REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 92/2015 JAGE RAM & ORS. ..Appellants Versus STATE OF HARYANA ..Respondent J U D G M E N T R. BANUMATHI, J. This appeal is preferred against the judgment dated 19.8.2011 passed by the High Court of Punjab and Haryana in Criminal Appeal No.181 SB of 2000, whereby the High Court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications. 2. Briefly stated, case of the prosecution is that on the fateful day i.e. 18.11.1994, at about 8.00 A.M. in the morning the complainant Jagdish (PW-5) along with his two sons namely Sukhbir and Mange Ram (PW-6) were busy in cutting pullas (reeds) from the dola of their field. At that time, Jage Ram (A-1) and his sons Rajbir Singh @ Raju (A-2), Rakesh (A-3) and Madan (A-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties. Wordy altercations ensued between the parties and Jage Ram insisted that he would take away the entire pullas. In the fight, the accused persons started inflicting injuries to the complainant, and his sons Rajbir @ Raju (A-2) gave a pharsi blow on the head of Sukhbir, Jage Ram (A-1) caused injury to Jagdish (PW-5) with two jaily blows. Additionally, Madan and Rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. Jagdish and his injured sons raised alarm, hearing which Rajesh and Usha came to rescue them and on seeing them, the accused persons fled away. 3. The injured witnesses were taken to the Primary Health Centre, Taoru where Dr. Pardeep Kumar, Medical Officer, medically examined the injured persons. Injured Sukhbir was vomiting in the hospital and later on he was referred to General Hospital, Gurgaon as his condition deteriorated. A CT scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and Sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed. Dr. Pardeep Kumar (PW-2) also examined the other injured persons, PW 5-Jagdish and PW 6- Mange Ram. 4. Statement of Jagdish was recorded, based on which F.I.R. was registered at Police Station Taoru, Gurgaon under Sections 323, 324, 325 and 307 read with Section 34 IPC. PW 8-Ramesh Kumar (ASI) had taken up the investigation. He examined the witnesses and after completion of investigation, challan was filed under Sections 307, 325, 324 read with Section 34 IPC. In the trial court, prosecution examined nine witnesses including Jagdish-PW5, Mange Ram-PW6 and Dr. Prem Kumar-PW2 and Dr. HiIol Kanti Pal-PW9, Neuro Surgeon, PW8-investigating officer and other witnesses. The accused were examined under Section 313 Cr.P.C. about the incriminating evidence and circumstances. First accused Jage Ram pleaded that on the date of occurrence-complainant party Jagdish and his sons Mange Ram and Sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas. Jagdish further claims that he along with Rakesh caused injuries to the complainant party in exercise of right of private defence of property. He has denied that Rajesh and Usha had seen the incident. Raju (A-2) and Madan (A-3) stated that they were not present on the spot and they have been falsely implicated. Rakesh (A-4) adopted the stand of his father Jage Ram. 5. Upon consideration of oral and documentary evidence, the learned Additional Sessions Judge vide judgment dated 17.2.2000 convicted all the accused persons under Sections 307 and 325 IPC and sentenced them to undergo rigorous imprisonment for five years and one year respectively and a fine of Rs. 500/- each with default clause. Aggrieved by the said judgment, the accused-appellants filed criminal appeal before the High Court of Punjab and Haryana. The High Court vide impugned judgment dated 19.8.2011 modified the judgment of the trial court thereby convicted Jage Ram (A-1) under Section 325 IPC and sentenced him to undergo rigorous imprisonment for one year, convicted second accused Rajbir @ Raju under Section 307 IPC and imposed sentence of imprisonment for five years as well the fine of Rs.500/- was confirmed by the High Court. Sentence under Section 325 IPC (two counts) was modified as the sentence under Section 323 IPC and he was sentenced to undergo six months rigorous imprisonment. Both the sentences were ordered to run concurrently. High Court modified the sentence of Madan (A-3) Rakesh (A-4) under Section 323 IPC and sentenced them to undergo rigorous imprisonment for six months (two counts) respectively. In this appeal, the appellants assail the correctness of the impugned judgment. 6. Ms. Vibha Datta Makhija, learned Senior Counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self-contradictory. It was submitted that injured witness Sukhbir was not examined in the court and neither CT Scan nor x-ray nor operational notes of Sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused under Section 307 IPC. Additionally, the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective. 7. Per contra, learned counsel appearing for the respondent-State contended that the evidence of all the witnesses satisfactorily establishes the overt act of the accused persons and Jagdish (PW-5) and Mange Ram (PW- 6) being the injured witnesses, the veracity of these witnesses cannot be doubted. It was submitted that the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of Sukhbir and in appreciation of the evidence, courts below recorded concurrent findings convicting the second accused under Section 307 IPC and the same warrants no interference. 8. We have carefully considered the rival contentions and gone through the impugned judgment and perused the materials on record. 9. As it emerges from the evidence, complainant Jagdish (PW-5) and his two sons Sukhbir and Mange Ram were cutting pullas. The accused party went there and asked them not to cut the pullas. In the wordy altercation, second accused Rajbir @ Raju gave pharsi blows on the head of Sukhbir. PWs 5 & 6 have clearly spoken about the overt act of the accused that A-1 Jage Ram attacked and caused injury to PW-5 Jagdish with jaily blows and that second accused Rajbir @ Raju attacked on the head of Sukhbir with pharsi. They have also stated that Madan and Rakesh caused injuries to PW5-Jagdish with lathi on shoulder and left elbow respectively. PW 2- Dr. Pardeep Kumar in his evidence stated that he has examined PWs 5 and 6 and noted the injuries on the body of PWs 5 and 6 and issued wound certificates. Evidence of PWs 5 and 6 is amply corroborated by medical evidence. PWs 5 and 6 being injured witnesses, their evidence is entitled to great weight. Cogent and convincing grounds are required to discard the evidence of injured witnesses. In the light of the fact that PWs 5 and 6 were injured witnesses, courts below tested their evidence for its credibility and recorded concurrent findings that PWs 5 and 6 are trustworthy witnesses. We find no reason to take a different view. 10. Appellants have raised the contention that the prosecution failed to adduce evidence that A-2 Rajbir attempted to commit murder of Sukhbir. It was submitted that injured person Sukhbir was neither examined nor medical evidence like CT Scan, x-ray and operational notes and Sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused Rajbir @ Raju under Section 307 IPC. 11. Dr. Pardeep Kumar-PW-2, who examined Sukhbir found during his medico-legal examination a lacerated wound in the middle of the top of the skull. Injured-Sukhkbir was found vomiting in the hospital and he was examined by a Neuro Surgeon Dr. Hilol Kanti Pal (PW-9) of Safdarjung Hospital, Delhi on 19.11.1994, i.e. the day after the incident. PW-9 has stated that Sukhbir was unconscious since 2.00 P.M. on 18.11.1994 and was deeply comatose with irregularity of pupils and a laceration was diagnosed on the right front parietal region. Further, PW-9 has stated that during the CT scan, it was revealed that a large extra-dural haemotoma was present in the frontal region with mass effect and to avoid further deterioration of his condition, he was operated upon by frontal trephine craniopmy an haemotoma measuring about 125 ml was evacuated. PW-9 stated that had not the operation been conducted on Sukhbir and had not the extra- dural haemotoma removed by operation urgently, the head injury caused to Sukhbir would have caused his death. As noted by the High Court, it is thus brought on evidence that had not surgical assistance been given to Sukhbir, he would have definitely died. 12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. 13. In the case of State of M.P. vs. Kashiram & Ors.[1], the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under:- "13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. [pic] 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, Girija Shanker v. State of U.P.(2004) 3 SCC 793 and R. Prakash v. State of Karnataka (2004) 9 SCC 27. * * * 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury." See State of M.P. v. Saleem (2005) 5 SCC 554 pp. 559-60, paras 11-14 and 16. 13. "6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.(1991) 3 SCC 471." 14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, courts below recorded concurrent findings convicting the 2nd appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable. 15. Learned counsel for the appellants contended that the second appellant is in custody for more than three years and since the occurrence was in the year 1994, prayed for reduction of the sentence imposed on the second appellant to the period already undergone. Placing reliance upon the judgment of this Court in Hari Singh vs. Sukhbir Singh & Ors[2]., learned counsel for the appellants additionally submitted that in terms of Section 357 (3) Cr.P.C. that the compensation may be awarded to the victim and the sentence be modified to the period already undergone. 16. For the conviction under Section 307 IPC, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. Vide State of M.P. vs. Bablu Natt[3]; Alister Anthony Pareira vs. State of Maharashtra[4] and Soman vs. State of Kerala[5]. 17. In the light of the above, considering the case in hand, the occurrence was of the year 1994 when the complainant party was cutting pullas, the accused asked them not to cut the pullas which resulted in the wordy altercation. In the heat of passion, the accused have caused injuries to the complainant party. The second accused Rajbir @ Raju is in custody. He surrendered on 5.1.2012 and is stated to be in custody since then, for more than three years. Having regard to the facts and circumstances of the case, in our considered view, the period of sentence of five years may be reduced to three years apart from directing the second appellant Rajbir @ Raju to pay substantial compensation to injured- Sukhbir. 18. As noticed above, injured-Sukhbir sustained grievous head injuries and was deeply comatose and was in a state of shock and trauma. Learned counsel for the injured-witness submitted that for quite some time injured-Sukhbir was unconscious and thereafter suffering from mental trauma. Having regard to the nature of injuries sustained by Sukhbir and the period of treatment and other circumstances, we are of the view that, it would be appropriate to direct second appellant-accused Rajbir @ Raju to pay Rs.7,50,000/- as compensation to the injured-Sukhbir. When the matter came up for hearing on 14.10.2014, learned counsel for the appellants informed the Court that he had offered Rs.5,00,000/- by way of demand draft towards compensation to the injured-Sukhbir in the presence of the Sarpanch of the village which he has refused to receive the same. The said amount of Rs.5,00,000/- is now kept in fixed deposit in the Registry of this Court. 19. For inflicting blows on PW-5 Jagidsh with jaily A-1 Jage Ram was convicted under Section 325 IPC and sentenced to undergo rigorous imprisonment for one year. A-3 and A-4 have also given lathis blows to PW- 5 and were convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for three months by the High Court. Having regard to the fact that the occurrence was of the year 1994, considering the other facts and circumstances of the case, the sentence of imprisonment imposed on Jage Ram (A-1), Madan (A-3) and Rakesh (A-4) is reduced to the period already undergone by them. 20. The conviction of A-1 under Section 325 IPC, A-3 and A-4 under Section 323 IPC is confirmed and the sentence is reduced to the period already undergone by each of them. The conviction of second accused Rajbir @ Raju under Section 307 IPC is confirmed and the sentence of imprisonment of five years is reduced to the period already undergone and additionally the second accused shall pay a compensation of Rs.7,50,000/- to the injured witness-Sukhbir. Compensation amount of Rs.5,00,000/- deposited in this Court by the 2nd appellant shall be paid to the injured witness-Sukhbir. The second accused Rajbir @ Raju shall deposit the balance compensation amount of Rs.2,50,000/- before the trial court within three months from the date of this judgment and on such deposit, the same shall also be paid to the injured witness-Sukhbir. On failure to deposit the balance compensation, the second appellant Rajbir @ Raju shall undergo default sentence of one year. 21. The appeal is allowed to the above said extent. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged. ...........................J. (V. Gopala Gowda) ...........................J. (R. Banumathi) New Delhi;January 28, 2015 ITEM NO.1A-For JUDGMENT COURT NO.12 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 92/2015 arising from SLP(Crl.) No. 488/2012 JAGE RAM & ORS. Appellant(s) VERSUS STATE OF HARYANA & ANR. Respondent(s) Date : 28/01/2015 This appeal was called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Gagan Gupta,Adv. For Respondent(s) Mr. Ajay Bansal, AAG Mr. Kamal Mohan Gupta,Adv. Mr. Gaurav Yadav, Adv. Mr. Akshat Goel,Adv. Hon'ble Mrs. Justice R. Banumathi pronounced the judgment of the Bench comprising of Hon'ble Mr. Justice V. Gopala Gowda and Hon'ble Mrs. Justice R. Banumathi. The appeal is allowed in terms of the signed reportable judgment. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged. (VINOD KR. JHA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file) ----------------------- [1] [2] AIR 2009 SC 1642 = (2009) 4 SCC 26 [3] [4] (1988) 4 SCC 551 [5] [6] (2009) 2 SCC 272 [7] [8] (2012) 2 SCC 648 [9] [10] (2013) 11 SCC 382


1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2998 OF 2010 THE MANAGING DIRECTOR (SHRI GRISH BATRA) M/S.PADMINI INFRASTRUCTURE DEVELOPERS (I) LTD. … APPELLANT(S) VERSUS THE GENERAL SECRETARY (SHRI AMOL MAHAPATRA) ROYAL GARDEN RESDIENTS WELFARE ASSOCIATION … RESPONDENT(S) WITH CIVIL APPEAL NO. 4085 OF 2010 JUDGMENT V. Ramasubramanian, J. 1. Both the consumer (who was the complainant) as well as the opposite party before the National Consumer Disputes Redressal Commission, have come up with these appeals, the Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2021.09.28 former aggrieved by the rejection of some of the reliefs sought and 16:36:46 IST Reason: the latter, challenging the reliefs granted in favour of the consumer. 2. We have heard the learned counsel appearing on both sides. 3. A residential apartment complex was promoted by M/s Padmini Infrastructure Developers (India) Ltd. (hereinafter referred to as ‘the opposite party’), on a land allotted by New Okhla Development Authority (‘NOIDA’ for short). It appears that the opposite party constructed about 282 apartments and offered them for sale. The purchasers were put in possession during the period from 19982001, but the completion certificate itself was issued only in December, 2001. 4. The purchasers of flats formed themselves into an association known as Royale Garden Residents Welfare Association and got it registered on 30.09.2003 under the Societies Registration Act, 1860. 5. The Residents Welfare Association entered into an agreement on 15.11.2003 with the opposite party for taking over the maintenance of the apartment complex. Thereafter, the Residents Welfare Association ((hereinafter referred to as the ‘complainant’), filed a consumer complaint in Complaint No.9 of 2007 before the National Consumer Disputes Redressal Commission. 6. The reliefs sought by the complainant before the National Commission were as follows: “1. to pay the monthly maintenance charges for unsold flats amounting to Rs. 9,05,810/ 2. to complete the water softening plant and make it operational. 3. to complete fire fighting equipments and make the same operational and to obtain safe working certificate from Fire Safety Department of NOIDA and handover the same to the Complainant. 4. to furnish and equip a second health club for which space is available in half portion of basement of Tower Blue Heaven2. 5. to complete a second swimming pool and get cement plastered and white washed the stilts. 6. to provide furnished space for a, Club House in the basement of Eden Tower which is existing but locked. 7. to get the rented portion of the terrace (roof) vacated meant for the resident of Tower Eden of the Complainant rented out by the Opposite Party to HUTCH (P) Limited and earned rent after on 15.11.2003 to be returned to RWA with 24% interest. 8. not to sell or rent out the remaining flats about 45 till the facilities mentioned above are provided to the Complainant. 9. to direct the OP not be sell stilt and open car parking to future or present purchasers. 10. to pay the cost to the Complaint and damages for harassment mental torture, agony etc. caused to the Complainant by the OP. 11. to pass any other or further orders which this August Commission deems fit in the circumstances of the case to meet the ends of justice.” 7. The complaint was resisted by the opposite party both on merits and on the ground of limitation. The opposite party also claimed that the Agreement dated 15.11.2003, entered into with the complainant contained an arbitration clause and that whatever facilities/amenities were promised at the time of promotion of the complex, have been put in place. 8. The National Commission by its interim order dated 04.06.2008, appointed a local Commissioner, to inspect the systems/facilities relatable to the reliefs claimed in prayer clause nos. 2 to 6 of the complaint and to submit a report. The said Commissioner submitted a report on 08.07.2008 after making a local inspection, in the presence of the representatives of both the parties. 9. Accepting the report of the local Commissioner and overruling the contention of the opposite party regarding limitation, the National Commission allowed the complaint partly by an order dated 05.01.2010. The operative part of the order of the Consumer Commission reads as follows: “Consequently, complaint is partly allowed with cost of Rs. 25,000/ with direction to the opposite party to make the systems/facilities as at Sl. Nos. 2,3,4,5 and 6 of the prayer clause of the complaint operational/complete and to obtain and supply fire safety certificate of the complex to the complainant association within ten weeks from today. The opposite party will submit a report within two weeks thereafter from an independent Architect certifying that the systems/facilities in question have been fully made operational/complete by the opposite party. In the event of not making operational/complete the systems/facilities referred to above within the time allowed, the opposite party will pay through a demand draft the costs thereof as mentioned in aforesaid report dated 8.07.2008 within two weeks from after the expiry of 12 weeks time to the complainant association.” 10. Aggrieved by the order of the National Commission, the opposite party (builder), has come up with one appeal in C.A.No.2998 of 2010. Aggrieved by the refusal of the National Commission to grant the reliefs as per prayer clause nos. 1, 7, 8, 9 & 10, the consumercomplainant has come up with another appeal in C.A.No.4085 of 2010. 11. As observed earlier, the consumer complaint was contested by the opposite party both on merits and on the ground of limitation. Since it is easy to deal with the objection relating to limitation without much ado, we shall take it up first. 12. Section 24A(1) of the Consumer Protection Act, 1986 prescribes a period of limitation of two years from the date on which the cause of action has arisen for the admission of a complaint, by the District Forum, State Commission or the National Commission. In the case on hand, the opposite party handed over the work of maintenance of the complex to the complainant, under an Agreement dated 15.11.2003. As seen from the preamble to the Agreement, the Agreement covered common essential services such as generators, lifts, tubewell, water softening plant, electric substation, cabling, fire fighting system, pipelines, swimming pool, health and fitness centre, parking, clubhouse, water supply, drainage/sewerage system, horticulture, water tanks/pumps and lawns/parks. 13. But different timelines were prescribed under the said Agreement for different obligations still remaining to be performed by the opposite party, towards the purchasers of flats. The last of such timeline was indicated to be 31.03.2004. 14. There were specific obligations to be performed by the opposite party under the said Agreement, in relation to certain services. It may be useful in this regard to extract clauses 13, 14 and 19 of the Agreement as follows: “13. The FIRST PARTY shall bear the contractual obligations of lift, generator, health club and equipments fitted at swimming pool. FIRST PARTY shall also bear the maintenance of these equipments till these contracts are concluded. FIRST PARTY shall bear any/all expenses on maintenance/repair/replacement of these equipments. 14. To FIRST PARTY shall make the softening plant and tube will in working condition and hand it over to SECOND PARTY separately on or before 31.1.2004. The FIRST PARTY shall also bring the fire fighting Equipments/generators in working condition and hand it over to the SECOND PARTY separately on or before 31.12.2003. … … … 19. The FIRST PARTY shall construct the second Health Club and second swimming pool on or before 31.3.2004 and provide space for Club house in one of the basements for the residents as promised and assured at the time of selling the apartments on or before 31.12.2003.” 15. Therefore, the cause of action for the complaint, as per the above clauses continued even after the date of the Agreement namely 15.11.2003. 16. In the affidavit filed by the local Manager of the opposite party by way of evidence, it was admitted that certain works in relation to firefighting equipment continued up to the year 2005. In fact, the opposite party filed certain bills, which were dated 27.02.2005, 22.04.2005, 01.05.2005, 19.07.2005, 29.10.2005 and 12.12.2005, to show that the opposite party was honest and diligent in carrying out their obligations. 17. The affidavit in evidence filed by the opposite party and the aforesaid bills establish that the cause of action continued at least till December, 2005. The complaint before the National Commission was filed in February, 2007. Therefore, the National Commission was right in rejecting the objection relating to limitation. 18. Coming to the merits, let us first take up the challenge to correctness of the reliefs granted by the National Commission in favour of the complainant, as the appeal filed by the opposite party appears to be first in point of time. 19. The reliefs granted by the National Consumer Commission related to water softening plant, firefighting, second health club equipment, second swimming pool and space for club house in Eden Tower. These reliefs were granted by the National Commission on the basis of the Report of the local Commissioner. 20. It appears that opposite party filed objections to the report of the local Commissioner, contending inter alia, (i) that the water softening plant was fully functional when the complex was taken over by the complainant association; (ii) that any deficiency or defect relating to the firefighting equipment is wholly attributable to the lack of maintenance and wrongful practices adopted by the complainant association; (iii) that they are not contractually liable to provide a second health club and the finding of the local Commissioner that one of the health clubs is fully functional and in good condition has to be accepted; and (iv) that the second swimming pool was completed and made operational by the opposite party, but what remained was the filling up of water after filtration, which was the job of the maintenance agency. 21. Interestingly the affidavit of objections to the Report of the local Commissioner, filed on behalf of the opposite party on 06.08.2008, covered only the findings relating to, (i) water softening plant; (ii) firefighting equipment; (iii) second health club; and (iv) second swimming pool, but did not cover the finding relating to the liability of the opposite party to provide furnished space for a club house in the basement of Eden Tower (relatable to relief no.6 of the complaint). However, the affidavit covered the claim of the complainant for maintenance charges, though the local Commissioner had nothing to do with the same. 22. The Commissioner appointed by the National Commission was an architect by name Amit Bahl. When he carried out the inspection, 4 persons representing the opposite party, which included the advocate of the opposite party and the deponent to the affidavit of objections were present. The architect examined each one of the items and not only found that they were not operational on date but also found, (i) that the equipment for the water softening plant was incomplete, ineffective and inadequate; (ii) that the firefighting equipments were not in operation due to incomplete commissioning of the system as a whole and that even the fire safety certificate dated 05.11.2001 noted down the same; (iii) that while the first health club in the basement of the Tower Blue Heaven2 was fully furnished and functional, the second health club was not adequately furnished though the civil works are complete; (iv) that the second swimming pool was not complete and operational, as the filtration plant was non functional and the pump was removed after installation and that even the change rooms and showers have not been provided for; and (v) that in so far as the club house in the basement of Eden tower is concerned it was kept under lock and key by the opposite party and found to have been used as a store for keeping various building materials. 23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003. 24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned. 25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to noncommissioning or incomplete commissioning. 26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats. 27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed. 28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008. 29. The costs estimated by the local Commissioner in his Report dated 08.07.2008 are as follows : 1 Water softening plant Rs. 20,29,962 . 2 Fire fighting equipment Rs. 83,00,000 . 3 Second health club Rs. 7,60,000 . 4 Second swimming pool Rs. 2,70,000 . 5 Furnishing the club house in Eden Rs. 2,75,000 . Tower Total Rs.1,16,34,962 30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/ within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court. 31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioner’s Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden. 32. Therefore, taking into account the overall picture, we are of the considered view that interests of justice will be met if the order of the National Commission is modified in such a manner (i) that the complainant Association shall receive in full and final settlement, the deposit now lying in the Registry of this court, towards adequate compensation for the reliefs that they are held entitled to by the National Commission; and (ii) that the opposite party is directed to remove all building material stored in the club house in the basement of Tower Eden and hand over possession of the club house to the complainant. 33. Now coming to the appeal CA No.4085 of 2010 filed by the complainant against the refusal of the reliefs in prayer clause nos.1, 7, 8, 9 and 10, we think that the National Commission was justified in rejecting those reliefs. The claim for monthly maintenance charges for the unsold flats, amounting to Rs.9,05,810/ sought as per prayer clause no.1, was made by the complainant on the basis of clause 10 of the Agreement dated 15.11.2003 which reads as follows: “10. The FIRST PARTY agrees to pay to the SECOND PARTY the monthly maintenance charges @ 50 paise per square feet for the unsold flats w.e.f. 16.11.2003. FIRST PARTY shall make the advance payment for 6 months within 7 days of signing of the agreement. Subsequently these charges will be paid yearly in advance.” 34. The averments relating to the relief claimed at prayer clause no.1 are found in paragraph 16 of the complaint which reads as follows: “16. That the amount of such advance payment upto 31.12.2006 is Rs.619568/ approx. an advance for the year 2007 comes to Rs.286242/. Thus the OP has to make the total payment amounting to Rs. 905810/ approx. with interest @ 24% for the delayed period for which OP had agreed vide agreement dated 15.11.2003 Clause No.6 last two lines.” 35. Though the National Commission did not deal with the relief claimed at prayer clause No.1 in sufficient detail and the National Commission did not also provide cogent reasons for rejecting the relief, we find that the complainant may not be entitled to the said relief. There are two reasons as to why we say so. The first reason is that the complainant did not provide detailed calculations about the plinth area of the unsold flats, the period during which they remained unsold and the manner in which the amount indicated in para 16 of the complaint was arrived at. In any case the payments were to be made under clause 10 of the agreement, first within seven days of the agreement in respect of the advance payment for six months and thereafter by way of annual payments in advance. Therefore, a major portion of the claim for money was obviously barred by limitation when the complaint was filed. Moreover, the opposite party raised a dispute about the quantum and asserted in para 16 of their reply before the National Commission that what was due was only Rs.232750/. Thus, the question became a disputed question of fact on which both parties did not lead sufficient evidence. Therefore, the rejection of the claim at prayer clause No.1 was legally correct. 36. The relief claimed at prayer clause no.8 is to direct the opposite party not to sell or rent out the unsold flats till the facilities mentioned in prayer clause nos.2 to 6 are provided. By its very nature, this relief is in the nature of an interim relief and, hence, was rightly rejected by the National Commission in the final judgment. 37. The relief claimed in prayer clause no.9 relates to stilt and open car parking. There was no evidence before the National Commission to grant such a relief and, hence, the refusal to grant the relief mentioned in prayer clause no.9 is in order. 38. The claim for costs and damages for harassment, mental torture, agony etc., made in prayer clause no.10 was not granted by the National Commission, and rightly so, in view of the fact that after handing over the common amenities under the Agreement dated 15.11.2003, the opposite party continued to carry out at least some works. This is why the complaint was lodged in 2007. Therefore, we find no reason to grant the relief prayed for in prayer clause no.10. 39. That leaves us with the relief claimed in prayer clause no.7. This was for a direction to the opposite party to vacate the tenant occupying the terrace of Tower Eden. According to the complainant, the terrace of Tower Eden was let out by the opposite party to a company, leaving the residents of Tower Eden without a terrace for common use. But the relief of eviction involves a third party and hence the National commission rightly left it to the complainant to pursue the remedy in an appropriate Forum. 40. Thus, we find that the refusal of the National Commission to grant the reliefs mentioned in prayer clause nos.1, 7, 8, 9 and 10 warrant no interference. Therefore, the appeal of the complainant in CA No.4085 of 2010 is liable to be dismissed. 41. Accordingly the appeal of the consumercomplainant in C.A. No. 4085 of 2010 is dismissed. The appeal of the builderopposite party in C.A. No. 2998 of 2010 is partly allowed, modifying and substituting the judgment of the National Consumer Disputes Redressal Commission dated 05.01.2010 in Consumer Complaint No. 9 of 2007, to the following effect: The complainant shall be entitled to all told monetary compensation in a sum of Rs. 60 lakhs, now lying in deposit with the Registry of this court, together with the interest accrued thereon, in lieu of the reliefs sought in prayer clauses 2, 3, 4, 5 and 6 of the complaint. The opposite party shall, within two weeks, remove all building material stored by them in the club house in the basement of Tower Eden and hand over possession of the club house to the complainant. The complaint shall stand dismissed in all other respects. No costs. 42. The parties are to bear their respective costs in these appeals. The Registry shall liquidate the fixed deposit standing to the credit of the above appeal and make payment of the proceeds to the complainant namely, Royal Garden Residents welfare Association. All interlocutory applications if any are closed. ...................................J. (Hemant Gupta) ...................................J. (V. Ramasubramanian) New Delhi September 28, 2021


PETITIONER: PARMAR KANAKSINH BHAGWANSINH (DEAD) BY L.R'S. Vs. RESPONDENT: 1. MAKWANA SHANABHAI BHIKHABHAI & 2. MAKWANA PRABATBHAI DATE OF JUDGMENT08/12/1994 BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) SAHAI, R.M. (J) CITATION: 1995 SCC (2) 501 JT 1995 (1) 103 1994 SCALE (5)169 ACT: HEADNOTE: JUDGMENT: VENKATACHALA, J.: 1. This civil appeal by special leave is directed against the Judgment and Decree dated 29th November, 1977 rendered by a single Judge of the Gujarat High Court in Second Appeal No. 348 of 1973, which arose out of Regular Civil Suit No. 921 of 1966 filed in the Court of Joint Civil Judge, Baroda (Civil Court) by the appellant herein as plaintiff against respondents 1 and 2 herein - defendants 1 and 2 for redemption of suit properties which were mortgaged as security for certain monies borrowed by the plaintiff from defendant-l under two deeds of mortgage executed in the year 2. Plaintiff filed the suit for redemption of the said mortgages in the year 1966. Defendant-2, brother of defendantI had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. That suit was resisted by the defendants, each of them having filed separate written statements which in sub- stance did not differ from each other. The defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. It was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant-1 by receiving a sum of Rs.4,400/- as consideration for the sale. Even if the sale of said properties in favour of defendant-l, it was asserted therein, was not proved, they continued to be tenants of the said properties on the date of suit as they were tenants even before the date of coming into existence of the mortgages. The issue relating to their claim that they were tenants of the said properties - the agricultural lands, as urged therein, had to be referred by the Civil Court to the Mamlatdar under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 - "the BT&AL Act" for recording his finding thereon and the suit had to be stayed pending receipt of the finding thereon so that the suit may be finally disposed of on the basis of such finding. The Civil Court notwithstanding the defence of the defendants taken in their written statements that the suit had to be stayed for obtaining the finding on their claim of tenancy under the BT&AL Act, framed the issues in the suit on the basis of the pleadings of the parties and after trial .recorded its findings thereon. Such findings were firstly, that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly, that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly, that the mortgages of the suit properties were mortgages by 'conditional sale. On the basis of findings so recorded by the Civil. Court, it also made a preliminary decree in favour of the plaintiff for redemption of the suit properties. Though the defendants filed an appeal in the Court of the District Judge, Baroda against the said preliminary decree that appeal came to be dismissed on August 17, 1972 affirming the judgment and decree of the Civil Court. 3. However, the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the High Court of Gujarat. A learned single Judge of the High Court, who heard the second appeal, while upheld the concurrent findings of the courts below that the deeds of mortgage executed by the plaintiff in respect of the suit properties in favour of defendant-l were mortgages by conditional sale and the defendants had failed to prove that there was sale of the suit properties in their favour subsequent to the coming into existence of the said mortgages, found that the defendants had raised in their written statements the plea that they were tenants not only prior to the date of suit but also at the time of the filing of the suit and having regard to that plea the suit ought to have been stayed by the Civil Court and the issue of tenancy should have been referred to the Mamlatdar for obtaining a finding from him thereon both under section 85-A of the BT&AL Act as it stood before its amendment at the time of filing of the suit and as it stood after its amendment after the filing of the suit. Consequently, the learned single Judge set aside the judgments and decrees of the trial court and the appellate court relating to the issue of tenancy raised by the defendants in the suit and remanded the case to the Civil Court (trial court) directing it to refer the issue of such tenancy to the Mamlatdar, Baroda for his determination and to stay all further proceedings in the suit till he got the finding from the Mamlatdar on that tenancy issue and thereafter to proceed to dispose of that suit in the light of that finding and the other findings recorded by the appellate court (District Judge). It is the Judgment and Order of the learned single Judge of the High Court by which he allowed the Second Appeal and remanded the suit, which is appealed against in this Civil Appeal of the plaintiff as is stated at the outset. 4. No controversy is raised in this appeal as regards the findings of the Civil Court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale. Specific case pleaded by the plaintiff in the plaint as regards possession of the suit properties held by tenants was that their possession which was with the plaintiff was given to defendant-l on the execution of the deeds of mortgage by conditional sale in his favour. In any event, it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale executed in his favour. 5. However, the arguments addressed before us on behalf of the plaintiff- appellant in support of the appeal by learned Senior Counsel Mr. S.K. Dholakia were these: That defendant-l - respondent-l although was in possession of the suit properties - agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease-hold rights of defendant-l in suit properties when he obtained those properties as mortgage security under the said mortgages and as a consequence he became a mortgagee in possession of those properties. According 10 him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the BT&AL Act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the Civil Court in the suit before it did not arise at all nor was it necessary to refer such issue to the Mamlatdar under section 85-A of the BT&AL Act and stay the suit till receipt of the finding on such issue as was directed by the High Court in its judgment under appeal. In support thereof, he sought to place reliance on the decisions of this Court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malaga and Others [AIR 1976 SC 1565] and Gambangi Appalaswamy Naldu and Others v. Behara Venkataramanayya Patro [AIR 1984- SC 1728]. Even otherwise. it was argued by him that the Civil Court before whom the plaintiff had filed the suit for redemption of the suit properties could not have driven the plaintiff to the forum of Mamlatdar merely because the defendants had raised the plea that they were tenants of the suit properties - agricultural lands. According to him when the plaintiff had not admitted that the defendants were tenants of the suit properties, it was not open to the defendants to force the plaintiff who had a right to choose his forum to file a suit to go before another forum on the plea that jurisdiction lay before another forum, that is, Mamlatdar. In this regard support was sought from the decision of this Court in Raizada Topandas and Another v. M/s. Gorakhram Gokalchand [AIR 1964 SC 1348]. He, therefore, urged that the High Court was not justified in upsetting the concurrent finding of the trial court and the appellate court that the defendants failed to prove their tenancy and remanding the case to the trial court directing it to refer the issue of tenancy to the Mamlatdar and stay the suit till the receipt of the finding in that regard from the Mamlatdar and then dispose of the suit. Hence, the Judgment and Order of the High Court, according to him, was liable to be interfered with and set aside. 6. However, learned counsel appearing for the defendants - respondents sought to refute the arguments advanced on half of the plaintiff- appellant. 7. Questions which arise for our consideration and decision in the light of the aforesaid arguments of learned counsel for the contesting parties admit of their formulations thus: (1). Does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to the tenant (lessee) as a mortgage security under a mortgage by conditional sale, as would debar the tenant from desisting the suit of the landlord - mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage ? (2). When a plea of tenancy is raised with regard to suit property, an agricultural land, by a defendant who claims to be a tenant of such property under the BT&AL Act and seeks a reference of that issue by the Civil Court to the Mamlatdar under that Act for obtaining a finding thereon, can the Civil Court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon ? As the said questions could be dealt with appropriately with reference to the statutory provisions which bear upon them, it would be convenient to advert to such statutory provisions here. The Transfer of Property Act, 1882 (TP Act) "111. A lease of immoveable property determines - (a) .... (b) .... (c) .... (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right ..... " Bombay Tenancy and Agricultural Lands Act,1948 (BT&AL Act) "2. In this Act, unless there is anything repugnant in the subject or context, (18) 'tenant' means a person who holds land on lease and include - (a) a person who is deemed to be tenant trader section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent tenant; and the word 'landlord' shall be construed accordingly." "4. A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not - (a) a member of the owner's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession." "70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar - (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) to decide such other matters as may be referred to him by or under this "85. (1). No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. (2). No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Section 85A, as it stood before the amendment of this Act by Gujarat Act No.5 of 1973 w.e.f. 3rd March, 1973: "85A. (1). If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2). On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto .... " Section 85A, as it came into force after it was amended by Gujarat Act No.5 of 1973 w.e.f 3rd March, 1973 :- "85A. (i) If any suit instituted, whether before or after the specified date, in any Civil' Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues. under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. ' ' 9. We shall now proceed to deal with the aforesaid questions. Question (1): 10. Interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right because of section 11 l(d) of the T.P. Act. What is enunciated in section 111 (d) of the T.P. Act cannot be doubted is the doctrine of merger. Merger takes place when a lesser estate is merged or drowned in a greater estate. Lease- hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate, the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion, i.e., the landlord's (lessor's) right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease-hold sells the whole of it to the tenant (lessee). But, in view of the arguments advanced on behalf of the plaintiff- appellant, what has to be seen is if the landlord of a property, the lease-hold of which is already with the tenant, gives that very property as mortgage security to the tenant (lessee) by executing a mortgage by a conditional sale for the amount borrowed by him from the latter, does merger of lease-hold right in that mortgage security occur. When the landlord mortgages the lease-hold property of the tenant to the tenant himself, he does not part with the right of reversion which he has in respect of that property. If that be so, merger of lease-hold estate in reversion cannot arise, inasmuch as, there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property, for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. Moreover, if a lessee of a property takes a mortgage of the sum property from the landlord, it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the Gujarat High Court in Patel Atmaram Nathudas v. Babubhai Keshavlal, AIR 1975 Guj. 120. 11. In the present case, as has already been pointed out by us, the plaintiff- appellant did not claim that the defendants or any of them were in possession of the suit properties as tenants and there was a surrender by them of the possession either expressly or impliedly as would make the Court to come to the conclusion that the possession of the suit properties with the defendants was surrendered by them pursuant to the mortgage by conditional sale executed in their favour. If that be the position, there can be no bar for the defendants to claim the right to continue in possession of the suit properties as tenants under the BT&AL Act even if the plaintiff could obtain a decree for redemption of the suit properties, which relief was sought in the suit. The decision of this Court in Shah Mathuradas case (supra) and G. Appalaswamy case (supra) sought to be relied upon by learned counsel for the appellant - plaintiff in support of his arguments that there was a merger of the leasehold right of the tenant in the suit properties when he took mortgages of those properties from the landlord as would deny him the right to continue in possession of those properties as a tenant, instead of supporting his argument would go against it, as we shall presently point out. Shah Mathuradas case (supra) was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant. It was agreed under the terms of the mortgage deed that no interest need be paid by the respondent since the premises, the possession of which was given to the tenant pursuant to the mortgage was to be enjoyed in lieu of interest payable on the mortgage. When suit for redemption of the premises was filed by the respondent the appellant claimed, that after redemption, he was entitled to remain in possession of the premises because of the subsistence of his previous tenancy right. This Court held that the mortgage deed established beyond doubt that there was no subsistence or continuation of lease in that there was delivery of possession by the tenant to the landlord immediately before the mortgage and redelivery of possession to the tenant of the premises made by the landlord was pursuant to the mortgage as a mortgagee and not as a tenant. Secondly, this Court held that the appellant was not entitled to retain after redemption possession of the mortgage-property by reason of his previous right to be in its possession as a tenant. In the present case as we have pointed out earlier, when no surrender of possession of the suit properties had taken place before the coming into existence of mortgages in favour of the lessor - mortgagor, when no redelivery of possession had been given pursuant to the mortgage to the-tenant, the decision under consideration can be of no assistance to the appellant. Since the following observations in the said case confirm the view we have taken on non-merger, they can be excerpted: "For a merger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of a lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Therefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other." 13. Coming to G. Appalaswamy case (supra) which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor (former lessor). This Court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. Dealing with the question of non-merger this Court approved the ratio of the decision in Shah Mathuradas (supra) thus: "In our view there can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property. It is well-settled that. for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease, the estate that is outstanding in the lessor is the reversion; in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor. Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person." 13. Hence, the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property, even if it is given .to him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. Question (2): 14. The argument which was strenuously advanced on behalf of the appellant - plaintiff was that in a suit for redemption filed by the mortgagor in a Civil Court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the BT&AL Act and under the provisions of that Act the issue of tenancy had to be referred by the Civil Court to the Mamlatdar for recording a finding thereon and the Civil Court can proceed to dispose 0 the suit only on the basis of the finding received from the Mamlatdar, the Civil Court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy, it would be permissible for the Civil Court to grant the decree for redemption sought by the plaintiff in the said suit. Support was sought for the argument from the decision of this Court in Topandas case (supra). 15. We find it difficult to accept the said argument and the aforesaid decision of this Court relied upon in support thereof can render no assistance. The only question which arose for decision in Topandas case (supra) was whether on a proper interpretation of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - "the Rents Control Act", the Court of Small Causes, Bombay had exclusive jurisdiction in dealing with the suit out of which the appeal had arisen. There, the respondent - a partnership firm was in possession as a tenant of a shop at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court (not the Court of Small Causes, Bombay) praying for a declaration that it was in lawful possession of the shop and the appellants had no right to enter into or remain in possession of the shop and for grant of an injunction restraining the appellants from interfering with the respondent's possession. The plaint averments were that appellant- 1 (defendant- 1) had appointed the respondent as his commission agent for the sale of the appellants' cloth in the shop in question. The agreement was to remain in force for a period of four years. Pursuant to the said agreement, the respondent had allowed the appellants, their family members, servants and agents to visit the shop only for the purpose of looking after the business of commission agency. The appellants, despite being asked not to visit the shop after the expiry of the period in the concerned agreement, they continued to visit the shop and were preventing the respondent from having access to its various articles such as stock-in-trade, books of account, furniture, fixtures etc. Thus according to the plaint, the appellants who .were merely licensees, had no right to enter into the shop after the expiry of the period of licence envisaged in the agreement. The defence of the appellants (defendants) in substance was that the agreement on which reliance was placed by the respondents in their suit was a sham agreement and that the appellants in reality were the tenants of the shop and the relationship between the respondents and appellants was that of the landlord and tenant. The further plea taken in the written statement by the appellants was that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. The appeal in this Court had arisen out of the finding recorded on that issue and in dealing with that matter this Court had. to consider the true effect of sub-section (1) of section 28 of the Rents Control Act to find whether it means that a defendant if raises a claim or question as to the existence of relationship of landlord and tenant between him and plaintiff the jurisdiction of the Civil Court is ousted even though the plaintiff pleaded that there is only exclusive jurisdiction to decide the case with the Court of Small Causes, Bombay. Dealing with the matter this Court referred. to the general principle which covers the question of jurisdiction at the inception of suits which was not disputed, thus: "The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If ... he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief ..... If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the. court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that having regard to the nature of the suit it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety." 16. By referring to the material portion of section 28 of the Rents Control Act the argument made on behalf of the appellants was found by this Court to be untenable by stating thus: "... We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S.28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant's plea, the plaint may have to be returned for presentation to the proper court for a second time ..... when one has regard to the provisions in Part II it seems reasonably clear that the exclusive jurisdiction conferred by S.28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties." 18. As seen from the above observations this Court has held that it did not think that the section concerned says or intends to say that the plea of the defendant will determine or change the forum. But, if the provisions of the BT&AL Act which bear on the question of matters to be decided by the Mamlatdar are seen, they give no room for one even to think that those matters could be decided by a Civil Court when a question is raised in that behalf even by a defendant in a suit. 19. Section 70 of the BT&AL Act to which we have adverted already imposes a duty on the Mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that Act. Further, section 85 of the BT&AL Act to which also we have already adverted, in unequivocal terms says that in deciding any issue which is required to be decided by the Mamlatdar under the BT&AL Act no Civil Court has jurisdiction to decide it. Furthermore, section 85A, as it stood prior to its amendment by Gujarat Amendment Act No.5 in the year 1973 and as stands thereafter, requires that if any suit instituted in Civil Court involves the question of tenancy of 'present' or 'past', as the case may be, the same being required to be decided or dealt with by an authority competent under the BT&AL Act, the Civil Court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. Thus, the provisions in the BT&AL Act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a Civil Court, the same could be decided by the Civil Court. Thus we are constrained to answer the question in the negative by agreeing with the view expressed by the single Judge of the High Court in this regard in his Judgment and Order under appeal. 20. Consequently, the Judgment and Order under appeal does not call for our interference. 21. In the result, we dismiss this appeal with costs.


Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO._______OF 2021 (Arising out of SLP (Crl) No. 6965 OF 2019) Surendra Kumar & Anr. APPELLANT(S) VERSUS State of U.P. RESPONDENT(S) J U D G M E N T Hrishikesh Roy, J. Leave granted. This appeal is the culmination of a tragedy which decimated two families in its course. The murder of a recently married young woman, where the finger of suspicion was raised towards her own husband, brother-in-law and even her father-in-law as an accused who met an unnatural demise during the pendency of the trial. This Court has been approached to lay to rest Signature Not Verified the litigation which has followed suit for more than Digitally signed by Jayant Kumar Arora Date: 2021.04.24 14:43:04 IST Reason: two decades. 2. Heard Mr. Shadan Farasat, learned counsel for the appellants. Also heard Mr. V. Diwakar, learned AAG representing the State of Uttar Pradesh. The challenge in this appeal is to the common judgment and order dated 12.3.2019 in Criminal Appeal No. 346 of 2009, whereby the Division Bench of the High Court of Judicature at Allahabad upheld the conviction of the appellant No. 1 under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and of the appellant No. 2, under section 120B IPC. 3. The appellants are brothers and are residents of Mahal Village in Meerut District. The appellant No. 2 Ramveer was married on 13.5.1993 to Kamla Rani, whose parental home was in the neighboring village of Phlawada. On 8.8.1993 Kamla Rani, after spending some days with her parents was returning back on the scooter driven by her brother in law Surendra Kumar (appellant No. 1). Some minutes after they started the journey, two armed miscreants on the road between Phlawada and Bathnor ambushed the scooter near the forested area and took Kamla Rani to the roadside sugarcane field of Quasim Ali and shot her from close range and robbed her of the gold and silver ornaments worn on her person. Surendra Kumar then rode the scooter to village Phlawada to inform Baldev, the father of Kamla Rani about the incident. The scooter was left behind with Kamla Rani’s father and Surendra then returned to his own village and informed his brother and other family members in the matrimonial home of the deceased, at Village Mahal. Both brothers accompanied by their father, thereafter rushed to the police station. Around the same time, Dhan Singh (PW-1) and Karamveer (PW-2), who were near the site of incident, after hearing the sound of firing went towards the field and they noticed two miscreants (not appellants), removing ornaments from the body of Kamla Rani. The PW1 and PW2 accosted the looters but showing arms, both looters fled from the scene. 4. The FIR of the incident (which took place around 4.45 pm) was filed at 5.30 pm by Baldev Singh (father of the deceased Kamla Rani) at the Phlawada Police Station. Meanwhile, the appellants and their father Om Prakash also reached the Police Station. Since, maltreatment of the deceased in the matrimonial home was alleged in the FIR, the appellants were detained in the police lock up and four days later, the police formally arrested all three, on charge of conspiracy and murder. In course of investigation, the police also arrested Rajveer and Shiv Kumar alias Pappu, suspecting them to be the two unknown robbers seen by PW1 and PW2, in the act of removing ornaments from the person of the deceased Kamla Rani. 5. The preliminary investigation was done by S.I Ramachandra Singh (PW5), who prepared the Panchnama (Exbt Ka-7) and sent the dead body for autopsy. Few jewellery items and the locked suitcase, found near the body were also seized by the PW-5. Next day i.e. 9.8.1993, the SHO Amrat Lal returned from leave and led the investigation. He seized the scooter from the residence of Baldev and the recovery memo of scooter (Exbt Ka-2) was prepared. 6. The autopsy of dead body of Kamla Rani was done by PW3 Dr. N.K Maheshwari on 9.08.1993 at 4.30 p.m. and he noted the following antemortem injuries on the body; 1 Firearm wounds of entry 2.0 cm X 2.5 cm on right side of neck blackening & tattooing 8.0 cm X 8.0 cm on upper side of wounds; 2 Firearm entry wound of 2.0 cm X 2.5 cm into muscle deep with blackening & tattooing around 2.0cm, mandible bone was also fractured. 3- Firearm wounds of exit 5.0 cm x 8.0 cm margin irregular at the left side of Upper face on external examination of dead body post mortem staining present on the back side rigour mortis was absent on upper side and present on lower side of the body. Dr. N.K Maheshwari in his report opined that the cause of death was hemorrhage & shock as a result of ante- mortem injury. 7. As stated earlier, the investigation unearthed the names of Shiv Kumar and Rajveer (both acquitted by the High Court). On completion of investigation, the chargesheet (Exbt Ka3) was filed by the I.O. against 5 accused. The case was committed and charge was framed by Sessions Court against Shivkumar and Rajveer u/s. 302/394 of IPC; against Om Prakash and Ramveer u/s. 120B IPC and against Surendra Kumar u/s. 302/34 of I.P.C. All five accused were tried together but Om Prakash died during trial and the case against him was abated. 8. While there was no direct evidence implicating the appellants in the crime, on the basis of circumstantial evidence of the husband being unhappy with Kamla Rani, the alleged conspiracy hatched by him with his brother and father Om Prakash and the fact that the deceased was last seen in the company of appellant Surendra in whose scooter she was travelling back from her parental home, and the suspicious conduct of the appellants, the Trial Court convicted the appellant No. 1 Surendra Kumar, under Section 302 read with Section 34 IPC and the appellant No. 2 Ramveer, under Section 120B IPC. Accused Shiv Kumar and Rajveer were additionally held guilty under Section 394 and an appropriate sentence was imposed against all four accused, by the learned Additional Sessions Judge, Meerut. 9. In the appeal filed by the brothers, High Court confirmed the conviction of the appellants but relief was granted in the connected criminal appeal filed by Rajveer and Shiv Kumar and they were acquitted. 10. The High Court while affirming the conviction, accepted the conspiracy theory of the prosecution for the murder of Kamla Rani. The Court also accepted the last seen together evidence against appellant Surendra Kumar. Noting the absence of credible explanation from Surendra, on the circumstances of the incident, the appeal of the brothers Surendra and Ramveer was dismissed by the High Court, leading to present challenge. 11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- “10…………It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused……………” 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- “17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.” 13. Proceeding with the above proposition of law, let us now examine whether the circumstances here satisfactorily prove that Kamla Rani was murdered because her husband had an issue with her appearance. The unhappiness of the appellant No. 2 with his wife is projected by the testimony of Santari (PW-6) and Nain Singh (PW-7) and similar thing is also mentioned in the FIR written by Nain Singh (PW-7) as, dictated by Baldev Singh, the father of the deceased. The reliability of the evidence of PW6 and PW7 is however to be tested in the backdrop of the fact that PW7 Nain Singh and Shravan Kumar (husband of PW-6) were charged with the murder of their deceased sister’s father-in- 3 (2020) 14 SCC 750 law i.e. Om Prakash alias Mallu. Both were named in the FIR 157 of 2000 registered under Section 302 and 506 of the IPC and were detained in jail in the year 2000. The testimony of PW-6 and PW-7 was recorded in Court, much after Shravan Kumar (husband of PW-6) and Nain Singh (PW-7) were released from jail. As such it cannot be ruled out that PW-6 and PW-7 had strong reason for implicating the appellants. Therefore, the motive attributed to the appellants in the evidence of PW-6 and PW-7, would fail the test of legal scrutiny in the absence of any corroborative evidence. 14. The appellant Ramveer was married with Kamla Rani and no criminal act is attributed to him. His conviction is entirely based on the theory that he hatched a conspiracy with his brother and father to eliminate Kamla Rani as he was unhappy with her looks. This appears to be far fetched because prosecution failed to adduce any evidence to prove the meeting of minds of the two brother or with the other two accused Shiv Kumar and Rajveer to eliminate Kamla Rani. The unhappiness attributed to the husband cannot reasonably implicate his brother Surendra Kumar or the two unrelated accused. In any event the additional charge against Shiv Kumar alias Pappu and Rajveer was under Section 394 IPC but no such charge of robbery is attributed to the present two appellants. Most significantly there is no common conspiracy theory connecting all the accused in the case. The prosecution as can be noted, failed to establish any criminal conspiracy between Surendra and Ramveer on one hand and the accused Shiv Kumar and Rajveer who additionally were charged with robbery, on the other hand. Therefore, the theory of common intention or meeting of mind between the appellants and the two acquitted accused Shiv Kumar and Rajveer, must be discarded as implausible. 15. In any case, even Ramveer’s dissatisfaction with his wife may not provide an acceptable and strong enough motive for the husband to conspire and kill Kamla Rani. This is pertinent since no role whatsoever is attributed to the husband by the evidence on record. Ramveer may or may not be having a cordial relation with the deceased but it can’t be said with certainty that killing her was the only option available to him to avoid the company of the deceased. 16. Equally telling is the testimony of PW1 and PW2 who heard gun shots and soon thereafter saw the two acquitted accused Shiv Kumar and Rajveer removing ornaments from the dead body of the deceased. The witnesses confronted and followed both robbers for some distance. They were present at the spot and saw part of the crime but they never implicated the brother-in-law, who was last seen with the deceased. However, the Court refused to give credence to their testimony by describing them as chance witnesses. The PW-1 and PW-2 as the only ones present near the place of occurrence, do not implicate the appellant No. 1 with the crime. The courts below however, discarded the evidence of these two key witnesses who heard firing and also saw a part of the crime, by treating them as chance witnesses. The presence of PW1 and PW2 near the place of occurrence was natural and their testimony on the sequence of crime at the place of occurrence was cogent and consistent. Both had not only seen the robbery but also confronted the robbers and followed them for a while. The Courts below in our view erred in not treating both as independent witnesses. Their testimony would be of value to show that the appellant Surendra Kumar had no connection with the two robbers and his innocence could then be inferred without much difficulty. 17. We may now examine the role and conduct of the appellant No. 1 Surendra Kumar who was escorting the deceased from her parental home on his scooter and is the last person seen in the company of the deceased. The Court below however has relied upon Section 106 of the Indian Evidence Act to connect him with the crime. This according to us was the incorrect approach inasmuch as the burden to prove the guilt is always on the prosecution and cannot be shifted to the accused by virtue of Section 106 of the Evidence Act. This proposition of law on criminal jurisprudence stood the test of time since Emperor Vs. Santa Singh4 where Din Mohammad J., observed as under:- “28. …………Section 106 of the Evidence Act, cannot be used to strengthen the evidence for the prosecution. The 4 AIR 1944 Lahore 339 (FB) prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does not shift on to the accused. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against any one or more of them or all of them……………….” In the present case, the prosecution failed to adduce acceptable evidence to prove the crime against the appellants and the Court according to us erred in shifting the burden of proving the innocence upon the accused, with the aid of Section 106 of the Evidence Act. 18. The next issue to be considered is whether there was any suspicious conduct of the appellant Surendra Kumar after the incident. Soon after the scooter was ambushed and Kamla Rani was shot dead, the appellant Surendra Kumar straight away rode the scooter to Phlawada village to inform Baldev, the father of the deceased. The post occurrence meeting between the deceased’s father Baldev and Surendra, can be gathered from the fact that in the FIR lodged within half an hour of the incident, Baldev had specifically mentioned about absence of injuries on Surendra. The question is whether failure of the brother-in-law to confront the armed attackers and not suffer any injury thereby, can be a circumstance to implicate him. The reaction of witnesses who see violent crime can vary from person to person and to expect a frightened witness to react in a particular manner would be wholly irrational. Equally dangerous would be the approach of the Courts to reach certain conclusion based on their understanding of how a person should react and to draw an adverse inference when the reaction is different from what the Court expected. Explaining the fallacy in such approach Chinnappa Reddy J speaking for the Bench in Rana Pratap and others vs. State of Haryana5 observed the following; “6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was 5 (1983) 3 SCC 327 unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.” Approving the above view, S.B. Sinha J., in Dinesh Borthakur Vs. State of Assam6 succinctly explained how guilt should not be inferred because of a particular type of reaction by an individual. The relevant parts are extracted below: - “47. No hard-and-fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing (sic inferring) his guilt.” 6 (2008) 5 SCC 697 The above pronouncements in our view rightly prescribe that there can be no uniform or universal reaction for a crime witness and inferences must not be drawn on Court’s assumption. 19. The fact that the appellant Surendra Kumar chose to first inform Baldev that his daughter was shot by miscreants instead of confronting the miscreants or informing the police, is not an unnatural reaction. Moreover, since Baldev on being informed had immediately registered the FIR at the Police Station, there was no occasion for either of the appellants to file a second FIR on the same crime. Therefore, the so called suspicious conduct after the incident, was wrongly inferred only because the appellant reacted in a particular manner. In the process, the Court failed to notice the vital fact that Baldev was informed of his daughter’s killing by appellant Surendra. This conduct of the appellant makes it equally plausible that Surendra was innocent and had decided to act prudently instead of showing courage to the armed criminals. 20. We may also note here that the scooter in which Kamla Rani was travelling, was a dowry gift by her father and the appellant Surendra after informing the father about the incident, left the scooter in his custody. Only then, Surendra rushed back to his own village to inform about the incident to his brother and father. Next day, the same scooter was recovered by the police from the residence of Baldev. This would corroborate that Baldev learnt of the crime from the appellant Surendra. If Surendra was actually involved in the crime, would he have straight away proceeded to the village of the deceased to inform her father of the incident. The appellant may not have confronted the robbers nor suffered any injury. But this by itself cannot in our view lead to an inference that it was he, who murdered Kamla Rani. 21. Another key link in the chain of circumstances to connect Surendra with the murder was the fact that he was the last person to be seen alive with Kamla Rani and his alleged unnatural conduct after the incident. On being confronted with the armed miscreants, Surendra perhaps was too intimidated to offer any fight or resistance. The accused did not try to do anything valiant at the place of occurrence and instead straight away drove down to inform the deceased’s father, at his village. With this information, Baldev managed to lodge the FIR. The police seized the scooter the next day from Baldev’s residence. The scooter was a dowry gift and following the death of the newly married Kamla Rani, Surendra might have considered it appropriate to entrust the scooter to the deceased’s father. The FIR and the scooter seizure memo (Exbt Ka-2) clearly show that Surendra did not run away as it has been assumed by the courts below. Confronted by the armed robbers, Surendra may not have counter attacked to invite injury upon himself but this by itself can’t be construed as suspicious conduct. Yet his post incident conduct was found to be suspicious enough by the courts below, to link him with the murder. In the present case, no criminal act is attributed to Surendra and conspiracy between him and the two armed miscreants is not shown. Therefore to link the appellant with the murder is nothing more than a matter of surmises and conjectures. In fact, the evidence on record is consistent with the statement given by Surendra under Section 313 of the CrPC where he stated that near the forest area of Bathnor village, two armed miscreants stopped the scooter and shot his bhabhi and looted away the jewellery from her person. The appellant immediately informed about the incident to the father of the deceased. Thereafter he has also informed Ramveer (husband of the deceased). Then Surendra, Ramveer and their father Om Prakash reached the police station with the Gram Pradhan. But appellant Surendra, Om Prakash and Ramveer were detained on suspicion by police. Reading the evidence in the case, we feel that Surendra’s explanation in his Section 313 statement is quite plausible but was not appropriately appreciated which has led to failure of justice against the accused. 22. Similarly for the husband Ramveer, there is no direct evidence to establish his role in the incident. As his conviction is entirely based on a conspiracy theory, it is essential to determine whether there was an agreement between the parties for doing an unlawful act and it must emerge clearly from evidence that there was meeting of mind towards a common goal between Ramveer and his brother and also between Ramveer and the two armed robbers. The case evidence on record does not however establish any such agreement between Ramveer and the other accused. Conspiracy is a matter of inference and inference must be based on solid evidence. In case of any doubt the benefit must inevitably go to the accused. The 2nd appellant’s conviction simply because of his dislike for the deceased, even if accepted to be correct, would not in our opinion be justified in the absence of any evidence either direct or of conspiracy, to link him with the crime. 23. The conspiracy theory to kill Kamla Rani, only because she was not liked by her husband is far too improbable to accept since the prosecution failed to present any evidence to show meeting of minds and common intention of all accused. Ramveer may not have been happy with his wife but this by itself does not establish that he hatched a conspiracy with his brother Surendra and his father Om Prakash (who died during trial), to kill Kamla Rani. The simple fact of being unhappy with a person even if accepted, do not provide a strong enough motive to hatch a conspiracy to eliminate the person. But this aspect was ignored by the Court below to attribute motive for the murder. In our assessment the motive element in the chain of circumstances is not acceptable and the benefit of the broken link must be made available to the appellants. 24. In view of the foregoing, we are of the considered opinion that there are several missing components in the chain of circumstantial evidence and the High Court misdirected itself in finding support for conviction on such unclinching evidence. The innocence of the appellants is a distinct possibility in the present matter and when two views are possible the benefit must go to the accused. The impugned judgment is accordingly set aside with direction for immediate release of both appellants. It is ordered accordingly. 25. The appeal stands allowed with the above order. ………………………………………………………J. [ROHINTON FALI NARIMAN] ………………………………………………………J. B.R. GAVAI] ………………………………………………………J. HRISHIKESH ROY] NEW DELHI APRIL 20, 2021