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PETITIONER: SHARAD BIRDHI CHAND SARDA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT17/07/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)

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

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

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HEADNOTE:      The appellant,  Rameshwar, Birdhichand  Sarda, Ramvilas Rambagas Sarda,  were accused  1, 2  and 3  respectively  in Sessions Case  No. 203 of 1982 on the file of the Additional Sessions Judge,  Pune. The  appellant and the second accused are the  sons of  one Birdhichand of Pune whose family has a cloth business.  In addition,  the appellant,  a graduate in Chemical Engineering had 89 started a chemical factory at Bhosari, a suburb of Pune. The third accused  is uncle  of the  appellant  and  the  second accused. The  appellant is  the husband  of Manjushree alias Manju while  the second  accused is  the husband of Anuradha (P.W. 35). Birdhichand’s family has its residential house at Ravivar Peth  in Pune and owns a flat in a building known as Takshasheela Apartments  in Mukund  Nagar area  of Pune. All the three  accused were  charged for  the alleged offence of murder by  poisoning on  the night  of 11/12.6.1982 of Manju the  newly  married  wife  of  the  first  accused  and  the appellant herein  under section 302 I.P.C. read with section 120B. Accused  No, 3 was also charged under section 201 read with Section  120B I.P.C.  The  whole  case  vested  on  the circumstantial evidence  based on certain letters alleged to have been  written by  the deceased to some of the witnesses and other statements of the deceased to them and the medical report. On  an appreciation  of the evidence the trial court found all  the three  accused guilty  as charged,  convicted them accordingly  and sentenced the appellant to death under s.302  I.P.C.   and  all   the  three  accused  to  rigorous imprisonment for  two years  and a  fine of  Rs. 2,000  each under s.120B  I.P.C. but  did not  award any  sentence under s.201 read with s.120B.      The appellant  and the  other two accused file Criminal Appeal No. 265/83 against their conviction and the sentences awarded  to  them.  The  State  filed  a  Criminal  Revision application for  enhancement  of  the  sentence  awarded  to accused 2  and 3.  The appeal  as well  as Criminal Revision application was  heard along with confirmation case No. 3 of 1983 together by the Division Bench of the Bombay High Court which allowed  the appellants  appeal in  part regarding his conviction and  sentence under  s.120B I.P.C.  but confirmed his conviction  and sentence  of death awarded under section 302 I.P.C.,  allowed the  appeal of  accused 2 and 3 in full and acquitted  them  and  dismissed  the  Criminal  Revision Application. Hence  the appellant  alone has  come up before the Supreme Court after obtaining Special Leave.      Allowing the appeal, the Court ^      HELD: (Per Fazal Ali, J.).      1:1. Normally,  the Supreme  Court does  not  interfere with the concurrent findings of the fact of the courts below in the absence of very special circumstances or gross errors of law  committed by  the High  Court. But,  where the  High Court ignores  or  overlooks  the  crying  circumstance  and proved  facts,   or  violates   and  misapplies   the   well established principles of criminal jurisprudence or decision rendered by  this Court  on appreciation  of  circumstantial evidence and refuses to give benefit of doubt to the accused despite facts  apparent on  the face of the record or on its own finding  or tries  to gloss over them without giving any reasonable explanation  or commits errors of law apparent on the  face  of  the  record  which  results  in  serious  and substantial miscarriage of justice to the accused, it is the duty of  this Court  to step  in  and  correct  the  legally

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erroneous decision of the High Court. [174E-G]      1:2. Suspicion,  however, great  it may be, cannot take the place of legal proof. A moral conviction however, strong or genuine  cannot amount  to a legal conviction supportable in law. [174H]      1:3. The  well established  rule of criminal justice is ’fouler the  crime higher  the proof’.  In the instant case, the life and liberty of a subject was at 90 stake. As  the accused  was given  a capital sentence a very careful cautious  and meticulous approach necessarily had to be made by the Court. [175A]      2:1. The  Indian law  on the question of the nature and scope of  dying declaration  has made  a distinct  departure from the English law where only the statement which directly relate to the cause of death are admissible. The second part of  cl.(1)   of  s.32,   viz,  "the   circumstances  of  the transaction which  resulted in  his death, in cases in which the cause of that person’s death comes into question" is not to be found in the English Law. [107F-G]      2:2. From  a review  of the  various authorities of the Courts and  the clear  language of  s.32(1) of Evidence Act, the following propositions emerge: [108F]      (1) Section  32 is  an exception to the rule of hearsay and makes  admissible the  statement of  a person  who dies. whether the  death is  a homicide or a suicide, provided the statement relates  to the  cause of  death,  or  relates  to circumstances leading  to the death. In this respect, Indian Evidence Act,  in view  of the  peculiar conditions  of  our society and  the diverse nature and character of our people, has thought  it necessary  to widen  the sphere  of s.32  to avoid injustice. [108G-H]      (2) The  test of  proximity  cannot  be  too  literally construed and practically reduced to a cut-and-dried formula of  universal   application  so  as  to  be  confined  in  a straitjacket. Distance of time would depend or very with the circumstances of  each case.  For instance, where death is a logical clumination  of a  continuous drama  long in process and is,  as it  were, a  finale of  the story, the statement regarding each  step directly  connected with the end of the drama would be admissible because the entire statement would have to  be read  as on  organic whole and not torn from the context. Sometimes  statements relevant  to or furnishing an immediate motive  may also  be admissible as being a part of the transaction  of death.  It is  manifest that  all  these statements come  to  light  only  after  the  death  of  the deceased who  speaks from  death. For  instance,  where  the death takes  place within  a very short time of the marriage or the  distance of  time is  not spread  over more than 3-4 months the statements may be admissible under s.32. [109B-D]      (3) The  second part  of cl.1  of s.32  is yet  another exception to the rule that in criminal law the evidence of a person  who   was  not   being  subjected  to  or  given  an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity  and sanctity  of oath  for the  simple reason that a  person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement  was secured  either by prompting or tutoring. [109E-F]      (4) Section  32 does  not speak  of homicide  alone but includes suicide  also, hence all the circumstance which may be relevant  to prove  a case  of homicide  would be equally relevant to prove a case of suicide. [109-G]      (5) Where  the main evidence consists of statements and

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letters written by the deceased which are directly connected with or related to her death and 91 which reveal  a tell-tale  story, the  said statement  would clearly fell within the four corners of s.32 and, therefore, admissible. The  distance of  time alone in such cases would not make the statement irrelevant. [109H]      Hanumant v. State of Madhya Pradesh [1952] S.C.R. 1091; Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of 1958 decided  on 4.11.58 =AIR 1958 SC 152; Ratan Gond v. The State of  Bihar [1959]  SCR 1336;  Pakala Narayana  Swami v. Emperor AIR  1939 PC  47; Shiv  Kumar &  Ors v. The State of Uttar Pradesh  Crl. Appeal No. 55 of 1966 decided on 29.7.66 =(1966) Crl.  Appeal SC 281; and Protima Dutta & Anr. v. The State, C.W.N. 713 referred to.      Manohar Lal  & Ors.  v. State  of Punjab [1981] Cr.L.J, 1373; Onkar  v. State  of Madhya  Pradesh [1974]  Crl.  L.J. 1200; Allijan  Munshi  v.  The  State  AIR  1960  Bom.  290; Chinnavalayan  v.   State  of   Madras  [1959]  M.L.J.  246; Rajindera Kumar  v. The State AIR 1960 Punjab 310; and State v. Kanchan Singh & Anr. AIR 1954 All. 153. approved.      Gokul Chandra  Chatterjee v.  The State,  AIR 1950 Cal. 306, overruled.      3:1. It is well settled that the prosecution must stand or fall  on its  own legs  and it cannot derive any strength from the  weakness  of  the  defence.  This  is  trite  law. However, where  various links  in a  chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words before using  the additional link it must be proved that all the links  in the  chain are complete and do not suffer from any infirmity.  It is  not the  law that  where there is any infirmity or  lacuna in  the prosecution case the same could be cured  or supplied  by a false defence or a plea which is not accepted by a Court. [162C-E]      3:2.  Before   a  false  explanation  can  be  used  as additional link,  the following essential conditions must be satisfied: [165E]      1. Various  links in  the chain  of evidence led by the prosecution have been satisfactorily proved; [165E]      2. The  said circumstance  point to  the guilt  of  the accused with reasonable definiteness and; [165G]      3. The  circumstances is  in proximity  to the time and situation.[165H]      If these conditions are fulfilled only then a Court can use a  false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. On the facts  and circumstances  of the  present case this does not appear  to be  such a  case. There is a vital difference between  an   incomplete  chain   of  circumstances   and  a circumstance, which,  after the  chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution  is enable  to prove  any of  the  essential principles laid  down in  Hanumant’s  case  the  High  Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. [166A; 166D-E] 92      3:3. Before  a  case  against  an  accused  vesting  on circumstantial evidence  can be said to be fully established the following  conditions must  be fulfilled as laid down in Hanumat’s v. State of M.P. [1953] SCR 1091. [163C]      1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]      2. The  facts so  established should be consistent with the hypothesis  of guilt  and the  accused, that  is to say,

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they should  not be  explainable  on  any  other  hypothesis except that the accused is guilty; [163G]      3. The  circumstances should  be of a conclusive nature and tendency;[163G]      4. They should exclude every possible hypothesis except the one to be proved; and [163H]      5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the  innocence of the accused and must show that in all human probability  the  act  must  have  been  done  by  the accused. [164B]      These five  golden principles constitute the panchsheel of the  proof of a case based on circumstantial evidence and in the absence of a corpus deliciti. [164B]      Hanumant v.  The State  of Madhya  Pradesh  [1952]  SCR 1091; Tufail  (Alias) Simmi v. State of Uttar Pradesh [1969] 3 SCC 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656; and Shivaji  Sahabrao Babode  & Anr. v. State of Maharashtra [1973] 2 SCC 793 referred to.      3:4. The  cardinal principle  of criminal jurisprudence is that  a case  can be said to be proved only when there is certain and  explicit evidence and no pure moral conviction. [164F]      The King  v. Horry  [1952]  N.Z.L.R.  III  quoted  with approval.      Hanumant v. State of M.P. [1952] S.C.R. 1091; Dharambir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.58); Chandrakant Nyslchand Seth v. The State of Bombay  (Criminal Appeal  No.  120  of  1957  decided  on 19.2.58) Tufail  (alias) Simmi  v. State  of U.P.  [1969]  3 S.C.C. 198;  Ramgopal v.  State of  Maharashtra AIR  1972 SC 656; Naseem  Ahmed v.  Delhi  Administration  [1974]  2  SCR 694/696 Mohan  Lal Pangasa  v. State  of U.P. A.I.R. 1974 SC 1144/46; Shankarlal  Gyarasilal Dixit v State of Maharashtra [1981]  2   SCR  384/390;  and  M.C.  Agarwal  v.  State  of Maharashtra [1963] 2 SCR 405/419 referred to.      Denonandan Mishra  v The  State of  Bihar [1955]  2 SCR 570/582 distinguished.      Some of  the statements  which have a causal connection with the  death of Manju or the circumstances leading to her death are undoubtedly admissible 93 under section  32 of  the Evidence  Act but other statements which do  not bear any proximity with the death or if at all very remotely  and indirectly connected with the death would not be admissible. [121H]      3.5. In  view of  the close  relationship and affection any person  in the  position of  the witness would naturally have a  tendency to  exaggerate or  add facts  which may not have been  stated to  them at  all. This is human phychology and no  one can  help it.  Not that this is done consciously but even  unconsciously  the  love  and  affection  for  the deceased would  create a  phychological hatred  against  the supposed murderer,  the court has to examine the evidence of interested witnesses  with very great care and caution. Even if the  witnesses were  speaking a  part  of  the  truth  or perhaps the  whole of it they would be guided by a spirit of revenge or  nemesis against  the accused  person and in this process certain  facts which  may not or could not have been stated may  be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. [122C-D]      3.6. A  close and  careful scrutiny  of the evidence of the witness  (PWs 2,  3, 4 and 5) who are close relatives or deceased and  conspicuously reveals  a story  which is quite

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different from the one spelt out from the letters (Exhs. 30, 32 and  33). In  fact, the  letters have a different tale to tell particularly  in respect  of certain matters. They are: [138D]      (i) There  is absolutely  no reference to suicidal pact or the  circumstances leading  to the same; (ii) There is no reference even  to Ujvala  and her illcit relations with the appellant; (iii)  There is  no mention  of the fact that the deceased was  not at  all willing to go to Pune and that she was sent  by force;  (iv) The complaints made in the letters are confined to ill-treatment, loneliness, neglect and anger of the husband but no apprehension has been expressed in any of the letters that the deceased expected imminent danger to her life  from her  husband; (v) In fact, in the letters she had asked  her sister  and friend  not to  disclose her  and plight to  her parents  but while narrating the facts to her parents, she  herself violated  the said  emotional  promise which appears to be too good to be true and an after thought added to  strengthen the prosecution case; and (vi) If there is anything  inherent in  the letters  it is that because of her miserable  existence  and  gross  ill-treatment  by  her husband, Manju  might have  herself decided to end her life, rather than  bother her  parents. Therefore, these witnesses are not  totally dependable so as to exclude the possibility of suicide and to come to an irresistible inference, that it was the  appellant who  had murdered  the deceased. Though a good part  of the  evidence is  undoubtedly admissible,  its probative value  is precious  little in  view of the several improbabilities, [138E-H; 139A-B]      4.1. It  is well-settled that where on the evidence two possibilities are available or open one which goes in favour of the  prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. [166H] 94      In the  instant case,  the evidence  clearly shows that two views  are possible-one  pointing to  the guilt  of  the accused and  the other  leading to  his innocence. It may be very likely  that the  appellant may  have administered  the poison (potassium  cyanide) to  Manju but at the same time a fair possibility  that she  herself committed suicide cannot be safely  excluded or  eliminated. Hence,  on  this  ground alone the  appellant is  entitled to  the benefit  of  doubt resulting in his acquittal. [168B]      4.2. In  the cases  of murder  by administering poison, the Court must carefully scan the evidence and determine the four important  circumstances which  alone can  justify  the conviction: (1)  There is  a clear  motive for an accused to administer poison  to the  deceased; (ii)  that the deceased died of  poison said  to have  been administered; (iii) that the accused  had the poison in his possession; and (iv) that he had  an opportunity  to  administer  the  poison  to  the accused. [167F-H]      4.3. In the instant case, taking an over all picture on this part  of the  prosecution case the position seems to be as follows: [150D]      1. If the accused wanted to give poison while Manju was wide  awake,   she  would  have  put  up  stiffest  possible resistance as  any other  person in  her position would have done. Dr.  Banerjee in  his postmortem  report has not found any  mark   of  violence  or  resistance  even  if  she  was overpowered by  the appellant  she would  have  shouted  and cried and  attracted persons  from  the  neighbouring  flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short-

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while before the appellant. [150E-F]      2. Another  possibility which  cannot be  ruled out  is that potassium  cyanide may  have been  given to  Manju in a glass of  water if  she happened  to ask for it. But if this was so,  she being  a chemist  herself would  have  at  once suspected some  foul play  and once her suspicion would have arisen it  would be  very difficult  for  the  appellant  to murder her. [150G]      3. The  third possibility is that as Manju had returned pretty late  to the  flat and  she went to sleep even before the arrival  of the  appellant and  then he  must have tried forcibly  to   administer  the  poison  by  the  process  of mechanical suffociation,  in which  case alone  the deceased could not  have been  in a  position to offer any resistance but this  opinion of  doctor, has  not been  accepted by the High  Court,   after  a  very  elaborate  consideration  and discussion  of  the  evidence,  the  circumstances  and  the medical authorities,  found that  the opinion  of the doctor that Manju  died by  mechanical  suffocation  had  not  been proved or  at any  rate it  is not  safe  to  rely  on  such evidence. [150H; 151A-C]      4. The other possibility that may be thought of is that Manju died  a natural death. This also is eliminated in view of the  report of  the Chemical Examiner as confirmed by the postmortem  that   the  deceased   died  as   a  result   of administration of potassium cyanide. [152B] 95      5. The  only other  reasonable possibility that remains is that  as the deceased was fed up with the maltreatment by her husband,  in a  combined spirit of revenge and hostility after entering  the flat  she herself took potassium cyanide and lay  limp and  lifeless. When  the appellant entered the room he  must have thought that as she was sleeping she need not be  disturbed but  when  he  found  that  there  was  no movement in  the body after an hour his suspicion was roused and therefore  he called  his brother from the adjacent flat to send for Dr. Lodha. [152C-D]      In these  circumstances,  it  cannot  be  said  that  a reasonable possibility  of  the  deceased  having  committed suicide as alleged by the defence cannot be safely ruled out or eliminated.  It is  clear that  the circumstances  of the appellant having  been last  seen with  the deceased and has administered the opinion has not been proved conclusively so as to raise an irresistible inference that Manju’s death was a case of blatant homicide. [152E-F]      Further, in  a matter  of this  magnitude it  would  be quite natural  for the  members of  the appellants family to send for  their own  family doctor  who was fully conversant with the  ailment of  every member  of the  family. In these circumstances there  was nothing  wrong if the appellant and his brother  went to  a distance of one and a half kilometer to get.  Dr. Lodha. Secondly, Dr. Shrikant Kelkar was a skin specialist  whereas   Dr.  (Mrs,)   Anjali  Kelkar   was   a Paediatrician and  the appellant may have genuinely believed that as  they belonged  to different branches, they were not at all  suitable to  deal with such a serious case. The High Court was,  therefore, wrong  in treating  this circumstance namely not  calling the  two Doctors  in  the  flat,  as  an incriminating conduct of the appellant. [157B-D]      The circumstances  which were  not put to the appellant in his  examination under  S. 313  of the Criminal Procedure Code must  be completely excluded from considerating because the appellant did not have any chance to explain them. Apart from the  aforesaid comments  there is  one vital  defect in some of  the circumstances  relied upon  by the  High  Court

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namely circumstances  Nos. 4,  5, 6, 8, 9, 11, 12,13, 16 and 17. [160B; 159B-C]      Fateh Singh  Bhagat Singh  v. State  of Madhaya Pradesh AIR  1953   SCR  468  ;  Shamu  Balu  Chagule  v.  State  of Maharashtra 1976  1 SCC 438 and; Harijan Meha Jesha v. State of Gujarat AIR 1979 SC 1566 referred to.      6. Viewing the entire evidence, the circumstance of the case and  the interpretation of the decisions of the Supreme Court the  legal and  factual position are (i) that the five golden  principles   enunciated  by  the  Supreme  Court  in Hanumant v.  The State of M.P. [1952] SCR 1091 have not been satisfied in  the instant  case. As  a logical corollary, it follows that  cannot be  held that  the act  of the  accused cannot be explained on any other hypothesis except the guilt of the  appellant nor  can it  be said  that  in  all  human probability, the  accused had committed the murder of Manju. In other  words,  the  prosecution  has  not  fulfilled  the essential requirements of a criminal case which rests purely on circumstantial  evidence; (ii)  From the  recital in  the letters Ex. P30, Ex-P32 and Ex-P33 it can be safely held 96 that there  was a  clear possibility  and a  tendency on the part  of  the  deceased  Manju  to  commit  suicide  due  to desperation and  frustration. She  seems to  be tried of her married life,  but she  still hoped against hope that things might improve.  She solemnly  believed that  her holy  union with her  husband bring  health and  happiness  to  her  but unfortunately  it  seems  to  have  ended  in  a  melancholy marriage which  left her so lonely and frustrated so much of emotional disorder  resulting from frustration and pessimism that she  was forced  to end her life. There can be no doubt that Manju  was not  only a  sensitive and sentimental women was extremely  impressionate and  the letters  show  that  a constant conflict between her mind and body was going on and unfortunately the  circumstances which  came into  existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideals fails, the  failure drives  them to end their life, for they feel that  no  charm  is  left  in  their  life;  (iii)  The prosecution has  miserably failed  to prove  one of the most essential  ingredients   of  a   case  of  death  caused  by administration of  poison i.e..  possession with the accused (either by  direct or  circumstantial evidence)  and on this ground alone  the  prosecution  must  fails.  (iv)  That  is appreciating  the  evidence,  the  High  Court  has  clearly misdirected itself  on many points, and has thus committed a gross error of law; (iv) That the High Court has relied upon decisions of  this Court  which are  either in applicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable; (vi) That the High Court has  taken a  completely wrong  view of law in holding that even  though the  prosecution may  suffer from  serious infirmities it could be reinforced by additional link in the nature of  false defence  in order  to supply the lacuna and has thus  committed a  fundamental error  or law; (vii) That the High  Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and  has merely  tried to  accept the  prosecution  case based on tenterhooks and slender tits and bits; (viii) It is wholly unsafe  to rely  on that  part of the evidence of Dr. Banerjee (PW  33)  which  shows  that  poison  was  forcibly administered by the process of mechanical suffociation; (ix) There is no manifest defect in the investigation made by the police which  appears to  be honest  and  careful.  A  proof positive  of   this  fact  is  that  even  though  Rameshwar

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Birdichand  and   other  members   of  his  family  who  had practically no  role to  play had  been arraigned as accused but they  had to  be acquitted by the High Court for lack of legal evidence;  (x) That  in view of the findings two views are clearly  possible in  the present  case, the question of defence being false does not arise. [172E-H; 173A-H; 174A-D] Per Varadarajan, J. (Per contra on facts.)      1:1. The  three letters Exh. P 30, Exh. P 32 and Exh. P 33 and  the oral  evidence of  PWs. 2,  3, 5,  6, and 20 are inadmissible in evidence under section 32(1) of the Evidence Act. There  is no acceptable evidence on record to show that either  the   appellant  or   his  parents  ill-treated  the desceased Manju  and that  the  appellant  had  any  illicit intimacy with  PW 37  Ujvala. The  alleged oral statement of Manju and what she has stated in her letters Exh. 30, 32 and 33 may  relate to  matters  perhaps  having  a  very  remote bearing on  the cause  or the  circumstances of  her  death. Those circumstances do not have any proximate 97 relation to the actual occurrence resulting in her death due to potassium  cyanide poison though for instance in the case of  prolonged   poisoning  they   may   relates   to   dates considerably distant from the date of the actual fatal dose. They are  general impressions  of Manju  indicating fear  or suspicion, whether  of a  particular individual or otherwise and not directly related to the occasion or her death. It is not the case of the prosecution either that the present case is one of porlonged poisoning. [187B; 190D-F]      1: 2.  The fact  that the  High court  has rejected the case of  the prosecution  based on Dr. Banerjee’s report and evidence that  it was  also a case of mechanical suffocation is not  one that  could be  taken into  consideration  as  a mitigating circumstance in judging the conduct of the doctor who had conducted the autopsy in a case of suspicious death. The  conduct   of  the   doctor  in   making  certain  later interpolations in  the case of suspicious death in which the appellant has  been sentenced  to death  by the  two  courts below  deserves   serious  condemnations.   The  doctor  has tempered with  material evidence  in  the  case  of  alleged murder may be at the instance of somebody else, ignoring the probable consequences of his act. In these circumstances Dr. Banerjee PW  33 is  person who  should not be entrusted with any serious  and responsible work such as conducting autopsy in public  interest. In  this case  the appellant would have gone to  gallows on the basis of the evidence of PW 33 as he would have  the Court to believe it, and the other evidence, if they had been accepted. [193D-H]      1: 3.  Section 313  Criminal Procedure  Code lays  down that in  every inquiry  or trial for the purpose of enabling the accused personally to explain any circumstance appearing in the  evidence against  him, the  court may  at any  stage without previously  warning the  accused, put such questions to him as the court considers necessary and shall, after the witnesses for  the prosecution have been examined and before he is  called for his defence, question him generally on the case. Hence the evidence on the basis on which question Nos. 25, 30,  32, and  115 have  been put  to the  appellant  are wholly irrelevant  as these  questions do  not relate to any circumstance appearing  in the  against the  appellant.  The learned Additional  Sessions Judge  was  bound  to  exercise control over the evidence being tendered in his court and to know the  scope of  the examination  of  the  accused  under Section 313 Criminal Procedure Code [195A-C]      Per Sabyasachi Mukharji, J. (Concurring)

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    Though the  test of  proximity cannot and should not be two literally construed and be reduced practically to a cut- and-dried formula  of  universal  application,  it  must  be emphasised  that   wherever  it   is  extended   beyond  the immediate, it should be explained and must be done with very great caution  and care.  As a general proposition it cannot be laid  down for  all purposes  that for instance where the death takes  place within  a short  time of marriage and the distance of  time is  not spread  over three or four months, the statement  would be  admissible under  Section 32 of the evidence Act.  This is  always not  so and  cannot be so. In very  exceptional   circumstances  such  statements  may  be admissible and  that too  not for proving the positive fact, namely raising  some doubt  about the  guilt of  the accused [197D-F] 98

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 745 of 1983      From the Judgment and Order dated the 20th, 21st, 22nd, 23rd September  1983 of  the Bombay  High Court  in Criminal Appeal No. 265 of 1983 with confirmation case No. 3/83.      Ram Jethmalani,  M.S. Ganesh,  F. N. Ranka and Ms. Rani Jethmalani for the Appellant.      K.G. Bhagat,  Addl. Solicitor  General, M.N. Shroff and U.A. Jadhavrao for the Respondent.      The following Judgments were delivered      FAZAL ALI,  J. This is rather an unfortunate case where a  marriage   arranged  and   brought  about   through   the intervention of  common friends of the families of the bride and bridegroom  though made  a good start but ran into rough weather soon  thereafter. The bride, Manju, entertained high hopes and  aspirations and  was  not  only  hoping  but  was anxiously looking  forward to  a  life  full  of  mirth  and merriment, mutual love and devotion between the two spouses. She appears  to be an extremely emotional and sensitive girl at the  very behest  cherished ideal  dreams to  be achieved after her  marriage, which  was solemnised  on February  11, 1982 between  her  and  the  appellant,  Sharad  Birdhichand Sarda. Soon  after the  marriage, Manju  left  for  her  new marital home  and started  residing with  the  appellant  in Takshila apartments  at Pune. Unfortunately, however, to her utter dismay and disappointment she found that the treatment of her  husband and  his parents  towards her  was cruel and harsh and  her cherished  dreams seem to have been shattered to pieces.  Despite this  shocking state  of affairs she did not give in and kept hoping against hope and being of a very noble and  magnanimous nature  she  was  always  willing  to forgive and  forget. As  days passed  by, despite  her  most laudable attitude  she found that "things were not what they seem" and  to quote  her own  words "she  was treated in her husbands house  as a labourer or as an unpaid maid-servant". She was  made to  do all  sorts of  odd jobs and despite her protests to her husband nothing seems to have happened. Even so, Manju  had such a soft and gentle frame of mind as never to complain  to her  parents-in-law, not even to her husband except sometimes.  On finding  things  unbearable,  she  did protest, and ex 99 pressed her feelings in clearest possible terms, in a fit of utter desperation  and frustration,  that he  hated her. Not only this,  when she  narrated her woeful tale to her sister

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Anju in  the letters  written to  her (which  would be dealt with in a later part of the judgment), she took the abundant care and  caution of  requesting Anju  not to reveal her sad plight to  her parents  lest they  may get  extremely upset, worried and distressed.      Ultimately, things  came to  such a pass that Manju was utterly disgusted  and disheartened  and she  thought that a point of  no-return had  reached. At  last, on  the  fateful morning of  June 12,1982, i.e., nearly four months after her marriage, she was found dead in her bed.      As to  the cause  of death,  there appears to be a very serious divergence  between the  prosecution version and the defence case.  The positive case of the prosecution was that as the  appellant was  not at  all interested in her and had illicit intimacy  with another  girl, Ujvala, he practically discarded his wife and when he found things to be unbearable he murdered  her between  the night of June 11 and 12, 1982, and  made  a  futile  attempt  to  cremate  the  dead  body. Ultimately, the  matter was  reported to  the police. On the other hand, the plea of the defence was that while there was a strong  possibility of  Manju having  been ill-treated and uncared for  by her  husband or  her in-laws, being a highly sensitive and  impressionate woman she committed suicide out of  sheer   depression  and   frustration  arising  from  an emotional upsurge.  This is  the dominant  issue which falls for decision by this Court.      Both the  High Court  and the  trial court rejected the theory of  suicide and  found that Manju was murdered by her husband by  administering her  a strong  dose  of  potassium cyanide and  relied on  the Medical evidence as also that of the chemical examiner to show that it was a case of pure and simple homicide  rather than  that of  suicide as alleged by the defence. The High Court while confirming the judgment of the trial  court affirmed  the death sentence and hence this appeal by special leave.      Before discussing  the facts  of the  case, it  may  be mentioned that  although the  High Court and the trial court have gone into meticulous and minutest matters pertaining to the circumstances  leading to  the alleged  murder of Manju, yet after going through the 100 judgments we  feel that  the facts  of the case lie within a very narrow compass.      The story  of this unfortunate girl starts on 11.2.1982 when her marriage was solemnised with the appellant preceded by a formal betrothal ceremony on 2.8.8. after the marriage, Manju, for  the first  time, went  to her  parents’ house on 22.2.82 for  a very  short period  and returned  to Pune  on 26.2.82. It  is the  prosecution case  that on  17.3.82  the appellant  had   called  Manju   at  Pearl  Hotel  where  he introduced her  to Ujvala  and told  her that  she must  act according to the dictates and orders of Ujvala if she wanted to lead a comfortable life with her husband. In other words, the suggestion  was that  the appellant made it clear to his wife that  Ujvala was  the real  mistress of  the house  and Manju  was  there  only  to  obey  her  orders.  After  this incident, Manju  went to  her parents’  house on  2.4.82 and returned to  Pune on 12.4.82. This was her second visit. The third and  perhaps the  last visit  of Manju to her parents’ house was  on 25.5.82.  from where  she returned  to Pune on 3.6.82, never  to return again. The reason for her return to Pune was  that her  father-in-law insisted  that she  should return to  Pune because  the betrothal  ceremony  of  Shobha (sister of the appellant) was going to be held on 13.6.82.      The last step in this unfortunate drama was that Manju,

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accompanied by  Anuradha (wife  of A-2)  and  her  children, returned to  the flat  on 11.6.82  near about 11.00 p.m. Her husband was  not in  the apartment  at that  time but  it is alleged by  the prosecution  that he returned soon after and administered potassium  cyanide to  Manju.  Thereafter,  the appellant went to his brother, Rameshwar who was also living in the  same flat  and brought  Dr. Lodha  (PW 24)  who  was living at  a distance  of 11/2 Kms from Takshila Apartments. At the  suggestion of  Dr. Lodha Dr. Gandhi (PW 25) was also called both  and of  them found  that Manju was dead and her death was  an unnatural  one and advised the body to be sent for postmortem  in order  to determine  the cause  of death. Ultimately, Mohan  Asava (PW 30) was approached on telephone and  was   informed  that   Manju  had  died  at  5.30  a.m. Subsequently, the  usual investigation  and  the  postmortem followed which  are not  very germane  for  our  purpose  at present and would be considered at the appropriate stage.      The plea  of the  appellant  was  that  Manju  was  not administered potassium  cyanide by  him but  she appears  to have committed 101 suicide out of sheer frustration. In order to prove his bona fide the   accused  relied on the circumstances that as soon as he came to know about the death of his wife he called two Doctors (PWs  24 & 25) and when they declared that Manju had died an  unnatural death,  as the  cause of  death  was  not known, and therefore the body had to be sent for postmortem, he immediately  took steps  to inform  the police. He flatly denied the  allegation of the prosecution that there was any attempt on his part to persuade Mohan Asava (PW 30) to allow the body of the deceased to be cremated.      We might  state that  the High  Court has  mentioned as many  as  17  circumstances  in  order  to  prove  that  the circumstantial evidence  produced  by  the  prosecution  was complete and  conclusive, Some  of  13  these  circumstances overlap, some  are irrelevant  and some cannot be taken into consideration because  they were not put to the appellant in his statement under s. 313 of the Code of Criminal Procedure in order  to explain  the effect  of the  Code  of  Criminal Procedure in  order to  explain the effect of the same as we shall presently show.      The law  regarding the nature and character of proof of circumstantial  evidence   has  been   settled  by   several authorities of  this Court  as also  of the High Courts, The locus classicus  of the  decision of  this Court  is the one rendered in  the case  of Hanumant  v. The  State of  Madhya Pradesh where  Mahajan, J.  clearly  expounded  the  various concomitants  of  the  proof  of  a  case  based  purely  on circumstantial evidence, and pointed out thus:           "The  circumstances  should  be  of  a  conclusive      nature and  tendency and  they should  be  such  as  to      exclude every  hypothesis but  the one  proposed to  be      proved..... it  must be such as to show that within all      human probability  the act  must have  been done by the      accused."      This decision  was followed  and endorsed by this Court in the  case of  Dharambir Singh  v. The State of Punjab. We shall however  discuss Hanumant’s case fully in a later part of  our   judgment.  Coming   now   to   the   question   of interpretation of sec. 32(1) of The Evidence Act, this Court in the  case of  Ratan Gond  v. State  of Bihar S.K. Das, J. made the following observations: 102           "The only  relevant clause  of s.  32 which may be      said to  have any  bearing is  cl.(1) which  relates to

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    statements made  by a  person as  to the  cause of  his      death  or  as  to  any  of  the  circumstances  of  the      transaction which  resulted in  his death.  In the case      before us, the statements made  by Aghani do not relate      to  the   cause  of   her  death   or  to  any  of  the      circumstances relating  to her  death; on the contrary,      the statements relate to the death of her sister."      In the ’Law of Evidence’ by Woodroffe & Ameer Ali (Vol.      II) the  authors have  collected all  the cases  at one      place and indicated their conclusions thus:      "To sum  up, the  test of  the relevancy of a statement      under Section  32(1), is  not what the final finding in      the case  is but  whether the final finding in the case      is but  whether the  cause of  the death  of the person      making the  statement comes  into question in the case.      The  expression   ’any  of  the  Circumstances  of  the      transaction which  resulted in  his death’; is wider in      scope than  the expression ’the cause of his death’; in      other words,  Clause (1)  of Section  32 refers  to two      kinds of  statements: (1) statement made by a person as      to the  cause of  his death, and (2) the statement made      by a  person as  to any  of the  circumstances  of  the      transaction which resulted in his death.           The words,  ’resulted in  his death’  do not  mean      ’caused his  death’,  Thus  it  is  well  settled  that      declarations are  admissible only  in so  far  as  they      point directly  to the fact constituting the res gestae      of the  homicide; that is to say, to the act of killing      and to the circumstances immediately attendant thereon,      like threats  and difficulties  acts, declarations  and      incidents, which  constitute or  accompany and  explain      the fact or transaction in issue.      They are  admissible for  or against  either party,  as      forming parts of the res gestae." (P. 952)      It would  appear that  the  solid  foundation  and  the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows:- 103      (1)  Written dying  declaration by  the deceased in her           letters, two of which were addressed to her sister           Anju and one her friend Vahini,      (2)  The oral  statements made  by the  deceased to her           father (PW  2), mother  (PW 20), Sister (PW 6) and           her friend  (PW 3) and also to PWs 4 and 5 showing           her state of mind shortly before her death and the           complaints  which  she  made  regarding  the  ill-           treatment by her husband,      (3)  evidence showing  that the appellant was last seen           with the deceased in the room until the matter was           reported to the police.      (4)  the unnatural  and incriminating  conduct  of  the           appellant,      (5)  the medical evidence taken alongwith the Report of           the chemical  examiner which  demonstrably  proves           that it  was a  case of homicide, completely rules           out the  theory  of  suicide  as  alleged  by  the           appellant.      Mr. Jethmalani,  learned counsel for the appellant, has vehemently argued  that there  was a very strong possibility of  the   deceased  having  committed  suicide  due  to  the circumstances mentioned  in her  own letters.  He  has  also questioned  the   legal  admissibility   of  the  statements contained in the written and oral dying declarations. He has submitted  that   the  so-called   dying  declarations   are

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admissible neither under s. 32 nor under s.8 of the Evidence Act it  was submitted by the appellant that the present case is not  at all  covered by  cl.(1) of  s. 32 of the Evidence Acts.      The leading  decision on  this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami v. Emperor  where Lord  Atkin has  laid down  the  following tests:           "It has  been suggested that the statement must be      made after  the transaction  has taken  place, that the      person making  it must  be at any rate near death, that      the "circumstances" can only include the acts done when      and 104      where the  death was  caused. Their  Lordships  are  of      opinion that the natural meaning of the words used does      not convey  any of these limitations. The statement may      be made before the cause of death has arisen, or before      the deceased has any reason to anticipate being killed.      The  circumstances   must  be   circumstances  of   the      transaction: general  expressions  indicating  fear  or      suspicion  whether   of  a   particular  individual  or      otherwise and  not directly  related to the occasion of      the   death    will   not    be   admissible-----------      Circumstances of  the transaction" is a phrase no doubt      that conveys  some limitations.  It is  not as broad as      the analogous  use in  "circumstantial evidence"  which      includes evidence  of all  relevant facts. It is on the      other hand  narrower than  "res gestae".  Circumstances      must  have   some  proximate  relation  to  the  actual      occurrence. ----------It  will be  observed  that  "the      circumstances are  of the transaction which resulted in      the death of the declarant."      These principles  were followed and fully endorsed by a decision of  this Court  in Shiv Kumar & Ors v. The State of Uttar Pradesh where the following observations were made:           "It is clear that if the statement of the deceased      is to  be admissible  under this  section it  must be a      statement  relating   to  the   circumstances  of   the      transaction resulting  in his  death. The statement may      be made before the cause of death has arisen, or before      the  deceased   has  any  reason  to  anticipate  being      killed,---------A necessary  condition of admissibility      under the  section is  that the  circumstance must have      some proximate relation to the actual occurrence-------      ---- The phrase "circumstances of the transaction" is a      phrase that  no doubt  conveys some  limitations. It is      not as  broad as  the analogous  use in "circumstantial      evidence"  which  includes  evidence  of  all  relevant      facts. It  is on  the other  hand  narrower  than  "res      gestae" (See  Pakala Narayana Swami v. The King Emperor      AIR 1939 PC 47).      The aforesaid  principles have  been followed by a long catena of  authorities of  almost all  the courts which have been noticed  in this  case. To mention only a few important once, in Manoher Lal 105 & ors.  v. The  State of  Punjab, the  Division Bench of the Punjab & Haryana High Court observed thus:           The  torture   administered  sometimes   manifests      itself in  various forms.  To begin  with, it  might be      mental torture  and then  it may  assume  the  form  of      physical torture.  The physical harm done to the victim      might be  increased from  stage to  stage to  have  the      desired effect. The fatal assault might be made after a

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    considerable interval of time, but if the circumstances      of  the  torture  appearing  in  the  writings  of  the      deceased come  into existence  after the  initiation of      the torture  the same  would be  held to be relevant as      laid down in Section 32(1) of the Evidence Act."      We fully  agree with the above observations made by the learned Judges.  In Protima  Dutta & Anr. v. The State while relying on  Hanumant’s case  (supra) the Calcutta High Court has clearly  pointed  out  the  nature  and  limits  of  the doctrine of  proximity and  has observed  that in some cases where there is a sustained cruelty, the proximity may extend even to  a period  of three  years. In  this connection, the High Court observed thus:           "The ’transaction’  in this case is systematic ill      treatment for  years since  the marriage of Sumana with      incitement  to  end  her  life.  Circumstances  of  the      transaction include  evidence of cruelty which produces      a state  of mind  favourable to  suicide. Although that      would not  by itself  be sufficient  unless  there  was      evidence of  incitement to  end her  life it  would  be      relevant as evidence.           This observation  taken as  a whole  would, in  my      view, imply  that the  time  factor  is  not  always  a      criterion in  determining whether the piece of evidence      is   properly   included   within   "circumstances   of      transaction. "--------"In  that case the allegation was      that there  was  sustained  cruelty  extending  over  a      period of  three years interspersed with exhortation to      the victim  to end  her  life."  His  Lordship  further      observed and  held that the evidence of cruelty was one      continuous chain,  several links  of which were touched      up by the exhortations to die. "Thus evidence 106      of cruelty,  ill treatment  and exhortation  to end her      life adduced  in the  case  must  be  held  admissible,      together with  the statement  of Nilima  (who committed      suicide)  in   that  regard   which  related   to   the      circumstances terminating in suicide."      Similarly, in  Onkar v.  State of  Madhya Pradesh while following the  decision  of  the  Privy  Council  in  Pakala Narayana Swami’s case (supra), the Madhya Pradesh High Court has explained  the nature  of the circumstances contemplated by s. 32 of the Evidence Act thus:           "The  circumstances   must  have   some  proximate      relation to  the Actual  occurrence and  they can  only      include the  acts done  when and  where the  death  was      caused.-------  Thus   a  statement  merely  suggesting      motive for  a crime  cannot  be  admitted  in  evidence      unless  it   is  so   intimately  connected   with  the      transaction itself  as to  be  a  circumstance  of  the      transaction. In  the instant case evidence has been led      about statements  made by the deceased long before this      incident which may suggest motive for the crime."      In Allijan  Munshi v.  State, the Bombay High Court has taken a similar view.      In Chinnavalayan v. State of Mad ras two eminent Judges of the  Madras High Court while dealing with the connotation of the word ’circumstances’ observed thus:           "The special  circumstance permitted to transgress      the time  factor is,  for example,  a case of prolonged      poisoning, while  the special circumstance permitted to      transgress the  distance factor is, for example, a case      of decoying  with intent to murder. This is because the      natural  meaning  of  the  words,  according  to  their      Lordships, do not convey any of the limitations such as

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    that the  statement must  be made after the transaction      has taken place, that the 107      person making  it must  be at any rate near death, that      the circumstances  can only  include acts done when and      where the  death was caused. But the circumstances must      be circumstances  of the transaction and they must have      some proximate relation to the actual occurrence."      In Gokul  Chandra Chatterjee  v. The State the Calcutta High  Court   has  somewhat  diluted  the  real  concept  of proximity and observed thus:           ’In the  present case,  it  cannot  be  said  that      statements in the letters have no relation to the cause      of  death.   What  drove   her  to   kill  herself  was      undoubtedly  her   unhappy  state   of  mind,  but  the      statements in  my view have not that proximate relation      to the  actual occurrence  as to  make them  admissible      under s. 32(1), Evidence Act. They cannot be said to be      circumstances of  the  transaction  which  resulted  in      death."      We, however, do not approve of the observations made by the High  Court in  view of the clear decision of this Court and that  of the  privy Council.  With due respect, the High Court has  not properly interpreted the tenor and the spirit of the  ratio laid  down  by  the  Privy  Council.  We  are, therefore, of  the opinion  that this case does not lay down the correct law on the subject.      Before closing  this chapter  we might  state that  the Indian law  on the question of the nature and scope of dying declaration has  made a  distinct departure from the English law where  only the  statements which directly relate to the cause of  death are admissible. The second part of cl.(1) of 32,  viz.   "the  circumstances  of  the  transaction  which resulted in  his death,  in cases in which the cause of that person’s death  comes into  question" is not be found in the English law.  This distinction  has been clearly pointed out in the  case of  Rajindera Kumar  v.  The  State  where  the following observations were made:           "Clause (1)  of s.  32 of  the Indian Evidence Act      provides  that   statements,  written   or  verbal,  of      relevant facts made by a person who is dead,--------are      themselves rele- 108      vant facts when the statement is made by a person as to      the  cause   of  his   death,  or  as  to  any  of  the      circumstances of  the transaction which resulted in his      death, in  case, in  which the  cause of  that person’s      death comes into question.---------- It is well settled      by now that there is difference between the Indian Rule      and the  English Rule  with regard  to the necessity of      the declaration  having been  made under expectation of      death.           In the  English Law  the declaration  should  have      been made  under the  sense of  impending death whereas      under the  Indian Law  it  is  not  necessary  for  the      admissibility of  a dying declaration that the deceased      at the  time of  making it  should have  been under the      expectation of death.      And in the case of State v. Kanchan Singh & Anr. it was observed thus:           "The law  in India does not make the admissibility      of a  dying declaration  dependent  upon  the  person’s      having a  consciousness of  the approach of death. Even      if the  person did  not apprehend  that he would die, a      statement made  by him  about the  circumstances of his

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    death would be admissible under s. 32. Evidence Act.      In these  circumstances, therefore,  it  is  futile  to refer to English cases on the subject.      Thus, from  a review of the authorities mentioned above and the  clear language  of s.32(1) of the Evidence Act, the following propositions emerge:-           (1) Section  32 is  an exception  to the  rule  of      hearsay and  makes admissible the statement of a person      who dies, whether the death is a homicide or a suicide,      provided the  statement relates  to the cause of death,      or exhibits  circumstances leading  to death.  In  this      respect, as  indicated above,  the Indian Evidence Act,      in view  of the  peculiar conditions of our society and      the diverse nature and 109      character of  our people,  has thought  it necessary to      widen the sphere of s.32 to avoid injustice.           (2) The  test of proximity cannot be too literally      construed and  practically reduced  to a  cut-and-dried      formula of  universal application  so as to be confined      in a  straitjacket. Distance  of time  would depend  or      vary with the circumstances of each case. For instance,      where death  is a  logical culmination  of a continuous      drama long  in process  and is, as it were, a finale of      the story,  the statement  regarding each step directly      connected with the end of the drama would be admissible      because the  entire statement  would have to be read as      an  organic  whole  and  not  torn  from  the  context.      Sometimes  statements  relevant  to  or  furnishing  an      immediate motive may also be admissible as being a part      of the  transaction of  death. It  is manifest that all      these statements  come to light only after the death of      the deceased who speaks from death. For instance, where      the death  takes place  within a very short time of the      marriage or  the distance  of time  is not  spread over      more than  3-4 months  the statement  may be admissible      under s.32.           (3) The second part of cl.1 of s.32 is yet another      exception to the rule that in criminal law the evidence      of a  person who was not being subjected to or given an      opportunity of  being cross-examined  by  the  accused,      would  be   valueless  because   the  place  of  cross-      examination is  taken by  the solemnity and sanctity of      oath for  the simple  reason that a person on the verge      of death is not likely to make a false statement unless      there is strong evidence to show that the statement was      secured either by prompting or tutoring.           (4) It may be important to note that s.32 does not      speak of  homicide alone  but  includes  suicide  also,      hence all  the circumstances  which may  be relevant to      prove a  case of  homicide would be equally relevant to      prove a case of suicide.           (5) Where the main evidence consists of statements      and letters  written by the deceased which are directly      connected with or related to her death and which reveal      a tell-tale  story, the  said statement  would  clearly      fall within  the four  corners of  s.32 and, therefore,      admissible. The distance of 110      time alone  in such  cases would not make the statement      irrelevant.      This now  brings us  to a  close consideration  of  the contents of  the letters  (Exhs. 30,  32 and  33) written by Manju to  her sister  and friend.  We propose to examine the contents of the letters for four purposes:

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    1)   in order  to  find  out  the  state  of  mind  and           psychological attitude of Manju,      2)   the nature of Manju’s attitude towards her husband           and in-laws,      3)   the amount  of tension and frustration which seems           to be clearly expressed in the letters and      4)   to   determine   Manju’s   personal   traits   and           psychological approach to life to determine if she           was  ever   capable  of  or  prone  to  committing           suicide.      We start  with the  letter dated  8.5.82 (Ex. 30) which was addressed  to her sister Anju and is printed at page 191 of Part  I of the printed Paperbook. The learned counsel for the appellant  in order  to make  our task easy has supplied the English  translation as  also the  Roman script  of  the original letter. On a comparison of the two versions, we are of the  opinion that  by and  large the  English translation printed in the Paperbook is a true and faithful rendering of the contents of the original letter. It is not necessary for us to  extract the  entire letter  but we propose to extract only  the  relevant  portions  which  seek  to  explain  and illustrate the four purposes mentioned above.           "All read  the letter with curiosity, or it may go      to anybody’s hand. I do not want to take any risk. So I      have taken  up today  for writing, the second letter to      you."     The      Roman     scripy     runs     thus:-      (P.191)           "Khat to  sabhi utsukta  se padte hain. Kahin kisi      ke hath  pad saktahai. Aisi risk leni nahin aai. Isliye      maine   tumhe   aaj   doosra   khat   likhneko   liya."      (P.17)      An analysis of the above clearly shows that Manju was a highly secretive  woman and  wanted  to  keep  her  personal matters or 111 secrets to  herself except  giving a rough idea or a passing glimpse of her feelings only to those who were very close to her as  friends or  near relations.  The extract  shows that perhaps in  a spell of heavy emotions she had written a very long letter  to her  sister whom  she regarded  as her  best friend but  on second  thought she  tore it  off lest it may fall in  anybody’s hands  and she  was not  prepared to take such a  risk. This  mentality and  noble nature  would be of great assistance  to us  in assessing the probative value of the statements made by her to her parents, sister and friend during her  last visit  to Beed. The second paragraph, which is extracted  below, reflects  her state  of  mind  and  the tension and torture which she was undergoing:           "Now in  this letter,  when (Out  of)  the  things      coming to  my mind  which cannot  be written,  I do not      understand what is to be written, The State of mind now      is very  much the  same. Enough. You understand (me). I      am undergoing  a very  difficult test.  I am  unable to      achieve it.  Till I  could control  (myself), well  and      good. When  it becomes  impossible, some other way will      have to  be evolved.  Let  us  see  what  happens.  All      right." (P.191)      She has hinted that hinted that she was passing through difficult times but was trying to control herself as much as she could.  She has further indicated that if things did not improve then  she may  have to evolve some other method. The exact words used in the Roman script runs thus:           "Jab  tak   sambhal  sakti   hoon  theek  hai  jab      assambhab ho  jayega  to  phir  rasta  nikalna  padega,

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    dekhenge kya kya hota hai,"      The words  "some other  way will  have to  be  evolved" clearly gives a clue to her psychotic state of mind and seem to suggest  that the  other method  to get  rid of  all  her troubles was to commit suicide. It is pertinent to note that in the  first two  paragraphs of  her letter extracted above there is no indication nor any hint about the conduct of her husband.      In the third para of her letter she states her feelings      thus: "I  thought much  that  since  the  house  of  my      husband’s parents  is at Pune, I would do this and that      or the people 112      from the  house  of  my  husband’s  parents  are  free.      However, I  have gradually  come to  know that  in that      house, the  worth of  a daughter-in-law is no more than      that             of             a             laborer."      (P.191)      The relevant portion in the Roman script reads thus:           "Is ghar  mein bahu  ki keemat  majdoor  se  jyada      nahin hai." (P. 18)      At the  end or  the third paragraph she repeats her sad plight thus:           "My  state  here  however  is  like  an  unclaimed      person. Let  it be  gone. I  do not  like to weep (over      it). When we will meet, we will talk all the things."      In the  middle of  the 4th paragraph she comes out with an emotional  outburst by  indicating that all her hopes had been shattered and because of being neglected by her husband her health  was adversely  affected. In the Roman script she used the following words:           "Sachmuch kya  kya sapne  rahte hain kuarepanmein,      magar toote  huye dekhkar dilpar kya gujarti hai. Vaise      tu maine  kuch bhi  sapne nahin  dekhe the,  bas ek  hi      sapna tha  ki mera  pati mujhse  bahut pyar kare, magar      abhi wo bhi na pakar dilki halat per kaboo nahin pa sak      rahi.  Tabiyat   par  uska   asar   dikh   raha   hai."      (P. 19-20)      In the  latter part  of the  8th paragraph while giving vent to her feelings she states thus:           "Now Manju is moving, it is necessary to tell that      she is alive. You don’t tell anybody about this letter.      I felt like telling all this to Bhausab. What, however,      is the  use of  making him sorry. One should test one’s      fate, whatever  may be  the result.  I want to tell you      all. But I cannot tell."      The  words  used  by  her  show  her  affectionate  and secretive nature and the precaution taken by her not to tell any thing  to her father, who is addressed as ’Bhausab’. The Roman script of the relevant portion runs thus: 113           "Dil tu  karta tha  Bai Bhau  Sahab ko sab bataon,      magar unko  dukh dekar  kya phaida.  Apne  apne  naseeb      dekhenge, natija  kya nikalta  hai. Mujhe  tumbein  sab      kuch batana hai magar bata nahin sakti."                                                       (P.22)      These extracts  throw a  flood of  light on the nature, character, mental  attitude,  suffering  and  shock  of  the deceased. One  thing which  may be  conspicuously noticed is that she  was prepared  to take  all the blame on her rather than incriminate  her  husband  or  her  inlaws.  The  other portions of  the letter  (Ex.30) are  not at all germane for the purpose  of this  case. Summarising the main contents of the letter, the following conclusions or inferences follow:

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    (a)  Manju was a highly emotional and sensitive woman,      (b)  She got  the shock  of her  life when  due to ill-           treatment by  her husband  and in-laws  she  found           that all  her dreams  had been shattered to pieces           after marriage  leaving her  a dejected, depressed           and disappointed woman,      (c)  she had been constantly ill-treated by her in-laws           and her position in the house was nothing but that           of an unpaid maid-servant or a labourer,      (d)  she wanted to keep all her worries and troubles to           herself and  on no  account was  she  prepared  to           disclose them  to  her  parents  or  even  to  her           sister,  lest   they  also   get   depressed   and           distressed.      (e)  no serious  allegation of  cruelty had  been  made           against the  husband personally  by  her  and  she           thought that  she herself  should  suffer  out  of           sheer frustration.      Now we  shall examine  Ex.32 which  is a  letter  dated 8.6.82 written by Manju to her sister Anju. This was perhaps her last  letter to  Anju and is very important and relevant for decision  of the  case. The letter begins with the words "I am happy here." In the second paragraph she expresses her feelings as follows:           "Shobhabai’s ’Sadi’  programme is  fixed on 13th I      do not know why there is such a dirty atmosphere in the      house ?  It is  felt every  moment that  something will      happen. 114      Everybody is  in tension.  No work  has been started in      the house. Let it go. I am out of mind. Still I am used      not to pay need to it. Ala what about your law."                                                      (P.195)      So far  as the  first part  is  concerned,  the  ’dirty atmosphere’ about  which she  speaks is totally unrelated to anything done  by the  husband or  of any cruel treatment by him; it  merely refers  to the  tension  prevailing  in  the family as  the ’Sadi’ (Kohl) was fixed on 13.6.82. Her anger is not  so much  towards her  husband or  herself as for the manner in  which things were being done. She complained that no work  had been  started and  being the eldest daughter in law of  the family  she felt  it her  duty to  see that  all arrangements  were   complete.  It   was  conceded   by  the Additional Solicitor-General that this portion of the letter does not  refer to  any ill-treatment  by the husband or his parents but relates only to the defective and unsatisfactory arrangements for  such an  important function.  The relevant portion of  the 3rd paragraph is also more or less innocuous but in between the lines it contains a tale of woe, a spirit of desperation  and frustration and a wave of pessimism. the actual vernacular words are-           "Mera to  aane ka  kya hota  hai dekna hai Buajike      yahan se  khat aur aaya to shahid chance mil sakta hai.      Magar meri  mangal ke  dulhan ke  roop mein  dekhne  ki      bahut ichha hai. Dekhenge."      She was  naturally apprehending  some thing and was not very hopeful  of going to her father’s place. This being her last letter,  and that  too a  short one,  it gives  a clear inkling of  the manner  of how her mind was working. She did not lay  any blame  on her husband or anybody else but still she was  afraid that  something was going to happen and that she may not be able to go to her father and see the marriage of her sister-in-law for which preparations were being made. In our opinion, these words are extremely prophetic and seem to indicate  that by  that time  she had  almost made up her

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mind to  end her  life instead  of carrying on her miserable existence. As  brevity is  the soul  of  wit,  she  directly hinted that  she may  not be  able to meet her father or any body naturally because when a life comes to an end there can be no such question. Exh. 32, though a short letter, depicts her real  feeling and perhaps a tentative decision which she may have  already taken  but did  not want  to disclose  for obvious reasons. 115      Then we  come to Exh.33 which is a letter dated 23.4.82 written by  the deceased  to her  close friend,  Vahini  and which shows her exact feelings, changing, mood and emotions. This is  the only letter where she had made clear complaints against  her  husband  and  the  relevant  portions  may  be extracted thus:           "Really, Vahini, I remember you very much. Even if      I am  little uneasy,  I feel  that you should have been      near with me.           All persons  here  are  very  good.  Everybody  is      loving. Still I feel lonely. One reason is that, in the      house there  are many  persons and they are elder to me      and such  I do  not dare  to do any work independently.      Every  time  some  fear  is  in  mind  which  leads  to      confusion.           God knows  when I  can come  there ?  The point on      which we  had discussion  is as it was. Vahini. I swear      you if you talk to anyone. I am much in pains. But what      else can  I do  ? No  other go  than that, and the same      mistake is  done again and again by me. It is that I go      ahead and talk for ten times, then I become angry if he      does not  speak. Vahini,  there is  nothing in my hands      except to  weep profusely.  At least  till now this man      has no  time to  mind his  wife, let it be, but Vahini,      what shall I do?" (P.196)           "Who knows what hardships be-fall on me, so long I      am alive.  Why the god has become (unkind) towards me."      (P. 197)           "Since yesterday  I have  made up  my mind  not to      speak a  word even,  till he speaks (to me). Let me see      to what  extent I control my feelings. Vahini, you also      pray to god for me whether a girl like me should be put      to such  a difficult  test. Vahini, I am so much afraid      of him that the romantic enchantment during first 10-15      days after marriage has become like a dream."           "I cannot  dare to  ask him whether his clothes be      taken for  wash. At present my status is only that of a      maid servant without pay as of right. 116           Why so much indifference towards me only ? Vahini,      I, feel  to weep  in your  arms. Vahini  come  to  Pune      early.           On getting  up every  morning I feel he will speak      today but  every day  I am hoping against hope. Vahini,      what will happen ? Now there is no ray of hope.           Day before  yesterday I became excited and uttered      in rage.  "You hate  me, was I unable to get food in my      parent’s house ?           He was  irritated due  to word ’hate’. He said. if      you talk more like this, I will be very bad man.           If this  goes on,  I will  not come to sleep. That      means not  permitted (to  cry) also. How he says to me,      are you tired of me so early ? What shall I say to such      a man. Once I feel that he does not count me. On second      thought, I  feel he  cares me  much. But  due to  moody      nature, it  will take  time to  pacify the same. On the

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    day on  which self-pride  is lessened,  no other person      will be  more fortunate than me But till that day it is      not certain that I will be alive."                                                     (P. 197)      In  the  second  paragraph  she  starts  by  giving  an indication that  she was  feeling uneasy and would have very much liked  to have  Vahini with her. In the third paragraph she clearly  states that  all persons in her father-in-laws’ place were  very good  and loving  but due  to a  number  of persons in  the house  she did  not get  a  chance  to  work independently. The  last line  "every time  some fear  is in mind which  leads to confusion" is the starting point of the first symptom  of her invisible fear which she was unable to locate. The fourth paragraph is rather important which shows that whatever  her feelings may have been she sought an oath from Vahini  not to  talk to  anyone regarding  the  matters which she  proposed to  write in  the said  letter. She says that she  was  much  in  pains  and  hints  that  she  weeps profusely and  the reason  given by her for this is that she went on  committing mistakes  and talked to her husband many times but  his silence  was extremely painful which made her angry. In  the last portion, for the first time, she makes a direct complaint  against her  husband to the effect that he had no time to look after her (Manju). In the same paragraph she describes her hardships and complains 117 why God  was  unkind  to  her.  She  further  expresses  her sentiments  that   the  romantic   enchantment   which   she experienced during  the first  few days  of her marriage had completely disappeared  and looks  like a  lost dream  or  a "Paradise lost".  Then she  describes her  plight as being a maid-servant   without   pay.   She   again   complains   of indifference towards her. Ultimately, she hopes against hope that some  day he will speak to her and discuss the problems but there  is no response. Later, she refers to a particular incident and goes to the extent of telling him that he hates her. This  seems to  have irritated the husband who resented this remark  very much. Again in the same breath towards the end of  the paragraph,  while she says that her husband does not care  for her  yet she at once changes her mind and says that he  cares for  her much  but due to his moody nature it will take  time to  pacify him.  Her feelings  again take  a sudden turn when she says that when her husband’s self-pride is lessened  none would be more fortunate than her. The next line is  rather important  because she  hints that  till the said heyday comes perhaps she might not be alive.      A careful  perusal of this letter reveals the following features-      (1)  after  going   to  her   marital  home   she  felt           completely lost  and took even minor things to her           heart and  on the slightest provocation she became           extremely sentimental and sensitive.      (2)  She  exhibited  mixed  feelings  of  optimism  and           pessimism at the same time.      (3)  it can  easily be  inferred that  she did not have           any serious  complaint against her husband but she           became sad  and morose because she was not getting           the proper  attention which  she thought she would           get.      (4)  There is  no  indication  that  she  expected  any           danger from  her husband  nor is there anything to           show that  things had  come to  such a pass that a           catastrophe  may   have  resulted.  There  may  be           certain concealed  and hidden  hints which she was           not prepared to reveal in writing : what they were

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         is not clear.      (5)  A close reading and analysis of the letter clearly           shows at least two things- 118           (a)  that she felt extremely depressed,           (b)  that there  was a  clear  tendency  resulting                from her  psychotic nature to end her life or                commit suicide.      This possibility  is spelt out from the various letters which we  have extracted.  Indeed, if  this was  not so  how could it  be possible that while not complaining against her husband she gives a hint not only to Vahini but also to Anju that she  might not  live. She  mentions of  no such  threat having been given to her by husband at any time or anywhere.      (6)  The  contents   of  the  letter  lead  us  to  the           irresistible conclusion  that Manju  felt  herself           lonely and desolate and was treated as nothing but           a chattel  or a  necessary  evil  ever  since  she           entered her marital home.      Thus, from  the recitals  in the  letters we can safely hold that  there was  a clear  possibility and a tendency on her  part   to  commit   suicide  due   to  desperation  and frustration. She  seems to be tired of her married life, but she still  hoped against  hope that things might improve. At any rate,  the fact  that she  may  have  committed  suicide cannot be  safely excluded or eliminated. It may be that her husband may  have  murdered  her  but  when  two  views  are reasonably possible  the benefit  must go to the accused. In order to  buttress our  opinion, we  would like to cite some passages of  an eminent  psychiatrist, Robert  J. Kastenbaum where in  his book  ’Death, Society and Human Experience’ he analyses  the  causes,  the  circumstances,  the  moods  and emotions which  may drive  a person  to commit  suicide. The learned author has written that a person who is psychotic in nature and  suffers from  depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book :           "The fact  is that  some people who commit suicide      can be classified as psychotic or severely disturbed.                                                      (P.242)           If  we  are  concerned  with  the  probability  of      suicide in  very large  populations,  then  mental  and      emotional disorder is a relevant variable to consider.                                                      (P.243) 119           And it  is only  through a gross distortion of the      actual circumstances  that one could claim all suicides      are enacted in a spell of madness.                                                      (P.243)           "Seen in these terms, suicide is simply one of the      ways in which a relatively weak member of society loses      out in the jungle like struggle.                                                      (P.243)           The individual does not destroy himself in hope of      thereby achieving  a noble  postmortem reputation  or a      place among the eternally blessed. Instead he wishes to      subtract himself  from a  life whose  quality  seems  a      worse evil than  death.                                                      (P.245)           The newly  awakened spirit  of hope  and  progress      soon became  shadowed by  a sense of disappointment and      resignation that, it sometimes seemed, only death could      swallow.                                                      (P.245)           Revenge  fantasies   and  their  association  with

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    suicide are  well known to people who give ear to those      in emotional distress."                                                      (P.251)           "People who attempt suicide for reasons other than      revenge may  also act  on the  assumption  that,  in  a      sense, they  will survive  the death  to benefit by its      effect.      xx                  xx                  xx           The victim  of suicide  may also  be the victim of      self-expectations that  have not  been  fulfilled.  The      sense of  disappointment and  frustration may have much      in common with that experienced by the person who seeks      revenge  though  suicide-However,  for  some  people  a      critical  moment   arrives  when   the  discrepancy  is      experienced as too glaring and painful to be tolerated.      If something  has to  go it  may be the person himself,      not the perhaps excessively high standards by which the      judgment has  been made-Warren Breed and his colleagues      found that a sense of 120      failure is  prominent among  many people who take their      own lives."                                                      (P.252)      The above observations are fully applicable to the case of Manju. She solemnly believed that her holy union with her husband  would   bring  health  and  happiness  to  her  but unfortunately  it  seems  to  have  ended  in  a  melancholy marriage which  in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end  her life.  There can  be no doubt that Manju was not only a  sensitive and  sentimental woman  but was  extremely impressionate and  the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which  came into  existence hastened  her end. People with  such a  psychotic philosophy  or bent  of  mind always dream  of an  ideal and  if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life.      Mary K.  Hinchliffe, Douglas Hooper and F. John Roberts in their book ’The Melancholy Marriage’ observe that-           "Studies of  attempted suicides  cases  have  also      revealed the  high incidence  of marital problems which      lie behind the act. In our own study of 100 consecutive      cases (Roberts  and Hooper 1969), we found that most of      them could  be understood  if the patients interactions      with others in their environment were considered."                                                        (P.5)      Such  persons   possess  a  peculiar  psychology  which instils extreme  love and  devotion but  when they are faced with disappointment  or find  their environment so unhealthy of unhappy,  they seem  to loose all the charms of life. The authors while describing these sentiments observe thus :           "Hopelessness’, ’despair’, ’lousy, and ’miserable’      draw attention  to the  relationship of  the  depressed      person to  his environment.  The  articulate  depressed      person will  often also  struggle to put into words the      fact that  not only  does there  appear to  be  no  way      forward and thus no point to 121      life-but that the world actually looks different."                                                       (P.7)      Coleridge in  ‘Ode to  Dejection’ in his usual ironical manner has very beautifully explained the sentiments of such persons thus :

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    "I see them all so excellently fair-      I see, not feel, how beautiful they are ;"      At another place the author (Hinchliffe, Hooper & John) come  to   the  final   conclusion  that  ruptured  personal relationship play  a major  part in the clinical picture and in this connection observed thus :           "Initially we  applied these  ideas  to  study  of      cases of  attempted suicide  (Roberts and  Hooper 1969)      and although  we did  not assume  that  they  were  all      necessarily  depressed,   we  looked   for  distal  and      proximal causes  for their  behaviour  and  found  that      ruptured personal  relationships played a major part in      the clinical picture."                                                      (P.50)      The observations  of the  authors  aptly  and  directly apply to  the nature,  mood and  the  circumstances  of  the unfortunate life  of Manju  which came to an end within four months of marriage.      We have  pointed out  these circumstances  because  the High Court  has laid  very great stress on the fact that the evidence  led  by  the  prosecution  wholly  and  completely excludes the  possibility of suicides and the death of Manju was nothing but a dastardly murder.      We shall  now deal with the next limb of the oral dying declaration said  to have  been made  by the deceased to her parents and  friends. Some  of the  statements which  have a causal  connection   with  the   death  of   Manju  or   the circumstances  leading   to  her   death   are   undoubtedly admissible under  s.32 of the Evidence Act as held by us but other statements  which do  not bear  any proximity with the death or  if at  all very  remotely and indirectly connected with the  death  would  not  be  admissible.  Unfortunately, however, the  two kinds  of statements  are so  inextricably mixed up that it would 122 take a great effort in locating the part which is admissible and the one which is not.      Before discussing  the evidence  of  the  witnesses  we might  mention   a  few   preliminary  remarks  against  the background  of   which  the   oral  statements   are  to  be considered. All persons to whom the oral statements are said to have  been made  by Manju  when she  visited Beed for the last time,  are close relatives and friends of the deceased. In view  of the  close relationship and affection any person in the  position of  the  witness  would  naturally  have  a tendency to  exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the  love and affection for the deceased would create a  psychological hatred against the supposed murderer and, therefore,  the court has to examine such evidence with very great  care and  caution. Even  if the  witnesses  were speaking a  part of  the truth  or perhaps  the whole of it, they would  be guided  by a  spirit of  revenge  or  nemesis against the accused person and in this process certain facts which may  not or could not have been stated may be imagined to have  been stated unconsciously by the witnesses in order to  see  that  the  offender  is  punished.  This  is  human psychology and no one can help it.      This now takes us to a consideration of the evidence of the witnesses concerned which read together with the letters form a  composite chain  of evidence regarding the causes or the circumstance  relating to  the death  of  the  deceased. According to  the prosecution,  the last  visit of  Manju to Beed was  on 25.5.82  where she stayed till 3rd of June 1982 when she was brought back by the father of the appellant. In

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other words,  the narration of the troubles and tribulations of Manju  was made  only  during  her  last  visit  and  not earlier. These  statements are  alleged to have been made to Rameshwar Chitlange  (PW 2),  Manju’s father,  Rekha (PW 3), who was  Manju’s friend  and referred  to as ‘Vahini’ in the letter Ex.33,  Anju (PW  6), Manju’s  sister to whom letters (Exhs. 30  and 32)  were written, and PW-20, Bai, the mother of Manju.  Meena Mahajan (PW 5) was also examined but we are not in  a position  to rely  on the evidence of this witness for two  reasons -(1) she does not figure anywhere in any of the letters  written by  Manju, and  (2) nothing was told to her by  Manju directly but she was merely informed regarding the incidents  mentioned by  PW-2.  This  sort  of  indirect evidence is not worthy of any credence. 123      We  would   first  deal  with  the  evidence  of  PW-2, Rameshwar  Chitlange  (Manju’s  father).  We  shall  give  a summary of  the relevant  part of  his evidence  because the other parts relate to how the marriage was performed and the spouses had gone for honeymoon which are not germane for our purpose. The  witness states  that when  Manju came  to Beed with her  maternal uncle he found her somewhat uneasy and on making enquiries  whether she  was happy  at  her  husband’s house she  told him  that she  was not  very happy  with her husband since she noticed that her husband was not very much pleased with  her and in fact hated her. These facts are the result of  the usual domestic quarrels between a husband and a wife,  hence this  statement  cannot  be  said  to  be  so directly or  proximately related to the death of Manju so as to be admissible under s.32 of the Evidence Act.      It appears  from his  evidence that  even after hearing the narration  from his  daughter  he  advised  her  to  get herself adjusted  to the  situation and to the atmosphere of her new  marital home.  Apart from  being inadmissible  this does not  appear to  be of any assistance to the prosecution in proving the case of murder alleged against the appellant. The witness  goes on to state that as the grandfather of the accused had  died he  visited Pune,  accompanied by his wife and Manju.  Since this  was more  or less a formal visit for expressing his  condolences to  the bereaved family, he left Manju at  the house  of the  accused. The  only part  of his evidence on  which reliance was placed by the prosecution is that he had noticed Manju very much disturbed and uneasy and requested Birdichand (father of the accused) to allow him to take Manju  to the  house  of  Dhanraj,  which  he  did.  On reaching the house of Dhanraj, the witness states that Manju completely broke  down and  started weeping  and fell in the grip of  her mother.  This state of Manju, which the witness saw with his own eyes, would undoubtedly be primary evidence of what he saw and felt though not in any way connected with s. 32  of the Evidence Act. But from this circumstance alone it cannot  be safely  inferred that  Manju  apprehended  any serious danger to her life from her husband.      The witness  further states that he informed Birdichand about the  grievances made  to him  by Manju. The appellant, Sharad, was  sent for  and he quietly listened to his father but the  witness felt that whatever Birdichand may have told to his  son that  does not  appear to  have made any serious impact on him (appellant) and he left the 124 room. This  is purely  an opinion evidence and therefore not admissible. Even  so, the  accused perhaps  did not think it necessary to  enter into arguments with his father-in-law in the presence  of his father and that is why he may have kept quiet. From  this no  inference can  be drawn that he was in

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any way inimically disposed towards Manju or was animated by a desire to take her life.      The witness further stated that he found that Manju was weeping every  now and  then during  the night  at Dhanraj’s place. Later,  in the morning the witness took Manju back to her in-laws  house but his grievance was that Sharad did not care to  meet or  talk to  them.  These  are  however  small circumstances which  are incidents  of any  married life and from this  no adverse  inference can  be drawn  against  the appellant.      Another complaint  made in  the statement was that when he made  a voluntary  offer to  solve  the  difficulties  of Sharad, the  appellant curtly  told him that he did not want to get  his difficulties solved by other persons and at this attitude of  Sharad the  witness  was  naturally  very  much disappointed. This  conduct of  the accused  also is  not of such an importance as to lead to any adverse inference. Some persons who  have a  keen sense of pride and self-respect do not like  anyone else not even their father or father-in-law to interfere  in their personal matters. Perhaps this may be the reason for the somewhat cool and curt attitude of Sharad but that  proves nothing.  In fact,  experience  shows  that where elders  try to intermeddle in the affairs of a husband and his  wife, this  creates a  serious obstruction  in  the relations of  the married  couple. Nothing  therefore, turns upon this statement of PW 2.      Again, the witness repeats that when Manju came down to see him  off he  noticed her  weeping all the time. To cut a long story short, the witness came back to Beed and sent his son Pradeep  to bring  Manju from  Pune to Beed. On reaching there he  was informed  that Manju  and Sharad had gone on a holiday trip  to Mysore,  Triupati, etc. After the return of Pradeep to  Beed, Dhanraj  informed the  witness that Sharad and Manju  had returned  to Pune  and therefore, he sent his son, Deepak  to Pune to bring back Manju. When Manju arrived at  Beed,  the  witness  found  her  totally  disturbed  and frightened. This  statement would  be admissible  as primary evidence. What  probative value  should be  attached to this small matter is a different issue. 125      Thereafter, the  witness was  told the incidents by his wife (PW  20) which  had been  narrated to  her by Manju but that is  of no  value so far as this witness is concerned as the main  evidence would be that of PW 20. However, in order to save  the marriage  from a a total break-down the witness was extremely  worried and  therefore, he  called  one  Hira Sarda, a  close acquaintance  of the  family of accused, who told him  (witness) that he was going to Hyderabad and after 4th-5th June  some solution  would be found out. At the same time, he  advised the  witness not  to  make  any  haste  in sending back Manju to Pune.      On the  2nd June  1982, Birdichand  arrived at Beed and requested the  witness to  send Manju  to Pune  because  the marriage of  Birdichand’s daughter  was fixed  for 30th June 1982 and the Kohl (betrothal) ceremony was to be held on the 13th of  June so  that Manju  may be present at the ceremony and look after the arrangements. The witness says that after hearing this he apprised Birdichand that Manju was extremely frightened and  that she  was not  ready to  go back  to her husband’s house  nor was  he (witness)  willing to  send her back so  soon.  He  suggested  to  Birdichand  that  as  the marriage of  his nephew was to be celebrated at Beed on 25th June, Sharad  would come  to attend the marriage and at that time he  can  take  Manju  with  him.  Birdichand,  however, persuaded the  witness to  send back  Manju and  assured him

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that no  harm of  any kind  would come  to her  and he  also promised that  Manju would  be sent  back to  Beed, The most important statement  in the  evidence of this witness may be extracted thus :           "I was  having this  talk with  Birdichand on  the      first floor  of my  house. Manju  heard this  from  the      staircase, called  me out  in the ground portion of the      house and  told me that she was not in a position to go      to the  house of  the accused. Since she was in a state      of fear  or extreme  fear in her mind and she also told      me that  she was not prepared to go to the house of the      accused.           **                   **                   **           Therefore, after  the  meals  I  sent  Manju  with      Birdichand. Birdichand, Manju and Kavita then left Beed      by about 12.30 p.m. by bus on 3rd of June, 82. At that 126      time Manju  was constantly weeping right from inside my      house till  the bus  left. She  was also  in a state of      extreme fear."                                                    (P. 197)      The witness  has said  many times in his statement that Manju was  always weeping  and crying  and the  final crisis came when  on hearing  the talks  between him and Birdichand she called  him from the staircase and told him that she was not prepared  to go  to her  husband’s house as she was in a state of  extreme fear. It is difficult to believe this part of the evidence of the witness for two reasons-      (1)  When the  talks were  going on  between two elders           would Manju  be  sitting  near  the  staircase  to           listen their  talks and  call her  father and give           vent to  her feelings  and her  decision not to go           back to  Pune at any cost. This conduct appears to           be directly  opposed not  only to  the  tenor  and           spirit of  the letters (Exhs. 30, 32 and 33) which           we have  discussed but  also  against  her  mental           attitude and noble nature.      (2)  As indicated  by us  while discussing the letters-           could a woman who was so affectionate and reserved           in nature  and who  would not like the contents of           her letters  to Anju and Vahini to be disclosed to           her parents  lest they feel worried, disturbed and           distressed-suddenly turn  turtle,  forgetting  her           sentiments not  to worry  them and come out in the           open to  declare before  all by weeping and crying           that she  was in  a state of extreme fear, seem to           us to  be inherently  improbable.  Once  a  mature           woman develops  a particular  nature or habit or a           special bent  of mind  she is  not likely to forgo           her entire  nature-in this case, her affection and           love for  her parents and the feeling of not doing           anything which  may cause  distress  or  worry  to           them,  and  start  telling  her  woeful  story  to           everyone whom she met.      Manju must have known fully that her husband’s sister’s 127 betrothal ceremony  was to  be held  on 13th June and if her father-in-law was  making request  after request to take her to Pune to attend the said ceremony, and had given all sorts of assurances  that no  harm would  come to  her, would  she still call  her father  and express her state of fear and go on repeating  what she had already said. This seems to us to be an  afterthought or  an embellishment  introduced in  the evidence of  the witness  so  as  to  add  credence  to  the prosecution story  and provide  an imaginary  motive for the

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murder of the deceased. Indeed, if she was bent on resisting all attempts  of her  father-in-law to  take her to Pune she would  not  have  gone  at  all.  On  the  other  hand,  her subsequent conduct  of ultimately  going to  Pune and making arrangements for  the Kohl  ceremony belies  the  story  put forward by  the witness.  It is  extremely difficult  for  a person to  change a  particular bent  of mind  or a trait of human nature  unless there  are substantial  and  compelling circumstances to do so. In the instant case, we find no such compelling circumstance  even taking  the statement  of  the witness at its face value.      To take the other side of the picture, the witness says that when  he reached  Pune on 12.6.82 and visited the place where Manju  had died,  he found Sharad sleeping or lying on the cot  and on  seeing him  he immediately  started  crying vigorously and making a show of the grief and shock they had received.  The   exact  statement  of  the  witness  may  be extracted thus :           "I could  notice that  Sharad who  was sleeping or      lying on the cot in the said room on seeing me entering      the room  immediately started  crying vigorously giving      jerks to  his body and making show of the grief and the      shock he  had received.  Ultimately I  asked him  as to      what had  happened to  Manju when he told me that since      11th it  was the day of his marriage with Manju, he and      Manju were  in joyest  mood. According to him they went      to bed  by about  12 midnight  and he  had a sexual act      with Manju  in such  a  manner  which  they  never  had      enjoyed before.  Ultimately according  to him when they      completely felt  tired and  exhausted both of them fell      asleep. According to him by about 5.30 a.m. when he got      up and  after visiting the urinal, when returned to the      room he  found that Manju had not got up as usual since      according to  him, she used to wake up at the same time      he used to wake up and so he 128      went near  Manju and  called her  out when he found her      dead."      It is  rather  strange  that  while  the  witness  took whatever his  daughter told  him at  its face  value without making any  further enquiry,  he immediately  jumped to  the conclusion that  the grief and tears in the eyes of his son- in-law were  fake and  that he was merely shedding crocodile tears. There is nothing on the record nor in the evidence to show any  circumstance which  may have  led the  witness  to arrive at this conclusion. On the other hand, if the conduct of the  appellant, as described by the witness, is seen from a dispassionate  angle, it was quite spontaneous and natural because by  the time the witness reached Pune the postmortem had been  done and the death of Manju had come to light long before his  arrival. There  was no reason for the witness to have presumed  at that  time that Sharad must have committed the murder  of the deceased. There were no materials or data before him  which could have led him to this inference. This clearly shows one important fact, viz., that the witness was extremely  prejudiced   against  Sharad   and  if  one  sees anything-even the  truth-with a  pale glass everything would appear to him to be pale.      The second  part of  the statement  made by the witness regarding having  sexual  intercourse  near  about  midnight seems to  us to  be inherently improbable. However, educated or advanced  one may be, it is against our precious cultural heritage for  a person  to utter such things in a most frank and rudimentary fashion to his father-in-law. We are clearly of the  opinion that the story of having a sexual act, etc.,

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was a  pure figment  of the  imagination of  the witness and this, therefore,  goes a  long way  off to  detract from the truth of the testimony of this witness.      Furthermore, at page 175 the witness admits that during the life  time of  Manju, Anju  and Rekha told him about the receipt of the letters from Manju but they never referred to the nature or the contents of the letters. This is a correct statement because both Anju and Vahini had been requested by Manju not to disclose to her parents the state of affairs or the tortures  which she  was suffering and perhaps they kept the sanctity  of oath given to them by the deceased. This is an additional  circumstance to  show that  even  when  Manju visited Beed  for the  last time she might tell something to her own sister Anju or to Vahini but she would never dare 129 to disclose  all the  details and  put all  the cards on the table before  her  parents-a  step  which  she  deliberately desisted from  coming into  existence. We can understand the evidence of  the witness  that Manju was worried, distressed and depressed.  Sometimes out  of natural love and affection parents make  a mountain  of a  mole hill  and this  is what seems to have happened in this case.      Great reliance  was placed  by the Additional Solicitor General, on  behalf of  the respondent,  on the relevance of the statements  of PWs  2, 3, 6, and 20. He attempted to use their  statements  for  twin  purposes-firstly,  as  primary evidence of  what the  witnesses saw with their own eyes and felt the  mental agony  and the  distress through  which the deceased was  passing. Secondly, he relied on the statements made by  the deceased  (Manju) to  these witnesses about the treatment meted out to her by her husband during her stay at Pune and  furnishes a clear motive for the accused to murder her.      As regards  the first  circumstance, there  can  be  no doubt  that   the  said  evidence  of  the  witnesses  would undoubtedly be  admissible as revealing the state of mind of the deceased.  This would  be primary  evidence in  the case and,  therefore,   there  cannot  be  any  doubt  about  the relevancy of  the statement  of the  witnesses in  regard to this aspect  of the  matter. As  to what  probative value we should attach  to such  statements would  depend on a proper application of  the context  and evidence  of  each  of  the witnesses,      As regards  the second  aspect-which is  in respect  of what the  deceased  told  the  witnesses-it  would  only  be admissible under  s. 32  of the  Evidence Act as relating to the circumstances  that led to the death of the deceased. In view of the law discussed above and the propositions and the conclusions we  have reached, there cannot be any doubt that these statements  would fall  in the  second part of s.32 of the  Evidence  Act  relating  directly  to  the  transaction resulting in  the death  of Manju,  and would be admissible. Before, however,  examining this  aspect of  the question we might at  the outset  state that  the character, conduct and the temperament  of Manju,  as disclosed  or evinced  by the admitted letters  (Exhs. 30,32  and 33),  which  demonstrate that it  is most  unlikely, if  not impossible, for Manju to have  related  in  detail  the  facts  which  the  aforesaid witnesses deposed.  If this  conclusion is  correct, then no reliance can  be placed on this part of the statement of the aforesaid witnesses.      We now proceed to discuss the evidence of PWs 3,4, 5, 6 and 130 20. As  we have  discussed the  evidence of  PW 2, father of

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Manju, it  will be  more  appropriate  to  discuss  now  the evidence of  PW-20 (Manju’s  mother) from  whom most  of the matters spoken to by PW-2 were derived. Her evidence appears at page 305 of part I of the Paper Book. It is not necessary for us  to go  into those  details which  have already  been deposed to  by PW-2.  The most relevant part of her evidence is about  the visit  of Manju  to Beed on 2.4.82. She states that during  this visit  she found  Manju cheerful and happy and she  did not complain of anything during her stay for 8- 10 days.  In answer  to a question-whether she enquired from Manju or had any talk with her during that period-she stated Manju told  her that her husband was not taking any interest in her  and used to leave the house early in the morning and return late at night on the excuse that he was busy with his factory work.  It may  be stated here that the accused had a chemical factory  where he  used to  work from  morning till late at  night.  The  witness  further  deposed  that  Manju informed her  that there  was no  charm left  for her at the house of her husband. These facts however run counter to her first statement  where she stated that Manju was quite happy and cheerful  as expected  of a newly married girl. Even so, whatever Manju  had said  does  not  appear  to  be  of  any consequence because  she (the  witness) herself  admits that she did  not take it seriously and told Manju that since she had entered  a new family it might take some time for her to acclimatise herself  with the  new  surroundings.  She  also warned Manju  against  attaching  much  importance  to  such matters.      Thereafter she  goes on  to state  that near  about the 11th or 12th of April 1982 she (PW 20) alongwith her husband left for  Pune to  offer condolences  on the  death  of  the grand-father of  the appellant.  She then  proceeds to state that during  their second  visit to Pune on the 11th or 12th of May  1982 she  stayed with  her brother, Dhanraj and that while she was there Manju hugged at her neck and having lost her control,  started weeping  profusely. She further states that Manju  requested her  to take her to Beed as it was not possible for  her to stay in her marital house where she was not only bored but was extremely afraid and scared.      On the  next day  she (PW  20) met  the mother  of  the appellant  and   told  her  plainly  that  she  found  Manju extremely perturbed,  uneasy and  scared and  that  she  was experiencing tremendous  pressure and  restrictions from her husband. But  the mother of the appellant convinced her that there was nothing to worry about, 131 and everything  will be  alright. The  witness then narrated the fact to her husband and requested him to take Manju with them to  Beed. PW 2 then sought the permission of Birdichand to take  Manju to.  Beed but he told him that as some guests were to  visit him,  he (PW  2) can  send somebody after 4-5 days to  take Manju  to Beed.  It may be mentioned here that the details about the sufferings and the mental condition of Manju was  not mentioned by this witness even to her husband (PW 2)  as he   does  not say  anything about  this  matter. Further, her statement is frightfully vague.      As already  indicated that the letters (Ex. 30, 32, 33) clearly show  that Manju never wanted to worry or bother her parents about her disturbed condition, it appears to be most unlikely  that   on  the   occasion  of  the  death  of  her grandfather-in-law she  would  choose  that  opportunity  to narrate her tale of woe to her mother. This appears to us to be a  clear embellishment  introduced by  the prosecution to give a  sentimental colour  to the evidence of this witness. Ultimately, on May 25, 1982 Deepak brought Manju to Beed and

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this time  she was  accompanied by  her cousin, Kavita. Here again, she  states that  on  her  arrival  she  found  Manju extremely disturbed  and under tension of fear and Manju was prepared to  make  a  clean  breast  of  all  her  troubles. However,  as   Kavita  was   there  and  did  not  give  any opportunity to  Manju to meet her mother alone, she (Kavita) was sent out on some pretext or the other. Thereafter, Manju told her  mother  that  she  was  receiving  a  very  shabby treatment from her husband and while narrating her miserable plight she  told her about two important incidents which had greatly upset  her-(1) that  she happened  to come  across a love letter  written by PW 37, Ujwala Kothari to her husband which showed  that the  appellant was  carrying  on  illicit relations with PW 37, (2) that on one occasion the appellant told Manju that he was tired of his life and did not want to live any  more  and,  therefore-wanted  to  commit  suicide. Despite Manju’s  enquiries as  to why  he wanted  to  commit suicide, he  did not  give any reason. She then informed her mother when  this talk  was going  on, she  (Manju)  herself volunteered to  commit suicide. Thereafter, Sharad put forth a proposal  under which  both of them were to commit suicide and they  decided to  write notes  showing  that  they  were committing suicide.  On hearing this plan from Sharad, Manju told him  that she was not inclined to commit suicide as she had not lost all hope of life and that she had expressed her desire to  commit suicide  only because  he had said that he would do so. PW 20 would have 132 us believe  that while  in one  breath  she  agreed  to  the suicide pact  yet the  next moment she made a complete volte face. This is hard to believe having regard to the nature of the temperament of Manju.      The two  statements said have been made by Manju to her mother appear  to be  contradictory and  irreconcilable  and smack  of   concoction.  According  to  Manju,  Sharad  then prepared two  notes one  addressed to his father and another to his  father-in-law and asked Manju to do the same but she refused to  do anything  of the  sort. The  witness admitted that she  was not  told as to what had happened to the notes written by the appellant.      All this  story of  a suicidal pact seems to us nothing but a fairy tale. There is no mention nor even a hint in the letters (Exhs.  30, 32,  33)  written  by  Manju  about  the aforesaid suicidal  pact  and  the  story  narrated  by  the witness before the trial court, nor was the note produced in the court. This appears to us to be a make-believe story and was introduced  to castigate  the appellant  for his  shabby treatment towards Manju.      Another intrinsic  circumstance to  show the untruth of this statement  is that  although PW 2 was apprised of these facts yet he never mentioned them to Birdichand particularly when he was insisting that Manju should be sent back to Pune for attending the betrothal ceremony of his daughter Shobha. Indeed, if  this fact,  which is of very great importance so far as  the lives  of both  the husband  and  the  wife  are concerned, would have been there, the first thing which PW 2 would have  done is  to  tell  Birdihand  that  matters  had reached such  a stage as to leave no doubt that her daughter was in  an instant  fear of  death and it was impossible for him to  allow his  daughter to  go to  Pune where Sharad was bent on  forcing her  to commit  suicide or even murder her, more particularly  because PW 20 admits in her evidence that as all  the things  she had  learnt from Manju were serious, she had  informed her husband about the same who agreed with her.

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    Apart from  this grave incident, the witness deposed to another equally  important matter,  viz., that  on the Shila Septami day,  the appellant rang up his mother to send Manju alongwith Shobha  to a  hotel (Pearl  Hotel),  as  has  been deposed to  by other  witnesses) because he wanted to give a party to his friends. As Shoba was not present in the house, Manju’s mother-in-law sent her alone, in 133 a rickshaw  to the  hotel. On reaching the hotel she did not find any  other person  except a  girl who was introduced by her husband as Ujavla Kothari. The most critical part of the incident is  that the  appellant is alleged to have informed Manju that she should take lessons from Ujvala as to how she should behave  with him  and also  told her that Ujvala knew everything about  him and  he was  completely in  her hands. Subsequently the  appellant went  away and  Ujvala told  her that the  appellant was  a short-tempered man and she should talk to  him only  if and when he wanted to talk to her. She (Ujvala) also  told Manju  that the appellant was completely under  her   command  and  she  was  getting  every  bit  of information  about   the  incidents  happening  between  the husband and  the wife. Finally, she was apprised of the fact by Ujvala  that she and Sharad were in love with each other. Manju is  said to  have retorted  and protested to Ujvala by saying that  she was  not prepared  to take any lessons from her regarding  her behaviour  towards  her  husband  as  she (Manju) was  his wedded wife while Ujvala was only a friend. Manju also told her mother that these facts were narrated by her to  the appellant and accused No. 2. As a result of this incident, Manju  became a  little  erratic  which  attracted double cruelty  towards her  by her  husband  and  made  her extremely scared of her life and in view of this development she requested  her mother  not to send her back to the house of the accused.      One point of importance which might be noticed here and which shows  that whatever be the relations with her husband and Ujvala,  the picture  presented by  the witness  is  not totally correct  because if  such a  point of  no return had already been  reached, there  was absolutely  no question of Birdichand and  sending for  the appellant  and arranging  a trip to  Ooty, Mysore  and other  place nor would have Manju agreed to  go to  these places.  The witness  further stated that as  soon as Manju came to know that Birdichand had come to take  her away  she was  shocked  and  continuously  kept saying that  she  was  extremely  afraid  of  going  to  her husband’s house and that she should not be sent back.      The  behavioral  attitude  of  Manju  depicted  by  the witness seems  to us  to be  absolutely contradictory to and not at  all in  consonance with  her temperament,  frame  of mind, psychological  approach to  things and  innate habits. That is  why no  reference had  been made  even directly  or indirectly in any of the letters written by 134 Manju, and  she had expressly requested both Anju and Vahini not to  disclose anything  to her  parents lest they may get worried and.  distressed on  her account.  In  other  words, Manju was a woman who despite her troubles and tribulations, sufferings and  travails, anxiety  and anguish  would  never have thought  of narrating  her woeful  story to her parents and thereby  give an  unexpected shock to them. This feeling is mentioned  in the  clearest possible terms in the letters (Exhs. 30, 32, 33) which we have already discussed. There is no reference at all in any of the letters regarding suicidal pact or the illicit relationship of her husband with Ujvala.      Another important  fact which the High Court has missed

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is that even according to the statement of this witness, the appellant had  asked his  mother to  send Shobha  along with Manju to  the hotel  and at that time he could not have been aware that  Shobha would not be available. Indeed, if he had an evil  intention of  insulting or injuring the feelings of Manju by  keeping Ujvala there he would never have asked his mother to  send Shobha  also because  then  the  matter  was likely  to   be  made   public.  This  is  another  inherent improbability which  makes  the  whole  story  difficult  to believe.      Despite these  serious developments  both PW  2 and  20 tried to  convince Manju  to accept  the assurances given by Birdichand that  no harm  would come  to her and if anything might  happen  they  will  take  proper  care.  We  find  if impossible to  believe that the parents who had so much love and affection  for their  daughter would,  after knowing the circumstances, still  try to take the side of Birdichand and persuade her daughter to go to Pune. Rameshwar (PW 2) should have told  Birdichand point-blank  that he  would  not  send Manju in  view of  the serious  incidents that had happened, viz.,  the   suicidal  pact,  the  cruel  treatment  of  the appellant towards  Manju, the  constant fear  of death which Manju was apprehending, the illicit relationship between the appellant and  Ujvala, and  the  strong  resistance  of  his daughter who was not prepared to go Pune at any cost and was weeping and  wailing  all  the  time.  On  the  other  hand, knowingly and  deliberately they  seem to  have thrown their beloved daughter into a well of death. The fact that Manju’s parents tried  to console  her and believed the assurance of Birdichand knowing  full well  the history of the case shows that any  statement made  by Manju to her parents was not of such great  consequence as to harden their attitude. This is yet another  intrinsic circumstance Manju to which negatives the story of suicidal pact and the invitation to 135 come to  the Pearl  Hotel and  the manner  in which  she was insulted in  the presence  of Ujvala. There is no doubt that relations between  the appellant  and Manju  were  extremely strained, may-be  due to his friendship with Ujvala, she may not have  felt happy  in her marital home as she has clearly expressed in  her letters  but she did not disclose anything of such  great consequence  which  would  have  shocked  the parents and  led them  to resist  her going  to Pune  at any cost. This  makes the version given by PWs 2 and 20 unworthy of credence.      We now  proceed to  take up the evidence of PW-6, Anju, the sister  of Manju.  The statement of this witness is more or less  a carbon  copy of  the evidence  of PW-20 which has been discussed  above and, therefore, it is not necessary to consider her  evidence in  all its  details. So  far as  the first visit is concerned, she fully supports her mother that Manju was  very happy  as was  expected of  a newly  married girl. When  Manju came  to Beed  around 2nd  April 1982  she stayed there  for 8-10  days  and  during  that  period  the witness noticed  that  she  was  somewhat  dissatisfied  and complained that  her husband  used to  return late at night. She also  complained against  the callous  attitude  of  the other members  of her  husband’s family. She also introduced the story  of Ujvala Kothari and corroborated what PW 20 had said which  we have  discussed above. She also refers to the said suicidal  pact and then to the fact that Birdichand had come to  take away  Manju to Pune so that she may be able to attend the betrothal ceremony of Shobha. Then she deposes to an incident which appears to be wholly improbable. According to her,  on the  3rd of  June, 1982,  PW 2  invited his  two

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friends, Raju  and Rath,  for lunch at which Birdichandi was also present,  and told  them that Manju was not prepared to go to  Pune as  she was  afraid to  go there but Birdichand, alongwith his  two friends,  assured him  that nothing would happen. We  do not  think that  in the  course of things P-2 would be  so foolish  as to  let the  secret matters  of the house known to others than the parties concerned. Thereafter the witness proves the letters (Exhs. 30 and 32).      She stated  one important  statement to the effect that on some  occasions Manju  had a  talk with her mother in her presence. Although  Manju had requested Anju not to disclose anything to  her parents  yet everything  was made  known to them, During  cross-examination the witness was asked-how as it that Manju was narrating these talks when the witness had been asked not to disclose the 136 same to her parents, which she explained away by saying that she did not ask Manju why she was disclosing these things to her mother. No satisfactory answer to this question seems to have been given by her. At another place, the witness states thus :           "I did  not tell all these informations I received      from Manju  to any  body. Nor  anybody enquired from me      till my statement was recorded by the Police."      Her evidence, therefore, taken as a whole is subject to the same infirmity as that of PW 20 and must suffer the same fate.      PW-3, Rekha  (who was  addressed as  ‘Vahini’ in Maju’s letter (Ex.  33), states  that on  the first  occasion  when Manju came  home she  was quite  happy but during her second visit to  Beed in  the month of April, 1982 she did not find her so  and Manju  complained that  her husband was avoiding her to  have a talk with her on one excuse or another. Manju also informed  the witness  that the  appellant had  a girl- friend by name Ujvala and the witness says that she tried to console Manju  by  saying  that  since  her  husband  was  a Chemical  Engineer   he  may  have  lot  of  friends.  While referring to  Exh. 33  (letter written  to her by Manju) she stated that  the only complaint made in that letter was that her husband  was not  talking  to  her  properly.  She  then deposed to  an incident  which happened  when on  her way to Bombay when  the witness  stayed at  Pune for some time. She states that she had a talk with Manju for about half-an-hour when she  narrated the  story of the suicidal pact. She also stated that  she was  extremely afraid  of the situation and almost broke down in tears and wept.      The most  important fact  which may  be  noted  in  her evidence is  a clear  pointer to  the frame  of mind and the psychotic nature  of Manju.  At page  212 of  Part I  of the Paperbook while  narrating the  relationship of  her husband with Ujvala  she says that the appellant lost his temper and thereupon she spoke the following words to him :           ,‘I am  not going  to spare this, I will not allow      this, his  bad relations even though a blot may come to      our family and I have decided likewise."      These significant  and pregnant words clearly show that Manju was so much bored and disgusted with her life that she entertained a  spirit of  revenge and  told the witness that she was not going to 137 tolerate this  even though a blot may come to the family and that she  had decided  likewise. This  statement undoubtedly contains a  clear hint  that she had almost made up her mind to end  her life,  come what  may and thereby put to trouble her husband  and his  family members  as being suspect after

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her death.  This appears  to be  a culmination  of a feeling which she had expressed in one of her letters to Anju in the following words:           "Till I  could control  (myself), well  and  good.      When it becomes impossible, some other way will have to      be evolved. Let us see what happens. All right." Similarly, in  her letter (Ex. 33) to this witness she gives a concealed hint "But till that day it is not certain that I will be alive."      Thus the feelings of death and despair which she orally expressed  to  the  witness  at  Pune  seems  to  have  been fulfilled when  on the  morning of  12th June  1982 she  was found dead.      The evidence of PW 4, Hiralal Ramlal Sarda, is not that important. He  merely states  that in  the last  week of May 1982, PW  2 had called him and told him that Manju was being ill-treated  by  her  husband  and  therefore  she  was  not prepared to  go to  her marital home. PW 2 also informed him about the  suicidal pact  affair. As  the witness  was in  a hurry to  go to Hyderabad he counselled PW 2 not to take any final decision  in a hurry and that Manju should not be sent to Pune with Birdichand until his return when a decision may be taken. On return from Hyderabed he learnt that Birdichand had already  taken Manju  to Pune and thereafter he left for Pune. Indeed,  if the matter was so grave and serious that a person like PW 4, who was a relation of the appellant rather than that  of PW  2, had  advised him  not to make haste and take a  final decision  but wait  until his  return yet PW 2 seems to  have spurned  his advice  and sent  Manju to Pune. This shows  that the  matter was  not really  of such  great importance or  urgency as to take the drastic step of making a blunt  refusal to  Birdihchand about  Manju’s not going to Pune. This  also shows  that the  story of suicidal pact and other things  had been  introduced in order to give a colour or orientation to the prosecution story.      Another fact  to which  this  witness  deposes  in  the narration by  the appellant about his having sexual act with his wife. We have 138 already  disbelieved   this  story   as   being   hopelessly improbable and  against the cultural heritage of our country or of  our nature  and habits.  This is the only purpose for which this  witness was  examined and  his evidence does not advance the matter any further.      PW-5, Meena Mahajan, has also been examined to boost up the story  narrated by PW 2 and other witnesses. She was not at all  connected with  the family of PW 2 but is alleged to be a  friend of  Manju and  she says  that she  found  Manju completely disheartened  and morose  and she started weeping and crying  while narrating her said story. The witness goes on to  state  that  Manju  was  so  much  terrified  of  the appellant that  she was afraid of her life at his hands. No. witness has  gone to the extent of saying that there was any immediate danger to Manju’s life nor did Manju say so to PWs 2, 6  and 20.  This witness  appears to  us to be more loyal than the king. Even assuming that Manju was a friend of PW 6 but she never wrote to her any letter indicating anything of the sort.  For these  reasons we are not satisfied that this witness is worthy of credence.      A close  and careful  scrutiny of  the evidence  of the aforesaid witnesses  clearly  and  conspicuously  reveals  a story which  is quite, different from the one spelt out from the letters (Exhs. 30, 32 and 33). In fact, the letters have a different  tale to  tell particularly  in respect  of  the following matters:-

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    (1)  There is  absolutely no reference to suicidal pact           or the circumstances leading to the same,      (2)  there is  no reference  even  to  Ujvala  and  her           illicit relations with the appellant,      (3)  there is  no mention of the fact that the deceased           was not  at all willing to go to Pune and that she           was sent by force,      (4)  the complaints made in the letters are confined to           ill-treatment, loneliness,  neglect and  anger  of           the husband but no apprehension has been expressed           in any  of the  letters that the deceased expected           imminent danger to her life from her husband.      (5)  In fact,  in the  letters she had asked her sister           and friend  not to  disclose her sad plight to her           parents but 139           while narrating  the  facts  to  her  parents  she           herself violated  the said emotional promise which           appears to  us to  be too  good to  be true and an           after thought  added to strengthen the prosecution           case.      (6)  If there is anything inherent in the letters it is           that because  of her miserable existence and gross           ill-treatment by  her husband,  Manju  might  have           herself decided to end her life rather than bother           her parents.      We are  therefore unable  to agree  with the High Court and the  trial court  that the witnesses discussed above are totally dependable  so as  to  exclude  the  possibility  of suicide and that the only irresistible inference that can be drawn from  their evidence  is that it was the appellant who had murdered the deceased.      Putting all  these pieces together a general picture of the whole episode that emerges is that there is a reasonable possibility of  Manju having  made up  her mind  to end  her life, either  due to frustration or desperation or to take a revenge on  her husband  for shattering  her dream  and ill- treating her day-to-day.      Apart from  the spirit  of revenge  which may have been working in  the mind  of Manju, it seems to us that what may have happened  is that  the sum  total  and  the  cumulative effect of  the circumstances  may have  instilled in  her an aggressive impulse  endangered by frustration of which there is ample  evidence both  in her  letters and  her subsequent conduct. In  Encyclopedia of  Crime and  Justice (Vol. 4) by Sanford H. Kadish the author mentions thus :           "Other  psychologically   oriented  theories   ave      viewed  suicide  as  a  means  of  handling  aggressive      impulses engendered by frustration."      Another inference that follows from the evidence of the witness discussed  is that  the constant fact of wailing and weeping is  one of the important symptoms of an intention to commit suicide  as mentioned  by George  W. Brown and Tirril Harris in their book "Social Origins of Depression" thus:-           "1. Symptom data           Depressed mood- 140      1. Crying      2. feeling miserable/looking miserable, unable to smile      or laugh      3. feelings of hopelessness about the future      4. suicidal thoughts      5. suicidal attempts      Fears/anxiety/worry      15. psychosomatic accompaniments

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    16. tenseness/anxiety      17. specific worry      18. panic attacks      19. phobias      Thinking      20. feelings of self-depreciation/nihilistic delusions      21. delusions or ideas of reference      22. delusions of persecution/jealousy      23. delusions of grandeur      24. delusions of control/influence      25. other delusions e. g. hypochondriacal worry      26. auditory hallucinations      27. visual hallucinations."      Most of  these symptoms  appear to  have been proved as existing in  Manju both  from her  letters (Exhs. 30, 32 and 33) and from the evidence discussed.      We might  hasten to observe here that in cases of women of a  sensitive and  sentimental nature  it has usually been observed that  if they  are tired  of their  life due to the action of  their kith and kin, they become so desperate that they develop  a spirit  of revenge  and try to destroy those who had  made their  lives worthless  and under  this strong spell of  revenge sometimes they can go to the extreme limit of committing suicide with a feeling that the subject who is the root  cause of  their malady  is also destroyed. This is what may have happened in this case. Having found her dreams shattered to  pieces Manju  tried first to do her best for a compromise  but   the  constant  ill-treatment  and  callous attitude of her husband may have driven 141 her to  take revenge  by killing  herself so that she brings ruination  and   destruction  to   the  family   which   was responsible for  bringing about  her death. We might extract what Robert  J. Kastenbaum  in his book ’Death, Society, and Human Experience’ has to say:      "Revenge fantasies  and their  association with suicide      are well  known to  people who  give ear  to  those  in      emotional distress." After a careful consideration and discussion of the evidence we reach the following conclusions on point No. 1:      1) that  soon after  the marriage the relations between      Manju and  her husband  became extremely  strained  and      went to  the extent  that no  point of  return had been      almost reached,      2) that  it has  been proved  to some  extent that  the      appellant had  some sort  of intimacy with Ujvala which      embittered the relationship between Manju and him,      3) That the story given out by PW 2 and supported by PW      20 that when they reached Pune after the death of Manju      they found appellant’s weeping and wailing out of grief      as this  was merely a pretext for shedding of crocodile      tears, cannot be believed,      4) that  the story  of suicidal pact and the allegation      that  appellant’s   illicit   relations   with   Ujvala      developed to  such an  extreme  that  he  was  so  much      infatuated with  Ujvala as  to form  the bedrock of the      motive of  the murder  of Manju,  has not  been clearly      proved,      5) the  statement of  PW 2  that the appellant had told      him that  during the  night on  11th June  1982 he  had      sexual act with the deceased is too good to be true and      is not believable as it is inherently improbable,      6) that  despite the  evidence of PWs 2, 3, 6 and 20 if      has not been proved to our satisfaction that the matter      had assumed such extreme proportions that Manju refused

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    to go  to Pune  with her  father-in-law (Birdichand) at      any cost  and yet  she was  driven by use of compulsion      and persuasion to accompany him, 142      7) that  the combined reading and effect of the letters      (Exhs. 30,  32 and 33) and the evidence of PWs 2, 3, 4,      6 and  20 clearly  reveal that  the signs  and symptoms      resulting from  the dirty  atmosphere and  the  hostile      surroundings in  which Manju was placed is a pointer to      the fact that there was a reasonable possibility of her      having committed  suicide and  the prosecution  has not      been able  to exclude  or  eliminate  this  possibility      beyond reasonable doubt.      We must  hasten to add that we do not suggest that this was not  a case  of murder  at all  but would only go to the extent of  holding that  at least the possibility of suicide as alleged by the defence may be there and cannot be said to be illusory.      8) That a good part of the evidence discussed above, is      undoubtedly admissible  as held by us but its probative      value seems  to be  precious  little  in  view  of  the      several  improbabilities   pointed  out   by  us  while      discussing the evidence.      We might  mention here  that we had to reappreciate the evidence of  the witnesses and the circumstances taking into account the  psychological aspect of suicide as found in the psychotic nature  and character  of Manju  because these are important facts  which the High Court completely overlocked. It seems  to us  that the  High Court while appreciating the evidence  was  greatly  influenced  by  the  fact  that  the evidence furnished  by the  contents of the letters were not admissible in  evidence which,  as we have shown, is a wrong view of law,      We now come to the second limb- perhaps one of the most important  limbs   of  the   prosecution  case   viz.,   the circumstance that  the appellant  was  last  seen  with  the deceased before  her  death.  Apparently,  if  proved,  this appears to  be a  conclusive evidence  against the appellant but here  also the High Court has completely ignored certain essential details  which  cast  considerable  doubt  on  the evidence led by the prosecution on this point.      The question  of the  appellant having  been last  seen with the  deceased  may  be  divided  into  three  different stages:      1) The  arrival of  Anuradha and her children alongwith      Manju at  Takshila apartments,  followed by the arrival      of 143      the appellant  and his  entry into  his  bedroom  where      Anuradha was talking to Manju,      2) the  calling  of  PW  29  by  A-2  followed  by  the      appellant and  his brother’s  going out on a scooter to      get Dr. Lodha and thereafter Dr. Gandhi.      3) Sending for Mohan Asava (PW 30) and the conversation      between the  appellant,  Birdichand  and  others  as  a      result of which the matter was reported to the police.      Although   the   aforesaid   three   stages   of   this circumstance cannot  technically be  called to mean that the accused was  last seen with the deceased but the three parts combined with  the first  circumstance  might  constitute  a motive for the murder attributed to the appellant.      From a  perusal of  the judgment  of the  High Court on these points,  it appears  that the  High Court  has made  a computerise and  mathematical approach  to  the  problem  in fixing the  exact time of the various events which cannot be

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correct as  would appear from the evidence of the witnesses, including Dr Banerjee (PW 33) .      The evidence  of PW  7, the motor rickshaw driver shows that on  the night  of the  11th of  June he had brought the deceased alongwith Anuradha and others and dropped them near the Takshila  apartments at about 11.00 p.m. The witness was cross-examined on several points but we shall accept finding of the  High Court on the fact that on the 11th of June 1982 the witness  had dropped  the persons,  mentioned above,  at about 11.00 p.m. The rest of the evidence is not germane for the purpose of this case. It may, however, be mentioned that one should  always give  some room for a difference of a few minutes in  the time  that a  layman-like PW 7 would say. We cannot assume  that when  the witness  stated  that  he  had dropped Manju and others at 11.00 p.m., it was exactly 11.00 p.m.--it would have been 10-15 minutes this way or that way. His evidence  is only  material to show the approximate time when Manju returned to the apartments.      The next  witness on  this point  is PW-28,  K.N. Kadu. This witness  corroborates PW-7  and stated he had heard the sound of  a rickshaw near the apartments when the wife of A- 2, Manju  and 3  children entered the apartments and went to their rooms. He 144 further  says  that  after  about  15  minutes  he  saw  the appellant coming  on a  scooter and while he was parking his scooter the  witness asked  him why  did he  come so late to which he  replied that  he was  busy in  some meeting.  This would show  that the  appellant must  have  arrived  at  the apartments near  about  11.30  or  11.45  p.m.  It  is  very difficult to  fix the exact time because the witness himself says that  he had  given the timings approximately. The High Court was,  therefore, not  justified in  fixing the time of arrival of  Manju and  party or  the appellant  with  almost mathematical precision  for that would be a most unrealistic approach. The High Court seems to have speculated that Manju must have  died at  12.00 a.m., that is to say, within 15-20 minutes of  the arrival  of the  appellant. It  is, however, impossible for  us to  determine the  exact time  as to when Manju died  because even  Dr. Banerjee  says in his evidence that the  time of death of the deceased was between 18 to 36 hours which takes us to even beyond past 12 in the night. At any rate,  this much  is certain  that Manju  must have died round about  to 2.00  a.m. because when Dr. Lodha arrived at 2.45 a.m.  he found  her dead  and he  had also  stated that rigor mortis  had started  setting  in,  It  is.  therefore, difficult to  fix the  exact time  as if every witness had a watch which  gave correct  and exact time. Such an inference is not at all called for.      The third  stage of  this  matter  is  that  while  the witness was  sleeping he heared the sound of the starting of a scooter  and got up from his bed and saw appellant and A-2 going away. Therefore, he found 7-8 persons coming and going on their scooters. The High Court seems to suggest that this must have happened by about 1.30 p.m. Even so, this does not prove that  Manju have  died at midnight. As the witness had been sleeping and was only aroused by the sound of scooters, it would  be difficult to fix the exact time when he saw the appellant and A-2 going out on their scooters. His evidence, therefore, was  rightly relied  upon by  the High  Court  in proving the facts stated by him.      PW-29, B.K.  Kadu, who was serving as a watchman at the Takshila apartments says that near about the midnight he was called by  Rameshwar, A-2  and on hearing the shouts he went to flat  No. 5.  He further  says that  A-2 directed  him to

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unbolt or unchain the door but the door was not found closed from inside  and hence  A-2 went out and returned after some time. While the witness was 145 standing at  the door  A-2 returned and after his return the witness also  came back  to his  house and  went  to  sleep. Perhaps the  witness was  referring to the incident when A-1 and A-2  had gone  on scooter  to fetch  Dr.  Lodha.  During cross-examination the  witness  admitted  that  he  did  not possess any  watch and  gave the timings only approximately. We shall  accept his  evidence in  toto but  that  leads  us nowhere.      This is  all the  evidence so far as the first stage of the case  is concerned  and, in all probability, it does not at all  prove that  A-1 had  murdered the  deceased. On  the other hand,  the circumstances  proved by  the three witness are not  inconsistent with  the defence plea that soon after entering the room Manju may have committed suicide.      Part II  of this  circumstance relates to the coming of Dr. Lodha and then Dr. Gandhi on the scene of occurrence and we accept  their evidence  in toto.  Dr. Lodha  was a family doctor of the appellant’s family and it was quite natural to send for  him when the appellant suspected that his wife was dead. Although  Dr. Lodha (PW 24) was a family doctor of the appellant’s family yet he did not try to support the defence case and  was frank enough to tell the accused and those who were present  there that  it was  not possible  for  him  to ascertain the  cause of  death which could only be done by a postmortem. In  other words,  he indirectly  suggested  that Manju’s death  was an  unnatural one,  and in order to get a second opinion  he advised  that Dr. Gandhi (PW 25) may also be summoned.  Accordingly, Dr.  Gandhi  was  called  and  he endorsed the  opinion of  Dr. Lodha.  Such a  conduct on the part of the appellant or the persons belonging to his family is  wholly   inconsistent  with   the  allegation   of   the prosecution that the appellant had murdered the deceased.      The High Court seems to have made one important comment in that  why Dr.  Lodha and Dr. Gandhi were called from some distance when  Dr. Kelkar,  who was  a skin  specialist  and another Doctor  who was  a child  expert, were living in the same building. This comment is neither here nor there. It is manifest that  Birdichand was  a respectable  person of  the town and  when he found that his daughter-in-law had died he would naturally send for his family doctor rather then those who were not known to him. 146      It appears  that PW 30 Mohan Asava was also summoned on telephone and  when he  came at  the scene  of occurrence he found A-2,  Birdichand sitting  on the floor of the room and Bridichand hugged  him out of grief, and told him that Manju had died  of shock and the Doctors were not prepared to give a death certificate.      In order  to understand the evidence of this witness it may be  necessary to determine the sequence of events so for as PW  30 is concerned. The witness has stated that while he was sleeping he was aroused from his sleep by a knock at the door by  Ram Vilas  Sharda (brother  of appellant)  at about 4.00 or 4.15 a.m. Ram Vilas told him that Manju had died and the doctors were not prepared to give any death certificate. After having  these talks  the witness, alongwith Ram Vilas, proceeded to  the apartments  and remained  there till 5.15. a.m. Then  he returned  to his house, took bath and at about 6.30 a.m.  he received  a telephone  call from Ram Vilas for lodging a  report with  the police with the request that the time of  death should be given as 5.30 a.m. Consequently, he

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reached the  police station near about 7.00 or 7.15 a.m. and lodged a report stating that Manju had died at 5.30 a.m.      This witness appears to be of doubtful antecedents and, therefore, his  evidence has  to be  taken with  a grain  of salt. He  admitted in  his statement  at p.  387  that  some proceedings  about  evasion  of  octroi  duty  were  pending against him  in the  Court. He  also admitted  that  he  was convicted and  sentenced to  9 months  R.I  under  the  Food Adulteration Act in the year 1973.      Apart from  this it appears that most of the statements which he  made in the Court against Birdichand and the other accused, were  not made  by him  before  the  police.  These statements were  put to  him and he denied the same but they have been  proved by  the Investigation Officer, PW 40 whose evidence appears  at p.  521  of  Part  II  of  the  printed paperbook. These belated statements made in the Court may be summarised thus:      While in  his statement before the court the witness at p. 386  (para  19)  states  that  the  death  of  Manju  was suspicious yet  he made  no such statement before the police on being  confronted by  the statement  of  PW  40.  Another important point on which his statement does not appear to be true is that the dominent fact 147 mentioned to  him by  Birdichahd and  others  was  that  the doctors were  not prepared to issue death certificate but he did not  say so  before the police. Similarly, he deposed in the court about the statement made to him by Birdichand that he would  lose his prestige and therefore the body should be cremated before  7.00 a.m,  but he  advised him not to do so unless he has informed the police otherwise his whole family would be  in trouble. Almost the entire part of his evidence in para  5 at p. 381 appears to be an afterthought, as PW 40 stated thus:           "I recorded the statement of PW 30 Mohan Asava. He      did not  state  before  me  that  death  of  Manju  was      suspicious. He did not state before me that Accused No.      3 informed  him that  the Doctors  were not prepared to      issue the death certificate. He did not state before me      that the  demand was made of the death certificate from      the Doctors  or the  Doctors refused  to give the same.      During his  statement this  witness did  not  make  the      statements as  per para  No. 5  excluding the  portions      from A to F of his examination-in-chief."      The portions  referred to  as ’A to F’ in para No. 5 of examination-in-chief of PW 30 may be extracted thus:           "Birdichand then started telling me that Manju had      died on  account of shock and that-----he said that she      died of  heart attack------under  any  circumstance  he      wanted to  cremate Manju before 7.O’ clock------when he      said that  he would  spend any  amount  but  wanted  to      cremate her before 7.00 a.m."      This statement  does not  appear to  be  true  for  the following reasons.      (a)  Birdichand knew  full well that PW 30 was a police           contact constable  and as  he was  not prepared to           persuade the  doctors to give a death certificate,           his  attitude   was  hardly  friendly  as  he  was           insisting that  the matter  should be  reported to           the police.                It is,  therefore, difficult  to believe that           Birdichand would  take such a great risk in laying           all his  cards on the table knowing full well that           the witness was not 148

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         so friendly  as he  thought and therefore he might           inform the  police; thereby  he would  be in a way           digging his own grave.      (b)  On a  parity of  reasoning it would have been most           improbable on  the part  of the  appellant,  after           having decided to report the matter to the police,           to ask  PW 30  to report the time of death as 5.30           a.m. knowing  full well  his attitude when he came           to the apartments.      It is  not at  all understandable how the witness could have mentioned the time of Manju’s death as 5.30 a.m. or, at any rate,  when her  death was known to her husband and when he himself  having gone  to the  apartments near  about 4.15 a.m. knew full well that Manju had died earlier and that Dr. Lodha and  Dr. Gandhi  had certified  the same  and  advised Birdichand to  report the  matter  to  the  police.  In  the original Ex-120  (in Marathi  language), it appears that the time of  death given  by  the  witness  is  ’Pahate’  which, according to  Molesworth’s Marathi-English  Dictionary at p. 497, means  ’The period  of six  ghatika before  unrise, the dawn’ i.  e., about  2 hours  24 minutes before sunrise (one ghatika is  equal to 24 minutes). This would take us to near about 3.00  a.m. Either  there  is  some  confusion  in  the translation of  the word  ’Pahate’ or  in  the  words  ’5.30 a.m.’, as  mentioned  in  the  original  Ex.  120.  However, nothing much  turns on  this except  that according  to  the witness Manju  must have  died around  3.00  a.m.  which  is consistent with  the evidence  of Dr.  Lodha  that  when  he examined Manju  at about  2.30 a.m.  he found  her dead  and rigor mortis had already started setting in.      We are  not concerned here with the controversy whether the report was admissible under s. 154 or s. 174 of the Code of Criminal  Procedure but  the fact remains that the policd did receive  the information  that the  death took  place at 5.30 a.m. The High Court seems to have made a capital out of this small incident and has not made a realistic approach to the problem  faced by  Birdichand and  his family.  Being  a respectable man  of the town, Birdichand did not want to act in a  hurry lest  his reputation  may suffer  and  naturally required some time to reflect and consult his friends before taking any  action. The  allegation that  A-3  told  him  to report the  time of  death as 5.30 a.m. is not at all proved but is based on the 149 statement of  PW 30,  before the  police. Thus, the approach made by  the High Court to this aspect of the matter appears to be  artificial and  unrealistic as  it failed  to realise that the  question of  the time  of death of the deceased as 5.30 a.m.  could never  have been  given by the appellant or any other  accused because  they knew full well that the two doctors had  examined the whole matter and given the time of death as  being round about 1.30 a.m. Having known all these facts how  could anyone  ask PW 30 to give the time of death at the police station as 5.30 a.m.      Thus, it  will be  difficult for  us  to  rely  on  the evidence of  such a  witness who  had gone  to the extent of making  wrong   statements  and   trying  to   appease  both Birdichand and the prosecution, and, therefore, his evidence does not inspire any confidence.      The last part of the case on this point is the evidence of PWs  2 and  4, where  the appellant  is said to have told them that he had sexual intercourse with his wife near about 5.00 a.m.  on the  12th June  1982. Apart  from the inherent improbability in  the statement  of the  appellant, there is one other  circumstance which  almost clinches the issue. It

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appears that  Kalghatgi (PW  20), Inspector-in-charge of the police station  made a  query from  Dr.  Banerjee  which  is extracted below:           Whether it  can be  said definitely  or not  as to      whether sexual  intercourse might have taken just prior      to death ?"      The above  query was  made in Ex. 129 and the answer of the Doctor appears in Ex. 187 which is extracted below:           "From clinical  examination there  was no positive      evidence of  having any recent sexual, intercourse just      prior to death."      This positive  finding of  the Doctor  therefore knocks the bottom  out of the case made out by the prosecution tion that the  appellant had told PWs 2 and 4 about having sexual intercourse with  his wife. Unfortunately, however, the High Court instead  of  giving  the  benefit  of  this  important circumstance to  the accused  has given  the benefit  to the prosecution which  is yet another error in the approach made by the Eight Court while assessing the prosecution evidence. Having regard  to the  very short margin of time between the arrival of  the appellant  in his  bed-room and the death of Manju, it seems 150 to be  well-nigh impossible  to believe that he would try to have  sexual   intercourse  with   her.  This  circumstance, therefore, falsifies  the evidence  of PWs  2 and  4 on this point and  shows the  extent to which the witnesses could go to implicate the appellant.      Finally, in  view of  the disturbed nature of the state of mind  of Birdichand  and the catastrophe faced by him and his family,  it is  difficult  to  believe  that  the  grief expressed and  the tears shed by the appellant when PW 2 met him could  be characterised  as fake.  If it is assumed that the accused  did not  commit the murder of the deceased then the weeping  and wailing  and expressing  his grief  to PW 2 would be quite natural and not fake.      There  are   other  minor   details  which   have  been considered by the High Court but they do not appear to us to be very material.      Taking  an   overall  picture   on  this  part  of  the prosecution case the position seems to be as follows:      (1)   if the  accused wanted to give poison while Manju           was wide  awake, she  would have  put up  stiffest           possible resistance  as any  other person  in  her           position would  have done.  Dr.  Banerjee  in  his           postmortem  report  has  not  found  any  mark  of           violence  or   resistance.   Even   if   she   was           overpowered  by   the  appellant  she  would  have           shouted and  cried and  attracted persons from the           neighbouring flats  which would  have been a great           risk having  regard to  the fact  that some of the           inmates of  the house  had come only a short-while           before the appellant.      (2)   Another possibility  which cannot be ruled out is           that potassium  cyanide may  have  been  given  to           Manju in  a glass of water, if she happened to ask           for it.  But if  this was  so, she being a chemist           herself would  have at  once suspected  some  foul           play and  once her  suspicion would have arisen it           would be  very  difficult  for  the  appellant  to           murder her.      (3)   The  third  possibility  is  that  as  Manju  had           returned pretty late to the flat she went to sleep           even before  the arrival of the appellant and then           he must have tried to

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151           forcibly administer  the poison  by the process of           mechanical suffocation,  in which  case alone  the           deceased could  not have  been in  a  position  to           offer any  resistance. But  this  opinion  of  the           Doctor has  not been  accepted by  the High  Court           which, after  a very  elaborate consideration  and           discussion of  the evidence, the circumstances and           the medical authorities, found that the opinion of           the  Doctor   that  Manju   died   by   mechanical           suffocation has  not been  proved or, at any rate,           it is  not safe  to rely on such evidence. In this           connection, we  might refer to the finding of fact           arrived at by the High Court on this point:           "In view  of the  above position  as is  available      from  the   evidence  of  Dr.  Banerjee  and  from  the      observations made  by the  medical authorities  it will      not be  possible to  say that the existence of the dark      red blood in the right ventricle exclusively points out      the  mechanical   suffocation  particularly  when  such      phenomenon  is  available  in  cases  of  poisoning  by      potassium cyanide." (PB p. 147-48)           "In view of this answer it will not be possible to      say  conclusively   that  this  particular  symptom  of      observation  is   exclusively  available   in  case  of      mechanical suffocation.           Thus we  have discussed  all the  seven  items  on      which Dr. Banerjee has relied for the purpose of giving      an opinion  that there  was mechanical  suffocation. In      our  view,   therefore,  those  7  findings  would  not      constitute conclusive  date for  the purpose of holding      that  there   was  mechanical  suffocation.  As  the  7      findings mentioned  above can  be available even in the      case of cyanide poisoning we think that it would not be      safe to  rely upon these circumstances for recording an      affirmative   finding   that   there   was   mechanical      suffocation. As  the 7  findings mentioned above can be      available even  in the  case of  cyanide  poisoning  we      think that  it would  not be  safe to  rely upon  these      circumstances for recording an affirmative finding that      there was mechanical suffocation."                                                  (P.150-151)      It is  not necessary for us to repeat the circumstances relied upon  by the  High Court  because the finding of fact speaks for itself. 152 This being  the  position,  the  possibility  of  mechanical suffocation is completely excluded.      (4)   The other  possibility that  may be thought of is           that Manju  died a  natural death.  This  also  is           eliminated in  view of  the report of the Chemical           Examiner as  confirmed by  the postmortem that the           deceased had died as a result of administration of           potassium cyanide.      (5)  The only other reasonable possibility that remains           is that  as the  deceased  was  fed  up  with  the           maltreatment by  her husband, in a combined spirit           of revenge  and hostility  after entering the flat           she herself  took potassium  cyanide and  lay limp           and lifeless.  When the appellant entered the room           he must  have thought that as she was sleeping she           need not be disturbed but when he found that there           was no  movement in the body after an hour so, his           suspicion was  roused and  therefore he called his           brother from adjacent flat to send for Dr. Lodha.

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    In these  circumstances,  it  cannot  be  said  that  a reasonable possibility  of  the  deceased  having  committed suicide, as  alleged by the defence, can be safely ruled out or eliminated.      From a  review of the circumstances mentioned above, we are of  the opinion  that the  circumstance of the appellant having been  last seen with the deceased has not been proved conclusively so  as to  raise an irresistible inference that Manju’s death was a case of blatant homicide.      This now  brings us to an important chapter of the case on which  great reliance  appears to have been placed by Mr. Jethmalani  on   behalf  of  the  appellant.  Unfortunately, however,  the  aspect  relating  to  interpolations  in  the postmortem report  has been  completely glossed  over by the High Court  which has  not attached  any importance  to  the infirmity appearing  in the  medical evidence  in support of the said  interpolations. Although  the learned  counsel for the  appellant   drew  our   attention  to   a   number   of interpolations in  the postmortem  report as also the report sent to  the Chemical  Examiner, we  are impressed only with two infirmities which merit 153 serious consideration.  To begin  with, it  has been pointed out that in the original postmortem notes which were sent to Dr. Banerjee  (PW 33)  for his  opinion, there  is  a  clear interpolation by  which the words ‘can be a case of suicidal death’ appear  to have  been scored  out  and  Dr.  Banerjee explained that  since he  had written  the words ‘time since death’ twice,  therefore, the  subsequent writing  had  been scored out  by him.  In  other  words,  the  Doctor  clearly admitted the  scoring out  of the  subsequent portion and we have to  examine whether  the explanation  given by  him  is correct. In  order to decide this issue we have examined for ourselves the  original postmortem notes (Ex. 128) where the writing has  been admittedly scored out by Dr. Banerjee. The relevant column  against which  the scoring has been done is column. No. 5 which runs thus:           "5. Substance  of accompanying  Report from Police      officer or Magistrate, together with the date of death,      if known.  Supposed  cause  of  death,  or  reason  for      examination."      The last line indicates that the Doctor was to note two things-(1) the date of death, if known, and (2) the supposed cause of  death. This  document appears to have been written by PW 33 on 12.6.82 at 4.30 p.m. The relevant portion of the words written  by the  Doctor are  ‘time since  dealt’ which were repeated  as he  states in  his statement.  After these words some  other words  have been admittedly scored out and his (PW  33) explanation was that since he had written ‘time since death’  twice, the  second line being a repetition was scored out.  A bare  look at  Ex. 128 does not show that the explanation  given   by  the  Doctor  is  correct.  We  have ourselves examined  the  said  words  with  the  help  of  a magnifying glass  and find  that the  scored words could not have been  ‘time since  death’. The only word common between the line  scored out and the line left intact is ‘death’. To us, the  scored out  words seem  to be  ‘can be  a  case  of suicidal death’.  Dr Banerjee  however stuck to his original stand which  is not  supported by  his own  writing  in  the document itself.  It seems’  to us  that at  the first flush when he  wrote the  postmortem notes it appeared to him that no abnormality was detected and that it appears to be a case of suicide rather than that of homicide. This, therefore, if the strongest  possible circumstance  to  make  the  defence highly probable,  if not certain. Furthermore, the Doctors’s

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explanation that  the scored  words were "time since death", according to the said explanation, the scored words ore only three whereas 154 the portion  scored out  contains as  many as  seven  words. Hence the  explanation of  the Doctor  is not borne out from the document.      It is  true that  the Doctor reserved his opinion until the chemical  examiner’s report but that does not answer the question because  in column  No.5  of  postmortem  note  Dr. Banerjee has  clearly written  "can be  a case  of  suicidal death" which  indicates a  that in the absence of the report of the  chemical examiner,  he was  of the  opinion that  it could have  been a  case of  suicide. In his evidence, PW 33 stated that  in Exh. 128 in column No. 5 the contents scored out read  ‘time since  death’ and   since it was repeated in the next  line, he  scored the  words in  the  second  line. Despite persistent  cross-examination the  Doctor appears to have stuck  to his  stand. It cannot, therefore, be gainsaid that this matter was of vital importance and we expected the High Court  to have  given serious  attention to this aspect which goes in favour of the accused.      Another  interpolation   pointed  out  by  the  learned counsel is regarding position of tongue as mentioned in Exh. 134. In  the original  while filling  up the said column the Doctor appears  to have  scored out something; the filled up entry appears  thus-‘mouth is  closed  with  tip  (something scored out)  seen caught  between the  teeth’.  But  in  the carbon copy  of the  report which  was sent  to the Chemical Examiner (Exh.  132) he has added ‘caught between the teeth’ in ink  but in the original there is something else. This is fortified by  the fact  that the copy of the report actually sent  to   the  chemical   examiner  does  not  contain  any interpolation against  the said  column where  the filled up entry reads ‘Inside mouth’.      The combined  effect of  these circumstances  show that Dr. Banerjee (PW33) tried to introduce some additional facts regarding the  position of  the tongue.  Perhaps this may be due to  his final  opinion that  the deceased  died  due  to mechanical suffocation  which might lead to the tongue being pressed between  the teeth. This, however, throws a cloud of doubt on  the correctness or otherwise of the actual reports written by  him and  the one  that was  sent to the Chemical Examiner. It  is obvious  that in  the carbon copy which was retained by  the Doctor,  the entries  must have  been  made after the  copy was  sent to the Chemical Examiner. However, this circumstance  is not  of much  consequence because  the opinion  of   the  Doctor   that  Manju   died  by  forcible administration of  potassium cyanide  or by  the process  of mechanical suffocation has not been proved. 155 This aspect  need not detain us any further because the High Court has not accepted the case of mechanical suffocation.      So far  as the  other  findings  of  Dr.  Banerjee  are concerned we fully agree with the same. A number of comments were made  on behalf  of the  appellant about Dr. Banerjee’s integrity and incorrect reports but subject to what we said, we do not find any substance in those contentions.      In para  90 of  its judgment the High Court has given a number of  circumstances which  according to it, go to prove the  prosecution   case  showing   that  the  appellant  had administered the poison during the night of 11th June, 1982. These circumstances may be extracted thus:      (1)   In the  bed-room Manju  died of poisoning between           11.30 p.m.  and  1.  a.m.  in  the  night  between

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         11/12th June, 1982.      (2)   Accused No.  1 was present in that bed room since           before the  death of  Manju i.e. since about 11.15           p.m.      (3)   Accused No,  1 did not return to the flat at 1.30           a.m or 1.45 a.m. as alleged.      (4)   The conduct  of accused  No. 1 in not calling for           the immediate  help of  Dr. Shrikant Kelkar and/or           Mrs.  Anjali   Kelkar  is  inconsistent  with  his           defence that  he felt  suspicious of the health of           Manju when  he allegedly  returned to  the flat at           1.30 a.m.      (5)   In different  conduct of  accused No.  1 when Dr.           Lodha and  Dr. Gandhi went to the flat in Takshila           apartment, Accused  No. 1 did not show any anxiety           which one  normally finds when the doctor comes to           examine the  patient. Accused  No. 1  should  have           accompanied the  doctors when  they examined Manju           and should  have expressly  or  by  his  behaviour           disclosed his feelings about the well being of his           wife. It  was also  necessary for  him to disclose           the alleged fact that he saw Manju in a suspicious           condition when  he returned  at about 1.30 a.m. Or           so.      (6)   An attempt  of Birdichand to get the cremation of           Manju done  before 7  a. m.  On 12.  6 82  even by           spending any amount for that purpose. This conduct           though 156           of Birdichand  shows the  conduct of  a person  to           whom Accused  No. 1  had gone  and informed  as to           what had happened.      (7)  Delay and false information to police at the hands           of Mohan Asava. Though the information is given by           Mohan as per the phone instructions of accused No.           3 it  is, presumed  that accused  No. 1  must have           told accused  No. 3 about the incident and on that           basis accused  No.3  gave  instructions  to  Mohan           Asava.      (8)   Accused No.  1 himself  does not  take any action           either personally or through somebody else to give           correct information to police.      (9)   Arrangement of  the dead  body to  make show that           Manju died a peaceful and natural death.      (10) Accused  No. 1  has a  motive to  kill Manju as he           wanted to  get rid  of her  to continue  relations           with Ujvala.      (11) Absence  of an  anklet on  left ankle  of Manju is           inconsistent with the defence that Manju committed           suicide.      (12) The  conduct of  the  accused  in  concealing  the           anklet in  the fold of the Chaddar is a Conduct of           a guilty man.      (13) The  door of the bedroom was not found bolted from           inside. This  would have  been  normally  done  by           Manju if she had committed suicide.      (14) Potassium  cyanide must not have been available to           Manju.      (15) Manju  was 4  to  6  weeks  pregnant.  This  is  a           circumstance which  would  normally  dissuade  her           from committing suicide.      (16) Denial of the part of accused No. 1 of admitted or           proved facts.      (17) Raising  a false  plea of absence from the bedroom           at the relevant time.                (PP. 152-155)

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157      We have  already discussed  most of  the  circumstances extracted above  and given  our opinion, and have also fully explained the  effect of circumstances Nos. 1,2,3,4,5 and 6. We might  again even  at the risk of repetition say that too much reliance seems to have been placed by the High Court on circumstance No. 4 as the appellant did not immediately call for Dr. Shrikant Kelkar (PW 26) and Dr. (Mrs.) Anjali Kelkar (PW 27).  In a  matter of  this magnitude  it would be quite natural for  the members  of the  appellant’s family to send for their  own family  doctor who  was fully conversant with the  ailment  of  every  member  of  the  family.  In  these circumstances there  was nothing  wrong if the appellant and his brother went to a distance of 11/2 Km. to get Dr. Lodha. Secondly, Dr.  Shrikant Kelkar  was skin  specialist whereas Dr.  (Mrs)   Anjali  Kelkar  was  a  Paediatrician  and  the appellant may  have genuinely believed that as they belonged to different  branches, they  were not  all suitable to deal with such  a serious  case. The  High Court  was, therefore, wrong in  treating this  circumstance  as  an  incriminating conduct of the appellant.      Circumstance No.  5 is  purely conjectural  because  as soon as  Dr. Lodha  came he  examined Manju and advised that Dr. Gandhi  be called.  We fail  to understand  what was the indifferent conduct  of the  appellant when  he had sent for the two Doctors who examined the deceased. The appellant was in the  same room  or rather  in an  adjacent room  when the deceased was  being examined.  From this no inference can be drawn that  the appellant  was indifferent  to the  state in which Manju was found.      As regards circumstance No. 6 we have already explained this while  dealing with the evidence of Mohan Asava, PW 30. As regards  circumstance No.  7, the High Court has presumed that there being no dependable evidence that the information given to  the police  by  PW  30  was  false  and  that  the appellant must have told A-3 about the incident on the basis of which  he gave  instructions to  PW 30.  This is also far from the  truth as  has been pointed out by us while dealing with the evidence of PW 30.      Circumstance No.  8 is  that PW  30 was asked to report the matter  to the  police. When  the dead body was lying in the flat  what action  could the appellant have taken except reporting the  matter to the police through one of his known persons. So far as 158 circumstances Nos.  9 and  10 are  concerned,  they  do  not appear to  us to  be of any consequence because, as shown by us, from  a reading  of the letters (Exhs. 30,32 and 33) and the conduct of the appellant, we do not find any evidence of a clear motive on the part of the appellant to kill Manju.      Circumstances Nos.  11 and 12 are also of no assistance to the  prosecution because  whether the  anklet was  in the chaddar or  elsewhere is  wholly insignificant  and does not affect the  issue in question at all. Circumstance No. 13 is also speculative because if the bedroom was not found bolted from inside that would it self not show that Manju could not have  committed   suicide.  Various  persons  may  react  to circumstances in  different ways.  When  Manju  entered  her bedroom her husband had not come and since she went to sleep she may  not have  bolted the door from inside to enable her husband to  enter the  room. As regards circumstance No. 14, the High  Court has  overlooked a very important part of the evidence of PW 2 who has stated at page 178 of part I of the printed paperbook thus:           "The plastic  factory at  Beed  is  a  partnership

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    concern in  which two  sons of  Dhanraj,  my  wife  and      sister-in-law, i.e., brother’s wife are partners."      Dr. Modi’s  Medical Jurisprudence  and Texicology (19th Edn.) at  page 747  shows that  ‘Cyanide is  also  used  for making basic  chemicals for  plastics’. Apart  from the fact that the  High Court  in relying  on this  circumstance  has committed a  clear error  of record,  it  is  an  additional factor to  show that  cyanide could  have been  available to Manju when she visited Beed for the last time and had stayed there for more than a week.      Circumstance No.15-the fact that Manju was 4 to 6 weeks pregnant would  dissuade Manju  from committing  suicide  is also purely  speculative. A pregnancy of 4 to 6 weeks is not very serious  and can easily be washed out. Moreover, when a person has decided to end one’s life these are matters which do not  count at  all. On  the other hand, this circumstance may have prompted her to commit suicide for a child was born to her,  in view of her ill-treatment by her husband and her in-laws, the  child may  not get proper upbringing. Any way, we do  not want  to land  ourselves in the field of surmises and conjectures as the High Court has done. 159      Circumstance No.  17 is  wholly irrelevant  because the prosecution cannot  derive any  strength from  a false  plea unless it  has proved  its  case  with  absolute  certainty. Circumstance No.17  also is not relevant because there is no question of  taking a false plea of absence from the bedroom at the  relevant time  as there is no clear evidence on this point.      Apart from  the aforesaid  comments there  is one vital defect in  some of  the circumstances  mentioned  above  and relied upon  by the  High Court,  viz.,  circumstances  Nos. 4,5,6,8,9,11,12,13,16, and  17. As  these circumstances were not put to the appellant in his statement under s.313 of the Criminal Procedure  Code they  must be  completely  excluded from consideration  because the  appellant did  not have any chance to  explain them.  This has been consistently held by this Court  as far  back as  1953 where in the case of Fateh Singh Bhagat  Singh v. State of Madhya Pradesh(1) this Court held that  any circumstance  in respect  of which an accused was not examined under s. 342 of the Criminal procedure code cannot be  used against  him ever since this decision. there is a  catena of  authorities of  this Court uniformly taking the view  that unless  the circumstance appearing against an accused is  put to him in his examination under s.342 of the or s.313  of the Criminal Procedure Code, the same cannot be used against  him.  In  Shamu  Balu  Chaugule  v.  State  of Maharashtra(2) this Court held thus:           "The fact  that  the  appellant  was  said  to  be      absconding not  having been  put to  him under  section      342, Criminal Procedure Code, could not be used against      him."      To the same effect is another decision of this Court in Harijan Megha  Jesha v.  State  of  Gujarat  (3)  where  the following observation were made:           "In  the  first  place,  he  stated  that  on  the      personal search  of the  appellant, a  chadi was  found      which was  blood stained and according to the report of      the   serologist,    it    contained    human    blood.      Unfortunately, however,  as this  circumstance was  not      put to the accused in his statement 160      under section  342, the prosecution cannot be permitted      to rely  on this  statement in  order  to  convict  the      appellant.’:

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    It is  not necessary  for us to multiply authorities on this point  as this question now stands concluded by several decision of  this Court.  In this  view of  the matter,  the circumstances which  were not  put to  the appellant  in his examination under  s.313 of the Criminal Procedure Code have to be completely excluded from consideration.      We might  mention here an important argument advance by counsel for  the appellant  and countered  by the Additional Solicitor General.  It was argued before the High Court that it was  highly improbable  that if the betrothal ceremony of appellant’s sister,  which was  as important as the marriage itself, was going to be performed on the 13th of June, would the appellant  clouse a  day before  that for  murdering his wife and  thereby bring disgrace and destruction not only to his family  but also to her sister. We have already adverted to this aspect of the matter but it is rather interesting to note how  the High  Court has  tried to  rebut this inherent improbability,  on   the  ground   that   in   a   case   of administration of  poison the culprit would just wait for an opportunity to  administer the  same and  once he  gets  the opportunity he is not expected to think rationally but would commit the murder at once. With due respect to the Judges of the High  Court, we  are not able to agree with the somewhat complex line  of reasoning  which is  not supported  by  the evidence on  record. There  is clear  evidence, led  by  the prosecution that except for a week or few days of intervals, Manju always  used to  live with  her husband  and  she  had herself complained  that he  used to  come  late  at  night. Hence, as  both were  living alone  in the same room for the last four months there could be no dearth of any opportunity on the  part of  the appellant  to administer  poison if  he really wanted to do so. We are unable to follow the logic of the High  Court’s reasoning  that once  the appellant got an opportunity he  must have  clung to it. The evidence further shows that both Manju and appellant had gone for a honeymoon outside Pune  and even  at that  time he could have murdered her and  allowed the  case to  pass  for  a  natural  death. However, these are matters of conjectures.      The   Additional    Solicitor-General   realising   the hollowness  of  the  High  Court’s  argument  put  it  in  a different way.  He submitted  that as  the deceased  was 4-6 weeks pregnant the appellant realised 161 that unless the deceased was murdered at the behest it would become very  difficult for him to murder her, even if he had got an  opportunity, if  a child  was born and then he would have to  maintain the  child also  which would have affected his illicit  connections with  Ujvala. This appears to be an attractive argument  but on  close scrutiny it is untenable. If it  was only  a  question  of  Manju’s  being  4-6  weeks pregnant before  her death, the appellant could just as well have waited  just for another fortnight till the marriage of his sister  was over which was fixed for 30th June, 1982 and then either  have the  pregnancy terminated  or killed  her. Moreover, it  would appear from the evidence of PW 2 (P.176) that in  his community  the Kohl  ceremony is  not merely  a formal betrothal  but a very important ceremony in which all the near  relations are  called and  invited to  attend  the function and  a dinner is hosted. We might extract what PW 2 says about this:           "At the  time of  Kohl celebration  of  Manju,  on      2.8.1981 my  relatives i.e.  my sister from outside had      attended this function and many people were invited for      this function.  A dinner was also hosted by me. In that      function the  father of  the bridegroom  is required to

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    spend for  the dinner  while the  presentations made to      the bride  are required  to be  given or  donned at the      expenses of  the side  of bridegroom  This programme is      not attended by the bridegroom." (P.176)      As Birdichand  and others  were made  co-accused in the case they  were unable to give evidence on this point but it is the  admitted case  of both  the parties that the accused belonged  to   the  same   community  as   PW  2.  In  these circumstances, it  is difficult  to accept the argument that the appellant  would commit  the murder  of his wife just on the eve  of Kohl ceremony, which he could have done the same long before that ceremony or after the marriage as there was no hurry  nor any  such impediment  which would deny him any opportunity of murdering his wife.      We  now  come  to  the  nature  and  character  of  the circumstantial evidence.  The law  on the  subject  is  well settled for the last 6-7 decades and there have been so many decisions on  this point  that the  principles laid  down by courts have become more or less axiomatic. 162      The High  Court has  referred to some decisions of this Court and  tried to  apply the  ratio of  those cases to the present  case   which,  as   we  shall   show,  are  clearly distinguishable. The High Court was greatly impressed by the view taken  by some  courts, including  this Court,  that  a false defence  or a  false plea taken by an accused would be an additional  link in  the various  chain of circumstantial evidence and  seems to  suggest that since the appellant had taken a  false plea  that would  be conclusive,  taken along with other  circumstances, to  prove  the  case.  We  might, however, mention  at the  outset that  this is not what this Court has said. We shall elaborate this aspect of the matter a little later      It is  well settled  that the prosecution must stand or fall on  its own legs and it cannot derive any strength from the weakness  of the  defence. This  is  trite  law  and  no decision has  taken a  contrary view.  What some  cases have held is  only this:  where various  links in  a chain are in themselves complete than a false plea or a false defence may be called  into aid  only to lend assurance to the Court. In other words,  before using  the additional  link it  must be proved that  all the  links in the chain are complete and do not suffer  from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be  cured or  supplied by  a false  defence or  a plea which is not accepted by a Court.      Before discussing  the cases  relied upon  by the  High Court we  would like  to cite a few decisions on the nature, character and  essential proof  required in  a criminal case which rests  on  circumstantial  evidence  alone.  The  most fundamental and  basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and  applied by  this Court  in a  large number  of later decisions  uptodate, for instance, the cases of Tufail (Alias) Simmi  v. State  of Uttar Pradesh(2) and Ramgopal v. Stat of  Maharashtra(3). It  may be  useful to  extract what Mahajan, J. has laid down in Hanumant’s case (supra):           "It is  well to  remember that  in cases where the      evidence   is   of   a   circumstantial   nature,   the      circumstances from  which the conclusion of guilt is to      be drawn should in the 163      first instance  be fully  established and all the facts      so established  should  be  consistent  only  with  the      hypothesis of  the guilt  of the  accused.  Again,  the

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    circumstances should  be of  a  conclusive  nature  and      tendency and  they should  be such  as to exclude every      hypothesis but  the one proposed to be proved. In other      words, there  must  be  a  chain  of  evidence  so  far      complete as  not to  leave any  reasonable ground far a      conclusion consistent with the innocence of the accused      and it  must be  such as  to show that within all human      probability  the   act  must  have  been  done  by  the      accused."      A close  analysis of  this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:      (1)  the circumstances  from which  the  conclusion  of           guilt is to be drawn should be fully established.      It may be noted here that this Court indicated that the circumstances concerned  ’must or  should’ and  not ’may be’ established. There  is not  only a  grammatical but  a legal distinction between  ’may be  proved’ and ’must be or should be proved’  as was  held by  this Court  in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(’) where the following observations were made:           "Certainly, it  is a  primary principle  that  the      accused must  be and  not merely may be guilty before a      court can  convict and the mental distance between ’may      be’ and ’must be’ is long and divides vague conjectures      from sure conclusions."      (2)  The facts so established should be consistent only           with the  hypothesis of  the guilt of the accused,           that is  to say. they should not be explainable on           any other  hypothesis except  that the  accused is           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 164      (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.      These  five  golden  principles,  if  we  may  say  so, constitute the  panchsheel of  the proof  of a case based on circumstantial evidence.      It may  be interesting to note that as regards the mode of proof  in a  criminal case  depending  on  circumstantial evidence, in the absence of a corpus deliciti, the statement of law  as to proof of the same was laid down by Gresson, J. (and concurred  by 3  more Judges)  in The King v. Horry,(l) thus:           "Before he  can be  convicted, the  fact of  death      should be  proved by  such circumstances  as render the      commission of  the crime  morally certain  and leave no      ground  for   reasonable  doubt:   the   circumstantial      evidence should  be so  cogent  and  compelling  as  to      convince a jury that up on no rational hypothesis other      than murder can the facts be accounted for."      Lord Goddard  slightly modified the expression, morally certain by  ’such circumstances  as render the commission of the crime certain’.      This indicates  the  cardinal  principle’  of  criminal jurisprudence that a case can be said to be proved only when there is  certain and explicit evidence and no person can be convicted on pure moral conviction. Horry’s case (supra) was

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approved by  this Court in Anant Chintaman Lagu v. The State of Bombay(2)  Lagu’s case  as also the principles enunciated by this Court in Hanumant’s case (supra) have been uniformly and consistently  followed in  all later  decisions of  this Court without  any single  exception. To  quote a  few cases Tufail’s case  (supra), Ramgopals  case (supra), Chandrakant Nyalchand Seth  v. The  State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab  (Criminal  Appeal  No.  98  of  1958  decided  on 4.11.1958). There are a number of other cases where although Hanumant’s case has not 165 been expressly  noticed but  the same  principles have  been expounded and  reiterated,  as  in  Naseem  Ahmed  v.  Delhi Administration(l). Mohan  Lal Pangasa  v. State  of U.P.,(2) Shankarlal Gyarasilal  Dixit v.  State of Maharashtra(3) and M.C. Agarwal  v. State  of Maharashtra(4)-a five-Judge Bench decision.      It may  be necessary  here to  notice a  very  forceful argument  submitted   by  the  Additional  Solicitor-General relying on  a decision  of this Court in Deonandan Mishra v. The State  of Bihar(5),  to supplement this argument that if the defence  case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with  the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:           "But in  a case  like this where the various links      as started  above have been satisfactorily made out and      the  circumstances   point  to  the  appellant  as  the      probable assailant, with reasonable definiteness and in      proximity  to   the  deceased   as  regards   time  and      situation-such  absence   of   explanation   of   false      explanation would  itself be  an additional  link which      completes the chain."      It will  be seen  that this  Court  while  taking  into account the  absence of  explanation or  a false explanation did hold  that it  will amount  to be  an additional link to complete the  chain but  these observations  must be read in the light  of what  this Court  said earlier, viz., before a false explanation  can  be  used  as  additional  link,  the following essential conditions must be satisfied:      (1)  various links  in the chain of evidence led by the           prosecution have been satisfactorily proved.      (2)  the said  circumstance point  to the  guilt of the           accused with reasonable definiteness, and      (3)  the circumstance  is in  proximity to the time and           situation. 166      If these conditions are fulfilled only then a court can use a  false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts  and circumstances  of the present case, this does not appear  to be such a case. This aspect of the matter was examined in  Shankarlal’s  case  (supra)  where  this  Court observed thus:           "Besides, falsity of defence cannot take the place      of  proof   of  facts  which  the  prosecution  has  to      establish in order to succeed. A false plea can at best      be considered  as an  additional circumstance, if other      circumstances point  unfailingly to  the guilt  of  the      accused."      This Court,  therefore, has in no way departed from the five  conditions  laid  down  in  Hanumant’s  case  (supra). Unfortunately, however,  the High  Court also  seems to have

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misconstrued this  decision and  used  the  so-called  false defence put  up by  the appellant  as one  of the additional circumstances connected  with the  chain. There  is a  vital difference between  an incomplete chain of circumstances and a circumstance  which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution  is unable  to prove  any of  the  essential principles laid  down in  Hanumant’s case,  the  High  Court cannot supply the weakness or the lacuna by taking aid of or recourse to  a false  defence  or  a  false  plea.  We  are, therefore, unable  to accept  the argument of the Additional Solicitor-General      Moreover, in  M.G. Agarwal’s  case (supra)  this  Court while reiterating  the principles  enunciated in  Hanumant’s case observed thus:           "If the  circumstances  proved  in  the  case  are      consistent either  with the innocence of the accused or      with his  guilt, then  the accused  is entitled  to the      benefit of doubt."      In Shankarlal’s  (supra) this Court reiterated the same view thus:           "Legal principles  are not  magic incantations and      their importance  lies more  in their  application to a      given set  of  facts  than  in  their  recital  in  the      judgment".      We then  pass on to another important point which seems to have been completely missed by the High Court. It is well settled that  where on  the evidence  two possibilities  are available or open, 167 one which  goes in  favour of  the prosecution and the other which  benefits  an  accused,  the  accused  is  undoubtedly entitled to  the benefit  of doubt.  In Kali Ram v. State of Himachal  Pradesh,(l)   this  Court   made   the   following observations:           "Another golden  thread which runs through the web      of the  administration of  justice in criminal cases is      that if  two views are possible on the evidence adduced      in the  case one  pointing to  the guilt of the accused      and the  other to  his innocence,  the  view  which  is      favourable  to  the  accused  should  be  adopted  This      principle has a special relevance in cases where in the      guilt of  the accused  is sought  to be  established by      circumstantial evidence."      We now come to the mode and manner of proof of cases of murder by  administration  of  poison.  In  Ramgopal’s  case (supra) this Court held thus:           "Three  questions  arise  in  such  cases,  namely      (firstly), did  the  deceased  die  of  the  poison  in      question ?  (secondly), had  the accused  the poison in      his possession  ? and  (thirdly), had  the  accused  an      opportunity to administer the poison in question to the      deceased ?  It is  only when  the motive  is there  and      these facts  are all  proved that the court may be able      to draw the inference, that the poison was administered      by the accused to the deceased resulting in his death."      So far  as this  matter is concerned, in such cases the court must  carefully scan  the evidence  and determine  the four important  circumstances  which  alone  can  justify  a conviction:      (1)  there  is   a  clear  motive  for  an  accused  to           administer poison to the deceased,      (2)  that the deceased died of poison said to have been           administered,      (3)  that the accused had the poison in his possession,

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    (4)  that he  had  an  opportunity  to  administer  the           poison to the deceased. 168      In the  instant case,  while two  ingredients have been proved but two have not. In the first place, it has no doubt been  proved  that  Manju  died  of  potassium  cyanide  and secondly,  it  has  also  been  proved  that  there  was  an opportunity to  administer the  poison. It has, however, not been proved  by any  evidence that  the  appellant  had  the poison in  his possession.  On the  other hand, as indicated above, there  is clear  evidence  of  PW  2  that  potassium cyanide could  have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused  could have  procured potassium cyanide from any available   source.   We   might   here   extract   a   most unintelligible and extra-ordinary finding of the High Court-           "It is  true that  there is  no direct evidence on      these two  points, because  the prosecution is not able      to lead evidence that the accused had secured potassium      cyanide poison  from  a  particular  source.  Similarly      there is  no direct  evidence  to  prove  that  he  had      administered  poison  to  Manju.  However,  it  is  not      necessary to  prove each  and every  fact by  a  direct      evidence. Circumstantial  evidence can  be a  basis for      proving this fact."                                                      (P.160)      The comment by the High Court appears to be frightfully vague and  absolutely unintelligible.  While holding  in the clearest possible  terms that  there is  no evidence in this case to show that the appellant was in possession or poison, the High  Court observes that this fact may be proved either by direct  or indirect  (circumstantial)  evidence.  But  it fails to  indicate  the  nature  of  the  circumstantial  or indirect  evidence   to  show  that  the  appellant  was  in possession of  poison. If  the court  seems to  suggest that merely  because   the  appellant   had  the  opportunity  to administer poison  and the same was found in the body of the deceased, it  should be  presumed that  the appellant was in possession of  poison, than  it has  committed a serious and gross error of law and has blatantly violated the principles laid down by this Court. The High Court has not indicated as to what  was the  basis for  coming to  a finding  that  the accused could  have procured the cyanide. On the other hand, in view  of the  decision in Ramgopal’s case (supra) failure to prove  possession of  the cyanide poison with the accused by itself  would result  in failure  of the  prosecution  to prove its  case. We are constrained to observe that the High Court has completely misread and misconstru- 169 ed the decision in Ramgopal’s case. Even prior to Ramgopol’s case there  are two decisions of this Court which have taken the  same   view.  In   Chandrakant  Nyalchand  Seth’s  case (Criminal Appeal  No. 120  of 1957  decided on 19.2.58) this Court observed thus:           "Before a  person can  be convicted  of murder  by      poisoning, it  is necessary  to prove that the death of      the deceased  was caused  by poison, that the poison in      question was  in possession  of the  accused  and  that      poison was administered by the accused to the deceased.      There is  no direct  evidence in  this  case  that  the      accused was  in possession of Potassium Cyanide or that      he administered the same to the deceased."      The facts  of the  case  cited  above  were  very  much similar to  the present  appeal. Here  also, the Court found that circumstances afforded a greater motive to the deceased

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to commit  suicide than  for the  accused to  commit murder. This view was reiterated in Dharambir Singh’s case (Criminal Appeal No.  98 of 1958 decided on 4.11.1958) where the court observed as follows:           "Therefore, along with the motive, the prosecution      has also  to establish  that the  deceased  died  of  a      particular poison  said to have been administered, that      the accused  was in  possession of that poison and that      he had  the opportunity  to administer  the same to the      deceased: (see  Mt. Gujrani  and another v. Emperor(’).      It is only when the motive is there and these facts are      all proved  that the  court may  be able  to  draw  the      inference, in  a case  of circumstantial evidence, that      the poison  was administered  by  the  accused  to  the      deceased resulting in his death.           We feel  that it  was not right for the High Court      to say, when this link in the chain had failed, that it      could not  be very  difficult for  anybody  to  procure      potassium cyanide and therefore the absence of proof of      possession of  potassium cyanide  by  the  accused  was      practically of  no effect. On the facts as found by the      High Court it must be held that the second of the three      facts which  have to  be proved,  in case  of poisoning      based on  circumstantial evidence  has not been proved,      namely that the accused was in possession of the poison      that had been found in the body-Can it 170      be said in these circumstances when the proof of a very      vital fact  namely, that  the accused was in possession      of potassium  cyanide, has  failed that  the  chain  of      circumstantial evidence,  is so  far complete as not to      leave any reasonable ground for a conclusion consistent      with the innocence of the accused and that the evidence      which remains  after the rejection of this fact is such      as to  show that  within all  human probability the act      must have been done by the accused."      We are,  therefore, clearly  of the  opinion  that  the facts of  the present appeal are covered by the ratio of the aforesaid decisions.  At any  rate, taking the worst view of the matter  on the  evidence in  this case two possibilities are clearly open-      (1)  that it may be a case of suicide, or      (2)  that it may be a case of murder and both  are equally  probable, hence  the prosecution case stands disproved.      We now  proceed to  deal with  some of the judgments of this Court  on which  great reliance  has been placed by the High Court. In the first place, the High Court relied on the case of  Pershadi v.  State of  Uttar Pradesh(’).  This case appears to  be clearly  distinguishable because  no point of law was  involved therein  and on  the facts  proved and the very extraordinary  conduct of  the accused,  the court held that the  circumstantial evidence  was consistent  only with the guilt  of the  accused and  inconsistent with  any other rational explanation.  Indeed, if  this would  have been our finding in  this particular case, there could be no question that the conviction of the accused would have been upheld.      The next  on which the High Court placed great reliance is case  Lagu’s case (supra). This case also does not appear to be  of any  assistance to  the prosecution.  In the first place, the  case was  decided on  the peculiar facts of that case. Secondly, even though the corpus deliciti was not held to be proved yet the medical evidence and the conduct of the accused unerringly  pointed to  the  inescapable  conclusion that  the   death  of  the  deceased  was  as  a  result  of

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administration of poison and that the accused was the person who admini- 171 stered the same. This. however, is not the case here. On the other hand,  we have  held that the conduct of the appellant has not been proved to be inconsistent with his guilt and on this  ground   alone  the   present  case   can  be   easily distinguished. If  at all  it is  an authority  it is on the point that  this Court  is not  required to  enter  into  an elaborate examination  of the evidence unless there are very special circumstances  to justify the same. At this Court in that case  was clearly  of the  view that the High Court had fully considered  the facts and a multitude of circumstances against the accused remained unexplained, the presumption of innocence was  destroyed and  the High  Court was  therefore right in  affirming the  conviction. Of  course, Sarkar,  J. gave a  dissenting judgment. From a detailed scrutiny of the decision cited  above (Lagu’s  Case) we  find that  there is nothing in  common between  the peculiar  facts of that case and the  present one.  Hence, this  authority is  also of no assistance to the prosecution.      Reliance was  then placed  on the  case of  Ram Dass v. State of  Maharashtra(l) but  we are  unable to see how this decision helps the prosecution. The High Court relied on the fact that  as the accused had taken the deceased immediately to the  Civil Hospital  in order  to stop  the  poison  from spreading, this particular fact was eloquent enough to speak for the  innocence of the accused. A careful perusal of that decision shows  that this  Court did  not        accept  the prosecution case  despite circumstances  appearing  in  that case which  are almost similar to those found in the present one. Moreover,  here also  the accused  had immediately sent for their  family Doctor  after they had detected that Manju was dead.  The reason  for a little delay in lodging the FIR has already  been explained  by us  while dealing  with  the facts. In the decision cited above, it was clearly held that the case against the accused was not proved conclusively and unerringly and  that two reasonable views were possible, the relevant portion of which may be extracted thus:           "On  a  consideration  of  the  evidence  and  the      circumstances referred  to above, we are satisfied that      this is a case in which the circumstantial evidence did      not prove the case against the accused conclusively and      unerringly, and  at any  rate two reasonable views were      possible." 172      We have  already found  in the instant case that taking the prosecution  at the  highest the utmost that can be said is that two views-one in favour of the accused and the other against him-were  possible. Ram  Dass’s case  also therefore supports the appellant rather than the prosecution.      The  last  case  relied  upon  by  the  High  Court  is Shankarlal’s case  (supra) but we are unable to see how this case helps  the prosecution.  The observations  on which the High Court  has relied  upon appears  to have been torn from the context. On the other hand, this decision fully supports the case  of the  appellant that  falsity of  defence cannot take the  place of  proof of facts which the prosecution has to establish  in order to succeed. This decision has already been dealt  with by  us while  considering the merits of the present case and it is not necessary to repeat the same.      These are  the only  important cases  of this  Court on which the  High Court  seeks to  rely and  which, on a close examination, do  not appear to be either relevant or helpful to the  prosecution case in any way. On the other hand, some

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of the  observations made in these cases support the accused rather than the prosecution.      This now  brings us  to the  fag end  of our  judgment. After  a   detailed  discussion   of   the   evidence,   the circumstances  of   the  case   and  interpretation  of  the decisions of  this Court  the legal and factual position may be summarised thus:      (1)  That the five golden principles enunciated by this           Court in Hanumant’s decision (supra) have not been           satisfied  in  the  instant  case.  As  a  logical           corollary, it  follows that it cannot be held that           the act  of the accused cannot be explained on any           other hypothesis except the guilt of the appellant           nor can  it be said that in all human probability,           the accused  had committed the murder of Manju. In           other words, the prosecution has not fulfilled the           essential requirements  of a  criminal case  which           rests purely on circumstantial evidence.      (2)  That, at any rate, the evidence clearly shows that           two views  are possible-one  pointing to the guilt           of the  accused  and  the  other  leading  to  his           innocence. It 173           may be  very likely  that the  appellant may  have           administered the  poison  (potassium  cyanide)  to           Manju but at the same time a fair possibility that           she herself  committed suicide  cannot  be  safely           excluded or  eliminated.  Hence,  on  this  ground           alone the  appellant is entitled to the benefit of           doubt resulting in his acquittal.      (3)  The prosecution  has miserably failed to prove one           of the  most essential  ingredients of  a case  of           death caused  by administration  of poison,  i.e.,           possession of  poison with  the accused (either by           direct of  circumstantial evidence)  and  on  this           ground alone the prosecution must fail.      (4)  That in  appreciating the evidence, the High Court           has clearly  misdirected itself on many points, as           pointed out  by us, and has thus committed a gross           error of law:      (5)  That the  High Court  has relied upon decisions of           this Court which are either inapplicable or which,           on closer  examination, do not support the view of           the High Court being clearly distinguishable.      (6)  That the  High Court  has taken a completely wrong           view of  law  in  holding  that  even  though  the           prosecution may suffer from serious infirmities it           could be  reinforced by  additional  link  in  the           nature of  false defence  in order  to supply  the           lacuna and  has thus committed a fundamental error           of law.      (7)  That the  High Court  has not  only misappreciated           the evidence  but has  completely  overlooked  the           well established  principles of law and in view of           our finding  it is  absolutely clear that the High           Court has  merely tried  to accept the prosecution           case based  on tenterhooks  and slender  tits  and           bits.      (8)  We entirely  agree with  the High Court that it is           wholly unsafe to rely on that part of the evidence           of Dr.  Banerjee (PW  33) which  shows that poison           was 174           forcibly administered by the process of mechanical           suffocation.

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    (9)  We also agree with the High Court that there is no           manifest defect  in the  investigation made by the           police which  appears to  be honest and careful. A           proof positive  of this  fact is  that even though           Rameshwar Birdichand  and  other  members  of  his           family who  had practically  no role  to play  had           been  arrayed  as  accused  but  they  had  to  be           acquitted by  the High  Court for  lack  of  legal           evidence.      (10) That in  view of  our finding  that two  views are           clearly possible in the present case, the question           of defence  being false  dose not  arise  and  the           argument of  the High  Court that  the defence  is           false does not survive.      This was a fit case in which the High Court should have given at least the benefit of doubt to the appellant.      Normally,  this  Court  does  not  interfere  with  the concurrent findings  of fact  of the  courts below,  in  the absence of very special circumstances or gross errors of law committed by  the High  Court.  But  where  the  High  Court ignores or  overlocks the  crying circumstances  and  proved facts,  violates   and  misapplies   the  well   established principles of  criminal jurisprudence  or decisions rendered by this Court on appreciation of circumstantial evidence and refuses to  give benefit  of doubt  to the  accused  despite facts apparent  on the  face of  the record  or on  its  own findings or  tries to  gloss over  them without  giving  any reasonable explanation  or commits errors of law apparent on the  face  of  the  record  which  results  in  serious  and substantial miscarriage of justice to the accused, it is the duty of  this Court  to step  in  and  correct  the  legally erroneous decision of the High Court.      We  can   fully  understand   that  though   the   case superficially viewed bears an ugly look so as to prima facie shock the  conscience of  any Court  yet suspicion,  however great it  may be,  cannot take  the place  of legal proof. A moral conviction  however strong or genuine cannot amount to a legal conviction supportable in law. 175      It must  be recalled  that the well established rule of criminal justice  is  that  ’fouler  the  crime  higher  the proof’. In  the instant  case, the  life and  liberty  of  a subject was  at stake.  As the  accused was  given a capital sentence, a  very careful,  cautious and meticulous approach was necessary to be made.      Manju (from  the evidence  on the record) appears to be not only a highly sensitive woman who expected whole-hearted love  and   affection  from  her  husband  but  having  been thoroughly disappointed  out of  sheer disgust,  frustration and depression  she may have chosen to end her life-at least this possibility  is clearly  gleaned from  her letters  and mental attitude.  She  may  have  been  fully  justified  in entertaining an  expectation that after marriage her husband would look  after her  with affection  and regard.  This  is clearly spelt  out in  the letters where she hinted that her husband a  was so busy that he found no time for her. A hard fact of life, which cannot be denied, is that some people in view of  their occupation  or profession  fined very  little time to  devote to  their family.  Speaking in a light vein, lawyers, professors,  Doctors and perhaps Judges fall within this category  and to  them Manju’s  case should  be an eye- opener.      For  the   reasons  given   above  we   hold  that  the prosecution has  failed to  prove its case against appellant beyond reasonable  doubt. We,  therefore, allow  the appeal,

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set aside  the judgments  of the courts below and acquit the appellant, Sharad  Bridichand Sarda,  of the  charges framed against him and direct him to be released and set at liberty forthwith.      VARADARAJAN,  J.   This  appeal  by  special  leave  is directed against  the judgment  of a  Division Bench  of the Bombay High  Court in  Criminal Appeal  No. 265  of 1983 and Confirmation Case  No. 3  of 1983, dismissing the appeal and confirming the  sentence  of  death  awarded  to  the  first accused Sharad Birdhichand Sarda (hereinafter referred to as the ’appellant’)  by the  Additional Sessions Judge, Pune in Sessions Case  No. 203  of 1982.  The  appellant,  Rameshwar Birdhichand Sarda  and Ramvilas  Rambagas Sarda were accused 1, 2 and 3 respectively in the Sessions Case.      The appellant  and the  second accused  are the sons of one Birdhichand  of Pune  whose family has a cloth business. In addition 176 the appellant  who is  said to  be a  graduate  in  Chemical Engineering had  started a  chemical factory  at Bhosari,  a suburb of  Pune. The third accused is uncle of the appellant and the  second accused.  The appellant  is the  husband  of Manjushree alias  Manju while  the  second  accused  is  the husband of  Anuradha (P.W.35).  Birdhichand’s family has its residential house at Ravivar Peth in Pune and owns a flat in a building  known as Takshasheela Apartments in Mukund Nagar area of Pune.      Manju, the  alleged victim in this case, was the eldest amongst the  five children  of Rameshwar (P.W 2) and Parwati (P.W.20). Anju  (P.W.6) is  the second daughter of P.W.2 who is a  Commercial Tax  and Income  Tax Consultant since 1960. P.W.2 is  living in  his own house situate in Subash Road in Beed city  since 1973,  prior to  which he  was living  in a rented house  in Karimpura  Peth in that city. Meena (P.W.5) is a  school and college mate and friend of Manju who passed the B.Sc.  examination in  Chemistry in  the First  Class in 1980  while   P.W.5  who   had  passed   the  10th  standard examination  together  with  Manju  was  still  studying  in college. Rekha  (P.W.3) whom Manju used to call as Vahini is another friend  of Manju. She is living with her husband Dr. Dilip Dalvi  in a  portion of  P.W.2’s house in Subash Road, Pune as  his tenant.  P.W.20’s elder  brother Dhanraj  Rathi (P.W.22) is a resident of Pune where he is doing business in the sale of plastic bags for the manufacture of which he has a plastic  factory called  Deepak Plastics  at Beed. It is a partnership concern  of P.W.20  and  some  others  including P.W.22’s third  son Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20.      After Manju passed her B.Sc. degree examination in 1980 her marriage  with the  appellant was  settled by  a  formal betrothal ceremony  which  took  place  in  June  1981.  The marriage of  the appellant  and Manju  was performed  at the expense of  P.W.2 at  Beed on  11.2.1982. The  appellant and Manju  left  for  Pune  on  12.2.1982  after  the  marriage. Subsequently, P.W.2  sent his  elder son Deepak for fetching Manju  from   the  appellant’s   house  at   Pune  and  they accordingly came  back to  Beed on  22.2.1982. The appellant went to  Beed four or five days later and took Manju back to Pune on the next day after pleading his inability to stay in P.W.2’s house  for some  more days.  This was  Manju’s first visit to  her parents’  house after  her marriage  with  the appellant. She  is said  to have been very happy during that visit. Thereafter Manju came to her parents’ house alongwith her maternal uncle Dhanraj Rathi (P.W.22) on or about 177

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2.4.1982. It is the case of the prosecution that during that visit Manju  was uneasy and had generally complained against the appellant  to P.Ws.3  and 6. P.W.2 planned to keep Manju in his  house for  about three  weeks on  that occasion. But news of  the death  of  the  appellant’s  grand  father  was received in  P.W.2’s house  in Beed  and, therefore, P.Ws. 2 and 20  and Manju went to Pune for condolences on 11.4.1982. After meeting  the appellant’s  father and  others at  Pune, P.Ws. 2  and 20  returned  to  Beed  leaving  Manju  in  the appellant’s house  in Pune.  That was  the second  visit  of Manju  to   her  parents’  house  after  marriage  with  the appellant. P.Ws.2  and 20  came to  Pune again  on or  about 13.5.1982. After staying for some time as usual in the house of P.W.  22, P.Ws. 2 and 20 visited the house of Birdhichand on that  occasion. It  is the  case of  the prosecution that P.Ws. 2  and 20  found Manju  disturbed and  uneasy and that they, therefore,  took her  to the house of P.W. 22 with the permission of  Birdhichand. It  is  also  the  case  of  the prosecution  that   on  reaching   P.W.  22’s   house  Manju completely broke  down and  started weeping  in the  arms of P.W.20. P.Ws.  2 and  20 returned to Beed from Pune and sent their second  son Pardeep  four or  five days later to fetch Manju, who  had, however, by then gone with the appellant to Tirupati  in   Andhra  Pradesh.   After  learning  that  the appellant and Manju had returned to Pune, P.W.2 sent his son Deepak to  fetch Manju  to Beed.  Accordingly Deepak brought Manju to  Beed accompanied  by the  third  accused  daughter Kavita on  25.5.1982. This  was Manju’s third and last visit to her parents’ house after her marriage with the appellant. It is  the case  of the  prosecution that  Manju was totally disturbed and  frightened during  that visit  and  that  she complained to  her mother  P.W.20 against  the appellant and she in  turn conveyed  to P.W.20  what she heard from Manju. Birdhichand went  to Beed  on  2.6.1982  without  any  prior intimation for  taking Manju  to Pune  on  the  ground  that Manju’s presence  in his  family house at pune was necessary for the  betrothal ceremony of his daughter Shobha fixed for 13.6.1982 as  well as  for her marriage fixed for 30.6.1982. It is  the case  of the  prosecution that when Manju came to know that  her father in-law Birdhichand had come for taking her to  Pune she was wept and expressed her unwillingness to go  to   Pune  and   that,  however,  on  the  assurance  of Birdhichand that he would see to it that nothing happened to the life  of Manju,  P.W.2 permitted  Manju to  go  to  Pune alongwith Birdhichand  and she  accordingly went  to Pune on 3.6.1982 alongwith Kavita and Birdhichand. 178      The family  of Birdhichand  and his  sons including the appellant is  joint.  As  stated  earlier  they  have  their family’s residential house at Ravivar Peth, Pune besides the flat which they owned in the Takshasheela Apartments situate at some distance from their family house. Their flat has two bed-rooms besides  a hall  and other portions. Birdhichand’s two married  sons, the appellant and the second accused used to go  to the  family’s flat  in the Takshasheela Apartments for sleeping during the nights. The appellant and Manju used to sleep  in one  of the  two  bed-rooms  while  the  second accused and  his wife  Anuradha (P.W.35)  and their children used to sleep in the other bed-room.      Manju had  written amongst others, three letters, Ex.33 dated 25.4.1982  to her  friend vahini (P.W.3) and Ex. p. 30 dated 8.2.1982  and p.  32 dated  8.6.1982  to  her  younger sister Anju  (P.W.6). In  Ex. 33 Manju has stated inter alia that she  was feeling lonely though all persons in pune were very good  and everybody  was loving  and that one reason is

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that there  are many  elderly  persons  in  the  house  and, therefore, she  does not  dare to  do any work independently and the  fear which  is in  her mind  every  time  leads  to confusion. She  has also  stated in  that letter  though all person in  Pune were  very good that she becomes angry if he (appellant) does not speak to her when she goes and talks to him even  ten times  and that  till now this man (appellant) had no  time to mind his wife. She has stated in that letter that she dare not ask him (appellant) whether his clothes be taken for  washing and  that at  present her  status is only that of  an unpaid  maid-servant. She  has finally stated in that letter  that on  the day  on which  self-pride  in  the appellant is  reduced no other person will be more fortunate than her  but it  is not  certain whether  she will be alive until that  date. In  Ex. 30  she has stated inter alia that she was  undergoing a  very difficult test and was unable to achieve her  object, that  it would be well and good only if she controls herself and that some other way will have to be evolved when’  that becomes  impossible. In  Ex. 32  she has stated that  though she  was happy at Pune she does not know why there  is such a dirty atmosphere in the house and it is felt every  moment that  something will happen. She has also stated in  that letter  that no work had been started in the house though Shobha’s ’sari’ function is fixed for 13.6.1982 and, therefore, she is out of her mind.      The case  of the  prosecution as  regards  the  alleged occurrence during  the night of 11/12.6.1982 is thus: on 11- 6-1982 at  about 10.30  p.m. Manju  accompanied by Anuradha, (P.W. 35) and 179 three  children   of  the   latter  came  to  the  Taksheela Apartments by  an auto-rickshaw.  The night-watchman  of the Takshasheela Apartments,  kerba (P.W.  28) has deposed about this fact.  Syed Mohideen,  (P.W. 7) an auto-rickshaw driver residing in  the border  of Ganesh  Peth and Ravivar Peth in Pune claims  to have  taken two ladies, three children and a baby by  his auto-rickshaw  at about  11 p.m. on that day to Mukund Nagar. He has identified the photo of Manju published in a newspaper two or three days later as that of one of the two ladies  who travelled by his auto-rickshaw as aforesaid. The second  accused had  already gone  to the  flat  in  the Takshasheela Apartments.  The  appellant  reached  the  flat about 15 minutes later by a scooter, whom the night watchman (P.W. 28)  remarked that  he was  coming rather late he told P.W. 28  that it  was because  he had  a meeting.  After the appellant reached  the flat  he and  Manju retired  to their bed-room while  the second  accused and  P.W. 35  retired to their’s. Thereafter  the appellant  came out of his bed-room at about  2 a.m. on 12.6.1982 and went to the second accused and both  of them  went out  of that  flat by  scooters soon afterwards. The  appellant proceeded  to  Ravivar  Peth  and called his  father while the second accused went to call Dr. Uttam chand  Lodha. (P.W. 24) who lives about one and a half kilo metres  away from  the Takshasheela  Apartments without seeking the  help of  Dr. Anjali  Kelkar,(P.W. 26)  and  her husband Dr.  Shrikant Kelkar (P.W. 27) who lived close by in the  same  Takshasheela  Apartments.  P.W.  24  reached  the appellant’s flat  at about  2.30 a.m.  and found Manju dead, with rigor  motis having already set in and no external mark showing the  cause of death. He, however, opined that it may be a  case of  unnatural death and suggested that the police may be  informed. When  Birdhichand who  had arrived  at the flat by then advised that some other doctor may be called as he was  not satisfied  with the opinion of P.W- 24 suggested that Dr.  Anil Gandhi,  P.W 25  may be called if so desired.

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Thereafter, P.W.  24 and  the third  concerned who  had come with Birdhichand went to call P.W. 25 who lives about 7 kilo metres away  from the  Takshasheela Apartments. On their way they contacted  P.W. 25  over the  phone and took him to the appellant’s flat where he examined Manju at about 4 a.m. and pronounced that  she was dead. He opined that she might have died three  or four  hours earlier and stated that there was no external  evidence showing  the cause  of death.  He  too suggested that  the police  should be  informed to avoid any trouble. 180      The third  accused went  to Mohan  Asava, (P.W.  30) at about  4.30   a.m.  on  12.6.1982  and  called  him  to  the appellant’s flat  after informing  him that  Manju was dead. P.W. 30,  who accompanied the third accused, saw the body of Manju in  the flat  and left the place after suggesting that the police  should be  informed. The third accused contacted P.W. 30  over the  phone at about 6.30 a.m. and asked him to go and  inform the  police that  Manju had died at 5.30 a.m. P.W. 30  accordingly went  to Maharishi Nagar Police Station at about  7 or  7.15 a.m.  and informed  the Head Constable, (P.W. 31) who thereupon made the entry Ex. 120 to the effect that Manju  was found to be dead when the appellant tried to wake her  a up  at 5.30 a.m- on 12.6.1982. P.W. 31 proceeded to the  appellant’s flat at about 8 a.m. after informing the Inspector  of  Police,  P.W.  40  telephonically  about  the suspicious death of Manju.      On receipt  of information  from P.W. 22 by a lightning telephone call  at about  6 a.m. on 12.6.1982 that Manju was extremely serious  P.W. 2  went from  Beed to Pune alongwith his wife P.W. 20 and his son Pradeep and Hiralal Sarda (P.W. 4) by  jeep at  about 1  P.m. on  12.6.1982. and learnt that Manju was  dead. Thereafter  P.W.2  went  alongwith  Hiralal Sarda to  the Sasson  Hospital where  Manju’s body  had been sent by the police for autopsy.      Dr. Kalikrishnan Banerji, P.W. 33 who conducted autopsy on the  body of  Manju did not find any external or internal injury. He  preserved the  viscera, small intestines etc. of Manju and reserved his opinion about the cause of her death. On receipt of the  Chemical Examiner’s report Ex. 130 to the effect that  Manju’s  viscera  contained  potassium  cyanide poison P.W.  33 finally  opined that  Manju had  died due to potassium  cyanide  poisoning  and  simultaneous  mechanical suffocation. After  completing  the  investigation  P.  W.40 filed the  charge-sheet against  the appellant and the other two accused on 13.9.1982.      The Additional Sessions Judge, Pune tried the appellant for offence  under Sec.  302  IPC  of  murder  of  Manju  by administering potassium cyanide poison or by suffocating her or by both, all the three accused for the offence under Sec. 120 B  IPC of  conspiring to  destroy the  evidence  of  the murder of Manju by giving a false report to the police about the time  of her death and the third accused for the offence under Sec.  109 read  with Sec. 201 IPC and Sec. 201 IPC for intsigating P.W.30  to give  false information to the police and giving false information to P.W. 22 regarding the murder of Manju. 181      The appellant  and the  other two  accused  denied  the charges framed  against them.  The appellant  denied that he had anything  to do  with Ujvala  (P.W.  37)  with  whom  is alleged to  have been  in love  at  the  relevant  time.  He admitted that Manju and P.W. 35 accompanied by some children went to  their flat  in the Takshasheela Apartments at about 10.30 p.m.  on 11.6.1982  but denied  that they travelled by

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any auto-rickshaw  and stated  that they went there by their family’s car driven by the second accused. He denied that he went to  the flat  about 15 minutes later and stated that he returned to  the fiat only at 1.30 or 1.45 a.m. on 12.6 1982 after attending  a meeting  in the  Rajasthan Youth Club. He stated that  after changing  his clothes  he looked at Manju and found  something abnormal and became suspicious and then went to  the second  accused and that there after he went to call his  father and  uncle while the second accused went to call Dr. Lodha, P.W. 24.      The Trial  Court found  all the three accused guilty as charged and  convicted them  accordingly and  sentenced  the appellant to death under s.302 IPC and all the three accused to rigorous  imprisonment for  two years  and a  fine of Rs. 2,000 each  under s.120 B IPC but did not award any sentence under s.201 read with s.120B      The appellant  and the  other two accused filed appeals against their  conviction and the sentences awarded to them. The  State   filed  a   criminal  revision  application  for enhancement of  the sentence  awarded to  accused 2  and  3. These  appeals,  confirmation  case  and  criminal  revision application were heard together by the Division Bench of the Bombay High  Court, which  in a lengthy judgment. (195 pages of our  paper book)  allowed the  appellant’s appeal in part regarding his  conviction and sentence under s.120 B IPC but confirmed his conviction and sentence of death awarded under s 302  IPC and allowed the appeal of accused 2 and 3 in full and acquitted  them  and  dismissed  the  criminal  revision application. Hence,  the appellant  alone has come up before this Court  on special  leave against his conviction and the sentence of death.      I had the benefit of reading the judgment of my learned brother Fazal Ali, J. I agree with his final conclusion that the appeal  should succeed.  The learned  Judges of the High Court have  relied upon  17 circumstances for confirming the conviction and  sentence of  death awarded to the appellant. My learned  brother Fazal Ali, J. has rightly rejected every one of  those circumstances  as not conclusively pointing to the guilt of the appellant, including the 182 circumstance that  the appellant  was last  seen with  Manju before her  death  on  the  ground  that  the  case  of  the prosecution based  on evidence of Dr. Banerji (P.W. 33) that there was  any mechanical  suffocation  of  Manju  has  been disbelieved by  the High  Court itself and that some entries in the  carbon copy  Ex. 134 of P.W. 33’s report sent to the Chemical Examiner had been scored and interpolated after his report Ex.  132 to the Chemical Examiner had left his hands, that the  original entry  in the  postmortem certificate Ex. 134 contained  the words  ’can be  a case of suicidal death’ and, that the explanation of P.W.33. that he wrote the words ’time of  death’ twice  and not  the words ’can be a case of suicidal death’ and, therefore, he scored off one of them is not acceptable  at all.  Doctors P.W.24  and 25 did not find any external  injury on  the body of Manju which they saw at about 2.30  and 4.30 a.m. on 12.6.1982. Even P.W.33. did not find any  external or  internal injury on the body of Manju. In these  circumstances, unless the prosecution excludes the possibility of  Manju having  committed suicide by consuming potassium cyanide  poison, as  rightly  pointed  out  by  my learned brother  Fazal Ali,  J., (no  adverse  inference  of guilt can  be drawn against the appellant from the fact that he was  last seen with Manju, he being no other than her own husband who  is naturally  expected to  be with  her  during nights.) Some  of these  17  circumstances  cannot,  by  any

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stretch of imagination, be held to point to the quilt of the appellant.  Circumstance   No.  6   is  an  attempt  of  the appellant’s father  Birdhichand to  get the  body  of  Manju cremated before  7 a.m.  On 12.6.1982  by expressing  such a desire to  P.W.30. Circumstance  No.9 is  arrangement of the dead body  of Manju  to make  it  appear  that  she  died  a peaceful and  natural death.  Circumstance No. 11 is absence of an  anklet of  Manju from her leg. Circumstance No. 12 is the conduct  of the  appellant in  allegedly concealing  the anklet in  the fold  of the  chaddar. Circumstance No. 15 is the fact  that according  to the  medical evidence Manju was pregnant by four to six weeks and it would normally dissuade her from  committing suicide.  With respect  to the  learned judges of  the High  Court, in  my view,  by no  stretch  of imagination, can any of these circumstances be considered to point to  nothing but  the guilt  of the appellant in a case resting purely on circumstantial evidence.      However, since  I am unable to persuade myself to agree with my  learned brother  Fazal Ali, J. on four points, I am writing this  separate but  concurring judgment,  giving  my view on  those points, namely, (1) ill-treatment of Manju by the appellant, (2) intimacy of 183 the appellant  with Ujvala  (P.W.37), (3)  admissibility  of Manju’s letters  Exs. 30,32  and 33 and the oral evidence of P.Ws. 2,3,5,6  and 20  about the  alleged complaints made by Manju against  the appellant under s. 32 (1) of the Evidence Act  and  (4)  conduct  of  Dr.  Banerji  (P.W.33)  who  had conducted autopsy on the body of Manju.      My learned  brother  Fazal  Ali,  J.  has  observed  as follows at pages 3 and 96 of his judgment:           "On the  other hand  the plea  of the  defence was      that while  there was  a strong  possibility  of  Manju      having been  ill-treated and uncared for by her husband      and  her   in-laws,  being   a  highly   sensitive  and      impressionate woman, she committed suicide out of sheer      depression and  frustration arising  from an  emotional      upsurge." (P-3)           "On the  other hand  this  circumstance  may  have      prompted her to commit suicide, for if a child was born      to her, in view of her ill-treatment by her husband and      her in  laws the  child may not get proper upbringing".      (P.96)      I do not recollect any admission by Mr. Ram Jethmalani, learned counsel  for the  appellant in  the  course  of  his arguments about  any cruelty  or ill-treatment  to Manju the part of  the appellant or his parents. The evidence of P.W.3 is that  during Manju’s  second  visit  to  Beed  after  her marriage with  the appellant she found Manju not quite happy and very much afraid of the appellant. The evidence of P.W.5 is  that   during  Manju’s   second  visit  to  Beed,  Manju complained to her about the appellant returning home late in the night  and avoiding  to have  a talk  with her  and that Manju told  her that  she was  afraid of  the appellant  and apprehended danger  to her  life at  his hands.  The further evidence of the P.W.5 is that during her third visit to Beed she inferred from Manju’s face a spell of fear. The evidence of P.W.6  is that during Manju’s second visit to Beed, Manju told her that the appellant used to leave the house early in the morning  and return  late at  night under the pretext of work in  his factory  and that he was even reluctant to talk with her.  P.W.6 has  stated that during Manju’s third visit to Beed  she was  extremely uneasy.  disturbed and  under  a spell of  fear, that  Manju told  her the  appellant did not relish even  her question  as to  why he was not prepared to

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have a simple talk with her, and that 184 during  her   third  visit  to  Beed,  Manju  expressed  her unwillingness to go to Pune when Birdhichand went to Beed on 2.6.1982 for  taking her  to Pune. To the same effect is the evidence of  P.W   s. 2  and 20  about how  Manju looked  in spirit and  what she  stated during  her last two visits. My learned brother  Fazal Ali, J. has rightly rejected the oral evidence of  P.Ws. 2,  3, 5,  6 and 20. He has extracted the relevant portions  of the  letters Exs. 30, 32 and 33 in his judgment and  has observed  at page  23 that one thing which may be  conspicuously noticed  in Ex.  30 is  that Manju was prepared to  take all  the  blame  on  herself  rather  than incriminating her  husband or  his rents  at page 24 that it was conceded  by the  learned Additional  Solicitor  General that the relevant portion of Ex.32 does not refer to any ill treatment of  Manju by  the appellant or his parents; and at page 30  that it  can be  easily inferred  from Ex.  33 that Manju  did  not  have  any  serious  complaint  against  the appellant except  that she  was not getting proper attention which she  deserved from  him. These  three letters  do  not establish that Manju made any complaint of any ill-treatment by the  appellant or  his parents.  In my  view, these three letters and  the aforesaid  oral evidence  of P.Ws. 2, 3 5 6 and 20  are inadmissible  in evidence  under s. 32(1) of the Evidence Act  for  reasons  to  be  given  elsewhere  in  my judgment. Thus  there is no acceptable evidence on record to show that  either the  appellant or  his  parents  ill-treat Manju. The  High Court  also has  not  found  any  such  ill treatment in  its judgment. On the other hand, what has been found by  the High Court in para 104 of its judgment is that the  appellant  treated  Manju  contemptuously.  Even  while setting out  the case  of the prosecution the High Court has stated in para 7 of its judgment that it is alleged that the appellant started giving contemptuous treatment to Manju and in para  20 that  the appellant  has denied in his statement recorded under  s.313 Cr.P.C.  that Manju  was being treated contemptuously. No question has been put to the appellant in the course  of his examination under s.313 Cr.P.C. about any ill treatment  of Manju  by the appellant or his parents. My learned brother  Fazal Ali,  J. has referred in pages 97 and 98 of  his judgment to this Court’s decisions in Fateh Singh Bhagat Singh v. State of Madhya Pradesh, Shamu Babu Chaugale v. State  of Mahararstra and Harijan Megha Jesha v. State of Gujarat(3) and  has observed at page 98 of his judgment that circumstance not  put to  the appellant  in his  examination under s.  313 Cr.PC.  have to  be completely  excluded  from consideration in view of those decisions. Therefore, since 185 no question  has been put to the appellant in this regard in the course  of his  examination under s 313 Cr.P.C.. even if there is  any evidence  about any  ill-treatment of Manju by the appellant  or  his  parents  it  has  to  be  completely excluded from consideration. I felt it necessary to say this in my  judgment since  I  think  that  in  fairness  to  the appellant it has to be done.      My learned  brother Fazal  Ali, J. has set out the case of the prosecution in so far as it connects P,W. 37 with the appellant at page 3 of his judgment where he has stated that the positive  case of  the prosecution is that the appellant was not  at all interested in Manju and had illicit intimacy with P.W.37. On this point there is the evidence of P.Ws. 3, 5 and  6. The  evidence of  P.W.3 is  that during her second visit to  Beed, Manju  informed her that the appellant had a girl-friend by  name Ujwala  Kothari and  that he introduced

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her (Ujvala  Kothari) to  her and  told her  that she should learn from  Ujvala Kothari  about how she should behave with him. The  evidence of P.W.5. is that during her second visit to Beed,  Manju told  her that  the appellant  had an affair with a  girl by  name Ujvala  Kothari and  that she had seen Ujvala’s latter addressed to the appellant and an incomplete letter of  the appellant  addressed to  that girl.  No  such letters have  been produced  in evidence.  The  evidence  of P.W.6 is  that during  her second  visit to Beed, Manju told her that  the appellant  had an  affair with  a girl by name Ujvala Kothari  and also  introduced that girl to her in the Pearl Hotel  saying that  she has  complete command over him and that  she (Manju)  should take  lessons from her (Ujvala Kothari) about  how she  should behave with him. There is no other  evidence  regarding  this  alleged  illicit  intimacy between the  appellant  and  P.W.37.  This  alleged  illicit intimacy is  totally denied  not only  by the  appellant but also by  P,W.37. The  alleged incident  in the  Pearl Hotel, according to  the case  of the  prosecution  took  place  on 17.3.1982. But  there is  no reference  whatever to any such incident in  any of  the subsequent  three letters of Manju, Exs. 30,  32 and  33, dated 25.4.1982, 8.5.1982 and 8.6.1982 respectively. My  learned brother  Fazal Ali, J. has rightly rejected the  oral evidence not only of P.Ws. 3, 5 and 6 but also of  P.Ws.2 and  20 as  untrustworthy at  page 65 of his judgment. However, at page 68 he has stated that it has been proved to  some extent  that the  appellant had some sort of intimacy with  Ujvala Kothari  and  it  had  embittered  the relationship between the appellant and Manju. In my view, as already stated, the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what  Manju is  alleged to  have told them against the appellant and or his 186 family, and  even  her  letters  Exs.  30,  32  and  33  are inadmissible in  evidence under s.32(1) of the Evidence Act. Thus, there is absolutely no reliable or admissible evidence on record  to show  that the appellant had any intimacy with Ujwala (P.W.37).  I am,  therefore, unable to share the view of my learned brother Fazal Ali, J. that the prosecution has proved to  some extent  that the  appellant had some sort of intimacy with  P.W.37 and it had embittered the relationship between the  appellant and Manju. I think that I am bound to say this  in fairness  to not  only the  appellant but  also P.W.37 who, on the date of her examination in the Court, was a 19  years old  student and has stated in her evidence that she had  known the  appellant only  as the  President of the Rajasthan Youth  Club in the year 1979 when she was a member of that Club for about 5 or 6 months in that year.      My learned  brother Fazal  Ali, J.  has referred to the oral evidence  of P.Ws.2,  3, 5,  6  and  20  about  Manju’s alleged complaint  against the  appellant and or his parents and also  to the  contents of Manju letters, Exs. 30, 32 and 33. I  have mentioned  above the  gist of that oral evidence and those  three letters.  My learned  brother has  held the said oral evidence and those three latters to be. admissible under s.32(1)  of the  Evidence Act while rejecting the oral evidence to  those five  witnesses as untrustworthy at pages 64 and  65 of  his judgment,  mainly on  the ground that the oral evidence  is quite  inconsistent with  the  spirit  and contents of  those letters.  He appears  of have relied upon those three  letters for two purposes, namely, rejecting the oral evidence  of those  five witnesses as untrustworthy and supporting the  defence version  that it  may be  a case  of suicidal death.  In my  opinion the  oral evidence  of those five witnesses about what Manju is alleged to have told them

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against the  appellant and  or his  parents  and  the  three letters, are  inadmissible under  s. 32(1)  of the  Evidence Act, which reads thus:           "32. Statements,  written or  verbal, of  relevant      facts made  by a  person who  is dead, or who cannot be      found, or  who has become incapable of giving evidence,      or whose  attendance  cannot  be  procured  without  an      amount  of   delay  or   expense   which,   under   the      circumstances  of   the  case,  appears  to  the  Court      unreasonable, are  themselves  relevant  facts  in  the      following cases:-      (1)   When the  statement is made by a person as to the           cause  of   his  death,   or  as  to  any  of  the           circumstances 187           of the transaction which resulted in his death, in           cases in  which the  cause of  that person’s death           comes into question".      The alleged  oral statements of Manju to P,Ws. 2, 3, 5, 6 and  20 are  said to  have been made during her second and third visits  to Beed in the end of February 1982 and end of May 1982  respectively before  her death during the night of 11/12.6.1982. She  had written  the letters, Exs. 33, 30 and 32 on  25.4.1982, 8.5.1982  and 8.6.1982  as stated earlier. The oral evidence of these witnesses and these three letters are not as to the cause of Manju’s death or as to any of the circumstances of the transaction which resulted in her death during that  night. The  position of  law  relating  to  the admissibility of evidence under s. 32(1) is well settled. It is, therefore,  not necessary  to refer  in  detail  to  the decisions of  this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, fourteenth edition  and Ratanlal  and Dhirajlal in their Law of Evidence  (1982) reprint).  Those propositions  are based mostly on  decisions of  courts for which reference has been given at the end. They are these:      Woodroffe &  Amir Ali’s  Law  of  Evidence,  fourteenth edition. Page- 937           ’Hearsay is  excluded because it is considered not      sufficiently trustworthy.  It is  rejected  because  it      lacks the  sanction of  the test  applied to admissible      evidence, namely,  the oath  and cross-examination. But      where there  are special  circumstances  which  give  a      guarantee of  trustworthiness to  the testimony,  it is      admitted  even  though  it  comes  from  a  second-hand      source".                                                     Page-941           "What is  relevant and admissible under clause (1)      of this section (Section-32) is the statements actually      made by the deceased as to the cause of his death or of      the circumstances  of the transaction which resulted in      his death".                                                 Page-945-946           "A statement  must be  as  to  the  cause  of  the      declarant’s death  or as to any of the circumstances of      the transaction  which resulted  in his  death i.e. the      cause and  circumstances of  the death and not previous      or subsequent transaction, 188      such independent  transactions being  excluded  as  not      falling within the principle of necessary on which such      evidence is  received. When  a person  is not proved to      have died  as a  result of  injuries  received  in  the      incident in  question, his  statement cannot be said to

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    be a  statement as  to the  cause of his death or as to      any of  the circumstances  which resulted in his death.      (AIR 1964  SC 900). Where there is nothing to show that      the  injury   to  which   a  statement   in  the  dying      declaration  relates  was  the  cause  of  the  injured      person’s death or that the circumstances under which it      was received  resulted in  his death,  the statement is      not admissible under this clause". (AIR 25 Bombay 45).                                                     Page-947           "Circumstances of the transaction resulting in his      death; This  clause refers  to two kinds of statements:      (i) when  the statement  is made  by a person as to the      cause of  his death  or (ii) when the statement is made      by a  person as  to any  of the  circumstances  of  the      transaction which  resulted in  his  death.  The  words      ’resulted in his death’ do not mean ’caused his death’.      The  expression   ’any  of  the  circumstances  of  the      transaction which  resulted in  his death’  is wider in      scope than  the expression ’the cause of his death. The      declarant need  not  actually  have  been  apprehending      death." (AIR 1964 M.P. 30).                                                     Page-947           "The expression ’circumstances of the transaction’      . occurring  in s.32,  clause (1)  has been a source of      perplexity to Courts faced with the question as to what      matters  are  admissible  within  the  meaning  of  the      expression. The  decision of  their  Lordships  of  the      Privy Council  in Pukala  Narayanaswanmi v. Emperor (LR      66 IA  66) sets  the limits  of the  matters that could      legitimately be  brought within  the  purview  of  that      expression. Lord  Atkin, who  delivered the judgment of      the Board, has, however, made it abundantly clear that,      except in  special circumstances  no circumstance could      be a  circumstance of  the transaction  if  it  is  not      confined to  either the  time actually  occupied by the      transaction resulting  in death  or the  sense in which      the actual  transaction resulting  in death took place.      The special  circumstance permitted  to transgress  the      time factor  is,  for  example,  a  case  of  prolonged      poisoning, while the special circumstance 189      permitted to  transgress the  distance factor  is,  for      example, a  case of decoying with intent to murder. But      the  circumstances   must  be   circumstances  of   the      transaction and  they must have some proximate relation      to the actual occurrence."                                                     Page-948           "Circumstances of  the transaction’ is a phrase no      doubt that conveys some limitations. It is not as broad      as the analogous use in ’circumstantial evidence’ which      includes the evidence of all relevant factors. It is on      the   other    hand   narrower   than   ’res   gestae’.      Circumstances must  have some proximate relation to the      actual occurrence, though, as for instance, in the case      of prolonged  poisoning they may be related to dates at      a considerable  distance from  the date of actual fatal      dose".                                                     Page-948           "The Supreme  Court in  the case  of Shiv Kumar v.      State of  U.P. (1966  Criminal Appeal  R. (SC) 281) has      made similar  observations that  the circumstances must      have some proximate, relation to the actual occurrence.      and  that   general  expressions   indicating  fear  or      suspicion,  whether   of  a  particular  individual  or      otherwise and  not directly  to the  occasion of  death

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    will not be admissible".                                                    Page -949           "The clause  does  not  permit  the  reception  in      evidence of  all such statement of a dead person as may      relate to  matters having a bearing howsoever remote on      the cause  or the  circumstances of  his death.  It  is      confined to  only such  statements as relate to matters      so closely  connected with the events which resulted in      his death  that may  be said to relate to circumstances      of the  transaction which resulted in his death. (LR 66      IA  66).   ’Circumstances  of   the  transaction  which      resulted in  his death’ means only such facts or series      or facts  which have  a direct  or organic  relation to      death. Hence statement made by the deceased long before      the incident  of murder  is not  admissible". (1974 CLJ      (MP) 1200).      Law of Evidence by Ratanlal & Dhirajlal (1982 Reprint) 190                                                      Page 94           "Circumstances   of   the   transaction;   General      expressions indicating  fear or  suspicion whether of a      particular individual  or otherwise  and  not  directly      related  to   the  occasion   of  the   death  are  not      admissible" (LR 66 IA 66)(18 Part 234).                                                      Page 95           "Circumstances must  have some  proximate relation      to the actual occurrence and must be of the transaction      which resulted  in the  death  of  the  declarant.  The      condition of  the admissibility of the evidence is that      the cause of the declarant’s death comes into question.      It is  not necessary that  statement must be made after      the transaction  has taken  place or  that  the  person      making it must be near death or that the ’circumstance’      can only include the acts done when and where the death      was caused.  -Dying declarations  are admissible  under      this clause".      The alleged  oral statements  of Manju and what she has stated in  her letters,  Exs 30,  32 and  33 may  relate  to matters perhaps having a very remote bearing on the cause or the circumstances  of her  death. Those circumstances do not have  any   proximate  relation  to  the  actual  occurrence resulting in  her death  due to  potassium  cyanide  poison, though, as  for instance  in the case of prolonged poisoning they may  relate to dates considerably distant from the date of the  actual fatal  dose. They  are general impressions of Manju indicating  fear or suspicion. whether of a particular individual or  otherwise and  not directly  related  to  the occasion of her death. It is not the case of the prosecution that the  present case  is one of prolonged poisoning. Since it is  stated by  the learned authors woodroffe and Amir Ali in their  tratise at  page 947  that the  decision of  their Lordships of  the Privy  Council in  Pakala Narayanaswami v. Emperor (1)  sets  the  limit  of  the  matters  that  could legitimately be brought within the purview of the expression ’circumstances of  the  transaction  and  that  decision  is referred to  in several  other decisions  of our  courts, it would be  necessary to  extract the relevant passage in this judgment. The learned Lords have observed at pages 75 and 76 thus:      "A variety  of questions  has been mooted in the Indian      courts as  to the  effect of  this section. It has been      suggested that  the statement  must be  made after  the      transaction has 191      taken place,  that the  person making it must be at any

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    rate near  death, that  the  "circumstances"  can  only      include the  acts done  when and  where the  death  was      caused. Their Lordships are of opinion that the natural      meaning of  the words used does not convey any of these      limitations. The statement may be made before the cause      of death  has arisen,  or before  the deceased  has any      reason to  anticipate being  killed. The  circumstances      must  be  circumstances  of  the  transaction:  general      expression indicating  fear of  suspicion whether  of a      particular individual  or otherwise  and  not  directly      related to  the occasion  of  the  death  will  not  be      admissible. But statements made by the deceased that he      was proceeding to the spot where he was in fact killed,      or as  to his reasons for so proceeding, or that he was      going to  meet a particular person, or that he had been      invited by  such person  to meet him would each of them      be circumstances  of the  transaction, and  would be so      whether the  person was  unknown, or was not the person      accused. Such  a statement might indeed be exculapatory      of  the   person   accused.   "Circumstances   of   the      transaction" is  a phrase  no doubt  that conveys  some      limitations. It is not as broad as the analogous use in      "circumstantial evidence"  which includes  evidence  of      all relevant  facts. It  is on  the other hand narrower      than "re gestae" Circumstances most have some proximate      relation to  the  actual  occurrence:  though,  as  for      instance in  a case of prolonged poisoning, they may be      related to  dates at  a considerable  distance from the      date of the actual fatal dose."      I am,  therefore of  the opinion that the oral evidence of these witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged  to have  told them  against the appellant and or his parents  and what the has stated in her letters, Exs. 30 32 and 33, are inadmissible in evidence under s.32(1) of the Evidence Act  and cannot  be looked into for any purpose. At this stage.  it may  be  stated  that  Mr.  Ram  Jethmalani, learned counsel  for the  appellant submitted  that the said oral evidence  of those five witnesses is inadmissible under s. 32(1) though at first he sought to rely upon the letters, Exs 30,  32 and 33 which seem to lend support to the defence theory that  it may  be a  case of  suicide,  he  ultimately conceded that  what applies to the relative oral evidence of P.Ws. 2,  3, 5, 6 and 20 would equally apply to the letters, Exs. 30, 32 and 33 and that they too would be inadmissible 192 in  evidence.  The  Additional  Solicitor  General  who  had strongly relied  upon the  said oral  evidence of these five witnesses and  the letters,  Exs. 30,  32 and  33  at  first proceeded in the end of his arguments on the basis that they are inadmissible  in evidence.  In these circumstances, I am firmly of  the opinion that the oral evidence of P.Ws. 2, 3, 5, 6  and 20  about what  Manju is alleged to have told them against the  appellant and  or his  parents as  well as  the letters, Exs.  32, 32  and 33  are inadmissible  in evidence under s. 32(1) of the Evidence Act.      About Dr.  Banerji (P.W.  33) who  conducted autopsy on the body  of Manju what my learned brother Fazal Ali, J. has said in his judgment is this:      "In column  5 of  postmortem  notes  Dr.  Banerjee  has      clearly written ’can be a case of suicidal death’ which      indicates that  in the  absence of  the report  of  the      Chemical Examiner  he was  of the opinion that it could      have been a case of suicide. In his evidence P.W 33 has      stated that  in Ex.  128 in  column No.  5 the contents      scored out read ’time since the death’ and since it was

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    repeated in  the next  line he  scored out the words in      the second  line. Despite  persistent cross-examination      the Doctor  appears to  have stuck  to  his  stand.  It      cannot, therefore,  be gainsaid that this matter was of      vital importance  and expected  the High  Court to have      given serious  attention to  this aspect  which goes in      favour of the accused.... In the original while filling      up the  said column  the Doctor  appears to have scored      out something. The filled up entry appears thus:-’mouth      is closed  with tip  (something scored out) seen caught      between the teeth. But in the carbon copy of the report      which was sent to the Chemical Examiner (Ex. 132 he has      written ’caught  between the  teeth’ in ink; but in the      original there  is something else. This is fortified by      the fact  that the  copy of the report actually sent to      the   Chemical    Examiner   does   not   contain   any      interpolation against the ’said column where the filled      up entry  reads ’inside  mouth’..  These  circumstances      show that Dr. Banerjee (P.W.33) tried to introduce some      additional facts regarding the position of the tongue .      . .  This, however,  throws a  cloud of  doubt  on  the      correctness or  otherwise of the actual reports written      by him  and the  one that  was  sent  to  the  Chemical      Examiner. It  is obvious  that in the carbon copy which      was retained by the Doctor 193      the entries must have been made after the copy was sent      to the Chemical Examiner".      I entirely  agree with  these findings  of  my  learned brother Fazal Ali, J. But I am unable to share his view that these "circumstances are not of much consequence the opinion of the Doctor was that Manju died by forcible administration of  potassium  cyanide  or  by  the  process  of  mechanical suffocation and  that this  aspect need not detain the Court any further because the High Court has not accepted the case of mechanical  suffocation" and  that  though  a  number  of comments were  made on  behalf of  the appellant  about  Dr. Banerji’s integrity  and incorrect  report he  does not find any substance  in those  contentions subject  to what he has stated about him.      The fact  that the  High Court has rejected the case of the prosecution  based on  Dr. Banerji’s report and evidence that it was also a case of mechanical suffocation is not one that could  be taken  into  consideration  as  a  mitigating circumstance in  judging the  conduct of  the Doctor who had conducted the  autopsy in  a case  of suspicious  death. The fact that  he had  reserved his  opinion about  the cause of death and  had then  noted in his report that the tongue was inside the  mouth but  has interpolated  the words ’mouth is closed with  tip (something  scored out) seen caught between the teeth’ and ’caught between the teeth’ only after receipt of the  Chemical Examiner’s  report to support the view that it was  also a  case of  mechanial  suffocation,  is  not  a mitigating circumstance in favour of P: W. 33 The Doctor had scored out  the words  ’can be a case of suicidal death’ and has persisted  in his  reply that he had scored out only the words ’time since the death’ which he claims to have written twice, which  explanation has  been rightly  rejected by  my learned brother  Fazal Ali.  J. The conduct of the Doctor in making these  later inter  polations and  alterations in the records  of  the  postmortem  examination  in  the  case  of suspicious death  in which  the appellant has been sentenced to  death   by  the   two  courts  below,  deserves  serious condemnation. The Doctor has tampered with material evidence in the  case of  alleged murder,  may be  at the instance of

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somebody else,  ignoring the  probable consequences  of  his act. In  these circumstances,  I am  of the opinion that Dr. Banerji (P.W.33)  is a  person who  should not  be entrusted with any  serious and  responsible work  such as  conducting autopsy in  the public  interest. In this case the appellant would have  gone to  gallows on the basis of the evidence of P.W.33 as he would have the 194 court to  believe it,  and theo  ther evidence,  if they had been accepted,  but they  have been  rightly discarded by my learned brother  Fazal Ali,  J. as  unworthy  of  acceptance against the appellant.      I agree  with my learned brother Fazal Ali, J. that the High Court  has clearly misdirected itself on many points in appreciating the  evidence and  has thus  committed a  gross error of law.      I feel  that something has to be stated in the judgment in this case about the way the Investigating officer and the learned Additional  Sessions Judge,  Pune who  had tried the case had  gone about  a their  business.  Charge  No.  3  is against the  third accused for instigating Mohan Asava (P.W. 30) to  give false  information to  the police regarding the offence of  murder namely,  that the  appellant found  Manju dead when he tried to wake her up at 5.30 a.m. on 12.6.1982. It is  the  case  of  the  prosecution  itself  that  P.W.30 informed the  police accordingly  at 7  or 7.15 a.m. on that day after  receipt of telephonic instructions from the third accused at  6.30 a.m.  though he  had himself  seen the dead body of  Manju earlier  in the appellant’s flat where he was taken by the third accused who had gone to his flat at about 4 or  4.15 a.m. and informed him that Manju was dead, and he (P.W.30) left the appellant’s flat a little later at about 5 or 5.15  a. m. after telling Dr. Lodha (P.W. 34) that he was going to  report to  the police.  Thus, it would appear that the case  of the  prosecution itself  is that P.W. 30 is the principal offender  as regards  giving false  information to the police  about the  death of Manju. Yet the Investigating officer had  not filed  any charge-sheet against P.W. 30 but has conveniently  treated him  as a prosecution witness. The Additional Sessions Judge, Pune appears to have exercised no control over the evidence that was tendered in this case and to have  been oblivious  of the  scope of the examination of the accused under. s. 313 Cr. P.C. This is reflected by some of the  questions put  to the  appellant.  Question  No.  24 relates to  P.W. 20  not maintaining good health and falling ill now and then. Question No. 25 relates to P.W. 22 being a patient of  high blood pressure and having suffered a stroke of paralysis  7 years  earlier. Question No. 30 relates to a reception held  at Pune  on 13.2.1982 in connection with the appellant’s marriage  with Manju. Question No. 32 relates to P.W.  6   asking  the  appellant’s  father  Birdhichand  for permission to  take Manju  to Beed  with her  when the party from P.W.2’s  side started  from Pune for Beed on 14.2.1982. Question No.  115 relates  to P.W.30  indulging in  criminal acts of  rowdyism, tax  evasion etc,  and being  known as  a contact-man of the police. S. 313 Cr. P. C. 195 lays down  that in every inquiry or trial for the purpose of enabling the  accused personally to explain any circumstance appearing in  the evidence  against him the Court may at any stage, without  previously warning  the  accused,  put  such questions to him as the court considers necessary and shall, after the  witnesses for  the prosecution have been examined and before  he is  called  for  his  defence,  question  him generally on  the case. It is clear that the evidence on the

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basis of  which the  above questions  have been  put to  the appellant is  wholly irrelevant  and that those questions do not relate  to any  circumstance appearing  in the  evidence against the appellant. The learned Additional Sessions Judge was bound  to  exercise  control  over  the  evidence  being tendered  in  his  court  and  to  know  the  scope  of  the examination of the accused under s. 313 Cr. P. C.      In the  end, as I said earlier, I agree with my learned brother Fazal  Ali, J.  that the  appeal has  to be allowed. Accordingly I  allow the appeal and set aside the conviction and sentence  awarded to  the appellant and direct him to be set at liberty forthwith.      SABYASACHI MUKHARJI,  J. I have the advantage of having read the  judgments prepared  by my  learned brothers  Fazal Ali, J.  and Varadarajan, J. I agree with the order proposed that the  appeal should  be allowed and the judgments of the courts below  should be  set aside  and the appellant Sharad Birdhichand Sarda be acquitted of the charges framed against him and  he should be released forth with. I do so with some hesitation and  good deal  of anxiety, because that would be interfering with the concurrent findings by two courts below on a pure appreciation of facts. The facts and circumstances have been  exhaustively and  very minutely  detailed in  the judgment of my learned Brother Fazal Ali, J. Those have also been set out to certain extent by my Brother Varadarajan, J. It will  therefore serve  no useful  purpose to repeat these here. It is necessary, however, for me to make the following observations.      It is  a case  of circumstantial  evidence. It  is also undisputed that  the deceased  died of  potassium cyanide on the night  of 11th  and 12th  June. 13th  June was  the date fixed for  the betrothal of the sister of the accused. There is no  evidence that  the accused  was in any way hostile or inamicable towards  his sister.  The  deceased  had  a  very sensitive mind  and occasionally  had suffered  from  mental depression partly  due to  the fact  of adjusting  in a  new family and  partly due  to her  peculiar mental  make up but mainly perhaps  due to  the family  set up  of  the  accused husband. There is no direct 196 evidence of  administering  poison.  There  is  no  evidence either way  that either  the deceased  or the accused had in her or  his  possession  any  potassium  cyanide.  In  these circumstances my  learned brothers,  in view  of the  entire evidence and  the letters and other circumstances, have come to the  conclusion that  the guilt  of the  accused has  not proved beyond all reasonable doubt.      As I  have  mentioned  before,  I  have  read  the  two judgments by  my two  learned brothers  and on  some  points namely, four points mentioned in the judgment prepared by my Brother Varadarajan.  J., he  has expressed  views different from those expressed by Fazal Ali, J. and these are:-      (1)  ill-treatment of Manju by the appellant;      (2)  intimacy of the appellant with Ujwala (P.W.37);      (3)  admissibility of  Manju’s letters  Exs. 30, 32 and           33 and  the oral  evidence of P.Ws. 2, 3, 5, 6 and           20 about  the alleged  complaints  made  by  Manju           against  the   appellant  under   s.32(1)  of  the           Evidence Act; and      (4)  conduct of  Dr. Banerji (P.W.33) who had conducted           autopsy on the body of Manju.      On the  three points,  namely ill-treatment of Manju by the  appellant,   intimacy  of  the  appellant  with  Ujwala (P.W.37) and  the conduct  of Dr.  Banerji (P.W.33)  who had conducted autopsy  on the  body of Manju, I would prefer the

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views expressed  by my  learned brother Fazal Ali, J. On the question of admissibility of Manju’s letters Exs. 30, 32 and 33 and  the oral  evidence of  P.Ws. 2, 3, 5, 6 and 20 about the alleged  complaints made  by Manju  against the  accused under section  32(1) of the Evidence Act, my learned brother Fazal Ali, J. has observed about section 32(1) as follows:-           "The test  of proximity  cannot be  too  literally      construed and  practically reduced  to a  cut-end-dried      formula of  universal application  so as to be confined      in a  straitjacket. Distance  of time  would depend  or      vary with the circumstances of each case. For instance,      where death  is a  logical culmination  of a continuous      drama long  in process  and is, as it were, a finale of      the story,  the statement  regarding each step directly      connected with the end of the drama 197      would be  admissible because the entire statement would      have to  be read  as an organic whole and not torn from      the  context.   Sometimes  statements  relevant  to  or      furnishing an  immediate motive  may also be admissible      as being  a part  of the  transaction of  death. It  is      manifest that  all these  statements come to light only      after the  death of the deceased who speaks from death.      For instance, where the death takes place within a very      short time  of the  marriage or the distance of time is      not spread  over more than 3-4 months the statement may      be admissible under s.32." (Emphasis by me).      I would, however, like to state here that this approach should be  taken with  great deal  of caution  and care  and though I respectfully agree with Fazal Ali, J. that the test of  proximity   cannot  and  should  not  be  too  literally construed and  be reduced  practically  to  a  cut-and-dried formula of  universal application  but it must be emphasised that whenever it is extended beyond the immediate, it should be the  exception and  must be  done with very great caution and care.  As a  general proposition, it cannot be laid down for all purposes that for instance where a death takes place within a  short time of marriage and the distance of time is not spread over three or four months, the statement would be admissible under  section 32  of the  Evidence Act.  This is always  not  so  and  cannot  be  so.  In  very  exceptional circumstances like  the circumstances  in the  present  case such statements  my be  admissible  and  that  too  not  for proving the positive fact but as an indication of a negative fact, namely  raising some  doubt about  the  guilt  of  the accused as in this case.      For the purpose of expressing my respectful concurrence with the views of Justice Fazal Ali, it is not necessary for me to  agree and  I do  not do  so  with  all  the  detailed inferences that  my learned  brother has  chosen to  draw in respect of  the several  matters from  the exhibits  in this case. I  am also  with respect  not prepared to draw all the inferences that my learned brother has chosen to draw in the paragraph beginning with the expression "the careful perusal of this  letter revealed  the following  features". This  my learned brother  was  speaking  in  respect  of  Ex.  33.  I however, respectfully  agree with my learned brother when he says that  a close  analysis and  ading of the letter namely Ex. 33 clearly indicates: 198      (a)  that the deceased was extremely depressed.      (b)  that there was a clear tendency resulting from her           psychotic  nature   to  end  her  life  or  commit           suicide.      Similarly I  have some  hesitation  about  the  English

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rendering of  Ex. 32  which is  letter dated  8th June, 1982 which has  been set  out by my learned brother and which has been set  out in  his judgment which contains the expression "I do  not know  why there is such a dirty atmosphere in the house?" As  the original letter was read out in Court and we had the  advantage of  that, I  am inclined to take the view that the correct and the more expressive expression would be "I do  not know  why there  is such a foul atmosphere in the house?" Read  in that  light and  in the  context  of  other factors, this  letter causes  some anxiety.  It the deceased was sensing  foul atmosphere,  why was it? But this again is only a doubt. It does not prove the guilt of the accused.      In  view   of  the   fact  that   this  is  a  case  of circumstantial evidence and further in view of the fact that two views  are possible  on  the  evidence  on  record,  one pointing to  the guilt  of the  accused and  the  other  his innocence, the  accused is  entitled to  have the benefit of one which is favourable to him. In that view of the matter I agree with my learned brothers that the guilt of the accused has not been proved beyond all reasonable doubt.      In the  premises as  indicated before, I agree with the order proposed. S.R.                                         Appeal allowed. 199