acquittal =Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2012 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR And THE HONOURABLE MR. JUSTICE P. DEVADASS Criminal Appeal (MD) No.394 of 2010 Sanjeevan alias Reghu .. Appellant v. The State of Tamil Nadu Rep. By its Inspector of Police Puthukadai Police Station Puthukadai Kanyakumari District. .. Respondent Appeal filed under Section 374 of the Criminal Procedure Code against the judgment of the learned Sessions Judge, Kanyakumari District at Nagercoil in S.C. No.156 of 2007 dated 24.06.2010. !For Appellant ... Mr. N. Dilip Kumar ^For Respondent ... Mr. K.S. Durai Pandian, APP :JUDGMENT P. DEVADASS.J. 1. The appellant Sanjeevan @ Reghu is the accused in S.C. No.156 of 2007, in the Court of Sessions Judge, Kanyakumari Sessions Division at Nagercoil. In this appeal, he challenges, his conviction under Sections 377 and 302 IPC and the sentences imposed upon him. 2. He stood charged under Sections 377, 302 and 201 IPC for having committed sodomy on the boy Legies, for having murdered him and for having concealed his dead body in order to screen himself from legal punishment. 3. After trial, the learned Sessions Judge convicted and sentenced him as under: Sl.No. Conviction Sentence 1. S.377 IPC 10 years Rigorous Imprisonment and fine Rs.15,000/-, in default, undergo simple imprisonment for one year. 2. S. 302 IPC Life Sentence and fine Rs.15,000/-, in default, one year simple imprisonment. The learned Sessions Judge directed that the said sentences shall run concurrently and out of the total fine amount ordered payment of Rs.25,000/- as compensation to PW.1 Lawrence, the father of the deceased boy. 4. The prosecution case proceeded as under:- (1) PW.1 Lawrence and Gresi are spouses. Their sons are Lenies, Lebies and Legies. They are residing in Vannan Vilai, Puthukkadai in Kanyakumari District. Their third son, Legies, is about 13 years old. He was studying VII Standard in St.Mary's Middle School in Puthukkadai. (2) The appellant is also residing nearby. He is a mason. He was married to Geetha Malar. They are having two daughters. There was no love last between the spouses. She left him with the children. He is residing lonely in his newly constructed house. (3) Legies is already known to the appellant. The appellant wanted to satisfy his sexual appetite through him. He was waiting for an opportunity. (4) PW.5 Raviraj, is residing in Panainerunchi Villai, Puthukkadai. On 2.9.2006, around noon, when he was crossing appellant's house, he heard Legies' crying, 'brother open the door'. Appellant opened the door. The boy came out. Appellant told him to come soon, he would give him money for buying ice-cream. Thereafter, PW.5 left for his house. Around 3 pm., in his house, the boy had shower. Then left his house. (5) PW.2 Maria Packiam is also residing in Vannan Vilai, Puthukkadai. She used to collect chit amounts near the Roman Catholic Church in Puthukkadai. On 2.9.2006, after collecting the chit amounts, around 3.10 pm, she came near the appellant's house. She heard shriek from his house. Within few minutes, appellant came out of his house. Closed the doors. PW.2 asked him what had happened. He replied her nothing and left. (6) Around 6 p.m., at the R.C. Church, PW.1's wife and sons Lenies and Lebies told him that Legies is missing. PW.1 enquired the Dance Teacher Adaikala Mary. She told him Legies did not come to dance class. Till night, the boy did not return home. (7) On 3.9.2006, at about 9 a.m., at the south western corner of Amirthain's land, the dead body of Legies was found. It was half naked. No dress below the hip. The dead body was found with shirt (MO.1) and the electronic watch (MO.2). PW.1 seen the dead body of his son. (8) At about 10 a.m., at the Puthhukkadai Police Station, PW.1 gave Ex.P1 complaint to PW.17 Ramesh Babju, Sub Inspector of Police. He registered a case of suspicious death under Section 174 Cr.P.C (Ex.P.19 FIR). PW.17 sent the FIR through PW.13 Head Constable, Joseph Raj to Judicial Magistrate No.II, Kuzhithurai. Since the Magistrate was on leave, around 12.40 am., he handed over the FIR to the Incharge-Judicial Magistrate, Thucklay. (9) On receipt of a copy of FIR, Subramony, Inspector, Puthukkadai Police Station took up his investigation. [Subramony is no more. Since PW.17 assisted him in investigating this case and knows his signature, PW.17 also has been examined to speak to Subramony's investigation of this case]. (10) At about, 10.30 a.m., at Amirtainan's land, in the presence of PW.3 Henrydhass and one Justin Paulraj, Inspector Subramony prepared Ex.P.2 Observation Mahazar-1. Recovered six bloodstained dried jack-fruit tree leaves (MO.3) under Ex.P.3 Mahazar. Drew rough sketch-1 (Ex.P.20). Examined the witnesses. Recorded their statement. In the presence of Panchayathars, held inquest over the dead body (Ex.P.21 Inquest Report). Sent the dead body through PW.14 Head Constable, Sobana Kumar with Ex.P.10 requisition to the Government Medical College Hospital at Asaripallam, Nagercoil for autopsy. (11) At about 3.30 p.m., PW.10, Dr. Velmurugan, conducted autopsy. He noted the following :- Appearances found at the post-mortem: Moderately nourished boy of a male with finger and toe nails blue in colour. Postmortem ant bite marks seen over the front of neck and chest. Eggs of flies found laid around the mouth, neck and groins. Dried blood stain seen over both nostrils, mouth, cheek and eyes. Anus found relaxed. Ante-mortem injuries: 1. Abrasion with contusion 4 x 2 cm over the left eyelid. The lid edematous. 2. 5 x 4 cm abrasion seen over right side of forehead. 3. Abrasion with contusion 6 x 5 cm over right cheek. 4. Abrasion 5 x . cm over the neck. 5. Abrasion 10 x 5 cm over right cheek. 6. Abrasion 6 x 4 cm over left side of cheek. 7. Abrasion with contusion 6 x 2 cm over right shoulder. 8. Abrasion 5 x 4 cm middle of chest. 9. Scratch abrasion of varying sizes over an of 20 x 12 cm over the front of left thigh. 10. Abrasion 4 x 2 cm over the front of middle of neck. 11. Abrasion 2 x 2 cm front of left knee. Chest and Abdomen: Bruising seen over upper half of sternum. About 100 ml of blood with clots seen in the thoracic cavity. Heard contused, both lungs contused. Contusion seen on inner aspect of ribs on the right side. About 200 ml of blood with clots seen in the abdominal cavity. Contusion of right lobe of liver note. Retro peritoneal clots seen over both sides of abdomen. Part of Duodenum and colour contused. Scalp Skull & Dura: Scalpal bruising with contusion over frontal, right parietal and temporal regions. The right temporal is muscle found bruised. Diffused sub Drual Haemorrhage, Sub Arachnoid Haemorrhage seen over both cerebral hemispheres. On thin dissection of neck bruising seen over inner aspect of neck. Hyoid bone: Intact. Stomach: About 250 gms of partially digested identifiable food particles (rice, banana and tender coconut with pungent odour. Mucosa congested). (12). PW.10 opined that the boy would appear to have died of multiple injuries and sequlae (Ex.P.12 final opinion). (13). On 16.9.2006, PW.7 Chandra, VAO, Painkulam was holding additional charge of Arudesam village. On 16.9.2006, in his office, at about 9.30 a.m., appellant gave him Ex.P.5 confession that on the evening of 2.9.2006, in his house, he had sodomised Legies, killed him and during night thrown away his dead body in the nearby land. PW.7 recorded it. Appellant signed it. PW.8 George and Vijayakumar, Village Assistants, attested it. (14). At about 10.30 a.m, at the Puthukkadai Police Station. PW.7 handed over the sodomite and Ex.P.5 extra-judicial confession to Inspector Subramony. He arrested him. Altered the section of law to Section 302 and 201 IPC. Sent the alteration memo to the court. (15). Appellant gave Ex.P.6 confessional statement to the Investigating Officer that if he is taken to certain places, he would show him the occurrence place, places where the dead body, boy's dress and his lungi, blanket and two empty tender coconuts were kept. (16). From Ponnappan's land, appellant produced an ash colour pant (MO.4). The Inspector seized it under Ex.P.7 Mahazar in the presence of PW.8 and Vijayakumar. (17). The appellant took the Investigating Officer to his house. In the presence of PW.4 Yesudhas and one Subash, the Inspector prepared Ex.P.4 Observation Mahazar-II. Drew Ex.P.22 Rough Sketch -II. He produced hair pieces (MO.6), woollen blanket (MO.7) and lungi (MO.8). In the presence of said witnesses, the Inspector seized them under Ex.P.9 Mahazar. (18). Through Court, the Inspector sent his requisition to conduct potency test to the accused (Ex.P.14 Court's letter). With the consent of appellant, PW.11 Dr.Rajesh conducted the test. He opined that the appellant was capable of performing sexual intercourse (Ex.P.13 Certificate). (19). The Inspector produced the appellant to the Judicial Magistrate for judicial custody. Sent the case-properties to the Lab through Court, for analysis. The Serologist found blood in MO.1 shirt (Ex.P.17). (20). Concluding his investigation, the Inspector filed Final Report for offences under sections 377, 302 and 201 IPC. 5. Prosecution examined PWs 1 to 17, marked Ex.P1 to 23 and exhibited MOs 1 to 8. 6. Placing reliance on the various circumstances projected by the prosecution through PWs.2 and 5. Ex.P.5 extra-judicial confession and Section 27 Evidence Act recoveries, on 24.6.2010, the learned Sessions Judge, came to the conclusion that the appellant committed buggery on the catamite Legies, killed him and thus convicted him under section 377 IPC and under section 302 IPC and sentenced him as already stated. 7. The said findings and sentences were assailed by Mr.N.Dilip Kumar, learned counsel for the appellant as under :- 1) The findings of the trial court are sans any legal evidence. 2) None of the circumstance has been proved. 3) PWs.2 and 5 did not tell anybody that they have seen the deceased near the appellant's house. They are liars. 4) There must be medical evidence that the appellant had committed pederasty. But, there is no medical evidence. The medical evidence let in is also contrary to the allegations made against the appellant. 5) The extra-judicial confession is false and not voluntary. That has been forcefully obtained with the assistance of obliging witnesses PWs.7 and 8 to fasten criminal liability to appellant. 6) Section 27 Evidence Act recovery is consequent upon the said concocted extra-judicial confession. 8. Per contra, Mr. K.S. Durai Pandian, learned Additional Public Prosecutor submitted that appellant had exhibited his virile behaviour by having anal intercourse with a young boy and to conceal his such human depravity, silenced him once for all. The boy suffered cruel death at his hands. He confessed to his crime to PW.7, VAO. It is voluntary and reliable and also has been corroborated by PW.8. There is medical evidence and also recovery of incriminating articles from the appellant's house. All goes to show that the appellant is the person who is responsible for the boy's untimely death. 9. P.W.1 is residing with his family in Vannan Vilai Veedu in Puthukkadai in Kanyakumari District. His third son, Legies, about 13 years old was studying VII Standard in St.Mary's Middle School in Puthukkadai. From the evening of 2.9.2006, the boy was missing. On the next day, at about 9 a.m., his half-naked dead body was found in one Amirthaian's land in Vannan Vilai. 10. The appellant is accused of, after committing sodomy on the boy, killed him and on the night stealthily disposed of his body in one Amirthaian's land in Vannan Vilai. 11. There is no ocular witness to these serious allegations. To establish the charges against the appellant, prosecution relied on several circumstances. According to prosecution, they are incriminating in nature and goes to inculpate the appellant with the offences alleged as against him. 12. In Krishnan v. State represented by Inspector of Police (2008 (4) Supreme 25), on the aspect of circumstantial evidence, Hon'ble Supreme Court observed as under :- "This Court in a series of decisions has consistently held that, 'when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'. (See Gambhir v. State of Maharashtra AIR 1982 SC 1157)". 13. Recently, in Kulvinder Singh and another v. State of Haryana, (2011) 5 SCC 258, Hon'ble Supreme Court observed as under: " It is a settled legal proposition that conviction of a person in an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances conviction may also be based solely on circumstantial evidence. The prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of a conclusive nature and exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra and Paramjeet Singh v. State of Uttarakhand.)". 14. Thus, each circumstance must be proved beyond all reasonable doubts. [See Sanatan Naskar and Another vs. State of West Bengal (2011) 1 MLJ 687 (Crl.) (SC).] The proved circumstances must form a complete chain unerringly proceeding towards the only conclusion that the accused is the author of the crime excluding any hypothesis of innocence in his favour. There should not be any missing link. 15. To inculpate the appellant, prosecution relies on the following circumstances :- i. On the occurrence day, PW-5 has seen the boy shouting from the appellant's house. ii. On the occurrence day, PW-2 heard strange shriek from the appellant's house. iii. Medical evidence. iv. Extra-judicial confession of the appellant. v. Section 27 Evidence Act recovery of MOs 4,5, 7 and 8. 16. PW.5 Raviraj, is residing in Panainerunchi Vilai in Puthukkadai. His evidence is that, on 2.9.2006, around 2 pm., while he was crossing appellant's house, near the southern side window, in the house, the boy Legies was crying, "brother open the door, brother open the door". Appellant opened the door. The boy came out. He told him to return soon and he would give him money for buying ice-cream. After noticing this, PW.5 left the place. On the next day, at about 9 a.m., the half naked dead body of the boy was found in Amirthaian's land. 17. PW.5, is a close relative of the deceased boy. PW.5 's house is at about 100 ft. away from Puthukkadai Police Station. Puthukkadai bus stand is also nearby. Because of such a death of the boy, the whole village plunged into deep sorrow. PW.5 was available in the village. He did not tell this tell-tale circumstance to anyone till 6.9.2006, when the police enquired him. His statement recorded under section 161 CrPC, was also sent to Court only on 9.1.2007 along with the Final Report. In the circumstances, we cannot place reliance on his such evidence. 18. The next incriminating circumstance has been projected through the evidence of PW.2 Maria Packiam. She is residing in Vannan Vilai Veedu in Puthukkadai. It is very near to the boy's residence. She used to collect chit amounts at the Roman Catholic Church in Puthukkadai. It is her evidence that on 2.9.2006, at about 2.30 p.m., while she came near the appellant's house, she heard unusual shriek from his house. Within few minutes, the appellant came out, closed the door and started proceeding. When she asked him, what had happened, he replied her nothing and left. On the next day morning, she heard that the boy, Legies was found dead. 19. PW.2 did not say it is the shriek of a boy. On the next day morning, though the whole village knows about the cruel death of the boy, PW.2 did not tell that tell-tale circumstance to anyone till 19.09.2006, when police enquired her. Her statement also reached the Court along with Final Report only on 9.1.2007. Thus, she does not inspire confidence in her. It is quite unsafe to act upon her evidence. This circumstance spoken to through her also has not been established. 20. For a charge under Section 377 IPC, medical evidence is required. It involves medical examination of the appellant and the boy. The boy is dead. His dead body was examined to see whether he was sexually abused. 21. Modi, in his Text Book, 'Medical jurisprudence and Toxicoloy', 24th edition, Wadhwa Publication, at page 682, with regard to medical evidence in cases of unnatural sexual offences under Section 377 IPC comments as under:- "Examination of the Passive Agent" (in this case the boy) (i) Abrasions on the skin near the anus with pain in walking and on defecations, as well as during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight heal very rapidly in two or three days. (ii) Owing to strong contraction of the sphincter the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending vertically inwards into the rectum. (iii) Blood may be found in or at the anus, on the perineum or thighs and also on the clothes. (iv) Semen may be found in or at the anus, on the perineum, or on the garments of the boy too young to have seminal emissions. Examination of the Active Agent: (the appellant) Non conclusive signs are evident, unless the man is examined soon after the commission of the crime. In that case, there may be an abrasion on the prepuce, glans penis, or fraenum, and stains of faecal matter or lubricant may be found on the penis or on the loincloth or trousers. Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out [Ganpat v. Emperor, AIR 1918 Lah 322]." 22. Thus, forcible anal intercourse by an adult man with a boy will have the presence of bloodstains around anus area. At the material time when the virile behaviour of the appellant arose and indulged in homosexual activity in all probability the appellant was prone to ejaculate and there will be presence of semen in his private part area. In such circumstances, possibility of presence of semen in his clothes generally be expected unless the clothes were washed or active steps were taken to cause the disappearance of evidence of sexual violenc. But, in this case, appellant did not wash his clothes. 23. In Ex.P.5 Extra-judicial confession, it is mentioned that the appellant had attempted to sodomise the boy and the boy avoided him. The sexual desire in the appellant arose. When the boy shouted at him, the appellant gagged him, pinned him down on the ground, removed his pant, inserted his penis into his anus. 24. On 3.9.2006, PW.10 Dr.Velmurugan conducted autopsy on the dead body of the boy. In Ex.P.11, Post-mortem certificate, PW.10 mentioned that "the anus found relaxed". PW.11 Dr. Rajesh examined the appellant and mentioned that the appellant's penis length is 9 c.m., circumference is 9 c.m. He is 35 years old. (Ex.P.13 Certificate). The boy was only 13 years old. PW.10 did not see any bloodstains around the boy's anal area, no injury or rupture in the thigh area, buttocks adjacent to the anal area. 25. PW-10's evidence also suggests that if forcible carnal intercourse was attempted, there would be rupture of the anal entry point but when he examined the boy, he did not find any injury in the anal area. When one dies there will be discharge of gas through all the openings in the body such as nostrils and anal. In such circumstances, the exit entry of the anal canal used to get relaxed. It is due to the discharge of gas from inside the dead body through the anal orifice. In his cross-examination, PW.10 confirms that the anal having been found relaxed may be due to various reasons. PW.10 did not say positively that it is because of anal intercourse attempted or completed on the boy. 26. In Ex.P.5 Extra Judicial confession, it is mentioned that when the boy started shouting, the appellant pressed the boy's neck, pushed his head on the wall, pushed him down, kicked on his neck and abdomen repeatedly. So, by these over acts, there should have been fracture in skull, internal and external rupture, internal injury in the abdomen. 27. PW.10 found no injury on the head, area just inside the abdomen in the dead body. Thus, there is no medical evidence as to the alleged commission of unnatural offence on the boy and killing him thereafter as stated in Ex.P.5 Extra-Judicial confession. 28. The next incriminating circumstance relied on by the prosecution is extra-judicial confession of the appellant. It is stated that on 16.9.2006, at about 9.30 a.m., before PW.7 Chandra, VAO, Painkulam, appellant surrendered and requested him to save him and gave confession admitting his guilt and that was attested to by PW.8 George and Vijayakumar, Village Assistants. 29. Nowhere in his Indian Evidence Act, 1872, Sir James Fitz James Stephen employed the phraseology "extra-judicial confession". However, the phrase, "confession", is employed in Sections 25 to 29 of the Act. Section 17 of the Act defines, "Admission". Confession is also a form of admission. It may be either culpatory or non-culpatory. No amount of confession made to police is admissible except to the extent provided in Section 27 of the Evidence Act, namely, so much of information distinctly relates to the discovery of a fact. Admission of guilty, in other words, confession by the accused is best form of evidence. The concept of extra-judicial confession emanated from Section 24 of the Act. As to its reliability, there are certain parameters or conditions precedent. 30. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was observed as under :- "An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." 31. In S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233, popularly known as Aladi Aruna murder case, on the aspect of extra-judicial confession, our Hon'ble Apex Court observed as under :- " The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia has held that an extra- judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P and State of Maharashtra v. Kondiba Tukaram Shirke". 32. In Sk. Yusuf v. State of W.B.,(2011) 11 SCC 754, at page 762, on the aspect of extra-judicial confession, the Honourable Supreme Court has observed as under :- "The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See State of Rajasthan v. Raja Ram and Kulvinder Singh v. State of Haryana.)." 33. Keeping the above guidance in our mind, now we shall approach the Extra-judicial confession pressed into service in this case. 34. In Ex.P.5, appellant gave his full life history, details of his children, his mother, his wife, his dispute with her, their living away from him, his job abroad, his construction of a new house in Vannan Vilai Veedu, how he developed acquaintance with the boy Legies, the boy's family details, his carnal activity towards the boy, the buggery committed on the boy, his murdering of him, stealthily disposing of his dead body and his appeal to VAO to save him. In his evidence, PW.7 Chandra VAO reiterated the above minute details. 35. The appellant belongs to Vannan Vilai in Puthukkadai. It comes under the jurisdiction of VAO, Arudesam Village. PW.7 is the VAO of Painkulam Village. Vannan Vilai does not belong to his jurisdiction. On 16.9.2006, he is stated to have held additional charge of Arudesam village. At the village level, the post of VAO is very important, as he has to discharge and attend to multifarious functions. So, VAO of one area cannot simply come and occupy the chair of another VAO. No written proof from a superior officer, such as Tahsildar, placing PW.7 in additional charge of VAO, Arudesam village has been produced. 36. Till 16.09.2006, PW-7 is an utter stranger to the appellant. Appellant had no prior acquaintance with him. Nothing has been produced or explained as to the appellant reposing confidence in such a stranger/ PW.7 to reveal everything to him. Ex.P-5 contains photographic details of the whole life history and all the matters pertaining to the prosecution case. According to prosecution, then the appellant was in distress. It is unlikely that a person placed in such a sorrowful situation will choose an utter stranger to recount from A to Z concerning commission of sodomy and murder. In the circumstances, it looks very odd. 37. In Jaspal Singh v. State of Punjab, (1997) 1 SCC 510, at page 513, the Hon'ble Apex court held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra-judicial confession. 38. In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555, it was observed as under : " But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him.' 39. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, the Hon'ble Apex court held as under : " The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the appellant. PW.9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross- examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW.9 and confide to him as to what he had done.' 40. In Sunny Kapoor v. State (UT of Chandigarh), (2006) 10 SCC 182, it was observed as under : "It is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.' 41. In the case before us, there is absolutely no material to show why appellant had reposed confidence in PW.7, to give extra-judicial confession. The prosecution has also miserably failed to produce any material to show that the accused was having close acquaintance with PW.7. 42. To corroborate the evidence of PW.7., PW.8 George Village Administrative Assistant, Ezhudesam Village has been examined. PW.8 and Vijayakumar have attested Ex.P.5 Extra-judicial confession. They were not employed either in Painkulam village or in Arudesam village. He was employed in Ezhudesam village. Between Ezhudesam and Painkulam, the distance is about 4 kms. On that day, PW.8 and Vijayakumar were asked to be present in Ezhudesam village in connection with distribution of free TVs. However, PW8 and Vijayakumar were brought to Painkulam VAO's office through a person. Arudesam itself has separate VAO. It has Village Assistants also. Why PW.8 and Vijayakumar should come all the way from Ezhudesam village to Painkulam to attest Ex.P.5 Extra-judicial confession, has not been explained. The Extra-judicial confession is stage managed, manufactured to inculpate the appellant. It is not genuine. It is not voluntary. It is highly unsafe to act upon. It deserves to be excluded from our consideration. 43. The last circumstance relied on by the prosecution is Section 27 Evidence Act recovery of MOs 4 to 8. 44. On 16.09.2006, at about 10.30 a.m, at the Puthukkadai Police station, PW.7 Chandra, VAO handed over the appellant with Ex.P.5 Extra-judicial confession to Inspector Subramony. He arrested him. Recorded his confession, Ex.P.6, that if he is taken to certain places he will produce his lungi, pant, woolen blanket and used empty tender coconuts. It was attested to by PW.8 and Vijayakumar. In pursuance of that MO.4 ash colour pant has been seized under Ex.P7 from Ponnappan's land in Vannan Vilai, from appellant's house, MO.5 empty tender coconuts, MO.6 hair pieces, MO.7 woolen blanket and MO.8 lungi were recovered under Ex.P.9 Mahazar, in the presence of PW.8 and Vijayakumar. 45. MO.8 lungi is stated to have been worn by the appellant while committing anal intercourse with the boy. There was no presence of semen in the lungi. MO.7 woolen blanket is stated to have been used by the appellant to conceal the boy's dead body. There was no blood in it. (Ex.P.16 Scientific Report). 46. On 3.9.2006, on dissection of the dead body, PW.10 Dr.Velmurugan found partially digested identifiable food particles which included tender coconut (Ex.P.11 post-mortem certificate). To correlate it, on 16.9.2006, in Ex.P.5 Extra-judicial confession it is stated that around 1 p.m., appellant gave him tender coconuts. To strengthen it, empty tender coconut has been mentioned in Ex.P.6 confession and recovery of the same from the front side of appellant's house under Ex.P.8 Mahazar in the presence of PW.8 George and Vijayakumar, Village Assistant also has been mentioned. 47. Above all, recovery of MOs. 4 to 8 is immediately after Ex.P.5 extra- judicial confession. When Ex.P.5 itself is tainted, this Section 27 Evidence Act recovery must also go. This circumstance also goes away. 48. Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel. 51. It is appropriate here to note the following observations of Hon'ble Supreme Court made in, Rathinam v. State of T.N., (2011) 11 SCC 140, at page 145 : "We must, however, understand that a particularly foul crime imposes a greater caution on the court which must resist the tendency to look beyond the file, ?. It has been emphasised repeatedly by this Court that a dispassionate assessment of the evidence must be made and that the Court must not be swayed by the horror of the crime or the character of the accused and that the judgment must not be clouded by the facts of the case. In Kashmira Singh v. State of M.P. it was observed as under: (AIR p.160, para 2) "2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law." 24. Likewise in Ashish Batham v. State of M.P., it was observed thus: (SCC p. 327, para 8) "8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 52. No doubt, very serious charges have been made as against the appellant. We are very serious of they being proved by valid and legal evidence. Suspicion and surmises cannot be substituted for the same. None of the circumstances projected by prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken. There is no connecting link. They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant. 53. In view of the foregoings, the findings recorded by the learned Sessions Judge, Kanyakumari Sessions Divisions at Nagercoil cannot be sustained. Appellant is not guilty of the charges framed under section 377 and 302 IPC. He is entitled to be acquitted. 54. In the result, the Criminal Appeal is allowed. The conviction recorded and the sentences awarded to the appellant in S.C. No. 156 of 2007 on 24.06.2010 by the Sessions Judge, Kanyakumari Sessions Division at Nagercoil are set aside. The appellant shall be released immediately, if he is no longer required for any other case/ proceedings/ order. Fine amount, already paid shall be refunded to the appellant. asvm/avr To 1. The Sessions Judge, Kanyakumari District at Nagercoil. 2. The District Collector, Kanyakumari District at Nagercoil. 3. The Superintendent, Central Prison, Madurai. 4. Inspector of Police, Puthukadai Police Station, Puthukadai, Kanyakumari District.

Limitation Act, 1963-Articles 64 & 65 of the Schedule-Indian Limitation Act, 1908-Articles 142 & 143 of the Schedule-Purchase of suit property by plaintiffs by registered sale deeds without knowledge of earlier purchase of the same by defendants-Suit for possession claiming title by adverse possession was decreed by trial court-High Court reversing the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession-Correctness of-Held, on facts and evidence, positive intention to dispossess the suit property essential to claim adverse possession was not proved by plaintiffs and hence, suit for possession dismissed. Appellant-plaintiffs purchased suit property by two registered sale deeds subsequent to the purchase of the same by respondents-defendants. A suit for possession filed by the appellants claiming title on the basis of adverse possession was decreed by the trial court. The High Court, in appeal, reversed the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession. In appeal to this Court, the appellants contended that the acknowledgment of the owner's title was not sine qua non for claiming title by adverse possession.

Dismissing the appeal, the Court HELD: 1.1. Adverse possession is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession . It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostiles. [Para 5] [496-D, E] Downing v. Bird, [100] So. 2d 57 (Fla. 1958); Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, [207 N.Y. 240, 100 N.E. 742 (1913) and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929), referred to. 1.2. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which, the right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. [Para 6] [496-F, G; 497-A, B] American Jurisprudence Vol. 3, referred to. Fairweather v. St. Marylebone Property Co., (1962) 2 WLR 1020; [1962] 2 All ER 299; Taylor v. Twinberries, [1930] 2 KB 17 and Chung Ping Kwan & Ors. v. Lam Island Development Company Ltd. (Hong Kong), (1997) AC 38, referred to. 1.3. To assess a claim of adverse possession, two-pronged enquiry is required. Firstly, application of limitation provision thereby jurisprudentially "Willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. Secondly, specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. [Para 9] [498-D, E, F] 1.4 The aspect of positive intention is weakened by the two sale deeds. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one way. Firstly, due compliance on this count attracts limitation act and secondly, it also assists the court to unearth as the intention to dispossess. [Para 13] [499-D, E] JA Pye (Oxford) Ltd. v. United Kingdom, [2005] 49 ERG 90; [2005] ECHR 921, referred to. 1.5. Intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. If the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. [Para 15] [499-G; 500-A] Thakur Kishan Singh (dead) v. Arvind Kumar, [1994] 6 SCC 591, referred to. Lambeth London Borough Council v. Blackburn, [2001] 82 P & CR 494 and The Powell v. Macfarlane, [1977] 39 P & CR 452, referred to. 1.6. There must be intention to dispossess. It needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of the adverse possessor. A peaceful, open and continuous possession is engraved in the maxim nec vi, nec clam, nec precario i.e. not by force, nor stealth, nor the licence of the owner. [Paras 20, 22 and 23] [501-F, G; 502-A, B-E; 504-C] Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Karnataka Board of Wakf v. Government of India & Ors., [2004] 10 SCC 779; Narne Rama Murthy v. Ravula Somasundaram & Ors., [2005] 6 SCC 614; S. M. Karim v. Mst. Bibi Sakini, AIR (1964) SC 1254; P. Periasami v. Periathambi, [1995] 6 SCC 253; Mohan Lal v. Mirza Abdul Gaffar, [1996] 1 SCC 639; M. Durai v. Madhu & Ors., (2007) 2 SCALE 309; Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Mohammadbhai Kasambhai Sheikh & Ors. v. Abdulla Kasambhai Sheikh, [2004] 13 SCC 385; T. Anjanappa & Ors. v. Somalingappa & Anr., [2006] 7 SCC 570; Des Raj & Ors. v. Bhagat Ram (Dead) by Lrs. & Ors., (2007) 3 SCALE 371 and Govindammal v. R. Perumal Chettiar & Ors., JT [2006] 10 SC 121 : [2006] 11 SCC 600, referred to. Secy. of State v. Debendra Lal Khan, AIR (1934) PC 23 and State of West Bengal v. The Dalhousie Institute Society, AIR (1970) SC 1978, distinguished. R. v. Oxfordshire County Council & Ors., Ex Parte Sunningwell Parish Council, [1999] 3 ALL ER 385; [1999] 3 WLR 160; Beresford, R (on the application of) v. City of Sunderland, (2003) 3 WLR 1306; [2004] 1 All ER 160; Beaulane Properties Ltd. v. Palmer, (2005) 3 WLR 554 : (2005) EWHC 817 (Ch); JA Pye (Oxford) Ltd. v. United Kingdom, (2005) EHCR 921 (2005) 49 ERG 90 [2005] ECHR 921; Beyeler v. Italy [GC], no. 33202/96 [108-14 ECHR 2000-I], referred to. Declaration of the Rights of Man and of the Citizen, (1789) and Universal of Human Rights, (1948) referred to. 1.7. Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property. [Para 58] [513-A, B] P. Krishnamoorthy, Romy Chacko, Girjesh Pandey and Rajiv Mehta for the Appellants. K.R. Sasiprabhu, Arvind Varma, Swati Sinha and Jaysree Singh (for M/S Fox Mandal & Co.) for the Respondents. 2007 AIR 1753, 2007(5 )SCR491 , 2007(6 )SCC59 , 2007(6 )SCALE95 , 2007(6 )JT86 CASE NO.: Appeal (civil) 7062 of 2000 PETITIONER: P.T. Munichikkanna Reddy & Ors RESPONDENT: Revamma and Ors DATE OF JUDGMENT: 24/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : BACKGROUND FACTS One Thippaiah was the owner of 5 acre 23 guntas of land having been recorded in Survey No. 153/1 of Chikkabanavara Village. Nanjapa, adoptive father of Respondent No. 1 purchased a portion thereof measuring 1 acre 21 guntas on 11.09.1933. By reason of two different sale deeds, dated 11.04.1934 and 5.07.1936, the appellants herein purchased 2 acre 15 guntas and 3 acre 8 guntas of land respectively, out of the said plot. Despite the fact that Nanjapa purchased a portion of the said plot, the appellants allegedly took over possession of the entire 5 acre 23 guntas of land after the aforementioned purchases. However, when allegedly their possession was sought to be disturbed by the respondent in the year 1988, they filed a suit in the court of Additional City Civil Judge, Bangalore which was marked as O.S. No. 287 of 1989. In the said suit, they clamed title on the basis of adverse possession stating: " The plaintiffs submit that in any event the plaintiffs have perfected their title by adverse possession as the plaintiffs have been in open, continuous uninterrupted and hostile possession of the plaint schedule land, adversely to the interest of any other person including the defendant for the past over fifty years exercising absolute rights of ownership in respect of the plaint schedule land " Defendants Respondents in their written statement denied and disputed the aforementioned assertion of the plaintiffs and pleaded their own right, title and interest as also possession in or over the said 1 acre 21 guntas of land. The learned Trial Judge decreed the suit inter alia holding that the plaintiffs appellants have acquired title by adverse possession as they have been in possession of the lands in question for a period of more than 50 years. On an appeal having been preferred there against by the respondents before the High Court, the said judgment of the Trial Court was reversed holding: (i) " The important averments of adverse possession are two fold. One is to recognize the title of the person against whom adverse possession is claimed. Another is to enjoy the property adverse to the title holder's interest after making him known that such enjoyment is against his own interest. These two averments are basically absent in this case both in the pleadings as well as in the evidence " (ii) "The finding of the Court below that the possession of the plaintiffs' become adverse to the defendants between 1934-1936 is again an error apparent on the face of the record. As it is now clarified before me by the learned counsel for the appellants that the plaintiffs' claim in respect of the other land of the defendants is based on the subsequent sale deed dated 5.7.1936. It is settled law that mere possession even if it is true for any number of years will not cloth the person in enjoyment with the title by adverse possession. As indicated supra, the important ingredients of adverse possession should have been satisfied." SUBMISSIONS Mr. P. Krishnamoorthy, learned senior counsel appearing on behalf of the appellants, submitted that the High Court committed a manifest error in arriving at the aforementioned conclusion as it failed to take into consideration the principle that acknowledgement of the owner's title was not sine qua non for claiming title by prescription. Reliance in this behalf has been placed on Secy. of State v. Debendra Lal Khan [AIR 1934 PC 23] and State of West Bengal v. The Dalhousie Institute Society [AIR 1970 SC 1798]. The learned counsel appearing on behalf of the respondents, on the other hand, supported the impugned judgment. CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessoror on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).] Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. To understand the true nature of adverse possession, Fairweather v St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: "In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Count in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is " merely negative " and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple. If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's' term or his rights against or has obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate "commensurate with" the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which axe no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed." Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this regard. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. It is interesting to see the development of adverse possession law in the backdrop of the status of Right to Property in the 21st Century. The aspect of stronger Property Rights Regime in general, coupled with efficient legal regimes furthering the Rule of Law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably affected the developments in this regard. . NEW CONSIDERATION IN ADVERSE POSSESSION LAW In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference: "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol." This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case.. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`-vis intention to possess. This distinction can be marked very distinctively in the present circumstances. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. The High Court observed: "It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession." In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse." The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to: "I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention." On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 472 is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." . If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context held: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)" A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: " Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: ( a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and ( e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession " It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner. In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], this Court held: "However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter." The test is, as has been held in the case of R. v. Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER 385; [1999] 3 WLR 160: Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a person rightfully entitled would have used it. . ." The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740, 773, from acquiescence. The case concerned interpretation of section 22(1) of the Commons Registration Act 1965. Section 22(1) defined "town or village green" as including " land on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years." It was observed that the inhabitants' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The court observed: "the words 'as of right' import the absence of any of the three characteristics of compulsion, secrecy or licence 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements." Later in the case of Beresford, R (on the application of) v. City of Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred to. Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor stealth, nor the license of the owner" has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession. In Karnataka Wakf Board (Supra), the law was stated, thus: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi ( 1993 ) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." 2. Inquiry into the particulars of Adverse Possession Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." Also mention as to the real owner of the property must be specifically made in an adverse possession claim. In Karnataka Wakf Board (Supra), it is stated: "Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P Periasami v. P Periathambi ( 1995 ) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar ( 1996 ) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."" 3. New Paradigm to Limitation Act The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254] in the following terms: " Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found " [See also M. Durai v. Madhu and Others 2007 (2) SCALE 309] The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto and Others [(2005) 8 SCC 330] stating: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)" In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh [(2004) 13 SCC 385], this Court held: " But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiffs claim " The question has been considered at some length recently in T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined : "The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable " [See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors., 2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006 (10) SC 121 : (2006) 11 SCC 600] CONTENTIONS OF PARTIES The decision of the Judicial Committee in Debendra Lal Khan (supra), whereupon reliance has been placed by Mr. Krishnamoorthy, does not militate against the aforementioned propositions of law. The question which arose for consideration therein was as to whether the plaintiff had acquired right or title to the fisheries by adverse possession in the portion of river Cossye. In the aforementioned situation, it was held that the Limitation Act is indulgent to the Crown in one respect only, namely, in requiring a much longer period of adverse possession than in the case of a subject; otherwise there is no discrimination between the Crown and the subject as regards the requisites of adverse possession. The said decision is not of much assistance in this case. In The Dalhousie Institute Society (supra), this Court found as of fact that the respondents were in open, continuous and uninterrupted possession and enjoyment of site for over 60 years. It was in that situation, the title of the defendant, in that behalf, was accepted. RIGHT TO PROPERTY AS HUMAN RIGHT There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17 : "since the right to property is inviolable and sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid". Moreover, Universal Declaration of Human Rights, 1948 under section 17(i) and 17(ii) also recognizes right to property : "17 (i) Everyone has the right to own property alone as well as in association with others. (ii) No-one shall be arbitrarily deprived of his property." Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgement of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR 921 [2005] 49 ERG 90, [2005] ECHR 921], The court herein tried to read the Human Rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of J.A. Pye (Oxford) Ltd v. the United Kingdom [2005] ECHR 921, which concerned the loss of ownership of land by virtue of adverse possession. In the instant case the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. In essence, from September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The applicant companies responded to the motion and importantly also issued further proceedings seeking possession of the disputed land. The Grahams challenged the applicant companies' claims under the Limitation Act 1980 ("the 1980 Act") which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the 12-year period, the registered proprietor was deemed to hold the land in trust for the squatter. It is important to quote here the judgment pronounced in favour of the Grahams ([2000]Ch 676). The court held in favour of the Grahams but went on to observe the irony in law of adverse possession. According to the court, law which provides to oust an owner on the basis of inaction of 12 years is "illogical and disproportionate". The effect of such law would "seem draconian to the owner" and "a windfall for the squatter". The fact that just because "the owner had taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever" would be disproportionate. The applicant companies appealed and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court. In J A Pye (Oxford) Ltd & Ors v Graham & Anor [2002] 3 All ER 865 House of Lords observed that the Grahams had possession of the land in the ordinary sense of the word, and therefore the applicant companies had been dispossessed of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime. It will be pertinent to note in this regard Lord Bingham (agreeing with Lord Browne-Wilkinson) in the course of his judgment: "[The Grahams] sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye's inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) 'arrive at with no enthusiasm'." Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), which reads as under: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." The European Council of Human Rights importantly laid down three pronged test to judge the interference of government with the right of "peaceful enjoyment of property". While referring to Beyeler v. Italy [GC], no. 33202/96, '' 108-14, ECHR 2000-I, it was held that the "interference" should comply with the principle of lawfulness pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realized. In fine the court observed: "The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol No. 1." The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of Adverse Possession and its interface with the right to peaceful enjoyment in all its complexity. Therefore it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights. THE PRESENT CASE It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondent's transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellant's possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. . Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us heretobefore. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.

Dying declaration can be accepted only when it is free from all infirmities, embellishment and tutoring/appeal allowed as the same is missing.

HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.53 AFR Criminal Appeal No.1689 of 1981 Asha Ram & another..........................Appellants Versus State of U.P. .................................Respondents. Hon'ble Vinod Prasad, J. Two appellants, father and son, Asha Ram and Suresh, have challenged their conviction under section 304 IPC with implanted sentence of five years, recorded by Session's Judge, Mainpuri in two connected S.T.s, No.129/1980, State Vs. Asha Ram and S.T. No.130 of 1980, State Vs. Suresh, vide impugned judgement and order dated 28.7.1981, in the instant appeal. Stated briefly, unfolded background facts were that Jauhari and Mooley were real sibling brothers. Appellant Asha Ram is the son of Jauhari whereas appellant Suresh is his grandson, being son of Asha Ram. Siyaram deceased was the son of Mooley and so he was the cousin of appellant Asha Ram. P.W.1 Smt. Ram Poti is the wife of deceased Siyaram and Prem Chand is their son. There was one co-villager Pahunchi Lal, whose son and daughter-in-law were Nathu and Molshri. Mooley, Jauhari and Pahunchi Lal had a joint agricultural holding, half of it belonged to Pahunchi Lal whereas rest half were shared by Mooley and Jauhari. It transpires that after the death of Nathu, Molshri married Asha Ram. Pahunchi Lal had taken Prem Chand in adoption. Being collaterals and having lust for property, there were immovable property litigations going on between appellants and deceased in the aforesaid jumbled relationship. It is alleged that because of pending court cases and harbingered animosity, on 13.12.1978 at 12midafternoon,Siyaram was belaboured by the appellants with wooden cot slats, when he was erecting a ridge(mend). Many villagers intervened in the assault and saved Siyaram. Brijendra Singh, P.W.2, himself, scribed a written report, Ext. Ka-1, about the incident, as was witnessed by him, and then read it out to the injured Siyaram, who approved of it and affixed his thumb impression on it, and thereafter P.W.2 carried it along with Siyaram to PS Barnahal and lodged it. Constable Clerk Abhai Raj P.W.4, on the basis of Exhibit Ka-1, registered non-cognizable report, Exhibit Ka-2 and prepared relevant GD entry Exhibit Ka-3, noting therein injuries sustained by the injured. Preparing request letter for medical examination, injured was sent for medical treatment by P.W.4. Dr. M.L. Agrawal, P.W.6, medically examined the injured on 14.12.1978 at 1.30 pm, in Civil Hospital, Shikohabad, who was brought to him by his nephew Navin Chand and had admitted him in the hospital. At that time injured was conscious but was not speaking. Following facts were noted by the doctor in the medical examination report of the injured vide Exhibit Ka-9:- "Exhibit Ka-9 Examined Siya Ram aged about 40 yrs. S/0 Mool Chand R/o Solipur, P.S. Barnahal, District Mainpuri brought by his nephew Navin Chandra and found the following injuries on his body. (Time 1.30 P.M. 14.12.78). M.I. (1) Three black moles near each other on 1" area of middle of right collar bone. (2) Traumatic swelling diffuse on right temple and right and quadrant of head - right side. (3) Contusion with abrasion 3" X 1" red with soft brown seal on abrasion on right shoulder blade. (4) Bleeding from right ear - Clotted blood seen. Opinion :- Both injuries have been inflicted by hard blunt weapon. Duration about one day old. Inj. No.1 is under observation head injury and bleeding from ear. Inj. No.2 is simple." According to doctor's testimonies, condition of the injured was improving from 14th till 17th, but all of a sudden, in the evening of 17th at 4.00 p.m. it started deteriorating because of cerebral irritation. Sensing his condition to be critical and serious, next day (18.12.1978), doctor P.W.6 sent a memo at 1.45 p.m. for recording of his dying declaration, which was recorded by Tahsildar Magistrate same day at 2 p.m. vide Ext. Ka 17. Doctor, P.W.6, had appended a certificate, Ext. Ka 10, regarding fit condition of the injured to give his declaration. In the said D/D injured had stated that he was assaulted by the appellants by slats on Wednesday in morning because of dispute with Asha Ram for opening a gate towards his agricultural field as he wanted to create his courtyard (Chaupal) there. Bed-head-ticket about injured hospitalisation and treatment is Exhibit Ka-11.On 19.12.1978, injured Siyaram started losing his consciousness and remained in same condition on the next day, 20.12.78, as well, but at 4.30p.m. that day, his relatives desired to carry him to Firozabad, and therefore, at their request, injured was relieved from the hospital same time and was taken to Firozabad by Brijendra Singh, P.W.2 and was got admitted in S.N.M. Hospital, Firozabad but following morning, 21.12.78 at 9.47 a.m., he lost the battle of his life and expired. Inquest on his cadaver was performed on 21.12.78 by S.I. Ramesh Chandra Yadav, of PS North, Firozabad, P.W.8, who had prepared inquest report and other relevant papers vide Exhibit Ka-14 to Ka-16 and subsequent thereto had dispatched it for autopsy purposes. Deceased body was received on 2.12.1978 at 11 a.m. and papers regarding autopsy report were received the same day at 3.30 p.m. and the body was identified to the doctor by Constable Amar Singh of P.S. North Firozabad. Autopsy on deceased corpse was performed on 21.12.78 by Dr. Rajendra Kumar, Medical Officer S.N.M. Hospital, Firozabad, PW7, at 4.10 p.m., who had prepared the post-mortem examination report Exhibit Ka-12, perusal of which reveals following facts:- Deceased was aged about 40 years and half day had elapsed since his death. He had an average built muscular body. There was a fracture of 2" on right side temporal bone, right side membranes were full of blood clots and in an area of 2"x 2", membranes were congested. His cerebrum was congested. Digested food was present in his stomach and small intestine whereas large intestine contained feacal matter. Following ante-mortem injuries were noted by the doctor:- Ante Mortem Injuries (1) Contusion (Reddish colour) 6" x 2", on Rt. upper arm outer aspect, upper 1/2 portion. (2) Bones and joins : NAD (3) External organs of Generations : NAD (4) Addl. remarks : NIL In the estimation of the doctor death was as a result of shock because of fracture of skull bone. Intimation and papers regarding demise of the deceased was received to P.W.4, at PS Barnahal, on 10.1.1979 and on that basis and on the strength of post-mortem examination report and other relevant document, that he(PW4) converted the crime under Section 304 IPC, vide GD Exhibit Ka-4. M.K.S. Sengar, S.O. police station Barnahal, PW 5, commenced investigation into the crime on 10.1.79 and came to the deceased village Saifpur where he penned down investigatory statements of deceased widow Ram Poti (P.W.1), and of his brother Brijendra Singh (PW2). Conducting spot inspection, I.O. prepared site plan Exhibit Ka-5. On following two days PW5 recorded statements of inquest witnesses. Witnesses Nekse, Navin Chand and Rakshpal were interrogated by him on 12.2.79 and their statements were recorded. Appellant Asha Ram surrendered in court on 28.2.79. Concluding investigation I.O. charge-sheeted him on 2.3.79 vide Exhibit Ka-7. Later on, accused Suresh also surrendered in court, on 22.3.79, and against him charge-sheet, Exhibit Ka-8, was filed on 24.3.79. Charge-sheeting of the accused resulted in their summoning and, after due inquiry, Additional Munsif Magistrate, finding their case triable by Session's court, committed to it for trial on 18.3.80, where two separate Session's Trial No.129/1980, State Vs. Asha Ram and S.T. No.130 of 1980, State Vs. Suresh were registered. Session's Judge, Mainpuri, charged both the accused with offence under sections 304/34 IPC on 28.10.1980, which charge were denied by both of them, who claimed to be tried and therefore, in an endeavour to establish their guilt, their prosecution commenced. During trial, prosecution examined, in all, nine witnesses, out of whom, widow Ram Poti P.W.1, scribe of the FIR Brijendra Singh P.W.2 and Nekse P.W.3 were fact witnesses. Formal witnesses examined were Constable Clerk Abhai Raj P.W.4, I.O. M.K.S. Sengar P.W.5, Medical Examination Doctor M.L. Agrawal P.W.6, autopsy doctor Rajendra Kumar P.W.7, S.I. Ramesh Chandra Yadav, who had conducted inquest P.W.8 and Dev Nandan Singh, Tehsildar, who had recorded dying declaration P.W.9. In their statements under Section 313 Cr.P.C. accused persons denied incriminating circumstances appearing against them in the prosecution evidences and pleaded defence of their false implication. Vide impugned judgement of conviction and sentence, trial Judge believed the prosecution case solely on the strength of the dying declaration Ext. Ka-17 recorded by Tahsildar Magistrate, Dev Nandan Singh P.W.9 and therefore, convicted both the appellants for the framed charge and sentenced them, as mentioned above in the opening paragraph of this judgement, and hence challenge, in the instant appeal, is to the aforesaid conviction and sentence, by the father and the son. I have heard Sri A.B.L. Gaur, learned senior counsel, Sri J.S. Sengar and Sri Dharmendra Singhal, learned advocate for the appellants and Sri Raghraj Mishra learned AGA for respondent State and have perused the entire material on record including trial court record and evidences of witnesses. Castigating and criticizing impugned judgement of conviction and sentence, appellants counsel contends that the trial judge disbelieved testimonies of all the fact witnesses P.W. 1 to P.W. 3 and it also disbelieved written report Exhibit Ka-1 as a piece of dying declaration and has convicted the appellants solely on the basis of dying declaration recorded by Tehsildar, Exhibit Ka-17. Commenting upon Exhibit Ka-17 it was submitted that the same is not a reliable piece of evidence and, therefore, conviction of the appellants is unsustainable. They further contend that once the trial Judge had disbelieved all the fact witnesses, there was no occasion for it to rely upon an uncorroborated document recorded by Tehsildar after lapse of many days during which deceased was always in the company of his relatives including PW2, and therefore chances of tutoring and embellishment being cropped up in his statement were very plausible and eminent, especially when the written report was already lodged implicating the appellants. Incident is of 13.12.78 and the D/D was taken down on 18.12.78 and for four and half days, during which deceased had remained conscious throughout, he had not informed about the incident to anybody. At the earliest point of time deceased had not informed the doctor about the complicity of the appellants and had kept mum, as was stated by the doctor PW6 and hence no reliance can be placed on such belated statement by the deceased. FIR was lodged on 13.12.78 at 4.30 p.m. and medical examination of the deceased was conducted on the following day 14.12.78 at 1.30 p.m. and during this period deceased was with his family members including PW2. Thus at all times he could have been tutored. No offence u/s 304 IPC is disclosed against the appellants and therefore, it was submitted that the appeal of the appellants be allowed and they be acquitted of the charge levelled against them. Learned AGA argued to the contrary and submitted that the dying declaration unerringly establishes assault by the two appellants on the deceased and, therefore, by itself is sufficient to uphold their conviction and, therefore, instant appeal lacks merit and be dismissed. I have pondered over rival arguments vis a vis evidences available on record and what is culled out from it is that there are some very unsatisfactory and disquieting features of the prosecution case, which creates a doubt in the mind of the Court regarding genuineness of the prosecution allegations. There are some legal flaws as well, which compels me to take a view contrary to what has been taken by the trial judge. Firstly, out of three fact witnesses examined in the trial, two, PW1 Ram Poti and PW2 Brijendra Singh are related, interested, partisan and enimical. The only independent third witness Nekse, PW3, turned hostile and did not support the prosecution case. Although testimonies of PW1 &2 cannot be discarded because of their relationship and interestedness only, but out of them, as an eye witness, there is only evidence of PW1. The other witness PW2 had not deposed that he had seen the actual incident. He disclosed that he was informed about the assault by the injured, when he had reached at the spot, after the incident was already over. Thus evidence of PW2 on that score does not establish prosecution case. His narration that injured had disclosed him names of the two appellants albeit could be treated to be a D/D, because sine qua non pre-requisite for admitting it as such are present, but the difficulty in relying upon such a claim by PW2 is it's unreliability. Had such a fact been correct, the same would have find place in Ext. Ka 1, which is the written statement of PW2 himself. Contents of Ext. ka 1 indicate that PW2 had projected himself to be an eye witness of the incident. Thus, at the earliest occasion, this important fact was not mentioned by PW2 and hence his claim that injured had informed him about the appellants being his assailants cannot be accepted. Further PW1 widow had deposed that her injured husband had become unconscious immediately after sustaining injuries and till he was carried to Shikohabad hospital he continuously remained unconscious. Such a testimony by PW1 contradicts claim of PW2 regarding disclosure made by the injured to him, directly and substantially and hence deposition of PW2 cannot be relied upon. Further he is enemical as appellant Asha Ram had been a witness against him in a case u/s 323/379 IPC, instituted by Nathu Singh, in which case he was fined. Turning towards the evidence of P.W. 3 Nekse, he had turned hostile and did not support the prosecution case at all. Public prosecutor had cross-examined him at great length and had put all the contradictions and commissions occurring in his 161 Cr.P.C. statement to which all he had denied. Hence, entire prosecution version about actual incident is based only on a single testimony of PW1, coupled with alleged two D/D Ext. Ka 1 & 17. Turning towards evidence of the widow PW1, an analytical appreciation of her depositions reveal that she is not a wholly reliable witness. Her claim that she was present at the incident scene is paradoxical. Albeit, in examination- in-chief, she claimed that she was present at the incident scene since beginning but, when tested in cross examination, she stated that she had rushed there on hearing her husband's shrieks. Thus she had stated self- contradictory versions on which no reliance can be placed. During assault she had not endeavoured at all to rescue her husband nor after the assault tried to comfort him. She remained a silent spectator to the incident and this creates a doubt about her presence at the incident scene at the relevant time. This opinion is countenanced by depositions of PW2, who had testified that when, after the incident, he had reached at the spot, then only injured was lying in an injured condition and none else from his house was present at that moment and after his arrival that PW1 had reached at the spot. Thus PW1 is contradicted by her own relative. From her conduct and, on such contradictory evidences, it is difficult to rely upon the testimonies of PW1 of her being an eye witness of the incident. She is not truthful because she deposed that FIR, Ext. Ka-1, was dictated by her husband to Brijendra Singh, PW2, which fact is false, as is clear from the said document as well as from the testimony of PW2 himself. According to PW2 she had not accompanied her husband to the police station. As claimed by the widow she brought her injured husband back to her house and kept him there without caring for his immediate medical aid, although she claimed that he was unconscious. Trial court also disbelieved her as an untruthful witness vide para 14 of the impugned judgement and I find no reason to differ from it's conclusions on this score. Under somewhat similar conduct and circumstances, apex court has also disbelieved wife's testimonies and had found her to be unreliable in the decision of L/N Mehraj Singh versus State of U.P.:1995 Cr.L.J. 457 wherein it has been observed by the apex court as under:- "13. It appears that it was a blind murder and none of the eye-witnesses were actually present at the scene. The ante timing of the FIR was obviously made to introduce eye witnesses to support the prosecution case. We may demonstrate this by noticing that though PW 3 Smt. Kamlesh the widow of the deceased claimed that she was present with her husband at the time of the occurrence, her conduct was so unnatural that not only she did not try to save her husband by trying to provide a cover but even after her husband fell down and was inflicted repeated injuries with the knife by the appellant Meharaj Singh, she did not even try to go anywhere near her husband and even later on held his head in her lap and try to provide some comfort to him. This becomes obvious from absence of any blood stains on her clothes. She admitted that she had not even received a scratch during the occurrence. In a situation like this, the normal conduct of any wife would be firstly to make an effort to save her husband even by taking the blow on herself and if that is not possible then at least to go so close to his person, at least after the assailants had left that there would be no escape from the blood oozing out of his injuries of the deceased to come on to her clothes." In view of above discussion, there is hardly any scope for this Court to take a contrary view than what has been taken by the trial judge in discarding the testimonies of all three fact witnesses and, therefore, trial judge's opinion in not relying upon all of them, does not suffer from any infirmity. Now adverting to the two D/D, it is noted that Ext. Ka 1 is no statement by the injured/ deceased nor was scribed at his dictation. Thus it cannot be admitted in evidence as such. At the worst, Exhibit Ka-1 can be taken to be a written previous statement of Brijendra Singh, PW2. Categorical statement of P.W. 2, during trial, was that the said document was scribed by him on his own. It was not dictated by the deceased. After P.W. 2 had scribed Exhibit Ka-1 then he read it over to the deceased Siyaram, who certified it to be correct and affixed his thumb impression. In such a view, Exhibit Ka-1 cannot be treated to be a dying declaration of Siyaram, the deceased. Dying declaration is a statement made by a person under the expectation of his death and is verbal or written in his own words as is ordained in section 32 Evidence Act. Written statement by somebody else, who is not under expectation of his death regarding the assault made on a second person is not a dying declaration. Exhibit Ka-1 unerringly, without any ambiguity, indicate that it was a written statement by Brijendra Singh P.W.2 regarding assault made on the deceased Siyaram. It is not the statement of Siyaram himself and, in such a view, could not be taken to be his dying declaration. For clarity of this conclusion, section 32 of the Evidence Act, is reproduced below:- "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1)When it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question........ (2)......................................................................................... Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." Aforesaid section postulates that 'a statement whether written or verbal made by a person, who is dead, ..............". Exhibit Ka-1 is not a statement of the person, who subsequently died. It is only certified by such a person to be correct and hence cannot be treated to be a dying declaration. Exhibit Ka-1, therefore, can only be a written previous statement of P.W. 2, which could have been utilized only for the purposes of contradictions as is provided under section 162 Cr.P.C. read with section 145 of the Evidence Act. Trial Judge also did not place any reliance on it and hence the earliest prosecution version is robbed of it's authenticity and genuineness. This diminishes value of prosecution case to an un-recoupable extent. On this aspect support can be had from apex court decision in Ratan Gond versus State of Bihar:AIR 1959 SC 18, wherein it has been held by the apex court as under:- "7. This brings us to a consideration of the submissions made on behalf of the appellant. We may say at the very outset that we agree with learned counsel for the appellant that the statements of Aghani, who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding, were not admissible in evidence either under S. 32 or S. 33 of the Evidence Act. Section 33 is clearly out of the way because Aghani made no statements in a judicial proceeding or before any person authorised by law to take her evidence. The only relevant clause of S. 32 which may be said to have any bearing is Cl. (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. We are, therefore, of the opinion that the statements do not come within S. 32 (1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of the State, has conceded that S. 32 (1) does not apply to the statements of Aghani." Consequent to the aforesaid discussion, reliability and acceptability of the prosecution story solely rests upon genuineness, truthfulness and authenticity of Ext. Ka 17, recorded D/D by Tahsildar Magistrate, PW9, dated 18.12.78. Trial Judge relied upon only this document to convict and sentence the appellants. I have perused the said dying declaration. Much can be said against acceptance of the said dying declaration as a true and authentic piece of evidence. Firstly, according to P.W.1, deceased had fainted after sustaining injuries, but according to PW2 he was not fainted and inside police station he had accompanied him. Constable Abhai Rai, PW4, deposed that copy of the lodged report was given to PW2 because injured had told him that PW2 is his nephew and hence copy of the report be handed over to him. GD entry about registration of crime does not show that injured was unconscious. All these evidences indicate that injured was not unconscious at the time he had gone to the police station. Why then he did not inform the police at that time regarding involvement of the appellants in the crime.? Prosecution has not led any evidence that on or before 18.12.1979, statement of the deceased could not have been recorded. Medical examination report of the deceased does not indicate that he was unable to speak. Why then he did not inform the doctor about complicity of the appellants? Form the police station he was brought back to his house and he remained there till next day after noon. This period was sufficient for him to be tutored and toe the line of FIR version. Prior to recording of Ext. ka 17 deceased had not uttered any word nor there is any evidence to that effect deposed by any of the witnesses. His only statement is the alleged D/D. Thus Ext. Ka 17 is not the earliest narration by the deceased and chances of it being tutored cannot be ruled out. During five days, prior to recording of the dying declaration, deceased was always in the company of his relatives including P.W.2, who had scribed the FIR on his own and was enimical to the appellants. Dying declaration is an evidence like any other piece of evidence and can be accepted or rejected like other evidence. It should be accepted only when it inspire complete confidence bereft of any uncertainty. Ext. Ka 17, besides being belated statement does not conclusively establishes that the same was voluntary without any tutoring. Doctor PW 6 is unambiguous that PW 2 used to visit the injured off and on and his relatives were constantly present along his side. Prior to 17th condition of the injured/deceased had improved and he had started conversing. At Ext. Ka-17 there is no noting that the thumb impression affixed on it belonged to the injured/deceased. PW 9 has admitted this fact. When PW9 had reached the hospital, relatives of injured were present by the side of his bed. There is no time for finishing recording of this declaration. According to the doctor P.W.6 he had dispatched memo for recording of D/D at 1.45 p.m. and PW9 was at a distance of 1 km. It is difficult to believe that within fifteen minutes PW9 will reach hospital and will start recording of D/D. This witness does not remember whether he had gone to the hospital on foot or by some vehicle. Authenticity and genuineness of this D/D has been challenged in it's entirety and defence suggestion is that it is not the declaration of the injured nor it contains his thumb impression. After recording of it, no certificate from the doctor was obtained that during recording of it injured remained conscious throughout. PW6 had deposed that in cerebral irritation upper and lower limbs and other parts of body starts flinching. It was because of such a symptom that he had sent for the Magistrate to record D/D. In such a view it was incumbent upon PW9 to get a certificate of the doctor after finishing recording of statement of the injured. PW2 was regular visitor of injured and in such a view fabrication of Ext. ka 17 cannot be ruled out. If a dying declaration is suspect and suffers from chances of being tutored and manipulated, no conviction can be based solely on it. On this aspect reliance can be placed on some of the decisions by the Apex court, which are referred to herein below:- In Khushal Rao versus State of Bombay:AIR 1958 SC 22 it has been held by the apex court as under:- "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (a) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case." In State of Assam versus Mafizuddin Ahmad:AIR 1983 SC 274 it has been held by the apex court as under:- "12. In the instant case, the occurrence took place on the 10th of April, 1973. The deceased was alive up to 18th of April, 1973. She did not disclose earlier to anyone she met in the hospital that her husband sprinkled kerosene oil and set her on fire. She met so many people after the occurrence - she met the village people who appeared on the scene just after the occurrence and who took her to hospital. She did not disclose the story to the doctor or the nurse attending on her. There is no evidence of the doctor on the record that she was not in a position to speak or that she had become unconscious between 10th of April and 18th of April. It is only when her uncle met her on the 18th of April that she made an oral dying declaration to him and later to the Magistrate who recorded her statement. This throws doubt on the dying declaration made by Jaygun Bibi and this circumstance weighed with the High Court in discarding the dying declaration of the deceased. The High Court discarded the dying declaration on yet another ground that the name of the husband of the deceased given in the dying declaration was Mohsin Ali not Mafizuddin Ahmed and, therefore, the identity of the lady Jaygun Bibi was itself doubtful. Dr. Ramananda Das, Registrar of the Surgical Unit No. 1 of the Gauhati Medical College Hospital, P. W. 6, in whose presence the statement was recorded, has not stated that the declarant was Jaygun Bibi. He has simply stated that the Magistrate recorded the statement of a patient of his unit who received burn injuries. Further, the Magistrate, Shri A. C. Bhuyan, who recorded the dying declaration of the Jaygun Bibi stated that the daroga and a constable were present nearby when the statement was recorded. Coupled with these is the absence of the thumb impression of the deceased on the declaration. 13. The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration. It is not outside the realm of probability that her statement may have been inspired by her uncle and, therefore, it will not be safe to base the conviction of respondent, on such a dying declaration." In state of U.P. versus Shishupal Singh: AIR 1994 SC 129 it has been held by the apex court as under:- "9. Coming to the vital document namely the dying declaration it does not contain the signature of the deponent namely the deceased. The prosecution has not come forward with any explanation that the deceased was not in a position to put his signature. Added to that neither the time of recording of the statement nor the date is mentioned in the dying declaration. 10. In our opinion the dying declaration is impregnant with a number of suspicious circumstances which create a doubt in the mind of the Court about the genuineness of this document." In State of U.P. versus Raj Bahadur: 1993 CrLJ 86 this court has held as under:- "36. PW 5 is Sri Jai Pal Singh, the then Sub-Divisional Magistrate who recorded the statement of the deceased. In paragraph 2 of his cross-examination, he has admitted that he asked all those persons present to quit from the place where he recorded the dying-declaration. It means that the declarant was surrounded by a host of his well-wishers, friends and relations right till before the arrival of the learned Executive Magistrate. Therefore, it is quite likely that these persons availed every possible opportunity to tutor and brain-wash the deceased. In these circumstances, it has become difficult to hold that the statement Exhibit Ka-4 is an untutored version given by the deceased at the time the statement was recorded in anticipation of his death. This is another reason why we feel difficulty in placing reliance upon the dying-declaration." Further there are other very unconvincing factors of the prosecution case. It is in PW1 deposition that after lodging of the report she had brought back her husband to her house and following day, he was taken to the hospital. If he was unconscious why he was not made available first aid immediately is a big question. The earliest medical aid to the deceased was therefore denied. If the deceased had sustained grievous injuries and had fainted after assault, it was natural that he should have been got admitted in the hospital instead of keeping him back at home. Next it is noted that, although Constable PW4 stated that he had given letter for medical examination but the doctors testimony indicate that injured was medically examined at the request made by his relatives and not on the letter by the police. There is another reason for not relying upon Ext. Ka-17 and that is that it fetches out a third story altogether. According to the deceased, he was belaboured because the accused persons wanted to grab an open space, which is not the case of the prosecution at all. There is absolutely no mention of any ridge being erected because of which incident occurred. Why this somersault was stated by the deceased is not understandable. Such a version contradicts prosecution story sketched in Ext. Ka- 1 and testified during trial by the fact witnesses. This does not inspire any confidence. It is not the rule of law that dying declaration must be accepted in all circumstances howsoever fanciful and embellished it may be. If a dying declaration suffers from unconvincing narration, only course open for the courts is to reject it outright. This view is also taken for the reason that the accused does not get an opportunity to cross-examine the maker of the dying declaration and hence, it should be accepted only when it is free from all infirmities, embellishments and tutoring. Only when D/D inspires complete reliability that it can be acted upon singularly to hold accused guilty. In accepting D/D, Ext. Ka-17, trial court misdirected itself and analysed it in a pedantic manner without evaluating it from a pragmatic and practical approach. It completely ignored the above pointed out infirmities and hence it's opinion is fallacious and cannot be countenanced. I, therefore, do not concur with it's view. Further no offence under Section 304 IPC is disclosed by the evidences on record. Only a single fatal injury by a non-conventional slats is not indicative of knowledge to commit murder. Force applied, while wielding slats also do not indicate such an intention as injury no.1 was only a traumatic swelling. Hence, it cannot be concluded with certainty that appellants had such an intention. what can be concluded is that appellants shared common intention to cause grievous hurt. Thus their conviction for offence under Section 304 IPC is unsustainable. Wrapping up of the discussion, since I find that the prosecution has not been able to establish the guilt of the appellants, they deserve acquittal. Appeal is allowed. Both the appellants are acquitted of the charge levelled against them. They are on bail, they need not surrender and their surety and bail bonds are hereby discharged. A copy of this judgment be certified to the trial Judge for it's intimation. Dt.4.1.2012 Rk/Arvind/-