Important Leading Judgements


Head Note

Supreme Court of India : Upload Date - 9/21/2016



1.The circumstances from which the conclusion of guilt is to be drawn should be fully established.

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

3. The circumstances should be of a conclusive nature and tendency.

4. They should exclude every possible hypothesis except the one to be proved and;

5. There must be a chain of evidence so complete as not o leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.






 1984 AIR 1622          1985 SCR  (1)     88
 1984 SCC  (4) 116      1984 SCALE  (2)445
 D        1988 SC1101     (22)
 F        1990 SC  79     (21)
 R        1991 SC 917     (37,42,50)
 R        1991 SC1842     (6)

     Constitution of  India, 1950,  Article 136-Interference
by the Supreme Court with the concurrent findings of fact of
the   courts   below,    normally   not     permissible-Special
circumstance  like   errors  of      law,    violation   of    well
established principles    of criminal jurisprudence etc. would
be necessary for interference.
     Evidence-Circumstantial evidence,    nature and proof of-
Conditions precedent  for conviction-Evidence  Act Section 3
(Act 1 of 1972).
     Evidence-Circumstantial   evidence-Onus    of    proof-
Prosecution must  prove every link of the chain and complete
chain-Infirmity or lacuna in the prosecution cannot be cured
by false  defence or  plea-A person  cannot be    convicted on
pure moral  conviction-False  explanation  can    be  used  as
additional link     to fortify the prosecution case, subject to
satisfaction of certain conditions.
     Doctrine of  Proximity, concept  of, nature  and limits
explained-Admissibility of statements and dying declarations
under sections 8, 32 of the Evidence Act.
     Murder by    administration of  poison-Circumstances that
should be  looked into    before a  conviction-Penal Code (Act
XLV of 1860) Section 300.
     Evidence,    appreciation   of-Evidence   of      interested
witnesses,  especially     that  of  close  relatives  of     the
deceased-Duty of  the Court-Evidence  Act (Act    I  of  1872)
Section 3.
     Benefit of     doubt-When  two  views     are  possible,     one
leading to the guilt of the accused and the other leading to
his innocence, the benefit of doubt should go to the accused
entitling  his     acquittal-Evidence  Act  (Act    I  of  1872)
Sections 101-104.
     Examination of  the accused  under Section     313 of Crl.
P.C.-Circumstances not put to the accused to explain, cannot
be considered  for conviction-Code  of    Criminal  Procedure,
1973 (Act II of 1974) Section 313.


     The appellant,  Rameshwar, Birdhichand  Sarda, Ramvilas
Rambagas Sarda,     were accused  1, 2  and 3  respectively  in
Sessions Case  No. 203 of 1982 on the file of the Additional
Sessions Judge,     Pune. The  appellant and the second accused
are the     sons of  one Birdhichand of Pune whose family has a
cloth business.     In addition,  the appellant,  a graduate in
Chemical Engineering had
started a chemical factory at Bhosari, a suburb of Pune. The
third accused  is uncle     of the     appellant  and     the  second
accused. The  appellant is  the husband     of Manjushree alias
Manju while  the second     accused is  the husband of Anuradha
(P.W. 35). Birdhichand's family has its residential house at
Ravivar Peth  in Pune and owns a flat in a building known as
Takshasheela Apartments     in Mukund  Nagar area    of Pune. All
the three  accused were     charged for  the alleged offence of
murder by  poisoning on     the night  of 11/12.6.1982 of Manju
the  newly  married  wife  of  the  first  accused  and     the
appellant herein  under section 302 I.P.C. read with section
120B. Accused  No, 3 was also charged under section 201 read
with Section  120B I.P.C.  The    whole  case  vested  on     the
circumstantial evidence     based on certain letters alleged to
have been  written by  the deceased to some of the witnesses
and other statements of the deceased to them and the medical
report. On  an appreciation  of the evidence the trial court
found all  the three  accused guilty  as charged,  convicted
them accordingly  and sentenced the appellant to death under
s.302  I.P.C.    and  all   the    three  accused    to  rigorous
imprisonment for  two years  and a  fine of  Rs. 2,000    each
under s.120B  I.P.C. but  did not  award any  sentence under
s.201 read with s.120B.
     The appellant  and the  other two accused file Criminal
Appeal No. 265/83 against their conviction and the sentences
awarded     to  them.  The     State    filed  a  Criminal  Revision
application for     enhancement  of  the  sentence     awarded  to
accused 2  and 3.  The appeal  as well    as Criminal Revision
application was     heard along with confirmation case No. 3 of
1983 together by the Division Bench of the Bombay High Court
which allowed  the appellants  appeal in  part regarding his
conviction and    sentence under    s.120B I.P.C.  but confirmed
his conviction    and sentence  of death awarded under section
302 I.P.C.,  allowed the  appeal of  accused 2 and 3 in full
and acquitted  them  and  dismissed  the  Criminal  Revision
Application. Hence  the appellant  alone has  come up before
the Supreme Court after obtaining Special Leave.
     Allowing the appeal, the Court
     HELD: (Per Fazal Ali, J.).
     1:1. Normally,  the Supreme  Court does  not  interfere
with the concurrent findings of the fact of the courts below
in the absence of very special circumstances or gross errors
of law    committed by  the High    Court. But,  where the    High
Court ignores  or  overlooks  the  crying  circumstance     and
proved    facts,     or  violates    and  misapplies      the    well
established principles of criminal jurisprudence or decision
rendered by  this Court     on appreciation  of  circumstantial
evidence and refuses to give benefit of doubt to the accused
despite facts  apparent on  the face of the record or on its
own finding  or tries  to gloss over them without giving any
reasonable explanation    or commits errors of law apparent on
the  face  of  the  record  which  results  in    serious     and
substantial miscarriage of justice to the accused, it is the
duty of     this Court  to step  in  and  correct    the  legally
erroneous decision of the High Court. [174E-G]
     1:2. Suspicion,  however, great  it may be, cannot take
the place of legal proof. A moral conviction however, strong
or genuine  cannot amount  to a legal conviction supportable
in law. [174H]
     1:3. The  well established     rule of criminal justice is
'fouler the  crime higher  the proof'.    In the instant case,
the life and liberty of a subject was at
stake. As  the accused    was given  a capital sentence a very
careful cautious  and meticulous approach necessarily had to
be made by the Court. [175A]
     2:1. The  Indian law  on the question of the nature and
scope of  dying declaration  has made  a distinct  departure
from the English law where only the statement which directly
relate to the cause of death are admissible. The second part
of  cl.(1)   of     s.32,     viz,  "the   circumstances  of     the
transaction which  resulted in    his death, in cases in which
the cause of that person's death comes into question" is not
to be found in the English Law. [107F-G]
     2:2. From    a review  of the  various authorities of the
Courts and  the clear  language of  s.32(1) of Evidence Act,
the following propositions emerge: [108F]
     (1) Section  32 is     an exception to the rule of hearsay
and makes  admissible the  statement of     a person  who dies.
whether the  death is  a homicide or a suicide, provided the
statement relates  to the  cause of  death,  or     relates  to
circumstances leading  to the death. In this respect, Indian
Evidence Act,  in view    of the    peculiar conditions  of     our
society and  the diverse nature and character of our people,
has thought  it necessary  to widen  the sphere     of s.32  to
avoid injustice. [108G-H]
     (2) The  test of  proximity  cannot  be  too  literally
construed and practically reduced to a cut-and-dried formula
of  universal    application  so     as  to     be  confined  in  a
straitjacket. Distance of time would depend or very with the
circumstances of  each case.  For instance, where death is a
logical clumination  of a  continuous drama  long in process
and is,     as it    were, a     finale of  the story, the statement
regarding each    step directly  connected with the end of the
drama would be admissible because the entire statement would
have to     be read  as on     organic whole and not torn from the
context. Sometimes  statements relevant     to or furnishing an
immediate motive  may also  be admissible as being a part of
the transaction     of death.  It is  manifest that  all  these
statements come     to  light  only  after     the  death  of     the
deceased who  speaks from  death. For  instance,  where     the
death takes  place within  a very short time of the marriage
or the    distance of  time is  not spread  over more than 3-4
months the statements may be admissible under s.32. [109B-D]
     (3) The  second part  of cl.1  of s.32  is yet  another
exception to the rule that in criminal law the evidence of a
person    who   was  not     being    subjected  to  or  given  an
opportunity of being cross-examined by the accused, would be
valueless because the place of cross-examination is taken by
the solemnity  and sanctity  of oath  for the  simple reason
that a    person on the verge of death is not likely to make a
false statement unless there is strong evidence to show that
the statement  was secured  either by prompting or tutoring.
     (4) Section  32 does  not speak  of homicide  alone but
includes suicide  also, hence all the circumstance which may
be relevant  to prove  a case  of homicide  would be equally
relevant to prove a case of suicide. [109-G]
     (5) Where    the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and
which reveal  a tell-tale  story, the  said statement  would
clearly fell within the four corners of s.32 and, therefore,
admissible. The     distance of  time alone in such cases would
not make the statement irrelevant. [109H]
     Hanumant v. State of Madhya Pradesh [1952] S.C.R. 1091;
Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of
1958 decided  on 4.11.58 =AIR 1958 SC 152; Ratan Gond v. The
State of  Bihar [1959]    SCR 1336;  Pakala Narayana  Swami v.
Emperor AIR  1939 PC  47; Shiv    Kumar &     Ors v. The State of
Uttar Pradesh  Crl. Appeal No. 55 of 1966 decided on 29.7.66
=(1966) Crl.  Appeal SC 281; and Protima Dutta & Anr. v. The
State, C.W.N. 713 referred to.
     Manohar Lal  & Ors.  v. State  of Punjab [1981] Cr.L.J,
1373; Onkar  v. State  of Madhya  Pradesh [1974]  Crl.    L.J.
1200; Allijan  Munshi  v.  The    State  AIR  1960  Bom.    290;
Chinnavalayan  v.   State  of    Madras    [1959]    M.L.J.    246;
Rajindera Kumar     v. The State AIR 1960 Punjab 310; and State
v. Kanchan Singh & Anr. AIR 1954 All. 153. approved.
     Gokul Chandra  Chatterjee v.  The State,  AIR 1950 Cal.
306, overruled.
     3:1. It is well settled that the prosecution must stand
or fall     on its     own legs  and it cannot derive any strength
from the  weakness  of    the  defence.  This  is     trite    law.
However, where    various links  in a  chain are in themselves
complete, then a false plea or a false defence may be called
into aid only to lend assurance to the Court. In other words
before using  the additional link it must be proved that all
the links  in the  chain are complete and do not suffer from
any infirmity.    It is  not the    law that  where there is any
infirmity or  lacuna in     the prosecution case the same could
be cured  or supplied  by a false defence or a plea which is
not accepted by a Court. [162C-E]
     3:2.  Before   a  false  explanation  can    be  used  as
additional link,  the following essential conditions must be
satisfied: [165E]
     1. Various     links in  the chain  of evidence led by the
prosecution have been satisfactorily proved; [165E]
     2. The  said circumstance    point to  the guilt  of     the
accused with reasonable definiteness and; [165G]
     3. The  circumstances is  in proximity  to the time and
     If these conditions are fulfilled only then a Court can
use a  false explanation or a false defence as an additional
link to lend as assurance to the Court and not otherwise. On
the facts  and circumstances  of the  present case this does
not appear  to be  such a  case. There is a vital difference
between     an   incomplete  chain      of  circumstances   and  a
circumstance, which,  after the     chain is complete, is added
to it merely to reinforce the conclusion of the court. Where
the prosecution     is enable  to prove  any of  the  essential
principles laid     down in  Hanumant's  case  the     High  Court
cannot supply the weakness or the lacuna by taking aid of or
recourse to a false defence or a false plea. [166A; 166D-E]
     3:3. Before  a  case  against  an    accused     vesting  on
circumstantial evidence     can be said to be fully established
the following  conditions must    be fulfilled as laid down in
Hanumat's v. State of M.P. [1953] SCR 1091. [163C]
     1. The circumstances from which the conclusion of guilt
is to be drawn should be fully established; [163D]
     2. The  facts so  established should be consistent with
the hypothesis    of guilt  and the  accused, that  is to say,
they should  not be  explainable  on  any  other  hypothesis
except that the accused is guilty; [163G]
     3. The  circumstances should  be of a conclusive nature
and tendency;[163G]
     4. They should exclude every possible hypothesis except
the one to be proved; and [163H]
     5. There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the  innocence of the accused and must show that in all
human probability  the    act  must  have     been  done  by     the
accused. [164B]
     These five     golden principles constitute the panchsheel
of the    proof of a case based on circumstantial evidence and
in the absence of a corpus deliciti. [164B]
     Hanumant v.  The State  of Madhya    Pradesh     [1952]     SCR
1091; Tufail  (Alias) Simmi v. State of Uttar Pradesh [1969]
3 SCC 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656;
and Shivaji  Sahabrao Babode  & Anr. v. State of Maharashtra
[1973] 2 SCC 793 referred to.
     3:4. The  cardinal principle  of criminal jurisprudence
is that     a case     can be said to be proved only when there is
certain and  explicit evidence and no pure moral conviction.
     The King  v. Horry     [1952]     N.Z.L.R.  III    quoted    with
     Hanumant v. State of M.P. [1952] S.C.R. 1091; Dharambir
Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958
decided on 4.11.58); Chandrakant Nyslchand Seth v. The State
of Bombay  (Criminal Appeal  No.  120  of  1957     decided  on
19.2.58) Tufail     (alias) Simmi    v. State  of U.P.  [1969]  3
S.C.C. 198;  Ramgopal v.  State of  Maharashtra AIR  1972 SC
656; Naseem  Ahmed v.  Delhi  Administration  [1974]  2     SCR
694/696 Mohan  Lal Pangasa  v. State  of U.P. A.I.R. 1974 SC
1144/46; Shankarlal  Gyarasilal Dixit v State of Maharashtra
[1981]    2   SCR     384/390;  and    M.C.  Agarwal  v.  State  of
Maharashtra [1963] 2 SCR 405/419 referred to.
     Denonandan Mishra    v The  State of     Bihar [1955]  2 SCR
570/582 distinguished.
     Some of  the statements  which have a causal connection
with the  death of Manju or the circumstances leading to her
death are undoubtedly admissible
under section  32 of  the Evidence  Act but other statements
which do  not bear any proximity with the death or if at all
very remotely  and indirectly connected with the death would
not be admissible. [121H]
     3.5. In  view of  the close  relationship and affection
any person  in the  position of     the witness would naturally
have a    tendency to  exaggerate or  add facts  which may not
have been  stated to  them at  all. This is human phychology
and no    one can     help it.  Not that this is done consciously
but even  unconsciously     the  love  and     affection  for     the
deceased would    create a  phychological hatred    against     the
supposed murderer,  the court has to examine the evidence of
interested witnesses  with very great care and caution. Even
if the    witnesses were    speaking a  part  of  the  truth  or
perhaps the  whole of it they would be guided by a spirit of
revenge or  nemesis against  the accused  person and in this
process certain     facts which  may not or could not have been
stated may  be imagined to have been stated unconsciously by
the witnesses in order to see that the offender is punished.
     3.6. A  close and    careful scrutiny  of the evidence of
the witness  (PWs 2,  3, 4 and 5) who are close relatives or
deceased and  conspicuously reveals  a story  which is quite
different from the one spelt out from the letters (Exhs. 30,
32 and    33). In     fact, the  letters have a different tale to
tell particularly  in respect  of certain matters. They are:
     (i) There    is absolutely  no reference to suicidal pact
or the    circumstances leading  to the same; (ii) There is no
reference even    to Ujvala  and her illcit relations with the
appellant; (iii)  There is  no mention    of the fact that the
deceased was  not at  all willing to go to Pune and that she
was sent  by force;  (iv) The complaints made in the letters
are confined to ill-treatment, loneliness, neglect and anger
of the husband but no apprehension has been expressed in any
of the letters that the deceased expected imminent danger to
her life  from her  husband; (v) In fact, in the letters she
had asked  her sister  and friend  not to  disclose her     and
plight to  her parents    but while narrating the facts to her
parents, she  herself violated    the said  emotional  promise
which appears to be too good to be true and an after thought
added to  strengthen the prosecution case; and (vi) If there
is anything  inherent in  the letters  it is that because of
her miserable  existence  and  gross  ill-treatment  by     her
husband, Manju    might have  herself decided to end her life,
rather than  bother her     parents. Therefore, these witnesses
are not     totally dependable so as to exclude the possibility
of suicide and to come to an irresistible inference, that it
was the     appellant who    had murdered  the deceased. Though a
good part  of the  evidence is    undoubtedly admissible,     its
probative value     is precious  little in     view of the several
improbabilities, [138E-H; 139A-B]
     4.1. It  is well-settled that where on the evidence two
possibilities are available or open one which goes in favour
of the    prosecution and the other which benefits an accused,
the accused is undoubtedly entitled to the benefit of doubt.
     In the  instant case,  the evidence  clearly shows that
two views  are possible-one  pointing to  the guilt  of     the
accused and  the other    leading to  his innocence. It may be
very likely  that the  appellant may  have administered     the
poison (potassium  cyanide) to    Manju but at the same time a
fair possibility  that she  herself committed suicide cannot
be safely  excluded or    eliminated. Hence,  on    this  ground
alone the  appellant is     entitled to  the benefit  of  doubt
resulting in his acquittal. [168B]
     4.2. In  the cases     of murder  by administering poison,
the Court must carefully scan the evidence and determine the
four important    circumstances which  alone can    justify     the
conviction: (1)     There is  a clear  motive for an accused to
administer poison  to the  deceased; (ii)  that the deceased
died of     poison said  to have  been administered; (iii) that
the accused  had the poison in his possession; and (iv) that
he had    an opportunity    to  administer    the  poison  to     the
accused. [167F-H]
     4.3. In the instant case, taking an over all picture on
this part  of the  prosecution case the position seems to be
as follows: [150D]
     1. If the accused wanted to give poison while Manju was
wide  awake,   she  would  have     put  up  stiffest  possible
resistance as  any other  person in  her position would have
done. Dr.  Banerjee in    his postmortem    report has not found
any  mark   of    violence  or  resistance  even    if  she     was
overpowered by    the appellant  she would  have    shouted     and
cried and  attracted persons  from  the     neighbouring  flats
which would have been a great risk having regard to the fact
that some of the inmates of the house had come only a short-
while before the appellant. [150E-F]
     2. Another     possibility which  cannot be  ruled out  is
that potassium    cyanide may  have been    given to  Manju in a
glass of  water if  she happened  to ask for it. But if this
was so,     she being  a chemist  herself would  have  at    once
suspected some    foul play  and once her suspicion would have
arisen it  would be  very difficult  for  the  appellant  to
murder her. [150G]
     3. The  third possibility is that as Manju had returned
pretty late  to the  flat and  she went to sleep even before
the arrival  of the  appellant and  then he  must have tried
forcibly  to   administer  the    poison    by  the     process  of
mechanical suffociation,  in which  case alone    the deceased
could not  have been  in a  position to offer any resistance
but this  opinion of  doctor, has  not been  accepted by the
High  Court,   after  a     very  elaborate  consideration     and
discussion  of    the  evidence,    the  circumstances  and     the
medical authorities,  found that  the opinion  of the doctor
that Manju  died by  mechanical     suffocation  had  not    been
proved or  at any  rate it  is not  safe  to  rely  on    such
evidence. [150H; 151A-C]
     4. The other possibility that may be thought of is that
Manju died  a natural death. This also is eliminated in view
of the    report of  the Chemical Examiner as confirmed by the
postmortem  that   the    deceased   died     as   a     result      of
administration of potassium cyanide. [152B]
     5. The  only other     reasonable possibility that remains
is that     as the deceased was fed up with the maltreatment by
her husband,  in a  combined spirit of revenge and hostility
after entering    the flat  she herself took potassium cyanide
and lay     limp and  lifeless. When  the appellant entered the
room he     must have thought that as she was sleeping she need
not be    disturbed but  when  he     found    that  there  was  no
movement in  the body after an hour his suspicion was roused
and therefore  he called  his brother from the adjacent flat
to send for Dr. Lodha. [152C-D]
     In these  circumstances,  it  cannot  be  said  that  a
reasonable possibility    of  the     deceased  having  committed
suicide as alleged by the defence cannot be safely ruled out
or eliminated.    It is  clear that  the circumstances  of the
appellant having  been last  seen with    the deceased and has
administered the opinion has not been proved conclusively so
as to raise an irresistible inference that Manju's death was
a case of blatant homicide. [152E-F]
     Further, in  a matter  of this  magnitude it  would  be
quite natural  for the    members of  the appellants family to
send for  their own  family doctor  who was fully conversant
with the  ailment of  every member  of the  family. In these
circumstances there  was nothing  wrong if the appellant and
his brother  went to  a distance of one and a half kilometer
to get.     Dr. Lodha. Secondly, Dr. Shrikant Kelkar was a skin
specialist  whereas   Dr.  (Mrs,)   Anjali  Kelkar   was   a
Paediatrician and  the appellant may have genuinely believed
that as     they belonged    to different branches, they were not
at all    suitable to  deal with such a serious case. The High
Court was,  therefore, wrong  in treating  this circumstance
namely not  calling the     two Doctors  in  the  flat,  as  an
incriminating conduct of the appellant. [157B-D]
     The circumstances    which were  not put to the appellant
in his    examination under  S. 313  of the Criminal Procedure
Code must  be completely excluded from considerating because
the appellant did not have any chance to explain them. Apart
from the  aforesaid comments  there is    one vital  defect in
some of     the circumstances  relied upon     by the     High  Court
namely circumstances  Nos. 4,  5, 6, 8, 9, 11, 12,13, 16 and
17. [160B; 159B-C]
     Fateh Singh  Bhagat Singh    v. State  of Madhaya Pradesh
AIR  1953   SCR     468  ;     Shamu    Balu  Chagule  v.  State  of
Maharashtra 1976  1 SCC 438 and; Harijan Meha Jesha v. State
of Gujarat AIR 1979 SC 1566 referred to.
     6. Viewing the entire evidence, the circumstance of the
case and  the interpretation of the decisions of the Supreme
Court the  legal and  factual position are (i) that the five
golden    principles   enunciated     by  the  Supreme  Court  in
Hanumant v.  The State of M.P. [1952] SCR 1091 have not been
satisfied in  the instant  case. As  a logical corollary, it
follows that  cannot be     held that  the act  of the  accused
cannot be explained on any other hypothesis except the guilt
of the    appellant nor  can it  be said    that  in  all  human
probability, the  accused had committed the murder of Manju.
In other  words,  the  prosecution  has     not  fulfilled     the
essential requirements of a criminal case which rests purely
on circumstantial  evidence; (ii)  From the  recital in     the
letters Ex. P30, Ex-P32 and Ex-P33 it can be safely held
that there  was a  clear possibility  and a  tendency on the
part  of  the  deceased     Manju    to  commit  suicide  due  to
desperation and     frustration. She  seems to  be tried of her
married life,  but she    still hoped against hope that things
might improve.    She solemnly  believed that  her holy  union
with her  husband bring     health and  happiness    to  her     but
unfortunately  it  seems  to  have  ended  in  a  melancholy
marriage which    left her so lonely and frustrated so much of
emotional disorder  resulting from frustration and pessimism
that she  was forced  to end her life. There can be no doubt
that Manju  was not  only a  sensitive and sentimental women
was extremely  impressionate and  the letters  show  that  a
constant conflict between her mind and body was going on and
unfortunately the  circumstances which    came into  existence
hastened her end. People with such a psychotic philosophy or
bent of mind always dream of an ideal and if the said ideals
fails, the  failure drives  them to end their life, for they
feel that  no  charm  is  left    in  their  life;  (iii)     The
prosecution has     miserably failed  to prove  one of the most
essential  ingredients     of  a     case  of  death  caused  by
administration of  poison i.e..     possession with the accused
(either by  direct or  circumstantial evidence)     and on this
ground alone  the  prosecution    must  fails.  (iv)  That  is
appreciating  the  evidence,  the  High     Court    has  clearly
misdirected itself  on many points, and has thus committed a
gross error of law; (iv) That the High Court has relied upon
decisions of  this Court  which are  either in applicable or
which, on closer examination, do not support the view of the
High Court being clearly distinguishable; (vi) That the High
Court has  taken a  completely wrong  view of law in holding
that even  though the  prosecution may    suffer from  serious
infirmities it could be reinforced by additional link in the
nature of  false defence  in order  to supply the lacuna and
has thus  committed a  fundamental error  or law; (vii) That
the High  Court has not only misappreciated the evidence but
has completely overlooked the well established principles of
law and     has merely  tried to  accept the  prosecution    case
based on tenterhooks and slender tits and bits; (viii) It is
wholly unsafe  to rely    on that     part of the evidence of Dr.
Banerjee (PW  33)  which  shows     that  poison  was  forcibly
administered by the process of mechanical suffociation; (ix)
There is no manifest defect in the investigation made by the
police which  appears to  be honest  and  careful.  A  proof
positive  of   this  fact  is  that  even  though  Rameshwar
Birdichand  and      other     members   of  his  family  who     had
practically no    role to     play had  been arraigned as accused
but they  had to  be acquitted by the High Court for lack of
legal evidence;     (x) That  in view of the findings two views
are clearly  possible in  the present  case, the question of
defence being false does not arise. [172E-H; 173A-H; 174A-D]
Per Varadarajan, J.
(Per contra on facts.)
     1:1. The  three letters Exh. P 30, Exh. P 32 and Exh. P
33 and    the oral  evidence of  PWs. 2,    3, 5,  6, and 20 are
inadmissible in evidence under section 32(1) of the Evidence
Act. There  is no acceptable evidence on record to show that
either    the   appellant     or   his  parents  ill-treated     the
desceased Manju     and that  the    appellant  had    any  illicit
intimacy with  PW 37  Ujvala. The  alleged oral statement of
Manju and what she has stated in her letters Exh. 30, 32 and
33 may    relate to  matters  perhaps  having  a    very  remote
bearing on  the cause  or the  circumstances of     her  death.
Those circumstances do not have any proximate
relation to the actual occurrence resulting in her death due
to potassium  cyanide poison though for instance in the case
of  prolonged    poisoning  they      may    relates      to   dates
considerably distant from the date of the actual fatal dose.
They are  general impressions  of Manju     indicating fear  or
suspicion, whether  of a  particular individual or otherwise
and not directly related to the occasion or her death. It is
not the case of the prosecution either that the present case
is one of porlonged poisoning. [187B; 190D-F]
     1: 2.  The fact  that the    High court  has rejected the
case of     the prosecution  based on Dr. Banerjee's report and
evidence that  it was  also a case of mechanical suffocation
is not    one that  could be  taken into    consideration  as  a
mitigating circumstance in judging the conduct of the doctor
who had conducted the autopsy in a case of suspicious death.
The  conduct   of  the     doctor     in   making  certain  later
interpolations in  the case of suspicious death in which the
appellant has  been sentenced  to death     by the     two  courts
below  deserves      serious  condemnations.   The     doctor     has
tempered with  material evidence  in  the  case     of  alleged
murder may be at the instance of somebody else, ignoring the
probable consequences of his act. In these circumstances Dr.
Banerjee PW  33 is  person who    should not be entrusted with
any serious  and responsible work such as conducting autopsy
in public  interest. In     this case  the appellant would have
gone to     gallows on the basis of the evidence of PW 33 as he
would have  the Court to believe it, and the other evidence,
if they had been accepted. [193D-H]
     1: 3.  Section 313     Criminal Procedure  Code lays    down
that in     every inquiry    or trial for the purpose of enabling
the accused personally to explain any circumstance appearing
in the    evidence against  him, the  court may  at any  stage
without previously  warning the     accused, put such questions
to him as the court considers necessary and shall, after the
witnesses for  the prosecution have been examined and before
he is  called for his defence, question him generally on the
case. Hence the evidence on the basis on which question Nos.
25, 30,     32, and  115 have  been put  to the  appellant     are
wholly irrelevant  as these  questions do  not relate to any
circumstance appearing    in the    against the  appellant.     The
learned Additional  Sessions Judge  was     bound    to  exercise
control over the evidence being tendered in his court and to
know the  scope of  the examination  of     the  accused  under
Section 313 Criminal Procedure Code [195A-C]
     Per Sabyasachi Mukharji, J. (Concurring)
     Though the     test of  proximity cannot and should not be
two literally construed and be reduced practically to a cut-
and-dried formula  of  universal  application,    it  must  be
emphasised  that   wherever  it      is  extended     beyond     the
immediate, it should be explained and must be done with very
great caution  and care.  As a general proposition it cannot
be laid     down for  all purposes     that for instance where the
death takes  place within  a short  time of marriage and the
distance of  time is  not spread  over three or four months,
the statement  would be     admissible under  Section 32 of the
evidence Act.  This is    always not  so and  cannot be so. In
very  exceptional   circumstances  such     statements  may  be
admissible and    that too  not for proving the positive fact,
namely raising    some doubt  about the  guilt of     the accused


     CRIMINAL APPELLATE     JURISDICTION: Criminal     Appeal     No.
745 of 1983
     From the Judgment and Order dated the 20th, 21st, 22nd,
23rd September    1983 of     the Bombay  High Court     in Criminal
Appeal No. 265 of 1983 with confirmation case No. 3/83.
     Ram Jethmalani,  M.S. Ganesh,  F. N. Ranka and Ms. Rani
Jethmalani for the Appellant.
     K.G. Bhagat,  Addl. Solicitor  General, M.N. Shroff and
U.A. Jadhavrao for the Respondent.
     The following Judgments were delivered
     FAZAL ALI,     J. This is rather an unfortunate case where
a  marriage   arranged    and   brought  about   through     the
intervention of     common friends of the families of the bride
and bridegroom    though made  a good start but ran into rough
weather soon  thereafter. The bride, Manju, entertained high
hopes and  aspirations and  was     not  only  hoping  but     was
anxiously looking  forward to  a  life    full  of  mirth     and
merriment, mutual love and devotion between the two spouses.
She appears  to be an extremely emotional and sensitive girl
at the    very behest  cherished ideal  dreams to     be achieved
after her  marriage, which  was solemnised  on February     11,
1982 between  her  and    the  appellant,     Sharad     Birdhichand
Sarda. Soon  after the    marriage, Manju     left  for  her     new
marital home  and started  residing with  the  appellant  in
Takshila apartments  at Pune. Unfortunately, however, to her
utter dismay and disappointment she found that the treatment
of her    husband and  his parents  towards her  was cruel and
harsh and  her cherished  dreams seem to have been shattered
to pieces.  Despite this  shocking state  of affairs she did
not give in and kept hoping against hope and being of a very
noble and  magnanimous nature  she  was     always     willing  to
forgive and  forget. As     days passed  by, despite  her    most
laudable attitude  she found that "things were not what they
seem" and  to quote  her own  words "she  was treated in her
husbands house    as a labourer or as an unpaid maid-servant".
She was     made to  do all  sorts of  odd jobs and despite her
protests to her husband nothing seems to have happened. Even
so, Manju  had such a soft and gentle frame of mind as never
to complain  to her  parents-in-law, not even to her husband
except sometimes.  On finding  things  unbearable,  she     did
protest, and ex
pressed her feelings in clearest possible terms, in a fit of
utter desperation  and frustration,  that he  hated her. Not
only this,  when she  narrated her woeful tale to her sister
Anju in     the letters  written to  her (which  would be dealt
with in a later part of the judgment), she took the abundant
care and  caution of  requesting Anju  not to reveal her sad
plight to  her parents    lest they  may get  extremely upset,
worried and distressed.
     Ultimately, things     came to  such a pass that Manju was
utterly disgusted  and disheartened  and she  thought that a
point of  no-return had     reached. At  last, on    the  fateful
morning of  June 12,1982, i.e., nearly four months after her
marriage, she was found dead in her bed.
     As to  the cause  of death,  there appears to be a very
serious divergence  between the     prosecution version and the
defence case.  The positive case of the prosecution was that
as the    appellant was  not at  all interested in her and had
illicit intimacy  with another    girl, Ujvala, he practically
discarded his wife and when he found things to be unbearable
he murdered  her between  the night of June 11 and 12, 1982,
and  made  a  futile  attempt  to  cremate  the     dead  body.
Ultimately, the     matter was  reported to  the police. On the
other hand, the plea of the defence was that while there was
a strong  possibility of  Manju having    been ill-treated and
uncared for  by her  husband or     her in-laws, being a highly
sensitive and  impressionate woman she committed suicide out
of  sheer   depression    and   frustration  arising  from  an
emotional upsurge.  This is  the dominant  issue which falls
for decision by this Court.
     Both the  High Court  and the  trial court rejected the
theory of  suicide and    found that Manju was murdered by her
husband by  administering her  a strong     dose  of  potassium
cyanide and  relied on    the Medical evidence as also that of
the chemical examiner to show that it was a case of pure and
simple homicide     rather than  that of  suicide as alleged by
the defence. The High Court while confirming the judgment of
the trial  court affirmed  the death sentence and hence this
appeal by special leave.
     Before discussing    the facts  of the  case, it  may  be
mentioned that    although the  High Court and the trial court
have gone into meticulous and minutest matters pertaining to
the circumstances  leading to  the alleged  murder of Manju,
yet after going through the
judgments we  feel that     the facts  of the case lie within a
very narrow compass.
     The story    of this unfortunate girl starts on 11.2.1982
when her marriage was solemnised with the appellant preceded
by a formal betrothal ceremony on 2.8.8. after the marriage,
Manju, for  the first  time, went  to her  parents' house on
22.2.82 for  a very  short period  and returned     to Pune  on
26.2.82. It  is the  prosecution case  that on    17.3.82     the
appellant  had     called     Manju     at  Pearl  Hotel  where  he
introduced her    to Ujvala  and told  her that  she must     act
according to the dictates and orders of Ujvala if she wanted
to lead a comfortable life with her husband. In other words,
the suggestion    was that  the appellant made it clear to his
wife that  Ujvala was  the real     mistress of  the house     and
Manju  was  there  only     to  obey  her    orders.     After    this
incident, Manju     went to  her parents'    house on  2.4.82 and
returned to  Pune on 12.4.82. This was her second visit. The
third and  perhaps the    last visit  of Manju to her parents'
house was  on 25.5.82.    from where  she returned  to Pune on
3.6.82, never  to return again. The reason for her return to
Pune was  that her  father-in-law insisted  that she  should
return to  Pune because     the betrothal    ceremony  of  Shobha
(sister of the appellant) was going to be held on 13.6.82.
     The last step in this unfortunate drama was that Manju,
accompanied by    Anuradha (wife    of A-2)     and  her  children,
returned to  the flat  on 11.6.82  near about 11.00 p.m. Her
husband was  not in  the apartment  at that  time but  it is
alleged by  the prosecution  that he returned soon after and
administered potassium    cyanide to  Manju.  Thereafter,     the
appellant went to his brother, Rameshwar who was also living
in the    same flat  and brought    Dr. Lodha  (PW 24)  who     was
living at  a distance  of 11/2 Kms from Takshila Apartments.
At the    suggestion of  Dr. Lodha Dr. Gandhi (PW 25) was also
called both  and of  them found     that Manju was dead and her
death was  an unnatural     one and advised the body to be sent
for postmortem    in order  to determine    the cause  of death.
Ultimately, Mohan  Asava (PW 30) was approached on telephone
and  was   informed  that   Manju  had    died  at  5.30    a.m.
Subsequently, the  usual investigation    and  the  postmortem
followed which    are not     very germane  for  our     purpose  at
present and would be considered at the appropriate stage.
     The plea  of the  appellant  was  that  Manju  was     not
administered potassium    cyanide by  him but  she appears  to
have committed
suicide out of sheer frustration. In order to prove his bona
fide the   accused  relied on the circumstances that as soon
as he came to know about the death of his wife he called two
Doctors (PWs  24 & 25) and when they declared that Manju had
died an     unnatural death,  as the  cause of  death  was     not
known, and therefore the body had to be sent for postmortem,
he immediately    took steps  to inform  the police. He flatly
denied the  allegation of the prosecution that there was any
attempt on his part to persuade Mohan Asava (PW 30) to allow
the body of the deceased to be cremated.
     We might  state that  the High  Court has    mentioned as
many  as  17  circumstances  in     order    to  prove  that     the
circumstantial evidence     produced  by  the  prosecution     was
complete and  conclusive, Some    of  13    these  circumstances
overlap, some  are irrelevant  and some cannot be taken into
consideration because  they were not put to the appellant in
his statement under s. 313 of the Code of Criminal Procedure
in order  to explain  the effect  of the  Code    of  Criminal
Procedure in  order to    explain the effect of the same as we
shall presently show.
     The law  regarding the nature and character of proof of
circumstantial    evidence   has    been   settled    by   several
authorities of    this Court  as also  of the High Courts, The
locus classicus     of the     decision of  this Court  is the one
rendered in  the case  of Hanumant  v. The  State of  Madhya
Pradesh where  Mahajan, J.  clearly  expounded    the  various
concomitants  of  the  proof  of  a  case  based  purely  on
circumstantial evidence, and pointed out thus:
      "The    circumstances  should  be  of  a  conclusive
     nature and     tendency and  they should  be    such  as  to
     exclude every  hypothesis but  the one  proposed to  be
     proved..... it  must be such as to show that within all
     human probability    the act     must have  been done by the
     This decision  was followed  and endorsed by this Court
in the    case of     Dharambir Singh  v. The State of Punjab. We
shall however  discuss Hanumant's case fully in a later part
of  our      judgment.  Coming   now   to     the   question      of
interpretation of sec. 32(1) of The Evidence Act, this Court
in the    case of     Ratan Gond  v. State  of Bihar S.K. Das, J.
made the following observations:
      "The only  relevant clause  of s.  32 which may be
     said to  have any    bearing is  cl.(1) which  relates to
     statements made  by a  person as  to the  cause of     his
     death  or    as  to    any  of     the  circumstances  of     the
     transaction which    resulted in  his death.     In the case
     before us, the statements made  by Aghani do not relate
     to     the   cause  of   her    death    or  to    any  of     the
     circumstances relating  to her  death; on the contrary,
     the statements relate to the death of her sister."
     In the 'Law of Evidence' by Woodroffe & Ameer Ali (Vol.
     II) the  authors have  collected all  the cases  at one
     place and indicated their conclusions thus:
     "To sum  up, the  test of    the relevancy of a statement
     under Section  32(1), is  not what the final finding in
     the case  is but  whether the final finding in the case
     is but  whether the  cause of  the death  of the person
     making the     statement comes  into question in the case.
     The  expression   'any  of     the  Circumstances  of     the
     transaction which    resulted in  his death'; is wider in
     scope than     the expression 'the cause of his death'; in
     other words,  Clause (1)  of Section  32 refers  to two
     kinds of  statements: (1) statement made by a person as
     to the  cause of  his death, and (2) the statement made
     by a  person as  to any  of the  circumstances  of     the
     transaction which resulted in his death.
      The words,  'resulted in  his death'    do not    mean
     'caused his  death',  Thus     it  is     well  settled    that
     declarations are  admissible only    in so  far  as    they
     point directly  to the fact constituting the res gestae
     of the  homicide; that is to say, to the act of killing
     and to the circumstances immediately attendant thereon,
     like threats  and difficulties  acts, declarations     and
     incidents, which  constitute or  accompany and  explain
     the fact or transaction in issue.
     They are  admissible for  or against  either party,  as
     forming parts of the res gestae."
(P. 952)
     It would  appear that  the     solid    foundation  and     the
pivotal pillar on which rests the edifice of the prosecution
may be indicated as follows:-
     (1)  Written dying     declaration by     the deceased in her
      letters, two of which were addressed to her sister
      Anju and one her friend Vahini,
     (2)  The oral  statements made  by the  deceased to her
      father (PW  2), mother  (PW 20), Sister (PW 6) and
      her friend  (PW 3) and also to PWs 4 and 5 showing
      her state of mind shortly before her death and the
      complaints  which  she  made    regarding  the    ill-
      treatment by her husband,
     (3)  evidence showing  that the appellant was last seen
      with the deceased in the room until the matter was
      reported to the police.
     (4)  the unnatural     and incriminating  conduct  of     the
     (5)  the medical evidence taken alongwith the Report of
      the chemical    examiner which    demonstrably  proves
      that it  was a  case of homicide, completely rules
      out the  theory  of  suicide    as  alleged  by     the
     Mr. Jethmalani,  learned counsel for the appellant, has
vehemently argued  that there  was a very strong possibility
of  the      deceased  having  committed  suicide    due  to     the
circumstances mentioned     in her     own letters.  He  has    also
questioned  the      legal     admissibility     of  the  statements
contained in the written and oral dying declarations. He has
submitted  that      the  so-called   dying  declarations     are
admissible neither under s. 32 nor under s.8 of the Evidence
Act it    was submitted by the appellant that the present case
is not    at all    covered by  cl.(1) of  s. 32 of the Evidence
     The leading  decision on  this question, which has been
endorsed by this Court, is the case of Pakala Narayana Swami
v. Emperor  where Lord    Atkin has  laid down  the  following
      "It has  been suggested that the statement must be
     made after     the transaction  has taken  place, that the
     person making  it must  be at any rate near death, that
     the "circumstances" can only include the acts done when
     where the    death was  caused. Their  Lordships  are  of
     opinion that the natural meaning of the words used does
     not convey     any of these limitations. The statement may
     be made before the cause of death has arisen, or before
     the deceased has any reason to anticipate being killed.
     The  circumstances      must    be   circumstances  of     the
     transaction: general  expressions    indicating  fear  or
     suspicion    whether      of  a      particular  individual  or
     otherwise and  not directly  related to the occasion of
     the   death    will   not      be   admissible-----------
     Circumstances of  the transaction" is a phrase no doubt
     that conveys  some limitations.  It is  not as broad as
     the analogous  use in  "circumstantial evidence"  which
     includes evidence    of all    relevant facts. It is on the
     other hand     narrower than    "res gestae".  Circumstances
     must  have      some    proximate  relation  to     the  actual
     occurrence. ----------It  will be    observed  that    "the
     circumstances are    of the transaction which resulted in
     the death of the declarant."
     These principles  were followed and fully endorsed by a
decision of  this Court     in Shiv Kumar & Ors v. The State of
Uttar Pradesh where the following observations were made:
      "It is clear that if the statement of the deceased
     is to  be admissible  under this  section it  must be a
     statement    relating   to  the   circumstances  of     the
     transaction resulting  in his  death. The statement may
     be made before the cause of death has arisen, or before
     the  deceased   has  any  reason  to  anticipate  being
     killed,---------A necessary  condition of admissibility
     under the    section is  that the  circumstance must have
     some proximate relation to the actual occurrence-------
     ---- The phrase "circumstances of the transaction" is a
     phrase that  no doubt  conveys some  limitations. It is
     not as  broad as  the analogous  use in "circumstantial
     evidence"    which  includes     evidence  of  all  relevant
     facts. It    is on  the other  hand    narrower  than    "res
     gestae" (See  Pakala Narayana Swami v. The King Emperor
     AIR 1939 PC 47).
     The aforesaid  principles have  been followed by a long
catena of  authorities of  almost all  the courts which have
been noticed  in this  case. To mention only a few important
once, in Manoher Lal
& ors.    v. The    State of  Punjab, the  Division Bench of the
Punjab & Haryana High Court observed thus:
      The  torture     administered  sometimes   manifests
     itself in    various forms.    To begin  with, it  might be
     mental torture  and then  it may  assume  the  form  of
     physical torture.    The physical harm done to the victim
     might be  increased from  stage to     stage to  have     the
     desired effect. The fatal assault might be made after a
     considerable interval of time, but if the circumstances
     of     the  torture  appearing  in  the  writings  of     the
     deceased come  into existence  after the  initiation of
     the torture  the same  would be  held to be relevant as
     laid down in Section 32(1) of the Evidence Act."
     We fully  agree with the above observations made by the
learned Judges.     In Protima  Dutta & Anr. v. The State while
relying on  Hanumant's case  (supra) the Calcutta High Court
has clearly  pointed  out  the    nature    and  limits  of     the
doctrine of  proximity and  has observed  that in some cases
where there is a sustained cruelty, the proximity may extend
even to     a period  of three  years. In    this connection, the
High Court observed thus:
      "The 'transaction'  in this case is systematic ill
     treatment for  years since     the marriage of Sumana with
     incitement     to  end  her  life.  Circumstances  of     the
     transaction include  evidence of cruelty which produces
     a state  of mind  favourable to  suicide. Although that
     would not    by itself  be sufficient  unless  there     was
     evidence of  incitement to     end her  life it  would  be
     relevant as evidence.
      This observation  taken as  a whole  would, in  my
     view, imply  that the  time  factor  is  not  always  a
     criterion in  determining whether the piece of evidence
     is      properly   included    within     "circumstances      of
     transaction. "--------"In    that case the allegation was
     that there     was  sustained     cruelty  extending  over  a
     period of    three years interspersed with exhortation to
     the victim     to end     her  life."  His  Lordship  further
     observed and  held that the evidence of cruelty was one
     continuous chain,    several links  of which were touched
     up by the exhortations to die. "Thus evidence
     of cruelty,  ill treatment     and exhortation  to end her
     life adduced  in the  case     must  be  held     admissible,
     together with  the statement  of Nilima  (who committed
     suicide)  in   that  regard   which  related   to     the
     circumstances terminating in suicide."
     Similarly, in  Onkar v.  State of    Madhya Pradesh while
following the  decision     of  the  Privy     Council  in  Pakala
Narayana Swami's case (supra), the Madhya Pradesh High Court
has explained  the nature  of the circumstances contemplated
by s. 32 of the Evidence Act thus:
      "The    circumstances    must  have   some  proximate
     relation to  the Actual  occurrence and  they can    only
     include the  acts done  when and  where the  death     was
     caused.-------  Thus   a  statement  merely  suggesting
     motive for     a crime  cannot  be  admitted    in  evidence
     unless  it      is  so   intimately  connected   with     the
     transaction itself     as to    be  a  circumstance  of     the
     transaction. In  the instant case evidence has been led
     about statements  made by the deceased long before this
     incident which may suggest motive for the crime."
     In Allijan     Munshi v.  State, the Bombay High Court has
taken a similar view.
     In Chinnavalayan v. State of Mad ras two eminent Judges
of the    Madras High Court while dealing with the connotation
of the word 'circumstances' observed thus:
      "The special    circumstance permitted to transgress
     the time  factor is,  for example,     a case of prolonged
     poisoning, while  the special circumstance permitted to
     transgress the  distance factor is, for example, a case
     of decoying  with intent to murder. This is because the
     natural  meaning  of  the    words,    according  to  their
     Lordships, do not convey any of the limitations such as
     that the  statement must  be made after the transaction
     has taken place, that the
     person making  it must  be at any rate near death, that
     the circumstances    can only  include acts done when and
     where the    death was caused. But the circumstances must
     be circumstances  of the transaction and they must have
     some proximate relation to the actual occurrence."
     In Gokul  Chandra Chatterjee  v. The State the Calcutta
High  Court   has  somewhat  diluted  the  real     concept  of
proximity and observed thus:
      'In the  present case,  it  cannot  be  said    that
     statements in the letters have no relation to the cause
     of     death.      What    drove    her  to      kill    herself     was
     undoubtedly  her    unhappy     state     of  mind,  but     the
     statements in  my view have not that proximate relation
     to the  actual occurrence    as to  make them  admissible
     under s. 32(1), Evidence Act. They cannot be said to be
     circumstances of  the  transaction     which    resulted  in
     We, however, do not approve of the observations made by
the High  Court in  view of the clear decision of this Court
and that  of the  privy Council.  With due respect, the High
Court has  not properly interpreted the tenor and the spirit
of the    ratio laid  down  by  the  Privy  Council.  We    are,
therefore, of  the opinion  that this case does not lay down
the correct law on the subject.
     Before closing  this chapter  we might  state that     the
Indian law  on the question of the nature and scope of dying
declaration has     made a     distinct departure from the English
law where  only the  statements which directly relate to the
cause of  death are admissible. The second part of cl.(1) of
32,  viz.   "the  circumstances     of  the  transaction  which
resulted in  his death,     in cases in which the cause of that
person's death    comes into  question" is not be found in the
English law.  This distinction    has been clearly pointed out
in the    case of     Rajindera Kumar  v.  The  State  where     the
following observations were made:
      "Clause (1)  of s.  32 of  the Indian Evidence Act
     provides  that   statements,  written   or     verbal,  of
     relevant facts made by a person who is dead,--------are
     themselves rele-
     vant facts when the statement is made by a person as to
     the  cause      of  his   death,  or    as  to    any  of     the
     circumstances of  the transaction which resulted in his
     death, in    case, in  which the  cause of  that person's
     death comes into question.---------- It is well settled
     by now that there is difference between the Indian Rule
     and the  English Rule  with regard     to the necessity of
     the declaration  having been  made under expectation of
      In the  English Law  the declaration    should    have
     been made    under the  sense of  impending death whereas
     under the    Indian Law  it    is  not     necessary  for     the
     admissibility of  a dying declaration that the deceased
     at the  time of  making it     should have  been under the
     expectation of death.
     And in the case of State v. Kanchan Singh & Anr. it was
observed thus:
      "The law  in India does not make the admissibility
     of a  dying declaration  dependent     upon  the  person's
     having a  consciousness of     the approach of death. Even
     if the  person did     not apprehend    that he would die, a
     statement made  by him  about the    circumstances of his
     death would be admissible under s. 32. Evidence Act.
     In these  circumstances, therefore,  it  is  futile  to
refer to English cases on the subject.
     Thus, from     a review of the authorities mentioned above
and the     clear language     of s.32(1) of the Evidence Act, the
following propositions emerge:-
      (1) Section  32 is  an exception  to the  rule  of
     hearsay and  makes admissible the statement of a person
     who dies, whether the death is a homicide or a suicide,
     provided the  statement relates  to the cause of death,
     or exhibits  circumstances leading     to death.  In    this
     respect, as  indicated above,  the Indian Evidence Act,
     in view  of the  peculiar conditions of our society and
     the diverse nature and
     character of  our people,    has thought  it necessary to
     widen the sphere of s.32 to avoid injustice.
      (2) The  test of proximity cannot be too literally
     construed and  practically reduced     to a  cut-and-dried
     formula of     universal application    so as to be confined
     in a  straitjacket. Distance  of time  would depend  or
     vary with the circumstances of each case. For instance,
     where death  is a    logical culmination  of a continuous
     drama long     in process  and is, as it were, a finale of
     the story,     the statement    regarding each step directly
     connected with the end of the drama would be admissible
     because the  entire statement  would have to be read as
     an     organic  whole     and  not  torn     from  the  context.
     Sometimes    statements  relevant  to  or  furnishing  an
     immediate motive may also be admissible as being a part
     of the  transaction of  death. It    is manifest that all
     these statements  come to light only after the death of
     the deceased who speaks from death. For instance, where
     the death    takes place  within a very short time of the
     marriage or  the distance    of time     is not     spread over
     more than    3-4 months  the statement  may be admissible
     under s.32.
      (3) The second part of cl.1 of s.32 is yet another
     exception to the rule that in criminal law the evidence
     of a  person who was not being subjected to or given an
     opportunity of  being cross-examined  by  the  accused,
     would  be     valueless  because   the  place  of  cross-
     examination is  taken by  the solemnity and sanctity of
     oath for  the simple  reason that a person on the verge
     of death is not likely to make a false statement unless
     there is strong evidence to show that the statement was
     secured either by prompting or tutoring.
      (4) It may be important to note that s.32 does not
     speak of  homicide alone  but  includes  suicide  also,
     hence all    the circumstances  which may  be relevant to
     prove a  case of  homicide would be equally relevant to
     prove a case of suicide.
      (5) Where the main evidence consists of statements
     and letters  written by the deceased which are directly
     connected with or related to her death and which reveal
     a tell-tale  story, the  said statement  would  clearly
     fall within  the four  corners of    s.32 and, therefore,
     admissible. The distance of
     time alone     in such  cases would not make the statement
     This now  brings us  to a    close consideration  of     the
contents of  the letters  (Exhs. 30,  32 and  33) written by
Manju to  her sister  and friend.  We propose to examine the
contents of the letters for four purposes:
     1)      in order  to    find  out  the    state  of  mind     and
      psychological attitude of Manju,
     2)      the nature of Manju's attitude towards her husband
      and in-laws,
     3)      the amount  of tension and frustration which seems
      to be clearly expressed in the letters and
     4)      to   determine   Manju's   personal    traits     and
      psychological approach to life to determine if she
      was  ever   capable  of  or  prone  to  committing
     We start  with the     letter dated  8.5.82 (Ex. 30) which
was addressed  to her sister Anju and is printed at page 191
of Part     I of the printed Paperbook. The learned counsel for
the appellant  in order     to make  our task easy has supplied
the English  translation as  also the  Roman script  of     the
original letter. On a comparison of the two versions, we are
of the    opinion that  by and  large the     English translation
printed in the Paperbook is a true and faithful rendering of
the contents of the original letter. It is not necessary for
us to  extract the  entire letter  but we propose to extract
only  the  relevant  portions  which  seek  to    explain     and
illustrate the four purposes mentioned above.
      "All read  the letter with curiosity, or it may go
     to anybody's hand. I do not want to take any risk. So I
     have taken     up today  for writing, the second letter to
     you."     The    Roman      scripy     runs     thus:-
      "Khat to  sabhi utsukta  se padte hain. Kahin kisi
     ke hath  pad saktahai. Aisi risk leni nahin aai. Isliye
     maine   tumhe   aaj   doosra   khat   likhneko   liya."
     An analysis of the above clearly shows that Manju was a
highly secretive  woman and  wanted  to     keep  her  personal
matters or
secrets to  herself except  giving a rough idea or a passing
glimpse of her feelings only to those who were very close to
her as    friends or  near relations.  The extract  shows that
perhaps in  a spell of heavy emotions she had written a very
long letter  to her  sister whom  she regarded    as her    best
friend but  on second  thought she  tore it  off lest it may
fall in     anybody's hands  and she  was not  prepared to take
such a    risk. This  mentality and  noble nature     would be of
great assistance  to us     in assessing the probative value of
the statements made by her to her parents, sister and friend
during her  last visit    to Beed. The second paragraph, which
is extracted  below, reflects  her state  of  mind  and     the
tension and torture which she was undergoing:
      "Now in  this letter,     when (Out  of)     the  things
     coming to    my mind     which cannot  be written,  I do not
     understand what is to be written, The State of mind now
     is very  much the    same. Enough. You understand (me). I
     am undergoing  a very  difficult test.  I am  unable to
     achieve it.  Till I  could control     (myself), well     and
     good. When     it becomes  impossible, some other way will
     have to  be evolved.  Let    us  see     what  happens.     All
     She has hinted that hinted that she was passing through
difficult times but was trying to control herself as much as
she could.  She has further indicated that if things did not
improve then  she may  have to evolve some other method. The
exact words used in the Roman script runs thus:
      "Jab    tak   sambhal  sakti   hoon  theek  hai     jab
     assambhab ho  jayega  to  phir  rasta  nikalna  padega,
     dekhenge kya kya hota hai,"
     The words    "some other  way will  have to    be  evolved"
clearly gives a clue to her psychotic state of mind and seem
to suggest  that the  other method  to get  rid of  all     her
troubles was to commit suicide. It is pertinent to note that
in the    first two  paragraphs of  her letter extracted above
there is no indication nor any hint about the conduct of her
     In the third para of her letter she states her feelings
     thus: "I  thought much  that  since  the  house  of  my
     husband's parents    is at Pune, I would do this and that
     or the people
     from the  house  of  my  husband's     parents  are  free.
     However, I     have gradually     come to  know that  in that
     house, the     worth of  a daughter-in-law is no more than
     that          of         a           laborer."
     The relevant portion in the Roman script reads thus:
      "Is ghar  mein bahu  ki keemat  majdoor  se  jyada
     nahin hai."
(P. 18)
     At the  end or  the third paragraph she repeats her sad
plight thus:
      "My  state  here  however  is     like  an  unclaimed
     person. Let  it be     gone. I  do not  like to weep (over
     it). When we will meet, we will talk all the things."
     In the  middle of    the 4th paragraph she comes out with
an emotional  outburst by  indicating that all her hopes had
been shattered and because of being neglected by her husband
her health  was adversely  affected. In the Roman script she
used the following words:
      "Sachmuch kya     kya sapne  rahte hain kuarepanmein,
     magar toote  huye dekhkar dilpar kya gujarti hai. Vaise
     tu maine  kuch bhi     sapne nahin  dekhe the,  bas ek  hi
     sapna tha    ki mera     pati mujhse  bahut pyar kare, magar
     abhi wo bhi na pakar dilki halat per kaboo nahin pa sak
     rahi.  Tabiyat   par  uska      asar     dikh    raha   hai."
     (P. 19-20)
     In the  latter part  of the  8th paragraph while giving
vent to her feelings she states thus:
      "Now Manju is moving, it is necessary to tell that
     she is alive. You don't tell anybody about this letter.
     I felt like telling all this to Bhausab. What, however,
     is the  use of  making him sorry. One should test one's
     fate, whatever  may be  the result.  I want to tell you
     all. But I cannot tell."
     The  words     used  by  her    show  her  affectionate     and
secretive nature and the precaution taken by her not to tell
any thing  to her father, who is addressed as 'Bhausab'. The
Roman script of the relevant portion runs thus:
      "Dil tu  karta tha  Bai Bhau    Sahab ko sab bataon,
     magar unko     dukh dekar  kya phaida.  Apne    apne  naseeb
     dekhenge, natija  kya nikalta  hai. Mujhe    tumbein     sab
     kuch batana hai magar bata nahin sakti."
     These extracts  throw a  flood of    light on the nature,
character, mental  attitude,  suffering     and  shock  of     the
deceased. One  thing which  may be  conspicuously noticed is
that she  was prepared    to take     all the blame on her rather
than incriminate  her  husband    or  her     inlaws.  The  other
portions of  the letter     (Ex.30) are  not at all germane for
the purpose  of this  case. Summarising the main contents of
the letter, the following conclusions or inferences follow:
     (a)  Manju was a highly emotional and sensitive woman,
     (b)  She got  the shock  of her  life when     due to ill-
      treatment by    her husband  and in-laws  she  found
      that all  her dreams    had been shattered to pieces
      after marriage  leaving her  a dejected, depressed
      and disappointed woman,
     (c)  she had been constantly ill-treated by her in-laws
      and her position in the house was nothing but that
      of an unpaid maid-servant or a labourer,
     (d)  she wanted to keep all her worries and troubles to
      herself and  on no  account was  she    prepared  to
      disclose them     to  her  parents  or  even  to     her
      sister,  lest      they    also   get   depressed     and
     (e)  no serious  allegation of  cruelty had  been    made
      against the  husband personally  by  her  and     she
      thought that    she herself  should  suffer  out  of
      sheer frustration.
     Now we  shall examine  Ex.32 which     is a  letter  dated
8.6.82 written by Manju to her sister Anju. This was perhaps
her last  letter to  Anju and is very important and relevant
for decision  of the  case. The letter begins with the words
"I am happy here." In the second paragraph she expresses her
feelings as follows:
      "Shobhabai's 'Sadi'  programme is  fixed on 13th I
     do not know why there is such a dirty atmosphere in the
     house ?  It is  felt every     moment that  something will
     Everybody is  in tension.    No work     has been started in
     the house. Let it go. I am out of mind. Still I am used
     not to pay need to it. Ala what about your law."
     So far  as the  first part     is  concerned,     the  'dirty
atmosphere' about  which she  speaks is totally unrelated to
anything done  by the  husband or  of any cruel treatment by
him; it     merely refers    to the    tension     prevailing  in     the
family as  the 'Sadi' (Kohl) was fixed on 13.6.82. Her anger
is not    so much     towards her  husband or  herself as for the
manner in  which things were being done. She complained that
no work     had been  started and    being the eldest daughter in
law of    the family  she felt  it her  duty to  see that     all
arrangements  were   complete.    It   was  conceded   by     the
Additional Solicitor-General that this portion of the letter
does not  refer to  any ill-treatment  by the husband or his
parents but relates only to the defective and unsatisfactory
arrangements for  such an  important function.    The relevant
portion of  the 3rd paragraph is also more or less innocuous
but in between the lines it contains a tale of woe, a spirit
of desperation    and frustration and a wave of pessimism. the
actual vernacular words are-
      "Mera to  aane ka  kya hota  hai dekna hai Buajike
     yahan se  khat aur aaya to shahid chance mil sakta hai.
     Magar meri     mangal ke  dulhan ke  roop mein  dekhne  ki
     bahut ichha hai. Dekhenge."
     She was  naturally apprehending  some thing and was not
very hopeful  of going to her father's place. This being her
last letter,  and that    too a  short one,  it gives  a clear
inkling of  the manner    of how her mind was working. She did
not lay     any blame  on her husband or anybody else but still
she was     afraid that  something was going to happen and that
she may not be able to go to her father and see the marriage
of her sister-in-law for which preparations were being made.
In our opinion, these words are extremely prophetic and seem
to indicate  that by  that time     she had  almost made up her
mind to     end her  life instead    of carrying on her miserable
existence. As  brevity is  the soul  of     wit,  she  directly
hinted that  she may  not be  able to meet her father or any
body naturally because when a life comes to an end there can
be no such question. Exh. 32, though a short letter, depicts
her real  feeling and perhaps a tentative decision which she
may have  already taken     but did  not want  to disclose     for
obvious reasons.
     Then we  come to Exh.33 which is a letter dated 23.4.82
written by  the deceased  to her  close friend,     Vahini     and
which shows her exact feelings, changing, mood and emotions.
This is     the only letter where she had made clear complaints
against     her  husband  and  the     relevant  portions  may  be
extracted thus:
      "Really, Vahini, I remember you very much. Even if
     I am  little uneasy,  I feel  that you should have been
     near with me.
      All persons  here  are  very    good.  Everybody  is
     loving. Still I feel lonely. One reason is that, in the
     house there  are many  persons and they are elder to me
     and such  I do  not dare  to do any work independently.
     Every  time  some    fear  is  in  mind  which  leads  to
      God knows  when I  can come  there ?    The point on
     which we  had discussion  is as it was. Vahini. I swear
     you if you talk to anyone. I am much in pains. But what
     else can  I do  ? No  other go  than that, and the same
     mistake is     done again and again by me. It is that I go
     ahead and talk for ten times, then I become angry if he
     does not  speak. Vahini,  there is     nothing in my hands
     except to    weep profusely.     At least  till now this man
     has no  time to  mind his    wife, let it be, but Vahini,
     what shall I do?" (P.196)
      "Who knows what hardships be-fall on me, so long I
     am alive.    Why the god has become (unkind) towards me."
     (P. 197)
      "Since yesterday  I have  made up  my mind  not to
     speak a  word even,  till he speaks (to me). Let me see
     to what  extent I control my feelings. Vahini, you also
     pray to god for me whether a girl like me should be put
     to such  a difficult  test. Vahini, I am so much afraid
     of him that the romantic enchantment during first 10-15
     days after marriage has become like a dream."
      "I cannot  dare to  ask him whether his clothes be
     taken for    wash. At present my status is only that of a
     maid servant without pay as of right.
      Why so much indifference towards me only ? Vahini,
     I, feel  to weep  in your    arms. Vahini  come  to    Pune
      On getting  up every    morning I feel he will speak
     today but    every day  I am hoping against hope. Vahini,
     what will happen ? Now there is no ray of hope.
      Day before  yesterday I became excited and uttered
     in rage.  "You hate  me, was I unable to get food in my
     parent's house ?
      He was  irritated due     to word 'hate'. He said. if
     you talk more like this, I will be very bad man.
      If this  goes on,  I will  not come to sleep. That
     means not    permitted (to  cry) also. How he says to me,
     are you tired of me so early ? What shall I say to such
     a man. Once I feel that he does not count me. On second
     thought, I     feel he  cares me  much. But  due to  moody
     nature, it     will take  time to  pacify the same. On the
     day on  which self-pride  is lessened,  no other person
     will be  more fortunate than me But till that day it is
     not certain that I will be alive."
                            (P. 197)
     In     the  second  paragraph     she  starts  by  giving  an
indication that     she was  feeling uneasy and would have very
much liked  to have  Vahini with her. In the third paragraph
she clearly  states that  all persons in her father-in-laws'
place were  very good  and loving  but due  to a  number  of
persons in  the house  she did    not get     a  chance  to    work
independently. The  last line  "every time  some fear  is in
mind which  leads to confusion" is the starting point of the
first symptom  of her invisible fear which she was unable to
locate. The fourth paragraph is rather important which shows
that whatever  her feelings may have been she sought an oath
from Vahini  not to  talk to  anyone regarding    the  matters
which she  proposed to    write in  the said  letter. She says
that she  was  much  in     pains    and  hints  that  she  weeps
profusely and  the reason  given by her for this is that she
went on     committing mistakes  and talked to her husband many
times but  his silence    was extremely painful which made her
angry. In  the last portion, for the first time, she makes a
direct complaint  against her  husband to the effect that he
had no time to look after her (Manju). In the same paragraph
she describes her hardships and complains
why God     was  unkind  to  her.    She  further  expresses     her
sentiments  that   the    romantic   enchantment     which     she
experienced during  the first  few days     of her marriage had
completely disappeared    and looks  like a  lost dream  or  a
"Paradise lost".  Then she  describes her  plight as being a
maid-servant   without     pay.    She   again   complains      of
indifference towards her. Ultimately, she hopes against hope
that some  day he will speak to her and discuss the problems
but there  is no response. Later, she refers to a particular
incident and goes to the extent of telling him that he hates
her. This  seems to  have irritated the husband who resented
this remark  very much. Again in the same breath towards the
end of    the paragraph,    while she says that her husband does
not care  for her  yet she at once changes her mind and says
that he     cares for  her much  but due to his moody nature it
will take  time to  pacify him.     Her feelings  again take  a
sudden turn when she says that when her husband's self-pride
is lessened  none would be more fortunate than her. The next
line is     rather important  because she    hints that  till the
said heyday comes perhaps she might not be alive.
     A careful    perusal of this letter reveals the following
     (1)  after     going     to  her   marital  home   she    felt
      completely lost  and took even minor things to her
      heart and  on the slightest provocation she became
      extremely sentimental and sensitive.
     (2)  She  exhibited  mixed     feelings  of  optimism     and
      pessimism at the same time.
     (3)  it can  easily be  inferred that  she did not have
      any serious  complaint against her husband but she
      became sad  and morose because she was not getting
      the proper  attention which  she thought she would
     (4)  There is  no    indication  that  she  expected     any
      danger from  her husband  nor is there anything to
      show that  things had     come to  such a pass that a
      catastrophe  may   have  resulted.  There  may  be
      certain concealed  and hidden     hints which she was
      not prepared to reveal in writing : what they were
      is not clear.
     (5)  A close reading and analysis of the letter clearly
      shows at least two things-
      (a)  that she felt extremely depressed,
      (b)  that there  was a  clear     tendency  resulting
           from her     psychotic nature to end her life or
           commit suicide.
     This possibility  is spelt out from the various letters
which we  have extracted.  Indeed, if  this was     not so     how
could it  be possible that while not complaining against her
husband she gives a hint not only to Vahini but also to Anju
that she  might not  live. She    mentions of  no such  threat
having been given to her by husband at any time or anywhere.
     (6)  The  contents      of  the  letter  lead     us  to     the
      irresistible conclusion  that Manju  felt  herself
      lonely and desolate and was treated as nothing but
      a chattel  or a  necessary  evil  ever  since     she
      entered her marital home.
     Thus, from     the recitals  in the  letters we can safely
hold that  there was  a clear  possibility and a tendency on
her  part   to    commit     suicide  due    to  desperation     and
frustration. She  seems to be tired of her married life, but
she still  hoped against  hope that things might improve. At
any rate,  the fact  that she  may  have  committed  suicide
cannot be  safely excluded or eliminated. It may be that her
husband may  have  murdered  her  but  when  two  views     are
reasonably possible  the benefit  must go to the accused. In
order to  buttress our    opinion, we  would like to cite some
passages of  an eminent     psychiatrist, Robert  J. Kastenbaum
where in  his book  'Death, Society and Human Experience' he
analyses  the  causes,    the  circumstances,  the  moods     and
emotions which    may drive  a person  to commit    suicide. The
learned author has written that a person who is psychotic in
nature and  suffers from  depression and frustration is more
prone to commit suicide than any other person. In support of
our view, we extract certain passages from his book :
      "The fact  is that  some people who commit suicide
     can be classified as psychotic or severely disturbed.
      If  we  are  concerned  with    the  probability  of
     suicide in     very large  populations,  then     mental     and
     emotional disorder is a relevant variable to consider.
      And it  is only  through a gross distortion of the
     actual circumstances  that one could claim all suicides
     are enacted in a spell of madness.
      "Seen in these terms, suicide is simply one of the
     ways in which a relatively weak member of society loses
     out in the jungle like struggle.
      The individual does not destroy himself in hope of
     thereby achieving    a noble     postmortem reputation    or a
     place among the eternally blessed. Instead he wishes to
     subtract himself  from a  life whose  quality  seems  a
     worse evil than  death.
      The newly  awakened spirit  of hope  and  progress
     soon became  shadowed by  a sense of disappointment and
     resignation that, it sometimes seemed, only death could
      Revenge  fantasies   and  their  association    with
     suicide are  well known to people who give ear to those
     in emotional distress."
      "People who attempt suicide for reasons other than
     revenge may  also act  on the  assumption    that,  in  a
     sense, they  will survive    the death  to benefit by its
     xx             xx             xx
      The victim  of suicide  may also  be the victim of
     self-expectations that  have not  been  fulfilled.     The
     sense of  disappointment and  frustration may have much
     in common with that experienced by the person who seeks
     revenge  though  suicide-However,    for  some  people  a
     critical  moment    arrives     when    the  discrepancy  is
     experienced as too glaring and painful to be tolerated.
     If something  has to  go it  may be the person himself,
     not the perhaps excessively high standards by which the
     judgment has  been made-Warren Breed and his colleagues
     found that a sense of
     failure is     prominent among  many people who take their
     own lives."
     The above observations are fully applicable to the case
of Manju. She solemnly believed that her holy union with her
husband     would     bring    health    and  happiness    to  her     but
unfortunately  it  seems  to  have  ended  in  a  melancholy
marriage which    in view of the circumstances detailed above,
left her so lonely and created so much of emotional disorder
resulting from frustration and pessimism that she was forced
to end    her life.  There can  be no doubt that Manju was not
only a    sensitive and  sentimental woman  but was  extremely
impressionate and  the letters show that a constant conflict
between her mind and body was going on and unfortunately the
circumstances which  came into    existence hastened  her end.
People with  such a  psychotic philosophy  or bent  of    mind
always dream  of an  ideal and    if the said ideal fails, the
failure drives them to end their life, for they feel that no
charm is left in their life.
     Mary K.  Hinchliffe, Douglas Hooper and F. John Roberts
in their book 'The Melancholy Marriage' observe that-
      "Studies of  attempted suicides  cases  have    also
     revealed the  high incidence  of marital problems which
     lie behind the act. In our own study of 100 consecutive
     cases (Roberts  and Hooper 1969), we found that most of
     them could     be understood    if the patients interactions
     with others in their environment were considered."
     Such  persons   possess  a     peculiar  psychology  which
instils extreme     love and  devotion but     when they are faced
with disappointment  or find  their environment so unhealthy
of unhappy,  they seem    to loose all the charms of life. The
authors while describing these sentiments observe thus :
      "Hopelessness', 'despair', 'lousy, and 'miserable'
     draw attention  to the  relationship of  the  depressed
     person to    his environment.  The  articulate  depressed
     person will  often also  struggle to put into words the
     fact that    not only  does there  appear to     be  no     way
     forward and thus no point to
     life-but that the world actually looks different."
     Coleridge in  `Ode to  Dejection' in his usual ironical
manner has very beautifully explained the sentiments of such
persons thus :
     "I see them all so excellently fair-
     I see, not feel, how beautiful they are ;"
     At another place the author (Hinchliffe, Hooper & John)
come  to   the    final    conclusion  that  ruptured  personal
relationship play  a major  part in the clinical picture and
in this connection observed thus :
      "Initially we     applied these    ideas  to  study  of
     cases of  attempted suicide  (Roberts and    Hooper 1969)
     and although  we did  not assume  that  they  were     all
     necessarily  depressed,   we  looked   for     distal     and
     proximal causes  for their     behaviour  and     found    that
     ruptured personal    relationships played a major part in
     the clinical picture."
     The observations  of the  authors    aptly  and  directly
apply to  the nature,  mood and     the  circumstances  of     the
unfortunate life  of Manju  which came to an end within four
months of marriage.
     We have  pointed out  these circumstances    because     the
High Court  has laid  very great stress on the fact that the
evidence  led  by  the    prosecution  wholly  and  completely
excludes the  possibility of suicides and the death of Manju
was nothing but a dastardly murder.
     We shall  now deal with the next limb of the oral dying
declaration said  to have  been made  by the deceased to her
parents and  friends. Some  of the  statements which  have a
causal    connection   with  the     death    of   Manju  or     the
circumstances  leading     to  her   death   are     undoubtedly
admissible under  s.32 of the Evidence Act as held by us but
other statements  which do  not bear  any proximity with the
death or  if at     all very  remotely and indirectly connected
with the  death     would    not  be     admissible.  Unfortunately,
however, the  two kinds     of statements    are so    inextricably
mixed up that it would
take a great effort in locating the part which is admissible
and the one which is not.
     Before discussing    the evidence  of  the  witnesses  we
might  mention     a  few      preliminary  remarks    against     the
background  of     which    the   oral  statements     are  to  be
considered. All persons to whom the oral statements are said
to have     been made  by Manju  when she    visited Beed for the
last time,  are close relatives and friends of the deceased.
In view     of the     close relationship and affection any person
in the    position of  the  witness  would  naturally  have  a
tendency to  exaggerate or add facts which may not have been
stated to them at all. Not that is done consciously but even
unconsciously the  love and affection for the deceased would
create a  psychological hatred against the supposed murderer
and, therefore,     the court has to examine such evidence with
very great  care and  caution. Even  if the  witnesses    were
speaking a  part of  the truth    or perhaps  the whole of it,
they would  be guided  by a  spirit of    revenge     or  nemesis
against the accused person and in this process certain facts
which may  not or could not have been stated may be imagined
to have     been stated unconsciously by the witnesses in order
to  see     that  the  offender  is  punished.  This  is  human
psychology and no one can help it.
     This now takes us to a consideration of the evidence of
the witnesses concerned which read together with the letters
form a    composite chain     of evidence regarding the causes or
the circumstance  relating to  the death  of  the  deceased.
According to  the prosecution,    the last  visit of  Manju to
Beed was  on 25.5.82  where she stayed till 3rd of June 1982
when she was brought back by the father of the appellant. In
other words,  the narration of the troubles and tribulations
of Manju  was made  only  during  her  last  visit  and     not
earlier. These    statements are    alleged to have been made to
Rameshwar Chitlange  (PW 2),  Manju's father,  Rekha (PW 3),
who was     Manju's friend     and referred  to as `Vahini' in the
letter Ex.33,  Anju (PW     6), Manju's  sister to whom letters
(Exhs. 30  and 32)  were written, and PW-20, Bai, the mother
of Manju.  Meena Mahajan (PW 5) was also examined but we are
not in    a position  to rely  on the evidence of this witness
for two     reasons -(1) she does not figure anywhere in any of
the letters  written by     Manju, and  (2) nothing was told to
her by    Manju directly but she was merely informed regarding
the incidents  mentioned by  PW-2.  This  sort    of  indirect
evidence is not worthy of any credence.
     We     would     first    deal  with  the     evidence  of  PW-2,
Rameshwar  Chitlange  (Manju's    father).  We  shall  give  a
summary of  the relevant  part of  his evidence     because the
other parts relate to how the marriage was performed and the
spouses had gone for honeymoon which are not germane for our
purpose. The  witness states  that when     Manju came  to Beed
with her  maternal uncle he found her somewhat uneasy and on
making enquiries  whether she  was happy  at  her  husband's
house she  told him  that she  was not    very happy  with her
husband since she noticed that her husband was not very much
pleased with  her and in fact hated her. These facts are the
result of  the usual domestic quarrels between a husband and
a wife,     hence this  statement    cannot    be  said  to  be  so
directly or  proximately related to the death of Manju so as
to be admissible under s.32 of the Evidence Act.
     It appears     from his  evidence that  even after hearing
the narration  from his     daughter  he  advised    her  to     get
herself adjusted  to the  situation and to the atmosphere of
her new     marital home.    Apart from  being inadmissible    this
does not  appear to  be of any assistance to the prosecution
in proving the case of murder alleged against the appellant.
The witness  goes on to state that as the grandfather of the
accused had  died he  visited Pune,  accompanied by his wife
and Manju.  Since this    was more  or less a formal visit for
expressing his    condolences to    the bereaved family, he left
Manju at  the house  of the  accused. The  only part  of his
evidence on  which reliance was placed by the prosecution is
that he had noticed Manju very much disturbed and uneasy and
requested Birdichand (father of the accused) to allow him to
take Manju  to the  house  of  Dhanraj,     which    he  did.  On
reaching the house of Dhanraj, the witness states that Manju
completely broke  down and  started weeping  and fell in the
grip of     her mother.  This state of Manju, which the witness
saw with his own eyes, would undoubtedly be primary evidence
of what he saw and felt though not in any way connected with
s. 32  of the Evidence Act. But from this circumstance alone
it cannot  be safely  inferred that  Manju  apprehended     any
serious danger to her life from her husband.
     The witness  further states that he informed Birdichand
about the  grievances made  to him  by Manju. The appellant,
Sharad, was  sent for  and he quietly listened to his father
but the     witness felt that whatever Birdichand may have told
to his    son that  does not  appear to  have made any serious
impact on him (appellant) and he left the
room. This  is purely  an opinion evidence and therefore not
admissible. Even  so, the  accused perhaps  did not think it
necessary to  enter into arguments with his father-in-law in
the presence  of his father and that is why he may have kept
quiet. From  this no  inference can  be drawn that he was in
any way inimically disposed towards Manju or was animated by
a desire to take her life.
     The witness further stated that he found that Manju was
weeping every  now and    then during  the night    at Dhanraj's
place. Later,  in the morning the witness took Manju back to
her in-laws  house but his grievance was that Sharad did not
care to     meet or  talk to  them.  These     are  however  small
circumstances which  are incidents  of any  married life and
from this  no adverse  inference can  be drawn    against     the
     Another complaint    made in     the statement was that when
he made     a voluntary  offer to    solve  the  difficulties  of
Sharad, the  appellant curtly  told him that he did not want
to get    his difficulties solved by other persons and at this
attitude of  Sharad the     witness  was  naturally  very    much
disappointed. This  conduct of    the accused  also is  not of
such an importance as to lead to any adverse inference. Some
persons who  have a  keen sense of pride and self-respect do
not like  anyone else not even their father or father-in-law
to interfere  in their personal matters. Perhaps this may be
the reason for the somewhat cool and curt attitude of Sharad
but that  proves nothing.  In fact,  experience     shows    that
where elders  try to intermeddle in the affairs of a husband
and his     wife, this  creates a    serious obstruction  in     the
relations of  the married  couple. Nothing  therefore, turns
upon this statement of PW 2.
     Again, the witness repeats that when Manju came down to
see him     off he     noticed her  weeping all the time. To cut a
long story short, the witness came back to Beed and sent his
son Pradeep  to bring  Manju from  Pune to Beed. On reaching
there he  was informed    that Manju  and Sharad had gone on a
holiday trip  to Mysore,  Triupati, etc. After the return of
Pradeep to  Beed, Dhanraj  informed the     witness that Sharad
and Manju  had returned     to Pune  and therefore, he sent his
son, Deepak  to Pune to bring back Manju. When Manju arrived
at  Beed,  the    witness     found    her  totally  disturbed     and
frightened. This  statement would  be admissible  as primary
evidence. What    probative value     should be  attached to this
small matter is a different issue.
     Thereafter, the  witness was  told the incidents by his
wife (PW  20) which  had been  narrated to  her by Manju but
that is     of no    value so far as this witness is concerned as
the main  evidence would be that of PW 20. However, in order
to save     the marriage  from a a total break-down the witness
was extremely  worried and  therefore, he  called  one    Hira
Sarda, a  close acquaintance  of the  family of accused, who
told him  (witness) that he was going to Hyderabad and after
4th-5th June  some solution  would be found out. At the same
time, he  advised the  witness not  to    make  any  haste  in
sending back Manju to Pune.
     On the  2nd June  1982, Birdichand     arrived at Beed and
requested the  witness to  send Manju  to Pune    because     the
marriage of  Birdichand's daughter  was fixed  for 30th June
1982 and the Kohl (betrothal) ceremony was to be held on the
13th of     June so  that Manju  may be present at the ceremony
and look after the arrangements. The witness says that after
hearing this he apprised Birdichand that Manju was extremely
frightened and    that she  was not  ready to  go back  to her
husband's house     nor was  he (witness)    willing to  send her
back so     soon.    He  suggested  to  Birdichand  that  as     the
marriage of  his nephew was to be celebrated at Beed on 25th
June, Sharad  would come  to attend the marriage and at that
time he     can  take  Manju  with     him.  Birdichand,  however,
persuaded the  witness to  send back  Manju and     assured him
that no     harm of  any kind  would come    to her    and he    also
promised that  Manju would  be sent  back to  Beed, The most
important statement  in the  evidence of this witness may be
extracted thus :
      "I was  having this  talk with  Birdichand on     the
     first floor  of my     house. Manju  heard this  from     the
     staircase, called    me out    in the ground portion of the
     house and    told me that she was not in a position to go
     to the  house of  the accused. Since she was in a state
     of fear  or extreme  fear in her mind and she also told
     me that  she was not prepared to go to the house of the
      **               **            **
      Therefore, after  the     meals    I  sent     Manju    with
     Birdichand. Birdichand, Manju and Kavita then left Beed
     by about 12.30 p.m. by bus on 3rd of June, 82. At that
     time Manju     was constantly weeping right from inside my
     house till     the bus  left. She  was also  in a state of
     extreme fear."
                           (P. 197)
     The witness  has said  many times in his statement that
Manju was  always weeping  and crying  and the    final crisis
came when  on hearing  the talks  between him and Birdichand
she called  him from the staircase and told him that she was
not prepared  to go  to her  husband's house as she was in a
state of  extreme fear. It is difficult to believe this part
of the evidence of the witness for two reasons-
     (1)  When the  talks were    going on  between two elders
      would Manju  be  sitting  near  the  staircase  to
      listen their    talks and  call her  father and give
      vent to  her feelings     and her  decision not to go
      back to  Pune at any cost. This conduct appears to
      be directly  opposed not  only to  the  tenor     and
      spirit of  the letters (Exhs. 30, 32 and 33) which
      we have  discussed but  also    against     her  mental
      attitude and noble nature.
     (2)  As indicated    by us  while discussing the letters-
      could a woman who was so affectionate and reserved
      in nature  and who  would not like the contents of
      her letters  to Anju and Vahini to be disclosed to
      her parents  lest they feel worried, disturbed and
      distressed-suddenly turn  turtle,  forgetting     her
      sentiments not  to worry  them and come out in the
      open to  declare before  all by weeping and crying
      that she  was in  a state of extreme fear, seem to
      us to     be inherently    improbable.  Once  a  mature
      woman develops  a particular    nature or habit or a
      special bent    of mind     she is     not likely to forgo
      her entire  nature-in this case, her affection and
      love for  her parents and the feeling of not doing
      anything which  may cause  distress  or  worry  to
      them,     and  start  telling  her  woeful  story  to
      everyone whom she met.
     Manju must have known fully that her husband's sister's
betrothal ceremony  was to  be held  on 13th June and if her
father-in-law was  making request  after request to take her
to Pune to attend the said ceremony, and had given all sorts
of assurances  that no    harm would  come to  her, would     she
still call  her father    and express her state of fear and go
on repeating  what she had already said. This seems to us to
be an  afterthought or    an embellishment  introduced in     the
evidence of  the witness  so  as  to  add  credence  to     the
prosecution story  and provide    an imaginary  motive for the
murder of the deceased. Indeed, if she was bent on resisting
all attempts  of her  father-in-law to    take her to Pune she
would  not  have  gone    at  all.  On  the  other  hand,     her
subsequent conduct  of ultimately  going to  Pune and making
arrangements for  the Kohl  ceremony belies  the  story     put
forward by  the witness.  It is     extremely difficult  for  a
person to  change a  particular bent  of mind  or a trait of
human nature  unless there  are substantial  and  compelling
circumstances to do so. In the instant case, we find no such
compelling circumstance     even taking  the statement  of     the
witness at its face value.
     To take the other side of the picture, the witness says
that when  he reached  Pune on 12.6.82 and visited the place
where Manju  had died,    he found Sharad sleeping or lying on
the cot     and on     seeing him  he immediately  started  crying
vigorously and making a show of the grief and shock they had
received.  The     exact    statement  of  the  witness  may  be
extracted thus :
      "I could  notice that     Sharad who  was sleeping or
     lying on the cot in the said room on seeing me entering
     the room  immediately started  crying vigorously giving
     jerks to  his body and making show of the grief and the
     shock he  had received.  Ultimately I  asked him  as to
     what had  happened to  Manju when he told me that since
     11th it  was the day of his marriage with Manju, he and
     Manju were     in joyest  mood. According to him they went
     to bed  by about  12 midnight  and he  had a sexual act
     with Manju     in such  a  manner  which  they  never     had
     enjoyed before.  Ultimately according  to him when they
     completely felt  tired and     exhausted both of them fell
     asleep. According to him by about 5.30 a.m. when he got
     up and  after visiting the urinal, when returned to the
     room he  found that Manju had not got up as usual since
     according to  him, she used to wake up at the same time
     he used to wake up and so he
     went near    Manju and  called her  out when he found her
     It is  rather  strange  that  while  the  witness    took
whatever his  daughter told  him at  its face  value without
making any  further enquiry,  he immediately  jumped to     the
conclusion that     the grief and tears in the eyes of his son-
in-law were  fake and  that he was merely shedding crocodile
tears. There is nothing on the record nor in the evidence to
show any  circumstance which  may have    led the     witness  to
arrive at this conclusion. On the other hand, if the conduct
of the    appellant, as described by the witness, is seen from
a dispassionate     angle, it was quite spontaneous and natural
because by  the time the witness reached Pune the postmortem
had been  done and the death of Manju had come to light long
before his  arrival. There  was no reason for the witness to
have presumed  at that    time that Sharad must have committed
the murder  of the deceased. There were no materials or data
before him  which could have led him to this inference. This
clearly shows one important fact, viz., that the witness was
extremely  prejudiced    against     Sharad      and  if  one    sees
anything-even the  truth-with a     pale glass everything would
appear to him to be pale.
     The second     part of  the statement     made by the witness
regarding having  sexual  intercourse  near  about  midnight
seems to  us to     be inherently improbable. However, educated
or advanced  one may be, it is against our precious cultural
heritage for  a person    to utter such things in a most frank
and rudimentary fashion to his father-in-law. We are clearly
of the    opinion that the story of having a sexual act, etc.,
was a  pure figment  of the  imagination of  the witness and
this, therefore,  goes a  long way  off to  detract from the
truth of the testimony of this witness.
     Furthermore, at page 175 the witness admits that during
the life  time of  Manju, Anju    and Rekha told him about the
receipt of the letters from Manju but they never referred to
the nature or the contents of the letters. This is a correct
statement because both Anju and Vahini had been requested by
Manju not to disclose to her parents the state of affairs or
the tortures  which she     was suffering and perhaps they kept
the sanctity  of oath given to them by the deceased. This is
an additional  circumstance to    show that  even     when  Manju
visited Beed  for the  last time she might tell something to
her own sister Anju or to Vahini but she would never dare
to disclose  all the  details and  put all  the cards on the
table before  her  parents-a  step  which  she    deliberately
desisted from  coming into  existence. We can understand the
evidence of  the witness  that Manju was worried, distressed
and depressed.    Sometimes out  of natural love and affection
parents make  a mountain  of a    mole hill  and this  is what
seems to have happened in this case.
     Great reliance  was placed     by the Additional Solicitor
General, on  behalf of    the respondent,     on the relevance of
the statements    of PWs    2, 3, 6, and 20. He attempted to use
their  statements  for    twin  purposes-firstly,     as  primary
evidence of  what the  witnesses saw with their own eyes and
felt the  mental agony    and the     distress through  which the
deceased was  passing. Secondly, he relied on the statements
made by     the deceased  (Manju) to  these witnesses about the
treatment meted out to her by her husband during her stay at
Pune and  furnishes a clear motive for the accused to murder
     As regards     the first  circumstance, there     can  be  no
doubt  that   the  said     evidence  of  the  witnesses  would
undoubtedly be    admissible as revealing the state of mind of
the deceased.  This would  be primary  evidence in  the case
and,  therefore,   there  cannot  be  any  doubt  about     the
relevancy of  the statement  of the  witnesses in  regard to
this aspect  of the  matter. As     to what  probative value we
should attach  to such    statements would  depend on a proper
application of    the context  and evidence  of  each  of     the
     As regards     the second  aspect-which is  in respect  of
what the  deceased  told  the  witnesses-it  would  only  be
admissible under  s. 32     of the     Evidence Act as relating to
the circumstances  that led to the death of the deceased. In
view of the law discussed above and the propositions and the
conclusions we    have reached, there cannot be any doubt that
these statements  would fall  in the  second part of s.32 of
the  Evidence  Act  relating  directly    to  the     transaction
resulting in  the death     of Manju,  and would be admissible.
Before, however,  examining this  aspect of  the question we
might at  the outset  state that  the character, conduct and
the temperament     of Manju,  as disclosed  or evinced  by the
admitted letters  (Exhs. 30,32    and 33),  which     demonstrate
that it     is most  unlikely, if    not impossible, for Manju to
have  related  in  detail  the    facts  which  the  aforesaid
witnesses deposed.  If this  conclusion is  correct, then no
reliance can  be placed on this part of the statement of the
aforesaid witnesses.
     We now proceed to discuss the evidence of PWs 3,4, 5, 6
20. As    we have     discussed the    evidence of  PW 2, father of
Manju, it  will be  more  appropriate  to  discuss  now     the
evidence of  PW-20 (Manju's  mother) from  whom most  of the
matters spoken to by PW-2 were derived. Her evidence appears
at page 305 of part I of the Paper Book. It is not necessary
for us    to go  into those  details which  have already    been
deposed to  by PW-2.  The most relevant part of her evidence
is about  the visit  of Manju  to Beed on 2.4.82. She states
that during  this visit     she found  Manju cheerful and happy
and she     did not complain of anything during her stay for 8-
10 days.  In answer  to a question-whether she enquired from
Manju or had any talk with her during that period-she stated
Manju told  her that her husband was not taking any interest
in her    and used to leave the house early in the morning and
return late at night on the excuse that he was busy with his
factory work.  It may  be stated here that the accused had a
chemical factory  where he  used to  work from    morning till
late at     night.     The  witness  further    deposed     that  Manju
informed her  that there  was no  charm left  for her at the
house of her husband. These facts however run counter to her
first statement     where she stated that Manju was quite happy
and cheerful  as expected  of a newly married girl. Even so,
whatever Manju    had said  does    not  appear  to     be  of     any
consequence because  she (the  witness) herself     admits that
she did     not take it seriously and told Manju that since she
had entered  a new family it might take some time for her to
acclimatise herself  with the  new  surroundings.  She    also
warned Manju  against  attaching  much    importance  to    such
     Thereafter she  goes on  to state    that near  about the
11th or 12th of April 1982 she (PW 20) alongwith her husband
left for  Pune to  offer condolences  on the  death  of     the
grand-father of     the appellant.     She then  proceeds to state
that during  their second  visit to Pune on the 11th or 12th
of May    1982 she  stayed with  her brother, Dhanraj and that
while she was there Manju hugged at her neck and having lost
her control,  started weeping  profusely. She further states
that Manju  requested her  to take her to Beed as it was not
possible for  her to stay in her marital house where she was
not only bored but was extremely afraid and scared.
     On the  next day  she (PW    20) met     the mother  of     the
appellant  and     told  her  plainly  that  she    found  Manju
extremely perturbed,  uneasy and  scared and  that  she     was
experiencing tremendous     pressure and  restrictions from her
husband. But  the mother of the appellant convinced her that
there was nothing to worry about,
and everything    will be     alright. The  witness then narrated
the fact to her husband and requested him to take Manju with
them to     Beed. PW 2 then sought the permission of Birdichand
to take     Manju to.  Beed but he told him that as some guests
were to     visit him,  he (PW  2) can  send somebody after 4-5
days to     take Manju  to Beed.  It may be mentioned here that
the details about the sufferings and the mental condition of
Manju was  not mentioned by this witness even to her husband
(PW 2)    as he    does  not say  anything about  this  matter.
Further, her statement is frightfully vague.
     As already     indicated that the letters (Ex. 30, 32, 33)
clearly show  that Manju never wanted to worry or bother her
parents about her disturbed condition, it appears to be most
unlikely  that     on  the   occasion  of     the  death  of     her
grandfather-in-law she    would  choose  that  opportunity  to
narrate her tale of woe to her mother. This appears to us to
be a  clear embellishment  introduced by  the prosecution to
give a    sentimental colour  to the evidence of this witness.
Ultimately, on May 25, 1982 Deepak brought Manju to Beed and
this time  she was  accompanied by  her cousin, Kavita. Here
again, she  states that     on  her  arrival  she    found  Manju
extremely disturbed  and under tension of fear and Manju was
prepared to  make  a  clean  breast  of     all  her  troubles.
However,  as   Kavita  was   there  and     did  not  give     any
opportunity to    Manju to meet her mother alone, she (Kavita)
was sent out on some pretext or the other. Thereafter, Manju
told her  mother  that    she  was  receiving  a    very  shabby
treatment from her husband and while narrating her miserable
plight she  told her about two important incidents which had
greatly upset  her-(1) that  she happened  to come  across a
love letter  written by PW 37, Ujwala Kothari to her husband
which showed  that the    appellant was  carrying     on  illicit
relations with PW 37, (2) that on one occasion the appellant
told Manju that he was tired of his life and did not want to
live any  more    and,  therefore-wanted    to  commit  suicide.
Despite Manju's     enquiries as  to why  he wanted  to  commit
suicide, he  did not  give any reason. She then informed her
mother when  this talk    was going  on, she  (Manju)  herself
volunteered to    commit suicide. Thereafter, Sharad put forth
a proposal  under which     both of them were to commit suicide
and they  decided to  write notes  showing  that  they    were
committing suicide.  On hearing this plan from Sharad, Manju
told him  that she was not inclined to commit suicide as she
had not lost all hope of life and that she had expressed her
desire to  commit suicide  only because     he had said that he
would do so. PW 20 would have
us believe  that while    in one    breath    she  agreed  to     the
suicide pact  yet the  next moment she made a complete volte
face. This is hard to believe having regard to the nature of
the temperament of Manju.
     The two  statements said have been made by Manju to her
mother appear  to be  contradictory and     irreconcilable     and
smack  of   concoction.     According  to    Manju,    Sharad    then
prepared two  notes one     addressed to his father and another
to his    father-in-law and asked Manju to do the same but she
refused to  do anything     of the     sort. The  witness admitted
that she  was not  told as to what had happened to the notes
written by the appellant.
     All this  story of     a suicidal pact seems to us nothing
but a fairy tale. There is no mention nor even a hint in the
letters (Exhs.    30, 32,     33)  written  by  Manju  about     the
aforesaid suicidal  pact  and  the  story  narrated  by     the
witness before the trial court, nor was the note produced in
the court. This appears to us to be a make-believe story and
was introduced    to castigate  the appellant  for his  shabby
treatment towards Manju.
     Another intrinsic    circumstance to     show the untruth of
this statement    is that     although PW 2 was apprised of these
facts yet he never mentioned them to Birdichand particularly
when he was insisting that Manju should be sent back to Pune
for attending the betrothal ceremony of his daughter Shobha.
Indeed, if  this fact,    which is of very great importance so
far as    the lives  of both  the husband     and  the  wife     are
concerned, would have been there, the first thing which PW 2
would have  done is  to     tell  Birdihand  that    matters     had
reached such  a stage as to leave no doubt that her daughter
was in    an instant  fear of  death and it was impossible for
him to    allow his  daughter to    go to  Pune where Sharad was
bent on     forcing her  to commit     suicide or even murder her,
more particularly  because PW 20 admits in her evidence that
as all    the things  she had  learnt from Manju were serious,
she had     informed her husband about the same who agreed with
     Apart from     this grave incident, the witness deposed to
another equally     important matter,  viz., that    on the Shila
Septami day,  the appellant rang up his mother to send Manju
alongwith Shobha  to a    hotel (Pearl  Hotel),  as  has    been
deposed to  by other  witnesses) because he wanted to give a
party to his friends. As Shoba was not present in the house,
Manju's mother-in-law sent her alone, in
a rickshaw  to the  hotel. On reaching the hotel she did not
find any  other person    except a  girl who was introduced by
her husband as Ujavla Kothari. The most critical part of the
incident is  that the  appellant is alleged to have informed
Manju that she should take lessons from Ujvala as to how she
should behave  with him     and also  told her that Ujvala knew
everything about  him and  he was  completely in  her hands.
Subsequently the  appellant went  away and  Ujvala told     her
that the  appellant was     a short-tempered man and she should
talk to     him only  if and when he wanted to talk to her. She
(Ujvala) also  told Manju  that the appellant was completely
under  her   command  and  she    was  getting  every  bit  of
information  about   the  incidents  happening    between     the
husband and  the wife. Finally, she was apprised of the fact
by Ujvala  that she and Sharad were in love with each other.
Manju is  said to  have retorted  and protested to Ujvala by
saying that  she was  not prepared  to take any lessons from
her regarding  her behaviour  towards  her  husband  as     she
(Manju) was  his wedded wife while Ujvala was only a friend.
Manju also told her mother that these facts were narrated by
her to    the appellant and accused No. 2. As a result of this
incident, Manju     became a  little  erratic  which  attracted
double cruelty    towards her  by her  husband  and  made     her
extremely scared of her life and in view of this development
she requested  her mother  not to send her back to the house
of the accused.
     One point of importance which might be noticed here and
which shows  that whatever be the relations with her husband
and Ujvala,  the picture  presented by    the witness  is     not
totally correct     because if  such a  point of  no return had
already been  reached, there  was absolutely  no question of
Birdichand and    sending for  the appellant  and arranging  a
trip to     Ooty, Mysore  and other  place nor would have Manju
agreed to  go to  these places.     The witness  further stated
that as     soon as Manju came to know that Birdichand had come
to take     her away  she was  shocked  and  continuously    kept
saying that  she  was  extremely  afraid  of  going  to     her
husband's house and that she should not be sent back.
     The  behavioral  attitude    of  Manju  depicted  by     the
witness seems  to us  to be  absolutely contradictory to and
not at    all in    consonance with     her temperament,  frame  of
mind, psychological  approach to  things and  innate habits.
That is     why no     reference had    been made  even directly  or
indirectly in any of the letters written by
Manju, and  she had expressly requested both Anju and Vahini
not to    disclose anything  to her  parents lest they may get
worried and.  distressed on  her account.  In  other  words,
Manju was a woman who despite her troubles and tribulations,
sufferings and    travails, anxiety  and anguish    would  never
have thought  of narrating  her woeful    story to her parents
and thereby  give an  unexpected shock to them. This feeling
is mentioned  in the  clearest possible terms in the letters
(Exhs. 30, 32, 33) which we have already discussed. There is
no reference at all in any of the letters regarding suicidal
pact or the illicit relationship of her husband with Ujvala.
     Another important    fact which the High Court has missed
is that even according to the statement of this witness, the
appellant had  asked his  mother to  send Shobha  along with
Manju to  the hotel  and at that time he could not have been
aware that  Shobha would not be available. Indeed, if he had
an evil     intention of  insulting or injuring the feelings of
Manju by  keeping Ujvala there he would never have asked his
mother to  send Shobha    also because  then  the     matter     was
likely    to   be     made    public.     This  is  another  inherent
improbability which  makes  the     whole    story  difficult  to
     Despite these  serious developments  both PW  2 and  20
tried to  convince Manju  to accept  the assurances given by
Birdichand that     no harm  would come  to her and if anything
might  happen  they  will  take     proper     care.    We  find  if
impossible to  believe that the parents who had so much love
and affection  for their  daughter would,  after knowing the
circumstances, still  try to take the side of Birdichand and
persuade her daughter to go to Pune. Rameshwar (PW 2) should
have told  Birdichand point-blank  that he  would  not    send
Manju in  view of  the serious    incidents that had happened,
viz.,  the   suicidal  pact,  the  cruel  treatment  of     the
appellant towards  Manju, the  constant fear  of death which
Manju was apprehending, the illicit relationship between the
appellant and  Ujvala, and  the     strong     resistance  of     his
daughter who was not prepared to go Pune at any cost and was
weeping and  wailing  all  the    time.  On  the    other  hand,
knowingly and  deliberately they  seem to  have thrown their
beloved daughter into a well of death. The fact that Manju's
parents tried  to console  her and believed the assurance of
Birdichand knowing  full well  the history of the case shows
that any  statement made  by Manju to her parents was not of
such great  consequence as to harden their attitude. This is
yet another  intrinsic circumstance Manju to which negatives
the story of suicidal pact and the invitation to
come to     the Pearl  Hotel and  the manner  in which  she was
insulted in  the presence  of Ujvala. There is no doubt that
relations between  the appellant  and Manju  were  extremely
strained, may-be  due to his friendship with Ujvala, she may
not have  felt happy  in her marital home as she has clearly
expressed in  her letters  but she did not disclose anything
of such     great consequence  which  would  have    shocked     the
parents and  led them  to resist  her going  to Pune  at any
cost. This  makes the version given by PWs 2 and 20 unworthy
of credence.
     We now  proceed to     take up the evidence of PW-6, Anju,
the sister  of Manju.  The statement of this witness is more
or less     a carbon  copy of  the evidence  of PW-20 which has
been discussed    above and, therefore, it is not necessary to
consider her  evidence in  all its  details. So     far as     the
first visit is concerned, she fully supports her mother that
Manju was  very happy  as was  expected of  a newly  married
girl. When  Manju came    to Beed     around 2nd  April 1982     she
stayed there  for 8-10    days  and  during  that     period     the
witness noticed     that  she  was     somewhat  dissatisfied     and
complained that     her husband  used to  return late at night.
She also  complained against  the callous  attitude  of     the
other members  of her  husband's family. She also introduced
the story  of Ujvala Kothari and corroborated what PW 20 had
said which  we have  discussed above. She also refers to the
said suicidal  pact and then to the fact that Birdichand had
come to     take away  Manju to Pune so that she may be able to
attend the betrothal ceremony of Shobha. Then she deposes to
an incident which appears to be wholly improbable. According
to her,     on the     3rd of     June, 1982,  PW 2  invited his     two
friends, Raju  and Rath,  for lunch at which Birdichandi was
also present,  and told     them that Manju was not prepared to
go to  Pune as    she was     afraid to  go there but Birdichand,
alongwith his  two friends,  assured him  that nothing would
happen. We  do not  think that    in the    course of things P-2
would be  so foolish  as to  let the  secret matters  of the
house known to others than the parties concerned. Thereafter
the witness proves the letters (Exhs. 30 and 32).
     She stated     one important    statement to the effect that
on some     occasions Manju  had a     talk with her mother in her
presence. Although  Manju had requested Anju not to disclose
anything to  her parents  yet everything  was made  known to
them, During  cross-examination the witness was asked-how as
it that Manju was narrating these talks when the witness had
been asked not to disclose the
same to her parents, which she explained away by saying that
she did not ask Manju why she was disclosing these things to
her mother. No satisfactory answer to this question seems to
have been given by her. At another place, the witness states
thus :
      "I did  not tell all these informations I received
     from Manju     to any     body. Nor  anybody enquired from me
     till my statement was recorded by the Police."
     Her evidence, therefore, taken as a whole is subject to
the same infirmity as that of PW 20 and must suffer the same
     PW-3, Rekha  (who was  addressed as  `Vahini' in Maju's
letter (Ex.  33), states  that on  the first  occasion    when
Manju came  home she  was quite     happy but during her second
visit to  Beed in  the month of April, 1982 she did not find
her so    and Manju  complained that  her husband was avoiding
her to    have a talk with her on one excuse or another. Manju
also informed  the witness  that the  appellant had  a girl-
friend by name Ujvala and the witness says that she tried to
console Manju  by  saying  that     since    her  husband  was  a
Chemical  Engineer   he     may  have  lot     of  friends.  While
referring to  Exh. 33  (letter written    to her by Manju) she
stated that  the only complaint made in that letter was that
her husband  was not  talking  to  her    properly.  She    then
deposed to  an incident     which happened     when on  her way to
Bombay when  the witness  stayed at  Pune for some time. She
states that she had a talk with Manju for about half-an-hour
when she  narrated the    story of the suicidal pact. She also
stated that  she was  extremely afraid    of the situation and
almost broke down in tears and wept.
     The most  important fact  which may  be  noted  in     her
evidence is  a clear  pointer to  the frame  of mind and the
psychotic nature  of Manju.  At page  212 of  Part I  of the
Paperbook while     narrating the    relationship of     her husband
with Ujvala  she says that the appellant lost his temper and
thereupon she spoke the following words to him :
      ,`I am  not going  to spare this, I will not allow
     this, his    bad relations even though a blot may come to
     our family and I have decided likewise."
     These significant    and pregnant words clearly show that
Manju was so much bored and disgusted with her life that she
entertained a  spirit of  revenge and  told the witness that
she was not going to
tolerate this  even though a blot may come to the family and
that she  had decided  likewise. This  statement undoubtedly
contains a  clear hint    that she had almost made up her mind
to end    her life,  come what  may and thereby put to trouble
her husband  and his  family members  as being suspect after
her death.  This appears  to be     a culmination    of a feeling
which she had expressed in one of her letters to Anju in the
following words:
      "Till I  could control  (myself), well  and  good.
     When it becomes impossible, some other way will have to
     be evolved. Let us see what happens. All right."
Similarly, in  her letter (Ex. 33) to this witness she gives
a concealed hint "But till that day it is not certain that I
will be alive."
     Thus the feelings of death and despair which she orally
expressed  to  the  witness  at     Pune  seems  to  have    been
fulfilled when    on the    morning of  12th June  1982 she     was
found dead.
     The evidence of PW 4, Hiralal Ramlal Sarda, is not that
important. He  merely states  that in  the last     week of May
1982, PW  2 had called him and told him that Manju was being
ill-treated  by     her  husband  and  therefore  she  was     not
prepared to  go to  her marital home. PW 2 also informed him
about the  suicidal pact  affair. As  the witness  was in  a
hurry to  go to Hyderabad he counselled PW 2 not to take any
final decision    in a hurry and that Manju should not be sent
to Pune with Birdichand until his return when a decision may
be taken. On return from Hyderabed he learnt that Birdichand
had already  taken Manju  to Pune and thereafter he left for
Pune. Indeed,  if the matter was so grave and serious that a
person like PW 4, who was a relation of the appellant rather
than that  of PW  2, had  advised him  not to make haste and
take a    final decision    but wait  until his  return yet PW 2
seems to  have spurned    his advice  and sent  Manju to Pune.
This shows  that the  matter was  not really  of such  great
importance or  urgency as to take the drastic step of making
a blunt     refusal to  Birdihchand about    Manju's not going to
Pune. This  also shows    that the  story of suicidal pact and
other things  had been    introduced in order to give a colour
or orientation to the prosecution story.
     Another fact  to which  this  witness  deposes  in     the
narration by  the appellant about his having sexual act with
his wife. We have
already     disbelieved   this  story   as      being      hopelessly
improbable and    against the cultural heritage of our country
or of  our nature  and habits.    This is the only purpose for
which this  witness was     examined and  his evidence does not
advance the matter any further.
     PW-5, Meena Mahajan, has also been examined to boost up
the story  narrated by PW 2 and other witnesses. She was not
at all    connected with    the family of PW 2 but is alleged to
be a  friend of     Manju and  she says  that she    found  Manju
completely disheartened     and morose  and she started weeping
and crying  while narrating her said story. The witness goes
on to  state  that  Manju  was    so  much  terrified  of     the
appellant that    she was afraid of her life at his hands. No.
witness has  gone to the extent of saying that there was any
immediate danger to Manju's life nor did Manju say so to PWs
2, 6  and 20.  This witness  appears to     us to be more loyal
than the king. Even assuming that Manju was a friend of PW 6
but she never wrote to her any letter indicating anything of
the sort.  For these  reasons we are not satisfied that this
witness is worthy of credence.
     A close  and careful  scrutiny of    the evidence  of the
aforesaid witnesses  clearly  and  conspicuously  reveals  a
story which  is quite, different from the one spelt out from
the letters (Exhs. 30, 32 and 33). In fact, the letters have
a different  tale to  tell particularly     in respect  of     the
following matters:-
     (1)  There is  absolutely no reference to suicidal pact
      or the circumstances leading to the same,
     (2)  there is  no reference  even    to  Ujvala  and     her
      illicit relations with the appellant,
     (3)  there is  no mention of the fact that the deceased
      was not  at all willing to go to Pune and that she
      was sent by force,
     (4)  the complaints made in the letters are confined to
      ill-treatment, loneliness,  neglect and  anger  of
      the husband but no apprehension has been expressed
      in any  of the  letters that the deceased expected
      imminent danger to her life from her husband.
     (5)  In fact,  in the  letters she had asked her sister
      and friend  not to  disclose her sad plight to her
      parents but
      while narrating  the    facts  to  her    parents     she
      herself violated  the said emotional promise which
      appears to  us to  be too  good to  be true and an
      after thought     added to strengthen the prosecution
     (6)  If there is anything inherent in the letters it is
      that because    of her miserable existence and gross
      ill-treatment by  her husband,  Manju     might    have
      herself decided to end her life rather than bother
      her parents.
     We are  therefore unable  to agree     with the High Court
and the     trial court  that the witnesses discussed above are
totally dependable  so as  to  exclude    the  possibility  of
suicide and that the only irresistible inference that can be
drawn from  their evidence  is that it was the appellant who
had murdered the deceased.
     Putting all  these pieces together a general picture of
the whole episode that emerges is that there is a reasonable
possibility of    Manju having  made up  her mind     to end     her
life, either  due to frustration or desperation or to take a
revenge on  her husband     for shattering     her dream  and ill-
treating her day-to-day.
     Apart from     the spirit  of revenge     which may have been
working in  the mind  of Manju, it seems to us that what may
have happened  is that    the sum     total    and  the  cumulative
effect of  the circumstances  may have    instilled in  her an
aggressive impulse  endangered by frustration of which there
is ample  evidence both     in her     letters and  her subsequent
conduct. In  Encyclopedia of  Crime and     Justice (Vol. 4) by
Sanford H. Kadish the author mentions thus :
      "Other  psychologically   oriented  theories     ave
     viewed  suicide  as  a  means  of    handling  aggressive
     impulses engendered by frustration."
     Another inference that follows from the evidence of the
witness discussed  is that  the constant fact of wailing and
weeping is  one of the important symptoms of an intention to
commit suicide    as mentioned  by George     W. Brown and Tirril
Harris in their book "Social Origins of Depression" thus:-
      "1. Symptom data
      Depressed mood-
     1. Crying
     2. feeling miserable/looking miserable, unable to smile
     or laugh
     3. feelings of hopelessness about the future
     4. suicidal thoughts
     5. suicidal attempts
     15. psychosomatic accompaniments
     16. tenseness/anxiety
     17. specific worry
     18. panic attacks
     19. phobias
     20. feelings of self-depreciation/nihilistic delusions
     21. delusions or ideas of reference
     22. delusions of persecution/jealousy
     23. delusions of grandeur
     24. delusions of control/influence
     25. other delusions e. g. hypochondriacal worry
     26. auditory hallucinations
     27. visual hallucinations."
     Most of  these symptoms  appear to     have been proved as
existing in  Manju both     from her  letters (Exhs. 30, 32 and
33) and from the evidence discussed.
     We might  hasten to observe here that in cases of women
of a  sensitive and  sentimental nature     it has usually been
observed that  if they    are tired  of their  life due to the
action of  their kith and kin, they become so desperate that
they develop  a spirit    of revenge  and try to destroy those
who had     made their  lives worthless  and under     this strong
spell of  revenge sometimes they can go to the extreme limit
of committing suicide with a feeling that the subject who is
the root  cause of  their malady  is also destroyed. This is
what may have happened in this case. Having found her dreams
shattered to  pieces Manju  tried first to do her best for a
compromise  but      the  constant     ill-treatment    and  callous
attitude of her husband may have driven
her to    take revenge  by killing  herself so that she brings
ruination  and     destruction  to   the    family     which     was
responsible for     bringing about     her death. We might extract
what Robert  J. Kastenbaum  in his book 'Death, Society, and
Human Experience' has to say:
     "Revenge fantasies     and their  association with suicide
     are well  known to     people who  give ear  to  those  in
     emotional distress."
After a careful consideration and discussion of the evidence
we reach the following conclusions on point No. 1:
     1) that  soon after  the marriage the relations between
     Manju and    her husband  became extremely  strained     and
     went to  the extent  that no  point of  return had been
     almost reached,
     2) that  it has  been proved  to some  extent that     the
     appellant had  some sort  of intimacy with Ujvala which
     embittered the relationship between Manju and him,
     3) That the story given out by PW 2 and supported by PW
     20 that when they reached Pune after the death of Manju
     they found appellant's weeping and wailing out of grief
     as this  was merely a pretext for shedding of crocodile
     tears, cannot be believed,
     4) that  the story     of suicidal pact and the allegation
     that  appellant's     illicit   relations   with   Ujvala
     developed to  such an  extreme  that  he  was  so    much
     infatuated with  Ujvala as     to form  the bedrock of the
     motive of    the murder  of Manju,  has not    been clearly
     5) the  statement of  PW 2     that the appellant had told
     him that  during the  night on  11th June    1982 he     had
     sexual act with the deceased is too good to be true and
     is not believable as it is inherently improbable,
     6) that  despite the  evidence of PWs 2, 3, 6 and 20 if
     has not been proved to our satisfaction that the matter
     had assumed such extreme proportions that Manju refused
     to go  to Pune  with her  father-in-law (Birdichand) at
     any cost  and yet    she was     driven by use of compulsion
     and persuasion to accompany him,
     7) that  the combined reading and effect of the letters
     (Exhs. 30,     32 and 33) and the evidence of PWs 2, 3, 4,
     6 and  20 clearly    reveal that  the signs    and symptoms
     resulting from  the dirty    atmosphere and    the  hostile
     surroundings in  which Manju was placed is a pointer to
     the fact that there was a reasonable possibility of her
     having committed  suicide and  the prosecution  has not
     been able    to exclude  or    eliminate  this     possibility
     beyond reasonable doubt.
     We must  hasten to add that we do not suggest that this
was not     a case     of murder  at all  but would only go to the
extent of  holding that     at least the possibility of suicide
as alleged by the defence may be there and cannot be said to
be illusory.
     8) That a good part of the evidence discussed above, is
     undoubtedly admissible  as held by us but its probative
     value seems  to be     precious  little  in  view  of     the
     several  improbabilities    pointed     out   by  us  while
     discussing the evidence.
     We might  mention here  that we had to reappreciate the
evidence of  the witnesses and the circumstances taking into
account the  psychological aspect of suicide as found in the
psychotic nature  and character     of Manju  because these are
important facts     which the High Court completely overlocked.
It seems  to us     that the  High Court while appreciating the
evidence  was  greatly    influenced  by    the  fact  that     the
evidence furnished  by the  contents of the letters were not
admissible in  evidence which,    as we have shown, is a wrong
view of law,
     We now come to the second limb- perhaps one of the most
important  limbs   of  the   prosecution  case     viz.,     the
circumstance that  the appellant  was  last  seen  with     the
deceased before     her  death.  Apparently,  if  proved,    this
appears to  be a  conclusive evidence  against the appellant
but here  also the High Court has completely ignored certain
essential details  which  cast    considerable  doubt  on     the
evidence led by the prosecution on this point.
     The question  of the  appellant having  been last    seen
with the  deceased  may     be  divided  into  three  different
     1) The  arrival of     Anuradha and her children alongwith
     Manju at  Takshila apartments,  followed by the arrival
     the appellant  and his  entry into     his  bedroom  where
     Anuradha was talking to Manju,
     2) the  calling  of  PW  29  by  A-2  followed  by     the
     appellant and  his brother's  going out on a scooter to
     get Dr. Lodha and thereafter Dr. Gandhi.
     3) Sending for Mohan Asava (PW 30) and the conversation
     between the  appellant,  Birdichand  and  others  as  a
     result of which the matter was reported to the police.
     Although    the   aforesaid      three      stages   of    this
circumstance cannot  technically be  called to mean that the
accused was  last seen with the deceased but the three parts
combined with  the first  circumstance    might  constitute  a
motive for the murder attributed to the appellant.
     From a  perusal of     the judgment  of the  High Court on
these points,  it appears  that the  High Court     has made  a
computerise and     mathematical approach    to  the     problem  in
fixing the  exact time of the various events which cannot be
correct as  would appear from the evidence of the witnesses,
including Dr Banerjee (PW 33) .
     The evidence  of PW  7, the motor rickshaw driver shows
that on     the night  of the  11th of  June he had brought the
deceased alongwith Anuradha and others and dropped them near
the Takshila  apartments at about 11.00 p.m. The witness was
cross-examined on several points but we shall accept finding
of the    High Court on the fact that on the 11th of June 1982
the witness  had dropped  the persons,    mentioned above,  at
about 11.00 p.m. The rest of the evidence is not germane for
the purpose of this case. It may, however, be mentioned that
one should  always give     some room for a difference of a few
minutes in  the time  that a  layman-like PW 7 would say. We
cannot assume  that when  the witness  stated  that  he     had
dropped Manju and others at 11.00 p.m., it was exactly 11.00
p.m.--it would have been 10-15 minutes this way or that way.
His evidence  is only  material to show the approximate time
when Manju returned to the apartments.
     The next  witness on  this point  is PW-28,  K.N. Kadu.
This witness  corroborates PW-7     and stated he had heard the
sound of  a rickshaw near the apartments when the wife of A-
2, Manju  and 3     children entered the apartments and went to
their rooms. He
further     says  that  after  about  15  minutes    he  saw     the
appellant coming  on a    scooter and while he was parking his
scooter the  witness asked  him why  did he  come so late to
which he  replied that    he was    busy in     some meeting.    This
would show  that the  appellant must  have  arrived  at     the
apartments near     about    11.30  or  11.45  p.m.    It  is    very
difficult to  fix the exact time because the witness himself
says that  he had  given the timings approximately. The High
Court was,  therefore, not  justified in  fixing the time of
arrival of  Manju and  party or     the appellant    with  almost
mathematical precision    for that would be a most unrealistic
approach. The High Court seems to have speculated that Manju
must have  died at  12.00 a.m., that is to say, within 15-20
minutes of  the arrival     of the     appellant. It    is, however,
impossible for    us to  determine the  exact time  as to when
Manju died  because even  Dr. Banerjee    says in his evidence
that the  time of death of the deceased was between 18 to 36
hours which takes us to even beyond past 12 in the night. At
any rate,  this much  is certain  that Manju  must have died
round about  to 2.00  a.m. because when Dr. Lodha arrived at
2.45 a.m.  he found  her dead  and he  had also     stated that
rigor mortis  had started  setting  in,     It  is.  therefore,
difficult to  fix the  exact time  as if every witness had a
watch which  gave correct  and exact time. Such an inference
is not at all called for.
     The third    stage of  this    matter    is  that  while     the
witness was  sleeping he heared the sound of the starting of
a scooter  and got up from his bed and saw appellant and A-2
going away. Therefore, he found 7-8 persons coming and going
on their scooters. The High Court seems to suggest that this
must have happened by about 1.30 p.m. Even so, this does not
prove that  Manju have    died at midnight. As the witness had
been sleeping and was only aroused by the sound of scooters,
it would  be difficult to fix the exact time when he saw the
appellant and A-2 going out on their scooters. His evidence,
therefore, was    rightly relied    upon by     the High  Court  in
proving the facts stated by him.
     PW-29, B.K.  Kadu, who was serving as a watchman at the
Takshila apartments says that near about the midnight he was
called by  Rameshwar, A-2  and on hearing the shouts he went
to flat     No. 5.     He further  says that    A-2 directed  him to
unbolt or unchain the door but the door was not found closed
from inside  and hence    A-2 went out and returned after some
time. While the witness was
standing at  the door  A-2 returned and after his return the
witness also  came back     to his     house and  went  to  sleep.
Perhaps the  witness was  referring to the incident when A-1
and A-2     had gone  on scooter  to fetch     Dr.  Lodha.  During
cross-examination the  witness    admitted  that    he  did     not
possess any  watch and    gave the timings only approximately.
We shall  accept his  evidence in  toto but  that  leads  us
     This is  all the  evidence so far as the first stage of
the case  is concerned    and, in all probability, it does not
at all    prove that  A-1 had  murdered the  deceased. On     the
other hand,  the circumstances    proved by  the three witness
are not     inconsistent with  the defence plea that soon after
entering the room Manju may have committed suicide.
     Part II  of this  circumstance relates to the coming of
Dr. Lodha and then Dr. Gandhi on the scene of occurrence and
we accept  their evidence  in toto.  Dr. Lodha    was a family
doctor of the appellant's family and it was quite natural to
send for  him when the appellant suspected that his wife was
dead. Although    Dr. Lodha (PW 24) was a family doctor of the
appellant's family yet he did not try to support the defence
case and  was frank enough to tell the accused and those who
were present  there that  it was  not possible    for  him  to
ascertain the  cause of     death which could only be done by a
postmortem. In    other words,  he indirectly  suggested    that
Manju's death  was an  unnatural one,  and in order to get a
second opinion    he advised  that Dr. Gandhi (PW 25) may also
be summoned.  Accordingly, Dr.    Gandhi    was  called  and  he
endorsed the  opinion of  Dr. Lodha.  Such a  conduct on the
part of the appellant or the persons belonging to his family
is  wholly   inconsistent  with      the  allegation   of     the
prosecution that the appellant had murdered the deceased.
     The High Court seems to have made one important comment
in that     why Dr.  Lodha and Dr. Gandhi were called from some
distance when  Dr. Kelkar,  who was  a skin  specialist     and
another Doctor    who was     a child  expert, were living in the
same building. This comment is neither here nor there. It is
manifest that  Birdichand was  a respectable  person of     the
town and  when he found that his daughter-in-law had died he
would naturally send for his family doctor rather then those
who were not known to him.
     It appears     that PW 30 Mohan Asava was also summoned on
telephone and  when he    came at     the scene  of occurrence he
found A-2,  Birdichand sitting    on the floor of the room and
Bridichand hugged  him out of grief, and told him that Manju
had died  of shock and the Doctors were not prepared to give
a death certificate.
     In order  to understand the evidence of this witness it
may be    necessary to determine the sequence of events so for
as PW  30 is concerned. The witness has stated that while he
was sleeping he was aroused from his sleep by a knock at the
door by     Ram Vilas  Sharda (brother  of appellant)  at about
4.00 or 4.15 a.m. Ram Vilas told him that Manju had died and
the doctors were not prepared to give any death certificate.
After having  these talks  the witness, alongwith Ram Vilas,
proceeded to  the apartments  and remained  there till 5.15.
a.m. Then  he returned    to his house, took bath and at about
6.30 a.m.  he received    a telephone  call from Ram Vilas for
lodging a  report with    the police with the request that the
time of     death should be given as 5.30 a.m. Consequently, he
reached the  police station near about 7.00 or 7.15 a.m. and
lodged a report stating that Manju had died at 5.30 a.m.
     This witness appears to be of doubtful antecedents and,
therefore, his    evidence has  to be  taken with     a grain  of
salt. He  admitted in  his statement  at p.  387  that    some
proceedings  about  evasion  of     octroi     duty  were  pending
against him  in the  Court. He    also admitted  that  he     was
convicted and  sentenced to  9 months  R.I  under  the    Food
Adulteration Act in the year 1973.
     Apart from     this it appears that most of the statements
which he  made in the Court against Birdichand and the other
accused, were  not made     by him     before     the  police.  These
statements were     put to     him and he denied the same but they
have been  proved by  the Investigation Officer, PW 40 whose
evidence appears  at p.     521  of  Part    II  of    the  printed
paperbook. These belated statements made in the Court may be
summarised thus:
     While in  his statement before the court the witness at
p. 386    (para  19)  states  that  the  death  of  Manju     was
suspicious yet    he made     no such statement before the police
on being  confronted by     the statement    of  PW    40.  Another
important point on which his statement does not appear to be
true is that the dominent fact
mentioned to  him by  Birdichahd and  others  was  that     the
doctors were  not prepared to issue death certificate but he
did not     say so     before the police. Similarly, he deposed in
the court about the statement made to him by Birdichand that
he would  lose his prestige and therefore the body should be
cremated before     7.00 a.m,  but he  advised him not to do so
unless he has informed the police otherwise his whole family
would be  in trouble. Almost the entire part of his evidence
in para     5 at p. 381 appears to be an afterthought, as PW 40
stated thus:
      "I recorded the statement of PW 30 Mohan Asava. He
     did not  state  before  me     that  death  of  Manju     was
     suspicious. He did not state before me that Accused No.
     3 informed     him that  the Doctors    were not prepared to
     issue the death certificate. He did not state before me
     that the  demand was made of the death certificate from
     the Doctors  or the  Doctors refused  to give the same.
     During his     statement this     witness did  not  make     the
     statements as  per para  No. 5  excluding the  portions
     from A to F of his examination-in-chief."
     The portions  referred to    as 'A to F' in para No. 5 of
examination-in-chief of PW 30 may be extracted thus:
      "Birdichand then started telling me that Manju had
     died on  account of shock and that-----he said that she
     died of  heart attack------under  any  circumstance  he
     wanted to    cremate Manju before 7.O' clock------when he
     said that    he would  spend any  amount  but  wanted  to
     cremate her before 7.00 a.m."
     This statement  does not  appear to  be  true  for     the
following reasons.
     (a)  Birdichand knew  full well that PW 30 was a police
      contact constable  and as  he was  not prepared to
      persuade the    doctors to give a death certificate,
      his  attitude      was  hardly  friendly     as  he     was
      insisting that  the matter  should be     reported to
      the police.
           It is,  therefore, difficult  to believe that
      Birdichand would  take such a great risk in laying
      all his  cards on the table knowing full well that
      the witness was not
      so friendly  as he  thought and therefore he might
      inform the  police; thereby  he would     be in a way
      digging his own grave.
     (b)  On a    parity of  reasoning it would have been most
      improbable on     the part  of the  appellant,  after
      having decided to report the matter to the police,
      to ask  PW 30     to report the time of death as 5.30
      a.m. knowing    full well  his attitude when he came
      to the apartments.
     It is  not at  all understandable how the witness could
have mentioned the time of Manju's death as 5.30 a.m. or, at
any rate,  when her  death was known to her husband and when
he himself  having gone     to the     apartments near  about 4.15
a.m. knew full well that Manju had died earlier and that Dr.
Lodha and  Dr. Gandhi  had certified  the same    and  advised
Birdichand to  report the  matter  to  the  police.  In     the
original Ex-120     (in Marathi  language), it appears that the
time of     death given  by  the  witness    is  'Pahate'  which,
according to  Molesworth's Marathi-English  Dictionary at p.
497, means  'The period     of six     ghatika before     unrise, the
dawn' i.  e., about  2 hours  24 minutes before sunrise (one
ghatika is  equal to 24 minutes). This would take us to near
about 3.00  a.m. Either     there    is  some  confusion  in     the
translation of    the word  'Pahate' or  in  the    words  '5.30
a.m.', as  mentioned  in  the  original     Ex.  120.  However,
nothing much  turns on    this except  that according  to     the
witness Manju  must have  died around  3.00  a.m.  which  is
consistent with     the evidence  of Dr.  Lodha  that  when  he
examined Manju    at about  2.30 a.m.  he found  her dead     and
rigor mortis had already started setting in.
     We are  not concerned here with the controversy whether
the report was admissible under s. 154 or s. 174 of the Code
of Criminal  Procedure but  the fact remains that the policd
did receive  the information  that the    death took  place at
5.30 a.m. The High Court seems to have made a capital out of
this small incident and has not made a realistic approach to
the problem  faced by  Birdichand and  his family.  Being  a
respectable man     of the town, Birdichand did not want to act
in a  hurry lest  his reputation  may suffer  and  naturally
required some time to reflect and consult his friends before
taking any  action. The     allegation that  A-3  told  him  to
report the  time of  death as 5.30 a.m. is not at all proved
but is based on the
statement of  PW 30,  before the  police. Thus, the approach
made by     the High Court to this aspect of the matter appears
to be  artificial and  unrealistic as  it failed  to realise
that the  question of  the time     of death of the deceased as
5.30 a.m.  could never    have been  given by the appellant or
any other  accused because  they knew full well that the two
doctors had  examined the whole matter and given the time of
death as  being round about 1.30 a.m. Having known all these
facts how  could anyone     ask PW 30 to give the time of death
at the police station as 5.30 a.m.
     Thus, it  will be    difficult for  us  to  rely  on     the
evidence of  such a  witness who  had gone  to the extent of
making    wrong    statements  and      trying  to   appease    both
Birdichand and the prosecution, and, therefore, his evidence
does not inspire any confidence.
     The last part of the case on this point is the evidence
of PWs    2 and  4, where     the appellant    is said to have told
them that he had sexual intercourse with his wife near about
5.00 a.m.  on the  12th June  1982. Apart  from the inherent
improbability in  the statement     of the     appellant, there is
one other  circumstance which  almost clinches the issue. It
appears that  Kalghatgi (PW  20), Inspector-in-charge of the
police station    made a    query from  Dr.     Banerjee  which  is
extracted below:
      Whether it  can be  said definitely  or not  as to
     whether sexual  intercourse might have taken just prior
     to death ?"
     The above    query was  made in Ex. 129 and the answer of
the Doctor appears in Ex. 187 which is extracted below:
      "From clinical  examination there  was no positive
     evidence of  having any recent sexual, intercourse just
     prior to death."
     This positive  finding of    the Doctor  therefore knocks
the bottom  out of the case made out by the prosecution tion
that the  appellant had told PWs 2 and 4 about having sexual
intercourse with  his wife. Unfortunately, however, the High
Court instead  of  giving  the    benefit     of  this  important
circumstance to     the accused  has given     the benefit  to the
prosecution which  is yet another error in the approach made
by the Eight Court while assessing the prosecution evidence.
Having regard  to the  very short margin of time between the
arrival of  the appellant  in his  bed-room and the death of
Manju, it seems
to be  well-nigh impossible  to believe that he would try to
have  sexual   intercourse  with   her.     This  circumstance,
therefore, falsifies  the evidence  of PWs  2 and  4 on this
point and  shows the  extent to which the witnesses could go
to implicate the appellant.
     Finally, in  view of  the disturbed nature of the state
of mind     of Birdichand    and the catastrophe faced by him and
his family,  it is  difficult  to  believe  that  the  grief
expressed and  the tears shed by the appellant when PW 2 met
him could  be characterised  as fake.  If it is assumed that
the accused  did not  commit the murder of the deceased then
the weeping  and wailing  and expressing  his grief  to PW 2
would be quite natural and not fake.
     There  are      other     minor     details  which      have    been
considered by the High Court but they do not appear to us to
be very material.
     Taking  an      overall  picture   on     this  part  of     the
prosecution case the position seems to be as follows:
     (1)   if the  accused wanted to give poison while Manju
      was wide  awake, she    would have  put up  stiffest
      possible resistance  as any  other person  in     her
      position would  have done.  Dr.  Banerjee  in     his
      postmortem  report  has  not    found  any  mark  of
      violence  or     resistance.   Even   if   she     was
      overpowered  by   the     appellant  she     would    have
      shouted and  cried and  attracted persons from the
      neighbouring flats  which would  have been a great
      risk having  regard to  the fact  that some of the
      inmates of  the house     had come only a short-while
      before the appellant.
     (2)   Another possibility    which cannot be ruled out is
      that potassium  cyanide may  have  been  given  to
      Manju in  a glass of water, if she happened to ask
      for it.  But if  this was  so, she being a chemist
      herself would     have at  once suspected  some    foul
      play and  once her  suspicion would have arisen it
      would be  very  difficult  for  the  appellant  to
      murder her.
     (3)   The    third  possibility  is    that  as  Manju     had
      returned pretty late to the flat she went to sleep
      even before  the arrival of the appellant and then
      he must have tried to
      forcibly administer  the poison  by the process of
      mechanical suffocation,  in which  case alone     the
      deceased could  not have  been in  a    position  to
      offer any  resistance. But  this  opinion  of     the
      Doctor has  not been    accepted by  the High  Court
      which, after    a very    elaborate consideration     and
      discussion of     the evidence, the circumstances and
      the medical authorities, found that the opinion of
      the  Doctor    that  Manju   died   by      mechanical
      suffocation has  not been  proved or, at any rate,
      it is     not safe  to rely on such evidence. In this
      connection, we  might refer to the finding of fact
      arrived at by the High Court on this point:
      "In view  of the  above position  as is  available
     from  the     evidence  of  Dr.  Banerjee  and  from     the
     observations made    by the    medical authorities  it will
     not be  possible to  say that the existence of the dark
     red blood in the right ventricle exclusively points out
     the  mechanical   suffocation  particularly  when    such
     phenomenon     is  available    in  cases  of  poisoning  by
     potassium cyanide." (PB p. 147-48)
      "In view of this answer it will not be possible to
     say  conclusively     that  this  particular     symptom  of
     observation  is   exclusively  available    in  case  of
     mechanical suffocation.
      Thus we  have discussed  all the  seven  items  on
     which Dr. Banerjee has relied for the purpose of giving
     an opinion     that there  was mechanical  suffocation. In
     our  view,      therefore,  those  7    findings  would     not
     constitute conclusive  date for  the purpose of holding
     that  there   was    mechanical  suffocation.  As  the  7
     findings mentioned     above can  be available even in the
     case of cyanide poisoning we think that it would not be
     safe to  rely upon these circumstances for recording an
     affirmative   finding   that   there   was      mechanical
     suffocation. As  the 7  findings mentioned above can be
     available even  in the  case of  cyanide  poisoning  we
     think that     it would  not be  safe to  rely upon  these
     circumstances for recording an affirmative finding that
     there was mechanical suffocation."
     It is  not necessary for us to repeat the circumstances
relied upon  by the  High Court     because the finding of fact
speaks for itself.
This being  the     position,  the     possibility  of  mechanical
suffocation is completely excluded.
     (4)   The other  possibility that    may be thought of is
      that Manju  died a  natural death.  This  also  is
      eliminated in     view of  the report of the Chemical
      Examiner as  confirmed by  the postmortem that the
      deceased had died as a result of administration of
      potassium cyanide.
     (5)  The only other reasonable possibility that remains
      is that  as the  deceased  was  fed  up  with     the
      maltreatment by  her husband, in a combined spirit
      of revenge  and hostility  after entering the flat
      she herself  took potassium  cyanide and  lay limp
      and lifeless.     When the appellant entered the room
      he must  have thought that as she was sleeping she
      need not be disturbed but when he found that there
      was no  movement in the body after an hour so, his
      suspicion was     roused and  therefore he called his
      brother from adjacent flat to send for Dr. Lodha.
     In these  circumstances,  it  cannot  be  said  that  a
reasonable possibility    of  the     deceased  having  committed
suicide, as  alleged by the defence, can be safely ruled out
or eliminated.
     From a  review of the circumstances mentioned above, we
are of    the opinion  that the  circumstance of the appellant
having been  last seen with the deceased has not been proved
conclusively so     as to    raise an irresistible inference that
Manju's death was a case of blatant homicide.
     This now  brings us to an important chapter of the case
on which  great reliance  appears to have been placed by Mr.
Jethmalani  on     behalf     of  the  appellant.  Unfortunately,
however,  the  aspect  relating     to  interpolations  in     the
postmortem report  has been  completely glossed     over by the
High Court  which has  not attached  any importance  to     the
infirmity appearing  in the  medical evidence  in support of
the said  interpolations. Although  the learned     counsel for
the  appellant     drew  our   attention    to   a     number      of
interpolations in  the postmortem  report as also the report
sent to     the Chemical  Examiner, we  are impressed only with
two infirmities which merit
serious consideration.    To begin  with, it  has been pointed
out that in the original postmortem notes which were sent to
Dr. Banerjee  (PW 33)  for his    opinion, there    is  a  clear
interpolation by  which the words `can be a case of suicidal
death' appear  to have    been scored  out  and  Dr.  Banerjee
explained that    since he  had written  the words `time since
death' twice,  therefore, the  subsequent writing  had    been
scored out  by him.  In     other    words,    the  Doctor  clearly
admitted the  scoring out  of the  subsequent portion and we
have to     examine whether  the explanation  given by  him  is
correct. In  order to decide this issue we have examined for
ourselves the  original postmortem notes (Ex. 128) where the
writing has  been admittedly scored out by Dr. Banerjee. The
relevant column     against which    the scoring has been done is
column. No. 5 which runs thus:
      "5. Substance     of accompanying  Report from Police
     officer or Magistrate, together with the date of death,
     if known.    Supposed  cause     of  death,  or     reason     for
     The last line indicates that the Doctor was to note two
things-(1) the date of death, if known, and (2) the supposed
cause of  death. This  document appears to have been written
by PW 33 on 12.6.82 at 4.30 p.m. The relevant portion of the
words written  by the  Doctor are  `time since    dealt' which
were repeated  as he  states in     his statement.     After these
words some  other words     have been admittedly scored out and
his (PW     33) explanation was that since he had written `time
since death'  twice, the  second line being a repetition was
scored out.  A bare  look at  Ex. 128 does not show that the
explanation  given   by     the  Doctor  is  correct.  We    have
ourselves examined  the     said  words  with  the     help  of  a
magnifying glass  and find  that the  scored words could not
have been  `time since    death'. The only word common between
the line  scored out and the line left intact is `death'. To
us, the     scored out  words seem     to be    `can be     a  case  of
suicidal death'.  Dr Banerjee  however stuck to his original
stand which  is not  supported by  his own  writing  in     the
document itself.  It seems'  to us  that at  the first flush
when he     wrote the  postmortem notes it appeared to him that
no abnormality was detected and that it appears to be a case
of suicide rather than that of homicide. This, therefore, if
the strongest  possible circumstance  to  make    the  defence
highly probable,  if not certain. Furthermore, the Doctors's
explanation that  the scored  words were "time since death",
according to the said explanation, the scored words ore only
three whereas
the portion  scored out     contains as  many as  seven  words.
Hence the  explanation of  the Doctor  is not borne out from
the document.
     It is  true that  the Doctor reserved his opinion until
the chemical  examiner's report but that does not answer the
question because  in column  No.5  of  postmortem  note     Dr.
Banerjee has  clearly written  "can be    a case    of  suicidal
death" which  indicates a  that in the absence of the report
of the    chemical examiner,  he was  of the  opinion that  it
could have  been a  case of  suicide. In his evidence, PW 33
stated that  in Exh. 128 in column No. 5 the contents scored
out read  `time since  death' and   since it was repeated in
the next  line, he  scored the    words in  the  second  line.
Despite persistent  cross-examination the  Doctor appears to
have stuck  to his  stand. It cannot, therefore, be gainsaid
that this matter was of vital importance and we expected the
High Court  to have  given serious  attention to this aspect
which goes in favour of the accused.
     Another  interpolation   pointed  out  by    the  learned
counsel is regarding position of tongue as mentioned in Exh.
134. In     the original  while filling  up the said column the
Doctor appears    to have     scored out something; the filled up
entry appears  thus-`mouth is  closed  with  tip  (something
scored out)  seen caught  between the  teeth'.    But  in     the
carbon copy  of the  report which  was sent  to the Chemical
Examiner (Exh.    132) he has added `caught between the teeth'
in ink    but in the original there is something else. This is
fortified by  the fact    that the copy of the report actually
sent  to   the    chemical   examiner  does  not    contain     any
interpolation against  the said     column where  the filled up
entry reads `Inside mouth'.
     The combined  effect of  these circumstances  show that
Dr. Banerjee (PW33) tried to introduce some additional facts
regarding the  position of  the tongue.     Perhaps this may be
due to    his final  opinion that     the deceased  died  due  to
mechanical suffocation    which might lead to the tongue being
pressed between     the teeth. This, however, throws a cloud of
doubt on  the correctness or otherwise of the actual reports
written by  him and  the one  that was    sent to the Chemical
Examiner. It  is obvious  that in  the carbon copy which was
retained by  the Doctor,  the entries  must have  been    made
after the  copy was  sent to the Chemical Examiner. However,
this circumstance  is not  of much  consequence because     the
opinion     of   the  Doctor   that  Manju      died    by  forcible
administration of  potassium cyanide  or by  the process  of
mechanical suffocation has not been proved.
This aspect  need not detain us any further because the High
Court has not accepted the case of mechanical suffocation.
     So far  as the  other  findings  of  Dr.  Banerjee     are
concerned we fully agree with the same. A number of comments
were made  on behalf  of the  appellant about Dr. Banerjee's
integrity and incorrect reports but subject to what we said,
we do not find any substance in those contentions.
     In para  90 of  its judgment the High Court has given a
number of  circumstances which    according to it, go to prove
the  prosecution   case     showing   that     the  appellant     had
administered the poison during the night of 11th June, 1982.
These circumstances may be extracted thus:
     (1)   In the  bed-room Manju  died of poisoning between
      11.30 p.m.  and  1.  a.m.  in     the  night  between
      11/12th June, 1982.
     (2)   Accused No.    1 was present in that bed room since
      before the  death of    Manju i.e. since about 11.15
     (3)   Accused No,    1 did not return to the flat at 1.30
      a.m or 1.45 a.m. as alleged.
     (4)   The conduct    of accused  No. 1 in not calling for
      the immediate     help of  Dr. Shrikant Kelkar and/or
      Mrs.    Anjali     Kelkar     is  inconsistent  with     his
      defence that    he felt     suspicious of the health of
      Manju when  he allegedly  returned to     the flat at
      1.30 a.m.
     (5)   In different     conduct of  accused No.  1 when Dr.
      Lodha and  Dr. Gandhi went to the flat in Takshila
      apartment, Accused  No. 1 did not show any anxiety
      which one  normally finds when the doctor comes to
      examine the  patient. Accused     No. 1    should    have
      accompanied the  doctors when     they examined Manju
      and should  have expressly  or  by  his  behaviour
      disclosed his feelings about the well being of his
      wife. It  was also  necessary for  him to disclose
      the alleged fact that he saw Manju in a suspicious
      condition when  he returned  at about 1.30 a.m. Or
     (6)   An attempt  of Birdichand to get the cremation of
      Manju done  before 7    a. m.  On 12.  6 82  even by
      spending any amount for that purpose. This conduct
      of Birdichand     shows the  conduct of    a person  to
      whom Accused    No. 1  had gone     and informed  as to
      what had happened.
     (7)  Delay and false information to police at the hands
      of Mohan Asava. Though the information is given by
      Mohan as per the phone instructions of accused No.
      3 it    is, presumed  that accused  No. 1  must have
      told accused    No. 3 about the incident and on that
      basis accused     No.3  gave  instructions  to  Mohan
     (8)   Accused No.    1 himself  does not  take any action
      either personally or through somebody else to give
      correct information to police.
     (9)   Arrangement of  the dead  body to  make show that
      Manju died a peaceful and natural death.
     (10) Accused  No. 1  has a     motive to  kill Manju as he
      wanted to  get rid  of her  to continue  relations
      with Ujvala.
     (11) Absence  of an  anklet on  left ankle     of Manju is
      inconsistent with the defence that Manju committed
     (12) The  conduct of  the    accused     in  concealing     the
      anklet in  the fold of the Chaddar is a Conduct of
      a guilty man.
     (13) The  door of the bedroom was not found bolted from
      inside. This    would have  been  normally  done  by
      Manju if she had committed suicide.
     (14) Potassium  cyanide must not have been available to
     (15) Manju     was 4    to  6  weeks  pregnant.     This  is  a
      circumstance which  would  normally  dissuade     her
      from committing suicide.
     (16) Denial of the part of accused No. 1 of admitted or
      proved facts.
     (17) Raising  a false  plea of absence from the bedroom
      at the relevant time.               (PP. 152-155)
     We have  already discussed     most of  the  circumstances
extracted above     and given  our opinion, and have also fully
explained the  effect of circumstances Nos. 1,2,3,4,5 and 6.
We might  again even  at the risk of repetition say that too
much reliance seems to have been placed by the High Court on
circumstance No. 4 as the appellant did not immediately call
for Dr. Shrikant Kelkar (PW 26) and Dr. (Mrs.) Anjali Kelkar
(PW 27).  In a    matter of  this magnitude  it would be quite
natural for  the members  of the  appellant's family to send
for their  own family  doctor who  was fully conversant with
the  ailment  of  every     member     of  the  family.  In  these
circumstances there  was nothing  wrong if the appellant and
his brother went to a distance of 11/2 Km. to get Dr. Lodha.
Secondly, Dr.  Shrikant Kelkar    was skin  specialist whereas
Dr.  (Mrs)   Anjali  Kelkar  was  a  Paediatrician  and     the
appellant may  have genuinely believed that as they belonged
to different  branches, they  were not    all suitable to deal
with such  a serious  case. The     High Court  was, therefore,
wrong in  treating this     circumstance  as  an  incriminating
conduct of the appellant.
     Circumstance No.  5 is  purely conjectural     because  as
soon as     Dr. Lodha  came he  examined Manju and advised that
Dr. Gandhi  be called.    We fail     to understand    what was the
indifferent conduct  of the  appellant when  he had sent for
the two Doctors who examined the deceased. The appellant was
in the    same room  or rather  in an  adjacent room  when the
deceased was  being examined.  From this no inference can be
drawn that  the appellant  was indifferent  to the  state in
which Manju was found.
     As regards circumstance No. 6 we have already explained
this while  dealing with the evidence of Mohan Asava, PW 30.
As regards  circumstance No.  7, the High Court has presumed
that there being no dependable evidence that the information
given to  the police  by  PW  30  was  false  and  that     the
appellant must have told A-3 about the incident on the basis
of which  he gave  instructions to  PW 30.  This is also far
from the  truth as  has been pointed out by us while dealing
with the evidence of PW 30.
     Circumstance No.  8 is  that PW  30 was asked to report
the matter  to the  police. When  the dead body was lying in
the flat  what action  could the appellant have taken except
reporting the  matter to the police through one of his known
persons. So far as
circumstances Nos.  9 and  10 are  concerned,  they  do     not
appear to  us to  be of any consequence because, as shown by
us, from  a reading  of the letters (Exhs. 30,32 and 33) and
the conduct of the appellant, we do not find any evidence of
a clear motive on the part of the appellant to kill Manju.
     Circumstances Nos.     11 and 12 are also of no assistance
to the    prosecution because  whether the  anklet was  in the
chaddar or  elsewhere is  wholly insignificant    and does not
affect the  issue in question at all. Circumstance No. 13 is
also speculative because if the bedroom was not found bolted
from inside that would it self not show that Manju could not
have  committed      suicide.  Various  persons  may  react  to
circumstances in  different ways.  When     Manju    entered     her
bedroom her husband had not come and since she went to sleep
she may     not have  bolted the door from inside to enable her
husband to  enter the  room. As regards circumstance No. 14,
the High  Court has  overlooked a very important part of the
evidence of PW 2 who has stated at page 178 of part I of the
printed paperbook thus:
      "The plastic    factory at  Beed  is  a     partnership
     concern in     which two  sons of  Dhanraj,  my  wife     and
     sister-in-law, i.e., brother's wife are partners."
     Dr. Modi's     Medical Jurisprudence    and Texicology (19th
Edn.) at  page 747  shows that    `Cyanide is  also  used     for
making basic  chemicals for  plastics'. Apart  from the fact
that the  High Court  in relying  on this  circumstance     has
committed a  clear error  of record,  it  is  an  additional
factor to  show that  cyanide could  have been    available to
Manju when she visited Beed for the last time and had stayed
there for more than a week.
     Circumstance No.15-the fact that Manju was 4 to 6 weeks
pregnant would    dissuade Manju    from committing     suicide  is
also purely  speculative. A pregnancy of 4 to 6 weeks is not
very serious  and can easily be washed out. Moreover, when a
person has decided to end one's life these are matters which
do not    count at  all. On  the other hand, this circumstance
may have prompted her to commit suicide for a child was born
to her,     in view of her ill-treatment by her husband and her
in-laws, the  child may     not get proper upbringing. Any way,
we do  not want     to land  ourselves in the field of surmises
and conjectures as the High Court has done.
     Circumstance No.  17 is  wholly irrelevant     because the
prosecution cannot  derive any    strength from  a false    plea
unless it  has proved  its  case  with    absolute  certainty.
Circumstance No.17  also is not relevant because there is no
question of  taking a false plea of absence from the bedroom
at the    relevant time  as there is no clear evidence on this
     Apart from     the aforesaid    comments there    is one vital
defect in  some of  the circumstances  mentioned  above     and
relied upon  by the  High Court,  viz.,     circumstances    Nos.
4,5,6,8,9,11,12,13,16, and  17. As  these circumstances were
not put to the appellant in his statement under s.313 of the
Criminal Procedure  Code they  must be    completely  excluded
from consideration  because the     appellant did    not have any
chance to  explain them.  This has been consistently held by
this Court  as far  back as  1953 where in the case of Fateh
Singh Bhagat  Singh v. State of Madhya Pradesh(1) this Court
held that  any circumstance  in respect     of which an accused
was not examined under s. 342 of the Criminal procedure code
cannot be  used against     him ever since this decision. there
is a  catena of     authorities of     this Court uniformly taking
the view  that unless  the circumstance appearing against an
accused is  put to him in his examination under s.342 of the
or s.313  of the Criminal Procedure Code, the same cannot be
used against  him.  In    Shamu  Balu  Chaugule  v.  State  of
Maharashtra(2) this Court held thus:
      "The fact  that  the    appellant  was    said  to  be
     absconding not  having been  put to  him under  section
     342, Criminal Procedure Code, could not be used against
     To the same effect is another decision of this Court in
Harijan Megha  Jesha v.     State    of  Gujarat  (3)  where     the
following observation were made:
      "In  the  first  place,  he  stated  that  on     the
     personal search  of the  appellant, a  chadi was  found
     which was    blood stained and according to the report of
     the   serologist,      it    contained    human    blood.
     Unfortunately, however,  as this  circumstance was     not
     put to the accused in his statement
     under section  342, the prosecution cannot be permitted
     to rely  on this  statement in  order  to    convict     the
     It is  not necessary  for us to multiply authorities on
this point  as this question now stands concluded by several
decision of  this Court.  In this  view of  the matter,     the
circumstances which  were not  put to  the appellant  in his
examination under  s.313 of the Criminal Procedure Code have
to be completely excluded from consideration.
     We might  mention here an important argument advance by
counsel for  the appellant  and countered  by the Additional
Solicitor General.  It was argued before the High Court that
it was    highly improbable  that if the betrothal ceremony of
appellant's sister,  which was    as important as the marriage
itself, was going to be performed on the 13th of June, would
the appellant  clouse a     day before  that for  murdering his
wife and  thereby bring disgrace and destruction not only to
his family  but also to her sister. We have already adverted
to this aspect of the matter but it is rather interesting to
note how  the High  Court has  tried to     rebut this inherent
improbability,    on   the  ground   that      in   a   case      of
administration of  poison the culprit would just wait for an
opportunity to    administer the    same and  once he  gets     the
opportunity he is not expected to think rationally but would
commit the murder at once. With due respect to the Judges of
the High  Court, we  are not able to agree with the somewhat
complex line  of reasoning  which is  not supported  by     the
evidence on  record. There  is clear  evidence, led  by     the
prosecution that except for a week or few days of intervals,
Manju always  used to  live with  her husband  and  she     had
herself complained  that he  used to  come  late  at  night.
Hence, as  both were  living alone  in the same room for the
last four months there could be no dearth of any opportunity
on the    part of     the appellant    to administer  poison if  he
really wanted to do so. We are unable to follow the logic of
the High  Court's reasoning  that once    the appellant got an
opportunity he    must have  clung to it. The evidence further
shows that both Manju and appellant had gone for a honeymoon
outside Pune  and even    at that     time he could have murdered
her and     allowed the  case to  pass  for  a  natural  death.
However, these are matters of conjectures.
     The   Additional     Solicitor-General   realising     the
hollowness  of    the  High  Court's  argument  put  it  in  a
different way.    He submitted  that as  the deceased  was 4-6
weeks pregnant the appellant realised
that unless the deceased was murdered at the behest it would
become very  difficult for him to murder her, even if he had
got an    opportunity, if     a child  was born and then he would
have to     maintain the  child also  which would have affected
his illicit  connections with  Ujvala. This appears to be an
attractive argument  but on  close scrutiny it is untenable.
If it  was only     a  question  of  Manju's  being  4-6  weeks
pregnant before     her death, the appellant could just as well
have waited  just for another fortnight till the marriage of
his sister  was over which was fixed for 30th June, 1982 and
then either  have the  pregnancy terminated  or killed    her.
Moreover, it  would appear from the evidence of PW 2 (P.176)
that in     his community    the Kohl  ceremony is  not merely  a
formal betrothal  but a very important ceremony in which all
the near  relations are     called and  invited to     attend     the
function and  a dinner is hosted. We might extract what PW 2
says about this:
      "At the  time of  Kohl celebration  of  Manju,  on
     2.8.1981 my  relatives i.e.  my sister from outside had
     attended this function and many people were invited for
     this function.  A dinner was also hosted by me. In that
     function the  father of  the bridegroom  is required to
     spend for    the dinner  while the  presentations made to
     the bride    are required  to be  given or  donned at the
     expenses of  the side  of bridegroom  This programme is
     not attended by the bridegroom." (P.176)
     As Birdichand  and others    were made  co-accused in the
case they  were unable to give evidence on this point but it
is the    admitted case  of both    the parties that the accused
belonged  to   the  same   community  as   PW  2.  In  these
circumstances, it  is difficult     to accept the argument that
the appellant  would commit  the murder     of his wife just on
the eve     of Kohl ceremony, which he could have done the same
long before that ceremony or after the marriage as there was
no hurry  nor any  such impediment  which would deny him any
opportunity of murdering his wife.
     We     now  come  to    the  nature  and  character  of     the
circumstantial evidence.  The law  on the  subject  is    well
settled for the last 6-7 decades and there have been so many
decisions on  this point  that the  principles laid  down by
courts have become more or less axiomatic.
     The High  Court has  referred to some decisions of this
Court and  tried to  apply the    ratio of  those cases to the
present     case    which,    as   we     shall     show,    are  clearly
distinguishable. The High Court was greatly impressed by the
view taken  by some  courts, including    this Court,  that  a
false defence  or a  false plea taken by an accused would be
an additional  link in    the various  chain of circumstantial
evidence and  seems to    suggest that since the appellant had
taken a     false plea  that would     be conclusive,     taken along
with other  circumstances, to  prove  the  case.  We  might,
however, mention  at the  outset that  this is not what this
Court has said. We shall elaborate this aspect of the matter
a little later
     It is  well settled  that the prosecution must stand or
fall on     its own legs and it cannot derive any strength from
the weakness  of the  defence. This  is     trite    law  and  no
decision has  taken a  contrary view.  What some  cases have
held is     only this:  where various  links in  a chain are in
themselves complete than a false plea or a false defence may
be called  into aid  only to lend assurance to the Court. In
other words,  before using  the additional  link it  must be
proved that  all the  links in the chain are complete and do
not suffer  from any infirmity. It is not the law that where
is any infirmity or lacuna in the prosecution case, the same
could be  cured or  supplied by     a false  defence or  a plea
which is not accepted by a Court.
     Before discussing    the cases  relied upon    by the    High
Court we  would like  to cite a few decisions on the nature,
character and  essential proof    required in  a criminal case
which rests  on     circumstantial     evidence  alone.  The    most
fundamental and     basic decision of this Court is Hanumant v.
The State of Madhya Pradesh.(1) This case has been uniformly
followed and  applied by  this Court  in a  large number  of
later decisions     uptodate, for instance, the cases of Tufail
(Alias) Simmi  v. State     of Uttar Pradesh(2) and Ramgopal v.
Stat of     Maharashtra(3). It  may be  useful to    extract what
Mahajan, J. has laid down in Hanumant's case (supra):
      "It is  well to  remember that  in cases where the
     evidence    is   of      a   circumstantial   nature,     the
     circumstances from     which the conclusion of guilt is to
     be drawn should in the
     first instance  be fully  established and all the facts
     so established  should  be     consistent  only  with     the
     hypothesis of  the guilt  of the  accused.     Again,     the
     circumstances should  be of  a  conclusive     nature     and
     tendency and  they should    be such     as to exclude every
     hypothesis but  the one proposed to be proved. In other
     words, there  must     be  a    chain  of  evidence  so     far
     complete as  not to  leave any  reasonable ground far a
     conclusion consistent with the innocence of the accused
     and it  must be  such as  to show that within all human
     probability  the    act  must  have     been  done  by     the
     A close  analysis of  this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
     (1)  the circumstances  from which     the  conclusion  of
      guilt is to be drawn should be fully established.
     It may be noted here that this Court indicated that the
circumstances concerned     'must or  should' and    not 'may be'
established. There  is not  only a  grammatical but  a legal
distinction between  'may be  proved' and 'must be or should
be proved'  as was  held by  this Court     in Shivaji Sahabrao
Bobade & Anr. v. State of Maharashtra(') where the following
observations were made:
      "Certainly, it  is a    primary principle  that     the
     accused must  be and  not merely may be guilty before a
     court can    convict and the mental distance between 'may
     be' and 'must be' is long and divides vague conjectures
     from sure conclusions."
     (2)  The facts so established should be consistent only
      with the  hypothesis of  the guilt of the accused,
      that is  to say. they should not be explainable on
      any other  hypothesis except    that the  accused is
     (3)  the circumstances should be of a conclusive nature
      and tendency.
     (4)  they    should    exclude     every    possible  hypothesis
      except the one to be proved, and
     (5)  there must  be a  chain of evidence so complete as
      not  to   leave  any    reasonable  ground  for     the
      conclusion consistent     with the  innocence of     the
      accused  and     must  show   that  in     all   human
      probability the  act must  have been    done by     the
     These  five  golden  principles,  if  we  may  say     so,
constitute the    panchsheel of  the proof  of a case based on
circumstantial evidence.
     It may  be interesting to note that as regards the mode
of proof  in a    criminal case  depending  on  circumstantial
evidence, in the absence of a corpus deliciti, the statement
of law    as to proof of the same was laid down by Gresson, J.
(and concurred    by 3  more Judges)  in The King v. Horry,(l)
      "Before he  can be  convicted, the  fact of  death
     should be    proved by  such circumstances  as render the
     commission of  the crime  morally certain    and leave no
     ground  for   reasonable  doubt:    the   circumstantial
     evidence should  be so  cogent  and  compelling  as  to
     convince a jury that up on no rational hypothesis other
     than murder can the facts be accounted for."
     Lord Goddard  slightly modified the expression, morally
certain by  'such circumstances     as render the commission of
the crime certain'.
     This indicates  the  cardinal  principle'    of  criminal
jurisprudence that a case can be said to be proved only when
there is  certain and explicit evidence and no person can be
convicted on pure moral conviction. Horry's case (supra) was
approved by  this Court in Anant Chintaman Lagu v. The State
of Bombay(2)  Lagu's case  as also the principles enunciated
by this Court in Hanumant's case (supra) have been uniformly
and consistently  followed in  all later  decisions of    this
Court without  any single  exception. To  quote a  few cases
Tufail's case  (supra), Ramgopals  case (supra), Chandrakant
Nyalchand Seth    v. The    State of Bombay (Criminal Appeal No.
120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State
of Punjab  (Criminal  Appeal  No.  98  of  1958     decided  on
4.11.1958). There are a number of other cases where although
Hanumant's case has not
been expressly    noticed but  the same  principles have    been
expounded and  reiterated,  as    in  Naseem  Ahmed  v.  Delhi
Administration(l). Mohan  Lal Pangasa  v. State     of U.P.,(2)
Shankarlal Gyarasilal  Dixit v.     State of Maharashtra(3) and
M.C. Agarwal  v. State    of Maharashtra(4)-a five-Judge Bench
     It may  be necessary  here to  notice a  very  forceful
argument  submitted   by  the  Additional  Solicitor-General
relying on  a decision    of this Court in Deonandan Mishra v.
The State  of Bihar(5),     to supplement this argument that if
the defence  case is false it would constitute an additional
link so as to fortify the prosecution case. With due respect
to the learned Additional Solicitor General we are unable to
agree with  the interpretation given by him of the aforesaid
case, the relevant portion of which may be extracted thus:
      "But in  a case  like this where the various links
     as started     above have been satisfactorily made out and
     the  circumstances      point     to  the  appellant  as     the
     probable assailant, with reasonable definiteness and in
     proximity    to   the  deceased   as     regards   time     and
     situation-such  absence   of   explanation      of   false
     explanation would    itself be  an additional  link which
     completes the chain."
     It will  be seen  that this  Court     while    taking    into
account the  absence of     explanation or     a false explanation
did hold  that it  will amount    to be  an additional link to
complete the  chain but     these observations  must be read in
the light  of what  this Court    said earlier, viz., before a
false explanation  can    be  used  as  additional  link,     the
following essential conditions must be satisfied:
     (1)  various links     in the chain of evidence led by the
      prosecution have been satisfactorily proved.
     (2)  the said  circumstance point    to the    guilt of the
      accused with reasonable definiteness, and
     (3)  the circumstance  is in  proximity to the time and
     If these conditions are fulfilled only then a court can
use a  false explanation or a false defence as an additional
link to lend an assurance to the court and not otherwise. On
the facts  and circumstances  of the present case, this does
not appear  to be such a case. This aspect of the matter was
examined in  Shankarlal's  case     (supra)  where     this  Court
observed thus:
      "Besides, falsity of defence cannot take the place
     of     proof     of  facts  which  the    prosecution  has  to
     establish in order to succeed. A false plea can at best
     be considered  as an  additional circumstance, if other
     circumstances point  unfailingly to  the guilt  of     the
     This Court,  therefore, has in no way departed from the
five  conditions  laid    down  in  Hanumant's  case  (supra).
Unfortunately, however,     the High  Court also  seems to have
misconstrued this  decision and     used  the  so-called  false
defence put  up by  the appellant  as one  of the additional
circumstances connected     with the  chain. There     is a  vital
difference between  an incomplete chain of circumstances and
a circumstance    which, after the chain is complete, is added
to it merely to reinforce the conclusion of the court. Where
the prosecution     is unable  to prove  any of  the  essential
principles laid     down in  Hanumant's case,  the     High  Court
cannot supply the weakness or the lacuna by taking aid of or
recourse to  a false  defence  or  a  false  plea.  We    are,
therefore, unable  to accept  the argument of the Additional
     Moreover, in  M.G. Agarwal's  case (supra)     this  Court
while reiterating  the principles  enunciated in  Hanumant's
case observed thus:
      "If the  circumstances  proved  in  the  case     are
     consistent either    with the innocence of the accused or
     with his  guilt, then  the accused     is entitled  to the
     benefit of doubt."
     In Shankarlal's  (supra) this Court reiterated the same
view thus:
      "Legal principles  are not  magic incantations and
     their importance  lies more  in their  application to a
     given set    of  facts  than     in  their  recital  in     the
     We then  pass on to another important point which seems
to have been completely missed by the High Court. It is well
settled that  where on    the evidence  two possibilities     are
available or open,
one which  goes in  favour of  the prosecution and the other
which  benefits     an  accused,  the  accused  is     undoubtedly
entitled to  the benefit  of doubt.  In Kali Ram v. State of
Himachal  Pradesh,(l)    this  Court   made   the   following
      "Another golden  thread which runs through the web
     of the  administration of    justice in criminal cases is
     that if  two views are possible on the evidence adduced
     in the  case one  pointing to  the guilt of the accused
     and the  other to    his innocence,    the  view  which  is
     favourable     to  the  accused  should  be  adopted    This
     principle has a special relevance in cases where in the
     guilt of  the accused  is sought  to be  established by
     circumstantial evidence."
     We now come to the mode and manner of proof of cases of
murder by  administration  of  poison.    In  Ramgopal's    case
(supra) this Court held thus:
      "Three  questions  arise  in    such  cases,  namely
     (firstly), did  the  deceased  die     of  the  poison  in
     question ?     (secondly), had  the accused  the poison in
     his possession  ? and  (thirdly), had  the     accused  an
     opportunity to administer the poison in question to the
     deceased ?     It is    only when  the motive  is there     and
     these facts  are all  proved that the court may be able
     to draw the inference, that the poison was administered
     by the accused to the deceased resulting in his death."
     So far  as this  matter is concerned, in such cases the
court must  carefully scan  the evidence  and determine     the
four important    circumstances  which  alone  can  justify  a
     (1)  there     is   a     clear    motive    for  an     accused  to
      administer poison to the deceased,
     (2)  that the deceased died of poison said to have been
     (3)  that the accused had the poison in his possession,
     (4)  that he  had    an  opportunity     to  administer     the
      poison to the deceased.
     In the  instant case,  while two  ingredients have been
proved but two have not. In the first place, it has no doubt
been  proved  that  Manju  died     of  potassium    cyanide     and
secondly,  it  has  also  been    proved    that  there  was  an
opportunity to    administer the    poison. It has, however, not
been proved  by any  evidence that  the     appellant  had     the
poison in  his possession.  On the  other hand, as indicated
above, there  is clear    evidence  of  PW  2  that  potassium
cyanide could  have been available to Manju from the plastic
factory of her mother, but there is no evidence to show that
the accused  could have     procured potassium cyanide from any
available   source.   We   might   here      extract   a    most
unintelligible and extra-ordinary finding of the High Court-
      "It is  true that  there is  no direct evidence on
     these two    points, because     the prosecution is not able
     to lead evidence that the accused had secured potassium
     cyanide poison  from  a  particular  source.  Similarly
     there is  no direct  evidence  to    prove  that  he     had
     administered  poison  to  Manju.  However,     it  is     not
     necessary to  prove each  and every  fact by  a  direct
     evidence. Circumstantial  evidence can  be a  basis for
     proving this fact."
     The comment by the High Court appears to be frightfully
vague and  absolutely unintelligible.  While holding  in the
clearest possible  terms that  there is     no evidence in this
case to show that the appellant was in possession or poison,
the High  Court observes that this fact may be proved either
by direct  or indirect    (circumstantial)  evidence.  But  it
fails to  indicate  the     nature     of  the  circumstantial  or
indirect  evidence   to     show  that  the  appellant  was  in
possession of  poison. If  the court  seems to    suggest that
merely    because      the  appellant   had    the  opportunity  to
administer poison  and the same was found in the body of the
deceased, it  should be     presumed that    the appellant was in
possession of  poison, than  it has  committed a serious and
gross error of law and has blatantly violated the principles
laid down by this Court. The High Court has not indicated as
to what     was the  basis for  coming to    a finding  that     the
accused could  have procured the cyanide. On the other hand,
in view     of the     decision in Ramgopal's case (supra) failure
to prove  possession of     the cyanide poison with the accused
by itself  would result     in failure  of the  prosecution  to
prove its  case. We are constrained to observe that the High
Court has completely misread and misconstru-
ed the decision in Ramgopal's case. Even prior to Ramgopol's
case there  are two decisions of this Court which have taken
the  same   view.  In    Chandrakant  Nyalchand    Seth's    case
(Criminal Appeal  No. 120  of 1957  decided on 19.2.58) this
Court observed thus:
      "Before a  person can     be convicted  of murder  by
     poisoning, it  is necessary  to prove that the death of
     the deceased  was caused  by poison, that the poison in
     question was  in possession  of the  accused  and    that
     poison was administered by the accused to the deceased.
     There is  no direct  evidence in  this  case  that     the
     accused was  in possession of Potassium Cyanide or that
     he administered the same to the deceased."
     The facts    of the    case  cited  above  were  very    much
similar to  the present     appeal. Here  also, the Court found
that circumstances afforded a greater motive to the deceased
to commit  suicide than     for the  accused to  commit murder.
This view was reiterated in Dharambir Singh's case (Criminal
Appeal No.  98 of 1958 decided on 4.11.1958) where the court
observed as follows:
      "Therefore, along with the motive, the prosecution
     has also  to establish  that the  deceased     died  of  a
     particular poison    said to have been administered, that
     the accused  was in  possession of that poison and that
     he had  the opportunity  to administer  the same to the
     deceased: (see  Mt. Gujrani  and another v. Emperor(').
     It is only when the motive is there and these facts are
     all proved     that the  court may  be able  to  draw     the
     inference, in  a case  of circumstantial evidence, that
     the poison     was administered  by  the  accused  to     the
     deceased resulting in his death.
      We feel  that it  was not right for the High Court
     to say, when this link in the chain had failed, that it
     could not    be very     difficult for    anybody     to  procure
     potassium cyanide and therefore the absence of proof of
     possession of  potassium cyanide  by  the    accused     was
     practically of  no effect. On the facts as found by the
     High Court it must be held that the second of the three
     facts which  have to  be proved,  in case    of poisoning
     based on  circumstantial evidence    has not been proved,
     namely that the accused was in possession of the poison
     that had been found in the body-Can it
     be said in these circumstances when the proof of a very
     vital fact     namely, that  the accused was in possession
     of potassium  cyanide, has     failed that  the  chain  of
     circumstantial evidence,  is so  far complete as not to
     leave any reasonable ground for a conclusion consistent
     with the innocence of the accused and that the evidence
     which remains  after the rejection of this fact is such
     as to  show that  within all  human probability the act
     must have been done by the accused."
     We are,  therefore, clearly  of the  opinion  that     the
facts of  the present appeal are covered by the ratio of the
aforesaid decisions.  At any  rate, taking the worst view of
the matter  on the  evidence in     this case two possibilities
are clearly open-
     (1)  that it may be a case of suicide, or
     (2)  that it may be a case of murder
and both  are equally  probable, hence    the prosecution case
stands disproved.
     We now  proceed to     deal with  some of the judgments of
this Court  on which  great reliance  has been placed by the
High Court. In the first place, the High Court relied on the
case of     Pershadi v.  State of    Uttar Pradesh(').  This case
appears to  be clearly    distinguishable because     no point of
law was     involved therein  and on  the facts  proved and the
very extraordinary  conduct of    the accused,  the court held
that the  circumstantial evidence  was consistent  only with
the guilt  of the  accused and    inconsistent with  any other
rational explanation.  Indeed, if  this would  have been our
finding in  this particular case, there could be no question
that the conviction of the accused would have been upheld.
     The next  on which the High Court placed great reliance
is case     Lagu's case (supra). This case also does not appear
to be  of any  assistance to  the prosecution.    In the first
place, the  case was  decided on  the peculiar facts of that
case. Secondly, even though the corpus deliciti was not held
to be proved yet the medical evidence and the conduct of the
accused unerringly  pointed to    the  inescapable  conclusion
that  the   death  of  the  deceased  was  as  a  result  of
administration of poison and that the accused was the person
who admini-
stered the same. This. however, is not the case here. On the
other hand,  we have  held that the conduct of the appellant
has not been proved to be inconsistent with his guilt and on
this  ground   alone  the   present  case   can     be   easily
distinguished. If  at all  it is  an authority    it is on the
point that  this Court    is not    required to  enter  into  an
elaborate examination  of the evidence unless there are very
special circumstances  to justify the same. At this Court in
that case  was clearly    of the    view that the High Court had
fully considered  the facts and a multitude of circumstances
against the accused remained unexplained, the presumption of
innocence was  destroyed and  the High    Court was  therefore
right in  affirming the     conviction. Of     course, Sarkar,  J.
gave a    dissenting judgment. From a detailed scrutiny of the
decision cited    above (Lagu's  Case) we     find that  there is
nothing in  common between  the peculiar  facts of that case
and the     present one.  Hence, this  authority is  also of no
assistance to the prosecution.
     Reliance was  then placed    on the    case of     Ram Dass v.
State of  Maharashtra(l) but  we are  unable to see how this
decision helps the prosecution. The High Court relied on the
fact that  as the accused had taken the deceased immediately
to the    Civil Hospital    in order  to stop  the    poison    from
spreading, this particular fact was eloquent enough to speak
for the     innocence of the accused. A careful perusal of that
decision shows    that this  Court did  not     accept     the
prosecution case  despite circumstances     appearing  in    that
case which  are almost similar to those found in the present
one. Moreover,    here also  the accused    had immediately sent
for their  family Doctor  after they had detected that Manju
was dead.  The reason  for a little delay in lodging the FIR
has already  been explained  by us  while dealing  with     the
facts. In the decision cited above, it was clearly held that
the case against the accused was not proved conclusively and
unerringly and    that two reasonable views were possible, the
relevant portion of which may be extracted thus:
      "On  a  consideration     of  the  evidence  and     the
     circumstances referred  to above, we are satisfied that
     this is a case in which the circumstantial evidence did
     not prove the case against the accused conclusively and
     unerringly, and  at any  rate two reasonable views were
     We have  already found  in the instant case that taking
the prosecution     at the     highest the utmost that can be said
is that two views-one in favour of the accused and the other
against him-were  possible. Ram     Dass's case  also therefore
supports the appellant rather than the prosecution.
     The  last    case  relied  upon  by    the  High  Court  is
Shankarlal's case  (supra) but we are unable to see how this
case helps  the prosecution.  The observations    on which the
High Court  has relied    upon appears  to have been torn from
the context. On the other hand, this decision fully supports
the case  of the  appellant that  falsity of  defence cannot
take the  place of  proof of facts which the prosecution has
to establish  in order to succeed. This decision has already
been dealt  with by  us while  considering the merits of the
present case and it is not necessary to repeat the same.
     These are    the only  important cases  of this  Court on
which the  High Court  seeks to     rely and  which, on a close
examination, do     not appear to be either relevant or helpful
to the    prosecution case in any way. On the other hand, some
of the    observations made in these cases support the accused
rather than the prosecution.
     This now  brings us  to the  fag end  of our  judgment.
After  a   detailed  discussion      of   the   evidence,     the
circumstances  of   the     case    and  interpretation  of     the
decisions of  this Court  the legal and factual position may
be summarised thus:
     (1)  That the five golden principles enunciated by this
      Court in Hanumant's decision (supra) have not been
      satisfied  in     the  instant  case.  As  a  logical
      corollary, it     follows that it cannot be held that
      the act  of the accused cannot be explained on any
      other hypothesis except the guilt of the appellant
      nor can  it be said that in all human probability,
      the accused  had committed the murder of Manju. In
      other words, the prosecution has not fulfilled the
      essential requirements  of a    criminal case  which
      rests purely on circumstantial evidence.
     (2)  That, at any rate, the evidence clearly shows that
      two views  are possible-one  pointing to the guilt
      of the  accused  and    the  other  leading  to     his
      innocence. It
      may be  very likely  that the     appellant may    have
      administered the  poison  (potassium    cyanide)  to
      Manju but at the same time a fair possibility that
      she herself  committed suicide  cannot  be  safely
      excluded or  eliminated.  Hence,  on    this  ground
      alone the  appellant is entitled to the benefit of
      doubt resulting in his acquittal.
     (3)  The prosecution  has miserably failed to prove one
      of the  most essential  ingredients of  a case  of
      death caused    by administration  of poison,  i.e.,
      possession of     poison with  the accused (either by
      direct of  circumstantial evidence)  and  on    this
      ground alone the prosecution must fail.
     (4)  That in  appreciating the evidence, the High Court
      has clearly  misdirected itself on many points, as
      pointed out  by us, and has thus committed a gross
      error of law:
     (5)  That the  High Court    has relied upon decisions of
      this Court which are either inapplicable or which,
      on closer  examination, do not support the view of
      the High Court being clearly distinguishable.
     (6)  That the  High Court    has taken a completely wrong
      view of  law    in  holding  that  even     though     the
      prosecution may suffer from serious infirmities it
      could be  reinforced by  additional  link  in     the
      nature of  false defence  in order  to supply     the
      lacuna and  has thus committed a fundamental error
      of law.
     (7)  That the  High Court    has not     only misappreciated
      the evidence    but has     completely  overlooked     the
      well established  principles of law and in view of
      our finding  it is  absolutely clear that the High
      Court has  merely tried  to accept the prosecution
      case based  on tenterhooks  and slender  tits     and
     (8)  We entirely  agree with  the High Court that it is
      wholly unsafe to rely on that part of the evidence
      of Dr.  Banerjee (PW    33) which  shows that poison
      forcibly administered by the process of mechanical
     (9)  We also agree with the High Court that there is no
      manifest defect  in the  investigation made by the
      police which    appears to  be honest and careful. A
      proof positive  of this  fact is  that even though
      Rameshwar Birdichand    and  other  members  of     his
      family who  had practically  no role    to play     had
      been    arrayed     as  accused  but  they     had  to  be
      acquitted by    the High  Court for  lack  of  legal
     (10) That in  view of  our finding     that two  views are
      clearly possible in the present case, the question
      of defence  being false  dose not  arise  and     the
      argument of  the High     Court that  the defence  is
      false does not survive.
     This was a fit case in which the High Court should have
given at least the benefit of doubt to the appellant.
     Normally,    this  Court  does  not    interfere  with     the
concurrent findings  of fact  of the  courts below,  in     the
absence of very special circumstances or gross errors of law
committed by  the High    Court.    But  where  the     High  Court
ignores or  overlocks the  crying circumstances     and  proved
facts,    violates   and    misapplies   the  well     established
principles of  criminal jurisprudence  or decisions rendered
by this Court on appreciation of circumstantial evidence and
refuses to  give benefit  of doubt  to the  accused  despite
facts apparent    on the    face of     the record  or on  its     own
findings or  tries to  gloss over  them without     giving     any
reasonable explanation    or commits errors of law apparent on
the  face  of  the  record  which  results  in    serious     and
substantial miscarriage of justice to the accused, it is the
duty of     this Court  to step  in  and  correct    the  legally
erroneous decision of the High Court.
     We     can   fully  understand   that     though      the    case
superficially viewed bears an ugly look so as to prima facie
shock the  conscience of  any Court  yet suspicion,  however
great it  may be,  cannot take    the place  of legal proof. A
moral conviction  however strong or genuine cannot amount to
a legal conviction supportable in law.
     It must  be recalled  that the well established rule of
criminal justice  is  that  'fouler  the  crime     higher     the
proof'. In  the instant     case, the  life and  liberty  of  a
subject was  at stake.    As the    accused was  given a capital
sentence, a  very careful,  cautious and meticulous approach
was necessary to be made.
     Manju (from  the evidence    on the record) appears to be
not only a highly sensitive woman who expected whole-hearted
love  and   affection  from  her  husband  but    having    been
thoroughly disappointed     out of     sheer disgust,     frustration
and depression    she may have chosen to end her life-at least
this possibility  is clearly  gleaned from  her letters     and
mental attitude.  She  may  have  been    fully  justified  in
entertaining an     expectation that after marriage her husband
would look  after her  with affection  and regard.  This  is
clearly spelt  out in  the letters where she hinted that her
husband a  was so busy that he found no time for her. A hard
fact of life, which cannot be denied, is that some people in
view of     their occupation  or profession  fined very  little
time to     devote to  their family.  Speaking in a light vein,
lawyers, professors,  Doctors and perhaps Judges fall within
this category  and to  them Manju's  case should  be an eye-
     For  the    reasons     given     above    we   hold  that     the
prosecution has     failed to  prove its case against appellant
beyond reasonable  doubt. We,  therefore, allow     the appeal,
set aside  the judgments  of the courts below and acquit the
appellant, Sharad  Bridichand Sarda,  of the  charges framed
against him and direct him to be released and set at liberty
     VARADARAJAN,  J.    This  appeal  by  special  leave  is
directed against  the judgment    of a  Division Bench  of the
Bombay High  Court in  Criminal Appeal    No. 265     of 1983 and
Confirmation Case  No. 3  of 1983, dismissing the appeal and
confirming the    sentence  of  death  awarded  to  the  first
accused Sharad Birdhichand Sarda (hereinafter referred to as
the 'appellant')  by the  Additional Sessions Judge, Pune in
Sessions Case  No. 203    of 1982.  The  appellant,  Rameshwar
Birdhichand Sarda  and Ramvilas     Rambagas Sarda were accused
1, 2 and 3 respectively in the Sessions Case.
     The appellant  and the  second accused  are the sons of
one Birdhichand     of Pune  whose family has a cloth business.
In addition
the appellant  who is  said to    be a  graduate    in  Chemical
Engineering had     started a  chemical factory  at Bhosari,  a
suburb of  Pune. The third accused is uncle of the appellant
and the     second accused.  The appellant     is the     husband  of
Manjushree alias  Manju while  the  second  accused  is     the
husband of  Anuradha (P.W.35).    Birdhichand's family has its
residential house at Ravivar Peth in Pune and owns a flat in
a building  known as Takshasheela Apartments in Mukund Nagar
area of Pune.
     Manju, the     alleged victim in this case, was the eldest
amongst the  five children  of Rameshwar (P.W 2) and Parwati
(P.W.20). Anju    (P.W.6) is  the second daughter of P.W.2 who
is a  Commercial Tax  and Income  Tax Consultant since 1960.
P.W.2 is  living in  his own house situate in Subash Road in
Beed city  since 1973,    prior to  which he  was living    in a
rented house  in Karimpura  Peth in that city. Meena (P.W.5)
is a  school and college mate and friend of Manju who passed
the B.Sc.  examination in  Chemistry in     the First  Class in
1980  while   P.W.5  who   had    passed     the  10th  standard
examination  together  with  Manju  was     still    studying  in
college. Rekha    (P.W.3) whom Manju used to call as Vahini is
another friend    of Manju. She is living with her husband Dr.
Dilip Dalvi  in a  portion of  P.W.2's house in Subash Road,
Pune as     his tenant.  P.W.20's elder  brother Dhanraj  Rathi
(P.W.22) is a resident of Pune where he is doing business in
the sale of plastic bags for the manufacture of which he has
a plastic  factory called  Deepak Plastics  at Beed. It is a
partnership concern  of P.W.20    and  some  others  including
P.W.22's third    son Shrigopal. Deepak is one of the two sons
of P.Ws. 2 and 20.
     After Manju passed her B.Sc. degree examination in 1980
her marriage  with the    appellant was  settled by  a  formal
betrothal ceremony  which  took     place    in  June  1981.     The
marriage of  the appellant  and Manju  was performed  at the
expense of  P.W.2 at  Beed on  11.2.1982. The  appellant and
Manju  left  for  Pune    on  12.2.1982  after  the  marriage.
Subsequently, P.W.2  sent his  elder son Deepak for fetching
Manju  from   the  appellant's     house    at   Pune  and    they
accordingly came  back to  Beed on  22.2.1982. The appellant
went to     Beed four or five days later and took Manju back to
Pune on the next day after pleading his inability to stay in
P.W.2's house  for some     more days.  This was  Manju's first
visit to  her parents'    house after  her marriage  with     the
appellant. She    is said     to have been very happy during that
visit. Thereafter Manju came to her parents' house alongwith
her maternal uncle Dhanraj Rathi (P.W.22) on or about
2.4.1982. It is the case of the prosecution that during that
visit Manju  was uneasy and had generally complained against
the appellant  to P.Ws.3  and 6. P.W.2 planned to keep Manju
in his    house for  about three    weeks on  that occasion. But
news of     the death  of    the  appellant's  grand     father     was
received in  P.W.2's house  in Beed  and, therefore, P.Ws. 2
and 20    and Manju went to Pune for condolences on 11.4.1982.
After meeting  the appellant's    father and  others at  Pune,
P.Ws. 2     and 20     returned  to  Beed  leaving  Manju  in     the
appellant's house  in Pune.  That was  the second  visit  of
Manju  to   her     parents'  house  after     marriage  with     the
appellant. P.Ws.2  and 20  came to  Pune again    on or  about
13.5.1982. After staying for some time as usual in the house
of P.W.     22, P.Ws. 2 and 20 visited the house of Birdhichand
on that     occasion. It  is the  case of    the prosecution that
P.Ws. 2     and 20     found Manju  disturbed and  uneasy and that
they, therefore,  took her  to the house of P.W. 22 with the
permission of  Birdhichand. It    is  also  the  case  of     the
prosecution  that   on    reaching   P.W.     22's    house  Manju
completely broke  down and  started weeping  in the  arms of
P.W.20. P.Ws.  2 and  20 returned to Beed from Pune and sent
their second  son Pardeep  four or  five days later to fetch
Manju, who  had, however, by then gone with the appellant to
Tirupati  in   Andhra  Pradesh.      After     learning  that     the
appellant and Manju had returned to Pune, P.W.2 sent his son
Deepak to  fetch Manju    to Beed.  Accordingly Deepak brought
Manju to  Beed accompanied  by the  third  accused  daughter
Kavita on  25.5.1982. This  was Manju's third and last visit
to her parents' house after her marriage with the appellant.
It is  the case     of the     prosecution that  Manju was totally
disturbed and  frightened during  that visit  and  that     she
complained to  her mother  P.W.20 against  the appellant and
she in    turn conveyed  to P.W.20  what she heard from Manju.
Birdhichand went  to Beed  on  2.6.1982     without  any  prior
intimation for    taking Manju  to Pune  on  the    ground    that
Manju's presence  in his  family house at pune was necessary
for the     betrothal ceremony of his daughter Shobha fixed for
13.6.1982 as  well as  for her marriage fixed for 30.6.1982.
It is  the case     of the     prosecution that when Manju came to
know that  her father in-law Birdhichand had come for taking
her to    Pune she was wept and expressed her unwillingness to
go  to     Pune  and   that,  however,  on  the  assurance  of
Birdhichand that he would see to it that nothing happened to
the life  of Manju,  P.W.2 permitted  Manju to    go  to    Pune
alongwith Birdhichand  and she    accordingly went  to Pune on
3.6.1982 alongwith Kavita and Birdhichand.
     The family     of Birdhichand     and his  sons including the
appellant is  joint.  As  stated  earlier  they     have  their
family's residential house at Ravivar Peth, Pune besides the
flat which they owned in the Takshasheela Apartments situate
at some distance from their family house. Their flat has two
bed-rooms besides  a hall  and other portions. Birdhichand's
two married  sons, the appellant and the second accused used
to go  to the  family's flat  in the Takshasheela Apartments
for sleeping during the nights. The appellant and Manju used
to sleep  in one  of the  two  bed-rooms  while     the  second
accused and  his wife  Anuradha (P.W.35)  and their children
used to sleep in the other bed-room.
     Manju had    written amongst others, three letters, Ex.33
dated 25.4.1982     to her     friend vahini (P.W.3) and Ex. p. 30
dated 8.2.1982    and p.    32 dated  8.6.1982  to    her  younger
sister Anju  (P.W.6). In  Ex. 33 Manju has stated inter alia
that she  was feeling lonely though all persons in pune were
very good  and everybody  was loving  and that one reason is
that there  are many  elderly  persons    in  the     house    and,
therefore, she    does not  dare to  do any work independently
and the     fear which  is in  her mind  every  time  leads  to
confusion. She    has also  stated in  that letter  though all
person in  Pune were  very good that she becomes angry if he
(appellant) does not speak to her when she goes and talks to
him even  ten times  and that  till now this man (appellant)
had no    time to mind his wife. She has stated in that letter
that she dare not ask him (appellant) whether his clothes be
taken for  washing and    that at     present her  status is only
that of     an unpaid  maid-servant. She  has finally stated in
that letter  that on  the day  on which     self-pride  in     the
appellant is  reduced no other person will be more fortunate
than her  but it  is not  certain whether  she will be alive
until that  date. In  Ex. 30  she has stated inter alia that
she was     undergoing a  very difficult test and was unable to
achieve her  object, that  it would be well and good only if
she controls herself and that some other way will have to be
evolved when'  that becomes  impossible. In  Ex. 32  she has
stated that  though she     was happy at Pune she does not know
why there  is such a dirty atmosphere in the house and it is
felt every  moment that     something will happen. She has also
stated in  that letter    that no work had been started in the
house though Shobha's 'sari' function is fixed for 13.6.1982
and, therefore, she is out of her mind.
     The case  of the  prosecution as  regards    the  alleged
occurrence during  the night of 11/12.6.1982 is thus: on 11-
6-1982 at  about 10.30    p.m. Manju  accompanied by Anuradha,
(P.W. 35) and
three  children      of  the   latter  came  to  the  Taksheela
Apartments by  an auto-rickshaw.  The night-watchman  of the
Takshasheela Apartments,  kerba (P.W.  28) has deposed about
this fact.  Syed Mohideen,  (P.W. 7) an auto-rickshaw driver
residing in  the border     of Ganesh  Peth and Ravivar Peth in
Pune claims  to have  taken two ladies, three children and a
baby by     his auto-rickshaw  at about  11 p.m. on that day to
Mukund Nagar. He has identified the photo of Manju published
in a newspaper two or three days later as that of one of the
two ladies  who travelled by his auto-rickshaw as aforesaid.
The second  accused had     already gone  to the  flat  in     the
Takshasheela Apartments.  The  appellant  reached  the    flat
about 15 minutes later by a scooter, whom the night watchman
(P.W. 28)  remarked that  he was  coming rather late he told
P.W. 28     that it  was because  he had  a meeting.  After the
appellant reached  the flat  he and  Manju retired  to their
bed-room while    the second  accused and     P.W. 35  retired to
their's. Thereafter  the appellant  came out of his bed-room
at about  2 a.m. on 12.6.1982 and went to the second accused
and both  of them  went out  of that  flat by  scooters soon
afterwards. The     appellant proceeded  to  Ravivar  Peth     and
called his  father while the second accused went to call Dr.
Uttam chand  Lodha. (P.W. 24) who lives about one and a half
kilo metres  away from    the Takshasheela  Apartments without
seeking the  help of  Dr. Anjali  Kelkar,(P.W. 26)  and     her
husband Dr.  Shrikant Kelkar (P.W. 27) who lived close by in
the  same  Takshasheela     Apartments.  P.W.  24    reached     the
appellant's flat  at about  2.30 a.m.  and found Manju dead,
with rigor  motis having already set in and no external mark
showing the  cause of death. He, however, opined that it may
be a  case of  unnatural death and suggested that the police
may be    informed. When    Birdhichand who     had arrived  at the
flat by then advised that some other doctor may be called as
he was    not satisfied  with the opinion of P.W- 24 suggested
that Dr.  Anil Gandhi,    P.W 25    may be called if so desired.
Thereafter, P.W.  24 and  the third  concerned who  had come
with Birdhichand went to call P.W. 25 who lives about 7 kilo
metres away  from the  Takshasheela Apartments. On their way
they contacted    P.W. 25     over the  phone and took him to the
appellant's flat where he examined Manju at about 4 a.m. and
pronounced that     she was dead. He opined that she might have
died three  or four  hours earlier and stated that there was
no external  evidence showing  the cause  of death.  He     too
suggested that    the police  should be  informed to avoid any
     The third    accused went  to Mohan    Asava, (P.W.  30) at
about  4.30   a.m.  on    12.6.1982  and    called    him  to     the
appellant's flat  after informing  him that  Manju was dead.
P.W. 30,  who accompanied the third accused, saw the body of
Manju in  the flat  and left the place after suggesting that
the police  should be  informed. The third accused contacted
P.W. 30     over the  phone at about 6.30 a.m. and asked him to
go and    inform the  police that     Manju had died at 5.30 a.m.
P.W. 30     accordingly went  to Maharishi Nagar Police Station
at about  7 or    7.15 a.m.  and informed     the Head Constable,
(P.W. 31) who thereupon made the entry Ex. 120 to the effect
that Manju  was found to be dead when the appellant tried to
wake her  a up    at 5.30 a.m- on 12.6.1982. P.W. 31 proceeded
to the    appellant's flat at about 8 a.m. after informing the
Inspector  of  Police,    P.W.  40  telephonically  about     the
suspicious death of Manju.
     On receipt     of information     from P.W. 22 by a lightning
telephone call    at about  6 a.m. on 12.6.1982 that Manju was
extremely serious  P.W. 2  went from  Beed to Pune alongwith
his wife P.W. 20 and his son Pradeep and Hiralal Sarda (P.W.
4) by  jeep at    about 1     P.m. on  12.6.1982. and learnt that
Manju was  dead. Thereafter  P.W.2  went  alongwith  Hiralal
Sarda to  the Sasson  Hospital where  Manju's body  had been
sent by the police for autopsy.
     Dr. Kalikrishnan Banerji, P.W. 33 who conducted autopsy
on the    body of     Manju did not find any external or internal
injury. He  preserved the  viscera, small intestines etc. of
Manju and reserved his opinion about the cause of her death.
On receipt of the  Chemical Examiner's report Ex. 130 to the
effect that  Manju's  viscera  contained  potassium  cyanide
poison P.W.  33 finally     opined that  Manju had     died due to
potassium  cyanide  poisoning  and  simultaneous  mechanical
suffocation. After  completing    the  investigation  P.    W.40
filed the  charge-sheet against     the appellant and the other
two accused on 13.9.1982.
     The Additional Sessions Judge, Pune tried the appellant
for offence  under Sec.     302  IPC  of  murder  of  Manju  by
administering potassium cyanide poison or by suffocating her
or by both, all the three accused for the offence under Sec.
120 B  IPC of  conspiring to  destroy the  evidence  of     the
murder of Manju by giving a false report to the police about
the time  of her death and the third accused for the offence
under Sec.  109 read  with Sec. 201 IPC and Sec. 201 IPC for
intsigating P.W.30  to give  false information to the police
and giving false information to P.W. 22 regarding the murder
of Manju.
     The appellant  and the  other two    accused     denied     the
charges framed    against them.  The appellant  denied that he
had anything  to do  with Ujvala  (P.W.     37)  with  whom  is
alleged to  have been  in love    at  the     relevant  time.  He
admitted that Manju and P.W. 35 accompanied by some children
went to     their flat  in the Takshasheela Apartments at about
10.30 p.m.  on 11.6.1982  but denied  that they travelled by
any auto-rickshaw  and stated  that they went there by their
family's car driven by the second accused. He denied that he
went to     the flat  about 15 minutes later and stated that he
returned to  the fiat only at 1.30 or 1.45 a.m. on 12.6 1982
after attending     a meeting  in the  Rajasthan Youth Club. He
stated that  after changing  his clothes  he looked at Manju
and found  something abnormal and became suspicious and then
went to     the second  accused and that there after he went to
call his  father and  uncle while the second accused went to
call Dr. Lodha, P.W. 24.
     The Trial    Court found  all the three accused guilty as
charged and  convicted them  accordingly and  sentenced     the
appellant to death under s.302 IPC and all the three accused
to rigorous  imprisonment for  two years  and a     fine of Rs.
2,000 each  under s.120 B IPC but did not award any sentence
under s.201 read with s.120B
     The appellant  and the  other two accused filed appeals
against their  conviction and the sentences awarded to them.
The  State   filed  a    criminal  revision  application     for
enhancement of    the sentence  awarded to  accused 2  and  3.
These  appeals,     confirmation  case  and  criminal  revision
application were heard together by the Division Bench of the
Bombay High  Court, which  in a lengthy judgment. (195 pages
of our    paper book)  allowed the  appellant's appeal in part
regarding his  conviction and sentence under s.120 B IPC but
confirmed his conviction and sentence of death awarded under
s 302  IPC and allowed the appeal of accused 2 and 3 in full
and acquitted  them  and  dismissed  the  criminal  revision
application. Hence,  the appellant  alone has come up before
this Court  on special    leave against his conviction and the
sentence of death.
     I had the benefit of reading the judgment of my learned
brother Fazal Ali, J. I agree with his final conclusion that
the appeal  should succeed.  The learned  Judges of the High
Court have  relied upon     17 circumstances for confirming the
conviction and    sentence of  death awarded to the appellant.
My learned  brother Fazal Ali, J. has rightly rejected every
one of    those circumstances  as not conclusively pointing to
the guilt of the appellant, including the
circumstance that  the appellant  was last  seen with  Manju
before her  death  on  the  ground  that  the  case  of     the
prosecution based  on evidence of Dr. Banerji (P.W. 33) that
there was  any mechanical  suffocation    of  Manju  has    been
disbelieved by    the High  Court itself and that some entries
in the    carbon copy  Ex. 134 of P.W. 33's report sent to the
Chemical Examiner had been scored and interpolated after his
report Ex.  132 to the Chemical Examiner had left his hands,
that the  original entry  in the  postmortem certificate Ex.
134 contained  the words  'can be  a case of suicidal death'
and, that the explanation of P.W.33. that he wrote the words
'time of  death' twice    and not     the words 'can be a case of
suicidal death' and, therefore, he scored off one of them is
not acceptable    at all.     Doctors P.W.24     and 25 did not find
any external  injury on     the body of Manju which they saw at
about 2.30  and 4.30 a.m. on 12.6.1982. Even P.W.33. did not
find any  external or  internal injury on the body of Manju.
In these  circumstances, unless the prosecution excludes the
possibility of    Manju having  committed suicide by consuming
potassium cyanide  poison, as  rightly    pointed     out  by  my
learned brother     Fazal Ali,  J., (no  adverse  inference  of
guilt can  be drawn against the appellant from the fact that
he was    last seen with Manju, he being no other than her own
husband who  is naturally  expected to    be with     her  during
nights.) Some  of these     17  circumstances  cannot,  by     any
stretch of imagination, be held to point to the quilt of the
appellant.  Circumstance   No.    6   is    an  attempt  of     the
appellant's father  Birdhichand to  get the  body  of  Manju
cremated before     7 a.m.     On 12.6.1982  by expressing  such a
desire to  P.W.30. Circumstance     No.9 is  arrangement of the
dead body  of Manju  to make  it  appear  that    she  died  a
peaceful and  natural death.  Circumstance No. 11 is absence
of an  anklet of  Manju from her leg. Circumstance No. 12 is
the conduct  of the  appellant in  allegedly concealing     the
anklet in  the fold  of the  chaddar. Circumstance No. 15 is
the fact  that according  to the  medical evidence Manju was
pregnant by four to six weeks and it would normally dissuade
her from  committing suicide.  With respect  to the  learned
judges of  the High  Court, in    my view,  by no     stretch  of
imagination, can any of these circumstances be considered to
point to  nothing but  the guilt  of the appellant in a case
resting purely on circumstantial evidence.
     However, since  I am unable to persuade myself to agree
with my     learned brother  Fazal Ali, J. on four points, I am
writing this  separate but  concurring judgment,  giving  my
view on     those points, namely, (1) ill-treatment of Manju by
the appellant, (2) intimacy of
the appellant  with Ujvala  (P.W.37), (3)  admissibility  of
Manju's letters     Exs. 30,32  and 33 and the oral evidence of
P.Ws. 2,3,5,6  and 20  about the  alleged complaints made by
Manju against  the appellant under s. 32 (1) of the Evidence
Act  and  (4)  conduct    of  Dr.     Banerji  (P.W.33)  who     had
conducted autopsy on the body of Manju.
     My learned     brother  Fazal     Ali,  J.  has    observed  as
follows at pages 3 and 96 of his judgment:
      "On the  other hand  the plea     of the     defence was
     that while     there was  a strong  possibility  of  Manju
     having been  ill-treated and uncared for by her husband
     and  her    in-laws,  being      a  highly   sensitive     and
     impressionate woman, she committed suicide out of sheer
     depression and  frustration arising  from an  emotional
     upsurge." (P-3)
      "On the  other hand  this  circumstance  may    have
     prompted her to commit suicide, for if a child was born
     to her, in view of her ill-treatment by her husband and
     her in  laws the  child may not get proper upbringing".
     I do not recollect any admission by Mr. Ram Jethmalani,
learned counsel     for the  appellant in    the  course  of     his
arguments about     any cruelty  or ill-treatment    to Manju the
part of     the appellant or his parents. The evidence of P.W.3
is that     during Manju's     second     visit    to  Beed  after     her
marriage with  the appellant she found Manju not quite happy
and very much afraid of the appellant. The evidence of P.W.5
is  that   during  Manju's   second  visit  to    Beed,  Manju
complained to her about the appellant returning home late in
the night  and avoiding     to have  a talk  with her  and that
Manju told  her that  she was  afraid of  the appellant     and
apprehended danger  to her  life at  his hands.     The further
evidence of the P.W.5 is that during her third visit to Beed
she inferred from Manju's face a spell of fear. The evidence
of P.W.6  is that during Manju's second visit to Beed, Manju
told her that the appellant used to leave the house early in
the morning  and return     late at  night under the pretext of
work in     his factory  and that he was even reluctant to talk
with her.  P.W.6 has  stated that during Manju's third visit
to Beed     she was  extremely uneasy.  disturbed and  under  a
spell of  fear, that  Manju told  her the  appellant did not
relish even  her question  as to  why he was not prepared to
have a simple talk with her, and that
during    her   third  visit  to    Beed,  Manju  expressed     her
unwillingness to go to Pune when Birdhichand went to Beed on
2.6.1982 for  taking her  to Pune. To the same effect is the
evidence of  P.W   s. 2     and 20     about how  Manju looked  in
spirit and  what she  stated during  her last two visits. My
learned brother     Fazal Ali, J. has rightly rejected the oral
evidence of  P.Ws. 2,  3, 5,  6 and 20. He has extracted the
relevant portions  of the  letters Exs. 30, 32 and 33 in his
judgment and  has observed  at page  23 that one thing which
may be    conspicuously noticed  in Ex.  30 is  that Manju was
prepared to  take all  the  blame  on  herself    rather    than
incriminating her  husband or  his rents  at page 24 that it
was conceded  by the  learned Additional  Solicitor  General
that the relevant portion of Ex.32 does not refer to any ill
treatment of  Manju by    the appellant or his parents; and at
page 30     that it  can be  easily inferred  from Ex.  33 that
Manju  did  not     have  any  serious  complaint    against     the
appellant except  that she  was not getting proper attention
which she  deserved from  him. These  three letters  do     not
establish that Manju made any complaint of any ill-treatment
by the    appellant or  his parents.  In my  view, these three
letters and  the aforesaid  oral evidence  of P.Ws. 2, 3 5 6
and 20    are inadmissible  in evidence  under s. 32(1) of the
Evidence Act  for  reasons  to    be  given  elsewhere  in  my
judgment. Thus    there is no acceptable evidence on record to
show that  either the  appellant or  his  parents  ill-treat
Manju. The  High Court    also has  not  found  any  such     ill
treatment in  its judgment. On the other hand, what has been
found by  the High Court in para 104 of its judgment is that
the  appellant    treated     Manju    contemptuously.     Even  while
setting out  the case  of the prosecution the High Court has
stated in para 7 of its judgment that it is alleged that the
appellant started giving contemptuous treatment to Manju and
in para     20 that  the appellant     has denied in his statement
recorded under    s.313 Cr.P.C.  that Manju  was being treated
contemptuously. No question has been put to the appellant in
the course  of his examination under s.313 Cr.P.C. about any
ill treatment  of Manju     by the appellant or his parents. My
learned brother     Fazal Ali,  J. has referred in pages 97 and
98 of  his judgment to this Court's decisions in Fateh Singh
Bhagat Singh v. State of Madhya Pradesh, Shamu Babu Chaugale
v. State  of Mahararstra and Harijan Megha Jesha v. State of
Gujarat(3) and    has observed at page 98 of his judgment that
circumstance not  put to  the appellant     in his     examination
under s.  313 Cr.PC.  have to  be completely  excluded    from
consideration in view of those decisions. Therefore, since
no question  has been put to the appellant in this regard in
the course  of his  examination under s 313 Cr.P.C.. even if
there is  any evidence    about any  ill-treatment of Manju by
the appellant  or  his    parents     it  has  to  be  completely
excluded from consideration. I felt it necessary to say this
in my  judgment since  I  think     that  in  fairness  to     the
appellant it has to be done.
     My learned     brother Fazal    Ali, J. has set out the case
of the prosecution in so far as it connects P,W. 37 with the
appellant at page 3 of his judgment where he has stated that
the positive  case of  the prosecution is that the appellant
was not     at all interested in Manju and had illicit intimacy
with P.W.37. On this point there is the evidence of P.Ws. 3,
5 and  6. The  evidence of  P.W.3 is  that during her second
visit to  Beed, Manju  informed her that the appellant had a
girl-friend by    name Ujwala  Kothari and  that he introduced
her (Ujvala  Kothari) to  her and  told her  that she should
learn from  Ujvala Kothari  about how she should behave with
him. The  evidence of P.W.5. is that during her second visit
to Beed,  Manju told  her that    the appellant  had an affair
with a    girl by     name Ujvala  Kothari and  that she had seen
Ujvala's latter addressed to the appellant and an incomplete
letter of  the appellant  addressed to    that girl.  No    such
letters have  been produced  in evidence.  The    evidence  of
P.W.6 is  that during  her second  visit to Beed, Manju told
her that  the appellant     had an     affair with  a girl by name
Ujvala Kothari    and also  introduced that girl to her in the
Pearl Hotel  saying that  she has  complete command over him
and that  she (Manju)  should take  lessons from her (Ujvala
Kothari) about    how she     should behave with him. There is no
other  evidence     regarding  this  alleged  illicit  intimacy
between the  appellant    and  P.W.37.  This  alleged  illicit
intimacy is  totally denied  not only  by the  appellant but
also by     P,W.37. The  alleged incident    in the    Pearl Hotel,
according to  the case    of the    prosecution  took  place  on
17.3.1982. But    there is  no reference    whatever to any such
incident in  any of  the subsequent  three letters of Manju,
Exs. 30,  32 and  33, dated 25.4.1982, 8.5.1982 and 8.6.1982
respectively. My  learned brother  Fazal Ali, J. has rightly
rejected the  oral evidence not only of P.Ws. 3, 5 and 6 but
also of     P.Ws.2 and  20 as  untrustworthy at  page 65 of his
judgment. However, at page 68 he has stated that it has been
proved to  some extent    that the  appellant had some sort of
intimacy with  Ujvala Kothari  and  it    had  embittered     the
relationship between the appellant and Manju. In my view, as
already stated, the oral evidence of P.Ws. 2, 3, 5, 6 and 20
about what  Manju is  alleged to  have told them against the
appellant and or his
family, and  even  her    letters     Exs.  30,  32    and  33     are
inadmissible in     evidence under s.32(1) of the Evidence Act.
Thus, there is absolutely no reliable or admissible evidence
on record  to show  that the appellant had any intimacy with
Ujwala (P.W.37).  I am,     therefore, unable to share the view
of my learned brother Fazal Ali, J. that the prosecution has
proved to  some extent    that the  appellant had some sort of
intimacy with  P.W.37 and it had embittered the relationship
between the  appellant and Manju. I think that I am bound to
say this  in fairness  to not  only the     appellant but    also
P.W.37 who, on the date of her examination in the Court, was
a 19  years old     student and has stated in her evidence that
she had     known the  appellant only  as the  President of the
Rajasthan Youth     Club in the year 1979 when she was a member
of that Club for about 5 or 6 months in that year.
     My learned     brother Fazal    Ali, J.     has referred to the
oral evidence  of P.Ws.2,  3, 5,  6  and  20  about  Manju's
alleged complaint  against the    appellant and or his parents
and also  to the  contents of Manju letters, Exs. 30, 32 and
33. I  have mentioned  above the  gist of that oral evidence
and those  three letters.  My learned  brother has  held the
said oral evidence and those three latters to be. admissible
under s.32(1)  of the  Evidence Act while rejecting the oral
evidence to  those five     witnesses as untrustworthy at pages
64 and    65 of  his judgment,  mainly on     the ground that the
oral evidence  is quite     inconsistent with  the     spirit     and
contents of  those letters.  He appears     of have relied upon
those three  letters for two purposes, namely, rejecting the
oral evidence  of those     five witnesses as untrustworthy and
supporting the    defence version     that it  may be  a case  of
suicidal death.     In my    opinion the  oral evidence  of those
five witnesses about what Manju is alleged to have told them
against the  appellant and  or his  parents  and  the  three
letters, are  inadmissible under  s. 32(1)  of the  Evidence
Act, which reads thus:
      "32. Statements,  written or    verbal, of  relevant
     facts made     by a  person who  is dead, or who cannot be
     found, or    who has become incapable of giving evidence,
     or whose  attendance  cannot  be  procured     without  an
     amount  of      delay     or   expense    which,     under     the
     circumstances  of     the  case,  appears  to  the  Court
     unreasonable, are    themselves  relevant  facts  in     the
     following cases:-
     (1)   When the  statement is made by a person as to the
      cause     of   his  death,   or    as  to    any  of     the
      of the transaction which resulted in his death, in
      cases in  which the  cause of     that person's death
      comes into question".
     The alleged  oral statements of Manju to P,Ws. 2, 3, 5,
6 and  20 are  said to    have been made during her second and
third visits  to Beed in the end of February 1982 and end of
May 1982  respectively before  her death during the night of
11/12.6.1982. She  had written    the letters, Exs. 33, 30 and
32 on  25.4.1982, 8.5.1982  and 8.6.1982  as stated earlier.
The oral evidence of these witnesses and these three letters
are not as to the cause of Manju's death or as to any of the
circumstances of the transaction which resulted in her death
during that  night. The     position of  law  relating  to     the
admissibility of evidence under s. 32(1) is well settled. It
is, therefore,    not necessary  to refer     in  detail  to     the
decisions of  this Court or of the Privy Council or our High
Courts. It would suffice to extract what the learned authors
Woodroffe and Amir Ali have stated in their Law of Evidence,
fourteenth edition  and Ratanlal  and Dhirajlal in their Law
of Evidence  (1982) reprint).  Those propositions  are based
mostly on  decisions of     courts for which reference has been
given at the end. They are these:
     Woodroffe &  Amir Ali's  Law  of  Evidence,  fourteenth
edition. Page- 937
      'Hearsay is  excluded because it is considered not
     sufficiently trustworthy.    It is  rejected     because  it
     lacks the    sanction of  the test  applied to admissible
     evidence, namely,    the oath  and cross-examination. But
     where there  are special  circumstances  which  give  a
     guarantee of  trustworthiness to  the testimony,  it is
     admitted  even  though  it     comes    from  a     second-hand
      "What is  relevant and admissible under clause (1)
     of this section (Section-32) is the statements actually
     made by the deceased as to the cause of his death or of
     the circumstances    of the transaction which resulted in
     his death".
      "A statement    must be     as  to     the  cause  of     the
     declarant's death    or as to any of the circumstances of
     the transaction  which resulted  in his  death i.e. the
     cause and    circumstances of  the death and not previous
     or subsequent transaction,
     such independent  transactions being  excluded  as     not
     falling within the principle of necessary on which such
     evidence is  received. When  a person  is not proved to
     have died    as a  result of     injuries  received  in     the
     incident in  question, his     statement cannot be said to
     be a  statement as     to the     cause of his death or as to
     any of  the circumstances    which resulted in his death.
     (AIR 1964    SC 900). Where there is nothing to show that
     the  injury   to  which   a  statement   in  the  dying
     declaration  relates  was    the  cause  of    the  injured
     person's death or that the circumstances under which it
     was received  resulted in    his death,  the statement is
     not admissible under this clause". (AIR 25 Bombay 45).
      "Circumstances of the transaction resulting in his
     death; This  clause refers     to two kinds of statements:
     (i) when  the statement  is made  by a person as to the
     cause of  his death  or (ii) when the statement is made
     by a  person as  to any  of the  circumstances  of     the
     transaction which    resulted in  his  death.  The  words
     'resulted in his death' do not mean 'caused his death'.
     The  expression   'any  of     the  circumstances  of     the
     transaction which    resulted in  his death'     is wider in
     scope than     the expression 'the cause of his death. The
     declarant need  not  actually  have  been    apprehending
     death." (AIR 1964 M.P. 30).
      "The expression 'circumstances of the transaction'
     . occurring  in s.32,  clause (1)    has been a source of
     perplexity to Courts faced with the question as to what
     matters  are  admissible  within  the  meaning  of     the
     expression. The  decision of  their  Lordships  of     the
     Privy Council  in Pukala  Narayanaswanmi v. Emperor (LR
     66 IA  66) sets  the limits  of the  matters that could
     legitimately be  brought within  the  purview  of    that
     expression. Lord  Atkin, who  delivered the judgment of
     the Board, has, however, made it abundantly clear that,
     except in    special circumstances  no circumstance could
     be a  circumstance of  the transaction  if     it  is     not
     confined to  either the  time actually  occupied by the
     transaction resulting  in death  or the  sense in which
     the actual     transaction resulting    in death took place.
     The special  circumstance permitted  to transgress     the
     time factor  is,  for  example,  a     case  of  prolonged
     poisoning, while the special circumstance
     permitted to  transgress the  distance factor  is,     for
     example, a     case of decoying with intent to murder. But
     the  circumstances      must    be   circumstances  of     the
     transaction and  they must have some proximate relation
     to the actual occurrence."
      "Circumstances of  the transaction' is a phrase no
     doubt that conveys some limitations. It is not as broad
     as the analogous use in 'circumstantial evidence' which
     includes the evidence of all relevant factors. It is on
     the   other    hand   narrower   than   'res   gestae'.
     Circumstances must     have some proximate relation to the
     actual occurrence, though, as for instance, in the case
     of prolonged  poisoning they may be related to dates at
     a considerable  distance from  the date of actual fatal
      "The Supreme    Court in  the case  of Shiv Kumar v.
     State of  U.P. (1966  Criminal Appeal  R. (SC) 281) has
     made similar  observations that  the circumstances must
     have some proximate, relation to the actual occurrence.
     and  that     general  expressions    indicating  fear  or
     suspicion,     whether   of  a  particular  individual  or
     otherwise and  not directly  to the  occasion of  death
     will not be admissible".
                           Page -949
      "The clause  does  not  permit  the  reception  in
     evidence of  all such statement of a dead person as may
     relate to    matters having a bearing howsoever remote on
     the cause    or the    circumstances of  his death.  It  is
     confined to  only such  statements as relate to matters
     so closely     connected with the events which resulted in
     his death    that may  be said to relate to circumstances
     of the  transaction which resulted in his death. (LR 66
     IA     66).    'Circumstances    of   the  transaction  which
     resulted in  his death' means only such facts or series
     or facts  which have  a direct  or organic     relation to
     death. Hence statement made by the deceased long before
     the incident  of murder  is not  admissible". (1974 CLJ
     (MP) 1200).
     Law of Evidence by Ratanlal & Dhirajlal (1982 Reprint)
                             Page 94
      "Circumstances   of    the   transaction;   General
     expressions indicating  fear or  suspicion whether of a
     particular individual  or otherwise  and  not  directly
     related  to   the    occasion   of  the   death  are     not
     admissible" (LR 66 IA 66)(18 Part 234).
                             Page 95
      "Circumstances must  have some  proximate relation
     to the actual occurrence and must be of the transaction
     which resulted  in the  death  of    the  declarant.     The
     condition of  the admissibility of the evidence is that
     the cause of the declarant's death comes into question.
     It is  not necessary that    statement must be made after
     the transaction  has taken     place or  that     the  person
     making it must be near death or that the 'circumstance'
     can only include the acts done when and where the death
     was caused.  -Dying declarations  are admissible  under
     this clause".
     The alleged  oral statements  of Manju and what she has
stated in  her letters,     Exs 30,  32 and  33 may  relate  to
matters perhaps having a very remote bearing on the cause or
the circumstances  of her  death. Those circumstances do not
have  any   proximate  relation     to  the  actual  occurrence
resulting in  her death     due to     potassium  cyanide  poison,
though, as  for instance  in the case of prolonged poisoning
they may  relate to dates considerably distant from the date
of the    actual fatal  dose. They  are general impressions of
Manju indicating  fear or suspicion. whether of a particular
individual or  otherwise and  not directly  related  to     the
occasion of her death. It is not the case of the prosecution
that the  present case    is one of prolonged poisoning. Since
it is  stated by  the learned authors woodroffe and Amir Ali
in their  tratise at  page 947    that the  decision of  their
Lordships of  the Privy     Council in  Pakala Narayanaswami v.
Emperor (1)  sets  the    limit  of  the    matters     that  could
legitimately be brought within the purview of the expression
'circumstances of  the    transaction  and  that    decision  is
referred to  in several     other decisions  of our  courts, it
would be  necessary to    extract the relevant passage in this
judgment. The learned Lords have observed at pages 75 and 76
     "A variety     of questions  has been mooted in the Indian
     courts as    to the    effect of  this section. It has been
     suggested that  the statement  must be  made after     the
     transaction has
     taken place,  that the  person making it must be at any
     rate near    death, that  the  "circumstances"  can    only
     include the  acts done  when and  where the  death     was
     caused. Their Lordships are of opinion that the natural
     meaning of     the words used does not convey any of these
     limitations. The statement may be made before the cause
     of death  has arisen,  or before  the deceased  has any
     reason to    anticipate being  killed. The  circumstances
     must  be  circumstances  of  the  transaction:  general
     expression indicating  fear of  suspicion whether    of a
     particular individual  or otherwise  and  not  directly
     related to     the occasion  of  the    death  will  not  be
     admissible. But statements made by the deceased that he
     was proceeding to the spot where he was in fact killed,
     or as  to his reasons for so proceeding, or that he was
     going to  meet a particular person, or that he had been
     invited by     such person  to meet him would each of them
     be circumstances  of the  transaction, and     would be so
     whether the  person was  unknown, or was not the person
     accused. Such  a statement might indeed be exculapatory
     of     the   person    accused.   "Circumstances   of     the
     transaction" is  a phrase    no doubt  that conveys    some
     limitations. It is not as broad as the analogous use in
     "circumstantial evidence"    which includes    evidence  of
     all relevant  facts. It  is on  the other hand narrower
     than "re gestae" Circumstances most have some proximate
     relation to  the  actual  occurrence:  though,  as     for
     instance in  a case of prolonged poisoning, they may be
     related to     dates at  a considerable  distance from the
     date of the actual fatal dose."
     I am,  therefore of  the opinion that the oral evidence
of these witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju
is alleged  to have  told them    against the appellant and or
his parents  and what the has stated in her letters, Exs. 30
32 and 33, are inadmissible in evidence under s.32(1) of the
Evidence Act  and cannot  be looked into for any purpose. At
this stage.  it may  be     stated     that  Mr.  Ram     Jethmalani,
learned counsel     for the  appellant submitted  that the said
oral evidence  of those five witnesses is inadmissible under
s. 32(1) though at first he sought to rely upon the letters,
Exs 30,     32 and 33 which seem to lend support to the defence
theory that  it may  be a  case of  suicide,  he  ultimately
conceded that  what applies to the relative oral evidence of
P.Ws. 2,  3, 5, 6 and 20 would equally apply to the letters,
Exs. 30, 32 and 33 and that they too would be inadmissible
in  evidence.  The  Additional    Solicitor  General  who     had
strongly relied     upon the  said oral  evidence of these five
witnesses and  the letters,  Exs. 30,  32 and  33  at  first
proceeded in the end of his arguments on the basis that they
are inadmissible  in evidence.    In these circumstances, I am
firmly of  the opinion that the oral evidence of P.Ws. 2, 3,
5, 6  and 20  about what  Manju is alleged to have told them
against the  appellant and  or his  parents as    well as     the
letters, Exs.  32, 32  and 33  are inadmissible     in evidence
under s. 32(1) of the Evidence Act.
     About Dr.    Banerji (P.W.  33) who    conducted autopsy on
the body  of Manju what my learned brother Fazal Ali, J. has
said in his judgment is this:
     "In column     5 of  postmortem  notes  Dr.  Banerjee     has
     clearly written 'can be a case of suicidal death' which
     indicates that  in the  absence of     the report  of     the
     Chemical Examiner    he was    of the opinion that it could
     have been a case of suicide. In his evidence P.W 33 has
     stated that  in Ex.  128 in  column No.  5 the contents
     scored out read 'time since the death' and since it was
     repeated in  the next  line he  scored out the words in
     the second     line. Despite    persistent cross-examination
     the Doctor     appears to  have stuck     to  his  stand.  It
     cannot, therefore,     be gainsaid that this matter was of
     vital importance  and expected  the High  Court to have
     given serious  attention to  this aspect  which goes in
     favour of the accused.... In the original while filling
     up the  said column  the Doctor  appears to have scored
     out something. The filled up entry appears thus:-'mouth
     is closed    with tip  (something scored out) seen caught
     between the teeth. But in the carbon copy of the report
     which was sent to the Chemical Examiner (Ex. 132 he has
     written 'caught  between the  teeth' in ink; but in the
     original there  is something else. This is fortified by
     the fact  that the     copy of the report actually sent to
     the   Chemical    Examiner      does     not   contain     any
     interpolation against the 'said column where the filled
     up entry  reads 'inside  mouth'..    These  circumstances
     show that Dr. Banerjee (P.W.33) tried to introduce some
     additional facts regarding the position of the tongue .
     . .  This, however,  throws a  cloud of  doubt  on     the
     correctness or  otherwise of the actual reports written
     by him  and the  one that    was  sent  to  the  Chemical
     Examiner. It  is obvious  that in the carbon copy which
     was retained by the Doctor
     the entries must have been made after the copy was sent
     to the Chemical Examiner".
     I entirely     agree with  these findings  of     my  learned
brother Fazal Ali, J. But I am unable to share his view that
these "circumstances are not of much consequence the opinion
of the Doctor was that Manju died by forcible administration
of  potassium  cyanide    or  by    the  process  of  mechanical
suffocation and     that this  aspect need not detain the Court
any further because the High Court has not accepted the case
of mechanical  suffocation" and     that  though  a  number  of
comments were  made on    behalf of  the appellant  about     Dr.
Banerji's integrity  and incorrect  report he  does not find
any substance  in those     contentions subject  to what he has
stated about him.
     The fact  that the     High Court has rejected the case of
the prosecution     based on  Dr. Banerji's report and evidence
that it was also a case of mechanical suffocation is not one
that could  be taken  into  consideration  as  a  mitigating
circumstance in     judging the  conduct of  the Doctor who had
conducted the  autopsy in  a case  of suspicious  death. The
fact that  he had  reserved his     opinion about    the cause of
death and  had then  noted in his report that the tongue was
inside the  mouth but  has interpolated     the words 'mouth is
closed with  tip (something  scored out) seen caught between
the teeth' and 'caught between the teeth' only after receipt
of the    Chemical Examiner's  report to support the view that
it was    also a    case of     mechanial  suffocation,  is  not  a
mitigating circumstance in favour of P: W. 33 The Doctor had
scored out  the words  'can be a case of suicidal death' and
has persisted  in his  reply that he had scored out only the
words 'time since the death' which he claims to have written
twice, which  explanation has  been rightly  rejected by  my
learned brother     Fazal Ali.  J. The conduct of the Doctor in
making these  later inter  polations and  alterations in the
records     of  the  postmortem  examination  in  the  case  of
suspicious death  in which  the appellant has been sentenced
to  death   by    the   two  courts  below,  deserves  serious
condemnation. The Doctor has tampered with material evidence
in the    case of     alleged murder,  may be  at the instance of
somebody else,    ignoring the  probable consequences  of     his
act. In     these circumstances,  I am  of the opinion that Dr.
Banerji (P.W.33)  is a    person who  should not    be entrusted
with any  serious and  responsible work     such as  conducting
autopsy in  the public    interest. In this case the appellant
would have  gone to  gallows on the basis of the evidence of
P.W.33 as he would have the
court to  believe it,  and theo     ther evidence,     if they had
been accepted,    but they  have been  rightly discarded by my
learned brother     Fazal Ali,  J. as  unworthy  of  acceptance
against the appellant.
     I agree  with my learned brother Fazal Ali, J. that the
High Court  has clearly misdirected itself on many points in
appreciating the  evidence and    has thus  committed a  gross
error of law.
     I feel  that something has to be stated in the judgment
in this case about the way the Investigating officer and the
learned Additional  Sessions Judge,  Pune who  had tried the
case had  gone about  a their  business.  Charge  No.  3  is
against the  third accused for instigating Mohan Asava (P.W.
30) to    give false  information to  the police regarding the
offence of  murder namely,  that the  appellant found  Manju
dead when he tried to wake her up at 5.30 a.m. on 12.6.1982.
It is  the  case  of  the  prosecution    itself    that  P.W.30
informed the  police accordingly  at 7    or 7.15 a.m. on that
day after  receipt of telephonic instructions from the third
accused at  6.30 a.m.  though he  had himself  seen the dead
body of     Manju earlier    in the appellant's flat where he was
taken by the third accused who had gone to his flat at about
4 or  4.15 a.m. and informed him that Manju was dead, and he
(P.W.30) left the appellant's flat a little later at about 5
or 5.15     a. m. after telling Dr. Lodha (P.W. 34) that he was
going to  report to  the police.  Thus, it would appear that
the case  of the  prosecution itself  is that P.W. 30 is the
principal offender  as regards    giving false  information to
the police  about the  death of Manju. Yet the Investigating
officer had  not filed    any charge-sheet against P.W. 30 but
has conveniently  treated him  as a prosecution witness. The
Additional Sessions Judge, Pune appears to have exercised no
control over the evidence that was tendered in this case and
to have     been oblivious     of the     scope of the examination of
the accused under. s. 313 Cr. P.C. This is reflected by some
of the    questions put  to the  appellant.  Question  No.  24
relates to  P.W. 20  not maintaining good health and falling
ill now and then. Question No. 25 relates to P.W. 22 being a
patient of  high blood pressure and having suffered a stroke
of paralysis  7 years  earlier. Question No. 30 relates to a
reception held    at Pune     on 13.2.1982 in connection with the
appellant's marriage  with Manju. Question No. 32 relates to
P.W.  6      asking  the  appellant's  father  Birdhichand     for
permission to  take Manju  to Beed  with her  when the party
from P.W.2's  side started  from Pune for Beed on 14.2.1982.
Question No.  115 relates  to P.W.30  indulging in  criminal
acts of     rowdyism, tax    evasion etc,  and being     known as  a
contact-man of the police. S. 313 Cr. P. C.
lays down  that in every inquiry or trial for the purpose of
enabling the  accused personally to explain any circumstance
appearing in  the evidence  against him the Court may at any
stage, without    previously warning  the     accused,  put    such
questions to him as the court considers necessary and shall,
after the  witnesses for  the prosecution have been examined
and before  he is  called  for    his  defence,  question     him
generally on  the case. It is clear that the evidence on the
basis of  which the  above questions  have been     put to     the
appellant is  wholly irrelevant     and that those questions do
not relate  to any  circumstance appearing  in the  evidence
against the appellant. The learned Additional Sessions Judge
was bound  to  exercise     control  over    the  evidence  being
tendered  in  his  court  and  to  know     the  scope  of     the
examination of the accused under s. 313 Cr. P. C.
     In the  end, as I said earlier, I agree with my learned
brother Fazal  Ali, J.    that the  appeal has  to be allowed.
Accordingly I  allow the appeal and set aside the conviction
and sentence  awarded to  the appellant and direct him to be
set at liberty forthwith.
     SABYASACHI MUKHARJI,  J. I have the advantage of having
read the  judgments prepared  by my  learned brothers  Fazal
Ali, J.     and Varadarajan, J. I agree with the order proposed
that the  appeal should     be allowed and the judgments of the
courts below  should be     set aside  and the appellant Sharad
Birdhichand Sarda be acquitted of the charges framed against
him and     he should be released forth with. I do so with some
hesitation and    good deal  of anxiety, because that would be
interfering with the concurrent findings by two courts below
on a pure appreciation of facts. The facts and circumstances
have been  exhaustively and  very minutely  detailed in     the
judgment of my learned Brother Fazal Ali, J. Those have also
been set out to certain extent by my Brother Varadarajan, J.
It will     therefore serve  no useful  purpose to repeat these
here. It is necessary, however, for me to make the following
     It is  a case  of circumstantial  evidence. It  is also
undisputed that     the deceased  died of    potassium cyanide on
the night  of 11th  and 12th  June. 13th  June was  the date
fixed for  the betrothal of the sister of the accused. There
is no  evidence that  the accused  was in any way hostile or
inamicable towards  his sister.     The  deceased    had  a    very
sensitive mind    and occasionally  had suffered    from  mental
depression partly  due to  the fact  of adjusting  in a     new
family and  partly due    to her    peculiar mental     make up but
mainly perhaps    due to    the family  set up  of    the  accused
husband. There is no direct
evidence of  administering  poison.  There  is    no  evidence
either way  that either     the deceased  or the accused had in
her or    his  possession     any  potassium     cyanide.  In  these
circumstances my  learned brothers,  in view  of the  entire
evidence and  the letters and other circumstances, have come
to the    conclusion that     the guilt  of the  accused has     not
proved beyond all reasonable doubt.
     As I  have     mentioned  before,  I    have  read  the     two
judgments by  my two  learned brothers    and on    some  points
namely, four points mentioned in the judgment prepared by my
Brother Varadarajan.  J., he  has expressed  views different
from those expressed by Fazal Ali, J. and these are:-
     (1)  ill-treatment of Manju by the appellant;
     (2)  intimacy of the appellant with Ujwala (P.W.37);
     (3)  admissibility of  Manju's letters  Exs. 30, 32 and
      33 and  the oral  evidence of P.Ws. 2, 3, 5, 6 and
      20 about  the alleged     complaints  made  by  Manju
      against  the     appellant  under   s.32(1)  of     the
      Evidence Act; and
     (4)  conduct of  Dr. Banerji (P.W.33) who had conducted
      autopsy on the body of Manju.
     On the  three points,  namely ill-treatment of Manju by
the  appellant,      intimacy  of    the  appellant    with  Ujwala
(P.W.37) and  the conduct  of Dr.  Banerji (P.W.33)  who had
conducted autopsy  on the  body of Manju, I would prefer the
views expressed     by my    learned brother Fazal Ali, J. On the
question of admissibility of Manju's letters Exs. 30, 32 and
33 and    the oral  evidence of  P.Ws. 2, 3, 5, 6 and 20 about
the alleged  complaints made  by Manju    against the  accused
under section  32(1) of the Evidence Act, my learned brother
Fazal Ali, J. has observed about section 32(1) as follows:-
      "The test  of proximity  cannot be  too  literally
     construed and  practically reduced     to a  cut-end-dried
     formula of     universal application    so as to be confined
     in a  straitjacket. Distance  of time  would depend  or
     vary with the circumstances of each case. For instance,
     where death  is a    logical culmination  of a continuous
     drama long     in process  and is, as it were, a finale of
     the story,     the statement    regarding each step directly
     connected with the end of the drama
     would be  admissible because the entire statement would
     have to  be read  as an organic whole and not torn from
     the  context.   Sometimes    statements  relevant  to  or
     furnishing an  immediate motive  may also be admissible
     as being  a part  of the  transaction of  death. It  is
     manifest that  all these  statements come to light only
     after the    death of the deceased who speaks from death.
     For instance, where the death takes place within a very
     short time     of the     marriage or the distance of time is
     not spread     over more than 3-4 months the statement may
     be admissible under s.32." (Emphasis by me).
     I would, however, like to state here that this approach
should be  taken with  great deal  of caution  and care     and
though I respectfully agree with Fazal Ali, J. that the test
of  proximity    cannot    and  should  not  be  too  literally
construed and  be reduced  practically    to  a  cut-and-dried
formula of  universal application  but it must be emphasised
that whenever it is extended beyond the immediate, it should
be the    exception and  must be    done with very great caution
and care.  As a     general proposition, it cannot be laid down
for all purposes that for instance where a death takes place
within a  short time of marriage and the distance of time is
not spread over three or four months, the statement would be
admissible under  section 32  of the  Evidence Act.  This is
always    not  so     and  cannot  be  so.  In  very     exceptional
circumstances like  the circumstances  in the  present    case
such statements     my be    admissible  and     that  too  not     for
proving the positive fact but as an indication of a negative
fact, namely  raising some  doubt about     the  guilt  of     the
accused as in this case.
     For the purpose of expressing my respectful concurrence
with the views of Justice Fazal Ali, it is not necessary for
me to  agree and  I do    not do    so  with  all  the  detailed
inferences that     my learned  brother has  chosen to  draw in
respect of  the several     matters from  the exhibits  in this
case. I     am also  with respect    not prepared to draw all the
inferences that my learned brother has chosen to draw in the
paragraph beginning with the expression "the careful perusal
of this     letter revealed  the following     features". This  my
learned brother     was  speaking    in  respect  of     Ex.  33.  I
however, respectfully  agree with my learned brother when he
says that  a close  analysis and  ading of the letter namely
Ex. 33 clearly indicates:
     (a)  that the deceased was extremely depressed.
     (b)  that there was a clear tendency resulting from her
      psychotic  nature   to  end  her  life  or  commit
     Similarly I  have some  hesitation     about    the  English
rendering of  Ex. 32  which is    letter dated  8th June, 1982
which has  been set  out by my learned brother and which has
been set  out in  his judgment which contains the expression
"I do  not know     why there is such a dirty atmosphere in the
house?" As  the original letter was read out in Court and we
had the     advantage of  that, I    am inclined to take the view
that the correct and the more expressive expression would be
"I do  not know     why there  is such a foul atmosphere in the
house?" Read  in that  light and  in the  context  of  other
factors, this  letter causes  some anxiety.  It the deceased
was sensing  foul atmosphere,  why was it? But this again is
only a doubt. It does not prove the guilt of the accused.
     In     view    of  the      fact    that   this  is     a  case  of
circumstantial evidence and further in view of the fact that
two views  are possible     on  the  evidence  on    record,     one
pointing to  the guilt    of the    accused and  the  other     his
innocence, the    accused is  entitled to     have the benefit of
one which is favourable to him. In that view of the matter I
agree with my learned brothers that the guilt of the accused
has not been proved beyond all reasonable doubt.
     In the  premises as  indicated before, I agree with the
order propose

Appeal allowed.

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