today.

3.    The other issues concerning water and  electric  supply  can  also  be
raised in the pending civil proceedings.”



5.    On a fair reading of the impugned order passed by the High  Court,  it
is obvious that the High Court has not even touched  upon  the  core  issues
raised by the appellants concerning the challenge to  the  impugned  notices
dated 18th November 2014 and 9th August 2016. The High Court  may  be  right
in observing  that  disputed  questions  need  not  be  gone  into  in  writ
proceedings,  but  that  does  not  preclude  the  writ   petitioners   from
challenging the show cause notices issued  by  the  statutory  authority  on
permissible grounds. It is open to the Court to consider  the  challenge  on
the touchstone  and  parameters  delineated  for  judicial  review  of  such
action. The fact that a suit for specific performance  was  pending  between
the private parties and they were unable to strike  any  settlement,  cannot
be a tangible reason to decline to examine  the  grounds  of  challenge  put
forth by the writ petitioners in relation to the impugned notices.



6.    Suffice it to observe that the High Court ought to have  examined  the
grounds of challenge and the reliefs claimed by the appellants in  the  writ
petition concerning the action initiated by the  statutory  authority.  That
challenge will have to be examined, uninfluenced  by  the  pendency  of  the
suit for specific performance between the private parties.

7.    Accordingly, we allow this appeal and set aside the impugned  decision
of the High Court with a further order to remand the  writ  petition  to  be
heard and decided by the Division  Bench  of  the  High  Court  afresh.  All
questions are left open. We make it clear that we  have  not  expressed  any
opinion on any of the grounds and contentions available  to  the  respective
parties.



8.    The appeal is allowed and the impugned judgment and  order  passed  by
the Division Bench of the  High  Court  is  set  aside.  Instead,  the  writ
petition is remanded and restored to the file  of  the  High  Court  to  its
original number, to be heard by the Division Bench de novo.



9.    The interim relief granted by this court during the pendency  of  this
appeal to continue till an appropriate order is passed  by  the  High  Court
either in the main proceedings or on prayer for  grant  of  interim  relief,
after hearing the parties. We request the High Court to  take  up  the  writ
petition expeditiously, considering  the  subject  matter  of  the  impugned
notices issued by the corporation for demolition of the  building  being  in
dilapidated condition.

10.   The parties to appear before the appropriate bench of the  High  Court
on 23rd March 2017.





11.   The appeal is disposed of in the above  terms  with  no  order  as  to
costs.



                                                            ………………………………….J.
                                (Dipak Misra)



                                                            ………………………………….J.
                                (A.M. Khanwilkar)


                                                          .………………………………...J.
                             (Mohan M. Shantanagoudar)

New Delhi,
Dated: March 9   , 2017

The injury found in the post mortem report was completely consistent with the ocular version of prosecution witnesses PW 2, PW 3 and PW 5 and the author of this injury according to the witnesses was accused No.1 Tarit Kundu. Special Leave Petition at the instance of Tarit Kundu having been dismissed the question that now arises is with regard to the involvement of the present appellants. The allegations coming from all the witnesses are consistent that none of the present appellants had dealt any blow by any weapon and all that they did was to participate in the scuffle. It is true that PWs 2 and 5 assert that the present appellants had caught hold of Raju Bose. But it is not clear from the record whether such act was so intended to enable accused No.1 to deal the fatal blow. Further, PW 3 is completely silent on this aspect. 8. In the circumstances we deem it appropriate to grant benefit of doubt to the present appellants and acquit them of the charge under Section 302 read with Section 34 IPC. This Appeal is thus allowed and the conviction and sentence recorded against the present appellants is set aside. The appellants shall be released forthwith unless their custody is required in connection with any other matter.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.703 OF 2008


Bishu Sarkar & Ors.                                            ….Appellants

                                   Versus

 State of West Bengal                                 …. Respondent

                               J U D G M E N T



Uday Umesh Lalit, J.

This appeal is directed against the  Judgment  and  Order  dated  06.06.2006
passed by Calcutta High Court in Criminal Appeal No.255/2000.



Six persons  namely  Tarit  Kundu,  Bishu  Sarkar,  Sahadeb  Sarkar,  Sasthi
Sarkar, Paresh Sarkar and Sukumar Ghosh were tried in Sessions  trial  No.18
of 1998 arising out of Raiganj  Police  Station  case  No.117  of  1995  for
having committed the murder  of  one  Raju  Bose  on  27.03.1995.   All  the
accused were found guilty by the trial court vide  its  judgment  and  order
dated  05.08.2000  and  sentenced  to  undergo  life  imprisonment  for  the
offences under Section 302 read with Section 34  IPC.   In  Criminal  Appeal
No.255 of 2000, the High Court acquitted accused Nos.5 and 6  namely  Paresh
Sarkar and Sukumar Ghose but  affirmed  the  conviction  and  sentence  with
respect to other four accused.  Special Leave  Petition  (Criminal)  No.5755
of 2006 preferred by accused No.1 Tarit kundu was dismissed  by  this  Court
on 01.12.2006.  This appeal by  other  three  convicted  accused  challenges
their conviction and sentence as affirmed by the High Court.


3.    The prosecution principally relies on the  testimony  of  PW  2  Nepal
Dey, PW 3 Gopal Dey and PW 5 Kanai Sharma.  According to PW2 Nepal Dey,

“The occurrence took place on the western side of the  National  Highway-34.
I heard a hue and cry coming from the side of NH 34 when I was fixing  up  a
fencing in my house.  As soon as I heard the hue and cry I gave a glance  to
the place wherefrom there was raising of hue and cry.   I  saw  accd.  Tarit
Kundu, Sahadeb Sarkar,  Sasthi  Sarkar,  Bishu  Sarkar,  Sukumar  Ghosh  and
Paresh Sarkar, in all six persons caught hold the collar of  shirt  of  Raju
Bose     and      assaulting      him      by      fist      and      blows.
………………………………....................................................Accd.
Sukumar Ghosh and Paresh Sarkar gave the order  to  kill  Raju  Bose.   Then
accd. Sasthi Sarkar, Bishu Sarkar, Sahadeb Sarkar had  remained  engaged  in
catching hold of Raju Bose.  Accd. Tarit Kundu gave a blow on  the  back  of
Raju Bose with the help of a sharp-cutting weapon like ‘bhojali’.”




4.        The testimony of PW3 Gopal Dey was to the following effect:-



“I was washing my hands and legs by the water of tube well within  my  house
at the relevant point of time.  I heard hue and cry  coming  from  the  road
side.  I gave a glance towards the road side and I saw that  a  dispute  was
going on over there.  I know the persons who were involved in this  dispute.
 Accd. Sasthi Sarkar, Tarit Kundu, Bishu  Sarkar  and  Sahadeb  Sarkar  were
engaged in assaulting the victim Raju Bose by fist and blows.   Accd.  Tarit
Kundu gave a blow on the back of the victim Raju Bose with  the  help  of  a
‘bhojali’ which I noticed.”


5. According to PW 5 Kanai Sarma:-



“I had proceeded near the place of occurrence.   I  saw  the  accused  Tarit
Kundu who had given a blow on the back side of Raju Bose with the help of  a
‘bhojali’. Acd. Tarit Kundu, Sahadeb Sarkar, Bishu  Sarkar,  Sasthi  Sarkar,
Paresh Sarkar and Sukumar Ghosh caught hold of Raju Bose  and  there  was  a
scuffle between themselves.”





6.    The  medical  evidence  on  record  was  unfolded  through  PW  9  Dr.
Rashbehari Ghosh who found:-



“One stab-wound transverse like margin incised 2” long on the left  side  of
chest, 1½” from midline on the back.  Tracing  the  track  it  is  found  to
perforate lung upper part of lower lobe through and through including  other
soft tissues in the well causing fatal bleeding.

      Opinion:- Death was due to shock as a result of ante mortem wound  and
haemorrhage as stated, homicidal in nature.

………………………………………………………………......The wound  was  inflicted  from  backside  and
perforated whole of the lung.”





7.    The injury found in the post mortem report was  completely  consistent
with the ocular version of prosecution witnesses PW 2, PW 3  and  PW  5  and
the author of this injury according to the witnesses was accused No.1  Tarit
Kundu.  Special Leave Petition at the instance of Tarit  Kundu  having  been
dismissed the question that now arises is with regard to the involvement  of
the present appellants.  The allegations coming from all the  witnesses  are
consistent that none of the present appellants had dealt  any  blow  by  any
weapon and all that they did was to participate in the scuffle.  It is  true
that PWs 2 and 5 assert that the present appellants had caught hold of  Raju
Bose.  But it is not clear from the record whether such act was so  intended
to enable accused No.1 to deal the fatal blow.  Further, PW 3 is  completely
silent on this aspect.



8.    In the circumstances we deem it appropriate to grant benefit of  doubt
to the present appellants and acquit them of the charge  under  Section  302
read with Section 34 IPC.  This Appeal is thus allowed  and  the  conviction
and sentence recorded against the present  appellants  is  set  aside.   The
appellants shall be released forthwith unless their custody is  required  in
connection with any other matter.



                                                               ………………………..J.
            (Adarsh Kumar Goel)


                                                             …………..……………..J.
            (Uday Umesh Lalit)
New Delhi
March 09, 2017

Inquest panchanama Ext.13 and post mortem report Ext.14 show that there were no marks of injury on the body and that the deceased had died as a result of drowning. Thus, the theory that Poonam was done to death earlier and thereafter her body was thrown into the well, was rightly not accepted by the Courts below. As regards demands for dowry the evidence unfolded through the family members of the deceased namely PWs 3, 4 and 5 is completely sketchy and does not establish the case at all. All these three witnesses were declared hostile. Even according to their testimony the couple lived happily for two to three years and was blessed with two children. Nothing has been established on record as to the demands for dowry and regarding harassment or cruelty. PW 3 Ananda went on to state that two days prior to the incident Poonam had seen Respondent No.1 in a compromising position with another lady. This part was rightly not accepted by the Courts below as amounting to cruelty or harassment enough to bring the case under Section 306 of IPC.

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 285 OF 2017


ANANDA BAPU PUNDE @ KOLI                           ... Appellant
                                      Versus
BALASAHEB ANNA KOLI & ORS.                          … Respondents

                               J U D G M E N T
Uday Umesh Lalit, J.


1.    Respondent Nos.1 and 2, husband and mother-in-law of one  Poonam  were
tried for having committed her murder within 7 years of  marriage  with  the
Respondent No.1.  According to  the  prosecution,  at  about  8:00  a.m.  on
11.06.2002 a message was received by PW 3 Ananda-father of Poonam  that  she
was missing since previous night, whereafter the father,  mother  and  other
persons from the family reached the house of Respondent  Nos.1  and  2.   On
12.06.2002, the body of Poonam was  found  in  a  well.   This  led  to  the
lodging of FIR Ext.164 by PW 3 Ananda. The Inquest panchanama Ext.13  showed
that no injuries were found on the neck, throat or other parts of  the  body
of said Poonam.  According to Post mortem report Ext.14 the cause  of  death
was asphyxia due to drowning.  After due  investigation,   charge-sheet  was
filed and charges were framed against Respondent Nos.1 and 2 and  father  of
Respondent No.1 (who  died  during  the  pendency  of  the  trial)  for  the
offences punishable under  Sections  498A,  304B,  306  and  302  read  with
Section 34 IPC by the Court of Additional Sessions  Judge,  Ichalkaranji  in
Sessions Case No.6 of 2005.

2.    In support of its case, the prosecution principally  relied  upon  the
evidence of PW 3 Ananda-father, PW  4  Sarjerao-brother  and  PW  5  Shalan-
mother of the deceased Poonam.  According to their testimony,  the  marriage
had taken place on 05.05.1996 and the couple was  blessed  with  a  daughter
and a son; that two to three years after the marriage  the  accused  started
demanding Rs.50,000/-, refrigerator, sofa set and five tolas of gold by  way
of dowry and since these demands were not fulfilled, the in-laws  of  Poonam
were harassing her physically and mentally.   It  was  further  stated  that
Respondent No.1 had illicit relation with another lady.

3.    The trial court by its judgment and order dated  28.06.2012  acquitted
Respondent Nos.1 and 2 of all the charges leveled against  them.   According
to the trial court the death was as a result of  drowning  and  since  there
were no marks of any physical injury on the body, the case that  Poonam  was
done to death earlier and thereafter her body  was  thrown  into  the  well,
could not be accepted.  As regards demands for dowry and cruelty in  respect
thereof, the trial court found that the prosecution  had  completely  failed
to prove these aspects.  It was observed  that  PWs  3,  4  and  5  had  not
supported the case of prosecution on  material  aspects  and  were  in  fact
declared hostile.  The trial court thus observed that none  of  the  charges
leveled by the prosecution were substantiated by evidence on record.

4.    Being aggrieved, Criminal Appeal No.787 of 2013 was preferred  by  the
appellant i.e. PW 3 Ananda challenging the judgment of acquittal.  The  High
Court after going through the matter was in agreement  with  the  assessment
made by the trial court and by its Order  dated  13.09.2013  dismissed  said
Criminal Appeal.

5.    This appeal by special leave  seeks  to  challenge  the  judgments  of
acquittal rendered by the trial court and the High Court.

We have heard the learned counsel and gone through the record.

7.    Inquest panchanama Ext.13 and post  mortem  report  Ext.14  show  that
there were no marks of injury on the body and that the deceased had died  as
a result of drowning.  Thus, the  theory  that  Poonam  was  done  to  death
earlier and thereafter her body was thrown into the well,  was  rightly  not
accepted by the Courts below.  As regards demands  for  dowry  the  evidence
unfolded through the family members of the deceased namely PWs 3,  4  and  5
is completely sketchy and does not establish the case  at  all.   All  these
three witnesses were declared hostile.  Even according  to  their  testimony
the couple lived happily for two to three years and  was  blessed  with  two
children.  Nothing has been established on record  as  to  the  demands  for
dowry and regarding harassment or cruelty.  PW 3 Ananda  went  on  to  state
that two days prior to the incident Poonam had seen  Respondent  No.1  in  a
compromising  position  with  another  lady.   This  part  was  rightly  not
accepted by the Courts below as amounting to cruelty  or  harassment  enough
to bring the case under Section 306 of IPC.

8.    In the circumstances the Courts below  were  completely  justified  in
acquitting the Respondent Nos.1 and 2 of the charges leveled  against  them.
We find no error in  their  judgments  and  therefore  dismiss  the  present
appeal.

            ….…………………….J.
      (Adarsh Kumar Goel)


            ………………………..J.
      (Uday Umesh Lalit)
      New Delhi,
      March 09, 2017

The conclusions of the examination conducted in the Forensic Science Laboratory, Haryana, Madhuban, Karnal, are reproduced below from Ex. PF: - “RESULT (1) The countrymade pistol marked W/1 (chambered for 12 bore cartridges) is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was not found in working order. (2) The countrymade pistol marked W/1 had been fired through. However, scientifically, the time of its last firing cannot be given. (3) The percussion cap of cartridge case marked C/1 on which firing pin marks appear due to firing was found missing. Moreover, the firing mechanism of pistol W/1 was not found in working order. Therefore, no opinion could be formed regarding the linkage of C/1 in respect of pistol W/1. (4) One wooden piece and two metallic strips contained in parcel No. III could form part of countrymade pistol contained in parcel No. VIII. ……………………………………” (Emphasis supplied) In view of the conclusions given by Forensic Science Laboratory on points (1), (2) and (3), quoted above, we are of the view that the prosecution story, as narrated by PW-4 Pappu and PW-5 Surender Singh, is highly doubtful. Apart from this, though the motive of crime is not necessarily required to be proved, but in the case like the present one where the appellants are named on suspicion by informant PW-6 Amit Kumar in the First Information Report (which does not contain names of PW-4 Pappu and PW-5 Surender Singh as witnesses who had seen the occurrence), the motive appears to be relevant fact. PW-6 Amit Kumar has simply mentioned that the deceased had asked the two accused to waive of the remaining amount of ?250/- from the loan of ?10,000/- taken by Gola but the same does not appear to be a convincing motive to commit the crime by the appellants. Prosecution has not examined Gola if he had taken loan of ?10,000/- and paid off the same minus the amount ?250/-. Even otherwise, in the First Information Report it is nowhere mentioned why actually Deepak (deceased) had gone in his separate scooter with the two appellants from his house. For the reasons, as discussed above, we find that the trial court as well as the High Court has erred in law in holding that the charge against the two accused stood proved. In the light of appreciation of evidence, as above, we are of the opinion that the prosecution has failed to prove the charge of offence punishable under Section 302/34 IPC against the two accused. We further hold that the charge of offence punishable under Section 25 of the Arms Act, 1959 against accused Ajit @ Dara Singh is also not proved beyond reasonable doubt. Accordingly, the appeal deserves to be allowed.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2194 OF 2014


Pawan @ Rajinder Singh and another           … Appellants

                                   Versus

State of Haryana                             …Respondent



                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against judgment and order  dated  02.04.2014,
passed by the High Court of Punjab and Haryana in Criminal Appeal No. D-391-
DB of 2002 whereby  said  Court  has  dismissed  the  appeal  affirming  the
conviction   and   sentence    under    Section    302/34    IPC,    against
accused/appellants Pawan @ Rajinder Singh and Ajit @  Dara  Singh,  recorded
by the Additional Sessions Judge, Fast Track Court No.  1,  Faridabad.   The
High Court  has  further  affirmed  the  conviction  and  sentence  recorded
against accused/appellant Ajit @ Dara Singh under Section  25  of  the  Arms
Act, 1959.

Heard learned counsel for the parties and perused the record of the case.

Prosecution story, in brief, is that Deepak (deceased) was elder brother  of
PW-6 Amit Kumar  (complainant).   Amit  Kumar  had  a  business  of  selling
flowers, and his  elder  brother  used  to  do  the  delivery  work.   Their
neighbour Gola (not examined) had taken a  loan  of  ?10,000/-  on  interest
from accused Pawan, and he (the debtor) had returned the same except  ?250/-
.  On 09.11.2000 at about 8.30 p.m. accused Pawan @ Rajinder Singh  and  his
cousin accused Ajit @ Dara Singh demanded  remaining  ?250/-  from  Gola  to
which the deceased requested them to waive the  said  amount  due  to  which
some altercation took place  between  the  deceased  and  the  two  accused.
About half an hour thereafter both the accused came back on a  scooter,  and
Deepak (deceased) also left with them but on his  separate  scooter  bearing
registration No. HR 51 E-4749.  Deepak did not return till late  night.   On
this, PW-6 Amit Kumar and his father Ram Nath started search  for  him.   In
the next morning they came to know that dead body of a person is lying  near
Air Force ground.  Both, father and son went there and saw that it  was  the
dead body of Deepak.  Suspecting that appellants Pawan @ Rajinder Singh  and
Ajit @ Dara Singh had committed the murder, a report (Ex PE-1) was given  to
the police in the early hours of 10.11.2000 mentioning their names.  On  the
basis of said report, First Information  Report  No.  803  dated  10.11.2000
(Ex.PK) was registered at Police Station, N.I.T., Faridabad.

Investigation  was  initiated  by  PW-9  ASI  Jai  Singh,  and  later  PW-12
Inspector Raj Pal Singh took over the  same.   PW-9  ASI  Jai  Singh,  after
taking the dead body in his possession, got the inquest  report  (Ex.  PL-1)
and site plan (Ex.PM) prepared.  An empty cartridge was also recovered  from
the place  of  incident.   PW-12  Inspector  Raj  Pal  Singh,  Investigating
Officer got sent the empty cartridge  to  Forensic  Science  Laboratory  for
examination.  He also took the  blood  stained  earth  from  the  spot.   He
interrogated the witnesses.  Meanwhile, PW-1 Dr. D.S. Rathi, along with  Dr.
Sunita Gupta and Dr. P.S. Yadav, conducted the post  mortem  examination  on
10.11.2000 at about 5.00 p.m.  In the  autopsy  report  (Ex.  PL)  following
ante mortem injury is mentioned: -
“A circular circumscribed wound 2.5 c.m. x 2.5 c.m. in diameter and  2  c.m.
from middle of chest on left side at level of 10th rib.   On  probing  going
downward posteriorly, blackening and  singeing  present  around  the  wound,
margins inverted.  On examination  few pellets  found  embedded,  underneath
the skin and soft tissues.   On  dissection  the  pleural  cavity  contained
blood.  A few metallic pellets  found  inside  in  left  chest  and  pleural
cavity, removed.  On further dissection hole in stomach  also  present.   On
further examination a foreign body of rounded  shape  2  c.m.  in  size  was
found and removed.  The pellets and the foreign body sealed in a vial.”

During investigation, the Investigating Officer arrested both  the  accused,
and on their disclosure scooter bearing registration No. HR 51  C  1609  was
recovered from their house.  The prosecution case is  that  a  country  made
pistol was also recovered on the  disclosure  statement  (Ex.  PK)  made  by
accused Ajit @ Dara Singh.  A broken butt of the pistol  was  said  to  have
been found from the place of incident.  After  completion  of  investigation
charge sheet was  filed  by  the  Investigating  Officer  against  both  the
accused.

On committal, after framing  charge,  the  trial  court  recorded  evidence.
Prosecution got examined PW-1 Dr. D.S. Rathi, PW-2  MMHC  Hari  Chand,  PW-3
Constable Manoj Kumar, PW-4 Pappu, PW-5 Surender Singh, PW-6 Amit Kumar, PW-
7 Ram Nath, PW-8 Constable Ash Mohd., PW-9 ASI  Jai  Singh,  PW-10  ASI  Ami
Lal, PW-11 Naimuddin and PW-12 Inspector Raj Pal Singh.  After  putting  the
documentary and oral evidence under  Section  313  Cr.P.C.  to  the  accused
persons, the trial court found both the accused guilty of charge of  offence
punishable under Section 302/34 IPC.  Accused Ajit @ Dara Singh was  further
found guilty of charge of offence punishable under Section 25 of  Arms  Act,
1959.  They were awarded sentence, as already mentioned above.

On appeal by the convicts, High Court agreed with the findings of the  trial
court and dismissed  the  appeal.   Hence  this  appeal  before  us  through
special leave.

At the outset, we would like to mention that in substance it is  a  case  of
circumstantial evidence but  for  the  evidence  of  two  chance  witnesses,
namely PW-4 Pappu and PW-5 Surender Singh.  PW-4 Pappu is a  rikshaw  puller
who is resident of Sant Nagar Jhuggi in Faridabad.  PW-5 Surender  Singh,  a
three wheeler driver, is resident of Railway Colony, Old Faridabad.   It  is
relevant to mention here that the incident is said  to  have  occurred  near
Air Force ground.  It is further relevant to mention  that  the  complainant
Amit  Kumar  (PW-6),   his   brother   Deepak   (deceased)   and   the   two
accused/appellants are residents of N.I.T.,  Faridabad.   It  is  not  clear
from the record as to how  these  chance  witnesses  (PW-4  Pappu  and  PW-5
Surender Singh) who have stated that  they  heard  altercation  between  the
deceased and the two accused after midnight and thereafter  heard  sound  of
fire, knew them.  In our opinion, the testimony of  these  witnesses  cannot
be said to be reliable or trustworthy  particularly  when  their  statements
are not corroborated from other evidence on record.

Now, we come  to  the  report  of  the  Forensic  Science  Laboratory.   The
conclusions  of  the  examination  conducted   in   the   Forensic   Science
Laboratory, Haryana, Madhuban, Karnal, are reproduced below from Ex. PF: -

                                   “RESULT

(1)   The countrymade pistol marked W/1 (chambered for 12  bore  cartridges)
is a firearm as defined in Arms Act 54 of 1959.  Its  firing  mechanism  was
not found in working order.

(2)   The countrymade pistol marked W/1 had been  fired  through.   However,
scientifically, the time of its last firing cannot be given.

(3)   The percussion cap of cartridge case marked C/1 on  which  firing  pin
marks appear  due  to  firing  was  found  missing.   Moreover,  the  firing
mechanism of pistol W/1 was not  found  in  working  order.   Therefore,  no
opinion could be formed regarding the linkage of C/1 in  respect  of  pistol
W/1.

(4)   One wooden piece and two metallic strips contained in parcel  No.  III
could form part of countrymade pistol contained in parcel No. VIII.

      ……………………………………”

                                                         (Emphasis supplied)


      In view of the conclusions given by  Forensic  Science  Laboratory  on
points (1), (2) and  (3),  quoted  above,  we  are  of  the  view  that  the
prosecution story, as narrated by PW-4 Pappu and  PW-5  Surender  Singh,  is
highly doubtful.

Apart from this, though the motive of crime is not necessarily  required  to
be proved, but in the case like the present one  where  the  appellants  are
named on suspicion by informant PW-6 Amit Kumar  in  the  First  Information
Report (which does not contain names of PW-4 Pappu and PW-5  Surender  Singh
as witnesses who  had  seen  the  occurrence),  the  motive  appears  to  be
relevant fact.  PW-6 Amit Kumar has simply mentioned that the  deceased  had
asked the two accused to waive of the remaining amount of  ?250/-  from  the
loan of ?10,000/- taken by Gola but  the  same  does  not  appear  to  be  a
convincing motive to commit the crime by the  appellants.   Prosecution  has
not examined Gola if he had taken loan of ?10,000/- and paid  off  the  same
minus the amount ?250/-.




Even otherwise, in the First Information Report it is nowhere mentioned  why
actually Deepak (deceased) had gone in his separate  scooter  with  the  two
appellants from his house.

For the reasons, as discussed above, we find that the trial  court  as  well
as the High Court has erred in law in holding that the  charge  against  the
two accused stood proved.

In the light of appreciation of evidence, as above, we are  of  the  opinion
that the prosecution has failed to prove the charge  of  offence  punishable
under Section 302/34 IPC against the two accused.  We further hold that  the
charge of offence punishable under Section 25 of the Arms Act, 1959  against
accused Ajit @ Dara Singh  is  also  not  proved  beyond  reasonable  doubt.
Accordingly, the appeal deserves to be allowed.

The appeal is allowed.  Both the accused, namely Pawan @ Rajinder Singh  and
Ajit @ Dara Singh, are acquitted of the charges.  The  appellants  shall  be
set at liberty forthwith if not required in connection with any other case.


                                                            ………………………..…….J.
                                                               [N.V. Ramana]



                                                            ………………………..…….J.
                                                          [Prafulla C. Pant]
New Delhi;
March 08, 2017.

We hope and trust that the parties would now realize their duties and obligations against each other as also would realize their joint obligations as mother and father towards their grown up daughters. Both should, therefore, give quite burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would be in the interest of all family members in the long run and will bring peace, harmony and happiness. We find that the respondent is working as a "Caretaker" in the Government Department (see Para 4 of his petition). He must, therefore, be the "Caretaker" of his own family that being his first obligation and at the same time attend to his Government duties to maintain his family.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.7114-7115 OF 2014


Suman Singh                        ….Appellant(s)

                                   VERSUS

Sanjay Singh                             …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    These appeals are filed by the  appellant  (wife)  against  the  final
judgment and order dated 23.05.2013 passed by the High  Court  of  Delhi  at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013  by  which  the
High Court dismissed the appeals filed by the appellant  and  confirmed  the
judgment dated 14.12.2010 of the  Principal  Judge,  Family  Courts,  Rohini
which had granted decree for  dissolution  of  marriage  in  favour  of  the
respondent  (husband)  and,  in  consequence,  also   affirmed   the   order
dismissing the petition filed by the appellant  (wife)  for  restitution  of
conjugal rights.
2)    Facts, in  brief,  to  appreciate  the  controversy  involved  in  the
appeals need mention infra.
3)    The marriage between the appellant and the respondent  was  solemnized
on 26.02.1999 at Delhi as per the Hindu rites.   The  respondent-husband  is
working as "Caretaker" in  the  Government  of  NCT  of  Delhi  whereas  the
appellant is a housewife. Out of this wedlock,  one  daughter  was  born  on
15.06.2002 and the second daughter was born on  10.02.2006.  Both  daughters
are living with the appellant.
4)     On  11.07.2010,  the  respondent  (husband)  filed  a  petition   for
dissolution of marriage under Section 13 of the  Hindu  Marriage  Act,  1955
(hereinafter referred to as "The Act”) in the Family Courts,  Rohini,  Delhi
against the appellant (wife). The respondent sought decree  for  dissolution
of marriage essentially on the ground of "cruelty”.
5)    In substance, the respondent, in his  petition,  pleaded  9  instances
which, according  to  him,  constituted  "cruelty”  within  the  meaning  of
Section 13(1)(i-a)  of  the  Act  entitling  him  to  claim  dissolution  of
marriage against the appellant.
6)    The first ground of cruelty was related  to  wife's  behavior  on  the
next day of marriage, i.e., 27.02.1999. It was alleged  that  the  appellant
came out of the bedroom in night dress and that  too  late  when  the  close
relatives of the respondent were sitting in the house. It was  alleged  that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7)    The second ground of cruelty was again about the appellant's  behavior
with the respondent on the eve of  New  Year.  However,  the  year  was  not
mentioned.  According to the respondent, he  agreed  to  celebrate  the  new
year with the appellant  on  her  parental  house  as  the  parents  of  the
appellant gave repeated calls. After reaching her parental  house,  most  of
the time the appellant was busy with her family members and left  him  alone
in the drawing room.  Even at the time of dinner, the family members of  the
appellant did not behave properly. (Para 10).
8)    The third ground of cruelty was that the appellant did  not  show  any
inclination or  enthusiasm  to  attend  any  important  family  function  or
festivals at the respondent’s house whenever held. However, no details  were
given about the date and the function held.  The allegations are general  in
nature (Para 11).
9)    The fourth ground of cruelty was again about the indecent behavior  of
the appellant towards the respondent’s family members. However,  no  details
were pleaded except making general averments (Para 12).
10)   The fifth ground of cruelty was in  relation  to  an  incident  which,
according to the respondent, occurred in July 1999. It was alleged that  the
appellant, on that day, insisted that  the  couple  should  live  separately
from the respondent's parents (Para 13).
11)   The sixth ground of cruelty was again general with no details. It  was
alleged that the appellant was not interested in doing  any  household  work
nor was interested in preparing meals and used to insist the  respondent  to
have his lunch from outside. (Para 14).
12)   The seventh ground of cruelty was in relation to one  incident  which,
according to the respondent, occurred on Diwali day in the  year  2000.   It
was again about the behavior of the appellant with  the  family  members  of
the respondent which, according to the respondent, was rude (Para 16).
13)   The eighth ground of cruelty was in relation to one isolated  incident
which, according to the respondent, occurred on  15.04.2001.  It  was  again
about the behavior of the appellant with the friends of the  respondent  who
had come to the respondent's house. According to the respondent, the  family
members did not like it (Para 17).
14)   The ninth ground of cruelty  was  that  one  day  in  year  2010,  the
appellant  visited  the  respondent's  office  and   misbehaved   with   the
respondent in the presence of other officials (Para 27).
15)   The respondent also alleged some  instances  in  the  petition.  They,
however, again essentially relate to  the  appellant’s  behaviour  with  the
respondent and his family members.
16)    The  appellant  filed  her  written  statement   and   denied   these
allegations. The appellant also applied for restitution of  conjugal  rights
against the respondent in the same  proceedings  by  filing  petition  under
Section 9 of the Act and inter alia alleged in her petition that it was  the
respondent who  has  withdrawn  from  her  company  without  there  being  a
reasonable cause. She also while denying the case set up by  the  respondent
justified her case for restitution of conjugal rights.
17)   The Trial Court framed the following issues on the basis of  pleadings
in the case:
Whether  after  solemnization  of            marriage,  the  Respondent  has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to                        the  decree  of
divorce as prayed? OPP
   3. Relief

The following issues were framed based on  the  pleadings  in  the  petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights  as
prayed? OPP
Relief

18)   Parties adduced the evidence. By order dated  14.12.2012,  the  Family
Court allowed the petition filed by the respondent. It  was  held  that  the
grounds alleged by the respondent amounted  to  mental  cruelty  within  the
meaning of Section 13(1)(ia) of the Act and the same having been  proved  by
the respondent, he was  entitled  to  claim  a  decree  for  dissolution  of
marriage against the appellant. Accordingly, the Trial Court granted  decree
for dissolution of marriage in favour of the respondent  and  dissolved  the
marriage. Since the decree for dissolution of marriage  was  passed  against
the appellant, the petition filed by the appellant  against  the  respondent
seeking restitution of conjugal rights was dismissed.
19)   The appellant, felt aggrieved by  the  aforesaid  order,  filed  first
appeals before the High Court. In appeals,  the  question  was  whether  the
Trial Court was justified in granting decree for dissolution of marriage  to
the respondent (husband) and, in consequence, was  justified  in  dismissing
the petition for restitution of  conjugal  rights  filed  by  the  appellant
(wife).
20)   By impugned  judgment,  the  High  Court  dismissed  the  appeals  and
affirmed the judgment/decree of the Trial Court. The appellant (wife),  felt
aggrieved, has filed these appeals by special leave against the judgment  of
the High Court.
21)   Heard Mr. D.N. Goburdhan, learned counsel for the  appellant  and  Mr.
Gaurav Goel, learned counsel for the respondent.
22)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined  to  allow  the  appeals  and  while
setting aside the impugned order, dismiss the divorce petition filed by  the
respondent(husband) against the appellant and,  in  consequence,  allow  the
petition filed by the appellant(wife) for  restitution  of  conjugal  rights
against the respondent (husband).
23)   The word "cruelty” used  in  Section  13(1)(ia)  of  the  Act  is  not
defined under the Act.  However, this expression was the subject  matter  of
interpretation in several cases of  this  Court.  What  amounts  to  “mental
cruelty” was succinctly explained by  this  Court  (three  Judge  Bench)  in
Samar Ghosh vs. Jaya Ghosh [(2007) 4  SCC  511].  Their  Lordships  speaking
through Justice Dalveer Bhandari observed that no uniform standard can  ever
be laid  down  for  guidance,  yet  it  is  appropriate  to  enumerate  some
instances of human behavior which may  be  considered  relevant  in  dealing
with the cases of “mental cruelty”.
24)   Their Lordships then broadly enumerated 16  category  of  cases  which
are considered relevant while examining  the  question  as  to  whether  the
facts alleged and proved constitute “mental cruelty” so as  to  attract  the
provisions of Section 13  (1)  (ia)  of  the  Act  for  granting  decree  of
divorce.
25)   Keeping in view the law laid down in Samar Ghosh’s case (supra),  when
we examine the grounds taken by the respondent in his petition  for  proving
the mental cruelty for grant of divorce against the appellant, we find  that
none of the grounds satisfies either individually or collectively  the  test
laid down in Samar Ghosh’s case (supra) so as to entitle the  respondent  to
claim a decree of divorce.
26)   This we hold for more than one reason. First, almost all  the  grounds
taken by the respondent in his petition were stale or/and isolated  and  did
not subsist to enable the respondent to seek a  decree  for  dissolution  of
marriage. In other words, the incidents of cruelty alleged had  taken  place
even, according to the respondent, immediately  after  marriage.  They  were
solitary incidents relating  to  the  behavior  of  the  appellant.  Second,
assuming that one or more grounds constituted an  act  of  cruelty,  yet  we
find that the acts complained of were condoned by the parties due  to  their
subsequent conduct inasmuch as admittedly both lived together till 2006  and
the appellant gave birth to their second daughter in 2006.  Third,  most  of
the incidents of alleged cruelty pertained to the period prior to  2006  and
some were alleged to have occurred after 2006.  Those  pertained  to  period
after 2006 were founded on general allegations with no details pleaded  such
as when such incident occurred  (year,  month,  date  etc.),  what  was  its
background, who witnessed, what the appellant actually said etc.
27)   In our view, the incidents which occurred prior to 2006 could  not  be
relied on to prove the instances of cruelty  because  they  were  deemed  to
have been condoned by the acts of the  parties.  So  far  as  the  instances
alleged after 2006 were concerned, they being isolated  instances,  did  not
constitute an act of cruelty.
28)   A petition seeking divorce on some isolated incidents alleged to  have
occurred 8-10 years prior to filing of the date of petition  cannot  furnish
a subsisting cause of action to  seek  divorce  after  10  years  or  so  of
occurrence of such incidents.  The incidents alleged should be of  recurring
nature or continuing one and they should  be  in  near  proximity  with  the
filing of the petition.
29)   Few isolated incidents of long past and that too found  to  have  been
condoned due to compromising behavior of the parties  cannot  constitute  an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30)   In our considered opinion, both the Courts below failed to  take  note
of this material aspect of the case and thus committed jurisdictional  error
in passing a decree for dissolution of marriage.
31)   We cannot, therefore, countenance  the  approach  of  the  High  Court
because it did not, in the first instance, examine the grounds taken in  the
petition to find out as to whether such grounds  constitute  mental  cruelty
or not?  The finding,  therefore,  though  concurrent  does  not  bind  this
Court.
32)   We are not impressed by the submission of the learned counsel for  the
respondent that an incident  which  occurred  somewhere  in  2010  when  the
appellant  visited  the  office  of  the  respondent  and  alleged  to  have
misbehaved with the respondent in front of other officers  would  constitute
an act of cruelty on  the  part  of  the  appellant  so  as  to  enable  the
respondent to claim divorce.  In the first place, no decree for  divorce  on
one isolated incident  can  be  passed.  Secondly,  there  could  be  myriad
reasons for causing such isolated incident. Merely  because  both  exchanged
some verbal conversation in presence  of  others  would  not  be  enough  to
constitute an act  of  cruelty  unless  it  is  further  supported  by  some
incidents of alike nature. It was not so.
33)   We are also not impressed by the submission  of  the  learned  counsel
for the respondent that since the appellant had made allegation against  the
respondent of his having extra-marital relation and  hence  such  allegation
would also constitute an act  of  cruelty  on  the  part  of  the  appellant
entitling the respondent to claim decree for dissolution of marriage.
34)   Similarly, we are also not impressed  by  the  submission  of  learned
counsel for the respondent that since both have been living  separately  for
quite some time and hence this may be  considered  a  good  ground  to  give
divorce.
35)   In  the  first  place,  the  respondent  did  not  seek  a  decree  of
dissolution of marriage on these grounds. Second,  the  grounds  of  cruelty
taken by the respondent in his petition  does  not  include  these  grounds.
Third, even if  some  stray  allegations  were  made  by  the  wife  in  her
pleading/evidence as were relied upon by  the  learned  counsel  are  of  no
relevance because, as mentioned above, these ground were not pleaded in  the
petition by the respondent for seeking a decree of divorce and nor were  put
in issue; and lastly, the burden being on the respondent, the same could  be
discharged by the respondent by pleading and then proving.  It  was  not  so
done. It is for these reasons,  we  cannot  accept  the  aforementioned  two
submissions for affirming the decree of divorce.
36)   This takes us to the next question as to  whether  the  appellant  was
able to make out any case for restitution of  conjugal  rights  against  the
respondent.
37)   Having perused her petition and evidence, we are of the view that  the
appellant is entitled for  a  decree  for  restitution  of  conjugal  rights
against the respondent.
38)   In our considered view, as it  appears  to  us  from  perusal  of  the
evidence that it  is  the  respondent  who  withdrew  from  the  appellant's
company without there being any reasonable cause to do so. Now that we  have
held on facts that the respondent failed to make out  any  case  of  cruelty
against the appellant, it is clear to us that  it  was  the  respondent  who
withdrew from the company of the appellant without reasonable cause and  not
the vice versa.
39)   In view of foregoing discussion, the appeals succeed and are  allowed.
The impugned judgment is set aside. As a result, the petition filed  by  the
respondent (husband) under Section 13(1) of the Act seeking  dissolution  of
marriage is dismissed. As a consequence thereof, the  marriage  between  the
parties is held to subsist whereas  the  petition  filed  by  the  appellant
against the respondent under Section 9 of the  Act  seeking  restitution  of
conjugal right is allowed. A decree for restitution of  conjugal  right  is,
accordingly, passed against the respondent.
40)   We hope and trust that the parties would now realize their duties  and
obligations  against  each  other  as  also  would   realize   their   joint
obligations as mother and father towards  their  grown  up  daughters.  Both
should, therefore, give quite burial to their  past  deeds/acts  and  bitter
experiences and start living together and see that their daughters are  well
settled in their respective lives.  Such reunion, we feel, would be  in  the
interest of all family members  in  the  long  run  and  will  bring  peace,
harmony and  happiness.  We  find  that  the  respondent  is  working  as  a
"Caretaker" in the Government Department (see Para 4 of  his  petition).  He
must, therefore, be the "Caretaker" of his own family that being  his  first
obligation and at the same time attend to his Government duties to  maintain
his family.


………...................................J.
                                  [R.K. AGRAWAL]


….……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 08, 2017
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