When an offence is committed in secrecy inside a house, then a corresponding burden will be on the inmates of the house to give a cogent explanation as to how the crime was committed

In the instant case, the appellant does not deny her presence at the scene of crime (the house where deceased and accused lived). Except the appellant and her child, no other persons were present at the scene of crime and she was the inmate of the house where the offence is committed in secrecy inside the house. The initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by prosecution to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparatively lighter in character. In view of Section 106 of Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how crime was committed.[Para No.26]

    As observed herein above, appellant being the only inmate of the house, did not offer any explanation as to how the incident took place. Further she has not explained in her statement recorded under Section 313 of Cr.P.C the circumstances in which deceased had sustained injuries except denying every question by answering 'do not know' or 'false'. It is the duty of the accused to furnish an explanation in her statement recorded under Section 313 Cr.P.C. regarding incriminating material that has been produced against her. Accused has been given freedom to remain silent during the investigation, as well as before the Court, then, the appellant/accused may choose to maintain silence or even deny entire prosecution case. In the present case, as observed above, the appellant in her statement under Section 313 Cr.P.C except saying 'false' and 'do not know', has not explained how the incident took place or who had committed the offence (if known) or the reason for her husband sustaining head injury and lying in a pool of blood. In such circumstances, we will have to draw an adverse inference against the appellant for not furnishing the explanation in her statement recorded under Section 313 of Cr.P.C.[Para no.27]

   Where an accused is alleged to have committed the murder of her husband and the prosecution succeeded in leading the evidence to show that shortly before the commission of crime, they were seen together and the offence had taken place in the house where husband and wife normally resides, then, it is for the accused to explain. For this proposition, we place reliance on the judgment of the Apex Court in TRIMUKH MAROTI KIRKAN V. STATE OF MAHARASHTRA reported in (2006) 10 SCC 681 wherein it came to be held:

Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up

In the present case the petitioner husband, aged 52 years, is admittedly a small businessman and his 41 years old respondent wife is a house wife. The petitioner has proved his case that his wife abandoned him along with their daughter when he lost his vision and was in dire need of their company and the support of his wife. His illness is not denied by the respondent wife. Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she lebelled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act. She not only prosecuted her husband, the elder sister of her husband was also implicated in the case instituted by her under Section 498A IPC though both of them were ultimately acquitted in appeal. [Para No.40]

    It is true that the wife is not expected to endure the harassment meted out to her by her husband or in-laws without raising protest or filing appropriate proceeding against them, but in the given case the cumulative effect of the facts and circumstances emerging from the evidence on record lead us to a fair inference that her unprovoked humiliating treatment caused serious mental pain and suffering to her husband which no doubt constitutes cruelty.[Para No.41]

    Admittedly the present appellant wife and her respondent husband are staying apart from 12.01.2007. They are thus living separately for more than 13 years. During this period they never stayed together even for a single day which indicates that their sentiments and emotions have dried up and there is hardly any chance of restoration of their conjugal life.[Para No.42]

    In this regard, the Apex Court in Naveen Kohli vs. Neelu Kohli reported in (2006) 4 SCC 558 held as follows:

"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties."[Para No.43]

Writ petition of Habeas Corpus in High Court is maintainable in respect of illegal custody of a minor child by one parent

The first issue before this Court is whether a Habeas Corpus petition is maintainable or not in respect of custody of a minor child, who is in the custody of the father and grandparents at Gwalior. [Para No.11]

    The apex Court in the case of Capt. Dushyant Somal Vs. Sushma Somal and another reported in (1981) 2 SCC 277 has dealt with the jurisdictional aspect with regard to issuance of Habeas Corpus writ in respect of illegal custody of Child. Paragraphs 3, 5 and 7 of the aforesaid judgment reads as under :-

"3. There can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out.
    Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner. But all this does not mean that a Writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grand- mother of the child was not subjected to any cross- examination; the appellant-petitioner did not choose to go into the witness box; he did not choose to examine any witness on his behalf. The evidence of the grand- mother, corroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the company of his grand-mother. The High Court was quite right in coming to the conclusion that he appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The Writ, of Habeas Corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward.
5. It was submitted that the appellant-petitioner did not give evidence, he did not examine any witness on his behalf and he did not cross-examine his wife and mother-in-law because, he would be disclosing his defence in the criminal case, if he so did. He could not be compelled to disclose his defence in the criminal case in that manner as that would offend against the fundamental right guaranteed by Article 20(3) of the Constitution. It was suggested that the entire question whether the appellant-petitioner had unlawfully removed the child from the custody of the mother could be exhaustively enquired into in the criminal case where he was facing the charge of kidnapping. It was argued that on that ground alone the writ petition should have been dismissed, the submission is entirely misconceived. In answer to the rule nisi, all that he was required to do was to produce the child in Courts if the child was in his custody. If after producing the child, he wanted to retain the custody of the child, he would have to satisfy the Court that the child was lawfully in his custody. There was no question at all of compelling the appellant-petitioner to be a witness against himself. He was free to examine himself as a witness or not. If he examined himself he could still refuse to answer questions, answers to which might incriminate him in pending prosecutions. He was also free to examine or not other witnesses on his behalf and to cross examine or not, witnesses examined by the opposite party. Protection against testimonial compulsion" did not convert the position of a the position of a person accused of an offence into a position of privilege, with, immunity from any other action contemplated by law. A. criminal prosecution was not a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice system. All that Article 20(3) guaranteed was that a person accused of an offence Shall not be compelled to be a witness against himself, nothing less and, certain nothing more. Immunity against testimonial compulsion did not extend to refusal to examine and cross-examine witnesses and it was not open to a party proceeding to refuse to examine himself or anyone else as a witness on his side and to cross examine the witnesses for the opposite party on the ground of testimonial compulsion and then to contend that no relief should be given to. the opposite party on the basis of the evidence adduced by the other party. We are unable to see how Article 20(3) comes into the picture at all.
7. It was argued that the wife had alternate remedies under the Guardian and Wards Act and the CrPC and so a Writ should not have been issued. True, alternate remedy ordinarily inhibits a prerogative writ. But it is not an impassable hurdle. Where what is complained of is an impudent disregard of an order of a Court, the fact certainly cries out that a prerogative writ shall issue,. In regard to the sentence, instead of the sentence imposed by the High Court, we substitute a sentence of three months, simple imprisonment and a fine of Rupees Five hundred. The sentence of imprisonment or such part of it as may not have been served will stand remitted on the appellant-petitioner producing the child in the High Court. With this modification in the matter of sentence, the appeal and the Special Leave Petition are dismissed. Criminal Miscellaneous Petition No. 677/81 is dismissed as we are not satisfied that it is a fit case for laying a complaint."[Para No.12]

Once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of CrPC

After calling report u/s.202 of CrPC, Magistrate can not order investigation u/s.156(3) of CrPC.

   I may first deal with the question as to whether the Magistrate ought to have proceeded under Section 156(3), after receipt of enquiry report from Senior Superintendent of Police, Srinagar, sought on taking cognizance of complaint and after deferment of process or was required to proceed under Section 202(1) and what are the parameters for exercise of power under the two provisions.[Para No.12]

     The two provisions are in two different chapters of the Code, though common expression 'investigation' is used in both the provisions. Normal rule is to understand the same expression in two provisions of an enactment in same sense unless the context otherwise requires. Heading of Chapter XII is "Information to the Police and their Powers to Investigate" and that of Chapter XV is "Complaints to Magistrate". Heading of Chapter XIV is "Conditions Requisite for Initiation of Proceedings". The two provisions i.e. Sections 156 and 202 in Chapters XII and XV respectively are as follows :

"156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
202. Postponement of issue of process.-
(1) Any Magistrate , on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."[Para No.13]

   Cognizance is taken by a Magistrate under Section 190 (in Chapter XIV) either on "receiving a complaint", on "a police report" or "information received" from any person other than a police officer or upon his own knowledge.

    Chapter XV deals exclusively with complaints to Magistrates. Reference to Sections, 202, in the said Chapter, shows that it provides for "postponement of issue of process" which is mandatory if accused resides beyond the Magistrate's jurisdiction (with which situation this case does not concern) and discretionary in other cases in which event an enquiry can be conducted by the Magistrate or investigation can be directed to be made by a police officer or such other person as may be thought fit "for the purpose of deciding whether or not there is sufficient ground for proceeding". I am skipping the proviso as it does not concern the question under discussion. Clause (3) provides that if investigation is by a person other than a police officer, he shall have all the powers of an officer incharge of a police station except the power to arrest.[Para No.14]

   Chapter XII, dealing with the information to the police and their powers to investigate, provides for entering information relating to a 'cognizable offence' in a book to be kept by the officer incharge of a police station (Section 154) and such entry is called "FIR". If from the information, the officer incharge of the police station has reason to suspect commission of an offence which he is empowered to investigate subject to compliance of other requirements, he shall proceed, to the spot, to investigate the facts and circumstances and, if necessary, to take measure, for the discovery and arrest of the offender (Section 157(1).[Para No.15]

    Power under Section 202 is of different nature. Report sought under the said provision has limited purpose of deciding "whether or not there is sufficient ground for proceeding". If this be the object, the procedure under Chapter XV of the Code of Criminal Procedure are required to be adhered to in letter and spirit.[Para No.19]

    Admittedly the Magistrate has taken cognizance and find it necessary to postpone issuance of process, therefore, directed for enquiry by the Police and on receipt of the report from SSP, Srinagar, the Magistrate was required to proceed in terms of the provisions contained in Chapter XV of the Criminal Procedure Code. Thus, I answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued, when Magistrate takes cognizance and postpones issuance of process, the Magistrate has yet to determine "existence of sufficient ground to proceed" and these cases fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.[Para No.20]

    To reiterate for the guidance of all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, it has become necessary to refer the Judgment reported in (2010) 4 Supreme Court Cases 185 titled Rameshbhai Pandurao Hedau Vs. State of Gujrat, which postulates that while the power to direct a police investigation under Section 156(3) is exercisable at the pre-cognizance stage, the power to direct an investigation or an enquiry under Section 202(1) is exercisable at the post-cognizance stage, when the Magistrate is in seisin of the case.[Para No.21]

    The settled legal position has been enunciated by the Hon'ble Supreme Court in several decisions and has observed that the Courts are ad idem on the question that the powers under Section 156(3) can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process. Such a view has been expressed in Suresh Chand Jain case reported in (2001) 2 SCC 628: 2001 SCC (Cri) 377 as well as in Dharmeshbhai Vasudevbhai case, reported in (2009) 6 SCC 576: (2009) 3 SCC (Cri) 76 and in Devarapalli Lakshminarayana Reddy case, reported in (1976) 3 SCC 252: 1976 SCC (Cri) 380.[Para No.22]

Discarding a case law of other high court is against judicial discipline and propriety and amounts to disrespect

Before departing, it is inevitable to make mention that, the learned A.P.P. while making the arguments before the learned Trial Judge cited the Ruling of Kerala High Court in the case of Food Inspector vs James, (reported in Prevention of Food Adulteration Cases) at 1998 (1) P.320, and while discussing the observations made in the said Ruling, the learned Trial Judge has observed in para no.31 of the impugned judgment that :

"With great respect, I do not agree with the 'view taken' and observations made by Their Lordships in the above case law. Moreover, the said case law is admittedly of Kerala High Court and the same is not binding on this court."[Para No.42]

    Moreover, while making submissions before the learned trial Judge, learned A.P.P. also cited Ruling in the case of Rambhai vs State of Madhya Pradesh (Reported in Prevention of Food Adulteration Cases) at 1991 (1) P. 6, as stated in para 34 of the impugned judgment, but the learned Trial Judge, after considering the said ratio laid down in the said Ruling, observed in para no.35 of the impugned judgment that :

"After going through the observations made by Their Lordships in the above case law, I am of the opinion that though the Ruling is applicable to the present case, however, according to me, with great respect the view taken in the observations of the Ruling is not correct."[Para No.43]

    It manifestly appears from the text and tenor of the observations made by the learned Trial Judge in para nos. 31 and 35 of the impugned judgment that same do not conform with the judicial discipline and propriety, and apparently amount to disrespect, and therefore, the Registrar General is directed to take suitable action against the concerned Judge, if he is in Judicial Service.[Para No.44]

After dismissal of petition for quashing of offence under STSC Atrocity Act, application u/s. 438 for anticipatory bail can not be considered

The appellants upon such filing of the complaint, raised an issue that the ingredients of the offences are prima facie not established and thereby initially, preferred a petition for quashing before the High Court, being Criminal Misc. Application No.6223 of 2017 and by raising multiple contentions about non-applicability of the provisions of the Act, a request was made to quash the complaint. But, after hearing both the sides at length, the said petition for quashing came to be withdrawn vide order dated 11.12.2019 and the interim order which was granted earlier on 6.3.2017 was vacated. Of-course for a period of one week, the said protection was extended.[Para No.3]

    It appears from the record that after disposal of the petition for quashing, the present appellants appeared to have rushed down for anticipatory bail under Section 438 of the Criminal Procedure Code ('the Code' for short) before learned District and Sessions Judge, (Special Atrocity Court) at Surat, which application came up for consideration before learned 7th Additional Sessions Judge, Surat, who by order dated 24.12.2019 was pleased to dismiss the same, which has given rise to present Criminal Appeal before this court [Para No.4]

    At this stage, even if the Court may consider that after disposal of the petition for quashing, application under Section 438 of the Code can be considered, but, in view of the fact that after exhausting meritorious contentions, the petition for quashing came to be disposed of and hence very little scope is left for the Court to consider Section 438 request of the appellants, since prima facie, it cannot be said that no offence is made out and further, it is not open for the bail Court to jump to a conclusion of this elementary stage that this complaint is nothing but abuse of process of law, particularly when the quashing petition is already disposed of. Therefore, with full effect, embargo created by the Statute by way of Section 18 and 18A of the Atrocity Act, the request for anticipatory bail cannot be considered.The intention of the legislature is not to be brushed aside as has been held by the Apex Court. Large number of decisions which are pressed into service, in the considered opinion of this Court, are of no avail to the appellants, particularly when in recent pronouncement of the judgment in the case of Prathvi Raj Chauhan (supra), the Court has expressly made it clear that liberal use of power to grant pre- arrest bail would defeat the intention of the Parliament. So, the Court would not like to exercise the discretion in view of this peculiar set of circumstance and having gone through the overall material on record, the appeal is found to be merit-less since facts are altogether different.[Para No.12]

Non-finding of injury upon the victim of rape does not necessarily mean that there is no rape

So far as regards the non-finding of injury upon the victim, as per the medical evidence, it is to be noted that injury is not a sine qua non for deciding whether rape has been committed or not. It has to be decided on the factual matrix of each case. The Hon'ble Apex Court in (2013) 11 SCC 688, Radhakrishna Nagesh - Vs- State of Andhra Pradesh, it has been held that penetration itself proves offence of rape, but contrary is not true, i.e.,even if there is no penetration, it does not necessarily mean that there is no rape. The Hon'ble Apex Court further held that absence of injuries would justify any adverse inference against prosecution. In (2014) 13 SCC 574; Krishan - Vs- State of Haryana, it was also held by the Hon'ble Apex Court that it is not expected that every rape victim should have injuries on her body to prove her case.[Para No.31]

    The chastity of a woman ruined as soon as such offence is committed, while in a civilized society, respect or reputation is a basic right. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. Youthful excitement and an attempt for momentary pleasure on the part of a person upon a woman, had a devastating effect in the entire body and mind of the victim. It is to be kept in mind that such offence lowers the dignity of a woman and mars her reputation. The Courts are sensitized that rape is a violation of victim's fundamental right under Article 21 of the Constitution and rape victim is placed on a higher pedestal than an injured witness. Being the most hatred crime, rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well.[Para No.33]

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct

The fact remains that there is no evidence on record to hold that defendant No.1 Dashmat Bai admittedly, firstly married Kunjilal, but there is no evidence on record to hold that whether he or she divorced each other and marriage between Kunjilal and Dashmat Bai had ever been validly dissolved. Similarly, it is the further admitted position on record that Dashmat Bai entered into marriage with Latel, but there is no evidence that divorce ever took place between them and thirdly, the alleged third marriage of Dashmat Bai with Sukhdev i.e. she has lastly married Sukhdev in Chudi form. Father of defendant No.1 Dashmat Bai namely, Jaitram (DW-1) has categorically stated that he was not present at the time when Dashmat Bai allegedly entered into marriage in Chudi form with Sukhdev. It is quite unnatural that father will not remain present at the time of such an important ceremony i.e. marriage of his daughter with a person namely Sukhdev. Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.[Para No.20]

   The Supreme Court in Vidhyadhar (supra) has clearly held that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. This decision has further been followed by their Lordships of the Supreme Court in Man Kaur (supra).[Para No.21]

Benefit of bail u/s.436A of Cr.P.C. is available only to under-trial prisoners and not to convicted who has filed an appeal

Upon the closer examination of the language used in Section 436-A of the Code, it can be seen without any difficulty or doubt that the benefit intended to be given is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence, not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law. In such a case, the person is required to be released on his personal bond with or without sureties in normal course of circumstances. But, there could be some special circumstances justifying his further detention, for reasons to be recorded, which makes the right of the person limited and not absolute. This is evident from the first proviso which lays down that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order continued detention of the person for a period longer than one half of the period mentioned in the Section or release him on bail instead of the personal bond with or without sureties. However, this limited right has the potential of becoming absolute when the condition prescribed in second proviso is fulfilled. The condition is that if the person has been detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for an offence under that law, the person has to be released. There is also an explanation appended to the section. It lays down that in computing the period of detention for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.[Para No.18]

    Reading the Section as a whole, we find that the benefit under the section has been intended to be given only to the under-trial prisoners. The words "during the period of investigation, inquiry or trial" and the words "maximum period of imprisonment specified for that offence" are significant. They indicate that only that person who has undergone detention for a period of one half or more of the maximum prescribed punishment during investigation, inquiry or trial under the Code who is eligible for his release on personal bond with or without sureties or bail, as the case may be. The Section does not say that a person who has been detained for one half period of imprisonment imposed would be eligible. Mentioning of "the maximum period of imprisonment specified for that offence under that law" and omission of the words "punishment imposed" shows that the legislature was aware of the difference in the status of an undertrial prisoner and a convict, and with it of the consequences of detaining a person who enjoys presumption of innocence till found guilty for unduly long time. Such presumption of innocence being absent in case of a convict, the legislature refrained, and consciously, from mentioning the words "punishment imposed". This clearly shows the intention of the legislature to confer the benefit on the under- trials and not the convicts. This being the position, we do not think that rule of liberal construction would have any application here.[Para No.19]

    There are further indications about the clarity of intention of the legislature. The provision refers to "investigation, inquiry and trial under  the Code". There can be no doubt about what "investigation or inquiry" means as they have been defined in Section 2(h) and Section 2(g) of the Code respectively. The doubt, however, could be about meaning of the word "trial" as it has not been defined in the Code. It has not been defined in the General Clauses Act either. So, we have to turn to its dictionary meaning, if it helps. In Black's Law Dictionary (9th Edition page 1644) "trial" has been defined to be a formal judicial examination of evidence and determination of legal claims in a advisory proceeding. This definition is too general an explanation of "trial" and, therefore, it would not help us in understanding its meaning here. So, we must again revert to the Code, in an attempt to understand the sense in which the word "trial" has been used in Section 436-A of the Code or to be precise, to know, as to whether or not the trial of an accused goes beyond his conviction and continues, if appeal is filed under 374 of the Code, till it is finally decided, or it culminates upon acquittal or conviction for the purpose of Section 436-A of the Code.[Para No.20]

    As these provisions create a step-wise mechanism to procedurally deal with crimes and so the word, "trial" used in Section 436-A would get it's meaning in the context of this scheme of the Code, at least for the purpose which is sought to be achieved by the provision of Section 436-A. Under this scheme of the Code, "trial" of a person accused of an offence is contemplated only by a Court having original criminal jurisdiction or assuming original criminal jurisdiction after committal of a Sessions case and appeal as a remedy against the judgment of conviction and/or sentence or even acquittal has been made available before the Court exercising Appellate jurisdiction. In this sense, so far as the Section 436- A benefit is concerned, the word "trial" has to be understood in contra-distinction to an "appeal proceeding". Our conclusion is further bolstered up by the provisions contained in Section 353. Provisions contained in Section 389 also help us in drawing of such an inference. It would be, therefore, convenient for us to quote relevant portions of these sections here. They are as under :

"353. Judgment - (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c)  by reading out the operative part of thej udgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader."
   "389. Suspension of sentence pending the appeal; release of appellant on bail. - (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:"

    It is clear from Section 353 that it requires a criminal Court to pronounce judgment in every trial in open Court immediately "after the termination of the trial or at some subsequent time". It is indicative of the fact that upon pronouncement of the judgment, in the contemplation of the scheme of the Code, there occurs termination of the trial. If we examine Section 389 of the Code, on the backdrop of Section 353, we would find that under the scheme of the Code, appeal has been considered to be a stage separate from trial, which comes into being after pronouncement of the judgment upon termination of the trial. In other words, unless there is termination of trial, there is no question of stage of appeal being born. That means the words "trial" and "appeal" have been used in distinctive sense thereby signaling that no one makes a mistake in understanding that "trial" is not synonymous with "appeal", when it comes to extending benefit available to an under trial prisoner to a convict undergoing sentence of imprisonment.

Of course, in general sense, appeal could be said to be an extension of trial on the parameters of rights available to a convict, principles to be followed by Appellate Court in appreciation of evidence and power of Appellate Court. But, this is not so for the purposes of Section 436-A of the Code. This is the reason why in Section 389 of the Code, the words "trial of the person", "are not used and instead the words, "pending any appeal by a convicted person" are employed for considering suspension of sentence of the convict and grant of bail to him.[Para No.23]

Magistrate has powers u/s.451 and 457 of Cr.P.C. to order de-freezing of bank account seized by police

Questions may often arise as to the legal remedy which a person can resort to, upon being aggrieved by the seizure of his bank account which reveals no nexus with the alleged offence.

In case the seizure is illegal and the account freezed lacked direct link with the offences alleged, the legal remedy open to the aggrieved is to approach the concerned Magistrate under Section 451 or 457 of the CrPC as the case may be, and seek to get the account de-freezed. But if the freezing is per se contrary to the provisions of law and could be assailed as illegal without reference to factual disputes involved in the matter, nothing precludes the affected person from approaching this Court for appropriate relief.[Para No.23]

    If a Police Officer wants to depart from the normal procedure of getting a warrant or such permission from the concerned Magistrate, he must then have to draw a search memorandum in writing containing sufficient grounds for his belief as to how the assets in the account are associated with the alleged offences and also as to how an emergent freezing of account would be justified in the circumstances of the case on hand. He must forward the same to the nearest Magistrate forthwith as required under Section 165(5). If there is breach in this respect, it is to be considered as being irregular than illegal. All that the Magistrate has to decide on the motion made for defreezing of the account is whether the seizure complained of is illegal and the account did have any direct/close nexus or link with the offences in question. In other words, despite there could be complaint of irregularity in the matter of seizure also, once the Magistrate is satisfied that the account seized nevertheless has got direct or close link with the offences in question, then it is not a case where the account could be ordered to be de-freezed at the request of the aggrieved. This will not, however, preclude the Magistrate from reporting the violation if any, committed by the erring Police Officer, to his departmental head for initiating necessary disciplinary action.[Para No.24]

No relief can be granted to the tenant on the ground of comparative hardship if he has never made any effort for searching alternative accomodation

So far as comparative hardship is concerned, it is undisputed fact that the petitioner has never attempted to search alternative space for shifting his business and law is very well settled on this point. The Apex Court as well as this Court has repeatedly held that it is necessarily required on the part of tenant to make full endeavour to search alternative accomodation to prove his comparative hardship after receiving copy of release application. In the matter of Rajasthan State Road Transport Corporation (supra), the Court has clearly held that it is required on the part of tenant to make effort for searching alternative accomodation. Again in the matter of Salim Khan (supra), this Court, relying upon the judgments of the Apex Court as well as this Court, was of the view that it is required on the part of petitioner to search accomodation after filing the release application and in the present case there is no dispute that the petitioner had never made any effort to search alternative accomodation. Not only this, the Court has also considered the Rule 16 of the Rules, 1972 and considering the another judgment of Ganga Devi (supra), Court has taken the view that Rule 16 of Rules, 1972 would not come in the rescue of petitioner, in case, petitioner-tenant has not made any effort to search another accomodation. Here in the present case, there is no dispute on the point that petitioner has not made any effort to search alternative accomodation.

    In the matter of Sarju Prasad (supra), this Court has again taken the same view and held that in case effort was not made for alternative accomodation, this would be sufficient to tilt the balance of comparative hardship against the tenant. This view was again repeated by this Court in the case of Bachchu Lal (supra) and held that to prove the comparative hardship, it is necessarily required to make effort to search alternative accomodation, which is absolutely missing in the present case.

    Therefore, in light of fact that petitioner has never made any effort for searching alternative accomodation coupled with law laid down by the Apex Court as well as this Court, no relief can be granted to the petitioner on the ground of comparative hardship.

Evidence of child witness without oath can be relied upon if child witness is able to understand the questions and able to give rational answers thereof

Master Krishna Akhade (PW-4), son of deceased Sangita and the appellant -accused, was 4 year old tender aged child. It is abundantly clear from the evidence of Mr Mangesh Sonawane (PW-2) and Mr Mahesh Pagare (PW-3) that, Krishna Akhade (PW-4) was present in the house when the incident took place. As already referred to in foregoing paragraphs, master Krishna Akhade (PW-4) had not seen entire incident. Material portion of his testimony is as under:

"I am taking education in Balwadi. My mother's name is Sangita. The name of my father is Bhatu. The name of my sister is Divya. There was quarrel on that day in between my mother and father. My father beat to my mother by means of wooden log. I had seen the said incident. There was smoke in the house. Door was opened by Sonu uncle and Golu Uncle."[Para No.22]

    Record reveals that, before recording the evidence learned Additional Sessions Judge, Dhule ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions. Record further reveals that, considering very tender age of master Krishna Akhade, learned Additional Sessions Judge, Dhule decided not to administer oath to him. During cross-examination master Krishna Akhade clearly stated that, he had been awakened from sleep hearing shouting, which clearly establishes that, he had seen the incident not fully, but partly. Nothing is brought on record through his cross-examination, on the basis of which, his evidence can be discarded branding it to be tutored. No doubt, cross-examination of master Krishna Akhade (PW-4) reveals that, 1½ months prior to recording of his evidence maternal uncle Mangesh Sonawane (PW-2) had taken him to his house from the house of parental grandfather and grandmother. Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Mangesh Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mr Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence. It is pertinent to note that, on very next day of the incident, statement of master Krishna Akhade under Section 161 of CrPC was recorded. Testimony of master Krishna Akhade is free from any omission or contradiction. Since the statement of master Krishna Akhade (PW-4) under Section 161 of CrPC was recorded on very next day of the incident when he was in the custody of parents of the appellant, question of his tutoring at that time by his maternal uncle Mr Mangesh Sonawane (PW-2) does not arise.[Para No.23]

    In the matter of Dattu Ramrao Sakhare Vs. State of Maharashtra, 1997 (3) Mh.L.J. 452, the Hon'ble Supreme Court while dealing with the aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872, in paragraph no.5 of the Judgment, held as under :

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."[Para no.24]

Even If landlord has multiple premises available with him still the tenant cannot dictate to him which of the premises he may seek to get vacated

Tenant can be evicted for bona fide requirement of married daughter of landlord even if such daughter or her husband is having resources to purchase other premisses

    In another decision rendered by a single Judge of our High Court in Vinod Gupta vs. Kailash Aggarwal & Ors. where the bona- fidé requirement of a married daughter was canvassed, the single Judge relying upon the decision in Sunder Singh Talwar (supra) has also referred to a 2014 decision as follows :

"14. Further in Rajender Prasad Gupta V. Rajeev Gagerna 2014 (114) DRJ 182, the Court held as follows :
"5. Having considered the arguments of learned counsel for the parties, this Court is of the view that the Trial Court has taken into consideration each of the contentions raised in the leave-to-defend and found them to be not triable issues. The reasons for and conclusion arrived at cannot be faulted. Furthermore, simply because the daughter of a marriageable age and allegedly likely to marry would not necessary cut her ties from her maternal family nor would the requirement for her accommodation in her father's house be lessened. Indeed, in the present times a daughter who is married-out, may like to retain her accommodation in her father's house which forms an emotional anchor and a place for refuge for all times. In times of an unfortunate marital discord such need becomes more acute should there be such a need.
    Conversely her family also would want to retain a room so as to re-assure her of a continued place of residence in her paternal home. A married daughter's ties with her paternal family do not end upon her marriage. For a married daughter her parents' home is always a refuge; an abode of reassurance and an abiding source of emotional strength and happiness. In the present case the daughter is a practicing advocate, i.e. a qualified professional, the need is all the more acute and bona fide. This Court finds, as did the Trial Court did, that no triable issues were raised in the leave-to- defend. Therefore, there was no need to grant leave or set the matter for trial. The reasons and the conclusion arrived at in the impugned order are correct and call for no interference." 

"15. Thus the law discussed above does not leave any room for further discussion on this topic. Admittedly the law as it stands, the daughters share equal rights in their parental properties as a son does, hence saying a married daughter severe (sic) all her relations with her father's family and would never be considered dependent upon the family's property, residential or commercial, that her parents own, would not be correct. Hence no fault can be found in impugned order even on this score."

(emphasis supplied) The single Judge thereby upheld the denial of leave-to-defend to the tenant.[Para No.16]

    While the ARC has clearly erred in holding that the requirement of a married daughter can never be considered while deciding the bona-fidé requirement of a landlord under section 14(1)(e) since a married daughter does not remain a member of the family, another question arises in the present case, and that is : whether in assessing the availability of suitable, alternate accommodation for the use of a married daughter, it is necessary to first assess the availability of such accommodation in the hands of the husband ; or is it permissible to assess the availability of such accommodation in the hands of the maternal family of the married daughter. In the opinion of this court, this question must be answered from the perspective of the eviction petitioner who seeks recovery of possession for the bona fidé requirement of a dependent family member. Accordingly, the availability of suitable, alternate accommodation is to be seen in the hands of the person filing the eviction petition, in this case the mother/landlady; and it is not relevant whether other relatives of the dependant family member have any alternate accommodation available. In this case, it is therefore not relevant whether the petitioner's sons-in-law have alternate accommodation or not.[Para No.17]

In absence of the depositions or the evidence of the victim; conviction u/s. 4 & 5 of the Immoral Trafic (Prevention) Act can not be sustained

PW-4, P.I., Madan Manohar Ballal of Crime Branch, Thane, claimed that at the relevant time, he was attached to A.H.T.C. and the investigation of the present Crime No. I-475 of 2013 of Manpada Police Station was handed over to him and he has received the relevant documents viz. complaint, panchanama, Pre-raid panchanama, raid panchanama, spot panchanama, muddemal and Police statements of witnesses. He claimed that he has obtained the documents of registration of the said flat, which is the place of offence, so also R.C. book of motorcycle. He claimed that he has requested the learned Judicial Magistrate, First Class, Kalyan on 7 th December, 2013 and 13th January, 2014 so as to record the statements of victims under Section 164 of Cr.P.C. vide Exhibit 38 and 39. According to him, he has also sent a letter to Rescue Foundation to produce the victim girls vide Exhibits 40 to 45 for recording the statements of the victim girls under Section 164 of Cr.PC. However, according to him, the victims were sent to Bangladesh through Rescue Foundation, whereas victim no.6, Pinki Mandol was sent to West Bengal.[Para No.20]

    As such from the aforesaid testimony of the investigating officer, what can be gathered is the statement of the victim girls could not be recorded under Section 164 Cr.P.C. though efforts were made as the five victims were sent back to Bangladesh by the Rescue Foundation, whereas victim Pinki to West Bengal. No efforts were made by the prosecution to record the statement of victim girls under Section 164 Cr.P.C. by video conferencing or their oral evidence during the course of trial.[Para No.22]

    Similarly as observed hereinabove the conviction under the provisions of Immoral Traffic (Prevention) Act, 1956 is also not sustainable as it is not established that the accused were either the owner or licensee or as a tenant of the flat in question, which is the place of offence and they were in actual possession of the premises particularly in absence of testimony of the flat owner. Similarly, it is also not established that the vehicle i.e. two wheeler was seized from the custody of or ownership of the accused. That being so, the conviction of the appellants for an offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956 is not sustainable. In absence of the depositions or the evidence of the victims, it is difficult to even sustain the conviction of an offences punishable under Section 4 of the Act particularly in absence of testimony of the victim girls, so also the conviction under Section 5 as there is no material to demonstrate that the victim girls were procured or by inducing or forcing them for the sake of prostitution.[Para No.30]

Criminal appeal against conviction cannot be dismissed for default owing to the absence of the appellant or his counsel

This is the oldest Single Judge Bench criminal appeal of this Court. It was presented on 22.04.1988, admitted on 27.04.1988 and the appellant was directed to be released on bail and realization of fine amount was stayed. After its admission, the case was listed before different Benches on different occasions for hearing but it was adjourned either on the prayer of the learned counsel for the appellant or learned counsel for the Vigilance Department. The matter was listed before me for hearing on 06.08.2020 and I took up the matter through Video Conferencing. The report of the Superintendent of Police, Vigilance Cell, Cuttack revealed that it was intimated to the appellant that the matter would be taken up on 06.08.2020. In spite of that, none appeared on behalf of the appellant. Since the appeal was pending before this Court for more than thirty years, in presence of the learned Senior Standing Counsel for the Vigilance Department, Mr. Deba Prasad Das, Advocate who is having extensive practice on criminal law for more than thirty five years, both in the trial Court as well as before this Court was appointed as Amicus Curiae to conduct the case for the appellant and the Registry was directed to supply the paper book to Mr. Das by 07.08.2020 and to intimate him that the matter would be taken up for hearing in the week commencing from 10.08.2020. Accordingly, Registry supplied the paper book to Mr. Das. On 13.08.2020 when the matter was again listed for hearing and it was taken up through video conferencing, Mr. Das, learned Amicus Curiae was ready for hearing but the learned counsel for the appellant who had filed the criminal appeal in the year 1988 appeared and sought for two weeks adjournment which was refused and accordingly, the hearing was taken up and concluded on that date itself and the judgment was reserved. Mr. Das, learned Amicus Curiae took time till 17.08.2020 to file his written note of submission and accordingly he also filed the same.

    In the case of Bani Singh and others -Vrs.- State of Uttar Pradesh reported in 1996 (II) Orissa Law Reviews (SC) 216, a three Judge Bench of the Hon'ble Supreme Court was called upto to decide the question as to whether the High Court can dismiss an appeal filed by the accused-appellant against the order of conviction and sentence issued by the trial Court, for non-prosecution. Considering the provisions under sections 385 and 386 of Cr.P.C., it was held that the law does not envisage the dismissal of appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. It was further held that the law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. If the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. The ratio laid down in the case of Bani Singh (supra) was followed in the case of K.S. Panduranga -Vrs.- State of Karnataka reported in (2013)3 Supreme Court Cases 721 wherein it was held that the High Court cannot dismiss an appeal for non-prosecution simplicitor without examining the merits and the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent. The Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so. It can dispose of the appeal after perusing the record and judgment of the trial Court. If the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the Court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the Court from doing so.

    In the case of Shridhar Namdeo Lawand-Vrs.-State of Maharastra reported in 2013 (10) SCALE 52, a three Judge Bench of the Hon'ble Supreme Court held that it is the settled law that Court should not decide criminal case in the absence of the counsel for the accused, as an accused in a criminal case should not suffer for the fault of his counsel and the Court should, in such a situation must appoint another counsel as an amicus curiae to defend the accused.

    In the case of Christopher Raj -Vrs.- K.Vijayakumar reported in (2019)7 Supreme Court Cases 398, it was held that when the accused did not enter appearance in the High Court, the High Court should have issued second notice to the appellant-accused or the High Court Legal Services Committee to appoint an Advocate or the High Court could have taken the assistance of Amicus Curiae. When the accused was not represented, without appointing any counsel as Amicus Curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits.

In computing period of 60/90 days for default bail u/s.167(2) of CrPC, first day of remand is to be included

The applicability of the aforesaid principle and also of the provision contained in Section 9 of the General Clauses Act would be of some semblance/relevance, where the law/statute prescribes a limitation and in terms of Section 9, if in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other days or any other period of time, to use the word ‘from’ and ‘for the purpose of including the last in a series of days or any other period of time to use the word ‘to’. The principle would be attracted when a period is delimited by a Statute or Rule, which has both a beginning and an end; the word ‘from’ indicate the beginning and then the opening day is to be excluded and then the last day is included by use of words ‘to’. The requisite form for applicability of Section 9 is prescribed for a period ‘from’ and ‘to’, i.e. when the period is marked by terminus quo and terminus ad quem.

    If this principle is the underlining principle for applicability of Section 9 of the General Clauses Act, 1897, perusal of Section 167 (2) would reveal that there is no starting point or an end point. In the scheme of the Code, as has been elaborated above, the provisions contained in sub-section (1) of Section 167 runs in continuation of sub-section (2). Production of the accused before the Magistrate is a sequel of his arrest by the police in exercise of their power and the mandate of the police, and at the same time, a right of the accused to be produced before the Magistrate within 24 hours. The day on which the accused is brought on remand before the Magistrate, sub-section (2) of Section 167 empowers the Magistrate to authorize the detention with the police either by continuing it or remanding him to Magisterial custody. There cannot be a pause/break between the two processes. There is no de-limitation conceptualized in Section 167 nor can it be befitted into a period of limitation ‘from’ and ‘to’ as there is no limitation for completion of investigation and filing of the charge-sheet. The production before the Magistrate is a process in continuation of his arrest by the police and the Magistrate will authorize his detention for not more than 15 days in the whole but if he is satisfied that sufficient ground exist, he may authorise his detention beyond 15 days otherwise than in custody of police. There is no starting point or end point for the authorities to complete their action but if the investigation is not completed and charge-sheet not filed within 60 days or 90 days, a right accrues to the accused to be released on bail.

    The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue. This is the precise reason why the General clauses Act cannot be made applicable to sub-section (2) of Section 167 and the submission of Mr.Singh to the effect that the first day of remand will have to be excluded, would result into a break in the continuity of the custody of the accused which begin on his arrest and which could have continued till conclusion of investigation but for insertion of proviso to subsection (2) of Section 167.

Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence

In fact learned Counsel for parties also have mostly relied upon the evidence of the prosecutrix only either to demonstrate that the offences have not been committed or committed. Law on the perspective to be adopted in such case can be found in following two judgments of the Hon. Apex Court. In Narender Kumar Vs. State (NCT of Delhi), AIR 2012 SC 2281 : (2012) CriLJ 3033 : (2012) 3 JCC 1888 : (2012) 5 SCALE 657 : (2012) 7 SCC 171 : (2012) AIRSCW 3391 : (2012) 4 Supreme 59 , Hon. Apex Court points out the settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. However, where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration. Hon. Apex Court states that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Hon. Apex Court in matter before it observes that the facts and circumstances therein made it crystal clear that if the evidence of the prosecutrix was read and considered in totality of the circumstances along with the other evidence on record, in which the offence was alleged to have been committed, her deposition did not inspire confidence. The prosecution had not disclosed the true genesis of the crime. It therefore, found the appellant entitled to the benefit of doubt.[Para No.15]

A Judge is judged not only by his quality of judgments but also by the quality and purity of his character

Qualities of a good judge:

What cannot be ignored is also the fact that once when the petitioner being appointed as a member of judicial service unlike other employment or profession, judicial service is in itself a class apart. Judges in the judicial service is not merely in employment, nor are the judges mere employees, they are the holders of a post by which they exercise judicial powers. Their office is one with great trust and responsibility. Any act of injustice or misdeed by a judicial officer would lead to a disastrous and deleterious situation having grave adverse consequence.[Para No.26]

    It is always expected that a judicial officer discharges his work and duties in tranquillity and he has to behave and conduct in a manner as if he is a hermit.[Para No.27]

    So far as the conduct part is concerned, the Judges should always maintain and enforce a high standard of conduct which he should personally observe. It is always expected that a judicial officer shall apart from maintaining high level of integrity, should have great judicial discipline and should always try to avoid impropriety. Judge should always be sensitive to the situation around him and should avoid being overactive or over-reactive. It is always expected from a Judge to perform himself most diligently and should not get himself engaged in behavior that is harassing, abusive, prejudiced or biased.[Para No.28]

    Talking on the elements of judicial behaviour it has always been said that Judges shall remain accountable for their actions and decisions. A Judge's official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behaviour, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach. Accordingly an act of the Judge whether in official or on personal capacity which erodes the credibility of the judicial institution has to be avoided.[Para No.29]

Information recorded u/s.27 of Evidence Act by a Police Officer which is confessional in nature, is not admissible in evidence

The learned trial court arrived at a conclusion of guilt of the accused appellant primarily on the basis of three circumstances. The first conclusion of the trial court was based on the so-called evidence of disclosure i.e., the accused gave an information to the I.O. under Section 27 of the Indian Evidence Act and led him to the place where he had allegedly strangled Smt. Mohini. In this regard, it is a settled proposition of law that such part of information of the accused recorded by a Police Officer which is confessional in nature, cannot be proved and as a consequence, is not admissible in evidence.

Manifestly, the inculpating part of the information (Ex.P/14) wherein, the accused allegedly admitted to have killed Smt. Mohini is totally inadmissible because the same would be hit by Section 25 of the Evidence Act. It may be stated here that the Site Inspection Plan (Ex.P/8) which the I.O. prepared on the basis of the information provided by the accused, records that a cot was lying at point 'X' in a room where Sheshkaran Dan admitted to have murdered his wife Smt. Mohini. Manifestly, the confession of the accused as is recorded in this document, is totally inadmissible and has to be excluded from consideration. The remaining part of the document, simply records presence of a cot at mark 'X' in the room. Obviously, when the husband and wife were living together in the house, presence of a cot in their room was but natural. Therefore, the conclusion drawn by the trial court in the impugned Judgment that the disclosure made by the accused pointing out the cot where he allegedly murdered Smt. Mohini was incriminating in nature, is absolutely baseless and frivolous.[Para No.9]

Bequeath of disproportionate share in Will does not make the Will suspicious or unnatural

Thus, from the tenor of the Will read with the document dated 30 September, 2000, it appears that Pravin had equal love and affection for Ashok and Dipti. However, Pravin was of the opinion that he had spent sufficient sums of money on Dipti to give her a comfortable life and hence he did not think it necessary to leave much of his properties to his daughter. However, it is not that Dipti was totally deprived by Pravin in the Will. As noted, 9% Relief Bonds with face value of Rs.31,00,000/- and Maturity Value of over Rs.48,00,000/- were left for Dipti. It has also come out from the evidence on record that Dipti and her husband are both well established in U.S.A. and between the two of them, they earn over 1 million U.S. dollars per year. This factor is also likely to have played in the mind of the testator in deciding that it was not necessary to leave much for Dipti who was financially more than secure. Just because the bequests in favour of the testator's two children are not equal and may even be disproportionate, the same in my view, per se would not amount to a suspicious circumstance or make the Will unnatural. A Will is generally made when the testator desires to alter the natural course of succession. As observed by the Apex Court in the case of Ramabai Padmakar Patil (Dead) v. Rukminibai Vishnu Vekhande (supra), a Will is executed to alter the natural mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass equally to his natural heirs there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.[Para No.31]

    In S. Sundaresa Pai vs. Sumangala. T. Pai (supra), the Hon'ble Supreme Court observed at Paragraph 7 of the judgment inter alia as follows:

"The uneven distribution of assets amongst children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the will. One son was given bulk of immovable properties; another none; another half share in one immovable property; other half being given to the plaintiff and another daughter and husband were given nothing. It is also not in dispute that some properties were given in gift to the plaintiff by her mother during her lifetime. There was nothing unnatural."[Para No.51]