after the attack the deceased survived for sixty two days after his surgery discharged in stable condition, the only issue which needs to be examined is whether conviction of the appellants under Section 302 IPC is sustainable.=In the instant case, the appellants used firearms countrymade pistol and fired at Roop Singh at his head and the accused had the intention of causing such bodily injury as is likely to cause death. As the bullet injury was on the head, vital organ, second appellant intended of causing such bodily injury and therefore conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. The learned counsel for the appellant-Sanjay submitted that it was only Narendra who fired at Roop Singh at his head, appellant-Sanjay fired on Sheela (PW-2) on her neck, stomach and leg. Learned counsel for the appellant-Sanjay contended that as Sanjay fired only at Sheela, he could not have been convicted for causing death of Roop Singh under Section 302 IPC read with Section 34 IPC. There is no force in the above contention. The common intention of the appellants is to be gathered from the manner in which the crime has been committed. Both the appellants came together armed with firearms in the wee hours of 11.08.1998. Both the appellants indiscriminately fired from their countrymade pistols at Roop Singh- deceased and Sheela (PW-2) respectively. The conduct of the appellants and the manner in which the crime has been committed is sufficient to attract Section 34 IPC as both the appellants acted in furtherance of common intention. The conviction of the appellant-Sanjay under Section 302 IPC read with Section 34 IPC is modified to conviction under Section 304 Part I IPC. 16. Conviction of the appellants-Narendra and Sanjay under Section 302 IPC and Section 302 IPC read with Section 34 IPC respectively is modified to Section 304 Part I IPC and Section 304 Part I IPC read with Section 34 IPC respectively and each of them are sentenced to undergo rigorous imprisonment for ten years and the same shall run concurrently alongwith sentence of imprisonment imposed on the appellants. Conviction of the appellants for other offences and the respective sentence of imprisonment imposed on the appellants and fine is affirmed. The appeals are partly allowed to the above extent.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL  APPEAL NO.   11   OF  2016
               (Arising out of S.L.P. (Crl.) No.3896 of 2013)

SANJAY                                                     ..Appellant
                                   Versus
STATE OF UTTAR PRADESH                            ..Respondent
                                    WITH
                    CRIMINAL  APPEAL NO.   12    OF  2016
               (Arising out of S.L.P. (Crl.) No.3897 of 2013)

NARENDRA                                              ..Appellant
                                   Versus
STATE OF UTTAR PRADESH                            ..Respondent


                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted in both the special leave petitions.
2.          These criminal appeals have been filed  assailing  the  impugned
judgment dated  30.08.2012  passed  by  the  High  Court  of  Judicature  at
Allahabad  dismissing  the  criminal  appeals  No.2188/2007  and   2561/2007
upholding the conviction  of  the  appellant  Narendra  for  offences  under
Sections 302, 307 read with Section 34 IPC and Section 452 IPC and also  the
sentence  of  life  imprisonment,  ten  years  imprisonment  with  fine   of
Rs.5,000/-  and  three  years  imprisonment    with   fine   of   Rs.1,000/-
respectively.   The  High  Court  also  confirmed  the  conviction  of   the
appellant Sanjay under Section 302 read with Section  34  IPC,  Section  307
read with  Section  34  IPC  and  Section  452  IPC  and  sentence  of  life
imprisonment, ten years imprisonment with a fine of   Rs.5,000/-  and  three
years imprisonment with a fine of Rs.1,000/- respectively.
3.          Case of the prosecution is that appellant-Sanjay is the  brother
of deceased Roop Singh.  According to PW-2 Sheela wife of Roop Singh,  after
selling his land to Narendra, Sanjay was insisting his  brother  Roop  Singh
to sell his land to Narendra for which Roop  Singh  refused,  due  to  which
appellant-Sanjay is said to have developed enmity towards  Roop  Singh.   On
the intervening night of 10/11.08.1998 at 3.00  a.m.,  Roop  Singh  and  his
wife Sheela were sleeping in their chowk  and  a  lantern  was  lit  in  the
house.  Appellants–Narendra and Sanjay along with another person armed  with
tamancha (pistol) came to  the  house  of  Roop  Singh.   Appellant-Narendra
fired multiple bullets at Roop Singh and Roop Singh sustained bullet  injury
in his head.  Sanjay fired at PW-2 Sheela and she sustained bullet  injuries
at neck, abdomen  and  her  right  leg.   Hearing  sounds  of  bullets,  the
complainant-Partap Singh and one Ompal and several other persons  rushed  to
the spot and on seeing them, the appellants Narendra, Sanjay and  the  third
assailant fled away from the scene.  On the basis of  the  complaint  lodged
by Partap Singh at Police Station Sardhana, Meerut, case was  registered  in
Crime No. 387/1998 for offences under Sections 307  and  452  IPC.   Injured
victims were sent to Primary Health Centre, Sardhana, Meerut for  treatment.
Roop Singh (deceased) was admitted at Safdarjung Hospital, Delhi  and  after
treatment, Roop Singh  was  discharged  from  the  hospital  on  25.09.1998.
Subsequently, Roop Singh developed complications, Roop Singh was  taken  for
check up to Delhi and Roop Singh died on 13.10.1998.  Ram Pal  gave  written
information about the death of injured Roop Singh to the police and  Section
302  IPC  was  added  to  the  FIR.   After  completion  of   investigation,
chargesheet was filed against the appellants  for  offences  under  Sections
302, 307 and 452 IPC.
4.          To substantiate the charges against the appellants,  prosecution
examined nine witnesses and exhibited twenty  five  documents  and  material
objects.  Upon appreciation of evidence,  the  learned  Additional  Sessions
Judge, Meerut vide judgment dated 17.03.2007  found  the  appellants  guilty
for offences under Section 302 IPC read with Section 34 IPC and Section  307
IPC read with Section 34 IPC and Section 452 IPC and they were sentenced  to
suffer life imprisonment, ten years imprisonment with a fine  of  Rs.5,000/-
and three years imprisonment with a fine of  Rs.1,000/-  respectively.   The
trial court ordered that half of the fine amount be paid to PW-2  Sheela  as
compensation.  Aggrieved by the verdict of conviction, the appellants  filed
criminal appeals before the High Court  of  Judicature  at  Allahabad  which
were dismissed vide common impugned judgment dated 30.08.2012 upholding  the
conviction  and  sentence  imposed  upon  the   appellants   as   aforesaid.
Aggrieved,  the  appellants  have  preferred  these  appeals  assailing  the
conviction and sentence imposed on them.
5.          Learned  counsel  for  the  appellants  contended  that  as  the
deceased Roop Singh had already transferred his land to Partap Singh  (PW-1)
about one and a half years prior to  the  occurrence  and  therefore  it  is
improbable that Sanjay would have insisted his brother Roop  Singh  to  sell
his land also to appellant-Narendra and as such the motive suggested by  the
prosecution is not a probable one.  It was further submitted that  death  of
Roop Singh as seen from the evidence of Dr.  Laxman  Das  (PW-9)  when  Roop
Singh was discharged from the hospital his  condition  was  stable  and  two
months  thereafter  Roop  Singh  died  due  to  septicaemia  and   therefore
conviction of the appellants under Section 302 IPC is not sustainable.
6.          Per contra, Mr. Ratnakar Dash, learned Senior  Counsel  for  the
respondent contended that death of Roop Singh was the direct result  of  the
multiple bullet injury inflicted by  the  appellants  and  the  head  injury
caused by the appellants was sufficient in the ordinary course of nature  to
cause death and the courts below  rightly  convicted  the  appellants  under
Section 302 IPC and the same cannot be interfered.  Learned  Senior  Counsel
submitted that as the deceased Roop Singh sustained bullet injuries  on  his
head, intention to cause death can be inferred from the situs and nature  of
the injury and the weapon used.
7.          Case of the prosecution  as  seen  from  the  evidence  is  that
appellants-Sanjay and Narendra and one  unidentified  assailant  armed  with
countrymade pistols entered the house of deceased  Roop  Singh  at  the  wee
hours-3.00 a.m. on 11.08.1998.  It  is  alleged  that  the  appellant-Sanjay
fired four times at his sister-in-law-Sheela (PW-2)  wife  of  the  deceased
and Narendra fired one gun shot on the deceased-Roop Singh. Roop  Singh  was
operated at Safdarjung Hospital, Delhi and was discharged on 25.09.1998  and
he was taken back to his home  at  village  Sardhana.    When  injured  Roop
Singh was taken to Delhi for check up, he died on the  way  to  hospital  on
13.10.1998, PWs 1 and 2 have consistently spoken about the overt act of  the
appellants.  PW-2-Sheela is an injured witness and her version stands  on  a
higher footing.  The testimony of the injured witness coupled with the  fact
that the complaint was  promptly  lodged  by  the  complainant-Partap  Singh
within  one  and  half  hours  of  the  incident  lends  assurance  to   the
prosecution case.  As the prosecution  version  is  unassailable,  by  order
dated 18.04.2013, this Court  issued  notice  limited  to  the  question  of
nature of the offence committed by the appellants.
8.          In  the  light  of  the  specific  contention  advanced  by  the
appellants that after the attack the deceased survived for  sixty  two  days
after his surgery discharged in  stable  condition,  the  only  issue  which
needs to be examined is whether conviction of the appellants  under  Section
302 IPC is sustainable.
9.          Dr. Laxman Das (PW-9), Neuro  Surgeon  at  Safdarjung  Hospital,
Delhi who examined injured Roop Singh  on  12.08.1998  found  one  wound  of
insertion of bullet in the head mid  frontal  region  of  Roop  Singh  which
measured 2 cm x 2 cm. PW-9 conducted the operation on 15.09.1998 and  bullet
was extracted from the supra cellar part of the head of  Roop  Singh.   PW-9
stated  at  the  time  of  admission  of  Roop  Singh  in  the  hospital  on
12.08.1998, general condition of  the  patient  was  serious  and  that  the
injuries received in the  head  was  dangerous  to  his  life.           Dr.
Laxman Das (PW-9) opined that condition of  the  deceased  at  the  time  of
discharge  from  the  hospital  on  25.09.1998  was  not  critical  and  his
condition was stable.  In the instant case, admittedly, deceased Roop  Singh
died after sixty two days of the fateful incident.  PW-3-Dr.  M.C.  Gulecha,
who conducted the post-mortem  examination  on  the  body  of  deceased-Roop
Singh opined that the cause of death was septicaemia which was  due  to  the
wounds sustained by him prior to his death.
10.         Learned counsel for the appellants  submitted  that  since  Roop
Singh died more than two months after the date of the  occurrence  and  that
he was discharged from the hospital in good condition and septicaemia  might
have set in due to lack of proper care after  he  was  discharged  from  the
hospital and therefore the appellants cannot be  said  to  have  caused  the
death  of  deceased  and  the  conviction  under  Section  302  IPC  is  not
sustainable.
11.         Learned Senior Counsel for the respondent contended that  second
appellant-Narendra  inflicted  serious  injuries  on  the  forehead  of  the
deceased and fire shots  with   intention  to  kill  the  deceased  and  the
intention to cause death can be inferred from the situs of  the  injury  and
that the act was sufficient in  the  ordinary  course  of  nature  to  cause
death. Reliance was placed upon the judgment of this Court in  Jagtar  Singh
And Anr. vs. State of Punjab, (1999) 2 SCC 174 and  Dhupa  Chamar  And  Ors.
vs. State of Bihar, (2002) 6 SCC 506.
12.         In Jagtar Singh’s case (supra), Harbans Singh gave gandasa  blow
on the left side of the head of deceased-Naib Singh, Jagtar Singh  inflicted
khapra blow to the deceased.  The incident happened on  23.09.1991  and  the
injured succumbed to his injuries even while he was undergoing treatment  at
PGI Hospital Chandigarh on 09.10.1991.  In the said  case,  it  was  brought
out from evidence that the deceased succumbed to injuries even while he  was
undergoing treatment  and  in  such  facts  and  circumstances,  court  drew
inference that the injuries  were  sufficient  in  the  ordinary  course  of
nature to cause the death.   In Dhupa Chamar’s case  (supra),  Dhupa  Chamar
gave a bhala blow on the left side of neck of Ram Patia Devi  and  she  fell
down and died  instantaneously.  Accused  No.2-Tokha  Ram  assaulted  Dharam
Chamar in the  abdomen  with  bhala  and  he  was  rushed  to  the  hospital
whereupon he was declared brought dead.  On the basis of nature of  injuries
inflicted which resulted in the instant death of the  deceased  persons  and
other circumstances, court held that the intended injury was  sufficient  in
the ordinary course of nature to cause death and convicted the  accused  for
the offences under Section 302 IPC.
13.         However, in the instant case, it  is  apparent  that  the  death
occurred sixty two days after the occurrence due to septicaemia and  it  was
indirectly due to the injuries sustained by  the  deceased.   The  proximate
cause of death on 13.10.1998 was septicaemia which of course was due to  the
injuries caused in the incident on 11.08.1998.  As  noted  earlier,  as  per
the evidence of  Dr. Laxman Das (PW-9), Roop Singh was discharged  from  the
hospital in good condition and he survived for  sixty  two  days.   In  such
facts and circumstances, prosecution should have elicited  from  Dr.  Laxman
Das (PW-9) that the head injury sustained by the deceased was sufficient  in
the ordinary course of nature to cause death.  No such opinion was  elicited
either from Dr. Laxman Das  (PW-9)  or  from  Dr.  Gulecha  (PW-3).   Having
regard to the fact that Roop Singh survived for sixty two days and that  his
condition was stable when he was discharged from  the  hospital,  the  court
cannot draw an inference that the intended injury caused was  sufficient  in
the ordinary course of nature to cause death so as to attract clause (3)  of
Section 300 IPC.
14.         In Ganga Dass alias Godha vs. State of Haryana,  1994  Supp  (1)
SCC 534, the accused gave iron pipe single blow on the head of the  deceased
and the deceased died eighteen days after the occurrence due to  septicaemia
and other complications, the conviction of the appellant under  Section  302
IPC was altered by this Court to  Section  304  Part  II  IPC.   This  Court
observed as under:-
“6.  We find  considerable  force  in this submission.  As stated above  the
occurrence took place on November 18, 1988 and the  deceased  died  18  days
later on December 5, 1988 due to septicaemia and other  complications.   The
Doctor   found only one injury on the head and that was due to  single  blow
inflicted with an iron pipe not with any sharp-edged weapon.  Having  regard
to the circumstances  of  the  case,  it  is  difficult  to  hold  that  the
appellant intended to cause death nor it can be said  that  he  intended  to
cause that particular injury.  In any event the medical evidence shows  that
the injured deceased was operated but unfortunately some  complications  set
in and ultimately he died because  of  cardiac  failure  etc.   Under  these
circumstances, we set aside the conviction of the  appellant  under  Section
302 IPC and the  sentence  of  imprisonment  for  life  awarded  thereunder.
Instead we convict him under Section 304 Part II IPC  and  sentence  him  to
undergo six years’ RI.  The sentence of fine of Rs.2000 along  with  default
clause is confirmed.  Accordingly the appeal is partly allowed.”


15.         In the instant case, the appellants  used  firearms  countrymade
pistol and fired at  Roop  Singh  at  his  head  and  the  accused  had  the
intention of causing such bodily injury as is likely  to  cause  death.   As
the bullet injury was on the head, vital organ,  second  appellant  intended
of causing such bodily injury and therefore conviction of the  appellant  is
altered from Section 302 IPC  to  Section  304  Part  I  IPC.   The  learned
counsel for the appellant-Sanjay submitted that it  was  only  Narendra  who
fired at Roop Singh at his head, appellant-Sanjay fired on Sheela (PW-2)  on
her neck,  stomach  and  leg.   Learned  counsel  for  the  appellant-Sanjay
contended that as Sanjay fired only  at  Sheela,  he  could  not  have  been
convicted for causing death of Roop Singh under Section 302  IPC  read  with
Section 34 IPC. There is no  force  in  the  above  contention.  The  common
intention of the appellants is to be gathered from the manner in  which  the
crime has been committed.  Both the  appellants  came  together  armed  with
firearms  in  the  wee   hours   of   11.08.1998.    Both   the   appellants
indiscriminately  fired  from  their  countrymade  pistols  at  Roop  Singh-
deceased and Sheela (PW-2) respectively.  The conduct of the appellants  and
the manner in which the crime has been committed is  sufficient  to  attract
Section 34 IPC as  both  the  appellants  acted  in  furtherance  of  common
intention.  The conviction of the appellant-Sanjay  under  Section  302  IPC
read with Section 34 IPC is modified to conviction under Section 304 Part  I
 IPC.
16.              Conviction of  the  appellants-Narendra  and  Sanjay  under
Section 302 IPC and Section 302 IPC read with Section  34  IPC  respectively
is modified to Section 304 Part I IPC and Section 304 Part I IPC  read  with
Section 34 IPC respectively and  each  of  them  are  sentenced  to  undergo
rigorous imprisonment for ten years and  the  same  shall  run  concurrently
alongwith sentence of imprisonment imposed on  the  appellants.   Conviction
of the  appellants  for  other  offences  and  the  respective  sentence  of
imprisonment imposed on the appellants and fine is affirmed.    The  appeals
are partly allowed to the above extent.


                                                                ……………………CJI.
                                                        (T.S. THAKUR)


                                                                .………………………J.
                                                          (R. BANUMATHI)
New Delhi;
January 06, 2016

Succinctly stated, following circumstances are found to have been proved on record: - i) Admittedly, the deceased was wife of the accused and they had strained relations. ii) The accused was suffering from venereal disease which he suspected to have sexually transmitted through his wife. iii) On 5.8.2001 the accused had gone to his in-laws’ house and took his wife with him. iv) The deceased and the accused were last seen in the mid night (intervening night of 5.8.2001 and 6.8.2001) going together from cinema hall after night show, towards village Ayinavilli. v) The accused was last seen returning alone from village Ayinavilli, after midnight at about 12.30 a.m., i.e. 0030 hrs. on 6.8.2001. vi) The dead body of the deceased was recovered next morning on 6.8.2001 from village Ayinavilli. vii) The deceased had died homicidal death and cause of her death was asphyxia due to strangulation. viii) It is also established that the accused absconded from the village after the incident. 18. In our opinion, above chain of circumstances is complete and leads only to the conclusion that it was the accused/ respondent and he alone, who committed murder of the deceased. The view taken by the High Court that the chain of circumstances is not complete merely for the reason that drunkenness of the accused is not established, and that the accused cannot be said to have got sexually transmitted disease through his wife, is the view based on irrelevant considerations and could not have been taken in the present case after re-appreciating the evidence on record. It is proved on the record by PW-11 Dr. Venkata Reddy that the accused was suffering from balanoposthitis, and PW-1 Jithuka Nagooru and PW-2 Jithuka Veeramma have proved the fact that the accused suspected that it might have been transmitted to him through his wife. What is more important is that in his statement under Section 313 of Code of Criminal Procedure, when above evidence was put to the accused, he has accepted said fact. What he denied is that he did not go to take his wife to her parents’ house. He further denied that he did not take her to night show of any movie, nor committed her murder. In the above circumstances, we are of the opinion that in the present case only view possible was the one taken by the trial court. As such, it is a fit case where order of acquittal recorded by the High Court requires interference. Therefore, on the basis of the discussion on evidence, as above, we are of the view that this appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment and order passed by the High Court is set aside. The order of conviction and sentence recorded by the II Additional Sessions Judge, Rajahmundry in Sessions Case No. 363 of 2001 against the accused/respondent is restored.

                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 436 OF 2008


      State of A.P.                                      … Appellant


                                   Versus


      Patchimala Vigneswarudu @ Vigganna
      @ Ganapathi                                  …Respondent












                               J U D G M E N T




      Prafulla C. Pant, J.




            This  appeal  is  directed  against  judgment  and  order  dated
      24.2.2005, passed by the High Court of Judicature  Andhra  Pradesh  at
      Hyderabad,  whereby  Criminal  Appeal  No.  1313  of  2002,  filed  by
      accused/respondent Patchimala Vigneswarudu @ Vigganna @ Ganapathi,  is
      allowed, and he is acquitted of the charge of murder punishable  under
      Section 302 of Indian Penal Code (IPC), and order  of  conviction  and
      sentence, passed against him by  II Additional  Sessions  Judge,  East
      Godavari at Rajahmundry in Sessions Case No.  363  of  2001,  was  set
      aside.


   2. Prosecution story, in brief, is that Pachimala Ganga, daughter of PW-1
      Jithuka  Nagooru  and  PW-2  Jithuka  Veeramma,  got  married  to  the
      accused/respondent.  Their marriage  was  solemnized  some  two  years
      before the date of incident.  After marriage deceased Pachimala  Ganga
      joined company of her  husband  at  Cheyyeru  Agraharam,  and  started
      living with him.  After some time the accused came to know that he was
      suffering from venereal disease.  He  suspected  that  he  might  have
      contacted it through his wife.   This  started  souring  of  relations
      between the two.  According to the prosecution, the accused thereafter
      started ill-treating his wife, on which she left him and went  to  her
      parents’ house.  Sarojini, sister of the accused, went to the house of
      the parents of the deceased and promised that the deceased  would  not
      be subjected to ill-treatment.   On  this  personation  deceased  went
      again to Cheyyeru Agraharam, i.e. village of her husband, but she  was
      again allegedly subjected to harassment.  As such, prior to  ten  days
      before her death PW-1 and PW-2 (parents of the deceased) took her back
      to their house.


   3. On 5.8.2001 at 6.00 p.m. the accused himself went to the house of  his
      in-laws (PW-1 and PW-2) and took his wife on  the  pretext  that  they
      were going to watch night show of movie ‘Eduruleni  Manishi’  in  Devi
      Ganesh theatre in  neighbouring  Mukteswaram  village.   According  to
      prosecution, the couple went to the movie but the accused had  a  plan
      to kill her.  After midnight while returning home,  the  accused  took
      his wife towards coconut tope (grove of  PW-8  Ponakala  Satyanarayana
      Murthy) and murdered his wife by strangulating her.   Thereafter,  the
      accused left the place and  absconded.   PW-1  and  PW-2,  when  their
      daughter did not return, started searching for her.   On  6.8.2001  in
      the morning her dead body was found in the coconut tope.   PW-7  Yalla
      Satyanarayana noticed the dead body and told about the  same  to  PW-1
      and PW-2.


   4. PW-1 Jithuka Nagooru, father of the deceased, gave  First  Information
      Report on 6.8.2001 at 8.00 a.m., to the police on which crime  No.  50
      of 2001 was registered.  PW-15 Inspector A. Subbarao investigated  the
      crime.  PW-9 Relangi Sri Veera Venkata Satyanarayana, on  instructions
      of the Investigating Officer, prepared inquest report (Ex. P-3)  after
      the dead body was  taken  into  possession.   PW-12  Dr.  A.  Subbarao
      conducted post mortem examination on the dead body of the deceased and
      prepared autopsy report (Ex. P-22).  After recording the  ante  mortem
      injuries, the Medical Officer opined that the deceased had died due to
      asphyxia caused by  strangulation  with  ligature.   On  9.8.2001  the
      accused/respondent was arrested  by  the  Investigating  Officer  near
      Kanakadurga Temple.  After interrogating witnesses and  on  completion
      of investigation a charge sheet was filed by the Investigating Officer
      against accused Patchimala Vigneswarudu @ Vigganna @ Ganapathi for his
      trial in respect of offence punishable under Section 302 IPC.


   5.  It  appears  that  I  Additional  Judicial  First  Class  Magistrate,
      Amalapuram, committed the case  to  the  Court  of  Sessions  of  East
      Godavari Division  of  Rajahmundry.   Learned  Sessions  Judge,  after
      hearing  the  parties,  on  28.02.2002,  framed  charge   of   offence
      punishable  under  Section  302   IPC   against   accused   Patchimala
      Vigneswarudu @ Vigganna @ Ganapathi and explained the same to  him  in
      Telugu to which the accused pleaded  not  guilty  and  claimed  to  be
      tried.


   6. The prosecution got examined  PW-1  Jithuka  Nagooru  (father  of  the
      deceased), PW-2  Jithuka  Veeramma  (mother  of  the  deceased),  PW-3
      Gannavarapu Suryanarayana (Sarpanch of village Ayinavilli), PW-4  Inje
      Anjaneyulu (who last saw the deceased with  the  accused  going  after
      night  show  from  Mukteswaram  towards   Ayinavilli),   PW-5   Jinipe
      Venkateswara Rao (an employee of cinema hall who sold the  tickets  of
      night show to the accused), PW-6 Jithuka Vijaya Kumar (the witness who
      saw the accused returning alone  from  Ayinavilli  towards  Amalapuram
      after 12.30 a.m. and boarding quarry lorry heading for  Mummidivaram),
      PW-7 Yalla Satyanarayana (who is witness of the  fact  that  when  the
      dead body was found in coconut tope, there was saree around her neck),
      PW-8 Ponakala Satyanarayana Murthy (who also saw the dead  body  lying
      in the coconut tope), PW-9 Relangi  Sri  Veera  Venkata  Satyanarayana
      (who prepared the inquest report),  PW-10  K.V.V.  Satyanarayana  (who
      photographed  the  dead  body),  PW-11  Dr.  Ch.  Venkata  Reddy  (who
      medically examined the accused and reported that he was suffering from
      balanoposthitis – sexually transmitted venereal disease), PW-12 Dr. A.
      Subbarao (who conducted post mortem examination on the  dead  body  of
      the deceased), PW-13 M. Subrahmanyam (police constable  who  took  the
      dead body for post mortem examination in sealed condition),  PW-14  G.
      S.I. Devakumar (who registered  the  crime)  and  PW-15  Inspector  A.
      Subbarao (who investigated the crime).


   7. Oral and documentary evidence was put to the accused under Section 313
      of Code of Criminal Procedure, 1973,  in  reply  to  which  he  denied
      having gone to the house of PW-1 and PW-2 to take his wife  or  having
      her taken to night show cinema.  However, he admitted that he suffered
      from venereal disease, and suspected that it was  transmitted  to  him
      through his wife.  He further stated that after his wife left for  her
      parental house, she did not come back.


   8. The trial court, after considering the evidence on record,  found  the
      accused guilty of charge of offence punishable under Section 302  IPC,
      and convicted and sentenced him to imprisonment for life and  directed
      to pay fine of Rs.200/- in default of payment of which the accused was
      directed to further undergo simple imprisonment for a  period  of  one
      month.  Against said order dated 18.9.2002, passed  by  II  Additional
      Sessions Judge, Rajahmundry, criminal appeal was filed by the  convict
      before the High Court, and after hearing the parties, the  High  Court
      allowed the appeal and acquitted the accused/respondent of the  charge
      on the ground that chain of circumstances is not complete leading to a
      definite  conclusion  that  the  accused  alone  was  responsible  for
      commission of offence.  The State has preferred  this  appeal  against
      the impugned order passed by the High Court acquitting the accused.


   9. Learned counsel for the State argued that the High Court has committed
      grave error of  law  in  acquitting  the  accused,  by  reversing  the
      conviction recorded by the trial court.   It  is  contended  that  the
      chain of circumstances is complete and the charge is fully  proved  on
      the record.  On the other hand, learned Amicus  Curiae  appearing  for
      the respondent submitted  that  the  chain  of  circumstances  is  not
      complete, and where two  views  are  possible  on  the  basis  of  the
      evidence on record, the order of acquittal passed by  the  High  Court
      cannot be interfered with.


  10. Before further discussion we think it just and proper to  mention  the
      ante mortem injuries found on the dead body of the deceased  by  PW-12
      Dr. A Subbarao, who conducted autopsy on 6.8.2001 and prepared Ex.  P-
      22.  Describing the condition of the body at the time of  post  mortem
      examination, the Medical Officer has stated that eyes of the  deceased
      were closed, mouth was open with tongue protruding between  upper  and
      lower teeth, blood stained froth was coming  from  both  nostrils  and
      mouth.  Following ante mortem injuries were noted by the doctor: -


        i) Ligature mark  completely  encircling  the  neck  transverse  in
           direction below the thyroid cartilage. Width of ligature mark  4
           to 5 mms.
       ii) Abrasions were present over the ligature mark.  Scratches due to
           nails are seen over the ligature on the right side.
      iii) Abrasion over the middle third of the right arm of size 3 x 3 cm
           reddish in colour.


            On internal examination, the Medical Officer (PW-12) found  that
      echymosis and congestion was seen in sub-cutaneous  tissue  under  the
      ligature mark.  Hyoid bone was intact.  Thyroid cartilage was  intact.
      Larynx, trachea and bronchi were  congested  and  filled  with  frothy
      blood stained fluid.  Haemorrhages were seen in mocosa of larynx.  The
      Medical Officer opined that the deceased  had  died  due  to  asphyxia
      caused by strangulation with ligature.  PW-12 Dr. A. Subbarao  further
      stated that death could have been occurred  by  putting  saree  (MO-1)
      around the neck of the deceased by tightening it and by  pulling  with
      force.  The above medical evidence on record proves that the  deceased
      died a homicidal  death  and  cause  of  death  was  asphyxia  due  to
      strangulation.


  11. As far as relation between the accused and the deceased is  concerned,
      the prosecution evidence on record, as stated by  PW-1  and  PW-2,  is
      corroborated by the fact that the accused  himself  has  admitted  his
      marriage with the deceased, and his strained relations with her.


  12. Apart from the above, it is proved on  record  that  on  the  date  of
      incident, before midnight, the accused took  his  wife  (deceased)  to
      night show of movie.  PW-1 Jithuka Nagooru (father  of  the  deceased)
      and PW-2 Jithuka Veeramma (mother of the deceased) have stated that  a
      day before the dead body of the deceased was found,  the  accused  had
      come to their house and took his wife  on  the  pretext  that  he  was
      taking her to night show cinema.


  13. Also it is established from the statement of PW-4 Inje Anjaneyulu that
      he last saw the deceased with the accused walking  towards  Ayinavilli
      (the village where later dead body of the deceased was  found).   PW-5
      Jinipe Venkateswara Rao, who is the gatekeeper of Devi Ganesh  Theatre
      at Mukteswaram, told that he knew both accused and the  deceased,  and
      they purchased two tickets for last show at 8.00 p.m.  Both  of  these
      witnesses have proved the fact that soon before her death the deceased
      was last seen with the accused.


  14. Yet another circumstance against the accused brought on the record  by
      PW-6 Jithuka Vijaya Kumar, who has stated  that  he  saw  the  accused
      coming alone after midnight from the side of Ayinavilli  and  boarding
      quarry lorry heading to Mummidivaram.


  15. Lastly, it is stated on record by the prosecution witnesses  that  the
      accused absconded after the incident.


  16. The recovery of dead body in the morning of 6.8.2001,  is  proved  not
      only by PW-1 and PW-2, but also  by  PW-7  Yalla  Satyanarayana,  PW-8
      Ponakala Satyanarayana Murthy  and  PW-9  Relangi  Sri  Veera  Venkata
      Satyanarayana, which gets corroborated from Ex. P-2.


  17. Succinctly stated, following circumstances  are  found  to  have  been
      proved on record: -


        i) Admittedly, the deceased was wife of the accused  and  they  had
           strained relations.
       ii) The  accused  was  suffering  from  venereal  disease  which  he
           suspected to have sexually transmitted through his wife.
      iii) On 5.8.2001 the accused had gone to his in-laws’ house and  took
           his wife with him.
       iv) The deceased and the accused were last seen  in  the  mid  night
           (intervening night of 5.8.2001 and 6.8.2001) going together from
           cinema hall after night show, towards village Ayinavilli.
        v)  The  accused  was  last  seen  returning  alone  from   village
           Ayinavilli, after midnight at about 12.30 a.m., i.e.  0030  hrs.
           on 6.8.2001.
       vi) The dead body of the deceased  was  recovered  next  morning  on
           6.8.2001 from village Ayinavilli.
      vii) The deceased had died homicidal death and cause of her death was
           asphyxia due to strangulation.
     viii) It is also established  that  the  accused  absconded  from  the
           village after the incident.


  18. In our opinion, above chain of circumstances  is  complete  and  leads
      only to the conclusion that it was  the  accused/  respondent  and  he
      alone, who committed murder of the deceased.  The view  taken  by  the
      High Court that the chain of circumstances is not complete merely  for
      the reason that drunkenness of the accused  is  not  established,  and
      that the accused cannot be  said  to  have  got  sexually  transmitted
      disease  through  his  wife,  is  the   view   based   on   irrelevant
      considerations and could not have been taken in the present case after
      re-appreciating the evidence on record.  It is proved on the record by
      PW-11  Dr.  Venkata  Reddy  that  the  accused  was   suffering   from
      balanoposthitis, and PW-1 Jithuka Nagooru and  PW-2  Jithuka  Veeramma
      have proved the fact that the accused suspected  that  it  might  have
      been transmitted to him through his wife.  What is more  important  is
      that in his statement under Section 313 of Code of Criminal Procedure,
      when above evidence was put to the accused, he has accepted said fact.
       What he denied is that he did not go to take his wife to her parents’
      house.  He further denied that he did not take her to  night  show  of
      any movie, nor committed her murder.  In the above  circumstances,  we
      are of the opinion that in the present case only view possible was the
      one taken by the trial court.  As such, it is a fit case  where  order
      of  acquittal  recorded  by  the  High  Court  requires  interference.
      Therefore, on the basis of the discussion on evidence,  as  above,  we
      are of the view that this appeal deserves to be allowed.


  19. Accordingly, the appeal is allowed.  The impugned judgment  and  order
      passed by the High Court is set aside.  The order  of  conviction  and
      sentence recorded by the II Additional Sessions Judge, Rajahmundry  in
      Sessions Case No.  363  of  2001  against  the  accused/respondent  is
      restored.  The accused/respondent shall be taken into custody  by  the
      trial court to make him serve out the remaining part of the sentence.




                                                          ………………….....…………J.
                                                  [Dipak Misra]




                                                            .………………….……………J.
                                                          [Prafulla C. Pant]
      New Delhi;
      January 06, 2016.

The word alibi means “elsewhere”. The plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC. It is a rule of evidence recognized under Section 11 of the Evidence Act. However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused. In the present case said condition is fulfilled.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2099 OF 2008

Darshan Singh                                      … Appellant

                                   Versus

State of Punjab                                     …Respondent






                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against judgment and order  dated  02.09.2008,
passed by High Court of Punjab and Haryana,  Chandigarh,  whereby  the  High
Court has disposed of Criminal Appeals No. 209 D.B. and  568  DBA,  both  of
1998 and Criminal Revision No. 654 of 1998. The appeal filed  by  the  State
qua Darshan Singh (present appellant) against his  acquittal  by  the  trial
court, was allowed and his acquittal was  reversed.  The  present  appellant
has been convicted by the High Court  under  Section  302  of  Indian  Penal
Code, 1860 (for short “IPC”), and sentenced to  imprisonment  for  life  and
directed to pay a fine Rs. 5,000/- and in default of payment of fine  he  is
directed to undergo rigorous  imprisonment  for  a  further  period  of  six
months. Appellant Darshan Singh has been further found guilty of the  charge
of offence punishable under Section 324 of IPC,  and  sentenced  to  undergo
rigorous imprisonment for a period of one year and directed to pay  fine  of
Rs. 1,000/- with default clause directing to undergo  rigorous  imprisonment
for further period of two months.

2.    We have heard learned counsel for the parties and perused  the  papers
on record.

3.    Prosecution story,  in  brief,  is  that  there  was  dispute  between
complainant and his relatives on one side and accused persons on  the  other
side regarding their turn of irrigating their fields. On  account  of  this,
earlier  there  had  been  incidents  of  assaulting  each  other.  In   the
circumstances, both  the  parties  were  facing  proceedings  under  Section
107/151 of Code of Criminal  Procedure,  1973  (for  short  “Cr.PC”)  before
Executive Magistrate, Faridkot. On 17.02.1995, complainant Amrik Singh  (PW-
1) along with Raj Singh (PW-3), Sukhchain Singh (PW-2) , Harbans Singh  (one
of the deceased), and their father Mander Singh and  cousin  Gursewak  Singh
with maternal uncle Santa Singh (another deceased) and Boota Singh had  gone
to attend the proceedings of the court. From  the  side  of  accused  Surain
Singh, Jasmail Singh, Darshan Singh (present appellant),  Jhanda  Singh  and
Boota Singh had also come to the court on said date.  At  about  11.00  a.m.
both the sides started quarrelling and had a heated exchange  of  words,  as
Surain Singh objected to presence  of  Bhajan  Singh  who  was  relative  of
complainant Amrik Singh and not a  party  to  the  proceedings.  He  (Surain
Singh), a Amritdhari Sikh, took out his Siri Sahib (Small  Kripan,  a  sharp
edged weapon)  and  gave  blow  to  Bhajan  Singh.  When  complainant  party
attempted to separate them, Surain Singh gave Kripan blow on the  person  of
Mander Singh. He assaulted also on the  left  shoulder  of  the  complainant
Amrik Singh, and gave two blows on the person of Suckhchain  Singh.  He  did
not stop there and also assaulted  Harbans  Singh  (deceased)  with  Kripan.
Accused Darshan Singh (appellant) also took out  his  Kripan  and  inflicted
injuries on the person of Santa Singh (another deceased).   Accused  Darshan
Singh (appellant) is said to have given blows also to Raj Singh.  Pal  Singh
and Jhanda Singh caught hold of Gursewak Singh, and Darshan Singh  assaulted
them also. Accused Boota Singh instigated other accused that no  one  should
be escaped alive. The injured  were  taken  to  Guru  Gobind  Singh  Medical
Hospital, Faridkot, where Santa Singh and Harbans Singh succumbed  to  their
injuries.

4.    Report of the above incident was lodged  by  complainant  Amrik  Singh
(PW-2). On the basis of it, FIR No. 14, dated 17.02.1995 was  registered  at
Police Station, City Faridkot.  The  investigation  was  taken  up  by  Sub-
inspector Ranjit Singh (PW-17), who took the dead bodies in his  possession,
sealed it, prepared  inquest  report  and  got  sent  them  for  post-mortem
examination.  Dr.  Sarabjit  Singh  Sandhu  (PW-4)   conducted   post-mortem
examination on  the  dead  bodies  of  Santa  Singh  and  Harbans  Singh  on
17.02.1995, and prepared  autopsy  reports.  The  other  injured  were  also
medically examined by PW-4 Dr. Sarabjit  Singh Sandhu and PW-5   Dr.  Manjit
Singh. There were injuries also on the side of the accused, and  from  their
side accused Pal Singh,  accused  Surain  Singh  and  accused  Jhanda  Singh
suffered injuries.  After  interrogating  witnesses  and  on  completion  of
investigation  PW-16  Assistant  Sub-inspector  Ram  Singh  (who  took  over
investigation from S.I Ranjit Singh) submitted charge-sheet against  accused
persons in the court.

5.    It appears that after the committal of the case it was  registered  as
Session Case No.  33  of  1995.  On  7.7.1995,  Additional  Sessions  Judge,
Faridkot framed charge  against  all  the  accused,  namely,  Surain  Singh,
Darshan Singh (present appellant), Pal Singh, Jhanda Singh , Jasmail  Singh,
Boota Singh and Lachman Dass relating to offences punishable  under  Section
148, 302/149  (on  separate  counts  of  death  of  two  persons),  307/149,
324/149, 218 and 201 IPC to which accused pleaded not guilty and claimed  to
be tried.

6.    Thereafter prosecution got examined PW-1 Amrik Singh (informant),  PW-
2 Sukhchain Singh, PW-3 Raj Singh (all the three injured eye witnesses), PW-
4 Dr. Sarabjit Singh Sandhu who conducted post-mortem examination, PW-5  Dr.
Manjit Singh, PW-6 Gurcharanjit Kaur, Ahalmad, PW-7 Ujjagar Singh, Steno  to
A.D.C. Moga, PW-8  ASI Basant Singh, PW-9 Head Constable Shagan  Singh,  PW-
10 Inspector Prithvi Singh,  PW-11  Prithi  Pal  Singh,  S.S.Teacher,  PW-12
Dharam Singh, Draftsman, PW-13 MHC Baljit Singh, PW-14 Dr. S.P. Singla,  PW-
15 Sub Inspector Shivraj Bhushan,  PW-16  Sub  Inspector  Ram  Singh,  PW-17
Inspector Ranjit Singh,  PW-18  Constable  Jagjit  Singh  and  PW-19  Satish
Kalia, Ahalmad.
7.    The evidence adduced by prosecution was put  to  the  accused  by  the
trial court under Section 313 of  Cr.PC.  In  reply  to  which  the  accused
persons alleged that evidence against them was incorrect. Appellant  Darshan
Singh took the specific plea of alibi stating  that  on  17.02.1995  he  was
attending his duty as a Laboratory Assistant  in  Senior  Secondary  School,
Janerian. Other accused took  pleas  of  self  defence.  On  behalf  of  the
defence DW-1 Satnam Kaur, DW-2 Rajinder Kumar, DW-3 Darshan  Singh  (Teacher
in primary school, Pakhi  Khurd),  DW-4  Pawan  Kumar,  Ahalmad,  DW-5  J.V.
Tiwari, DW-6 Mukhtiar Singh, DW-7 Om Parkash  and  DW-8  ASI  Harvinder  Pal
Singh were examined.

8.    The trial court  after  hearing  the  parties  found  that  charge  as
against accused Boota Singh, Darshan Singh and Lachman Dass  is  not  proved
and, as such,  they  were  acquitted.  However,  accused  Surain  Singh  was
convicted under Section 302 of IPC for committing murder  of  Harbans  Singh
and also under Section 307 of IPC for attempting to murder Sukhchain  Singh.
He (Surain Singh) was further convicted under Section 324 of  IPC.  Rest  of
the accused Jhanda Singh, Jasmail Singh and Pal Singh were  convicted  under
Sections 302/34, 307/34 and 324/34 of IPC. After hearing the  sentence,  the
trial court sentenced the convicts to various sentences.

9.    Convicts Surain Singh, Jhanda  Singh,  Jasmail  Singh  and  Pal  Singh
challenged their conviction before the  High  Court,  and  by  the  impugned
order the High Court allowed appeal of Jhanda Singh, Jasmail Singh  and  Pal
Singh, but appeal of Surain Singh was dismissed. The  connected  appeal  No.
568 DBA of 1998 filed by the State qua Darshan Singh against  order  of  his
acquittal was allowed, and he was convicted under Section  302  of  IPC  for
committing murder of Santa Singh and sentenced to imprisonment for life  and
directed to pay fine of Rs. 5,000/- with  default  clause.  He  was  further
convicted under Section 324 of IPC  for  voluntarily  causing  hurt  with  a
deadly weapon on person of Gursewak Singh and Raj  Singh  and  sentenced  to
rigorous imprisonment for a period of one  year  and  to  pay  fine  of  Rs.
1,000/- with default clause. Aggrieved by  said  judgment  and  order  dated
02.09.2008, passed by the High  Court,  this  appeal  is  filed  by  accused
Darshan Singh who was acquitted by the trial court, but order  of  acquittal
was reversed and was convicted by the High Court.

10.   Mr. K.T.S. Tulsi, Senior Advocate, on behalf  of  the  appellant,  has
argued before us that where two views are possible on the basis of  evidence
on record, the High Court should not have reversed the  order  of  acquittal
recorded by trial court. It is  further  contended  that  appellant  Darshan
Singh was discharging his duties in the school on  17.02.1995  and  was  not
present at the place of incident when occurrence took  place  and  as  such,
the acquittal recorded by the trial court was not liable  to  be  interfered
with. Our attention is drawn to the evidence adduced in defence  in  support
of plea of alibi.

11.   On the other hand, learned counsel for the State pointed out  that  in
the incident in question, while Surain Singh  committed  murder  of  Harbans
Singh, the appellant (Darshan Singh) committed murder of Santa Singh. It  is
further submitted that plea of alibi taken  by  the  defence  was  correctly
found false by the High Court after  re-appreciation  of  evidence.  Learned
counsel for the State referred to the statements of injured eye witnesses.

12.   We have considered rival submissions and perused the entire record  of
the case. There are  three  injured  eye  witnesses  in  the  present  case,
namely, PW-1 Amrik Singh, PW-2 Sukhchain Singh and PW-3 Raj Singh. It  is  a
case of day light incident. Injuries on the person  of  said  eye  witnesses
have been corroborated by PW-4 Dr. Sarabjit Singh Sandhu,  PW-5  Dr.  Manjit
Singh and PW-14 Dr. S.P. Singla. Ocular testimony of  eye  witnesses  cannot
be discarded lightly. Once the prosecution has discharged  its  burden,  the
burden to prove that appellant Darshan Singh  was  not  present  with  other
accused at the place of incident  and  had  gone  elsewhere,  lies  on  him.
Injured eye witnesses have assigned specific role as  to  how  he  assaulted
Santa Singh who suffered ante mortem injuries which gets  corroborated  from
the autopsy report of Santa Singh. There are as many as five stabbed  wounds
out of the six ante mortem injuries. The same  are  being  reproduced  below
from autopsy report of Santa Singh:-
“1. Transverse stab wound 3 x 0.5 cm was present on  the  anterior  side  of
chest on the left side, 6 cms below and lateral to left nipple  at  4.00  O’
clock position. C.B.P was present. On dissection, it is going in  wards  and
medially through 6th inter costal space, piercing the pericardium  and  left
vertical. Pericardial sac contains about 200 C.C of fluid blood.

2. Transverse stab wound 3 x 0.5 cm on the lateral  side  of  left  side  of
chest 6 cms lateral to the injury no.1. It was bone deep C.B.P.

3. Transverse stab wound 2 x 0.5 cm was present at  the  back  of  the  left
side of abdomen 3 cms lateral to midline  and  15  cm  above  the  posterior
superior iliac spine of  left  side  on  dissection,  the  peritoneum  large
intestia was cut. Peritoneal cavity contained about 500 C.C.  of  fluid  and
clotted blood.

4. Transverse stab wound 2.5 x 0.5 cm was present on the back  of  the  left
side of abdomen, 6 cms lateral to the injury no.3 C.B.P. It was skin deep.

5. An oblique stab wound 1.5 x 25 cm on the back of left side  of  chest,  2
cms from the midline and 20 cms below the nape of  the  neck,  it  was  bone
deep C.B.P.

      6. A transverse stab wound 4 x 0.5 cms on the back  of  left  side  of
chest, 5 cms from the midline and 12 cms below the nape of the neck.  C.B.P.
It was bone deep.”

13.   From the record, PW-1  Amrik  Singh  (eye  witness)  appears  to  have
suffered following injuries at the time of the incident:-
      “2.4cm x 1cm incised  wound-10.5  cms  below  and  posterior  to  left
shoulder joint. X-ray of left shoulder joint advised.

      Injury was kept under observation and  duration  was  within  6  hours
weapon used was sharp weapon”

      Injuries were declared simple in nature as per x-ray  report  and  was
result of a sharp weapon.”

14.   Another eye witness  PW-2  Sukhchain  Singh  found  to  have  suffered
following injuries as per the injury report proved on the record:-
      “1.   1.0 cm x 0.25 cm incised wound on the middle of forehead.  X-ray
advised.

      2.  2 cm x 1 cm incised wound on right  side  of  chest  17  cms  from
xiphisternum. Profuse bleeding was present. X-ray advised.

      3.  3 x 2 cms incised  wound  on  right  lumber  region-10  cms  below
injury no.2. Surgical opinion and X-ray advised.”

15.   Third eye witness PW-3 Raj Singh suffered following  injuries  on  the
date of incident, as proved on the record:-
“1.  1.9 cm x 1 incised wound in right Gluteal  region-6  ½  cms  below  the
right. Anterior superior iliac spine. X-ray advised.

2.  2cms x 1 cm incised wound on right lower chest. Bonedeep  22  cms  below
the right anterior, Axillary fold-17  cms  below  and  slightly  lateral  to
right memory gland. Surgical opinion was advised.”


16.   Now, we come to the defence plea of appellant Darshan Singh which  was
accepted by the trial court but rejected by the  High  Court.  There  is  no
cavil over  the  fact  that  appellant  Darshan  Singh  was  posted  as  Lab
Assistant with the Senior Secondary School, Janerian. After carefully  going
through the statements of defence witnesses and other  evidence  on  record,
we agree with the High Court that accused  Darshan  Singh  has  taken  false
plea of alibi. It is proved on the record  that  in  the  proceedings  under
Section 107/151 of Cr.PC before Executive Magistrate, Faridkot,  he  was  to
be present in said case on 17.02.1995.  His presence and  role  is  narrated
in detail by the injured eye witnesses. In view of his role in the  incident
narrated by the eye witnesses, it is  hard  to  believe  that  after  moving
application on 16.02.1995 for casual leave  for  17.02.1995,  Darshan  Singh
attended the school next day in the first half and  sought  half  day  leave
thereafter. The attendance register was not  seized  immediately  after  the
incident. His plea of alibi is vacillating.

17.     The word alibi means “elsewhere”. The plea of alibi is  not  one  of
the General Exceptions contained in Chapter IV of  IPC.  It  is  a  rule  of
evidence recognized under Section 11 of the Evidence Act. However,  plea  of
alibi taken by the defence is required to be proved only  after  prosecution
has proved its case against the accused. In the present case said  condition
is fulfilled.

18.   After scrutinizing the entire evidence on record, we do not  find  any
illegality in appreciation of evidence, or in arriving at the conclusion  as
to the guilt of the present appellant by the High Court.

19.   Therefore, for the reasons discussed above, we find no force  in  this
appeal which liable to be dismissed.


20.    Accordingly,  the  appeal  is  dismissed.  Appellant  be  taken  into
custody by the court concerned to make him serve out the remaining  part  of
sentence, awarded by the High Court.

                                                          ………………….....…………J.
                                                  [Dipak Misra]




                                                            .………………….……………J.
                                                          [Prafulla C. Pant]
New Delhi;
January 06, 2016.

appearing in two examinations simultaneously for the same year is violation of the Regulations of the Board, this reason given by the High Court is clearly unsustainable inasmuch as no such Regulation is shown by the Board which prohibited any such candidate to appear in two examinations in the same year. The learned senior counsel further argued that the impugned order passed by the respondents for confiscating his Certificate of Intermediate exam was, otherwise also, contrary to the principles of natural justice inasmuch as no show cause notice and opportunity of hearing was given to the appellant before passing such an order, which was passed belatedly after a period of nine years from the passing of the said examination by the appellant. 7. We are of the opinion that both the submissions of the learned senior counsel are valid in law and have to prevail. The High Court has been influenced by the argument of the respondents that simultaneous appearance in two examinations by the appellant in the same year was 'contrary to the Regulations'. However, no such Regulation has been mentioned either by the learned Single Judge or the Division Bench. Curiously, no such Regulation has been pointed out even by the respondents. On our specific query to the learned counsel for the respondents to this effect, he expressed his inability to show any such Regulation or any other rule or provision contained in the U.P. Intermediate Education Act, 1921 or Supplementary Regulations of 1976 framed under the aforesaid Act or in any other governing Regulations. Therefore, the entire foundation of the impugned judgment of the High Court is erroneous. 8. It is also pertinent to note that the appellant's intermediate examination and result thereof was not in question before the U.P. Board. No illegality in the admission in that class has been pointed out by the respondents. The alleged charge of simultaneously appearing in two examinations, one of the U.P. Board and other of the Sanskrit Board, was with respect to Class X and equivalent examination which did not relate to admission in intermediate course. The only provision for canceling the said admission is contained in Regulation (1) of Chapter VI-B. It details the procedure for passing the order of punishment canceling intermediate results and, inter alia, prescribes that a committee consisting of three different members is to be constituted and entrusted with the responsibility of looking into and disposing of cases relating to unfair means and award appropriate penalty as specified in the Regulations itself. However, there is no allegation of any unfair means adopted by the appellant in the instant case and, therefore, that Regulation has no applicability. Even otherwise, no such committee was constituted. Therefore, having taken admission in Intermediate on the basis of past certificate issued by a separate Board, which was recognised, and not on the basis of the result of Class X of the U.P. Board, the appellant derived no advantage from his examination of the U.P. Board while seeking admission in Intermediate course. Thus, from any angle the matter is to be looked into, the impugned orders dated April 20, 2011 and May 10, 2011 passed by the respondents are null and void, apart from the fact that they are in violation of the principles of natural justice. 9. The appeal is, accordingly, allowed with costs by quashing the aforesaid impugned orders and reversing the impugned judgment of the High Court. The appellant shall, accordingly, be entitled to all consequential benefits.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 11   OF 2016
                  (ARISING OUT OF SLP (C) NO. 2964 OF 2015)


|KULDEEP KUMAR PATHAK                       |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF U.P. AND OTHERS                   |.....RESPONDENT(S)           |



                               J U D G M E N T


A.K. SIKRI, J.

                 Leave granted.  Matter  is  finally  heard  at  this  stage
itself with the consent of the learned counsel for the parties.

2.     The  appellant  herein  appeared  in  the  Intermediate   Examination
conducted by Madhyamik Shiksha Parishad, U.P., Allahabad in  the  year  2002
and successfully cleared the said examination.  On that  basis,  he  pursued
the Graduation and  passed  Bachelor  of  Arts  (B.A.)  in  the  year  2005.
Thereafter, he even successfully completed his Post-Graduation  course  i.e.
Masters of  Arts (M.A.) in the year 2007 with a  desire  to  pursue  further
studies.  He  even  joined  LL.B.  course  and  successfully  cleared  LL.B.
examinations also in the year 2011.  He had  the  ambition  to  get  himself
enrolled as an Advocate so as to  pursue  the  legal  profession.   However,
before he could do that, respondent-authorities inflicted  upon  him  a  big
blow in the form of canceling his intermediate  results  of  the  year  2002
which examination was conducted by Madhyamik  Shiksha  Parishad,  Allahabad.
Order to this effect, without  putting  the  appellant  to  any  notice  and
without affording any opportunity of hearing, was passed  nine  years  after
the said exam with the direction to confiscate his Certificate.  The  effect
of the aforesaid action of the respondent was not only take away the  result
of the Intermediate Examination,  but  it  also  nullified  further  courses
which he had pursued and passed in the meantime.

3.    The  reason  for  canceling  the  said  examination  by  the  Regional
Secretary,  U.P.  Board  of  High  School   and   Intermediate   Examination
(hereinafter referred to  as  the  'U.P.  Board'),  Varanasi  was  that  the
appellant had simultaneously appeared in two examinations, one of  the  U.P.
Board and other of Sanskrit Board with respect to  Class  X  and  equivalent
examination and it was not permissible for the appellant to  appear  in  two
examinations conducted by two different Boards simultaneously.

4.    The appellant, aggrieved by the aforesaid orders dated April 20,  2011
passed by the Regional Secretary,  Intermediate  Education  Board,  Varanasi
(respondent No. 3), preferred a representation dated  May  10,  2011  before
the Director,  Education  (Secondary),  Lucknow  (respondent  No.  2).  This
representation was also addressed to respondent No. 3. Request was  made  to
both respondent Nos. 2 and 3 to allow him to present his case and  give  him
an  opportunity  of  hearing.   However,   nothing   was   heard   on   this
representation and instead consequential orders  dated  May  18,  2011  were
passed giving effect  to  earlier  orders  dated  April  20,  2011,  thereby
confiscating the Certificates of Award in favour of the appellant.

5.    The aforesaid actions of  the  respondents  forced  the  appellant  to
challenge the said orders dated April 10, 2011 and May 18, 2011  before  the
High Court of Judicature at  Allahabad  by  filing  a  writ  petition  under
Article 226 of the Constitution.  The  learned  Single  Judge  of  the  High
Court, however, dismissed the writ  petition  vide  orders  dated  July  08,
2013.  Intra-court  appeal  filed  against  the  said  judgment  before  the
Division Bench also met the same fate inasmuch  as  vide  impugned  judgment
dated January 22, 2014, the appeal of the appellant has  been  dismissed  by
the Division Bench of the High Court, thereby affirming the  orders  of  the
Single Judge.  A perusal of the orders of the Single Judge as  well  as  the
Division Bench would reflect that the courts below have  gone  primarily  by
the fact that since the appellant admitted that he appeared in  two  streams
in two different Boards in the year 2000, this action on  the  part  of  the
appellant was  contrary  to  the  Regulations  and,  therefore,  the  orders
canceling the exam were rightly passed by the respondents.

6.    Before us, Mr. Pradeep Kant, learned senior counsel for the  appellant
has made a neat  legal  argument.   He  submits  that  though  the  impugned
judgment  proceeds  on  the  basis  that  appearing  in   two   examinations
simultaneously for the same year is violation  of  the  Regulations  of  the
Board, this  reason  given  by  the  High  Court  is  clearly  unsustainable
inasmuch as no such Regulation is shown by the Board  which  prohibited  any
such candidate to appear in two examinations in the same year.  The  learned
senior counsel  further  argued  that  the  impugned  order  passed  by  the
respondents for confiscating  his  Certificate  of  Intermediate  exam  was,
otherwise also, contrary to the principles of natural  justice  inasmuch  as
no show cause notice and opportunity of hearing was given to  the  appellant
before passing such an order, which was passed belatedly after a  period  of
nine years from the passing of the said examination by the appellant.

7.    We are of the opinion that both the submissions of the learned  senior
counsel are valid in law and have to  prevail.   The  High  Court  has  been
influenced by the argument of the respondents that  simultaneous  appearance
in two examinations by the appellant in the same year was 'contrary  to  the
Regulations'. However, no such Regulation has been mentioned either  by  the
learned Single Judge or the Division Bench.  Curiously, no  such  Regulation
has been pointed out even by the respondents.  On our specific query to  the
learned counsel for  the  respondents  to  this  effect,  he  expressed  his
inability to show any  such  Regulation  or  any  other  rule  or  provision
contained in the U.P. Intermediate  Education  Act,  1921  or  Supplementary
Regulations of  1976  framed  under  the  aforesaid  Act  or  in  any  other
governing Regulations.  Therefore, the entire  foundation  of  the  impugned
judgment of the High Court is erroneous.

8.    It is  also  pertinent  to  note  that  the  appellant's  intermediate
examination and result thereof was not in question before  the  U.P.  Board.
No illegality in the admission in that class has been  pointed  out  by  the
respondents.  The  alleged  charge  of  simultaneously  appearing   in   two
examinations, one of the U.P. Board and other of  the  Sanskrit  Board,  was
with respect to Class X and equivalent examination which did not  relate  to
admission in intermediate course.  The  only  provision  for  canceling  the
said admission is contained in Regulation (1) of Chapter VI-B.   It  details
the procedure for passing the order  of  punishment  canceling  intermediate
results and, inter alia, prescribes that a  committee  consisting  of  three
different  members  is  to   be   constituted   and   entrusted   with   the
responsibility of looking into and disposing of  cases  relating  to  unfair
means and award appropriate penalty as specified in the Regulations  itself.
However, there  is  no  allegation  of  any  unfair  means  adopted  by  the
appellant in the  instant  case  and,  therefore,  that  Regulation  has  no
applicability.   Even  otherwise,  no  such   committee   was   constituted.
Therefore, having taken admission in  Intermediate  on  the  basis  of  past
certificate issued by a separate Board, which was  recognised,  and  not  on
the basis of the result of Class X of the U.P. Board, the appellant  derived
no advantage from his examination of the U.P. Board while seeking  admission
in Intermediate course.  Thus, from any angle the matter  is  to  be  looked
into, the impugned orders dated April 20, 2011 and May 10,  2011  passed  by
the respondents are null and void, apart from the  fact  that  they  are  in
violation of the principles of natural justice.

9.    The appeal  is,  accordingly,  allowed  with  costs  by  quashing  the
aforesaid impugned orders and reversing the impugned judgment  of  the  High
Court.  The appellant shall, accordingly, be entitled to  all  consequential
benefits.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)


NEW DELHI;
JANUARY  05 , 2016.

Eviction suit on the ground of structural alteration against the terms of lease with out consent of owner - non examination of plaintiff is not fatal = whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact=We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court.

                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO. 231 OF 2015



DAMODAR LAL                                  ...  APPELLANT (S)

                                   VERSUS

SOHAN DEVI AND OTHERS                  ... RESPONDENT (S)



                           J  U  D  G  M  E  N  T



KURIAN, J.:



The facts unfold the plight of a poor landlord  languishing  in  courts  for
over fourty years. The case gets sadder when  we  note  that  appellant  had
been successful both in the trial court and the first  appellate  court  and
the saddest part is that the High Court in second appeal, went  against  him
on a pure question of fact!

Issue number-3 framed in Civil Regular Suit No. 191 of 1974 for eviction  on
the ground of  unauthorised  construction/material  alteration,  decided  on
21.12.1989 in the Court of Munsiff, Bhilwara, Rajasthan, reads as follows:

“Whether the tenant has carried  out  permanent  construction  on  the  plot
thereby causing a permanent change in the identity of the plot  against  the
terms of the rent agreement?”



Having analysed and appreciated the evidence of PWs-1 and 2 and also DWs-  1
to 4, the trial court came to the following finding on the issue:

“Thus all the witnesses of both sides have stated that  when  the  plot  was
taken on rent, at that time, the plot  was  empty.  The  disputed  plot  was
taken on rent. Later walls were constructed; sheets were put and were  taken
into use as shop and godown. Even today the plot is being used as  shop  and
godown.”



Dissatisfied, the tenants took up the matter in appeal before the  Court  of
the Additional District Judge-I, Bhilwara, Rajasthan in Civil Appeal No.  20
of  1999  (originally  presented  before  the  District   Judge,   Bhilwara,
Rajasthan on 19.01.1990 and since transferred  to  the  Additional  District
Judge). In the judgment dated 22.09.2000, the first appellate  court,  after
re-appreciating the whole evidence, came to the conclusion that:

“... In  my  opinion  the  evidence  that  had  been  presented  before  the
subordinate court, the subordinate court has not made any mistake in  coming
to the conclusion that the tenant has made structural changes in the  rented
accommodation. The appellant  tenant  has  not  been  able  to  present  any
evidence to show that the consent of the land lord  had  been  taken  before
making structural changes. ...”

On such findings, the appeal was dismissed. Thus, there are two findings  of
fact against the tenants/respondents.

The tenants pursued the matter in Second Appeal No. 109 of 2000  before  the
High Court of Rajasthan which was allowed by  the  impugned  judgment  dated
27.09.2012. The following were the substantial questions of  law  framed  in
the second appeal:

“ (1) Whether on the facts and  in  the  circumstances  of  this  case,  the
learned courts below have erred in granting a decree  for  eviction  on  the
ground of material alteration while  ignoring  the  relevant  considerations
and proceeding on irrelevant considerations.

(2)   Whether on the facts of this  case,  the  learned  courts  below  have
erred in not drawing adverse inference for non-appearance of  the  plaintiff
Damodar Lal in the witness box?”



The High Court, in the second  appeal,  came  to  the  conclusion  that  the
concurrent finding on structural change, in the absence of the statement  of
the plaintiff before the court, cannot be treated  to  be  trustworthy.  The
High Court went further and held that adverse  inference  should  have  been
drawn for the non-appearance of the plaintiff in the  witness  box,  and  in
such circumstances, the finding on material alteration is totally  perverse.
We feel it necessary  to  quote  the  relevant  portion  from  the  impugned
judgment:

“... In the considered opinion of this Court, such finding in the  statement
of the plaintiff cannot be treated to be trustworthy or in  consonance  with
law. The trial court was under obligation to draw adverse inference for  the
non-appearance of the plaintiff in the witness-box. On the contrary, it  has
relied upon the statement of P.W.-1  Rameshwar  Lal  who  was  the  previous
owner of the property from whom the plaintiff purchased the said property.

      Therefore, the finding arrived at by the trial court on the  issue  of
material alteration is  totally  perverse  and  not  based  upon  sound  and
trustworthy evidence. The trial court has committed gross  error  while  not
drawing adverse inference for non-appearance of the  plaintiff  Damodar  Lal
because he was the only witness to prove the fact of material alteration  by
way of producing documentary evidence  which  is  the  registered  sale-deed
executed by Rameswhwar Lal in favour, so also, his oral statement.”



And thus, the High  Court  allowed  the  second  appeal  and  the  suit  for
eviction was dismissed. Aggrieved, the landlord is before us  in  the  civil
appeal.

‘Perversity’ has been the subject matter of umpteen number of  decisions  of
this Court. It has also been settled by  several  decisions  of  this  Court
that the first appellate court, under Section  96  of  The  Civil  Procedure
Code, 1908, is the last court of facts unless  the  findings  are  based  on
evidence or are perverse.

In Krishnan v. Backiam and another[1], it  has  been  held  at  paragraph-11
that:

“11.  It may be mentioned that the first appellate court  under  Section  96
CPC is the last court of facts.  The  High  Court  in  second  appeal  under
Section 100 CPC cannot interfere with the findings of fact recorded  by  the
first appellate court under Section 96 CPC. No doubt the  findings  of  fact
of the first appellate court can be  challenged  in  second  appeal  on  the
ground that the said findings are based on no evidence or are perverse,  but
even in that case a question of law has to be formulated and framed  by  the
High Court to that effect. …”



In Gurvachan  Kaur  and  others  v.  Salikram  (Dead)  Through  Lrs.[2],  at
paragraph-10, this principle has been reiterated:

“10.  It is settled law that in exercise of power under Section 100  of  the
Code of Civil Procedure, the High Court cannot interfere  with  the  finding
of fact recorded by the first appellate court which is the  final  court  of
fact, unless the same is found to be perverse. This being the  position,  it
must be held that the High Court was not justified in reversing the  finding
of fact recorded by the first appellate court on the issues of existence  of
landlord-tenant relationship between the plaintiff  and  the  defendant  and
default committed by the latter in payment of rent.”



In the case before us, there is clear and cogent evidence  on  the  side  of
the plaintiff/appellant that there has been  structural  alteration  in  the
premises rented out to the respondents without his consent. Attempt  by  the
defendants/respondents to establish otherwise has been found to  be  totally
non-acceptable to the trial court as well  as  the  first  appellate  court.
Material  alteration  of  a  property  is  not  a  fact  confined   to   the
exclusive/and personal knowledge of the owner. It is a matter  of  evidence,
be it from the owner himself or any other witness speaking on behalf of  the
plaintiff who is conversant with the facts and the situation.  PW-1  is  the
vendor of the plaintiff, who is also his power of attorney.  He  has  stated
in unmistakable terms that there was structural alteration in  violation  of
the rent agreement. PW-2 has also supported the case of the plaintiff.  Even
the witnesses on behalf  of  the  defendant,  partially  admitted  that  the
defendants had effected some structural changes.

Be that as it may, the question whether there is a structural alteration  in
a tenanted premises is not a fact limited to the personal knowledge  of  the
owner. It can be proved  by  any  admissible  and  reliable  evidence.  That
burden has been successfully discharged by the plaintiff by examining  PWs-1
and 2. The defendants could not shake that evidence. In fact, that  fact  is
proved partially from the evidence  of  the  defendants  themselves,  as  an
admitted fact. Hence, only the trial court came to the definite  finding  on
structural  alteration.  That  finding  has  been  endorsed  by  the   first
appellate  court  on                              re-appreciation   of   the
evidence, and therefore, the High Court in second appeal was  not  justified
in upsetting the finding which is a  pure  question  of  fact.  We  have  no
hesitation to note that both the questions of law framed by the  High  Court
are not substantial questions of law. Even if the finding of fact is  wrong,
that by itself will not constitute a question  of  law.  The  wrong  finding
should stem out on a complete misreading of evidence or it should  be  based
only on conjectures and surmises.  Safest  approach  on  perversity  is  the
classic approach on the reasonable man’s inference on the facts. To him,  if
the conclusion on  the  facts  in  evidence  made  by  the  court  below  is
possible,  there  is  no  perversity.  If  not,  the  finding  is  perverse.
Inadequacy  of  evidence  or  a  different  reading  of  evidence   is   not
perversity.

In Kulwant Kaur and others v. Gurdial Singh Mann  (Dead)  by  Lrs.[3],  this
Court has dealt with the limited leeway  available  to  the  High  Court  in
second appeal. To quote paragraph-34:



“34. Admittedly, Section 100 has introduced a  definite  restriction  on  to
the exercise of jurisdiction in a second appeal so far as the High Court  is
concerned. Needless to record that the Code of Civil  Procedure  (Amendment)
Act, 1976 introduced such an embargo for such definite objectives and  since
we are not required to further probe on that score,  we  are  not  detailing
out, but the fact remains that while it is true that in a  second  appeal  a
finding of fact, even if erroneous, will  generally  not  be  disturbed  but
where it is found that the findings stand vitiated on wrong test and on  the
basis of assumptions and conjectures and resultantly there is an element  of
perversity involved therein, the High Court in our view will be  within  its
jurisdiction to deal with the issue. This is, however,  only  in  the  event
such a fact is brought to  light  by  the  High  Court  explicitly  and  the
judgment should also be categorical as to the issue of perversity  vis-à-vis
the concept of justice. Needless to say however, that perversity  itself  is
a  substantial  question  worth  adjudication  —  what  is  required  is   a
categorical finding on the part of the High Court as to perversity. In  this
context reference be had to Section 103 of the Code which reads as below:

“103. In any second appeal, the High Court  may,  if  the  evidence  on  the
record is sufficient, determine any issue necessary for the disposal of  the
appeal,—

(a) which has not been determined by the lower appellate court  or  by  both
the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by  reason  of
a decision on such question of law as is referred to in Section 100.”

The requirements stand specified in Section 103  and  nothing  short  of  it
will bring it within the ambit of Section 100 since the issue of  perversity
will also come within the ambit of substantial question of  law  as  noticed
above. The legality of finding  of  fact  cannot  but  be  termed  to  be  a
question of law.

We reiterate however, that there must be a definite finding to  that  effect
in the judgment of the High Court so as to make it evident that Section  100
of the Code stands complied with.”



In S.R. Tiwari v. Union of India[4], after referring  to  the  decisions  of
this Court, starting with Rajinder Kumar Kindra  v.   Delhi  Administration,
Through Secretary (Labour) and others[5], it was held at paragraph-30:

“30. The findings of fact recorded by a court can be held to be perverse  if
the findings  have  been  arrived  at  by  ignoring  or  excluding  relevant
material or by taking into consideration  irrelevant/inadmissible  material.
The finding may also be said to be perverse if it is “against the weight  of
evidence”, or if the finding so outrageously defies logic as to suffer  from
the vice of irrationality. If a decision is arrived at on the  basis  of  no
evidence or thoroughly unreliable evidence and no  reasonable  person  would
act upon it, the order would be perverse. But if there is some  evidence  on
record which is acceptable and which could be relied upon,  the  conclusions
would not be treated as perverse and the findings would  not  be  interfered
with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC  635  :  1985
SCC  (L&S)  131  :  AIR  1984  SC   1805]   , Kuldeep   Singh v. Commr.   of
Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR  1999  SC  677]  , Gamini
Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC  (Cri)
372 : AIR 2010 SC 589]  and Babu v. State  of  Kerala[(2010)  9  SCC  189  :
(2010) 3 SCC (Cri) 1179] .)”



      This Court has also dealt with other aspects of perversity.





We do not propose to discuss other judgments, though there  is  plethora  of
settled case law on this issue. Suffice to say that  the  approach  made  by
the High Court has been wholly wrong, if not, perverse. It should  not  have
interfered with concurrent findings of the trial court and  first  appellate
court on a pure question of fact. Their  inference  on  facts  is  certainly
reasonable. The strained effort made by the High Court in second  appeal  to
arrive at a  different  finding  is  wholly  unwarranted  apart  from  being
impermissible under law. Therefore, we  have  no  hesitation  to  allow  the
appeal and set aside the impugned judgment of the  High  Court  and  restore
that of the trial court as confirmed by the appellate court.

At this juncture, learned Counsel appearing  for  the  respondents,  praying
for some reasonable time to vacate, submitted that  in  the  nature  of  the
timber and furniture business carried on at the premises, they require  some
time to find out alternate  location/accommodation.  Having  regard  to  the
entire facts and circumstances of the case, we are  of  the  view  that  the
respondents be given time up to 31st March, 2017 which is agreeable  to  the
appellant as well, though reluctantly. The respondents are directed to  file
the usual undertaking in this Court and also continue to  pay  the  use  and
occupation charges at the rate of Rs.10,000/- per month.  In  the  event  of
any default or violation of the terms of undertaking, the  decree  shall  be
executable forthwith, in addition to the liability for contempt of court.

The appeal is allowed as above with costs quantified at Rs.25,000/-.



                                                     ...................CJI.
          (T. S. Thakur)






                                                    ......................J.
       (Kurian Joseph)

New Delhi;
January 5, 2016
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[1]

       (2007) 12 SCC 190
[2]    (2010) 15 SCC 530
[3]    (2001) 4 SCC 262
[4]    (2013) 6 SCC 602
[5]    (1984) 4 SCC 635


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