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12Jun, 2023

Order 6, Rule 17 CPC Amendment of plaint Typing mistake Suit for recovery Plea that proposed amendment is very necessary and important and same will not change the nature of the suit

Baldhir Kaur vs Punjab State Power Corporation Limited CR 8353/19 13/01/20 [ RAJIV JJ ]

[ PUNJAB HARYANA HIGH COURT]

Order 6, Rule 17 CPC Amendment of plaint Typing mistake Suit for recovery Plea that proposed amendment is very necessary and important and same will not change the nature of the suit – No prejudice will be caused to the defendant if the proposed amendment is allowed – It is a duty in the executive authorities and Court to maintain purity of record and ensure that no mistakes are made by the Administrator or the court and such innocuous typing mistakes have no impact on the case on merits and can readily be cured at any time, for which there is no limitation, so long as the record supports without doubt the mistake committed by human error – This is one such case of correction of an accidental slip No merit – Petition dismissed. [Paras 4 to 6]

4. The question as to when was the raid conducted is a pure question of fact. PSPCL plead and pray for amendment only to the extent of change of date and nothing more. They do not say, intend or apply for, in the application, the amendment is for leading further evidence as a consequence of the change of date from 15.1.1987 to 24.12.1986 when the raid was conducted on the commercial premises of the defendants in the case of alleged theft of electricity.

6. It is a duty in the executive authorities and in the Court to maintain purity of record and ensure that no mistakes are made by theAdministrator or the court and such innocuous typing mistakes have no impact on the case on merits and can readily be cured at any time, for which there is no limitation, so long as the record supports without doubt the mistake committed by human error. This is one such case of correction of an accidental slip. I have no reason to differ with the reasoning of the trial court that the documents itself support the amendment so, therefore, I have no occasion to tinker with the impugned order dated 25.09.2019.

Click here for the judgment

CR_8353_2019_13_01_2020_FINAL_ORDER -The-Law-Literates

12Jun, 2023

Sections 302, 498A, 323 and 506 IPC II Section 374 CRPC Appeal against conviction Murder Alleged

Udhav vs State Of Maharashtra CRLA 734/15 23/02/23 [ VIBHA JJ ]

BOMBAY HIGH COURT

Sections 302, 498A, 323 and 506 IPC II Section 374 CRPC Appeal against conviction Murder Alleged that accused sprinkled kerosene on her person and set her ablaze Daughter of accused and deceased, who was very much available in the house, speaks of her mother heating water and suffering accidental burns Prosecution has not taken pains to examine other two childern of deceased and accused Dying declarations are not reliable Prima facie dying declarations cannot be said to be consistent version Even attestation has not been obtained below alleged thumb impression of deceased Infirmities in the dying declarations Dying declaration cannot be relied Appellant stands acquitted Conviction set aside. [Paras 22, 23, 26 and 28]

22. Now, let us shift to the second set of evidence i.e. dying declarations. First dying declaration seems to be recorded by PW8 Sopan, a Police Constable, who was said to be on duty at Police Chowki in Civil Hospital, Parbhani, which is at Exh.44 and second dying declaration is recorded by PW10 Sk.Mohd. Washim Sk. Mohd. Hussain, Special Executive Magistrate, which is at Exh.53.
First dying declaration seems to be recorded at 11:00 a.m. on 12-07-2104. Second dying declaration which also seems to be recorded on same day, is at Exh.53 but it is recorded at around 03:20 p.m.
23. Before testing the voluntariness, truthfulness, admissibility and reliability of both the dying declarations, we propose to give a brief account of the settled principles relating to recording of dying declaration, which we have come across, dealt and decided by Hon’ble Apex Court in Criminal Appeal Nos.194-195 of 2012 in the case of Purshottam Chopra and Anr. vs. State (Govt. of NCT Delhi) wherein after dealing with several landmark rulings, the principles are summarized and we propose to quote the same here which are as under :
“i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.
ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.
vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.”
The above principles are culled out after taking into account various rulings.

26. If above two dying declarations are compared, it is emerging that in firstdying declaration, there is only material about accused no.1 saying that he wanted to reside with accused no.2 and hence he would kill deceased. Whereas in second dying declaration, deceased informs that accused no.1 told to her that accused no.2 had asked him to kill deceased and therefore, he poured kerosene and ignited her. Consequently, second dying declaration is distinct from first dying declaration and in second dying declaration there is improvisation. Therefore, prima facie dying declarations cannot be said to be consistent version. Further inspite of deceased being brought in the hospital at around 07:40 a.m., no efforts were taken to record her dying declaration immediately, rather steps seems to be taken for issuing M.L.C. at around 08:30 a.m. or so even when Police Chowki is located in the very hospital and further Police Constable seems to have approached deceased for recording dying declaration at around 11:00 a.m. i.e. after three hours or so after admission. On carefully going through the dying declarations, to the naked eye it is apparent that certification of fitness are taken in deliberately kept space. Inference that can be drawn is that certifications were not taken before or during recording. Even attestation has not been obtained below alleged thumb impression of deceased. Therefore, apart from variances, there are infirmities in the dying declarations.

28. We have gone through the judgment passed by the learned trial Judge.
It seems that inspite of infirmities and variance in dying declarations, learned trial Judge has held the dying declarations to be voluntary and truthful and seems to have accepted the same and further acted upon it while recording
guilt of the accused. Evidence of PW1 Maya, very own daughter of accused no.1 and deceased, and PW6 Laxman, immediate neighbour does not seem to have been appreciated properly. He relied on those two dying declarations
which are the indirect pieces of evidence. When direct i.e. oral evidence of eye witness is otherwise, then dying declaration cannot be relied.

For read the judgment click here :-

Udhav s:o Nagorao Salve vs state of Maharashtra-Judgment-The law Literates – Vaibhav Tomar

8Jun, 2023

Section 311 CRPC Power to summon Section 311 provides that the Court may summon any person as a witness

SUPREME COURT OF INDIA 🇮🇳

[Justice Dr Dhananjaya Y Chandrachud & Justice AS Bopanna] Double Bench

Section 311 CRPC Power to summon Section 311 provides that the Court may summon any person as a witness or to examine any person in attendance, though not summoned as a witness and Recall and re-examine any person who has already been examined This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC Latter part of Section 311 states that the Court shall summon

and examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case Section 311 contains a power upon the Court in broad terms Statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth First part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding – Latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case” – Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court – First part of the statutory provision is discretionary while the latter part is obligatory*_

VARSHA vs STATE of MP CRLA 1021/22 08/08/22 [ Dhananjaya ]

The Court in Swapan Kumar (supra) observed:

―11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.
12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.‖

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SC_Judgement_08-Aug-2022 (2)-311-CRPC Vaibhav tomar- The-law-literates

6Jun, 2023

Sections 302 and 364 IPC Kidnapping and Murder of two children Circumstantial evidence When a conviction is based solely on circumstantial evidence/ Apeal Allowed

RAVINDER vs STATE OF PUNJAB CRLA 1307/19 04/05/22

[ Uday Umesh Lalit JJ ]

Sections 302 and 364 IPC Kidnapping and Murder of two children Circumstantial evidence When a conviction is based solely on circumstantial evidence, such evidence and the chain of circumstances must be conclusive enough to sustain a conviction Last seen theory, the arrest of the accused, the recovery of material objects and the call details produced, do not conclusively complete the chain of evidence and do not establish the fact accused committed the murder of the children There is admittedly no direct evidence to establish such alleged intimacy and that the entire conviction is based on mere circumstantial evidence Prosecution has also failed to establish by evidence the supposed objective of these murders and what was it that was sought to be achieved by such an act Conviction and sentence set aside Appeal allowed

:Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under section 65A and 65B of the Indian Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. vs P.K. Basheer & Ors [ (2014) 10 SCC 473] occupies the filed in this area of law or whether Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1] wherein the court has held that: “We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose. . . Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled. . The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).” 21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. 22. To conclude, the tripod stand of Motive, Last Seen Theory and Recovery, that supported the conviction of A2 according to the High Court, is found to be nonconclusive and the evidence supporting the conviction of A2 is marred with inconsistencies and contradictions, thereby making it impossible to sustain a conviction solely on such circumstantial evidence.

[ SUPREME COURT ]

3Jun, 2023

Civil Procedure Code, 1908 (CPC) – Section 20, Order VII Rule 10 and Order VII Rule 11 – Plaint does not even show the particulars of the Office of the Registrar where the deeds of confirmation were registered and the deeds of power of attorney were registered and subsequently cancelled

THE SUPREME COURT OF INDIA

(2023) AIR(SC) 1330 : (2023) 2 ALT 93 : (2023) 2 AndhLD 183 : (2023) 3 JT 49

FUTURE SECTOR LAND DEVELOPERS LLP AND ANOTHER VS BAGMANE DEVELOPERS PRIVATE LIMITED AND OTHERS ETC. — Respondent

Civil Appeal Nos. …………….of 2023 (Arising out of SLP (Civil) Nos. 4018-19 of 2023)

DATE OF DECISION:- 02-03-2023

Civil Procedure Code, 1908 (CPC) – Section 20, Order VII Rule 10 and Order VII Rule 11 – Plaint does not even show the particulars of the Office of the Registrar where the deeds of confirmation were registered and the deeds of power of attorney were registered and subsequently cancelled – Though a relief is sought to direct the Registrar to cancel the deeds of revocation of power of attorney, the details of the Office of the Registrar are not provided and he is also not made a party – It is seen from several portions of the plaint that the appellants have done a tight-rope walking to take refuge under Section 20(c) CPC by carefully avoiding any relief that may apparently appear to relate to Section 16(d) CPC – High Court was right in holding that the suit falls under the category of one, for the determination of any right to or interest in immovable property covered by Section 16(d) – Partition suit itself is of the year 2007 and This Court cannot lose sight of the ground reality that in most of the civil disputes, half the battle is won through interim orders and do not think that the court should be a party to the practice of allowing a litigant to use one court for the purpose of temporary reliefs and another court for permanent reliefs – It is open to the appellants to represent the plaint before the jurisdictional court at Bengaluru, within a period of four weeks*_

JUDGMENT

V. Ramasubramanian, J

Leave granted

2. These appeals arise out of a common order passed by the High Court of Judicature at Bombay, allowing two revision applications that were directed against two separate orders passed on the same day by the 9th Joint Civil Judge, Senior Division, Pune, respectively in the applications filed under Order VII Rule 10 and Order VII Rule 11 CPC by some of the defendants in a suit.

_*3. We have heard Shri Shyam Divan, learned senior counsel appearing for the appellants and Shri Mukul Rohatgi, Shri K.V. Viswanathan, learned senior counsel appearing for the respondents who were the civil revision applicants before the High Court. Shri Vikram Hegde, learned counsel accepts notice for defendant No.117 who was the applicant in the petition under Order VII Rule 11 CPC*_

_*4. The appellants herein filed a civil suit on the file of the 9th Joint Civil Judge, Senior Division, Pune, against 141 defendants seeking various reliefs*_

_*5. After service of summons, defendant Nos. 66, 67, 139 and 117 filed separate applications under Order VII Rule 10 CPC seeking the return of the plaint for presentation to the proper court, on the ground that the suit schedule properties are situate within the jurisdiction of the appropriate courts in Bengaluru*_

6. Defendant No.117 filed one more application under Order VII Rule 11(a) and (d) CPC, seeking rejection of the plaint, contending that the court in Pune does not have territorial jurisdiction to grant reliefs in respect of immovable properties situate within the jurisdiction of the courts in Bengaluru and also that the suit is barred by the provisions of the Companies Act, 2013.

7. By two independent orders passed on the same date, namely, 22.4.2022, the Trial Court dismissed all the applications, filed both under Order VII Rule 10 and Order VII Rule 11 CPC.

8. Defendant Nos. 138 and 117 challenged the said orders of the Trial Court before the High Court of Judicature at Bombay in two civil revision applications.

9. By a common order dated 23.1.2023, the High Court allowed both the civil revision applications. It is against these orders that the plaintiffs have come up with the above appeals.

10. The appeal arising out of that portion of the impugned order where Civil Revision Application No.5 of 2023 filed by defendant No.117 was allowed, is capable of being disposed of without much ado. This is for the reason that the entire discussion and analysis in the impugned order, which commence from paragraph 12, revolve only around the provisions of Order VII Rule 10 CPC. But in the penultimate paragraph, the High Court has allowed both the civil revision applications. This has resulted in something which is a contradiction in terms. Once an application under Order VII Rule 11 is allowed, the plaint stands rejected and hence the question of presenting the same plaint before the appropriate court does not arise. Under Order VII Rule 13, the rejection of plaint on the grounds stated in the preceding Rules, shall not of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Therefore, if a plaint is rejected under Order VII Rule 11, the only remedy is to file a fresh plaint within the parameters of Order VII Rule 13 and the question of presenting the same plaint before the appropriate court does not arise.

11. But as it sometimes happens, the High Court has overlooked the obvious and allowed both the applications under Order VII Rule 10 and Order VII Rule 11 at one stroke. That the High Court did not have the intention to reject the plaint, is obvious from a reading of the penultimate paragraph of the impugned order, where the High Court has granted liberty to the plaintiffs to present the suit before the appropriate civil court at Bengaluru. But if the appellants-plaintiffs try to do that, a technical objection may be raised that the application under Order VII Rule 11 also stood allowed. This is apart from the fact that there is no discussion on Order VII Rule 11 in the impugned order. Therefore, that portion of the impugned order which states that both the civil revision applications stand allowed, requires modification.

12. That takes us to the more contentious issue revolving around Order VII Rule 10 CPC. As we have seen earlier, the foundation on which an application under Order VII Rule 10 was filed, was that the suit schedule property is situate within the jurisdiction of the City Civil Court, Bengaluru and that though the reliefs claimed are substantially in respect of the immovable property, they are couched in a language, by clever drafting, to appear as though the reliefs relate to enforcement of rights in personam. Therefore, it is claimed that the plaint should be returned for presentation to the proper court.

13. The impugned order is assailed by Shri Shyam Divan, learned senior counsel appearing for the appellants-plaintiffs, primarily on the grounds: (i) that what is sought to be enforced in the suit are only contractual rights against the defendants; (ii) that the agreement between parties contain a recital conferring exclusive jurisdiction upon the civil courts in Pune; and (iii) that the appellants have been granted leave by the Trial Court under Order II Rule 2(3) CPC for seeking larger reliefs in respect of the suit properties at a later point of time. Therefore, he contends that the impugned orders of the High Court returning the plaint is clearly erroneous.

14. For finding an answer to the issue on hand, it may be necessary first to have a look at the plaint filed by the appellants herein. The gist of the averments contained in the plaint can be summarized as follows:

i. That in November 2018, defendant Nos. 1 to 136 approached the plaintiffs with a proposal to sell two different sets of properties, one of which is situate at village Doddanekkundi, Varthur Hubli, Bangalore (East) Taluk, Bangalore Urban District and the other situate in village Mahadevapura, K.R. Puram, Hubli, Bangalore (East) Taluk, Bangalore Urban District;

ii. That at the time of making the proposal, the owner defendants (defendant Nos.1 to 136) represented that Bangalore Gorakshana Shala Society, which is defendant No.137 have been making claims over these properties on the strength of a transfer deed dated 7.4.1941 but the said transfer deed setup by defendant No.137 was sham and bogus;

iii. That the suit schedule properties described in Schedule-A and B to the plaint were purchased by one Giridharlal under registered sale deeds during the period from 1930 to 1939;

iv. That the said Giridharlal was survived by his only son Anraj, who died on 17.8.1960 leaving behind seven sons and a daughter;

v. That the purchase of these properties by Giridharlal was much before the formation of the Bangalore Gorakshana Shala Society;

vi. That according to the owner-defendants, defendant No.137 illegally executed two Memorandums of Understanding dated 30.8.2006 in favour of defendant No.138 in respect of a portion of the suit schedule properties and also received an amount of Rs.11,00,00,000/- (Rupees Eleven Crores only);

vii. That some of the owner-defendants have already filed civil suits on the file of the appropriate courts in Bengaluru for various reliefs including the relief of injunction and the relief of partition;

viii. That pursuant to certain interim orders passed in one of those suits, the Society had also deposited the amount of Rs.11,00,00,000/- (Rupees Eleven Crores only) in the City Civil Court, Bengaluru;

ix. That there are two suits and one first appeal now pending in the courts in Bengaluru;

x. That under the MoU/agreement dated 19.2.2019, the owner-defendants offered to sell and the appellants agreed to purchase a total extent of 87 acres and 27 Gunthas out of the total area of 93 Acres and 48 Gunthas, for a consideration of Rs.357,00,00,000 (Rupees Three Fifty Seven Crores only);

xi. That pursuant to the said MoU/agreement, the appellants-plaintiffs have paid, in the aggregate, an amount of Rs.14,12,82,369 (Rupees Fourteen Crore Twelve Lac Eighty-two Thousand Three Hundred and Sixty-nine only), on various dates;

xii. That Clause 13.8 of the said MoU/agreement confers exclusive jurisdiction upon the courts in Pune to settle any claim or matter arising out of the MoU/agreement;

xiii. That contrary to the covenants contained in the MoU/agreement, defendant Nos.44 and 49 executed a deed of confirmation dated 12.1.2021 in favour of Bangalore Gorakshana Shala Society, and the said deed was also registered with the Office of the jurisdictional Sub-Registrar;

xiv. That subsequently defendant No.27 executed a similar deed of confirmation on 16.4.2021 and defendant Nos.113 to 117 executed a similar deed of confirmation dated 4.5.2021 and they were registered with the jurisdictional Sub-Registrar;

xv. That defendant Nos.65, 78, 85, 88, 73, 75, 76, 77, 87, 74, 69, 70, 71 and 72 have also registered a deed of confirmation dated 24.6.2020;

xvi. That until the plaintiffs file a substantive suit for specific performance and possession, the owner-defendants are not entitled to prejudice the rights of the plaintiffs;

xvii. That since a substantial suit for partition in O.S. No.8230 of 2007 is pending before the City Civil Court, Bengaluru, the appellants-plaintiffs may have to await the outcome of the said suit, to file a substantial suit claiming the relief of possession;

xviii. That therefore until the plaintiffs could file a substantive suit, the owner-defendants should not be allowed to deal with the properties;

xix. That the plaintiffs received two emails on 2.7.2021 enclosing scanned copies of two letters, by which two of the defendants claimed to have rescinded the agreement and revoked the power of attorney; and

xx. That the deed of cancellation of power of attorney dated 11.6.2021 is unilateral and not binding on the plaintiffs and that therefore the plaintiffs are entitled to both declaratory reliefs as well as injunctive reliefs against the defendants.

15. Before we proceed to deal with the contentions, it may be useful to extract paragraph 50 of the plaint filed by the appellants-plaintiffs, which contains the various reliefs sought in the suit. Paragraph 50 of the plaint reads as follows:

’50. It is, therefore, prayed that –

a) The suit may kindly be decreed.

b) It may kindly be declared that the alleged deeds of Confirmation, dated 12/01/2021, 16/04/2021, 24/06/2020 and 04/05/2021, are illegal, null and void and not binding on the plaintiffs and ineffective, with respect to the suit properties and same may kindly be cancelled and concern office of registrar may kindly be directed to take note of such cancellation.

c) It may further be declared that the owners-defendants are not entitled to execute such deeds of confirmation or any other document/s with respect to the suit properties, in favour of the defendant No. 137 and 138 and/or in favour of any other third party, in view of execution of the agreement dated 19/02/2019 and contrary to the terms and conditions of the said agreement.

d) It be further declared that the Defendants No. 137 and 138 are not entitled to claim any right or ownership right on the basis of alleged deeds of confirmation, as stated in relief clause (a).

e) It may kindly be declared that the alleged letter dated 24th June 2021 and 25th June 2021 issued by concerned defendants and the documents of ‘ cancellation of power of attorney dated 11th June 2021, are illegal, null and void and same are brought into existence by the concerned defendants in collusion with each other, without the consent and knowledge of the Plaintiffs and therefore same are not binding on the Plaintiffs. It be further declared that the such letter and document, is non-est in the eyes of law and hence liable to be ignored.

f) The alleged documents of cancellation of power of attorney dated 11th June 2021, may kindly be cancelled with further directions to the concerned office of registrar, to take note of such cancellation in their record.

g) The Defendants may kindly be restrained by decree of Permanent Injunction from executing any documents including Deed of Confirmation, Sale Deed, Agreement or entering into any kind of arrangement with the defendant No. 137 to 141 and/ or any third parties with respect to the suit properties.

h) The Defendants, either by themselves or through their agents, representatives or anybody claiming through them may kindly be restrained by decree of Permanent Injunction from transferring, alienating or creating the third-party interest of whatsoever nature with respect to the suit properties, or creating any right of whatsoever nature in favour of Defendants No. 137 and 141.

i) The defendants may kindly be restrained by decree of Permanent Injunction from using, acting upon or claiming any rights or raising any claim of whatsoever nature, on the basis of Deeds of Confirmation dated 12/01/2021, 16/04/2021, 4/05/2021 and 24/06/2020 or any other agreement/s, document/s or arrangement/s that may have been executed by the defendants inter se.

j) The defendants may kindly be restrained by decree of Permanent Injunction from using, acting upon or claiming any rights or raising any claim of whatsoever nature, on the basis of the alleged letter dated 24th June 2021, 25th June 2021 and the alleged documents of cancellation dated 11th June 2021.

k) The defendants may kindly be restrained from taking any steps contrary to the terms and conditions or causing the breach of the agreement dated 19/02/2019, thereby causing prejudice to the interest of the Plaintiffs arising out of the agreement dated 19/02/2019.

1) The owner Defendants may kindly be restrained by decree of permanent injunction from handing over possession of the suit properties to third party and/or to Defendant No. 137 to 141.

m) Temporary injunction in terms of prayer (g) to (1) may kindly be granted in favour of the plaintiffs.

n) Any other just and equitable relief in the interest of justice may kindly be passed.’

16. It may be noticed from the numerous reliefs sought by the appellants-plaintiffs in the suit that they are in the nature of both declaratory as well as injunctive reliefs. To be precise, the reliefs sought in paragraph 50(b) to (e) are in the nature of declaratory reliefs and those sought in paragraph 50(f) to (l) are in the nature of injunctive reliefs. Out of the four declaratory reliefs sought, two relate to certain documents such as the deeds of confirmation and deeds of cancellation of power of attorney. The other two declaratory reliefs are negative in nature.

17. Out of the seven prohibitory reliefs prayed for in paragraph 50(f) to (l), one is in the nature of a mandatory injunction, to direct the concerned parties to cancel the deed of revocation of power of attorney with a further direction to the concerned Office of the Sub-Registrar to take consequential action. Two of the prohibitory reliefs seek to injunct the defendants from, (i) executing any documents; (ii) entering into any arrangement with third parties; and (iii) transferring, alienating or creating third party interests with respect to the suit schedule properties. Two of the prohibitory reliefs seek to injunct the respondents from asserting any right on the basis of the deeds of confirmation executed in favour of the Bangalore Gorakshana Shala Society. One prohibitory relief seeks to injunct the defendants from causing any breach of the Agreement dated 19.12.2019. The last of the prohibitory reliefs articulated in paragraph 50(l) of the plaint seeks to injunct the owner-defendants from parting with possession of the suit property to third parties and/or to defendant Nos.137 to 141.

18. Before we analyse the reliefs sought in this suit a little more deeper, it is also necessary to take note of the addresses shown in the plaint for all the 141 defendants. As per the plaint, the places of residence of all the 141 defendants are spread over at least ten different States of India. While 2 of the defendants are from Madhya Pradesh, 34 defendants are from Karnataka, and about 46 defendants are from Maharashtra. Some of the defendants are from Tamil Nadu, some from Delhi, 2 of them are from Telangana, 3 of them are from Jharkhand and 2 are from Gujarat. There are 27 defendants residing in Guwahati/Assam.

19. Therefore, it is clear that by instituting the present proceedings at Pune for temporary reliefs and reserving the right to institute a suit for substantial reliefs at Bengaluru at a later point of time, the appellants-plaintiffs want to take these 141 defendants residing in ten different States of India on a Bharat Darshan from Pune to Bengaluru.

20. The appellants-plaintiffs have repeatedly asserted before the Trial Court, the High Court as well as this Court that the reliefs sought in the plaint do not fall under any of the categories mentioned in Clauses (a) to (f) of Section 16 CPC and that all the reliefs can be obtained entirely through the personal obedience of the defendants, covered by the proviso to Section 16. But a careful look at the plaint would show that the appellants-plaintiffs have actually sought a relief in paragraph 50(l) to restrain the defendants from handing over possession of the suit properties to third parties or to defendant Nos.137 to 141. We have already extracted paragraph 50 of the plaint in entirety. The prayer in paragraph 50(l) is to restrain the owner-defendants by a decree of permanent injunction from handing over possession of the suit properties to third parties or to defendant Nos.137-141.

21. Assuming that the appellants-plaintiffs succeed in getting a decree in terms of paragraph 50(l), the same has to be executed primarily in terms of Order XXI Rule 32 CPC. But this will not enable them to recover possession of the suit schedule properties. If the appellants-plaintiffs had to seek recovery of possession, in the event of the decree in the present suit being disobeyed, the appellants will necessarily have to go to the court in Bengaluru.

22. It is seen from several portions of the plaint that the appellants have done a tight-rope walking to take refuge under Section 20(c) CPC by carefully avoiding any relief that may apparently appear to relate to Section 16(d) CPC. But obviously the plaintiffs have not been successful in this tight-rope walking, as we see quite a few falls/slips. For instance :-

(i) In paragraph 2 of the plaint, the appellants have referred to the properties in dispute as ‘suit property’ and have categorically stated that, ‘ the said properties are the subject matter of the present suit’;

(ii) In paragraph 4, the plaintiffs assert as follows, ‘…and it was further represented that, the said Society i.e., Defendant No.137 has no right, title, share and interest in any portion of the suit properties.’; and

(iii) In paragraph 38 of the plaint, the appellants have asserted that ‘.as per the documents on record, it is crystal clear that the Bangalore Gorakshan Shala Society and also Bagmane Construction Pvt. Ltd. have no right, title and interest with respect to the suit properties… ‘.

23. Thus it is clear, (i) that suit concerns immovable properties which are not just described in the plaint schedule by way of empty formality but are clearly stated to be the subject-matter of the suit; and (ii) that the plaintiffs are actually questioning the right, title and interest of the contesting defendants to the suit schedule properties.

24. Therefore, the High Court, in our considered opinion was right in holding that the suit falls under the category of one, for the determination of any right to or interest in immovable property covered by Section 16(d). The contention that even if Section 16 applies, the suit would be saved by the proviso to Section 16, is completely misplaced. At least one of the reliefs which relates to possession, may not fall under the proviso to Section 16.

25. Admittedly, there are two suits and a first appeal now pending on the file of the courts in Bengaluru, as seen from paragraph 7 of the plaint. Even according to the appellants, one of the suits is a partition suit. Actually, the appellants claim in paragraph 39 of the plaint that they would wait till the disposal of the partition suit, for instituting a comprehensive suit for specific performance and possession.

26. In other words, the present suit filed by the appellants-plaintiffs is for preserving the subject-matter of the property through interim reliefs sought in the form of permanent injunction. The partition suit itself is of the year 2007 and we cannot lose sight of the ground reality that in most of the civil disputes, half the battle is won through interim orders. We do not think that the court should be a party to the practice of allowing a litigant to use one court for the purpose of temporary reliefs and another court for permanent reliefs.

27. There is one more aspect. The plaint does not even show the particulars of the Office of the Registrar where the deeds of confirmation were registered and the deeds of power of attorney were registered and subsequently cancelled. Though a relief is sought to direct the Registrar to cancel the deeds of revocation of power of attorney, the details of the Office of the Registrar are not provided and he is also not made a party. We do not know if the concerned Registrar with whom the deeds of confirmation were registered and the deeds of power of attorney and their cancellation were registered, is at Pune or Bengaluru.

28. In fact, the categorical assertion of the appellants-plaintiffs in paragraph 38 of the plaint that Bangalore Gorakshana Shala Society and Bagmane Construction Pvt. Ltd. have no right, title and interest over the suit properties, would make it necessary for the court at Pune to embark upon an inquiry about the right, title and interest of either of the parties to the suit properties. Therefore, the High Court was right in concluding that the suit is covered by Section 16(d) CPC.

29. It is true that the Trial Court has granted leave to the appellants in terms of Order II Rule 2(3) CPC, to file a substantial suit for specific performance and possession at a later point of time. That does not mean that the rights of the defendants to seek the return of the plaint can be curtailed.

30. In view of the above, we hold that the order passed by the High Court in the civil revision application arising out of the applications under Order VII Rule 10 CPC does not call for any interference. However, as we have stated earlier, one portion of the impugned order by which the other application under Order VII Rule 11 CPC stands allowed, perhaps by way of inadvertence, is liable to be set aside.

31. Therefore, the appeals are partly allowed, setting aside that portion of the impugned order where the application of defendant No.117 filed under Order VII Rule 11 CPC stands allowed. The other portion of the impugned order allowing the applications of the defendants filed under Order VII Rule 10 stands confirmed. It is open to the appellants to represent the plaint before the jurisdictional court at Bengaluru, within a period of four weeks.

32. Pending application(s), if any, stands disposed of accordingly.

1Jun, 2023

Criminal Trial Circumstantial evidence Defective investigation The witness to have signed documents which were blank, purportedly used by the police to strengthen this case No direct evidence is available-The Law Literates

SUPREME COURT OF INDIA

MAGHAVENDRA vs STATE OF CHHATTISGARH CRLA 915/16 24/04/23

JUSTICE SANJAY KAROL (SC)

Criminal Trial Circumstantial evidence Defective investigation The witness to have signed documents which were blank, purportedly used by the police to strengthen this case No direct evidence is available which firmly proves the ballistic report, i.e., the expert’s report Neither the expert who analysed and conducted the chemical analysis nor the author of the report stand examined Before arresting the accused, no information was ever supplied to the family members of any of the accused persons The record does not reflect that the house from which there coveries were affected belonged to accused The Investigating Officer’s testimony to be inspiring in confidence The 1.0. did not enter his movement in the case diary He does not associate any of the residents of the area for conducting the search Most importantly he admits that both the memo of arrest as also the recovery not to have been prepared by him or bearing his signature and the same too,

will be helpful to refer to the general principle of cases
revolving around circumstantial evidence as encapsulated by Vijay Shankar v. State of Haryana (2015) 12 SCC 644. The relevant
portion is as follows:
“8. There is no eyewitness to the occurrence and the
entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487]. The same view was reiterated in Bablu v. State of Rajasthan [Bablu v. State of Rajasthan, (2006) 13 SCC 116 : (2007) 2 SCC (Cri) 590].”
13. In light of the fact that all the coaccused who had preferred appeals stand acquitted by the Court below, therefore, while fully appreciating the testimony of this witness, this Court confines the

8
discussions only concerning the present appellant, namely Pankaj Singh.
14. Interestingly, neither of the independent witness (PW 6 and PW 7) supported the prosecution case. Despite extensive cross examination conducted by the Public Prosecutor, nothing substantial could be elicited from their testimonies indicating any guilt of the accused. Noticeably, both the witnesses are rustic villagers working as daily wagers, have deposed to have signed blank papers, and are not residents of the area.
15. A perusal of the testimony of PW6 unrefutably reveals the witness to have signed documents which were blank, purportedly used by the police to strengthen this case for the commission of the offence.

Conclusion

45. In the considered opinion of the Court, the High Court, without appreciating the testimonies of the witnesses mentioned above in their true import and meaning, and without having any discussion concerning the complicity of the accused, in a perfunctory manner held the prosecution to have established the case, which is entirely circumstantial in nature, against the present appellant. Significantly, the High Court holds that the evidence reveals that “in all human probability the act must have been done by the accused”. Inter alia, it

Dated : 24th April, 2023; Place : New Delhi.
22
is this finding which we find to be erroneous, for the principle of determining the guilt of the accused in a case involving circumstantial evidence is not that of probability but certainty and that all the evidence present should conclusively point towards only a singular hypothesis, which is the guilt of the accused, Pankaj Singh.
46. Given the above, the Judgment dated 14.1.2016 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.468 of 2013 titled Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh is set aside and the appeal is allowed.

have many corrections and overwriting, thus reducing the correctness and authenticity of this document Order of conviction passed by High Court is set aside Appeal is allowed.

For more read the Judgment, click here

Pankaj singh vs state of CHATTISGARH Judgement_24-Apr-2023 VAIBHAV TOMAR

29May, 2023

Order 37 Rule 3 CPC Leave to defend application Two stands have been taken by the defendant bank, firstly, that though the four bank guarantees were issued but they were not by the duly authorised and competent officer/ Laws

ENGINEERING PROJECTS(INDIA) LIMITED vs MIZORAM RURAL BANK CSOS 2038/09 dated 10/10/17 Justice Mukta Gupta

DELHI HIGH COURT

Order 37 Rule 3 CPC Leave to defend application Two stands have been taken by the defendant bank, firstly, that though the four bank guarantees were issued but they were not by the duly authorised and competent officer and were issued in connivance and collusion with the plaintiff and contractor and secondly, that the four bank guarantees were forged and fabricated for the reason no corresponding records of the four bank guarantees were available with the bank Plaintiff has placed on record not only the four bank guarantees but also letter sent by the Chairman of the defendant bank noting that the four bank guarantees in question were issued by their Vaivakawn Branch, jointly by the Branch Manager and the second officer, however, they were not vested with the power to issue bank guarantees The fact remains that the plaintiff proceeded with the work based on the four bank guarantees and hence it is a case for grant of conditional leave to defend to the defendant bank in view of its two contrary stands.

The defendant bank is thus granted leave to defendant subject to its depositing a sum of Rs. 1,18,37,396/- the amount due on the date of filing of the suit with the Registrar General of this Court within eight weeks Application is disposed off.

for Judgment Click Here ~

Judgment delhi high court: justice Mukta gupta:. Vaibhav tomar DBA

28May, 2023

Order 8 Rule 1A(3) CPC Leave of court to produce additional documents Sub rule (3) provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement/Civil Law/Latest Update/Law Literates

Justice Abdul Nazeer & Justice Sanjiv Khanna

SUPREME COURT OF INDIA

SUGANDHI vs RAJKUMAR CA 3427/20 13/10/20

Order 8 Rule 1A(3) CPC Leave of court to produce additional documents Sub rule (3) provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court Discretion conferred upon the court to grant such leave is to be exercised judiciously – While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant – Defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement – They have stated that these documents were missing and were only traced at a later stage It cannot be disputed that these documents are necessary for arriving at a just decision in the suit (Appeal allowed)

for Judgment Click Here ~
Supreme Court Judgement_13-Oct-2020:Law Literates-Vaibhav Tomar

27Apr, 2023

Now the advocates and litigants can get the uncertified copies of evidence or misc. order directly from court by giving an application and appropriate court fee

OFFICE OF THE PRINCIPAL DISTRICT & SESSIONS JUDGE (HOs) : DELHI

ORDER

In compliance of letter No. 220/Rules/DHC/2023, dated 18.04.2023,

received from the Hon’ble High Court of Delhi/New Delhi and in continuation to this office Order No.46409-46769/Misc./Gaz/2010, dated 03.08.2010, all the Judicial Officers are required to provide to the litigants uncertified copies of evidence and miscellaneous orders on making an application for supply of uncertified copy either by the litigant or by the counsel for the litigant on payment of the prescribed court fee payable in respect of certified copies, in the form of Court Fee Stamps.

The accused persons in Judicial Custody and the Public

Prosecutor/Addl./ Asst Public Prosecutor may be provided uncertified copies of evidence and miscellaneous orders free of cost, such sought uncertified copies be provided under the seal and signature of the Reader of the Concerned Court.

16 1036 32305-46 sales as /60 / 2028

Copy forwarded for information & necessary action to : –

124•4-23,

(GIRISH KATHPALIA)

Principal District & Sessions Judge (HQs)

Delhis

27Apr, 2023

Penal Code, 1860 (IPC) – Sections 302, 397 and 450 – Murder – Conviction and sentence – Sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them – Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario – Conviction and sentence is upheld

THE SUPREME COURT OF INDIA

_*DAKKATA BALARAM REDDY AND ANOTHER — Appellant VS STATE OF ANDHRA PRADESH AND ANOTHER — Respondent*_

Criminal Appeal No. 1295 of 2019

DATE OF DECISION:- 21-04-2023

HEADNOTE

Penal Code, 1860 (IPC) – Sections 302, 397 and 450 – Murder – Conviction and sentence – Sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them – Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario – Conviction and sentence is upheld

JUDGMENT

Sanjay Kumar, J

_*By judgment dated 30.08.2016 passed in Sessions Case No. 81 of 2012, the learned VI Additional District and Sessions Judge, Sompeta, held the accused therein, viz., Dakkata Balaram Reddy (A1) and Chinapana Gopi (A2), guilty of offences punishable under Sections 302, 397 and 450 IPC and sentenced them accordingly. Their conviction and sentence stood confirmed when the High Court for the State of Telangana and the State of Andhra Pradesh dismissed Criminal Appeal No. 915 of 2016 filed by the two accused, vide judgment dated 03.10.2018. Aggrieved thereby, both the accused are before this Court*_

_*2. Heard Shri R. Basant, learned senior counsel, appearing for the appellants/accused; Shri Mahfooz Ahsan Nazki, learned counsel, appearing for the State of Andhra Pradesh; and Shri Y. Raja Gopala Rao, learned counsel for the second respondent, viz., the complainant*_.

_*3. The case of the prosecution: The complainant, Vetcha Kesava Rao (PW-1), is a resident of Ichapuram and his house is situated on Chinnamedaraveedhi, wherein he also did his gold and silver business. A1 is a civil contractor while A2, his brother-in-law, is an ex-serviceman. On 21.08.2008 at about 9.00 pm, in PW-1s absence, A1 and A2 trespassed into his house concealing iron rods under their shirts and brutally killed his son, Vetcha Kiran Kumar (deceased No.1), and his wife, Vetcha Venkatagopala Lakshmi (deceased No.2); robbed gold ornaments, weighing about 3.543 Kgs., and cash of Rs. 18,340/-. At about 11.00 pm on the same night, PW-1 lodged a written report against them at Ichapuram Town Police Station. Thereupon, Crime No. 61 of 2008 was registered by the Sub-Inspector of Police, Ichapuram Rural P.S. (PW-23), and he informed the Inspector of Police who was holding additional charge of Ichapuram Circle (PW-26). PW-26 immediately took up investigation. He visited the scene of offence and held an inquest over the dead bodies in the presence of mediators. Upon receiving information, he arrested A2 at 01.15 am on 22.08.2008 at Radhamveedhi Jagannadhaswamy Temple, Ichapuram, in the presence of mediators and recovered from his possession part of the stolen property, i.e., gold ornaments weighing 1748 grams 750 milligrams and cash of Rs. 18,340/-. He then arrested A1 at 04.00 am on 22.08.2008 from Gollaveedhi, Ichapuram, and recovered gold ornaments weighing 1794 grams 370 milligrams from his possession in the presence of mediators. Thus, PW-26 recovered the gold ornaments weighing 3.543 Kgs. from the accused along with the cash. He also examined several witnesses. He went to the scene of the offence and prepared a Rough Sketch. At his request, the Inspector of Police, FPB Unit, Srikakulam (PW-24), went to the scene of the offence along with the Clues Team and developed four chance fingerprints. Thereafter, the Inspector of Police, Ichapuram Circle (PW-27), took up further investigation. He visited the scene of offence, examined witnesses and recorded their statements. After completion of the investigation, he filed a charge sheet against the accused. Charges were framed against them under Sections 302, 379, 394 r/w 397, 411 and 450 IPC. They pleaded not guilty and claimed to be tried*_

4. During the trial, the prosecution examined 27 witnesses and marked Exs.P-1 to P-21 in evidence, apart from producing Material Objects (MOs) 1 to 99. The accused did not adduce evidence but were examined under Section 313 Cr.P.C. Upon considering the evidence and the MOs, the learned VI Additional District and Sessions Judge, Sompeta, held the accused guilty of the offences punishable under Sections 302, 397 and 450 IPC. They were sentenced to undergo imprisonment for life under Section 302 IPC and to pay fine of Rs. 2,000/- each; imprisonment for a period of 10 years under Section 450 IPC and to pay a fine of Rs. 2,000/-each; and imprisonment for 7 years under Section 397 IPC. Further imprisonment was directed for default in payment of fines.

5. Aggrieved thereby, the accused filed Criminal Appeal No. 915 of 2016 before the High Court. By judgment dated 03.10.2018, a Division Bench of the High Court opined that the circumstantial evidence, in corroboration with the medical evidence, the weapons used and the manner in which the attack was made, established that the accused intended to cause the death of the inmates of the house of PW-1, fulfilling the essential ingredients of the offence under Section 300 IPC, punishable under Section 302 IPC. The High Court, therefore, concluded that there was no merit in the case and dismissed the same. Hence, this appeal by special leave under Article 136 of the Constitution.

6. At the outset, it would be apposite to note the scope of jurisdiction under Article 136 of the Constitution in a case of this nature, where the Trial Court and the High Court have concurrently returned findings of guilt against the accused. In Pappu Vs. The State of Uttar Pradesh [(2022) 10 SCC 321], this Court pointed out that, in an appeal by special leave under Article 136 of the Constitution against concurrent findings of fact by the Trial Court and the High Court after appreciation of evidence, each and every finding of fact cannot be contested and such an appeal cannot be dealt with as if this Court is another forum for reappreciation of evidence. It was observed that it is only if the assessment by the Trial Court and the High Court can be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process, leading to serious prejudice or injustice, that this Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice, but such a course is to be adopted only in rare and exceptional cases of manifest illegality. It was further observed that such an appeal is not a regular appeal and this Court would not interfere with concurrent findings of fact based on pure appreciation of evidence and it is not the scope of such appeal that this Court would enter into reappreciation of evidence so as to take a view different from that taken by the Trial Court and approved by the High Court.

7. Earlier, in Sambhu Das alias Bijoy Das and another Vs. State of Assam [(2010) 10 SCC 374], this Court affirmed that Article 136 of the Constitution does not confer a right of appeal on a party and only confers discretionary power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence.

8. This being the settled legal position, the case on hand may now be examined. There are no eye-witnesses to the actual commission of the offence and the case is built on circumstantial evidence. Trite to state, in such a situation, the chain of evidence must be so complete as to not leave any reasonable grounds for a conclusion consistent with the innocence of the accused; the accused must be and not merely may be guilty, before the Court can convict, and the facts established should be consistent only with the hypothesis of the guilt of the accused [See Hanumant Govind Nargundkar Vs. State of M.P. (AIR 1952 SC 343)].

9. In this context, the following facts may be noted: Vetcha Kesava Rao (PW-1) stated that, on 21.08.2008 at about 05.00 pm, he went to Sompeta for business purposes and received a call from PW-7/LW-8 at about 09.30 pm that the accused went to his house at about 09.00 pm and that they heard loud cries and shouts coming from the house. PW-7 then told him that after some time A1 ran away with small bundles of gold while he and LWs 6 & 7 (PW-4 and PW-6) were watching and A2 fled from upstairs towards the backside portion. PW-1 stated that he returned from Sompeta and reached his house at about 10.00 or 10.30 pm and by that time, people had gathered outside his house and all the doors of his house were open. His son was lying in a pool of blood near the sofa in the shop room and there was an iron rod on the floor, and in the southern side room, his wife was lying in a pool of blood and he found another iron rod near her. All the gold ornaments were missing from the shop almirah and the show case. He then went to the police station and lodged a report (Ex.P-1). PW-1 stated that he told the police that his wife and son were killed by the accused. He also informed the police that he had lost gold ornaments and cash of Rs. 18,340/-. In his cross-examination, he stated that the accused were his customers and used to purchase gold or take money from him. He denied knowledge of A1 being a contractor and his financial position.

10. The Civil Assistant Surgeon, Community Health Centre, Ichapuram (PW-19), conducted the post-mortem examination of the body of deceased No. 1. He issued a post-mortem certificate (Ex.P-14) stating that the cause of his death was shock due to brain injury and hemorrhage following a head injury. Another Civil Assistant Surgeon at the Community Health Centre, Ichapuram (PW-20), conducted the autopsy over the body of deceased No. 2 and issued a post-mortem certificate (Ex.P-15) stating to the same effect as to the cause of her death. Both PW-19 and PW-20 denied the suggestion that the injuries on the bodies of the deceased could have been caused by falling from the first floor. In effect, it can safely be said that their deaths were homicidal in nature. More so, as blood-stained iron rods (MOs1 and 2) were found near the bodies.

11. Though there were no eye-witnesses to the actual killings, there were three separate witnesses who spoke of seeing one or both of the accused running away from the house of PW-1 at that late hour on the fateful night. PWs 4, 6, and 10 are those witnesses. PW-4 stated that he was also doing gold and silver business and knew PW-1 as well as the accused. He stated that, on 21.08.2008 at about 09.00 pm, he and PW-6 were going to his sisters house at Dabburi Street via Medaraveedhi and at that time, they heard loud voices coming from PW-1s house. They shouted as to what was happening inside the house. A number of people gathered at the house. Then, A1 came out from the house of PW-1 and ran away. After that, the police came to the house of PW-1. Along with them, they all went inside the house of PW-1 and found that the wife and son of PW-1 were lying dead. PW-1s son was lying in the shop room and the body of PW-1s wife was at the bath room which was after the shop room. PW-1 then returned from camp. During the investigation, on 11.12.2008, his statement was recorded under Section 164 Cr.P.C. by the Judicial First Class Magistrate, Sompeta (Ex.P2). At this stage, PW-4 was declared hostile and was cross-examined by the prosecution. He denied having stated before the police that the accused had entered the house of PW-1 and had stolen gold ornaments and cash. In his cross-examination by the defence, PW-4 stated that PW-1s house was in the centre of Chinnamedaraveedhi and on both sides, houses were situated. He stated that he did not know whether PW-1 used to advance loans on pledging of gold ornaments.

12. PW-6 stated that, on 21.08.2008 at about 09.00 pm, he and PW-4 were going towards his house and PW-4 was then going to his sisters house via Chinnamedaraveedhi. By the time they reached PW-1s house, they heard cries and shouted as to what happened. In the meanwhile, 10 to 15 people gathered there. Then, A1 came outside from PW-1s house and ran away on a bike with a bag on his shoulder. After 5 or 10 minutes, A2 jumped from the upstairs of PW-1s house to the neighbouring house and from there, he jumped down. At that time, A2 was also holding a bag. After one hour, PW-1 returned to his house and the police also came there. In the first room, i.e., the gold shop, PW-1s son was found in a pool of blood and his wifes body was found near the bathroom towards the backside of the shop. Iron rods were found near the bodies. In his cross-examination, PW-6 stated that about 3 or 4 people were present at PW-1s house by the time they were passing there. He further stated that A1 was a contractor and possessed 8 lorries. He however disclaimed knowledge of A1 doing gold business or having constructed a temple. He could not say the colour of the wearing apparel and the colour of the bags carried by the accused.

13. PW-7 stated that, on 21.08.2008 at about 09.00 pm, he closed his kirana shop and was returning home and by the time he reached PW-1s house, he heard loud sounds coming from PW-1s house and some people had gathered there. He stated that he called PW-1 and informed him that loud sounds were coming from his house and PW-1 said that he would return home. At about 10.30 pm, PW-1 returned to the house and a police report was given. After the police came, they went inside the house and on the left side near the sofa in the shop room, PW-1s son was lying in a pool of blood. His wife was lying in a pool of blood by the bathroom and iron rods were present near the bodies. He further stated that all the things were shattered in the house of PW-1 and around 4 Kgs. of gold and cash was stolen/lost. In his cross-examination, he stated that, by the time the police came there, he was present outside PW-1s house. Significantly, PW-7 did not say anything about the presence of the accused or about informing PW-1 of their entering and leaving his house.

14. PW-10 resided in the 2nd house opposite the house of PW-1. He stated that, on 21.08.2008 at about 09.30 pm, while he was taking dinner, he heard sounds from outside. When he came out, he saw around 10 people gathered in the street. Meanwhile, A1 ran away from PW-1s house and then A2 ran away from PW-1s house. Both of them were holding bags. Later, he came to know that the accused had murdered PW-1s wife and son and ran away with gold. He stated that PW-1 came to the house within half an hour or one hour. Police also came to the house. He went to the house and saw the bodies of deceased. In his cross-examination, he admitted that he did not state before the police that A1 and A 2 were holding bags and left PW-1s house in a hurry.

15. Now, coming to the apprehension and arrest of the accused. PW-17 stated that he was the Village Revenue Officer of Koligam Village and on 22.08.2008, at around 01.00 am, he was called to Ichapuram Town Police Station by the Inspector of Police. LW-27 was already there by then. He stated that both of them and the police went to Radham Street near Jagannadhaswamy Temple. At that time, one person was seen running away from that place and the police chased and caught hold of him. He was holding a bag in his hand. He stated that his name was Chinapana Gopi (A2) and he allegedly confessed to commission of the crime. The bag was seized and opened in their presence. They found gold ornaments and cash of Rs. 18,340/- inside. At about 04.00 or 04.30 am on the same day, he went to Ichapuram Town Police Station and both the accused were present there. The police then seized the blood-stained clothes of both the accused in his presence. In his cross-examination, he stated that he did not remember the colour of the bag seized from A2 or the number of ornaments seized.

16. PW-16, the Village Revenue Officer, Purushottapuram, Ichapuram Mandal, stated that, on 22.08.2008 at about 02.30 am, the Inspector of Police, Ichapuram, called him and LW-25 and both of them, along with the Inspector of Police and other police staff, went to Gollaveedhi in a police jeep. On seeing the police jeep, one person started running but the police chased and caught hold of him. He was brought before the Inspector of Police and on questioning as to why he was running, he identified himself as Dakkata Balaram Reddy (A1). He allegedly confessed to having killed PW-1s wife and son and taking gold ornaments. Upon being questioned about the ornaments, he brought the ornaments in a bag from his room, i.e., about 30 items. PW-16 further stated that, at about 04.40 am on the same day, the Inspector of Police called him to the Police Station and he along with LW-26 went there. The police seized the yellow T-shirt (MO 97) and light cement-coloured jeans pant (MO 98) of A1 along with the blood-stained jeans of cement color (MO 99) of A2.

17. PW-26 worked as the Inspector of Police at Sompeta from 13.10.2006 to 19.09.2008. He stated that, on 21.08.2008, while he was holding additional charge of Ichapuram Circle, he received information from the Sub-Inspector of Police, Ichapuram Rural Police Station (PW-23) about the subject crime. He immediately rushed there and also flashed radio messages for conducting vehicle checking to apprehend the accused. He visited the scene of offence at 11.45 pm and noted the dead bodies. In the meanwhile, he received information about the movement of the culprits and left the scene of the offence. He secured two mediators and along with his staff, he went to Radhamveedhi, Jagannadhaswamy Temple, at about 01.15 am and noticed one person, carrying a hand bag, trying to escape upon seeing the police. He apprehended the person (A2) and questioned him about the contents of the bag. He interrogated him and he confessed to the commission of the offence. The bag carried by him was verified and gold ornaments along with cash of Rs. 18,340/- were found therein. Then, PW-26, along with the accused, his staff and mediators, rushed to the house of the other accused, Dakkata Balaram Reddy, situated on Gollaveedhi of Ichapuram Municipality, and upon seeing the police, one person (A1) tried to escape. He was apprehended and interrogated in the presence of mediators. He also confessed to commission of the offence and corroborated the version given by the other accused. PW-26 stated that he then questioned him about the stolen property and he fetched a bag from the side room of the house along with blood-stained clothes and handed over the same to him. The bag contained gold ornaments. PW-26 then arrested A1 at about 04.00 am and brought both the accused to the police station along with the seized property. Upon further questioning as to their clothes at the time of the offence, they disclosed that they were wearing the same clothes at the time of offence. He then secured some other clothes and seized their blood-stained clothes.

18. PW-27 stated that he worked as the Inspector of Police, Ichapuram, from 09.02.2008 to 09.05.2010. He stated that he took up further investigation in the case on hand on 31.08.2008 and that PW-26 had conducted investigation till then. He spoke of the Test Identification Parade of the seized gold ornaments conducted in the presence of mediators.

19. The Inspector of Police, FPB Unit, Srikakulam, was examined as PW-24. He stated that, on receipt of a telephone message from the Police Station, Ichapuram, he visited the scene of offence along with a Clues Team on 22.08.2008 at about 06.00 am and developed four chance fingerprints on a glass show case and one chance fingerprint on a cream-coloured plastic box. He stated that he found photocopies of two of the chance prints unfit for comparison but the chance prints marked as A, D and E were fit for comparison. The fingerprints marked as A and E tallied with the fingerprints of the two accused. In his cross-examination, he stated that he did not receive the specimen fingerprints of the accused through the Court but from the Investigating Officer.

Insofar as this fingerprint evidence is concerned, we find that the same was liable to be eschewed from consideration as the accused were already in custody by the time the so-called chance fingerprints were lifted from the scene of the offence. More importantly, the prescribed procedure was not followed in gathering this so-called evidence. No report was drawn up at the time of lifting of these chance prints in the presence of credible witnesses. Similarly, no report was prepared even at the time the specimen fingerprints of the accused were taken. Therefore, PW-24s evidence that two of the chance prints tallied with the fingerprints of the accused cannot be given any weightage. Failure in following the due procedure rendered the findings of PW-24 wholly unreliable.

20. Shri R. Basant, learned senior counsel, would contend that there is no evidence of any light being available outside the house of PW-1, whereby the witnesses could have seen the accused running away with bags. We are of the opinion that it would not be open to the accused to raise this factual aspect at this late stage. It was never put in issue that the area in question did not have adequate street lights, whereby the evidentiary value of the statements of witnesses as to what they had seen could be attacked. More so, as it has come on record that apart from the jewellery shop of PW-1, there were other jewellery shops in the vicinity and the police station itself was just half a kilometer away. If that was so, it is difficult to believe that there would be no street lighting in such an area. In any event, this Court does not propose to initiate an inquiry into this factual aspect, which was not raised either before the Trial Court or before the High Court.

21. Undeniably, there are some discrepancies and contradictions in the prosecutions case. There is no clarity as to the sequence of events at the scene of offence on the fateful night. Witnesses gave differing versions of the time of the arrival of the police and as to what they saw and said. There is no corroboration of PW-1s statement that it was PW-7 who informed him of the accused entering and exiting his house, as PW-7 said nothing to that effect. Further, recovery of the clothes worn by the accused at that time is also shrouded in doubt. One version is that they were still wearing them at the police station and they were seized there by the police, after providing them other clothes, while the other is that A1 handed over blood-stained clothes to PW-26 along with the bag of ornaments at his house. However, some differences in the testimonies of witnesses as to what they saw and said are to expected given the passage of time. Be it noted that the subject incident occurred on the night of 21.08.2008 and the depositions of the witnesses were recorded by the Trial Court in the later part of 2015. In any event, as already noted hereinbefore, this Court would not undertake a roving inquiry on factual issues or reappreciate the evidence, unless it is brought out that there is some perversity in appreciation of evidence by the Trial Court or the High Court, leading to manifest miscarriage of justice. Trivial defects in investigation or process are not enough, in themselves, to disbelieve the prosecutions case. To acquit solely on the ground of defective investigation would be adding insult to injury [See Karnel Singh Vs. State of M.P. {(1995) 5 SCC 518}]

22. Similarly, identification of the gold ornaments by PW-1 during the TIP does not raise any red flags. Order 474 of the Andhra Pradesh Police Investigation Manual, Part I, Vol. IIA, provides that identification of properties has to be done in the Court premises, under the order of the Magistrate, either by the Magistrate or through independent witnesses, if the properties are already sent to Court, and in other cases, independent witnesses should conduct the process of identification of the property in the absence of the police, under a Panchnama. The properties to be identified should be mixed with similar articles and the witnesses should be asked to identify them. This being the procedure that was followed in the case on hand, there is no reason to doubt PW-1s identification of the seized gold ornaments as those taken from his shop.

23. In this regard, it may also be noted that A2 was found in possession of a bag carrying some of the stolen ornaments and, therefore, such possession itself speaks against him, in terms of Section 114 (a) of the Indian Evidence Act, 1872. Being a fact especially within his knowledge, it was for A2 to explain as to how he came to be in possession of those stolen ornaments, under Section 106 of the Indian Evidence Act, 1872. However, no explanation was offered by him. As regards A1, it is the prosecutions case that he confessed to commission of the crime and upon being questioned as to the stolen gold ornaments, he himself went into the other room in his house and brought out a bag containing the gold ornaments. This part of his confession would, therefore, be admissible under Section 27 of the Indian Evidence Act, 1872, as it led to the recovery of the stolen gold ornaments.

24. No doubt, recovery of this stolen property from the accused would not be sufficient in itself to convict them for murder. However, the weight of the evidence on record, taken cumulatively, unerringly points to the guilt of the accused, leaving no room for second thoughts. The inescapable fact remains that PWs 4, 6, and 10, who were witnesses independent of each other and who had no animosity or enmity with the accused, spoke in unison about seeing them running away from the house of PW-1 of the fateful night with bags in their possession. No explanation is forthcoming as to why three separate witnesses would choose to implicate the accused falsely.

25. Given the totality of the case, which demonstrates that the sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them. Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario.

26. Viewed thus, we find no patent illegality or manifest injustice having been committed by the Trial Court and the High Court, warranting exercise of discretionary jurisdiction under Article 136 of the Constitution.

27. The Criminal Appeal is, therefore, found to be bereft of merit and it is dismissed accordingly.