Case BriefsSupreme Court

Supreme Court: In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak.N regarding offences under Section 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Brief Facts

On 05.09.2017 in which Gauri Lankesh, who was a leading journalist, was shot dead by certain unknown assailants near her house at Rajarajeshwari Nagar, Bengaluru.

In absence of at least two chargesheets filed against the writ petitioner Mohan Nayak. N in respect of specified offences and of which cognizance had been taken by the competent Court as required to attract to offence of organized crime, the High Court noticed that he was not engaged in continuing unlawful activity. On this finding, the High Court concluded that Mohan Nayak.N cannot be proceeded further and thus, partly allowed the writ petition by not only quashing the order of the Commissioner of Police, Bengaluru City according approval for invoking Section 3 of the 2000 Act, but also the chargesheet filed against the writ petitioner-Mohan Nayak.N for offences punishable under Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act.


Finding the said order erroneous, the Supreme Court said that the High Court, without analysing the material presented along with chargesheet on the basis of which cognizance has been taken by the competent Court including against Mohan Nayak. N, concerning commission of organized crime by the organized crime syndicate of which he is allegedly a member, committed manifest error and exceeded its jurisdiction in quashing the chargesheet. 

It was further explained that the fact that the Investigating Agency was unable to collect material during investigation against Mohan Nayak.N for offence under Section 3(1) of the 2000 Act, does not mean   that the information regarding commission of a crime by him within the meaning of Section 3(2), 3(3) or 3(4) of the 2000 Act cannot be recorded and investigated against him as being a member of the organized crime syndicate and/or having played role of an abettor, being party to the conspiracy to commit organized crime or of being a facilitator, as the case may be. For the latter category of offence, it is not essential that more than two chargesheets have been filed against the person so named, before a competent court within the preceding period of ten years and that court had taken cognizance of such offence.  That requirement applies essentially to an offence punishable only under Section 3(1) of the 2000 Act.

As regards offences punishable under Section 3(2), 3(3), 3(4) or 3(5), it can proceed against any person  sans  such previous offence registered against him, if there is material to indicate that he happens to be a member of the organized crime syndicate who had committed the offences in question and it can be established that there is material about his nexus with the accused who is a member of the organized crime syndicate.

It is important to note that in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Supreme Court had held that

“…in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organised crime, if a nexus either with an accused who is a member of an “organised crime syndicate” or with the offence in the nature of an “organised crime” is established   that would attract the invocation of Section 3(2) of MCOCA.”

Explaining the law, the Court said that while considering the proposal for grant of prior approval under 25 Section 24(1)(a) of the 2000 Act, what is essential is the satisfaction of the competent authority that the material placed before him does reveal presence of credible information regarding commission of an offence of organized crime by the organized crime syndicate and, therefore, allow invocation of Section 3 of the 2000 Act.  As a consequence of which, investigation of that crime can be taken forward by the Investigating Agency and chargesheet can be filed before the concerned Court and upon grant of sanction by the competent authority under Section 24(2), the competent Court can take cognizance of the case.

At the stage of granting prior approval under Section 24(1)(a) of the 2000 Act, therefore, the competent authority is not required to wade through the material placed by the Investigating Agency before him along with the proposal for grant of prior approval to ascertain the specific role of each accused. The competent authority has to focus essentially on the factum whether the information/material reveals the commission of a crime which is an organized crime committed by the organized crime syndicate. In that, the prior approval is qua offence and not the offender as such.

“As long as the incidents referred to in earlier crimes are committed by a group of persons and one common individual was involved in all the incidents, the offence under the 2000 Act can be invoked.”

The prior sanction under Section 24(2), however, may require enquiry into the specific role of the offender in the commission of organized crime, namely, he himself singly or jointly or as a member of the organized crime syndicate indulged in commission of the stated offences so as to attract the punishment provided under Section 3(1) of the 2000 Act.  However, if the role of the offender is merely that of a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4) or 3(5), the requirement of named person being involved in more than two chargesheets registered against him in the past is not relevant.

“Regardless of that, he can be proceeded under the 2000 Act, if the material collected by the   Investigating Agency reveals that he had nexus with the accused who is a member of the organized crime syndicate or such nexus is related to the offence in the nature of organized crime. Thus, he need not be a person who had direct role in the commission of an organized crime as such.”


It was, hence, held that the conclusion reached by the High Court in partly allowing the writ petition filed by Mohan Nayak.N, is manifestly wrong and cannot be countenanced.

“In any case, the High Court has completely glossed over the crucial fact that the writ petition was filed only after the sanction was accorded by the competent authority under Section 24(2) and more so cognizance was also taken by the competent Court of the offence of organized crime committed by the members of organized crime syndicate including the writ petitioner — to which there was no challenge. The High Court has not analysed the efficacy of these developments as disentitling the writ petitioner   belated   relief claimed in respect of prior approval under Section 24(1)(a) of the 2000 Act.”

It was held that the High Court has clearly exceeded its jurisdiction in quashing the chargesheet filed against Mohan Nayak. N for offences punishable under Section 28 3(2), 3(3) and 3(4) of the 2000 Act at this stage [of prior approval under Section 24(1)(a)].

[Kavitha Lankesh v. State of Karnataka, DIARY NO.13309 OF 2021), decided on 21.10.2021]


For appellant: Senior Advocate Huzefa Ahmedi

For State: Advocate V.N. Raghupathy

For Respondent: Senior Advocate Basava Prabhu S. Patil

*Judgment by: Justice AM Khanwilkar


Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: The Division Bench of Justice R.N. Singh and A. K. Bishnoi, Member (A), settled a case of family pension and retirement dues in favour of widow of the deceased ASI who had committed suicide while in judicial custody. The Bench held,

“When subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.”

The applicant – widow of deceased Satbir Singh, ASI (Exe.) in Delhi Police, had challenged the impugned order whereby the deceased was dismissed from service by the respondents without conducting the regular departmental inquiry.

The deceased was implicated in case under Sections 302 of Penal Code, 1860 read with Sections 25/54/59 of Arms Act, pursuant to which he was placed under suspension w.e.f. 21-01-2019. A preliminary inquiry was conducted by the respondents and taking into account the allegations levelled against the deceased the respondents had dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution. Consequently, the deceased committed suicide while in judicial custody.

The applicant contended that though the respondents had heavily relied upon the report of the preliminary inquiry as well as the allegations levelled against the her husband, no copy of the said report was ever served to the deceased and so her husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR, therefore, the impugned order was illegal, bad in the eyes of law and not sustainable.

The Bench noticed that the deceased had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31-05-2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 08-06-2019 and whatever the applicant would have got as retirement/terminal benefits had also been taken away in view of the orders passed by the respondents.

Hence, the application was allowed and the impugned orders were set aside. The respondents were directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. [Santra Devi v. GNCT of Delhi, O.A. No.3170 of 2019, decided on 07-10-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance by:

For the Applicant: Advocate Sourabh Ahuja

For the GNCT of Delhi: Advocate Sameer Sharma

Case BriefsHigh Courts

Delhi High Court: While upholding the decision of Trial Court, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., reiterated that dying declaration of a person by itself, maybe sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Convict preferred the present appeal against the decision of lower court arising out of an FIR registered under Sections 302, 304B, 498A, 34, 174A of Penal Code, 1860 against the four accused, namely Rohtash, Santosh, Sumit and Jitender.

Appellant Sumit – accused 3 was found guilty of commission of offence of murder under Section 302 IPC. Other accused persons were acquitted of the offence for which they were charged.

Factual Background

Deceased and her sister were married to both sons of the accused Rohtash and few days after the marriage, father-in-law, mother-in-law, brother-in- law and the husband of the deceased started abusing and beating both the sisters and even damaged the articles given in the marriage. Later both the sisters were beaten and removed from the matrimonial house and the child aged 15-16 days was also snatched from the deceased. Though the child was given back to the mother after police intervention.

After a few days, the accused and other relatives settled the matter and took the sisters to the matrimonial home, where they were both beaten again. After a few days, while the accused Sumit was quarrelling with and beating the deceased, he poured kerosene on her, and she was set on fire. Later the neighbours doused the fire and took her to the hospital.

To the Executive Magistrate, deceased in her statement alleged that she was tortured for the demand of car and two fridges by all the accused persons and her husband had set her ablaze in the presence of other accused persons.

In view of the above-stated background,

Charges were framed against the accused persons, but they all pleaded ‘not guilty’.

Eye Witness (PW-3) sister of the deceased deposed about the incident and about the physical and mental torture to which the deceased was subjected by the accused persons.

Detailed Analysis

High Court stated that the trial court had acquitted the accused including the appellant in relation to the offence under Section 398A and 304B of the Penal Code, 1860.

In Court’s opinion, the testimony of the deceased’s sister was corroborated by the Dying Declaration of the deceased.

Supreme Court in the decision of Khushal Rao v. State of Bombay, AIR 1958 SC 22, held that the dying declaration of a person by itself, may be sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Bench found that the dying declaration of the deceased was very clear in the present matter.

What did she state?

She stated that yesterday i.e. 14.09.2012, in the night at about 10/10:30 P.M., her husband Sumit @ Vicky, her father in law – Rohtash, her mother in law – Santosh and brother in law – Jitender @ Tinku were all at home and her husband Sumit caught held of her hand and took her to the terrace and her husband poured kerosene oil on her and lit the matchstick in the presence of the other persons/ accused and put her on fire. Her elder sister was also on the terrace at that time, and she was shouting “bachao bachao”. However, nobody came to help her and they all went down. That is when her elder brother in law – Pradeep came to the terrace and with his help and the help of the neighbours, her brother in law Pradeep took her to the hospital. She stated that the accused used to demand dowry and harassed her for the same. They had demanded a car and two fridges in dowry and after her marriage she was being harassed for dowry. She stated that her husband – Sumit, mother in law – Santosh, father in law – Rohtash, and brother in law – Jitender @ Tinku were responsible for her condition.

Deceased’s statement on the aspect of the manner and cause of her death inspired the confidence of its voluntariness, truthfulness and correctness, and was also sufficiently corroborated by testimony of PW-3 and other evidence brought on record.


Hence, Trial Court’s decision was upheld as the finding of the appellant’s guilt in the commission of the offence under Section 300 IPC and was correctly convicted under Section 302 IPC.

Appeal was dismissed in view of the above decision. [Sumit v. State, 2021 SCC OnLine Del 4551, decided on 30-9-2021]

Advocates before the Court:

For the Appellant: Siddharth Yadav, Advocate

For the Respondent: APP for the State

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.


The ruling came in a case where the appellant was convicted under Sections 302 and 201 IPC for the death of his wife. The prosecution case was that on 18th November 2011, it was reported that the appellant’s wife died due to burn injuries. However, according to the post-mortem report, the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.

The appellant-accused’s case was that none of the witnesses except the official witnesses have supported the prosecution case and that the conviction of the appellant is based solely on the cause of death mentioned in the post-mortem report and that no other material has been relied upon by the Trial Court as well as High Court.

Submissions by the appellant’s counsel:

  • though post-mortem report was available on 18th November 2011, First Information Report was registered belatedly on 25th August 2012.
  • that when the incident constituting the alleged offence occurred, there were other members of the family of the appellant-accused present in the house.
  • the prosecution witnesses have deposed that the appellant and the deceased were leading a normal matrimonial life.
  • the mother of the deceased, has not supported prosecution. She stated in the deposition that the incident of fire took place when the deceased was boiling milk for her child. He pointed out that even PW No.5-a, Shri Mahesh Sah who gave a report of unnatural death on 18th November 2011 did not support the prosecution.

Submitting that a complete chain of events establishing the guilt of the appellant-accused has not been established, the counsel urged that the conviction of the appellant cannot be sustained and deserves to be set aside.

Submissions by State’s counsel:

  • the post-mortem report categorically stated that the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.
  • the burn injuries on the person of the deceased were not ante-mortem.
  • the appellant and the deceased were staying together under the same roof and therefore, Section 106 of the Evidence Act, 1872 will apply.
  • the burden was on the appellant-accused to explain how the death has occurred.

Hence, a chain of circumstances was established by the prosecution against the accused which supports only one hypothesis of the guilt of the appellant.

It was submitted that the failure of the appellant to discharge the burden on him under Section 106 of the Evidence Act is very crucial as the case is based on circumstantial evidence.


The Court took note of the elaborate law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Here are the relevant excerpts from the judgment:

Five golden principles (Panchsheel) which govern a case based only on circumstantial evidence

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. 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 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 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.”

When can a false explanation or a false defence be used as an additional link?

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 points to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

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. However,

“… 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 accused.”

Applicability of Section 106 of the Evidence Act

Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101.

Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

“When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”

Ruling on facts

The Court noticed that neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present showed that there could be another hypothesis which cannot be altogether excluded.

“Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.”

Coming to the post-mortem report, the Court held that

“… only on the basis of post-mortem report, the appellant could not have been convicted of the offence punishable under Section 302 of IPC and consequently for the offence punishable under Section 201 of IPC.”

The Court, hence, acquitted the appellant from all the charges.

[Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717, decided on 14.09.2021]

*Judgment by: Justice Abhay S. Oka

Case BriefsSupreme Court

Supreme Court: In a case where a man was convicted for killing his wife on the suspicion of her infidelity and was sentenced to undergo rigorous imprisonment for life, the bench of L. Nageswara Rao and BR Gavai, JJ has refused to go into the question of propriety of specifying rigorous imprisonment while imposing life sentence and has held that imprisonment for life is equivalent to rigorous imprisonment for life.

While there are several judicial precedents where the Supreme Court has held that imprisonment for life has been regarded as equivalent to rigorous imprisonment for life, the verdict in Naib Singh v. State of Punjab, (1983) 2 SCC 454 makes this position amply clear.

In the aforesaid case, the Petitioner was originally sentenced to death for committing an offence of murder under Section 302 IPC. Later, the death sentence was commuted to imprisonment for life by the Government of Punjab. After having undergone sentence of 22 years, Naib Singh filed a Writ Petition under Article 32 of the Constitution of India challenging his continued detention. One of the points argued by the Petitioner relates to sentence of imprisonment for life not to be equated to rigorous imprisonment for life.

The Court, in the said judgment, held,

“… in view of the authoritative pronouncements made by the Privy Council and this Court in Kishori Lal case [Kishori Lal v. Emperor, AIR 1945 PC 64 : 72 IA 1 : 219 IC 350] and Gopal Godse case [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 3 SCR 440 : (1962) 1 SCJ 423 : (1961) 1 Cri LJ 736] respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.”

[Md. Alfaz Ali v. State of Assam, 2021 SCC OnLine SC 719, order dated 14.09.2021]

For Petitioner: Advocate Ajay Marwah

For State: Advocate Debojit Borkakati

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph and S. Ravindra Bhat*, JJ has reiterated the factors to be considered while deciding the question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC.

The Court explained that the use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death.

“It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.”

The following two cases are noteworthy for understanding the difference between the two terms:

State of Andhra Pradesh v Rayavarapu Punnayya, 1976 (4) SCC 382

In the said case, the Court noticed that the confusion between “murder” and “culpable homicide not amounting to murder” is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. Hence, the safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.

It explained,

“In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice- versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.”

Read more…

Pulicherla Nagaraju v State of Andhra Pradesh, (2006) 11 SCC 444

The Court laid down the considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder and observed that the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II.

“Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death.”

Hence, it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302.

The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances;

  1. nature of the weapon used;
  2. whether the weapon was carried by the accused or was picked up from the spot;
  3. whether the blow is aimed at a vital part of the body;
  4. the amount of force employed in causing injury;
  5. whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
  6. whether the incident occurs by chance or whether there was any premeditation;
  7. whether there was any prior enmity or whether the deceased was a stranger;
  8. whether there was any grave and sudden provocation, and if so, the cause for such provocation;
  9. whether it was in the heat of passion;
  10. whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
  11. whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.

Read more…

[Mohd. Rafiq v. State of Madhya Pradesh, 2021 SCC OnLine SC 731, decided on 15.09.2021]

*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

For Appellant: Advocate Ritu Gangele

For State: Advocate Gopal Jha

Case BriefsSupreme Court

Supreme Court: The Division Bench of Ajay Rastogi and Abhay S. Oka, JJ., while noting the mitigating factors and circumstances in which a crime had been committed, reduced the quantum of sentence for a conviction under Section 307  Penal Code, 1860.

Appellant approached the Supreme Court on being dissatisfied by the Bombay High Court’s decision upholding the conviction of the appellant for the offence under Section 307 Penal Code, 1860.

Prosecutions’ case was that the complainant lodged an oral report contending that Chintaman Dange was his maternal uncle and very active in social work. Previously the appellant and Chintaman Dange had a quarrel because of unlawful construction.

Appellant had stabbed on the stomach of Chintaman Dange with the intent to kill him.

After framing of charge, appellant faced the trial.

Injured victim came forward with the request that, as the families have settled their disputes and almost half of the sentence has been undergone by the appellant, it may be considered to be sufficient in due compliance of the judgment impugned upholding conviction under Section 307 IPC.

Analysis, Law and Decision

It was noted by the Court that the joint affidavit by parties made it clear that on the advice of elders, they had entered into an amicable settlement.

Appellant apologized for his fault and had taken responsibility for his action and had maturely sought forgiveness from the victim. Further, the victim also voluntarily accepted the apology while considering the age of the appellant at the time of the incident and had forgiven him.

Court cited the decision of Murali v. State, (2021) 1 SCC 726, wherein the parties decided to forgive their past and live amicably, this Court had come to their rescue by interfering in the quantum of sentence which obviously was not compoundable under Section 320 CrPC but had interfered since there was no minimum sentence prescribed.

Supreme Court opined that the present matter is a fit case to take a sympathetic view and reconsider the quantum of sentence awarded to the appellant.

Bench stated that the joint affidavit inspired confidence that the apology as tendered by the appellant had voluntarily been accepted given the efflux of time and was not a result of any coercion or inducement.

Considering that the parties are residing in the same village and are peacefully residing after the uncalled for incident had taken place, in Court’s view, this appeared to be a fit case for reduction of sentence.

Hence, the Court reduced the quantum of sentence imposed on the appellant from 10 to 5 years.

In view of the above, application was disposed of. [SY. Azhar SY. Kalandar v. State of Maharashtra, 2021 SCC OnLine SC 701, decided on 13-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Indira Banerjee and V. Ramasubramanian, JJ. reversed concurrent judgments of the trial court and the Madhya Pradesh High Court whereby three persons were convicted in a murder case and sentenced to life imprisonment. The Supreme Court found that the police investigation in the case was done under political pressure for extraneous considerations, designed to turn the informant and her family members as accused, and allow the real culprits named in the FIR to escape.

Facts and Appeal

Accused 2 (“informant”) was the wife of Accused 1 and sister of Accused 3. The prosecution’s case was that on the night of 13-5-2008, all three accused attacked Accused 1’s brother with knife and lathis resulting in his death. Thereafter with intention of screening the crime, Accused 2 took the victim to the hospital and sent a false information to police that the murderous assault was committed by two other persons, Ruia Yadav and Kailash Yadav. The case was that Accused 1 had a quarrel with his brother (deceased) over non-payment of Rs 250 by the deceased to Ruia, and in that quarrel Accused 1 got injured and thereafter all three accused attacked the deceased. The accused were charged for offences punishable under Section 302 (punishment for murder) read with Section 34 (acts done in furtherance of common intention) of the Penal Code, 1860.

The trial court convicted the accused persons and sentenced them to life imprisonment. This judgment was confirmed by the High Court. Aggrieved, the informant and her brother (Accused 2 and Accused 3) approached the Supreme Court.

Analysis and Observations

Sequence of events

Closely scrutinising the sequence of events that happened from the date of crime, the Court was of the view that it showed that investigation in the case proceeded towards burying the truth instead of proceeding in pursuit of the truth. The Court narrated the sequence of events which are summarised below:

(i) On 13-5-2008, an Assistant Sub Inspector in the police station concerned received an information from Government Hospital about a person having been brought dead. FIR was registered showing Accused 2 as complainant, and showing Ruia Yadav and Kailash Yadav as accused.

(ii)  The investigation was taken over by another Assistant Sub Inspector (“Investigating Officer”), who started investigation the next morning on 14-5-2008. Normally, one would have expected the investigation first to proceed against Ruia and Kailash who were named as accused. But interestingly, right from the beginning, investigation carried out by the Investigating Officer proceeded in reverse direction by making the informant, her husband and her brother as accused, whereas the original accused Ruia and Kailash were made prosecution witnesses.

(iii) During cross-examination, the Investigating Officer admitted that there were demonstrations by political parties when investigation was taken up by him on 14-5-2008 against Ruia and Kailash. This is perhaps why he first took the informant for  medical examination and got a report to the effect that there were several abrasions on her back. On the basis of such report, the Investigating Officer concluded that the abrasions must have been caused during scuffle between the deceased and the informant.

(iv) The informant, her husband and her brother were arrested on 15-5-2008. In other words, within three days of the commission of crime, persons named as accused in the FIR were made prosecution witnesses and the informant and her family members were made accused.

(v) It was only after 18 days of effecting the arrest of the three accused, that the statement of deceased’s niece (“star witness”) was recorded by the Investigating Officer.

The Court observed that:

“It is quite strange and completely unfathomable as to how, where, why and at what point of time, the investigation that should have started against [Ruia and Kailash] took a u-turn and proceeded towards the very informant and her family members.”

Admissions of Investigating Officer and testimony of star witness

Right from the beginning, accused took the defence that they were implicated and actual accused were made witnesses due to political pressure. The Court found corroboration for this in Investigating Officer’s admission that when he took up the investigation, there were demonstrations held by political parties.

During cross-examination, the Investigating Officer had admitted that he was not aware as to whether Ruia and Kailash (accused named in the FIR) were in police custody or not at the time when he started the investigation. In any case, he did not arrest them after he took up the investigation. But interestingly, the star witness for the prosecution deposed that Ruia and Kailash were in fact arrested. She also revealed what happened thereafter. She told that when Ruia and Kailash were taken into arrest, there was strike in the mohalla and persons of Yadav community put pressure on police for releasing them.

That the case was foisted against the very informant and her family members due to political pressure was also borne out by another admission made by the Investigating Officer where he admitted that the Additional Superintendent of Police gave him verbal order that Ruia and Kailash be impleaded as witnesses instead of accused.

Investigation normally proceeds first against  accused named in FIR

The Court noted it remained unexplained that why the Investigation Officer did not even suspect the role of Ruia and Kailash in the commission of the crime. The Court was conscious of the facts that at times persons who commit the crime, themselves lodge FIR, so as to create alibi of innocence and misdirect investigation. But even in such cases, investigation would normally proceed first against those named as accused in the FIR and thereafter the needle of suspicion may turn against the informant himself.

Recovery of weapons

According to the Investigating Officer, weapons used in the crime were recovered and seized from the house of three accused in presence of witnesses. However, those witnesses did not support the prosecution. They stated that no weapons were seized in their presence.

Further, the Court noted that there was nothing on record to show that the blood stains said to have been present on the weapons, matched with blood of the deceased. The prosecution did not establish either through FSL report or otherwise, that the blood stains on the recovered knife and lathis were that of the deceased. Noting the divergence of judicial opinion on this aspect, the Court concluded that:

“[T]here cannot be any fixed formula that prosecution has to prove, or need not prove that the blood groups match. But the judicial conscience of the court should be satisfied both about the recovery and about the origin of the human blood.”

Burden on court where best legal assistance not available to accused

The Court noted that the accused were represented by amicus curiae either due to inability to engage a counsel or due to non-appearance of the counsel engaged by them at the time of hearing. As a result, the accused did not appear to have the best of legal assistance. The Court observed:

“It is in such type of cases that the burden of the court is very heavy and unfortunately, the Sessions Court and the High Court did not discharge this burden properly.”

Normal human conduct

The Court was of the view that the trial court as well as the High Court did not take into account the normal human conduct. The Court said it was unbelievable that the accused caused death of the deceased (their own family member) due to his failure to return Rs 250 to Ruia, and thereafter they deliberately named Ruia as accused.

It was equally unbelievable that one of the persons who killed the victim in the presence of witnesses, took his body to the hospital in an auto rickshaw. The Court observed that:

“The normal human behaviour in such circumstances will be either to flee the place of occurrence or to go the police station to surrender, except in cases where they are intelligent and seasoned criminals. Neither did happen.”


The Court was of clear opinion that:

“[T]he investigation in this case was carried out by [the Investigation Officer], not with the intention of unearthing the truth, but for burying the same fathom deep, for extraneous considerations and that it was designed to turn the informant and her family members as the accused and allow the real culprits named in the FIR to escape.”

Technical ground and complete justice

Notably,  Accused 1 did not come up in appeal. However, the Court stated that the instant was a case where it did not proceed on the basis of individual overt acts, but the prosecution story in its entirety was disbelieved. Therefore, to deny the benefit of such conclusion to Accused 1 merely on ground of technicality that he was not in appeal would amount to closing eyes to gross injustice, especially when the Court was empowered to do complete justice under Article 142 of the Constitution.


In such view of the matter, the Court allowed the appeal and ordered that all three accused shall be released forthwith. [Madhav v. State of M.P., 2021 SCC OnLine SC 613, decided on 18-8-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Hemant Gupta and A.S. Bopanna, JJ. reversed the conviction of the accussed−appellant who was convicted for the murder of her husband’s first wife and their children. The Supreme Court held that the chain of circumstantial evidence was not complete, and gave her benefit of doubt.

The Scene

The appellant was married to one Gulab, who was already married to Mandabai (deceased). Gulab and Mandabai had two children, one son and a daughter. The appellant, her husband, the deceased, the children, appellant’s parents-in-law, and their servant, all lived together in one house. The prosecution’s case was that on the intervening night of 2nd and 3rd August 2006, at about 2:30 to 3:00 am, an incident of fire occurred at their house and it was engulfed into flames. The appellant who was also in the house, came out unscathed. Mandabai and her daughter rushed out of the house with burn injuries, while her son burnt to death inside the house. Appellant’s husband and mother-in-law were not present, while her father-in-law was sleeping outside the house who woke up in confusion, instructed the servant to call a jeep, and shifted Mandabai and her daughter to hospital. Unfortunately, both Mandabai and her daughter died on the next day due to burn injuries.

Conviction and Appeal

Appellant’s father-in-law lodged a complaint and implicated her. She was then prosecuted. The Sessions Court found her guilty and convicted her under Sections 302 (Punishment for murder) and 436 (Mischief by fire) IPC. On appeal preferred by the appellant, the Bombay High Court reappreciated the evidence and discarded the alleged extra-judicial confession made by the appellant to her father-in-law and further disbelieved the evidence of the father-in-law which was relied on by the Sessions Court. However, in the ultimate analysis, the High Court concluded that the appellant was guilty and her appeal was accordingly dismissed. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations          

The Supreme Court was of the opinion that there is no doubt that if the incident that occurred, if caused by someone with intention to cause death, is certainly gruesome and unpardonable. However, in the instant case where the appellant was proceeded against mainly based on extra-judicial confession alleged to have been made to her father-in-law, and the said evidence of the father-in-law having been disbelieved by the High Court as not trustworthy, the issue would be as to whether the chain of circumstances to convict the appellant was complete.

The Supreme Court extracted the reasons assigned by the High Court and found that it held the appellant guilty more on preponderance of probability rather than reaching a conclusion beyond reasonable doubt. The High Court’s reasoning was based on conjectures and surmises. The sole circumstance noted by the High Court was that the burnt frock of the deceased daughter of Mandabai was sent for chemical analysis and kerosene residue were detected on it. In that circumstance, the High Court held that kerosene was used for setting Madabai’s daughter on fire.

The Supreme Court was of the view that even if the such chemical report is accepted, there was nothing on record to connect that the appellant was responsible for sprinkling kerosene or for kerosene to have come in contact with the frock of Mandabai’s daughter. Further, in her declaration to the police after the incident, Mandabai herself disclosed there was a kerosene lantern in the house. Evidence indicated that diesel used for tractor was also kept in the house. Therefore, it could not be said beyond doubt that it was not an accident but the appellant had set fire by sprinkling kerosene. Following the law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court reiterated that:

“The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction on the basis of circumstantial evidence.”

The Court further observed that mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it “must be true” and not “may be true”. Reliance was placed on Devilal v. State of Rajasthan, (2019) 19 SCC 447.

The Court found that the Session’s Court as well as the High Court had made suspicion the reason for convicting the appellant without there being any strong basis. It was reiterated that:

“The suspicion, however strong, cannot take place of proof.”

It was noted that there were equal circumstances which raise a doubt whether the appellant could be held guilty only because she was not injured in the incident. The Court said that natural human conduct is that when there is any incident or accident, the immediate reaction is to get away from the scene and save oneself. The Court was of the view that if in the middle of the night, for whatever reason, there was fire and if the appellant had woken up and noticed it a little earlier, the natural conduct was to run out of the house instead of going into the house which was burning, to check on the other inmates. It was observed:

“It takes a person a lot of courage or be overdriven with compassion to get back into the house to save somebody else and not doing so may be considered morally wrong for not coming to aid of fellow human being in distress, but cannot be a circumstance to hold a person guilty of a crime which is as serious as murder unless the other circumstances in the chain point to the accused so as to lead to an irresistible conclusion of being guilty.”

The Court also noted that Mandabai who came out alive and lived for a day did not blame or suspect anybody including the appellant. Her declaration was clear that the house caught fire and she and her children were caught in the fire. She did not state that the fire set on her spread to the house. Further, it was an admitted fact that the servant also lived in the same house, but he too was not injured. Hence, the Court held:

“Therefore, not being injured alone cannot be held as a circumstance to hold one guilty of having set fire to the house.”

Next, according to the High Court, appellant’s motive behind the crime was that her husband executed a document of maintenance out of certain property in favour of Mandabai a day before his second marriage with the appellant. The Supreme Court found itself unable to accept this. The marriage between the appellant and his husband had been registered after an arrangement for maintenance for the first wife, Mandabai, which is a normal thing in such circumstances and it could not be held as a strong motive for the alleged crime.

Lastly, on the point of appellant’s failure to explain the reason for eruption of fire in view of the obligation to explain under Section 106 (Burden of proving fact especially within knowledge) of the Evidence Act, 1872, the Court held that appellant’s obligation to explain would have arisen only if there was any other evidence to the effect that the appellant was already awake and was outside even before the fire erupted.

Thus, in totality of facts and circumstances of the case, the Court was of the opinion that the appellant was entitled to be acquitted as the benefit of doubt weighs in her favour. Accordingly, the judgment of the High Court affirming conviction and sentence ordered by the Sessions Court was set aside. [Parubai v. State of Maharashtra, 2021 SCC OnLine SC 566, decided on 10-8-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J. granted bail to a young mother of two minor children, who was booked in connection with the murder of her tutor with whom she had an illicit relationship.


On 10-3-2020, police received information that one RK had been admitted to LBS Hospital. By the time police reached the hospital, RK had died during treatment. As per the prosecution, the deceased was a home tutor engaged by the petitioner for teaching her as she was preparing for Central Teachers Eligibility Test. During this period, the petitioner and the deceased developed physical intimacy. This fact came to the knowledge of petitioner’s husband, who tried to persuade the deceased to call off the relationship but the deceased was adamant to continue relationship with the petitioner. The deceased even threatened the petitioner that he had their video captured, and asked her to continue their relationship otherwise he will make the video public.

As per the prosecution, on 9-3-2020, the petitioner made a phone call to the deceased and asked him to come to a flat in a certain apartment building which belonged to one of the co-accused. On reaching the said flat, three co-accused persons gave beating to the deceased. Later, the deceased succumbed to injuries in the hospital.


The petitioner filed the instant petition for bail under Section 439 CrPC submitting that she was a young lady aged 32 years and mother of two minor children. She merely made a phone call to the deceased and after dropping him near the apartment building, she went away to her husband’s chemist shop. She only dropped the deceased near the apartment building as her husband wanted to talk to the deceased and take back the video so that she may not be maligned in the society. The petitioner claimed that she was unaware of what transpired in the flat, and she had no involvement in murder of the deceased.

Per contra, the prosecution vehemently opposed the bail petition alleging that the petitioner was a part of the conspiracy.


Looking firstly at antecedents of the petitioner, the High Court found that as per the status report, she had no previous involvement.

The Court noted the fact that the petitioner was a young mother of two minor children. She was involved in illicit relationship with her tutor. She wanted back the video recordings made by the deceased so as to save her image in the society and for that purpose she narrated entire facts to her husband. On day of the incident, the petitioner dropped the deceased near the apartment building from where he went to the flat where the crime occurred. In Court’s opinion, nothing appeared on record to show that the petitioner at any point of time had any knowledge about what would be done with the deceased by other co-accused. The only role assigned to the petitioner was that she dropped the deceased near the apartment building. Even otherwise, there was no communication between the petitioner and other co-accused from the time she dropped the deceased near the apartment till the time her husband came back to the chemist shop.

Looking into entire facts and circumstances of the case, and the role attributed to the petitioner, and also that she is a young mother of two minor children, her husband already being in judicial custody, the Court allowed the petition and admitted the petitioner to bail on furnishing a personal bond in the sum of Rs 50,000 with one surety in the like amount to the satisfaction the trial court. [Jyoti v. State (NCT of Delhi), 2021 SCC OnLine Del 3902, decided on 4-8-2021]

Advocates before the Court:

For the Petitioner: Mr Jitender Sethi, Advocate with Mr Hemant Gulati, Advocate.

For the Respondent: Ms Rajni Gupta, APP for the State SI

Subhash Kumar, PS Ghazipur.

Op EdsOP. ED.


The issue whether active euthanasia, suicide and assisted suicide should be legalised or not has been largely debated. Those who speak in favour of legalising them are those who believe in principle of autonomy. They believe that it should be person’s autonomous decision to decide on his death as it is the most intimate and fundamental part of life.[1] But those who are against it believe in principle of sanctity of life which is basically that every human life is valuable to only person himself but also to society and State. Therefore, they say that the State cannot make laws to legalise to allow anyone to take his own death or with the help of others.[2]

The Penal Code, 1860 (IPC) also prohibits these acts and provides punishment for them. The act of death by consent, which covers both voluntary euthanasia and assisted suicide, is carved out as an exception to murder in Exception 5 to Section 3003 IPC. This means that the offence of murder is reduced to culpable homicide not amounting to murder through this exception. There is not much development in the understanding and application of this exception. The reason can be that this is not used much by the defendants as this exception only helps to extenuate the culpability but does not exonerate them from the crime. Although this exception has not been analysed much by the courts, I believe it is important to visit this exception since there are problems which persist with regard to its application.

In this article, by looking at the ingredients and intention of the drafters of Exception 5, I will see how the courts have applied the exception in cases. I argue that the courts erred on the application of basic tenets this exception which is in assessment of “valid consent” and “pious motives” of the killer. I also suggest ways by which the application of Exception 5 can be bettered.

Ingredients of Exception 5

As per Section 300 IPC, Exception 5 has the following ingredients—

  1. The person whose death is caused should be above 18.
  2. That death should be caused by his own consent.

This simply means that the defendant who wants to take benefit of this section would require to prove that the deceased person was above 18 when he consented to his own death. Although this will not exempt the defendant party from punishment but there will certainly be reduction in the culpability of crime. The agreement between persons on killing is called “suicide pact”. Although there can be more than two persons in the suicide pact, usually there are two persons who have mutually agreed upon to end their lives. The defendant is the surviving party, who although killed the other party, was unable to kill himself for some reasons or circumstances that occur before or after such killing.

Drafter’s intention

It is important for us to understand the intention of drafters behind making such exception of murder to get nuanced understanding. The drafters paid much attention to the “motives” of the killer in these cases which according to them are “far more respectable” than in the usual murder case.4 Another justification that drafters give is that these cases “do not produce much evil and insecurity” in the society as the normal commission of murder does. These are the reasons why they found it inappropriate to term cases which fall under Exception 5 as murder.5  But since death of a human being causes “anxiety and alarm” in the society, they did not completely exonerate the offender.6 The drafters kept in mind that people in India commit suicide believing it as their religious duty or sometimes as a strong sense of honour. In such cases, the person assisting them to commit suicide cannot be imposed with same level of culpability as to a murderer. So, they found it appropriate to consider such cases as culpable homicide not amounting to murder.7

Application of Exception 5 in case laws and their analysis

As said before, there is not much development in interpretation and understanding of Exception 5 simply because it is not invoked much by the defendants. But there are few cases in which Exception 5 helped defendants to get their culpability reduced. While reading those cases, we need to give special attention on how courts ascertain the ingredient of consent as the other ingredient of age is a matter of fact.

There was an early case of Dasrath Paswan v. State of Bihar8 where accused was a student of Class 10 who had repeatedly failed at examination. He was upset with his results to the extent that he decided to end his life. When he conveyed his decision to his wife, she asked him to first kill her then kill himself. One fine morning when nobody was at home, accused killed his wife in pursuance of the suicide pact and after that he ran out of his house to kill himself. Before he could end his life, he was found by other villagers and later he confessed that he killed his wife. The matter was brought before Patna High Court and defence argued that they should be given benefit under Exception 5. There was no doubt regarding the age of the deceased as she was above 18 at the time of her death. For the assessment of consent, the Court found it significant that the body of the deceased was lying down and she did not make attempts to prevent assault. Looking at these circumstances, the Court found it appropriate to bring this case under Exception 5.

Another case, a more recent one is Narendra v. State of Rajasthan9 where the deceased was a married woman Nathi who left her home and residing in her parent’s home. There she developed intimacy with the accused Narendra and both wanted to marry. The villagers were against their wish of marriage because they belonged to same gotra. Both of them were very upset due to their love being not accepted by the villagers, therefore they agreed to commit suicide. One day the accused was seen inflicting injuries on deceased by other villagers but the victim had already died before they could rescue her. There were also stab wounds in the abdomen of accused but he was prevented from killing himself. The High Court found no material-on-record to show that there was free and voluntary consent of the deceased. Later this case reached in the Supreme Court where judges placed significance to facts like deceased did not raise alarm, there were also injuries on accused and he did not carry any weapon when he entered the house. Keeping these factual circumstances in mind, the Court ruled in favour of the deceased by giving him benefit under Exception 5.

I contend that the Court’s reasoning in both these cases falters on two very important limbs of this exception. First is ascertaining the “consent” of the victim. Second is looking at the “motives” of the killer.

The first contention is regarding assessment of “valid consent” of the deceased. Courts in both the above given cases reasoned ‘no resistance’ from the deceased side as one of the parameters to conclude that she had consented for her death. But how does the Court reach to the conclusion that there was “no resistance” in both the above given cases? Courts used the same standard to check presence of consent as they mostly use in rape cases — that the deceased did not shout, that there was no attempt to prevent herself from assault. Application of same kind of assessment standard in Exception 5 cases is problematic on two grounds. The first ground is that homicide cases are different from rape cases. Courts in rape cases look at medical reports to see if physical injuries are sustained by the victim. If there is no presence of injury marks that they believe that there was no resistance and conclude that there was consent of the victim.10 But this same enquiry cannot be done here because there is greater chance of presence of injuries in homicide cases as it because of these injuries that the victim has died. The courts in these cases did not expand much on of their reasoning as to how they reached this conclusion on “no resistance” hence consent even when there is definite presence of injuries on deceased. The second ground is that this standard of ascertaining consent by taking “shout” and “resistance” into consideration is criticised by many feminist scholars.11 The social and economic capital is often used by man to silent woman while committing crimes and it might not be always possible for her to shout and resist in such situations.12 Therefore, there is need to change the standard used by the courts and make sure that there was valid consent of the deceased in these cases.

My second contention is regarding the “motives” of the surviving party that the Court needs to ensure that they were “respectable” as were intended by the drafters. This can be done by looking at the intention of the killer in such cases — whether it was genuine or bogus when he agreed the suicide pact with deceased. If he did not want to kill himself but is entering into such pact just for killing the other person would completely obliterate the purpose of this exception. Another possibility arises if there is subsequent change of mind of killer after killing the deceased. These possibilities were contemplated by the drafters of Section 4 of the Homicide Act, 1957 in English Law and they can be summed up as follows—

  1. That the mere presence of suicide pact does not make it a genuine one, it may so happen that one party (deceased) honestly believed in the pact while agreeing while the other party just want to use it as a device as to bring about the death.13
  2. That both the parties have genuine intention to agree upon a suicide pact, there is a subsequent change of mind of the surviving party that they do not even attempt to commit suicide.14

Basically, the enquiry is to find out that that there were best motives of the killer when he entered into the suicide pact. In both of these possibilities, the offender does not fulfil the conditions as was agreed upon in the suicide pact. The drafters of this exception placed so much significance to the “pious motives” of the killer in these cases but there is clear absence of such motives if any of these two possibilities are present. Also, it is not just about the motives of the killer, the consent of the deceased is also vitiated if there is presence of these possibilities. Section 9015 IPC provides that the consent should be given without fear and misconception of fact. In these cases, the deceased party gives its consent to be killed believing that the other party also has genuine intention of committing suicide and would definitely kill himself. But if it so happens that the surviving party had no genuine intention to kill itself since the inception of suicide pact, as is contemplated in possibility 1 above, or if they change their mind, as contemplated in possibility 2, then such consent should be regarded to be given under misconception of fact. The fact based on which deceased gave consent was not untrue and hence that consent should be considered as vitiated under Section 90.

Section 4(3) of the Homicide Act makes it clear that the survivor needs to show that he had settled intention of dying.16 The same standard should be applied by Indian courts as well where it is for the defendant to show that he clearly had settled intention of dying in pursuance of suicide pact. It should be made onus on the party seeking benefit of this exception to prove there was absence of both above given possibilities. Therefore, I believe that if the Court finds presence of any of these possibilities, then that act should not be considered under Exception 5. The reason behind such rejection being, one, the drafters never wanted to give benefit if there are ill-motives of the surviving party and, two, because the consent of the deceased is vitiated.


It is understood that the understanding, application and assessment of Exception 5 in murder involves various aspects which the Court has failed to take into account while reasoning out. The challenging part to ascertain in Exception 5 cases is to ascertain the free and voluntary consent of the deceased. The courts have not been able to provide set standards on how to assess consent, especially when the victim is a woman. The courts should keep into mind the socio-economic capital that man holds which they can use to silent or influence woman. Therefore, the standard that there was no resistance hence woman consented should be done away. Also, the very reason why intention of the drafters reduced the culpability in such cases is because there are “pious motives” of killer so the courts should also do reasonable enquiry as suggested in this article. This would ensure that the benefit of Exception 5 is given with no injustice done to the victim and drafter’s intention.

3rd year law student at National Law School of India University, Bangalore, e-mail: <>. I express my gratitude to Prof. Mrinal Satish (Professor of Law at NLSIU Bangalore) for his valuable inputs and feedback.

[1] Lawrence O. Gostin, The Constitutional Right to Die: Ethical Considerations, St. John’s Journal of Legal Commentary, Vol. 12, (1977): 602-603, accessed on 10-6-2021.

[2] Richard A. McCormick, The Quality of Life, the Sanctity of Life, The Hastings Center Report 8, No. 1 (1978): 30-36, accessed on 14-6-2021.

3 <>.

4 Reports from the Commissioners: Volume 28 Great Britain. Parliament. House of Commons (Jan 1848), pp. 53-54; para 282.

5 Ibid.

6 Ibid.

7 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, LexisNexis, sixth edition, p. 585.

8 1957 SCC OnLine Pat 129 : AIR 1958 Pat 190.

9 (2014) 10 SCC 248.

10 See Tukaram v. State of Maharashtra(1979) 2 SCC 143 : AIR 1979 SC 185 to look at assessment of court of consent.

11 Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar, An Open Letter to the Chief Justice of India, (1979) 4 SCC J-17.

12 G.S. Bajpai and Raghav Mendiratta, Gender Notions in Judgments of Rape Cases: Facing the Disturbing Reality, Supreme Court Cases (Journal) 60 JILI (2018) 298.

13 Maximilian Koessler, Comparative Aspects of the English Homicide Act of 1957, 25 Missouri Law Review 107 (1960), p. 142.

14 Ibid.

15 <>.

16 S. 4(3), the Homicide Act, 1957.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ramesh Sinha and Rajeev Singh, JJ., upheld the capital punishment of a man who murdered his wife and four minor daughters.

Appellant was charged for offence punishable under Section 302 of Penal Code, 1860.

Aggrieved by conviction and sentence, the accused preferred a Criminal Appeal from Jail. Also, the trial court made a reference for confirmation of the death sentence awarded to the accused.

Instant case was based on circumstantial evidence and the appellant had been convicted and sentenced to death by the trial Court for murdering his wife and children vide impugned judgment.

In respect to convict the person in a case of circumstantial evidence, the Supreme Court in the celebrated case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 3 SCC 116, laid down the conditions to be fulfilled before a case against an accused can be said to be fully established.

Hence, while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.

In a case of circumstantial evidence, conditions precedent before conviction could be placed on circumstantial evidence, must be fully established such as:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ”must’ or ”should’ and not ”may be’ 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 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.

In the present case, as is apparent from the evidence on record that there appears to be a motive for the appellant to commit the murder of his wife Sangeeta along with her children, which is established from the evidence of PW2-Chatra Pal Raidas, who is the real brother of deceased Sangeeta. PW2, in his deposition before the trial Court, stated that his sister Sangeeta, who used to come to his house and stayed there for about 1-2 months, had made a complaint to him about the illicit relationship of the appellant with Manju; Manju had become pregnant from the appellant; and the appellant wanted to marry with Manju, which was objected by his sister Sangeeta; and the appellant was adamant to marry with Manju, on account of which, the appellant committed the murder of his wife deceased Sangeeta along with four minor children, who was living along with the appellant in his house. P.W.2-Chatra Pal Raidas further stated that when Sangeeta had come to his house, she told about the aforesaid fact. He also stated, in his evidence, that ten days prior to the incident, the deceased Sangeeta had come to his house and in the presence of his neighbours, namely, Chailbihari and Balgovind, had also disclosed about the illicit relationship of the appellant with Manju. Thus, the motive to commit the murder of the deceased Sangeeta along with her children stood proved from the evidence of PW2 and there is no reason for him to depose falsely against the appellant.

It would also be pertinent to mention that another motive of the appellant to commit the murder of his wife and his children, as has been apparent from the evidence of P.W.1 and P.W.2, that the appellant, on taking advantage of the murder of his wife and children, wanted to get compensation from the State Government as earlier also the appellant had taken the compensation for the murder of his real brother Siyaram, which was paid by the State Government to the tune of Rs 4-5 Lakhs, and which was, in fact, given to the daughter of deceased Siyaram, namely, Gudiya but he managed to take the said compensation from Gudiya, who died on account of illness.

Prosecution proved beyond doubt that the appellant had a motive to commit the murder of his wife and his 4 minor children.

Bench stated that it would be apt to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.

The principles that come out are as follows:

  • The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
  • It should be made voluntarily and should be truthful;
  • It should inspire confidence;
  • An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
  • For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and
  • Such statement essentially has to be proved like any other fact and in accordance with law.

Bench stated that the accused had strong motive to commit the murder of his wife at the time of the incident, the appellant and the five deceased were the only occupants in the house, in which they were living together; after the arrest of the appellant at his pointing out the weapon of murder and his blood stained clothes were recovered which he had concealed; soon after the incident, the appellant made an extra judicial confession before PW3 and PW 4 admitting his guilt.

From the totality of circumstances and entire evidence on record, it was proved that no one else but the appellant alone committed the murder of his wife and four minor daughters.

Hence, trial court’s order was upheld.

‘Death Sentence’ awarded under Section 302 of IPC

It is true that capital punishment has been the subject-matter of great social and judicial discussion and catechism.

The ratio laid down by the Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

  • conviction based on circumstantial evidence alone;
  • failure of the prosecution to discharge its onus re: reformation;
  • a case of residual doubts;
  • where the other peculiar ”mitigating circumstances outweighed the ”aggravating circumstances.

In the instant case, the accused/convict Ramanand has committed the murder of his wife and four minor innocent daughters aged about 7 years, 5 years, 3 years and the youngest one aged about one and a half month. It transpires from the evidence on record that the criminal act of the accused/convict was actuated to pave a way to marry one lady, namely, Manju, who was already married. It was the deceased Sangeeta (wife of the appellant), who opposed his marriage with Manju but the accused/convict was adamant to marry with Manju at any cost and in order to marry with Manju, accused/convict murdered not only murder his own wife but also his own four innocent minor daughters aged between one and half month to eight years in a most brutal and barbaric manner without their no-fault and without any rhyme or reason. Before murdering the deceased, the accused/convict had also chopped off various parts of their bodies and inflicted severe incised wounds as is evident from the post-mortem report.

Further, the Court added that the special reasons assigned by the trial Court for awarding extreme penalty of death were that the murder was horrifying as the accused-appellant was in a dominant position; victim was helpless being children aged about 7, 5, 3 years and the youngest one was just one and a half-month-old and the murder was premeditated and pre-planned one with a motive and committed in a cruel, grotesque and diabolical manner. The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

Hence, the Court agreed with trial court and the instant case rightly falls in the category of ‘rarest of rare case’ warranting capital punishment.

Bench confirmed the appellant’ sentence under Section 302 IPC.[State of U.P. v. Ramanand, 2021 SCC OnLine All 451, decided on 9-07-2021]

Advocates before the Court:

Counsel for Appellant: – Govt. Advocate, Amicus Curaie, Rajesh Kumar Dwivedi

Counsel for Appellant: – Jail Appeal, Rajesh Kumar Dwivedi

Counsel for Respondent : – Govt. Advocate

Case BriefsSupreme Court

Supreme Court: The Bench of N.V. Ramana, CJ and A.S. Bopanna and Hrishikesh Roy, JJ., reversed the order of the Rajasthan High Court granting bail to the accused alleged to have conspired in the murder of her sister’s husband.


In the instant appeal, it was alleged that respondent 2 was the main conspirator in the crime leading to the killing of the husband of the appellant. Appellant was aggrieved by the impugned order whereunder respondent 2 was had been ordered to be enlarged on bail.


A complaint was filed for the offence under Sections 302, 452 and 120B of the Penal Code, 1860. The Mother-in-law of the appellant, who was the mother of the deceased had lodged the said complaint.

Honor Killing

According to the complainant and appellant herein, the husband of the appellant had been killed by the family members of the appellant as an honor killing since they had not agreed to the marriage between the deceased and the appellant.


High Court had without taking into consideration all the aspects of the matter had enlarged respondent 2 on bail in a mechanical manner through an order bereft of reasons.

Analysis, Law and Decision

Supreme Court noted that the impugned order referred to the contention of respondent 2’s counsel that this Court had cancelled the bail earlier.

Further, documents already taken note by this Court indicated that there was prima facie material against respondent 2. Though, wife of the deceased had been examined and contention was put forth with regard to her statement, it was not the evidence in its entirety and it would be premature to conclude on the basis of a stray sentence. Further, merely classifying the appellant as the principal star witness and referring to her statement is of no consequence since the entire evidence will have to be assessed by the Sessions Court

In Court’s opinion, Rajasthan High Court’s order impugned herein was not sustainable. The same was accordingly set aside and the bail granted to respondent 2 was cancelled. Hence, Supreme Court directed respondent 2 to surrender before the Court of Upper District and Sessions Judge.

Taking into consideration the nature of the offence, it is appropriate that the trial be concluded at the earliest. The trial court shall therefore make all efforts to conclude the trial and dispose of the case as expeditiously as possible but in any event not later than one year from the date of receipt of a copy of this order.

In view of the above discussion, appeal was allowed. [Mamta Nair v. State of Rajasthan, 2021 SCC OnLine SC 462, decided on 12-07-2021]

Advocates before the Court:

Ms. Indira Jaising, Senior Counsel for the appellant, Shri H.D. Thanvi, Government Advocate for the State of Rajasthan, Shri V.K. Shukla, Senior Counsel for respondent 2.

Case BriefsHigh Courts

Patna High Court: Birendra Kumar Cav, J., reversed the Trial Court’s conviction order, whereby, the accused was awarded ten years rigorous imprisonment for an attempt at murder. The Bench expressed,

“On the very same evidence, eleven persons have been acquitted and in absence of any material to substantiate or reason disclosed in the impugned judgment that case of the appellant stood on different and graver footing, the conviction of the appellant is not sustainable.”

Facts of the Case

Altogether twelve accused persons faced Trial in Sessions Court for offences under Sections 147, 148, 447/149, 307/149 and 307 Penal Code, 1860 as well as under Section 27 of the Arms Act. The eleven of them were acquitted of all the charges on the very same evidence and the sole appellant was convicted under Section 307 IPC and 27 of the Arms Act by the impugned judgment of conviction. The appellant was awarded ten years rigorous imprisonment and a fine of 50 thousand Rupees for offence under Section 307 IPC. For offence under Section 27 of the Arms Act, three years rigorous imprisonment was awarded along with a fine of rupees one thousand.

The prosecution case was that on 11-06-2006 voting for the Panchayat election was going on in village Laluadih, Harnaut District Nalanda. The informant was sitting at his Dalan along with Shiv Shankar Singh (PW-2), Sudhir Singh (PW-5), Murli Manohar Singh (PW-1) and other villagers. At about 11:30 A.M., Mukhiya candidate Deshraj Singh Chauhan along with his supporters (the twelve accused persons who faced trial) variously armed came to the Dalan and exhorted others to kill Mukhiya i.e. PW-4. On that the appellant Babban Singh fired causing injury at the left eye of Shiv Shankar Singh (PW-2).

Stand Taken by the Appellant

Gajendra Prasad Singh (PW-4) deposed that it was co-accused Pawan Singh (since acquitted) who had caused injury to Shiv Shankar Singh at the left eye. The appellant contended that PW-4 Gajendra Prasad Singh who was informant of this case was not a hostile witness and that he had deposed that it was co-accused Pawan Singh who caused firearm injury at the left eye of Shiv Shankar Singh. It was submitted by the appellant that the statement of PW-4 could not be taken as slip of tongue because Pawan Singh was also an accused in this case. Thus two conflicting evidence was on the record; one was of PW-4 that the injury was caused by co-accused Pawan Singh and rest witnesses deposed that the injury was caused by the appellant. The conflicting evidence aforesaid made the prosecution case doubtful. The appellant argued that on the very same evidence, eleven accused persons were acquitted by the same judgment without distinguishing how the case of the appellant was on separate footing to that of acquitted accused persons. It was further argued that the law is well settled that if two views are possible on the same evidence, the views in favour of the accused should be preferred.

The appellant pointed out before the Court the statement of PW-2 Shiv Shankar Singh, the injured witness who deposed that when the firing started, they all started fleeing. The appellant argued, in that situation, it was difficult to see as to whose shot had caused the injury when several persons were allegedly indulged in firing.

Findings of the Court

Noticing that there was no dispute that PW-4, Gajendra Prasad Singh was not a hostile witness and that even after the conclusion of the prosecution evidence, Gajendra Prasad Singh did not file any application that his statement was a slip of tongue and in fact the appellant had caused injury to Shiv Shankar Singh. Relying on the decision in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272, the Supreme Court had held that, “if a witness is not declared hostile by the prosecution, the defence can rely upon the evidence of such witness and it would be binding on the prosecution.”

Thus, opining that there was serious doubt on the identity of the assailant of Shiv Shankar Singh and that on the very same evidence, eleven persons had been acquitted, the Bench held that in absence of any material to substantiate or reason disclosed in the impugned judgment that case of the appellant stood on different and graver footing, the conviction of the appellant was not sustainable. The Bench remarked,

“The Trial Judge failed to consider that witness Shiv Shankar Singh has deposed that he sustained injury while fleeing and there was no definite evidence from any prosecution witnesses of the occurrence that the witnesses including Shiv Shankar Singh were fleeing facing the firing.”

Hence, finding it doubtful that anyone would have seen the real person who had caused firearm injury, the Bench held that the conviction of the appellant was not sustainable in law. Accordingly, the impugned judgment of conviction and order of sentence were set aside. The appellant was acquitted.[Babban Singh v. State of Bihar, 2021 SCC OnLine Pat 1304, decided on 02-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellant/s: Mr. Krishna Prasad Singh, Sr. Advocate

Mr. Davendra Kumar Pandey, Advocate

For the State: Mr. Binod Bihari Singh, A.P.P.

For the Injured Mr. Rajesh Kumar Singh, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., held that in a matter of circumstantial evidence, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature.

The issue involved in the present appeal was:

Whether the link between the incident of murder and the accused is established on the basis of proved circumstances?

Present matter was based on circumstantial evidence.

It was expressed that, Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction. 

In the present matter, there were a few circumstances relied upon by the prosecution and the Additional Sessions Judge believed those circumstances and drew an inference about the guilt of the accused of committing murder of his own wife Nirmala. Accused was convicted under Section 302 of Penal Code, 1860 and the said judgment has been challenged in the present appeal.

Accused and his wife were labourers. On the day of the incident both the accused and deceased went from duty a little early due to stomach pain of accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’ dead body. Accordingly, he lodged the complaint.

Circumstances on which the prosecution relied upon were as follows:

  1. Last seen theory.
  2.  Motive
  3. Noticing soaked blood stains on the clothes of the accused.
  4. Absconding himself from the spot of the incident even though his wife is murdered.

Supreme Court has already laid down golden principles while appreciating circumstantial evidence. They still hold good. So the following are the principles:-

  1. a) The circumstance relied upon must be fully established.
  2. b) They must be consistent with the hypothesis of guilt of the accused.
  3. c) They should be conclusive in nature. Only inference about guilt of the accused is to be inferred.
  4. d) There should be complete chain of evidence so as not to lead any doubt about involvement of the accused.

Trial Court blamed the accused for not giving explanation. In Court’s opinion, Trial Court committed fault on two aspects first trial court forgot the difference between suspicion and proof.

Secondly, trial court forgot to put to the accused circumstance of ‘last seen together’ as evidenced by PW-2 first informant.

In view of the above reasons, Bench decided to set aside the conviction and laid down the following reasons:


Last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found last together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise the time of last seen and time of death also plays important.

For the above-stated, Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 was referred.


Bench stated that it was very much clear that the spot was not situated within four walls of the house but an open space. There was reason to believe that the open space was not surrounded by walls but a place accessible. In view of the said, Court stated that it had to see whether there was a burden on accused to explain how deceased was found there in a dead condition.

Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities.

One is optional and it may be at any stage of proceeding. Whereas 2nd is mandatory, and it is after prosecution witnesses were examined. Under the said Section, protection was also given to accused from possible punishment which may occur if he has refused to answer or given a false answer.

Whether this Court can remand the matter back to the trial Court for the purpose of putting that circumstance to the accused?

A similar situation arose before the Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496.

There is no straight-jacket formula for deciding which course of action could be adopted, therefore it remains a question of fact.

In the present case, Bench was not inclined either to remit the matter or to put the questions to the accused.

While deciding the matter on merits, Bench stated that it has almost been 5 years since the accused was behind the bar. Further, even if the circumstance of the last seen together was considered, Court did not think that other circumstances were sufficient to prove the guilt of the accused. Court opined that prejudice was caused to the accused.

It was noted that the accused was denied the opportunity to give an explanation resulting in causing prejudice to him.


“Suspecting the character of the deceased” was the motive suggested by the prosecution.

Motive is the purpose/reason for which offence is committed. Motive crops up in the mind of the culprit. We can understand the motive, only when it is manifested by some conduct. If the accused scolds, become angry and even beats the deceased it is manifestation.

A trifling act may make another person angry and a blunder may not make a person angry. So, it is difficult to opine which objectionable acts may compel another to take law into his own hand

No doubt man always wants his wife to be loyal to him and if wife has shifted loyalty towards another person, her husband never likes. It is true for wife also.

PW-4-Muktabai mother of the deceased was not eyewitness to this beating by the accused. Except her, there was no other witness. The said statement was not sufficient to believe about the reason for scolding and the group head’s opinion about cordial relations was also important as he resided in the immediate vicinity, hence Trial Court wrongly inferred about motive.


When the accused was arrested, bloodstains were noticed on his clothes.

Police Officers are not a layman. They are the officers having the responsibility to carry out the investigation as per the police manual and as per the provisions of the Criminal Procedure Code. They need to substantiate their stand on the basis of documents which are created simultaneously.

In the present case, the witness police did not make any correspondence on the arrest of the accused, neither made any Panchama. Except the bare words of the two witnesses, there is nothing in writing.

High Court found no explanation coming forward from the prosecution for not creating and not producing the single document to show the entire exercise.

Trial Court’s decision about the arrest of the accused was also found to be flawed.


Bench expressed that merely because there was a huge time gap in between the timing of last seen together and probable timing of death, the evidence of last seen together could not be rejected in all cases.


As no one saw the assault Bench stated that it did not know how the accused had used the weapon koyta. Weapon Koyta was found at the spot when spot panchanama was carried out.

Prosecution had sufficiently proved the circumstances of last seen together.

The circumstance of motive was not proved, evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.

Hence, High Court held that there was Grave suspicion on accused that he had committed the murder of his own wife. As everyone knew that suspicion could not take place of proof, therefore, Court was unable to subscribe to the view taken by the trial court.[Sandip Baburao Waidande v. State of Maharashtra, 2021 SCC OnLine Bom 560, decided on 09-04-2021]

Advocates before the Court:

Mr Amit Mane (Legal aid) for the appellant.

Mrs M. M. Deshmukh, learned APP for the Respondent.

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indu Malhotra and Ajay Rastogi*, JJ., dismissed the instant appeal filed against the order of High Court, whereby the  appellant had been sentenced with imprisonment for life for killing two minor children. The Bench, while observing motive of the crime stated,

“He was living in a relationship with the complainant Anju who had two children from the previous marriage, and had taken away the life of two minor innocent children at the very threshold of their life and murdered in a brutal manner by administering celphos to them has been established.”

On the fateful day of 18-03-2013, at about 7.30 a.m., Anju (mother of the children) went to the temple or prayers. On her return, she saw both her children lying on the cot struggling for life and the appellant went away telling her that he had given poison to both the children.

The Trial Judge held the appellant guilty of an offence under S. 302 of IPC and punished him with imprisonment for life which would mean remainder of natural life and fine of Rs.5000. On an appeal preferred by the appellant the High Court revisited the record in totality and upheld the sentence imposed by the Trial Court.

The grievance of the appellant was that the statement of material prosecution witnesses PW1 and PW2 had been recorded without affording reasonable opportunity to the appellant to cross-examine the prosecution witnesses as mandated under S. 230 of CrPC, 1973.

Noticing that after framing of charges, the appellant pleaded guilty, however following the rule of prudence, the Trial Court decided to examine four witnesses before recording the conviction the Bench rejected the contention of the appellant. Since, after cross examination of these two witnesses, the appellant pleaded to claim trial on and thereafter the evidence of other prosecution witnesses was recorded yet at no stage, the appellant moved any application for recalling the witnesses and this contention had been raised for the first time during second appeal.

Whether the Trial Court went ultra-vires while imposing imprisonment for remainder of natural life?

The appellant had contended that he had been sentenced with imprisonment for life which would mean a remainder of natural life which was not in the domain of the trial Court, and this could had been exercised only by the High Court or by this Court . to substantiate his claim, the appellant relied on Union of India v. V. Sriharan, 2016 (7) SCC 1, wherein it had been established that,

“The power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict’s life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.”

The Bench, though, opined that it was true that the punishment of remainder of natural life could not had been imposed by the Trial Judge, but after looking into the entire case, it was held to be appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.

Hence, regardless of the irregularities of sentence as pointed out by the appellant, the Supreme Court agreed to exercise its jurisdiction and approve the sentence imposed by the Trial Court and dismissed the appeal.

[Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96, decided on 16-02-2021]

Kamini Sharma has put this report together 

*Judgment by: Justice Ajay Rastogi

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., while addressing the present matter, expressed that:

Where the prosecution succeeds in discharging its primary burden and brings evidence on record which indicates that the facts, thereby proved, rest within the special knowledge of the accused, Section 106 of the Evidence Act comes into play.

Suspicion, however strong, cannot take the place of proof.

Factual Matrix

Accused-Appellant has challenged the decision of the Additional Sessions Judge, wherein he was convicted for the offence punishable under Section 302 of the Penal Code, 1860 for having committed the murder of his wife Sunita (the deceased).

The accused harassed and ill-treated the deceased on suspecting fidelity of the deceased. The deceased and accused shifted to Beghar Vasti wherein they erected a temporary shed adjacent to the house of the first informant. Later the accused and deceased desired to erect a shed with a thatched roof.

To erect the shed with a thatched roof, both the accused and deceased went to the field in order to collect a wooden log. The first informant also went to the fieLd to graze the goats, wherein he saw that the deceased was lying near a mango tree and her clothes were stained with blood. However, first informant did not find the accused in the vicinity of the said spot. Thus, he suspected that the accused to have done so, after which he lodged a report.

 During the investigation, it was found that the deceased was carrying six months pregnancy and the said occurrence resulted in the death of quick unborn child as well. The accused came to be arrested.

Additional Sessions Judge framed charge against the accused of the offences punishable under Sections 302 and 316 of the IPC.

After the trial, offence for Section 316 IPC was not established against the accused, though he came to be convicted under Section 302 IPC.

Aggrieved with the above, present appeal was preferred.

Analysis and Decision

Bench noted that the fact that the accused did not offer any explanation regarding the circumstances in which he parted the company with the deceased and how the deceased sustained those fatal injuries weighed with the Additional Sessions, Judge.

In the context of the marital relationship between the deceased and the accused and the indisputable fact that they were residing at Khatgun along with the first informant, the “last seen theory” constitutes the linchpin of the prosecution case. 

Court added that the fact that the deceased was found beneath the mango tree in the said field, within a couple of hours of the accused and the deceased having left the house, can also be said to have been proved beyond the shadow of doubt.

Further, since there has been ample evidence to indicate that the first informant found the deceased lying in a motionless state with fatal injuries and when she raised alarm, the prosecution witnesses, Dharam Pawar (PW-6) and Sushila Pawar (PW-9) went to the scene of occurrence and found the deceased lying beneath the mango tree.

Adding to the above, Court also stated that in any event, the interval of time between the accused and the deceased leaving together their home and the deceased having been found dead in the field ‘Kolki’, did not exceed three hours.

It is trite law that the ‘last seen’ theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the offence, is inconceivable.

In view of the above law and facts of the case, Court held that the prosecution succeeded in establishing that the accused and the deceased were “last seen together”.

Nature of the death

The nature of the injuries found on the person of the deceased and the attendant circumstances are of determinative significance. Bench stated that the injuries found on the person of the deceased were on accessible and elective parts i.e. wrist and neck.

It is true that the accused did not endeavour to offer an explanation as regards the circumstances in which the deceased suffered the aforesaid injuries, when confronted with the incriminating material.

The question that triggers in the above circumstances is whether the failure to offer the explanation is sufficient to fasten the liability on the accused?

In the circumstances of the present case, in the absence of any positive evidence, motive to eliminate the deceased cannot be attributed to the accused on the premise that, before the accused and the deceased shifted to Khatgaun, their marital life was afflicted with discord.

Accused having changed the clothes with a view to conceal the fact that the clothes which he wore at the time of occurrence were stained with blood, is not of conclusive tendency and incriminating nature. Admittedly, the accused was found in an injured condition. Wounds were found on both the wrists and neck of the accused.

Adding to the above, Court expressed that the accused had visible injuries, on his person, when he was apprehended. The presence of bloodstains on the clothes of the accused, which he wore on the day of occurrence, therefore, cannot be construed as an incriminating circumstance.

Though prosecution made an endeavour to draw home the point that the accused had self-inflicted the above-stated injuries overcome by the feeling of guilt. Bench found it hazardous to draw an inference that the said attempt on the part of the accused to cause injuries to himself was due to the fact that the accused was overcome by the guilt, as held by the Additional Sessions Judge.

What emerges from the above discussion?

From all the above discussion, Court observed that there has been clear evidence of ‘last seen’ and the death of the deceased within a couple of hours of the deceased and the accused having been last seen together.

The wounds found on the person of the deceased especially the situs, elective parts, and nature were suggestive of suicidal infliction.

As the fundamental fact of the deceased having met a homicidal death itself is in the corridor of uncertainty.

In Court’s opinion, the circumstance of ‘last seen’, and the failure of the accused to offer a plausible explanation, on their own, were not sufficient to sustain the guilt of the accused beyond reasonable doubt.

Section 106 of the Evidence Act does not relieve the prosecution of its general or  primary burden of establishing the guilt of the accused beyond reasonable doubt.

 Supreme Court’s decision in Sawal Das v. State of Bihar, (1974) 4 SCC 193 was also referred for the above purpose.

Propositions that emerged from the above discussion:

  • If an accused is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased.
  • The failure of the accused to offer a reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused.

In the present matter, homicidal nature of the death was not established and the prosecution case rested upon the circumstance of “last seen” to a great extent.

With regard to the legal position in respect to sustaining the guilt on the only circumstances of “last seen”, Court referred to the decision of Supreme Court in Dharam Deo v. State of U.P., (2007) 3 SCC 755.

Hence, Bench held that circumstance of ‘last seen’, in the totality of circumstances, cannot sustain the burden of establishing the guilt of the accused beyond a reasonable doubt, especially when the fact of homicidal death is in the realm of uncertainty.

High Court concluded its decision by referring to the decision in Navaneethakrishnan v. State, (2018) 16 SCC 161, wherein the legal position in the context of sustaining conviction on the basis of circumstantial evidence was expounded.

Conviction under Section 302 IPC could not sustained in view of the above discussion. [Krishna Mahadev Chavan v. State of  Maharashtra, 2021 SCC OnLine Bom 191, decided on 12-02-2021]

Advocates who represented the parties:

Aashish Satpute, Advocate appointed by Court for appellant.

S.R. Agarkar, APP for respondent-State.

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that after 5 years in jail in Agra district of Uttar Pradesh for the crime they didn’t commit, a couple can’t find their two kids, who had been reportedly sent to some orphanage in their absence.

Considering it as a serious issue of human rights violation, the Commission has issued notices to the Chief Secretary and DGP, Uttar Pradesh calling for a detailed report in the matter within four weeks.

The reports should include the enquiry/action taken, if any, against the police officers and the public servants who were responsible to ensure social security to the innocent children of the victim couple.

Issuing the notices, the Commission has observed that the gross negligence committed by a public servant has devastated the entire family. The State authorities including the police and the social welfare authorities of the district Agra have acted in a reckless manner, showing no respect towards the basic human rights.

According to the media reports, carried on the 23-01-2021, the couple was arrested by the police in the year 2015, when a boy aged five years was found murdered and they were named in the case. The Additional District and Sessions Court, while releasing the couple had mentioned in the order that it is unfortunate that innocent people have spent five years behind the bars and the main accused is still free. The Court has reportedly directed the Senior Superintendent of Police to take action against the investigating officer for his negligence. The Court has also recommended re-investigation of the case on the basis of the available evidences, to arrest the actual perpetrator.

It is specifically mentioned in the news report that the then Sub-Inspector, who was working with the investigating officer, had admitted in the Court that he did not even try to find out as to against whom the FIR was registered.

As mentioned in the news report, the victim Narendra Singh, who was earlier working as a teacher, has been asking as to what was the fault of their children, son aged 5 years and daughter aged 3 years. The wife of Narendra Singh, who was also lodged in the jail with her husband, has reportedly written a letter to the Senior Superintendent of Police, Agra to search for their missing children. The couple never met their children after their arrest, and their bail application was rejected by the District Judge in the year 2015. It is also mentioned in the news report that the victim couple could not go further to approach the High Court due to their inability to afford the expenses.

National Human Rights Commission

[Press Release dt. 28-01-2021]

Fact ChecksNews

An article published by India Today claimed that the Punjab and Haryana High Court in an unusual judgment had recently observed that the wife would be eligible for family pension even if she murders her husband. The article quotes an observation of the Court which stated that

“Nobody butchers the hen giving golden eggs. The wife cannot be deprived of the family pension even if she murders her husband. Family pension is a welfare scheme that was launched to provide financial help to the family in the event of a government employee’s death. Wife is entitled to family pension even if she is convicted in a criminal case,”

The article further quoted the facts of the case as ‘one Baljeet Kaur of Ambala told the court that her husband Tarsem Singh was a Haryana government employee who passed away in 2008. In 2009, she was booked for or a murder and was later convicted in 2011 (sic). Baljeet Kaur was getting the family pension till 2011 but the Haryana government stopped the pension immediately after her conviction.’

The article concluded by stating that the Court had directed the concerned department to release the petitioner’s family pension within two months along with the pending dues.

The screenshot of the news item can be seen below.

The screenshot of the controversial paragraph which stated that wife cannot be deprived of family pension even if she murders her husband can be seen below.

This news was also reported on other sites such as

  1. News 18
  2. Daily Hunt

Now let us test the veracity of the claims.

We looked up the judgment of this case on the website of Punjab and Haryana High Court and found a judgment with similar facts which was delivered on 25th January, 2021. The case was Baljinder Kaur vs. State of Haryana, CWP No. 24430 of 2017, delivered on 25.01.2021. The India Today article had got the name of the petitioner wrong. It was Baljinder Kaur and not Baljeet Kaur.

We read the judgment delivered by the court and found the paragraph quoted in red above has nowhere been mentioned in the written judgment. As per the facts, the petitioner’s husband died in 2008 after which she was receiving pension from the government for some time. However, after she was booked and later convicted for murder of another person in 2011 (who was obviously not her husband) she stopped receiving the pension. Therefore, the question of the wife murdering her husband does not arise in this case.

Under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006, the state government had denied the petitioner pension on the grounds that her conduct was not good as she was convicted of murder. They said that pension was not a charity or bounty and that it was a conditional payment depending upon the  sweet will of the employer. As her sentence was not stayed and merely suspended for bail, they said that she was not entitled to any pecuniary benefits.

After going through the facts and arguments of the case, the bench of GS Sandhawalia, J. was of the opinion that denying pension to the petitioner on account of her conviction, was unrelated to the death of her husband and was therefore not sustainable. Accordingly, the said order was set aside.

The Court further clarified that it was not disputed that the petitioner had committed murder but she was out on bail and her sentence had been suspended. She needed the pension to maintain herself and the Court was of the opinion that she cannot be denied the financial assistance. Pension is not a bounty and is her right on account of the services rendered by her husband to the Government, the Court observed.


Therefore, we can safely conclude that the headline of the article on India Today and the quoted paragraph highlighted in red above is not reflected in the written judgment. The reasons for allowing pension to the petitioner was because her conviction for murder was in no way connected to the death of her husband.