To probe the allegations levelled against Mr. Justice K.G. Balakrishnan, ex-Chief Justice of India, under Section 5 of the 1993 Act. The facts narrated in the pleadings of the instant case and the submissions made by the learned counsel appearing on behalf of the petitioner reveal, that a series of allegations have been levelled against the Chairman of the Commission, in the communication addressed by Campaign for Judicial Accountability and Reforms, to the President of India and Prime Minister of India, on 4.4.2011. These allegations ought to have been forwarded to the Supreme Court, for an enquiry into the matter. The same having not been done, a prayer has been made by the petitioner, for the issuance of a writ in the nature of Mandamus, requiring the President of India to make a reference to this Court under Section 5(2) of the 1993 Act, for holding an enquiry against respondent No. 3, i.e., the present Chairman of the Commission. 6. We have given our thoughtful consideration to the solitary prayer made in the instant Writ Petition. It is not possible for us to accept the prayer made at the hands of the petitioner, for the simple reason that the first step contemplated under Section 5(2) of the 1993 Act is the satisfaction of the President of India. It is only upon the satisfaction of the President, that a reference can be made to the Supreme Court for holding an enquiry. This Court had an occasion to deal with a similar controversy based on similar allegations against respondent No. 3 in Manohar Lal Sharma Vs. Union of India [W.P. (C) No. 60 of 2011 decided on 7.5.2012], wherein this Court, while disposing of the Writ Petition, required the petitioner to approach the competent authority under Section 5(2) of the 1993 Act. As noticed above, the satisfaction of the President of India is based on the advice of the Council of Ministers. The pleadings in the Writ Petition do not reveal, whether or not any deliberations have been conducted either by the President of India or by the Council of Ministers in response to the communication dated 4.4.2011 (addressed to the President of India, by the Campaign for Judicial Accountability and Reforms). It is also the submission of the learned counsel for the petitioner, that the petitioner has not been informed about the outcome of the communication dated 4.4.2011. 7. In the peculiar facts noticed hereinabove, we are satisfied, that the instant Writ Petition deserves to be disposed of by requesting the competent authority to take a decision on the communication dated 4.4.2011 (addressed by the Campaign for Judicial Accountability and Reforms, to the President of India). If the allegations, in the aforesaid determination, are found to be unworthy of any further action, the petitioner shall be informed accordingly. Alternatively, the President of India, based on the advice of the Council of Ministers, may proceed with the matter in accordance with the mandate of Section 5(2) of the 1993 Act. 8. Disposed of in the abovesaid terms.

                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                      WRIT PETITION (C) NO. 35 OF 2012


Common Cause                                       …. Petitioner

                                   Versus

Union of India & Ors.                              …. Respondents

                               J U D G M E N T


JAGDISH SINGH KHEHAR, J.

1.    Through the instant Writ Petition filed by Common Cause  invoking  the
jurisdiction of this Court under Article 32 of the  Constitution  of  India,
it is brought out, that there are extensive allegations against the  present
Chairman of the National Human Rights Commission  (hereinafter  referred  to
as the “Commission”), which require to be enquired into.  It  is  submitted,
that under the provisions of  the  Protection  of  Human  Rights  Act,  1993
(hereinafter referred to as the “1993 Act”), the authority  to  initiate  an
enquiry into the matter, is vested with  the  President  of  India.   It  is
accordingly pointed out, that a communication dated 4.4.2011  was  addressed
by Campaign for Judicial Accountability and Reforms,  to  the  President  of
India, requesting her to make a reference to the Supreme Court  for  holding
an enquiry, to probe the  allegations  levelled  against  Mr.  Justice  K.G.
Balakrishnan, ex-Chief Justice of India, under Section 5 of the 1993 Act.
2.    It is pointed out, that even though a period of  more  than  one  year
has lapsed since the aforesaid communication was addressed to the  President
of India and the  Prime  Minister  of  India,  the  petitioner  has  neither
received  a  response  to  the  communication  dated  4.4.2011,  nor  has  a
reference been made by the President of India to  the  Supreme  Court  under
Section 5 of the 1993 Act.
 3.   During the course of  hearing,  learned  counsel  for  the  petitioner
invited our attention to a newspaper  report,  which  had  appeared  in  the
Economic  Times  dated  22.6.2011,  containing  allegations  against   three
relatives of Mr. Justice K.G. Balakrishnan.  It is submitted, that two sons-
in-law and a brother of the present incumbent of the Office of  Chairman  of
the Commission, were blamed for having assets beyond their known sources  of
income.  Reference  was  also  made  to  the  communication  dated  4.4.2011
addressed by the Campaign for Judicial Accountability  and  Reforms  to  the
President of India, where allegations were levelled against the Chairman  of
the Commission under five heads.  Firstly, for owning benami  properties  in
the names of his daughters, sons-in-law and brother ; secondly, for  getting
allotted benami properties from the Chief Minister  of  Tamil  Nadu  in  the
name of his former-aide M. Kannabiran ; thirdly, for approving  evasive  and
false replies to an application under the Right to Information Act filed  by
Shri Subhash Chandra Agarwal, relating to declaration of  assets  by  Judges
of this Court ; fourthly,  resisting  attempts  to  stop  the  elevation  of
Justice P.D. Dinakaran to the Supreme Court of  India,  despite  allegations
of land-grab, encroachment and possessing assets beyond  his  known  sources
of income ; and lastly, suppressing a letter written by a Judge of the  High
Court of Madras, alleging that a former Union Minister (A. Raja)  had  tried
to  interfere  in  his  judicial  functioning.   Based  on   the   aforesaid
allegations, it was sought to be concluded, that Justice K.G.  Balakrishnan,
the present incumbent of the Office of Chairman of the Commission, has  been
guilty of several acts of serious  misbehaviour.   It  was  accordingly  the
claim of the petitioner, that a reference be made for an  enquiry  into  the
aforesaid alleged  acts  of  misbehaviour  at  the  hands  of  Justice  K.G.
Balakrishnan, to the Supreme Court under Section 5 of the 1993 Act.
4.    Section 5 of the 1993 Act is being extracted hereinbelow:-
      “5.   Resignation and removal of Chairperson and Members

           (1)   The Chairperson or any Member may, by  notice  in  writing
                 under his hand addressed to the President of India,  resign
                 his office.

           (2)    Subject  to  the  provisions  of  sub-section  (3),   the
                 Chairperson or any Member shall only be  removed  from  his
                 office by order of the President of India on the ground  of
                 proved misbehaviour or incapacity after the Supreme  Court,
                 on reference being made to it by  the  President,  has,  on
                 inquiry held in accordance with the procedure prescribed in
                 that  behalf  by  the  Supreme  Court,  reported  that  the
                 Chairperson or the Member, as the case may be, ought on any
                 such ground to be removed.

           (3)    Notwithstanding  anything   in   sub-section   (2),   the
                 President,  may,  by  order,   remove   from   office   the
                 Chairperson or any other Member if the Chairperson or  such
                 other Member, as the case may be, -

                 (a)   is adjudged an insolvent; or
                 (b)   engages  during  his  term  of  office  in  any  paid
                       employment out side the duties of his office: or
                 (c)   is unfit to continue in office by reason of infirmity
                       of mind or body; or
                 (d)   is of unsound  mind  and  stands  so  declared  by  a
                       competent court; or
                 (e)   is convicted and sentenced  to  imprisonment  for  an
                       offence  which  in  the  opinion  of  the   President
                       involves moral turpitude.”


A  perusal  of  Section  5(2)  reveals  the  procedure  for  removal  of   a
Chairperson/Member of the Commission.  It is  apparent  from  the  procedure
contemplated under Section 5(2) of the 1993 Act, that  on  being  satisfied,
the President of India shall require an  enquiry  to  be  conducted  by  the
Supreme Court.  It is also apparent  that  the  President  of  India,  while
discharging her duties, is  to  be  guided  by  the  Council  of  Ministers.
Accordingly, in terms of the mandate of Section 5(2) of the 1993 Act,  if  a
decision  is  to  be  taken  to  hold  an  enquiry  against   an   incumbent
Chairperson/Member of the Commission, the President of India  would  require
the advice of the Council of Ministers.  It is only thereafter, if  a  prima
facie case is found to be made out, that the President  of  India  on  being
satisfied, may require the Supreme Court to initiate  an  enquiry  into  the
allegations, under Section 5(2) of the 1993 Act.
5.    The facts narrated in the  pleadings  of  the  instant  case  and  the
submissions  made  by  the  learned  counsel  appearing  on  behalf  of  the
petitioner reveal, that a series of allegations have been  levelled  against
the Chairman of the Commission, in the communication addressed  by  Campaign
for Judicial Accountability and Reforms,  to  the  President  of  India  and
Prime Minister of India, on 4.4.2011.  These allegations ought to have  been
forwarded to the Supreme Court, for an enquiry into the  matter.   The  same
having not been done, a prayer has been made  by  the  petitioner,  for  the
issuance of a writ in the nature of Mandamus,  requiring  the  President  of
India to make a reference to this Court under Section 5(2) of the 1993  Act,
for holding an enquiry against respondent No. 3, i.e., the present  Chairman
of the Commission.
6.    We have given our thoughtful  consideration  to  the  solitary  prayer
made in the instant Writ Petition.  It is not possible for us to accept  the
prayer made at the hands of the petitioner, for the simple reason  that  the
first  step  contemplated  under  Section  5(2)  of  the  1993  Act  is  the
satisfaction of the President of India.  It is only  upon  the  satisfaction
of the President, that a reference can be made  to  the  Supreme  Court  for
holding an enquiry.  This Court had an  occasion  to  deal  with  a  similar
controversy based  on  similar  allegations  against  respondent  No.  3  in
Manohar Lal Sharma Vs. Union of India [W.P. (C) No. 60 of  2011  decided  on
7.5.2012], wherein  this  Court,  while  disposing  of  the  Writ  Petition,
required the petitioner to approach the competent  authority  under  Section
5(2) of the 1993 Act.  As noticed above, the satisfaction of  the  President
of India is based on the advice of the Council of Ministers.  The  pleadings
in the Writ Petition do not reveal, whether or not  any  deliberations  have
been conducted either by the  President  of  India  or  by  the  Council  of
Ministers in response to the communication dated 4.4.2011 (addressed to  the
President  of  India,  by  the  Campaign  for  Judicial  Accountability  and
Reforms).  It is  also  the  submission  of  the  learned  counsel  for  the
petitioner, that the petitioner has not been informed about the  outcome  of
the communication dated 4.4.2011.
7.    In the peculiar facts noticed hereinabove, we are satisfied, that  the
instant  Writ  Petition  deserves  to  be  disposed  of  by  requesting  the
competent authority to take a decision on the communication  dated  4.4.2011
(addressed by the Campaign for Judicial Accountability and Reforms,  to  the
President of India).  If the allegations, in  the  aforesaid  determination,
are found to be unworthy of any further  action,  the  petitioner  shall  be
informed accordingly.  Alternatively, the President of India, based  on  the
advice of  the  Council  of  Ministers,  may  proceed  with  the  matter  in
accordance with the mandate of Section 5(2) of the 1993 Act.
8.    Disposed of in the abovesaid terms.

                                        …………………………….J.
                                        (B.S. Chauhan)


      …………………………….J.
                                        (Jagdish Singh Khehar)
New Delhi;
May 10, 2012.

HS


                           -----------------------
7

. Insofar as the issue with regard to the arrest of the accused on 15.03.1990 is concerned we find that, the evidence of PW 16 - the Investigating Officer of the case does contain an explanation for the production of the accused before the learned Magistrate on 17.03.1990 despite his arrest on 15th March. If the said evidence of PW 16 is to be reasonably read, the prosecution version of the arrest of the accused on 15th of March remains unaffected. From the evidence of Investigating Officer it is also clear that the statement of the accused leading to the recovery of dead body was made while he was in custody and the same was in the presence of police officers, though, at that time some other persons were also present in the police station. The recovery of the dead body, therefore, is a fact which is admissible in evidence under Section 27 of the Evidence Act. The absence of identification of the accused by PW 15 at the time of recovery of the dead body, according to us, will not affect the core of the prosecution case. Insofar as the alleged defects in the examination of the accused under Section 313 Cr.P.C. is concerned, having perused the record, we find that all incriminating circumstances relevant to the case had been put to the accused and no material irregularity causing any prejudice to the accused can be attributed to the prosecution in this regard. All the circumstances relied upon by the prosecution, therefore, can be held to be proved beyond reasonable doubt. The said circumstances, in our considered view, are more than adequate to enable us to come to the conclusion that the conviction of the accused so far as the offences under Sections 302 and 201 IPC is concerned had been correctly made in the facts and circumstances of the present case. We therefore affirm the aforesaid part of the order of the High Court. 10. Insofar as the offence under Section 364 IPC is concerned, we have considered the materials on record on the basis of which the aforesaid offence has been held to be proved. According to us, the action of the accused in bringing back his wife to the matrimonial home from the house of PW 6 – Bishu Murmu cannot attract the necessary ingredients of either the offence of kidnapping or abduction so as to attract Section 364 IPC. 11. Consequently this appeal is partly allowed. The conviction and sentence under Sections 302 and 201 IPC is maintained whereas the conviction under Section 364 IPC and the sentence imposed is set aside.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1357 OF 2008


Chunda Murmu                                       ….Appellant

Versus

State of West Bengal                               ….Respondent



                       J U D G M E N T



RANJAN GOGOI, J.


      This appeal, by special leave,  is  directed  against  the  judgment
dated 10.04.2006 passed by the   High  Court  of  Calcutta  affirming  the
conviction of the accused-appellant as recorded by the learned trial court
under Sections 302, 364 and 201 of  the  Indian  Penal  Code  (IPC).   The
accused-appellant, Chunda Murmu, has been sentenced  to  undergo  rigorous
imprisonment for life under Section 302 of IPC whereas under Sections  364
and 201 of IPC each, he has been sentenced to suffer rigorous imprisonment
for seven years alongwith fine. All the sentences have  been  directed  to
run concurrently.
2.    The case of the  prosecution,  in  short,  inter-alia,  is  that  on
15.03.1990, one Anil Mardi, P.W.7, lodged  a  complaint  in  the  Habibpur
Police Station to the effect that his sister – Kamla, who was  married  to
the accused  appellant  for  about  six  years,  had  been  missing  since
10.03.1990.  It had been further stated,  in  the  complaint  filed,  that
though the complainant had searched for his sister, her  whereabouts  were
not known and that the complainant suspected that she was murdered by  her
husband, namely, the accused-appellant.

3.    On the basis of the aforesaid complaint, P.W.16 – P.K.  Dutta,  Sub-
Inspector of Police, filed the formal FIR – Ex.6 on  the  basis  of  which
Habibpur  P.S.  Case  No.  17/90  was  registered.   In  the   course   of
investigation,  the  accused-appellant  was  arrested  on   15.3.1990   at
Palashdanga, whereafter,  he  was  brought  to  Habibpur  Police  Station.
According to the prosecution, the accused-appellant, while in custody, had
made a statement that he had murdered his wife and had kept the dead  body
concealed  in  the  khuti  ghar  of  his  father  at   village   Horegram.
Furthermore, according to the prosecution, on the basis of  the  aforesaid
statement made by the  accused,  the  dead  body  of  deceased  Kamla  was
recovered from the khuti ghar of one  Charan  Murmu,  the  father  of  the
accused-appellant, in the presence of seven witnesses including the  Block
Development Officer, Shri Manas Kumar Mandal, P.W.15.  Thereafter  inquest
was held on the dead body which was sent for postmortem  examination.   In
the report of the post mortem, the cause of death  was  mentioned  by  the
Doctor as homicidal throttling.  In the  course  of    investigation,  the
I.O. – PW 16, also seized some mud stained hay from the Kuthi  ghar,  some
earth etc. in the presence of witnesses  vide  Seizure  List  Ex.5.    The
wearing apparels of the deceased, i.e. mud stained green check saree,  mud
stained green petty coat, black blouse stained with mud were  also  seized
in the presence of witnesses vide Seizure List Ex.3.  Thereafter,  at  the
conclusion of the investigation, chargesheet  was  submitted  against  the
appellant-accused   and   his   father   Charan   Murmu   under   Sections
302/364/201/34 of IPC.  The father of accused-appellant died  and  charges
under the aforesaid Sections of the IPC were framed  against  the  accused
appellant.

4.    The accused-appellant pleaded not guilty to the charges  framed  and
claimed to be tried. In  the  course  of  the  trial,  16  witnesses  were
examined by the prosecution and none by the defence.  However, the accused
appellant was examined under Section 313 Cr.P.C. in the course of which he
had stated that he had been falsely implicated in the  case.   Thereafter,
at the conclusion of the trial, the accused-appellant had  been  convicted
and sentenced as aforesaid.
5.    We have been elaborately taken through the entire evidence on record
by the learned counsel for the appellant.  A consideration of the evidence
of the prosecution  witnesses examined in the case would go to  show  that
there are no eye witnesses to  the  occurrence  and  the  prosecution  has
sought to bring  home  the  charges  levelled  on  the  basis  of  certain
circumstances that have been unfolded by the witnesses  examined.   Having
considered the evidence on record, we are of the view that in the  present
case the prosecution relies on the following  circumstances  to  establish
the guilt of the accused:
      (1) The accused-appellant and the deceased were married  for  about  6
      years and that there were frequent quarrels between the two.


      (2)   A salish (meeting) was held to resolve the disputes between  the
      husband and the wife which, however, was not attended by  the  accused
      and his deceased father.


      (3)   The deceased had left the matrimonial home and  went  to  reside
      with PW 6 –Bishu Murmu.


      (4)   The accused had brought back his wife to his home from where she
      had gone missing from 10.03.1990.


      (5)    Despite  a  vigorous  search  to  locate  the   deceased,   her
      whereabouts could not be known.


      (6)   That the accused was arrested on 15.03.1990 from Palashdanga and
      while in police custody he had made a statement that he had killed his
      wife and kept the body hidden in the kuthi ghar of his father.


      (7)   On the basis of  the  aforesaid  statement  the  dead  body  was
      recovered from the place pointed out by the accused in the presence of
      PW 15- Block Development Officer and other witnesses including PW 5  -
      Subhas Soren and PW 6 – Bishu Murmu, who had dug out the dead body, as
      directed by the police.

6.    The short question that needs to be answered is whether all  or  any
of the aforesaid circumstances have been proved and established and if  so
whether on the basis of the said circumstances the conviction and sentence
of the accused is tenable in law?

7.    Learned counsel for the appellant has vehemently contended that  the
prosecution version that the accused was arrested on 15.03.1990  and  that
after his arrest he had made a statement leading to recovery of  the  dead
body cannot be believed inasmuch as it is proved and  established  by  the
other materials on record that  the  appellant  was  produced  before  the
Magistrate on 17.03.1990 following his arrest which  is  claimed  to  have
been made on 15.03.1990. According to the learned counsel, the  very  fact
that  the  accused  appellant  was  produced  before  the  Magistrate   on
17.03.1990 would go to show that the prosecution version  with  regard  to
his arrest on 15th March and the alleged statements made  by  him  on  the
said date are extremely doubtful. It  is  further  urged  by  the  learned
counsel that the alleged statement made by the  accused  was  not  in  the
presence of police officers but the same was  made  before  the  witnesses
examined by the prosecution.  It is also contended by the learned  counsel
that at the  time  of  recovery  of  the  dead  body,  PW  15-  the  Block
Development Officer, could not identify the accused. Learned  counsel  had
further pointed out that in the course of the examination of  the  accused
under Section 313 Cr.P.C.,  the  recovery  of  the  dead  body  and  other
articles as made by the prosecution had not been put to the accused so  as
to enable him to explain the said circumstances appearing against him.

8.    In reply, learned counsel appearing for the State has contended that
all the proved circumstances give rise to a complete chain of events which
unerringly point to only one direction, i.e., it is the accused and nobody
else who had committed the crime.  Learned counsel has  also  pointed  out
the evidence of PW 16 – the Investigating Officer wherein the reasons  for
non production of the accused before the learned Magistrate  at  any  time
before 17.03.1990 have  been  explained.  By  referring  to  the  evidence
tendered by the same witness, i.e., the Investigating Officer (PW  16)  it
has been pointed out that the statement of accused leading to recovery  of
the dead body was made while the accused was in police  custody  and  that
the said statement was so made in the presence of the police officers  and
as well as the other witnesses examined by the  prosecution.   Insofar  as
the circumstances put to the accused in his examination under Section  313
Cr.P.C. is concerned, learned counsel has pointed out that the recovery of
the dead body was put to the accused in the course of such examination and
there is no  lacuna  in  this  regard,  as  contended  on  behalf  of  the
appellant.

9.    The fact that the accused and the deceased  were  married  and  that
there were frequent quarrels between the two is not seriously disputed. It
is also not in dispute that the deceased had left her husband and had been
residing with PW 6 from whose house she was  brought  by  the  accused  on
10.03.1990. Insofar as the issue with regard to the arrest of the  accused
on 15.03.1990 is concerned we find that, the  evidence  of  PW  16  -  the
Investigating Officer of the case does  contain  an  explanation  for  the
production of the accused before  the  learned  Magistrate  on  17.03.1990
despite his arrest on 15th March. If the said evidence of PW 16 is  to  be
reasonably read, the prosecution version of the arrest of the  accused  on
15th of March remains unaffected.   From  the  evidence  of  Investigating
Officer it is also clear that the statement of the accused leading to  the
recovery of dead body was made while he was in custody and the same was in
the presence of police officers, though, at that time some  other  persons
were also present in the police station.  The recovery of the  dead  body,
therefore, is a fact which is admissible in evidence under Section  27  of
the Evidence Act.  The absence of identification of the accused by  PW  15
at the time of recovery of the dead body, according to us, will not affect
the core of the prosecution case. Insofar as the alleged  defects  in  the
examination of the accused under Section 313 Cr.P.C. is concerned,  having
perused the record, we find that all incriminating circumstances  relevant
to the case had been put to  the  accused  and  no  material  irregularity
causing any prejudice to the accused can be attributed to the  prosecution
in this regard. All the circumstances  relied  upon  by  the  prosecution,
therefore, can be held to be proved  beyond  reasonable  doubt.  The  said
circumstances, in our considered view, are more than adequate to enable us
to come to the conclusion that the conviction of the accused so far as the
offences under Sections 302 and 201 IPC is concerned  had  been  correctly
made in the facts and circumstances of the  present  case.   We  therefore
affirm the aforesaid part of the order of the High Court.

10.   Insofar as the offence under Section 364 IPC is concerned,  we  have
considered the materials on record on the basis  of  which  the  aforesaid
offence has been held to be proved.  According to us, the  action  of  the
accused in bringing back his wife to the matrimonial home from  the  house
of PW 6 – Bishu Murmu cannot attract the necessary ingredients  of  either
the offence of kidnapping or abduction so as to attract Section 364 IPC.
11.   Consequently this appeal  is  partly  allowed.  The  conviction  and
sentence under  Sections  302  and  201  IPC  is  maintained  whereas  the
conviction under Section 364 IPC and the sentence imposed is set aside.

                                        ...…………………………J.
                                        [SWATANTER KUMAR]



                                        ……………………………J.
                                        [RANJAN GOGOI]

New Delhi,
May 10, 2012.


-----------------------
9

The admissibility of a dying declaration: “22. The analysis of the above decisions clearly shows that: i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. viii) Even if it is a brief statement, it is not to be discarded. ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.”

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1882 OF 2010


Salim Gulab Pathan                                  …Appellant

Versus

State of Maharashtra through SHO                   …Respondent



                       J U D G M E N T



RANJAN GOGOI, J.



       This  Appeal  is  directed  against  the  judgment  and  order  dated
08/02/2007 passed by the High Court of Bombay whereby  the  High  Court  has
dismissed the Criminal Appeal filed  by  the  appellant  and  confirmed  the
conviction recorded against the appellant  under  Section  302  IPC  by  the
learned Trial Court.   Following  the  aforesaid  conviction,  the  accused-
appellant has been sentenced to undergo R.I. for life along with fine.

2.    The short case of the prosecution, inter-alia, is  that  the  deceased
Nazabi was wife of the accused-appellant.  They were staying  in  the  house
of PW 1, Akbar Sheikh, who is father of  the  deceased.   According  to  the
prosecution, at about 8.00 –  8.30  PM  of  04.09.2001,  PW  1  was  sitting
outside the house.  At that  time,  there  was  some  altercation  going  on
inside between the accused-appellant  and  the  deceased.   Thereafter,  the
deceased came out and was sitting with  her  father.   After  sometime,  the
accused-appellant called the deceased inside and  locked  the  door  of  the
house.  There was again a quarrel between the accused and  the  deceased  in
the course of which the accused poured kerosene on the deceased and set  her
on fire.  According to the prosecution, the deceased  came  running  out  of
the house in a burning condition and was followed by the  accused  who  fled
away from there.  PW 1 along with PW 3 and PW 5 extinguished  the  fire  and
in the presence of the said witnesses, on being asked by PW 1, the  deceased
stated that she had been set on fire by the accused-appellant.   Thereafter,
according to the prosecution, the deceased was taken to the  hospital  where
her statement was recorded by the doctor who  informed  the  police  of  the
incident.  PW 6, Laxman, police constable, recorded  the  statement  of  the
deceased at about 4.30 AM of 05.09.2001.  Shortly thereafter at  about  9.40
AM, the deceased, Nazabi, died.  Inquest was held  and  the  dead  body  was
sent for postmortem examination.  Thereafter, the First  Information  Report
(Exhibit 10) was lodged by PW 1, Akbar Sheikh.

3.    After registration of the case, investigation was conducted  by  PW  5
in the course of which, PW 5 seized from the place of occurrence  a  plastic
can containing kerosene; a match box with two  burnt  match  sticks;  broken
pieces of bangles; samples of earth smelling kerosene; half burnt  polyester
sari etc.  The said items were sent for chemical analysis.   The  report  of
analysis confirmed the presence of kerosene in all the said items.   At  the
conclusion of the investigation,  charge-sheet  was  submitted  against  the
accused-appellant under Section 302 IPC.  Charge under Sec. 302  IPC  having
been framed against the accused-appellant, the accused  pleaded  not  guilty
and wanted to be tried.  In the course of trial, 7 witnesses  were  examined
by the prosecution and none by the defence.  From the statement made by  the
accused in his examination under Section 313 Cr. P.C., it appears  that  the
case of the accused-appellant was that the deceased had set herself on  fire
due to an altercation with her brother, who did not approve of the  deceased
staying in the house of her father.  In fact, according to the  accused,  he
had tried to put out  the  fire  and  was  attacked  by  his  brother-in-law
resulting in injuries, which, the accused claims to  have  reported  to  the
police.  At conclusion of the trial held against the  accused,  the  learned
trial court, on the grounds and reasons mentioned, found him guilty  of  the
offence under Section 302 IPC and accordingly, sentenced him to  undergo  RI
for life along with fine.  The said  conviction  and  sentence  having  been
affirmed by the High Court in appeal, the present appeal has been  filed  by
the accused upon grant of leave by this Court.

4.    Learned counsel for the appellant has  contended  that  the  principal
basis of the conviction recorded against the accused  is  the  statement  of
the deceased recorded by PW 6, the police constable which has  been  treated
by the courts below as a dying declaration.  Pointing out  the  evidence  of
PW 1, it has been urged that this witness has categorically stated that  the
deceased had not spoken to anybody while in the hospital and, in  fact,  the
police had not come to meet the deceased at any time after her admission  in
the hospital till her death.  In view of the aforesaid  evidence,  according
to the learned counsel, the alleged dying declaration  becomes  unworthy  of
credence.  Such a view, according to the learned  counsel,  is  strengthened
by certain other facts which have been proved by the evidence of  the  other
prosecution witnesses.  In this regard,  the  evidence  of  PW  1  that  the
police had collected only samples of earth from the place of occurrence  and
no other articles had been seized from the said place has been  pointed  out
in contra distinction to the evidence of PW 5  that  they  had  also  seized
broken bangles, a half burnt sari and a can of kerosene from  the  place  of
occurrence.  The evidence of PW 1 that the deceased had  suffered  extensive
burn injuries on both her legs and hands has been pointed  out  to  question
the authenticity of the left thumb  impression  of  the  deceased  allegedly
appearing in the dying declaration.  The  fact  that  the  accused  and  the
deceased were living happily, as deposed to by PW 1, PW  3  and  PW  4,  has
also been relied upon by the learned counsel  to  demolish  the  prosecution
case.  Learned counsel has pointed out that the evidence of PW 1, PW  3  and
PW 4, particularly, the statement made by the deceased  that  she  had  been
burnt by her husband should not  be  accepted  by  the  Court  as  the  said
witnesses are related to the deceased  and  are  interested  witnesses.   No
reliance, therefore, can be placed on the said evidence either  as  evidence
corroborating the alleged dying declaration or as  independent  evidence  in
support of the guilt of the accused.

5.    The learned counsel for the appellant has  also  vehemently  contended
that in the present case, the evidence of PW 2 would go  to  show  that  the
deceased had suffered burn injuries to the extent of 92%.   Learned  counsel
has pointed out that, according to the prosecution, the said  burn  injuries
were caused at about 8.00 – 8.30 PM of 04.09.2001.  The evidence  of  PW  2,
according to the learned counsel, established that the deceased was  brought
to the hospital at 3.15 AM of 05.09.2001.  She is alleged to have  made  the
dying declaration between 4.30 and 5.30 AM  whereafter  she  died  at  about
9.40 AM.  Pointing out the aforesaid details, learned counsel has  contended
that it is extremely doubtful as to whether the deceased was in  a  position
to make the statement which was allegedly  recorded  by  PW  6  as  a  dying
declaration.  The endorsements made by PW  2,  both  at  the  beginning  and
conclusion of the recording of the statement of the deceased, to the  effect
that she was conscious and in a position to  make  the  statement  has  been
seriously  contested  by  the  learned  counsel.   It  is  argued  that  the
prosecution story has been engineered at the instance of the nephew of PW  1
who is a lawyer and the certification of the doctor is per-se unbelievable.

6.    Opposing the contentions advanced on behalf of the  accused-appellant,
learned State Counsel has vehemently contended that  the  dying  declaration
recorded by PW 6 is a true and voluntary account  of  the  circumstances  in
which the deceased had  died.   In  fact,  referring  to  the  case  history
narrated by the deceased at the  time  of  her  admission  in  the  hospital
(Exhibit-12), learned counsel has pointed out that even  at  that  time  the
deceased has implicated her husband which  was  further  elaborated  in  the
dying declaration recorded by PW 6.  PW 2, the doctor as well as  PW  6  the
police constable, according to learned counsel, are independent persons  who
will have no occasion  to  falsely  implicate  the  accused.   It  has  been
pointed out that PW 2 in his deposition had very clearly stated  that  after
recording the case history as narrated  by  deceased  at  the  time  of  her
initial medical examination, namely, that she was burnt by her  husband,  he
had informed the police.  Thereafter, according to PW 2, PW 6  had  come  to
the burn ward where the deceased was admitted and on being certified by  him
that she was fully  conscious  and  fit  to  make  a  statement,  the  dying
declaration  was  recorded.   PW  2  has  identified  his  handwriting   and
signatures containing the aforesaid endorsements (Exhibit-13) and  has  also
identified the certification made by him on completion of the  recording  of
the statement of the deceased (Exhibit-14).   He  has  also  identified  the
signatures of the police constable (PW 6) in the aforesaid statement of  the
deceased.

7.    Learned counsel has also argued that the said  dying  declaration  had
been corroborated by PW 1, PW 3 and  PW  4  before  whom  the  deceased  has
narrated  the  same  version  immediately  after  the  incident.  The  dying
declaration also has been corroborated by the case history  of  the  patient
(the deceased) recorded by PW 2 at  the  time  of  her  admission  into  the
hospital.  The evidence of PW 1, that the deceased did not speak to  anybody
in the hospital and that the police had not come to the hospital, have  been
sought   to   be   explained   by    the    learned    counsel    as    mere
inconsistencies/omissions which do not affect the core  of  the  prosecution
case.  In short, the learned State Counsel  has  submitted  that  the  dying
declaration made by the deceased does not suffer from any  infirmity  so  as
to throw any doubt as to its



credibility.  As the same finds sufficient corroboration from  the  evidence
of PW 1, PW 2, PW 3 and PW 4, there is no justification for not  relying  on
the same.  Learned counsel, has submitted that the dying  declaration  which
is duly corroborated is a sufficient and safe basis for  the  conviction  of
the accused.

8.    The principles governing the admissibility of a dying  declaration  as
a valid piece of evidence, though no longer  res-integra,  may  be  usefully
reiterated at this stage.

9.    In Paras Yadav Vs. State of Bihar[1] and  also  in  Balbir  Singh  Vs.
State of Punjab[2], it has been held that  a  dying  declaration  would  not
lose its efficacy merely because it was recorded by  a  police  officer  and
not by a magistrate.  In Paras Yadav case (supra), it  has  been  held  that
the statement of a deceased recorded by a police officer as a complaint  and
not as a dying declaration can in fact be treated as a dying declaration  if
the other requirements in this regard are satisfied.

10.    In  Atbir  Vs.  Government[3]  (NCT  of  Delhi)  after  an  elaborate
consideration  of  several  decisions   of   this   Court,   the   following
propositions have been laid down with  regard  to  the  admissibility  of  a
dying declaration:

      “22.   The analysis of the above decisions clearly shows that:

              i) Dying declaration can be the sole basis of conviction if it
                 inspires the full confidence of the court.

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

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

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

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

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

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

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

             ix) When the eyewitness affirms that the deceased was not in  a
                 fit and conscious state  to  make  the  dying  declaration,
                 medical opinion cannot prevail.

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





11.   Elaborate arguments have been advanced by the learned counsel for  the
appellant that having regard to the extent of burn injuries suffered by  the
deceased, it was not possible on her part to make the  statement  which  was
recorded by PW 6.  In this regard, it will be sufficient to observe that  no
such question was put to PW 2 in cross-examination.  No  expert  opinion  to
that effect or any such view of any of the learned authors  of  acknowledged
works on the subject have been cited before us to enable us to come to  such
a conclusion.  In a situation where PW 2 has clearly certified, both at  the
time of commencement of the recording of the statement of  the  deceased  as
well as at the conclusion thereof, that deceased was fully conscious and  in
a fit mental condition to make the statement we will have  no  occasion  not
to accept the said opinion of the doctor who was present with  the  deceased
at the relevant time.  Coupled with the above, there is the evidence  of  PW
1, PW 3 and PW 5 that  immediately  after  the  incident  the  deceased  had
implicated  her  husband.   In  addition,  the  dying   declaration   stands
fortified by the case history of the deceased recorded by PW 2 at  the  time
of her admission into the hospital.

12.    Viewed  against  the  above  evidence  there  are,  indeed,   certain
statements in the evidence of the prosecution witnesses  which  may  appear,
at first blush, to be in favour of the accused,  namely,  that  the  accused
and the deceased were living happily together; that the police had not  come
to visit the deceased in the hospital at any time  before  her  death;  that
the deceased did not speak to anybody while in hospital; that  only  samples
of earth were taken by PW 5, that the deceased had  suffered  burn  injuries
on both  hands  besides  the  fact  that  accused  had  also  suffered  some
injuries.



13.   A close reading of the evidence of the prosecution witnesses which  we
have undertaken leaves us satisfied that each  of  the  aforesaid  statement
stands out in isolation and does not constitute a cohesive  version  of  the
prosecution case.  That apart, several of the aforesaid  statements  can  be
reasonably understood in a manner different from the one that the  appellant
contends.  That the deceased did not speak to anybody in  the  hospital  and
that the police did not visit the deceased in the hospital as stated  by  PW
1, has to be understood in the light of and balanced  with  the  conflicting
versions of PW 2 and PW 6 before any final conclusion can be reached.  PW  2
has clearly deposed that the  deceased  had  narrated  the  history  of  the
injuries suffered by her in the course  of  which  she  had  implicated  her
husband.  PW 2 has also  deposed  that  the  police  constable  (PW  6)  had
visited the burn ward and had recorded the statement of  the  deceased.   PW
6, in his evidence had clearly disclosed that before meeting  the  deceased,
PW 6 had spoken to PW 1 and another relation of the deceased.  PW 2  and  PW
6 cannot be attributed with any intention to falsely implicate the  accused.
 The story  of  the  nephew  of  PW  1  being  involved  in  concocting  the
prosecution  version  stands  unsupported  by   any   evidence   whatsoever.
Similarly, the collection of sample of earth alone by the  police  from  the
place of occurrence as testified by  PW  1  has  to  be  understood  in  the
context of the evidence of PW 5 who has deposed that in addition to  samples
of earth other articles were also seized and collected  from  the  place  of
occurrence.  Once  again,  PW  5  is  an  independent  witness.   The  above
discrepancies in the evidence of PW 1, therefore, have to be  understood  as
aberrations or omissions that have occurred due  to  efflux  of  time.   The
fact that the couple was living happily as deposed by PW 1, PW 3  and  PW  4
cannot certainly rule out the incident if the same  can  be  established  by
other evidence.  The burn injuries on the accused  on  which  much  argument
has been made, besides not being proved  can  also  be  understood  to  have
occurred in the exchange that may have taken place after  the  deceased  had
been set on fire.  The alleged  injuries  on  the  leg  of  the  accused  as
claimed by him in his examination  under  Section  313  Cr.  P.C.  similarly
remain unproved and unexplained by the defence.



14.   The above discussions lead us to the conclusion  that  the  conviction
of the accused-appellant as recorded by the courts below  has  been  rightly
made.   We will, therefore, have no occasion  to  interfere  with  the  said
conviction as well as the sentence imposed on  the  appellant.   The  appeal
consequently is dismissed.



                                                                …………………………J.
            [SWATANTER KUMAR]



                                        …………………………J.
                                        [RANJAN GOGOI]
New Delhi,
May 10, 2012.
-----------------------
[1]      [1999 (2) SCC 126]

[2]      [2006 (12) SCC 283]

[3]     [2010 (9) SCC 1]



-----------------------
13

We, therefore, hold that the Trust O.P. cannot be allowed to be converted into a suit. However, it is made clear that the rejection of the Trust O.P. under Order VII Rule 11 shall not operate as a bar for the appellants to file a fresh suit in accordance with law. Hence, the appeals are disposed of as above. There will be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


             CIVIL APPEAL NO.     4368                OF 2012 @
               SPECIAL LEAVE PETITION (CIVIL) NO.11825 OF 2008



Sinnamani & Anr.                                         …   Appellants

                                   Versus

G. Vettivel & Ors.                                        … Respondents

                                    WITH

            CIVIL APPEAL NOS.       4372-4386          OF 2012 @
             SPECIAL LEAVE PETITION (CIVIL) NO.6283-6297 OF 2008



                               J U D G M E N T


K.S. Radhakrishnan, J.



      Leave granted.


2.    These appeals arise out of a common judgment  of  the  High  Court  of
Madras at Madurai dated 11.9.2007 declining to convert the  Trust  OP  No.96
of 2002 as a civil suit and be tried accordingly.
3.    Trust  OP  No.96  of  2002  was  filed  by  the  appellants  who  were
beneficiaries  of  six  trusts  before   the   Principal   District   Judge,
Thoothukudi under Sections 61, 62, 65, 66 and 92 of the Trust Act read  with
Order VI Rules 1 to 3, 5 to 7 and 26 of the Code of Civil Procedure for  the
following reliefs:
      “a.   To call upon the respondents 1 to 12 to restore the  corpus  and
           accretions gained by the six trusts  detailed  in  the  schedule
           from  the  date  of  their  incorporation  till  the   date   of
           realization.


        b. To trace the fissipations effected on the schedule Trusts by the
           I defendant and his associate companies.


        c. To appoint a receiver for all the properties of the I  defendant
           and through lifting the corporate veil on the  company  held  by
           the I defendant including Mountain Spinning Mills.


        d. To trace the fissipations on the Schedule Trusts and  bring  the
           properties and monies to the  petitioner’s  Court  account  from
           whichever source they are available.


        e. To call upon the  I  defendant  to  account  from  the  late  of
           creation of the six schedule trusts as to bring the proceeds  to
           the Court.”

3.          During the pendency of the OP, respondent Nos.1  to  14  and  16
filed interlocutory applications separately under Order VII Rule  11  C.P.C.
requesting the court to reject the said Trust O.P. on common  grounds.   The
sum and substance of those grounds were as follows:
      “(a)  there is no cause of action disclosed against the respondents.


        b) the said Trust  O.P. is barred under Section 9 of  the  Code  of
           Civil Procedure, since the relief sought for are to be  agitated
           only by means of a suit.


        c)  the  reliefs  prayed  for  in  the  Trust  O.P.  is  barred  by
           limitation; and


        d) lastly, the said Trust O.P. is liable  to  be  rejected  on  the
           ground that the same has  not  been  properly   valued  for  the
           purpoe of paying the Court Fees.”

4.    Matter was  hotly  contested  before  the  Principal  District  Judge,
Thoothukudi and the applications filed under Order VII Rule  11  C.P.C.  was
allowed vide common judgment dated 17.10.2005.  Aggrieved by the  same,  the
petitioners in Trust O.P. approached the Hon’ble High Court  by  way  of  an
appeal AS 49 of 2006 and the respondent. Nos. 1 to 14 and 16  in  the  Trust
O.P. filed appeal Nos.50 to 64 of 2006 under  Section  96  of  the  Code  of
Civil Procedure, and the 11th Respondent in the Trust O.P. filed  M.P.  No.4
of 2007.  The maintainability of the appeals was successfully questioned  by
the respondents before the High Court, but the High  Court  converted  those
appeals as revision petitions and were heard along with M.P. No. 4 of  2007.
 The High  Court vide judgment dated 11.9.2007 dismissed  all  the  revision
petitions and allowed M.P. No.4 of 2007 and held  that  the  District  Court
was justified in allowing the applications filed under  Order  VII  Rule  11
CPC rejecting the Trust O.P. and it was also ordered  that  the  Trust  O.P.
could not be converted as a civil suit.   However,  it  was  held  that  the
order of rejection of the Trust O.P. would not  stand  in  the  way  of  the
petitioners in Trust O.P. filing  a  fresh  suit  in  accordance  with  law.
Aggrieved by the judgment of the Madras High Court these appeals  have  been
preferred.

6.     Shri  P.S.  Narsimha,  learned  senior  counsel  appearing  for   the
appellants submitted relying upon Section 49  of  the  Trust  Act  that  the
Court has a duty to control the affairs of the Trust and its trustees  under
its discretionary powers when they are  being  mismanaged.   Learned  senior
counsel pointed out that while invoking Section 49  of  the  Act  the  Court
should not stick  on  to  hyper  technicalities  in  respect  of  forms  and
procedures, it is the duty of the principal civil  court  even  to  act  suo
motu  whenever it is brought to the notice of the  court  that  there  is  a
misconduct or any other mal practice committed  by  the  Trustees.   Learned
counsel also submitted that  in  the  event  of  the  Court  coming  to  the
conclusion  that  by  some  improper  advice  given,  the  appellants   have
misdirected themselves in filing the Trust O.P.,  the  same  can  always  be
converted into a civil suit.

7.     Shri  Vijay  Hansaria,  learned  senior  counsel  appearing  for  the
respondents, on the other hand,  supported  the  findings  recorded  by  the
courts below.  Learned senior counsel also placed reliance on  the  judgment
of this Court in P.A. Ahmad Ibrahim v. Food Corporation of  India  (1999)  7
SCC 39 and submitted that the Trust O.P. cannot  be  converted  as  a  civil
suit.

8.    We have perused the Trust O.P. filed by the appellants  in  the  lower
court which is not in the nature of  a  plaint.   The  expression  “Original
Petition” as such is not defined either in the Trust Act or in the  Code  of
Civil Procedure.   However,  Rule  3(9)  of  the  Code  of  Civil  Procedure
defines Original Petition as follows:
           “3(9).  ‘Original  petition  means  a   petition   whereby   any
           proceeding other than a suit  or  appeal  or  a  proceedings  in
           execution of a decree or order, is instituted in a court.”



9.    Section 2(14) C.P.C. defines the term ‘Order’ which reads as under:
           “2(14).  “Order” means the formal expression of any decision  of
           a civil court which is not a decree;”


10.   A comprehensive reading of the above-mentioned  provisions  will  make
it clear that the Trust O.P. filed by the appellants  before  the  Principal
District Judge cannot either be construed a suit or equated to  be  a  suit.
The final order passed in the Trust O.P.  cannot  also  be  construed  as  a
decree as defined in Section 2(2) C.P.C.   It can  only  be  an  “order”  as
defined in Section 2(14) C.P.C.    The term “suit”, as such is  not  defined
in the Code of Civil  Procedure.   However,  Section  26,  C.P.C.  gives  an
indication as to the manner in which suit has to  be  instituted.    Section
26 reads as under:
            “26. Institution of suits:
              1) Every suit shall be instituted by  the  presentation  of  a
                 plaint or in such other matter as may be prescribed.
              2) In every plaint, facts shall be proved by affidavit.”


11.   A suit can be instituted by presentation of a plaint and Order IV  and
VII C.P.C. deals with the presentation of the plaint  and  the  contents  of
the plaint.  Chapter I of the Civil Rules of Practice deals  with  the  form
of a plaint.   When the statutory provision clearly says as to how the  suit
has to be instituted, it can be instituted only in that  manner  alone,  and
no other manner.  The Trust Act contains 9 chapters.  Chapter 6  deals  with
the rights and liabilities of the beneficiaries, which would  indicate  that
the beneficiaries of trust have been given various rights and  those  rights
are enforceable under the law.  Section 59 of the Act confers a  right  upon
the beneficiaries to sue for execution of the  trust  which  would  indicate
that the beneficiaries may institute a suit  for  execution  of  the  trust.
Therefore, the above-mentioned  provisions  would  show  that  in  order  to
execute the trust, the right is only to file a suit  and  not  any  original
petition.  Under the Trust Act also  for  certain  other  purposes  original
petitions can be filed.  Section 72 of the Trust Act provides for a  trustee
to apply to a principal civil court  of  original  jurisdiction  by  way  of
petition to get himself discharged from his office.   Similarly, Section  73
of the Act empowers the principal civil court of  original  jurisdiction  to
appoint new trustees.  Few of the provisions of the Act  permit  for  filing
of original petitions.  The above facts  would  clearly  indicate  that  the
Trust Act provides for filing of a suit then suit alone  can  be  filed  and
when it provides for original petition then original petition alone  can  be
filed and there is no question of conversion of original  petition  to  that
of a civil suit or vice-versa, especially in  the  absence  of  a  statutory
provision  under  the  Trust  Act.   A  similar   question   came   up   for
consideration before this Court in P.A. Ahmad Ibrahim  v.  Food  Corporation
of India (supra) wherein, while interpreting Section  20  C.P.C.  the  Court
held as follows:
           “Further, before applying the provisions of Order  VI  Rule  17,
           there must be institution of the  suit.  Any  application  filed
           under the provisions of different statutes cannot be treated  as
           a suit or plaint unless otherwise provided in the said  Act.  In
           any case, the amendment would introduce a totally new  cause  of
           action and change  the  nature  of  the  suit.   It  would  also
           introduce a totally different case which  is  inconsistent  with
           the prayer made in the application for referring the dispute  to
           the arbitrator. Prima facie, such amendment would cause  serious
           prejudice to the contention of the appellant that the  claim  of
           the respondent to recover the alleged amount was barred  by  the
           period of limitation as it was pointed out that cause of  action
           for recovery of the said amount arose in the year 1975  and  the
           amendment application was filed on 30.3.1986. Lastly, it  is  to
           be stated that in such cases, there is no question  of  invoking
           the inherent jurisdiction of the Court under Section 151 of  the
           C.P.C. as it would nullify the procedure  prescribed  under  the
           Code.”

12.   Certain legislations specifically provide for conversion  of  original
petition into a suit.  Section 295 of the Indian Succession Act  is  such  a
provision.  The Trust Act, however, contains no such enabling  provision  to
convert the original petition into a suit.

13.   In the above facts situation, we find no  infirmity  in  the  judgment
rendered by the courts below.  We,  therefore,  hold  that  the  Trust  O.P.
cannot be allowed to be converted into a suit.  However, it  is  made  clear
that the rejection of the Trust O.P. under  Order  VII  Rule  11  shall  not
operate as a bar for the appellants to file a fresh suit in accordance  with
law.  Hence, the appeals are disposed of as above.  There will be  no  order
as to costs.


                                                               ……………………………J.
                                                 (K.S. Radhakrishnan)



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

New Delhi;
May 9, 2012
-----------------------
8

set aside the death sentence and award life imprisonment.There is no reason to disbelieve the above evidence and circumstances nor there is any reason to doubt the commission of offence by the appellant and the recovery of incriminating material on his disclosure statement. The incriminating circumstances taken into consideration by the courts below can reasonably be inferred. However, so far as the sentence part is concerned, in view of the law referred to hereinabove, we are of the considered opinion that the case does not fall within the rarest of rare cases. However, considering the nature of offence, age and relationship of the victim with the appellant and gravity of injuries caused to her, appellant cannot be awarded a lenient punishment. 25. A three Judge Bench of this Court in Swami Shraddananda @ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040, considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life. 26. Similarly, in Ramraj v. State of Chattisgarh, AIR 2010 SC 420, this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 1Page 18 20 years including remissions earned and would not be released on completion of 14 years imprisonment. 27. Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for pre-mature release. 28. The appeal stands disposed of.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.  523 OF 2010
Neel Kumar @ Anil Kumar                                      ....Appellant
Versus
The State of Haryana                                                ....Respondent
J U D G M E N T
   Dr. B. S. CHAUHAN, J  .
1. This criminal appeal has been preferred against the judgment
and order dated 17.7.2009 passed by the High Court of Punjab and
Haryana at Chandigarh  in Criminal Appeal No. 268-DB of 2009, by
which it has affirmed the conviction of the appellant under Sections
302/376(2)(f) and 201 of Indian Penal Code, 1860 (hereinafter
referred as `IPC’) and accepted the death reference made by the
Additional Sessions Judge, Yamuna Nagar at Jagadhari vide
judgments and orders dated 2.3.2009/6.3.2009 and confirmed the
sentence of death.Page 2
2. Facts and circumstances giving rise to this appeal are that :
A. Smt. Roopa Devi (PW.3) wife of Neel Kumar @ Anil
Kumar – appellant, had gone to her parental home at village Kesri
alongwith her minor son on  26.6.2007 leaving her two children i.e.
Sanjana, daughter, 4 years old and Vishal, son, 2  years old at her
matrimonial home with her husband – appellant. She had to return
back on the same day but could not return and stayed at her parental
home. On the same day, she received information by telephone at
4.00 p.m. from her brother-in-law Ramesh Kumar that her husband
had committed rape upon her 4 years old daughter Sanjana.  Roopa
Devi (PW.3) came back to her matrimonial home on the next day i.e.
27.6.2007 alongwith 5-7 persons including her family members and
neighbours and found her daughter Sanjana, victim, in an injured
condition.  The Panchayat was convened to resolve the problems.
However, the Panchayat could not resolve the dispute, therefore,
Roopa Devi (PW.3), complainant, returned to her parental home
alongwith accompanying persons leaving her injured daughter
Sanjana and son Vishal in the custody of the appellant at her
matrimonial home.  Roopa Devi (PW.3) wanted to take her injured
daughter for medical help, but the appellant and his family members
restricted her and even tried to snatch her 15 days old son from her.
2Page 3
B. Roopa Devi (PW.3) received a telephone call again from her
brother-in-law Ramesh Kumar on 28.6.2007 informing her that
appellant had killed her daughter Sanjana.  She came there alongwith
her brother Gulla (PW.4) and lodged the report to P.S. Bilaspur
against the appellant for committing the rape on her 4 years old
daughter Sanjana  on 26.6.2007 and against her brother-in-laws and
appellant for committing  her murder on 27/28.6.2007 and
concealing her dead body.  Thus, on her complaint, a case under
Sections 376(2)(f), 302, 201/34 IPC vide FIR  No. 91 dated
28.6.2007 at Police Station Bilaspur (Haryana) was registered.
C. Immediately, thereafter, on the same day i.e. 28.6.2007, on
the application moved by the Investigation Officer, the Deputy
Commissioner, Yamuna Nagar, authorised Shri Narender Singh,
SDM, Jagadhari to pass an order of exhumation of the dead body
from the graveyard and on such order being passed, the dead body
was recovered from the graveyard. It was photographed and an
inquest report was prepared. Dead body was sent for post-mortem
examination.   The requisite plan of place of recovery of dead body
was prepared.   The Investigating Officer inspected the place of
occurrence on 29.6.2007 and prepared the site plan.   The appellant
and his brothers were arrested on 30.6.2007.  Appellant was
medically examined and on his disclosure statement, the
3Page 4
Investigating Officer recovered one blood stained bed sheet from his
house and further a gunny bag containing one Pajama, blood stained
piece of cloth, pant, shirt and one pillow from a rainy culvert near
Majaar of Peer on Kapal Mochan Road (Exts. P-23 and P-25).
D. After filing the chargesheet, the case was committed to the
Court of Sessions and on conclusion of the trial, the learned Sessions
Judge vide judgment and order dated 2.3.2009 acquitted all other coaccused but convicted the appellant under Sections 302, 376(2)(f)
and 201 IPC and vide order dated 6.3.2009  awarded death sentence
under Section 302 IPC, life imprisonment under Section 376(2)(f)
IPC and rigorous imprisonment for 3 years for the offence under
Section 201 IPC.
E. Being aggrieved, the appellant preferred Criminal Appeal
No. 268-DB of 2009 in the High Court of Punjab and Haryana at
Chandigarh, which was dismissed by the impugned judgment and
order dated 17.7.2009 confirming the death sentence upon reference.
              Hence, this appeal.
3. Mr. Shekhar Prit Jha, learned counsel appearing for the
appellant, has submitted that appellant has falsely been enroped in
the offence by the complainant Roopa Devi (PW.3) as the
relationship between the husband and wife had been very strained.
4Page 5
Even, subsequently, she filed divorce petition against the appellant.
It is quite unnatural that once the complainant Roopa Devi (PW.3)
had come from her parental house to her matrimonial home, then, on
being informed about the rape by the appellant upon their minor
daughter of 4 years of age, the complainant would go back to her
parental house leaving the girl in the custody of the appellant and
that too, when she was suffering from serious vaginal injuries.
Since, the evidence of the complainant and her brother Gulla (PW.4)
has been disbelieved in respect of four brothers of the appellant and
they have been acquitted, the same evidence could not have been
relied upon for convicting the appellant.   When the complainant left
for her parental house on 27.6.2007, the children had been in the
custody of appellant’s brother Ramesh Kumar and, therefore, there
was no possibility of the appellant committing Sanjana’s murder.  It
is by no means a case which falls in the category of rarest of rare
cases warranting the death sentence.  The appeal deserves to be
allowed.
4. On the contrary, Mr. Kamal Mohan Gupta, learned counsel
appearing for the respondent State, has vehemently opposed the
appeal contending that the appellant has committed most heinous
crime, if he can commit the rape of his own 4 years old daughter, the
society cannot be safeguarded from such a person.  The manner in
5Page 6
which the offence has been committed and the nature of injuries
caused to the prosecutrix makes it evident that it is a rarest of rare
case wherein no punishment other than death sentence could be
awarded, thus, the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. Smt. Roopa Devi (PW.3), complainant has lodged the FIR
dated 28.6.2007, giving the complete version regarding both the
criminal acts i.e. rape as well as murder of Sanjana.  This witness
also gave details of the Panchayat convened to resolve the dispute
and as the same was not resolved, Roopa Devi (PW.3), complainant,
went back to her parental home leaving the two minor children with
appellant.  She came back on receiving the information about the
death of her daughter next day and lodged the complaint.   On the
basis of the said complaint, FIR was registered on 28.6.2007 at 3.20
p.m.  and investigation ensued. There is evidence on record to show
that after getting the permission on the order of Deputy
Commissioner, Yamuna Nagar, the SDM concerned passed the order
of exhumation of the dead body of Sanjana and it was sent for postmortem examination.  The post-mortem report suggested the
following injuries on her body:
6Page 7
“Lacerated wound present in vagina extending from
anus to urethral opening admitting four fingers of
size 6 x 4 cms.  Underlying muscles and ligaments
were exposed and anus was also torned and on
dissection uterus was perforated in the abdomen”.
7. The prosecution case has  been supported by Gulla (PW.4),
brother of the complainant, and further got support from the contents
of the divorce petition filed by Roopa Devi (PW.3) complainant,
subsequently, wherein it had clearly been stated that the appellant
had raped and murdered their 4 years old daughter Sanjana and in
that respect, the case was pending in the criminal court.  The
recoveries had been made by Shri Suraj Bhan (PW.17), Investigating
Officer on the basis of  disclosure statement made voluntarily by the
appellant.
8. Accused Ramesh Kumar, brother of the appellant who had
also faced trial  had supported the case of the prosecution to the
extent that he informed Roopa Devi (PW.3), complainant at Kesri
about the commission of rape by the appellant on his daughter and
further deposed that on hearing such a news she had come to
Bilaspur.
7Page 8
9.         Dr. Ashwani Kashyap (PW.2) conducted autopsy on the dead
body of the deceased victim and as per his testimony and the postmortem report (Ext.P3) the cause of death was asphyxia because of
throttling which was ante-mortem in nature and sufficient to cause
death in ordinary course of events.  He also found vaginal and anal
wounds on the deceased.
10. Dr. Rajeev Mittal (PW.1) medically examined the appellant
and as per his report there was no external injury on the genitals of
the appellant. However, he opined that mere absence of injury on
private parts of the appellant was no ground to draw an inference
that he had not committed forcible sexual intercourse with the
victim.
11. Mukesh Garg (PW.11), Sarpanch of village Bilaspur  has
stated that the S.H.O. has narrated the facts of the case to him and
the exhumation of the dead body from the graveyard  was done in
pursuance of the order of the SDM, Jagadhari. The dead body had
been buried by Neel Kumar (appellant) after committing rape and
murder of the victim. Thus, this witness was associated in the
investigation at the time of exhumation of the dead body.
8Page 9
12. Narender Singh (PW.12), SDM proved the report of exhumation of the dead body (Ext. P11) and stated that he carried out
the same on getting the direction from the Deputy Commissioner.
Ish Pal Singh (PW.15), Head Constable and Joginder Singh (PW.16)
have supported the prosecution case being the witnesses of arrest and
recovery of incriminating material at the voluntary disclosure
statement of the appellant.
13. Madan (PW.14) was examined by the prosecution as an eyewitness for the murder of Sanjana. However, he turned hostile and
he did not support the case of the prosecution.
14. Suraj Bhan (PW.17), Investigating Officer deposed that he
had recovered the dead body from the graveyard on the written
permission of the SDM and the same was sent for the post-mortem
after preparing the inquest report under Section 174 of Code of
Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’) He had
recorded the statement of witnesses under Section 161 Cr.P.C.  He
inspected the spot of occurrence on 29.6.2007, prepared the site plan
and on the next day i.e. on 30.6.2007, arrested the appellant
alongwith his brothers. It was at that time the appellant in
interrogation made disclosure statement (Ext. P-23) and in pursuance
thereof, he recovered the incriminating material as referred to
9Page 10
hereinabove. The said articles were taken into possession vide
recovery memo Ext. P-25 and sent for FSL report.  Subsequently, the
positive report was received.
15. The trial court found the testimonies of Roopa Devi (PW.3)
complainant, Gulla (PW.4), maternal uncle of the victim, Dr.
Ashwani Kashyap (PW.2), Dr. Rajiv Mittal (PW.1) fully reliable and
came to the conclusion that it was quite natural that Sanjana
deceased could have made oral dying declaration before her mother
Roopa Devi (PW.3), complainant.  However, even if it is ignored,
there were various circumstances against the appellant. The court
enumerated the said incriminating circumstances as under:
(I)  The victim was in the custody of accused Neel Kumar @
Anil Kumar.
(II)   No explanation from the side of this accused as to how
such severe injuries were suffered by the victim and how she
met with death as these facts were in his special knowledge
alone.
(III) Non information of the crime by the accused to the
police or other members of the family.
(IV) Recovery of the blood stained clothes of the victim and
the accused from the possession of accused on his disclosure
statement.
(V) Presence of blood on the clothes of the accused and no
explanation thereof.
1Page 11
(VI) Abscondance of the accused after the occurrence.
(VII) Strong motive against the accused for murder as
charges of rape were being raised against him.
16. The learned Sessions Court further remarked that as the
victim was in the custody of the appellant, there had been no
explanation from the side of the accused as to how such severe
injuries were suffered by the victim and how she met with death as
these facts were in his special knowledge alone.  The provisions of
Section 106 of the Indian Evidence Act, 1872 (hereinafter called
‘Evidence Act’)  were fully applicable in this case. Appellant was
guardian of the child and was duty bound to safeguard the victim.
The accused had kept mum and had not given any  information to
any law enforcing agency or even to the mother of the victim.  It
comes out from the statement of   Roopa Devi  (PW.3) that the
information about rape and murder to her was telephonically given
by co-accused Ramesh Kumar.  If somebody else would have
committed the offence it was but natural that appellant Neel
Kumar@ Anil Kumar must have taken steps to initiate the legal
action to  find out the culprit. The silence on his part in spite of such
grave harm to his daughter is again a very strong incriminating
circumstance against him.
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    The High Court has agreed with the findings recorded by the
trial court and confirmed the death sentence  after re-appreciating the
evidence.
17. In our opinion, the courts below have taken a correct view so
far as the application of Section 106 of the Evidence Act is
concerned. This Court in Prithipal Singh & Ors. v. State of
Punjab & Anr. (2012) 1 SCC 10, considered the issue at length
placing reliance upon its earlier judgments including State of West
Bengal v. Mir Mohammad Omar & Ors. etc.etc., AIR 2000 SC
2988; and Sahadevan @ Sagadevan v. State rep. by Inspector of
Police, Chennai, AIR 2003 SC 215 and held as under:
“That if fact is especially in the knowledge of any
person, then burden of proving that fact is upon
him. It is impossible for the prosecution to prove
certain facts particularly within the knowledge of
the accused. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the section
would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of
his special knowledge regarding such facts, failed to
offer any explanation which might drive the court to
draw a different inference. Section 106 of the
Evidence Act is designed to meet certain exceptional
cases, in which, it would be impossible for the
prosecution to establish certain facts which are
particularly within the knowledge of the accused”.
1Page 13
(See also: Santosh Kumar Singh v. State through CBI, (2010) 9
SCC 747; and Manu Sao v. State of Bihar, (2010) 12 SCC 310).
        Thus, findings recorded by the courts below in this regard stand
fortified by the aforesaid judgments.
18. A shirt and pant belonging to the appellant recovered on the
basis of his disclosure statement (Ext. P23) and taken into possession
vide Memo Ext. P25 were sent to the FSL for examination.  Report
of FSL (Ext.P18) shows that shirt and pant of the appellant were
stained with blood.  However, no explanation has been given by the
appellant  as to how the blood was present on his clothes.
19. In Pradeep Singh v. State of Rajasthan AIR 2004 SC
3781,  accused had not given any explanation for the presence of
blood stains on his pant and shirt.  He had simply pleaded false
implication. Presence of blood on his clothes was found to be
incriminating circumstance against him.
              It is the duty of the accused to explain the incriminating
circumstance proved against him while making a statement under
Section 313 Cr.P.C.  Keeping silent and not furnishing any
explanation for such circumstance is an additional link in the chain
of circumstances to sustain the charges against him. Recovery of
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incriminating material at his disclosure statement duly proved is a
very positive circumstance against him.  (See also: Aftab Ahmad
Anasari v. State of Uttaranchal, AIR 2010 SC 773).
20.    In view of the above, we do not find any cogent reason to take
a view different from the view taken by the courts below and this
leads us to the further question regarding the sentence as to
whether it could be a rarest of rare case where imposition of death
penalty is warranted.
21.      The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability. Before opting for the death
penalty the circumstances of the offender also require to be taken
into consideration alongwith the circumstances of the crime for the
reason that life imprisonment is the rule and death sentence is an
exception. The penalty of death sentence may be warranted only in a
case where the court comes to the conclusion  that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The balance sheet of aggravating and
mitigating circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full weightage and a
just balance has to be struck between the aggravating and mitigating
circumstances before option is exercised.
1Page 15
22. After considering the issue at length, this
court in State of Maharashtra v.
Goraksha Ambaji Adsul, AIR 2011 SC
2689,  held as under:
 
“Awarding of death sentence amounts to taking
away the life of an individual, which is the most
valuable right available, whether viewed from the
constitutional point of view or from the human
rights point of view. The condition of providing
special reasons for awarding death penalty is not to
be construed linguistically but it is to satisfy the
basic features of a reasoning supporting and
making award of death penalty unquestionable. The
circumstances and the manner of committing the
crime should be such that it pricks the judicial
conscience of the court to the extent that the only
and inevitable conclusion should be awarding of
death penalty.”
(See also: Bachan Singh v. State of Punjab AIR 1980 SC 898;
Machchi Singh & Ors. v. State of Punjab AIR 1983 SC 957;  and
Devender Pal Singh v. State NCT of Delhi  & Anr. AIR 2002 SC
1661).
23. A similar view has been taken by this Court in Haresh
Mohandas Rajput v. State of Maharashtra (2011) 12 SCC 56
observing as under:
“The rarest of the rare case” comes when a convict
would be a menace and threat to the harmonious
and peaceful coexistence of the society. The crime
1Page 16
may be heinous or brutal but may not be in the
category of “the rarest of the rare case”. There
must be no reason to believe that the accused
cannot be reformed or rehabilitated and that he is
likely to continue criminal acts of violence as would
constitute a continuing threat to the society. The
accused may be a menace to the society and would
continue to be so, threatening its peaceful and
harmonious coexistence. The manner in which the
crime is committed must be such that it may result in
intense and extreme indignation of the community
and shock the collective conscience of the society.
Where an accused does not act on any spur-of-themoment provocation and indulges himself in a
deliberately planned crime and meticulously
executes it, the death sentence may be the most
appropriate punishment for such a ghastly crime.
The death sentence may be warranted where the
victims are innocent children and helpless women.
Thus, in case the crime is committed in a most cruel
and inhuman manner which is an extremely brutal,
grotesque, diabolical, revolting and dastardly
manner, where his act affects the entire moral fibre
of the society e.g. crime committed for power or
political ambition or indulging in organised
criminal activities, death sentence should be
awarded.”
24. Thus, it is evident that for awarding the death sentence, there
must be existence of aggravating circumstances and the
consequential absence of mitigating circumstances.  As to whether
death sentence should be awarded, would depend upon the factual
scenario of the case in hand.
            The instant case is required to be examined in the light of the
aforesaid settled legal propositions.
1Page 17
There is no reason to disbelieve the above evidence and
circumstances nor there is any reason to doubt the commission of
offence by the appellant and the recovery of incriminating material
on his disclosure statement.  The incriminating circumstances taken
into consideration by the courts below can reasonably be inferred.
However, so far as the sentence part is concerned,  in view of the
law referred to hereinabove,  we are of the considered opinion that
the case does not fall within the rarest of rare cases. However,
considering the nature of offence, age and relationship of the victim
with the appellant and gravity of injuries caused to her, appellant
cannot be awarded a lenient punishment.
25. A three Judge Bench of this Court in Swami Shraddananda
@ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC
3040, considering the facts of the case, set aside the sentence of
death penalty and awarded the life imprisonment but further
explained that in order to serve the ends of justice, the appellant
therein would not be released from prison till the end of his life.
26. Similarly, in Ramraj v. State of Chattisgarh, AIR 2010 SC
420, this Court  while setting aside the death sentence made a
direction that the appellant therein would serve minimum period of
1Page 18
20 years including remissions earned and would not be released on
completion of 14 years imprisonment.
27.    Thus, in the facts and circumstances of the case, we set aside
the death sentence and award life imprisonment. The appellant must
serve a minimum of 30 years in jail without remissions, before
consideration of his case for pre-mature release.
28. The appeal stands disposed of.
………………………………………..…J.
(Dr. B.S. CHAUHAN)
……………………………………….…J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
May 7,  2012
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