judgement:
N: Criminal Appeal No. 325 of 1987.
From the Judgment and Order dated 9.11.1984 of the Punjab and Haryana High Court in Crl.
Appeal No. 132 SB of 1984.
Amita Gupta and R.S. Suri for the Appellant.
R.L. Kohli, R.C. Kohli, G.S. Rao and Ms. C. Markandeya for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Mohinder Kaur set herself and her three children ablaze on the afternoon of 7th June, 1983, at the residence of her husband Iqbal Singh.
The marriage had taken place seven or eight years before the incident.
She had given birth to two daughters and a son.
The deceased was working as a teacher while her husband was a clerk in the Punjab State Electricity Board office at Amritsar.
Soon after the marriage there were disputes between them on the question of dowry.
The demand for extra dowry strained the relations between them and the husband began to ill treat the deceased wife.
It appears that in course of time there was further deterioration in their relationship as a result whereof the deceased had written a letter to the Deputy Superintendent of Police on 12th October, 1977 complaining about the ill treatment meted out to her and apprehending danger to her life and the life of her children.
She therefore, sought police protection.
However, by the time the police came to inquire into the matter there was some understanding as a result of which has had informed the police that no further action be taken for the present but her application may be kept pending.
Then on 31st December, 1977 a divorce deed Exh. D 2 was executed but was not acted upon.
It seems that the situation did not improve and as a result she took the extreme step of putting an end to her life as well as the lives of her three children since she apprehended that their fate would be worse after her death.
However, before putting an end to her life she wrote a letter that very morning which has been reproduced in extenso in paragraph 13 of the judgment of the trial court.
The text of that letter dated 7th June, 1983 794 addressed to the Deputy Commissioner of Police, Public Dealing Branch, Amritsar, shows that her husband was demanding Rs.35,000 to Rs.40,000 by way of additional dowry and was ill treating her under the influence of alcohol on that account.
She also alleged that her mother in law and sister in law also conspired and made false accusations against her and instigated her husband to beat her if she refused to bring the additional dowry.
She alleges that they had conspired to kill her on the night of 6th June, 1983 by sprinkling kerosene/petrol on her but their plan misfired.
She was fed up on account of the beating given to her that night.
She further alleged that her children were also ill treated by her husband and his family members.
On account of these developments she had taken the decision to put an end her life and the lives of her children to spare them of the present and future agony.
At the foot of the letter she appended a note to the effect that even after their death she apprehended that her husband and his family members may try to cause physical harm to her mother and younger brother and requested the police to extend to them the necessary protection.
She implores that her salary, G.P. Fund and other monetary benefits to which she may be entitled from the school authorities should not fall in the hands of her husband and his relatives and may be given to some school or orphanage and her ornaments, etc.
may be recovered from her in laws and be returned to her parents.
Another letter of even date was addressed to her mother (her father having since died) stating that she was fed up of the continuous tension, suffering and agony that her mother had to go through on her account as she could not meet the demand for extra dowry.
She also states that apart from her husband demanding extra dowry he has started making false accusations against her and beating her time and again on that account.
She further alleges that her husband 's mother and sister were privy to this beating by her husband but she had somehow survived.
Then she adds `today I alongwith three children am sacrificing by fire '.
She ends the letter by stating that her mother need not think that her daughter was dead, in fact she will gain freedom from seven years of hell.
In the letter addressed to the Deputy Commissioner of Police there is reference to the earlier application/letter dated 12th October, 1977 by which she had complained about possible risk to life.
It appears from the said letter that the police had gone to inquire into the matter two months later on 11th December, 1977 but during that intervening period the relatives of her husband had intervened and had temporarily patched up the matter.
It was for that reason that she informed the police that no action was immediately necessary but still she insisted that her application may be kept pending, Thus this subsequent letter contains intrinsic evidence about her 795 previous application dated 12th October, 1977.
After the unfortunate incident which took place on the afternoon of 7th June, 1983 a First Information Report was lodged against the husband Iqbal Singh, by the mother of the deceased.
After investigation the husband, his mother and sister were put up for trial.
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306, IPC and sentenced the husband Iqbal Singh to rigorous imprisonment for seven years and a fine of Rs.5,000, in default, rigorous imprisonment for one year.
So far as the other two accused were concerned, having regard to their role and the fact that the mother was an aged and frail woman, he sentenced them to rigorous imprisonment for three years and a fine of Rs.1,000 each, in default, rigorous imprisonment for three months.
Against this order of conviction and sentence all the three accused persons preferred an appeal before the High Court.
The High Court on a reappreciation of the evidence and having regard to the language of Section 306, IPC came to the conclusion that the prosecution evidence did not establish the ingredients of the section, in that, there was no evidence to show that any of the accused was guilty of abetment.
In this view that the High Court took, it allowed the appeal and set aside the order of conviction and sentence passed against the appellants.
The State has, therefore, approached this Court by way of special leave.
In the meantime the accused Manjit Kaur has passed away.
The appeal is, therefore, limited to Iqbal Singh and his sister Kulwant Kaur.
Counsel for the State of Punjab took us through the evidence on record, particularly the letters dated 7th June, 1983 and submitted that this was a clear case of the husband and his sister creating conditions which compelled the deceased to take the extreme step of burning herself and her children.
The evidence of Dr. Harjinder Singh who performed autopsy has not been disputed before us.
His evidence shows that the deaths of all had resulted on account of shock sustained due to excessive burns.
PW 2 Jasbir Kaur, the mother of the deceased, says that her daughter complained to her from time to time about the ill treatment meted out to her by her husband on his own and at the instigation of his mother and sister.
She has also stated that this ill treatment was due to failure of the deceased to meet his demand for extra dowry.
She received a message about the incident while she was at her brother 's residence in amritsar.
She and her son went to the hospital and learnt that her daughter and grand children had passed 795 previous application dated 12th October, 1977.
After the unfortunate incident which took place on the afternoon of 7th June, 1983 a First Information Report was lodged against the husband Iqbal Singh, by the mother of the deceased.
After investigation the husband, his mother and sister were put up for trial.
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306, IPC and sentenced the husband Iqbal Singh to rigorous imprisonment for seven years and a fine of Rs. 5,000, in default, rigorous imprisonment for one year.
So far as the other two accused were concerned, having regard to their role and the fact that the mother was an aged and frail woman, he sentenced them to rigorous imprisonment for three years and a fine of Rs.1,000 each, in default, rigorous imprisonment for three months.
Again this order of conviction and sentence all the three accused persons preferred an appeal before the High Court.
The High Court on a reappreciation of the evidence and having regard to the language of Section 306, IPC came to the conclusion that the prosecution evidence did not establish the ingredients of the section, in that, there was no evidence to show that any of the accused was guilty of abetment.
In this view that the High Court took, it allowed the appeal and set aside the order of conviction and sentence passed against the appellants.
The State has, therefore, approached this Court by way of special leave.
In the meantime the accused manjit Kaur has passed away.
The appeal is, therefore, limited to Iqbal singh and his sister Kulwant Kaur.
Counsel for the State of Punjab took us through the evidence on record, particularly the letters dated 7th June, 1983 and submitted that this was a clear case of the husband and his sister creating conditions which compelled the deceased to take the extreme step of burning herself and her children.
The evidence of Dr. Harjinder Singh who performed autopsy has not been disputed before us.
His evidence shows that the deaths of all had resulted on account of shock sustained due to excessive burns.
PW 2 Jasbir Kaur, the mother of the deceased, says that her daughter complained to her from time to time about the ill treatment meted out to her by her husband on his own and at the instigation of his mother and sister.
She has also stated that this ill treatment was due to failure of the deceased to meet his demand for extra dowry.
She received a message about the incident while she was at her brother 's residence in Amritsar.
She and her son went to the hospital and learnt that her daughter and grand children had passed 796 away.
She then deposed to have received a letter of 7th June, 1983 on 9th June, 1983.
In her cross examination it was brought out that she had not pointed an accusing finger at the mother and sister of accused Iqbal Singh.
She tried to explain the absence of allegation against the said two persons on the ground that she was confused on account of the tragedy.
She further deposed that she had omitted the names of two ladies because of pressure exerted on her by Iqbal singh.
Obviously her explanation cannot carry conviction because it is difficult to believe that she would submit to the pressure of Iqbal Singh whom she considered primarily responsible for the death of her daughter and grand children.
It may also be mentioned at this stage accused Kulwant Kaur is a married women who lives with her husband in another village.
There is no evidence on record to show that she was at the residence of her brother on the date of the incident or immediately prior thereto to instigate her brother.
PW Santosh Singh, brother of the deceased, has maintained that accused Iqbal Singh was ill treating his sister soon after marriage as the latter was not able to meet his demand for extra dowry.
He further deposed that after the death of his father his mother had received a sum of Rs.60,000 or thereabouts by way of provident fund and gratuity and when the accuse Iqbal Singh learnt about the same he pressurised the deceased to secure a sum of Rs.40,000 or thereabouts from that amount to meet his demand for extra dowry.
He had gone with his mother PW 2 Jasbir Kaur to the hospital after learning about the incident.
In cross examination he was questioned about the purchase of a plot in the name of the deceased by Iqbal Singh.
He, however, stated that his father had given a sum Rs.20,000 or 21,000 for purchase of this plot although he could not state the exact price at which it was purchased.
The two letters, one addressed to the Deputy Commissioner of Police and the other to the mother dated 7th June 1983, have been duly proved by the prosecution.
These letters were written immediately before she put an end to her life and the lives of her three children.
These letters reveal her plight immediately before the incident.
There is a mention about an attempt on the part of her husband to kill her on the preceding day.
She apprehended that her children would suffer intolerable miseries if they survived her and, therefore, she took the extreme decision to put an end to their lives also along with her.
This letter clearly brings out her turmoil whereunder she took the extreme step of putting an end to her life.
The earlier letter of 12th October, 1977 also shows that she was being ill treated soon after her marriage.
The divorce deed produced at Exh.
D 2 is dated 30th November, 1977.
This would show that by that time the relatives had intervened and, therefore, when the police came to inquire on 11th December, 1977 she told them that 797 there was no immediate danger but her application should be kept pending.
Considerable emphasis was laid by the learned counsel for the respondents on the statement in Exh.
D 2 attributed to the deceased that she had been forced to marry Iqbal Singh.
Emphasis was also laid on the post script at the foot of the said document made by Iqbal Singh to the effect that he has agreed to a divorce since his wife desires it.
From these two statements counsel for the respondents argued that the accused Iqbal Singh had no grudge against his wife and had expressed his willingness to put an end to the marital relationship as his wife so desired.
He also submitted that the statement of the deceased that she was forced to marry Iqbal Singh went to show that it was she who was keen to put an end to the relationship as she did not desire to live with Iqbal Singh.
But counsel overlooks the fact that there is intrinsic evidence inthe divorce deed that their marital life was unhappy and she apprehended blood shed as well as harm to the children even after they parted company.
Counsel then referred to letter Exh.
D 1 April, 1983 written by the deceased to one Gopal Singh complaining about the behaviour of the Headmaster towards her.
By that letter she expressed her desire to secure a transfer from the school to get rid of the harassment meted out to her by the Headmaster.
In this letter there is a mention that her husband Iqbal Singh was spending considerable time in correspondable time in correspondence with the Headmaster.
From this letter counsel for the respondents submitted that the deceased could have committed suicide on account of the harassment caused to her by the Headmaster of the school.
But that does not explain the killing of the children.
This letter was written on 17th April, 1983 whereas the incident in question occurred on 7th June, 1983 i.e. more than 1 1/2 months thereafter.
The immediate cause for the extreme step taken by the deceased is clearly reflected in the two letters of 7th June, 1983.
Therefore, the inference drawn by the learned counsel for the respondents from the letter of 17th Aril, 1983 cannot advance the defence set up by the accused persons.
Iqbal Singh filed a written statement jointly with Kulwant Kaur wherein he stated that he had not helped his wife to secure a transfer as the family was having a good residence in the village and this was the real cause of quarrel between the two.
The statement shows that the factum of quarrel between the husband and wife is not seriously disputed.
The nature of correspondence he was carrying on with the Headmaster is not difficult to judge.
He then states that he had purchased the plot in the name of his wife for Rs. 12,500 but he does not disclose the source from which the consideration for the plot came.
He further states that his wife was earning Rs.900 per month and, therefore, he could never have entertained an intention to push her to committing suicide.
It 798 would, therefore, appear from the evidence placed on record that the relations between the deceased and Iqbal Singh were strained because of the latter 's demand for extra dowry and they worsened to such an extent that the deceased decided to put an end to her life.
The charge against the accused was under section 306, I.P.C.
That section must be read in the backdrop of the above facts.
Underthat section if any person commits suicide the person who abets the commission of suicide shall be liable to be punished with imprisonment of either description for a term which may extend to ten years and fine.
The question is whether on the facts proved it can be said that either Iqbal Singh or his sister were guilty of abetment.
Chapter V of the Penal Code is entitled `Of Abetment ' and comprises sections 107 to 120 of which we may notice sections 107 and 108 only.
`Abetment ' as defined by section 107 comprises (i) instigation to do that thing which is an offense (ii) engaging in any conspiracy for the doing of that thing and (iii) intentionally aiding by any act or illegal omission the doing of that thing.
Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence.
The word `instigate ' in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc.
Since there is no question of parties being engaged in any sort of conspiracy we have to consider whether there was any intentional aiding for committing suicide.
The dictionary meaning of the word aid is to give assistance, help, etc.
Before we come to grips with the question at issue it is necessary to notice a few legislative changes introduced in the Penal Code to combat the menance of dowry deaths.
The increasing number of such deaths was a matter of serious concern to our law makers.
Cases of cruelty by the husband and his relatives culminated in the wife being driven to commit suicide or being done to death by burning or in any other manner.
In order to combat this menance the legislature decided to amend the Penal Code, Criminal Procedure Code and the Evidence Act by the Criminal Law (Section Amendment) Act, 1983 (No, 46 of 1983).
So far as the Penal Code is concerned, Section 498A came to be introduced whereunder `cruelty ' by th husband or his relative to the former 's wife is made a penal offence punishable with imprisonment for a term which may extend to three years and fine.
The explanation to the section defines `cruelty ' to mean (i) wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health or (ii) causing harassment of the woman with a view to coercing her or any person 799 related to her to meet any unlawful demand for any property or valuable security.
Thus, under this newly added provision if a woman is subjected to cruelty by her husband or his relative it is a penal offence and by the insertion of section 198A in the Code of Criminal Procedure a Court can take cognizance of the offence upon a police report or upon a complaint by the aggrieved party or by the woman 's parents, brother, sister, etc.
The offence is made non bailable.
In so far as the Evidence Act is concerned, a new section 113A came to be introduced which reads as under: "113A. Presumption as to abetment of suicide by a married woman.
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation For the purposes of this section, `cruelty ' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).
" On a plain reading of this provision it is obvious that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative, it would be permissible for the court to presume that such suicide was abetted by her husband or by such relative of her husband.
The Amendment Act 46 of 1983 received the assent of the President on 25th December, 1983 and was published in the Gazette of India, dated 26th December, 1983.
The trial court rendered its Judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on section 113A, Evidence Act, for otherwise it would have tried to place on record the exact date of marriage to take advantage of the presumption arising thereunder.
The High Court referred to this provision but did not say anything in regard to its application.
Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid.
Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point.
800 The law underwent a further change with the introduction of section 304B in the Penal Code and section 113B in the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986.
Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry death under section 304B for which the punishment extends to imprisonment for life but not less than imprisonment for seven years.
By section 113B, Evidence Act, the court has to raise a presumption of dowry death if the same has taken place within seven ears of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment.
The legislative intent is clear: to curb the menance of dowry deaths, etc., with a firm hand.
We must keep in mind this legislative intent.
It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get.
That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage.
This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life.
It a married woman is subjected to cruelty or harassment by her husband or his family members section 498A, I.P.C. would be attracted.
If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304B, I.P.C.
When the question at issue is whether a person is guilty of dowry death of a woman and and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, section 113B, Evidence Act provides that the court shall presume that such person had caused the dowry death.
Of course if there is proof of the person having intentionally caused her death that would attract section 302, I.P.C. Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would 801 squarely fall within the ambit of section 306, I.P.C.
In such a case the conduct of the person would tantamount to inciting provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide.
In the present case the facts clearly reveal from the divorce deed Exh.
D 2 that the relations between the husband and the wife were strained even in 1977.
There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children.
Before the execution of this document she had sought police protection by her application/letter dated 12th October, 1977.
Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband.
Her husband had kept up the pressure for extra dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G.P. Fund, Gratuity, etc., due to her father.
Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture.
Added to that was the anxiety caused by her husband 's conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving.
The last straw on the camel 's back fell when she was severely beaten on the previous day, i.e. 6th June, 1983 as is evident from her letter of 7th June, 1983.
An atmosphere of terror was created to push her into taking the extreme step.
It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more miserable after she is dead and gone.
In this fact/situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his wilful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C. We think that the High Court committed an error in reversing the conviction.
We, therefore, allow this appeal, set aside the High Court 's order and restore the order of conviction and sentence passed by the trial court.
We cannot countenance the plea for reduction of his sentence.
No order on his C.M.P. So far as his sister 's involvement is concerned, we think the evidence falls short of proof beyond reasonable doubt and, therefore, we see no reason to interfere with the High Court 's order.
We, therefore, dismiss the State 's appeal directed against her.
Her bail bonds will stand cancelled.
V.P.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Respondent No. 1 's wife setting herself and her three children ablaze, died at her husband 's house on 7.6.1983.
The marriage had taken place seven or eight years before the incident.
The deceased wife was working as a teacher while her husband was a clerk.
Soon after the marriage there were disputes between them on the question of dowry.
The demand for extra dowry strained the relations between them them and the husband began to ill treat the deceased wife.
The deceased had written a letter to the Deputy Superintendent of Police on 12.10.1977 complaining about the ill treatment meted out to her and apprehending danger to her life and the lives of her children.
When the police came to inquire into the matter there was some understanding, as a result of which she had informed the police that no further action be taken for the present but her application may be kept pending.
Later, a divorce deed was executed but not acted upon.
The situation did not improved.
On 7.6.1983, the very morning of incident, the deceased wife wrote a letter addressed to Deputy Commissioner of Police, wherein she narrated how she and her children were ill treated by her husband, narrated how she and and her children were ill treated by her husband, mother in law and sister in law for dowry and why she took the decision to put an end to her life and the lives of her children.
Another letter 791 of even date was addressed to her mother stating the reasons for her such act.
A First Information Report was lodged against the Respondent No. 1 by the mother of the deceased.
After investigation the Respondent No. 1, his mother and sister were put up for trial.
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306, IPC and sentenced the husband to rigorous imprisonment for seven years and a fine of Rs.5,000, in default, rigorous imprisonment for one year and sentenced the two others to rigorous imprisonment for three years and a fine of Rs.1,000 each, in default, rigorous imprisonment for three months, against which order, accused persons preferred an appeal before the High Court.
The High Court on a reappreciation of the evidence and having regard to the language of Section 306, IPC came to the conclusion that there was no evidence to show that any of the accused was guilty of abetment and allowed the appeal.
The State has, therefore, approached this Court by way of special leave.
In the meantime the Respondent No. 1 's mother had passed away.
The appeal was, therefore, limited to the Respondent No. 1 and his sister.
Allowing the appeal, this Court, HELD: 1. `Abetment ' as defined by Section 107 comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of that thing and (iii) intentionally aiding by any act or illegal omission the doing of that thing.
An abettor is a person who abets an offence or who abets either the commission of an offence of the commission of an act which would be an offence.
[798C D] 2.
The word `instigate ' in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc.
The dictionary meaning of the word, "aid" is to give assistance, help, tec.
[798D E] 3.
Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry under Section 304 B for which the 792 punishment extends to imprisonment for life, but not less than imprisonment for seven years.
By Section 113B, Evidence Act, the court has to raise a presumption of dowry death, if the same has taken place within seven years of marriage and there is evidence of the women having been subjected to cruelty and/or harassment.
[800A C] 4.
The legislative intent is clearly to curb the menance of dowry deaths, etc., with a firm hand.
Court must keep in mind this legislative intent.
It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get.
That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution 's hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage.
This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life.
[800D E] 5.
If a married woman is subjected to cruelty of harassment by her husband or his family members section 498 A, IPC would be attracted.
If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304B IPC.
[800E F] 6.
When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, section 113B Evidence Act provides that the Court shall presume that such person had caused the dowry death.
[800F G] 7.
In the present case section 113A or 113B, Evidence Act cannot be invoked as the prosecution has not brought the exact date of marriage on record.
Yet where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of section 306, IPC.
In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate act.
In this case it would seem from past events that it was a carefully chalked out strategy to provoke the woman into killing herself.
[800H 801A, 801E] 793 8.
In the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 IPC.
The High Court committed an error in reversing the conviction.
The plea for reduction of his sentence cannot be countenanced.
[801F G]


judgement:
: Criminal Appeal Nos.
578/88 & 728/89.
From the Judgment and Order dated 15.7.
1986 of Patna High Court in Crl.
A. Nos.
97 & 87 of 1983.
A. Sharan for the Appellants.
D. Goburdhan for the Respondent.
These two appeals are directed against the judgment and order of the High Court of Patna dated 15.7.
1986 upholding the conviction of Dr. Harendra Narain Singh and Ram Nath Singh, appellants for the offences under Section 302/34 of the I.P.C. Briefly, the facts as disclosed by the prosecution are that Smt.
Jagia Devi; a widow having two sons was carrying four months pregnancy.
She was taken to the dispensary of Dr. Harendra Narain Singh, the appellant who was a Homeo pathic doctor on the pretext of treatment of pain in her stomach though the real purpose for taking ' 57 her to the dispensary was for aborting foetus which she was carrying.
She was murdered in the dispensary and her dead body was taken to Village Dibbi in an Ekka and placed in the courtyard of the house of Smt.
Tileshwara Kuar.
Teg Bahadur Singh PW 11 came to know from a young boy that a dead body was kept in the courtyard of Smt.
fileshwara Kuar.
He went to the house of Smt.
Tileshwara Kuar and on interrogation she told him that some persons after committing murder of Jagia Devi had kept her dead body inside her house.
The door of the house was locked.
Tileshwara handed over the key to Teg Bahadur Singh who unlocked the door and entered the house and found the dead body of Jagia lying on the ground in the courtyard.
He rushed to the Police Station and re ported the matter to the police which was reduced in writ ing.
The police registered a case and proceeded to the spot.
The Investigating Officer recovered the dead body from the house of Tileshwara Kuar and made inquest and sent the dead body for post mortem.
On completion of investigation the police submitted ' chargesheet against seven accused persons, namely, Tileshwara Kuar, Ram Nath Singh, Bishwanath Roy s/o Dip Roy, Ishwar Shah, Dr. Harendra Narain Singh, Smt.
Jota Kuar w/o Dip Roy and Bishwanath Singh alias Bissu.
During the pendency of the case before the Trial Court Bishwanath Roy and Jota Kuar died, therefore, the trial proceeded only against the remaining five accused persons.
Before the Trial Court, the prosecution produced 14 witnesses in support of its case but there was no direct evidence or eye witness to support the charge of murder.
Entire case of the prosecution is founded on circumstantial evidence.
The Trial Court acquitted Smt.
Tileshwara Kuar who had been charged for offences under Section 302/34 and 201 of the IPC but it convicted the remaining accused Ram Nath Singh, Ishwar Shah, Harendra Narain Singh & Bishwanath Singh alias Bissu for the offences under Section 302 of the IPC read with Section 34 of the IPC and also under Section 3 15/34, IPC.
On appeal by the accused the High Court acquit ted Ishwar Shah, Bishwanath Singh alias Bissu but it upheld the conviction of Dr. Harendra Narain Singh and Ram Nath Singh for offences under Section 302/34 of the IPC.
Ag grieved Dr. Harendra Narain Singh and Ram Nath Singh have preferred these two appeals.
The entire case of the prosecution rests on the circum stantial evidence as no prosecution witness has given any direct testimony against the appellants for the commission of the offence for which they have been convicted.
The Trial Court as well as *he High Court both have relied on circum stantial evidence in convicting the appellants for 58 the offences under Section 302/34 of the IPC.
Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the Court in considering the conviction of an accused resting on circum stantial evidence.
It is a cardinal principle of criminal jurisprudence that circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of innocence of the accused.
In Hanurnant vs The State of Madhya Pradesh, this Court laid down fundamental and basic principles for appreciating the circumstantial evidence.
Mahajan, J, speaking for the Court observed: "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 ac cused.
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.
" These principles were reiterated by this Court in Shi vaji Saheb Rao Bobde & Anr.
vs State of Maharashtra, ; wherein it was emphasised that where the prosecu tion rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
The Court further observed that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion con sistent with the innocence of the accused and the circum stances must show that in all human probability the act must have been done by the accused.
These principles have been consistently laid down by this Court in several decisions, it is not necessary to refer to all these decisions.
Howev er, we would like to refer to the decision in Sharad B. Chand vs Maharashtra, [1985] 1 SCR page 88 as 59 this case has been relied upon by the High Court in uphold ing the conviction of the appellants.
In Sharad B. Chand 's case this Court while considering the absence of explanation or a false explanation of the accused for the circumstances and the facts proved against him, struck a note of caution that before a false explanation is used as additional link against the accused the Court should satisfy itself that (1) Various links in the chain of evidence led by the prosecu tion have been satisfactorily proved.
(2) The circumstances point to the guilt of accused with reasonable definiteness; and (3) The circumstances are in proximity to the time and situation where all these conditions are fulfilled only then a Court can use a false explanation or a false defence of an accused, as an additional link to lend an assurance to the Court and not otherwise.
There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused.
We have reminded ourselves of these princi ples with a view to ascertain as to whether the High Court has correctly applied these principles in convicting and sentencing the appellants.
The evidence produced by the prosecution relates to establish the circmustances that (1) Smt.
Jagia Devi, a widow (brother 's daughter of Smt.
Tileshwara Kuar, the accused) died on 22.9.1973.
(2) Death of Jagia Devi was caused due to throttling leading to asphyxia as deposed by Dr. Anand Mohan PW 6.
The Doctor who carried on the postmor tem of the dead body was of the opinion that Jagia Devi killed by strangulation in the neck.
(3) 1n the night be tween 22.9.
1973 and 23.9.1973, a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by the accused Ram Nath Singh and Bish wanath Singh alias Bissu and placed on an ekka in the presence of Ishwar Shah and Dr. Harendra Narain Singh.
Jota Kuar (mother of Ram Nath Singh, the appellant) was also present there.
(4) The dead body was placed on the ekka of Amanat Khan PW 10 and the same was carried to village Dibbi.
Ram Nath Singh, Bishwanath Singh and Jota Kuar also accompanied the dead body to village Dibbi.
(5) Recovery of the dead body of Jagia Devi from the courtyard of Smt.
Tileshwara Kuar, an accused.
On the basis of these circumstances, the High Court upheld the conviction of Ram Nath Singh and Dr. Harendra Narain Singh, the appellants, as in its opinion Ram Nath Singh had motive to murder Jagia Devi as she being a widow was carrying pregnancy of four 60 months.
The murder was committed in the dispensary of Dr. Harendra Narain Singh where she had been taken for medical aid for pain in stomach.
The Trial Court had acquitted Smt.
Teleshwara Kuar, from whose house dead body was recovered.
In appeal the High Court acquitted Ishwar Shah and Bishwa nath Singh alias Bissu also.
The prosecution evidence and the circumstances on the basis of which Ram Nath Singh and Dr. Harendra Narain Singh have been convicted are the same as applicable to the case of Ishwar Shah and Bishwanath Singh alias Bissu, but the High Court acquitted them and at the same time it upheld the conviction of Ram Nath Singh and Dr. Harendra Narain Singh on the same set of the evidence and circumstances without ' there being any distinction.
The main circumstances which weighed with the High Court in upholding the conviction of Ram Nath Singh and Dr. Harendra Narain Singh was that the dead body of Jagia Devi was taken out of the dispensary of Dr. Harendra Narain Singh and placed on the ekka of Amanat Khan PW 10 by Ram Nath Singh.
In view of this proved circumstance the High Court concluded that in all likelihood Jagia Devi was murdered in the dis pensary of Dr. Harendra Narain Singh with his connivance and thereafter the dead ' body was taken on ekka to village Dibbi and placed in the courtyard of Smt.
Teleshwara Kuar.
The presumption that Ram Nath Singh committed murder of Jagia Devi by strangulation in the dispensary of Dr. Harendra Narain Singh with his connivance is based on conjecture without there being any conclusive circumstance justifying such presumption.
The High Court has placed strong reliance on the evi dence of PW 10 Amanat Khan in holding the appellants Dr. Harendra Narain Singh and Ram Nath Singh guilty of murder.
PW 10 Amanat Khan was an ekkawala who plied passengers on hire, he was resident of village Bagaura, where the dispen sary of Dr. Harendra Narain Singh was situate.
Amanat Khan testified that at about 2 a.m. in the night the appellants Ram Nath Singh, Dr. Harendra Narain Singh and Bishwanath Singh alias Bissu awakened him and requested him to 'carry a patient to village Dibbi.
At first he refused to ply his ekka at that odd hour of the night but after some time they again returned and put pressure on him to take his ekka to the dispensary of Dr. Harendra Narain Singh for transporting the patient to Village Dibbi.
On their pursuasion he took his ekka to the dispensary of Dr. Harendra Narain Singh where he found Ishwar Shah, Jagannath and Smt.
Jota Kuar (mother of appellant Ram Nath) present at the dispensary.
According to him Ram Nath and Bishwanath, deceased brought a dead body from the dispensary of the appellant Harendra Narain Singh and placed the 61 same on the ekka.
Ram Nath Singh, Bishwanath Singh alias Bissu and Smt.
Jota Kuar also sat in the ekka.
On their request he carried them to village Dibbi Where Ram Nath and Bishwanath alias Bissu unloaded the dead body from the ekka at the house of Smt.
Teleshwara Kuar.
Amanat Khan 's testimo ny is supported by PW 3, Dukhan Majhi, PW 4 Bisheshvar Chowkidar and PW 5 Shiv Dutt.
Their testimony is merely to the fact that the appellants Ram Nath Singh and Bishwanath Singh were sitting on the ekka which was carrying a dead body from the dispensary of Dr. Harendra Narain Singh.
Placing reliance on the testimony of these witnesses the High Court and the Trial Court concluded that Smt.
Jagia Devi, the deceased was murdered in the dispensary of Dr. Harendra Narain Singh and the dead body was carried by them on the ekka to village Dibbi and placed in the courtyard of Smt.
Tileshwara Kuar.
The High Court and the Trial Court both failed to notice that the prosecution produced no evidence to show that Smt.
Jagia, the deceased was brought to the dispensary of Dr. Harendra Narain Singh while she was alive.
There is further no evidence as to who brought her to the dispensary in what condition.
The only evidence which the prosecution has produced in this respect is that a dead body was taken out from the dispensary of Dr. Harendra Narain Singh and placed on the ekka by Ram Nath Singh and others and taken to village Dibbi.
The High Court was conscious of the weakness of the prosecution case, even then it upheld the conviction of the appellant perhaps on moral grounds.
In para 3 of its judg ment the High Court observed: "although 14 witnesses have been examined on behalf of the prosecution there is no direct evidence or eye witness account of murder.
The witnesses however are not all relevant even for proving the circumstances and other colat oral matters".
After making the aforesaid observations ordinarily the High Court should have rejected the prosecution case which was based on circumstantial evidence but strangely enough the High Court inspite of the aforesaid observations, upheld the conviction of the appellants.
While dealing with the case of Dr. Harendra Narain Singh the High Court observed that he was a man of shaky charac ter.
This observation was made on the basis that even though he was a homeopathic doctor but allopathic medicines were recovered from his dispensary.
In our opinion, mere recovery of allopathic medicines from the dis 62 pensary of Dr. Harendra Narain Singh does not necessarily show that he was a man of shaky character.
It is a matter of common knowledge that even a homeopathic doctor sometimes refer the patients to allopathic treatment.
The fact of recovery of allopathic medicines has no connection or rela tion to the commission of the offence for which Dr. Harendra Narain Singh has been convicted.
The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr. Harendra Narain Singh was present at the spot, therefore he was so closely connected with the affairs taking place at his house that none could without his as sistance do anything, Apart from this there was no other evidence or circumstance against Dr. Harendra Narain Singh It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispen sary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr. Harendra Narain Singh yet 'they have been acquitted by the High Court.
The High Court failed to give any cogent reason for upholding the conviction of Dr. Haren dra Narain Singh.
We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case.
In our opinion, there are two glaring circum stances which are fatal to the prosecution case.
The prose cution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi.
The prosecu tion witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi.
None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same.
In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi.
In the absence of identification of dead body by the witnes ses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that of Jagia Devi.
There is another vital defect in the prosecution case: The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admit ted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive.
In the absence of any Such evidence there are various possibilities and proba bilities, one of them being that the 63 deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by some one.
There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants.
In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh.
Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecu tion case.
The prosecution has to succeed on the basis of its own evidence and it can not rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants.
The circumstances established by the prosecution are not suffi cient to conclusively point to the appellants as the perpe trator of the crime or to rule out the hypothesis of their innocence.
Since the prosecution failed to prove the neces sary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellant 's conviction merely on the appellant 's false explanation in defence.
In view of the above discussion, we are of the opinion that the High Court and the Trial Court both committed error in convicting the appellants.
We accordingly allow the appeals and set aside the judgment and order of the High Court convicting the appellants.
T.N.A. Appeals allowed.

summary/full:
Appellants 1 and 2, along with other co accused, were prosecuted for the offence of murder.
The entire evidence was circumstantial: (a) The murder was committed by Appel lant 2 in the dispensary of the Appellant 1, a doctor, with his connivance; (b) the dead body was taken out of the dispensary of the appellant 1 and the same was kept on an ekka and carried to a village Dibbi where it was placed in the courtyard of one of the co accused; and (c) Recovery of the dead body from the courtyard of a co accused.
The Trial Court acquitted the accused from whose house the dead body was recovered but convicted the remaining four accused for the offences under section 302/34 of the Indian Penal Code.
On appeal by the accused persons the High Court acquitted the other two coaccused but upheld the conviction of the two appellants.
Against their conviction, the appel lants filed appeals in this Court, By an order dated 3.5. 1991, this Court allowed their appeals and set aside their conviction.
Giving reasons in support of its judgment, this Court, HELD: 1.
It is a cardinal principle of criminal juris prudence that circumstantial evidence must be fully estab lished from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only 55 with the hypothesis of the guilt of the accused, ruling out any hypothesis of innocence of the accused.
[58B] 2.
There is yet another basic rule of criminal jurispru dence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the ac cused.
[59C] 3.
The prosecution has to succeed on the basis of its own evidence and it can not rely on the absence of defence to sustain the guilt as there is no justification for rais ing such assumption against the appellants.
[63B] Hanumant vs The State of Madhya Pradesh, [1952] 3 S.C.R. 1091; Shivaji Saheb Rao Bobde & Anr.
vs State of Maharash tra; , and Sharad B. Chand vs Maharashtra, ; , referred to.
In the instant case, there are glaring circumstances which are fatal to the prosecution case.
The prosecution has produced evidence only to the effect that a dead body was taken out of the dispensary of Appellant 1 by Appellant 2 and other accused persons and the same was carried on the ekka to village Dibbi.
The prosecution witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi.
None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same.
In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased.
In the absence of identi fication of dead body by the witnesses it is not legitimate to hold that the dead body which was taken out from the dispensary of Appellant 1 was that of deceased.
[62E F, G] 4.1 There is another vital defect in the prosecution case.
The prosecution failed to produce any evidence that the deceased was taken to the dispensary for treatment by Appellant 2 and other accused persons while she was alive and that she was admitted to the dispensary of Appellant 1 for treatment, at a time when she was alive.
In the absence of any such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by some one.
Further there is no evidence of the fact 56 that when the deceased was inside the dispensary no other person had access to her except the appellants.
In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Appellant 2 with the connivance of Appellant 1 Therefore, the prosecution failed to prove the necessary facts and the circumstances established by it are not sufficient to con clusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence.
Accordingly, the High Court and the Trial Court both commit ted error in convicting the appellants.
The High Court was also not justified in drawing adverse inference for complet ing the chain of circumstances to uphold the appellant 's conviction merely on the appellant 's false explnaton in, defence.
[62G H, 63A C D]


judgement:
N: Criminal Appeal No. 168of 1991.
From the Judgment and Order dated 26.7.1989 of the Madya Pradesh High Court in Crl.
A. No. 102 of 1984.
G.L. Sanghi and A.K. Sanghi for the Appellants.
The facts are few and simple.
The first appellant Rajendra, on 30th June, 1982, while running a shop under the name and style of M/s. Kumarvad Bros. in Khargaon Municipal ity, was found exhibiting and offering for sale tea dust, the quantity of which was about 11/2 kgs.
D.P. Nath, P.W. 1, the Food Inspector for Khargaon purchased tea dust in the requisite quantity for test.
The purchased tea was dealt with in the prescribed manner as per rules on the subject.
The purchase and other attendant documents were witnessed by Madan, P 'W ' 2 and another.
The Public Analyst, Bhopal, to whom one of the three samples was sent for analysis opined that the food article fell below the prescribed standard as its contents were present in quantities not within the prescribed limits of variabili ty.
The report of the Public Analyst was communicated to the first appellant as well as to his two brothers, the second and third appellants, because it appears that at the time of 99 the sale of the tea to the Food Inspector, he was told by the first appellants that the court 's intervention could be sought to have one of three brothers.
The accompanying covering letter suggested to the appellants that the court 's intervention could be sought to have one of the samples kept by the Local Health Authority examined one more time.
The appellants did not avail of the opportunity and faced the prosecution launched under section 7 read with section 16 of the before the Chief Judicial Magistrate, Khargaon.
Before the Trial Magistrate the facts as alleged by the prosecution regarding sale by the first appellant to the Food Inspector and of the article of food being adulterated as per report of the Public Analyst were not disputed.
Shelter, however, was taken behind the provisions of Rules 7(3) and 9 A of the Prevention of Food Adulteration Rules, 1955, as then standing, whereunder the Public Analyst was required to send his report to the Local Health Authority within 45 days, which he had not done, and the Local Health Authority was required to 'immediately ' after the institu tion of prosecution forward a copy of the report of the result of the analysis to the appellants.
Since there was a delay of nearly a month on that count the Trial Magistrate viewed this lapse as total to the prosecution.
Furthermore, the Trial Magistrate took the view that in the covering letter while sending the report, nowhere had the appellants been told that they had a right to have the second sample with the Local Health Authority analysed by the Central Food Laboratory in terms of section 13(2) of the Act.
The Trial Magistrate perhaps had in mind that had this been mentioned, the appellants may have chosen to avail of the opportunity of the analysis by the Central Food Laboratory and such report would have superseded the report of the Public Ana lyst, whether for or against the appellants.
On these two grounds the learned Trial Magistrate recorded acquittal of the appellants.
The High Court on appeal by the State of Madhya Pradesh, reversed the Order of acquittal and recorded conviction of the appellants add sentenced each one of them to six months ' rigorous imprisonment and to pay a fine of Rs.5000 each.
This has occasioned the appeal before us.
Our attention was brought to the aforesaid rules and section 13(2) of the Act and the case law on the subject.
Rule 7(3) requires that the Public Analyst shall within a period of 45 days of the receipt of any sample for analysis, deliver to the Local Health Authority, a report of the result of such analysis in Form III.
The Trial Magistrate found that this duty was not discharged by the Public Ana lyst within 100 the prescribed period of 45 days.
The High Court, however, recomputed the period and came to the conclusion that such duty was performed within the prescribed period.
That find ing is one of fact and nothing has been addressed to us in that regard.
So far as the Local Health Authority being required to 'immediately ' after the institution of prosecu tion send a copy of the report of the result of the analysis in Form III, its failure to do so instantly was held to be of no consequence, relying on a judgment of this Court in Tulsiram vs State of Madhya Pradesh, ; where in the word 'immediately ' was interpreted to convey 'reason able despatch and promptitude ' intending to convey a sense of continuity rather than urgency.
This Court then ruled at page 497 as follows: "The real question is, was the Public Ana lyst 's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis.
If after receiving the Public Analyst 's report he never sought to apply to the court to have the sample sent to the Central food Laborato ry, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice.
Our conclusions on this question are: The expres sion 'immediately ' in Rule 9 A is intended to convey a sense of continuity rather than urgency.
What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under section 13(2) in good and sufficient time before the prosecution commences leading evidence.
Non compliance with Rule 9 A is not fatal.
It is a question of prejudice.
" Tulsirarn 's case was thus a complete answer to the conten tion to contrary.
The next question which requires consideration is wheth er all the appellants are guilty of the crime.
From the material available on the record, we find no basis to sus tain the conviction of the second and third appellants, Om Prakash and Subhash.
There is no evidence worth the name to conclusively prove their complicity beyond reasonable doubt.
The first appellant is alleged to have told the Food Inspec tor on the date of sale of tea dust that the shop was being run in partnership by him with his two brothers.
This was the only case set up by 101 the prosecution at the trial.
No evidence was gathered or tendered to prove the partnership.
On the facts, which are eloquent, the first appellant alone made the sale of tea dust to the Food Inspector and not all.
Burden was on the prosecution to prove the existence of the partnership.
We do not propose to indulge in the refinery of civil law but have to adopt the cautious approach to adjudge criminality of the accused appellants.
Even it the Food Inspector is believed that the first appellant told him that 'the business on the shop was being run in partnership that per he was not enough to inculpate the remaining two appellants without further evidence '.
We find an area of doubt in this sphere and extending the same to the second and third appellants order their acquittal.
They be discharged from their bail bonds.
Fine, if paid, be refunded to them.
The case of the first appellant stands singled out.
His conviction was well deserved which is hereby maintained confirming the sentence of imprisonment but reducing the fine to Rs. 1000, in default of payment of which further rigorous imprisonment for one month is ordered.
He shall surrender to his bail bonds.
The excess fine, if paid, be refunded to the first appellant.
As a result the appeal of appellants 2 & 3 is allowed and that of appellant No. 1 dismissed, subject, however to the reduction of sentence.
R.P. Appeal dis posed of.

summary/full:
Appellant No. 1 was found exhibiting and offering for sale tea dust.
P.W. 1, the Food Inspector purchased tea dust in the requisite quantity for test.
Appellant No. 1 told P.W. 1 that the shop which was being run by him was a part nership concern of the three brothersappellant No. 1 to 3.
On receipt of Public Analyst 's report, prosecution was lanuched against the appellants under section 7 read with section 16 of the .
Before the trial Magistrate the facts regarding sale by appellant no.1 of the food article and the same being adul terated as reported by the Public Analyst were not disputed.
The appellants however, argued that the Public Analyst did not send the report within the period prescribed under r. 7(3) Prevention of Food Adulteration Rules, 1955 and the Local Health Authority did not forward the copy of the result of the analysis to the appellants 'immediately ' after institution of the prosecution as envisaged by r. 9A.
Since there was a delay of nearly a month on that count, the trial Magistrate viewed this lapse as fatal to the prosecution.
He also held that in the covering letter while sending the report, it was not mentioned that the appellants had a right to have analysed the second sample by the Central Food Laboratory in terms of section 13(2) of the 96 97 Act.
He, therefore, acquitted the appellants.
On appeal by the State, the High Court reversed the order of acquittal.
It convicted the appellants and sen tenced each of them to six months ' rigorous imprisonment and to pay a fine of Rs.5000 each.
Aggrieved the appellants preferred the appeal by special leave to this Court.
On consideration of evidence regarding guilt of all the appellants and requirements of section 13(2) of the and rr.
7(3) and 9A of the Prevention of Food Adulteration Rules, 1955, Disposing of the appeal, this Court, HELD: 1.
In the instant case, there was no basis to sustain the conviction of appellants No. 2 and 3.
There was no evidence worth the name to conclusively prove their complicity beyond reasonable doubt.
The only case set up by the prosecution against these appeliants was that appellant No. 1 was alleged to have told the Food Inspector that the shop was being run in partnership by him with his these two brothers.
Appellant No. 1 alone made the sale in question to the Food Inspector.
Burden was on the prosecution to prove the existence of partnership.
Even if the Food Inspector is believed that appellant No. 1 told him that the shop was being run in partnership, that per he was not enough to inculpate the remaining two appellants without further evidence.
There is an area of doubt in this sphere and extending the same to appellants No. 2 and 3, they are acquitted.
[100G H; 101A B] The case of first appellant stood singled out.
His conviction was well deserved, which should be maintained and the sentence confirmed.
However, fine was to be reduced to Rs.1,000.
[101C] 2.
The expression 'immediately ' in r. 9A of the Preven tion of Food Adulteration Rules, 1955, is intended to convey a sense of continuity rather than urgency.
What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under section 13(2) in good and sufficient time before the prosecution commences leading evidence.
Non compliance with r. 9 A is not fatal.
It is a question of prejudice.
The word 'immedi ately ' was to be interpreted to convey 'reasonable despatch and promptitude ' intending to convey a sense of continuity rather than urgency.
The High Court was right in holding that failure to send instantly a copy of the analysis 98 report to the appellants was of no consequence.
[100A F] Tulsiram vs State of Madhya Pradesh, ; , relied on.
On the question of compliance of r. 7(3) in regard to the period of submission of the report by Public Analyst to the Local Health Authority, the High Court 's conclusion, reached by it after recomputing the period, that such duty was performed within the prescribed period was a finding of fact and nothing was addressed before this Court in that regard.
[99G H; 100A]


judgement:
tition (C) No. 118 of 1987.
Under Article 32 of the Constitution of India.
O.P. Sharma, K.R. Gupta, Vivek Sharma, R.C. Gubrele and Ms. Nanita Sharma for the Petitioners.
M. Chander Sekhran, Additional Solicitor General I, P. Parmeshwaran, section N. Terda, Ms. Kitty Kumaramangalam, Ms. A. Subhashini and Ms. Sangeeta Aggarwal for the Respondents.
837 The Judgment of the Court was delivered by KULDIP SINGH, J.
B.P. Singh and nine other teachers employed in the schools run by the Ordnance Factories at Kanpur and Muradnagar, have filed this petition under Article 32 of the Constitution of India challenging their retirement from service on attaining the age of 58 years.
They claim that they are entitled to have the age of superannuation fixed at 60 years instead of 58 years.
Mr. O.P. Sharma, learned counsel appearing for the petitioners, has contended that the age of superannuation of the teachers working in the schools controlled by various departments of Government of India other than the Defence Department has been enhanced to 60 years and according to him there is no justification to single out the teachers working in the schools run by the Ordnance Factories under the control of the Defence Department of Government of India Mr. Sharma has relied upon a Memorandum issued by the Government of India, Ministry of Education dated September 6, 1983 by which the age of Retirement of Delhi School Teachers and teachers in other Union Territories was raised to 60 years.
He has also relied on a Memorandum dated March 9, 1984 issued by the Railway Board wherein the age of superannuation of the teachers working in the Railway schools was also enhanced to 60 years.
Mr. Sharma has thus argued that the action of the respondents in retiring the petitioners at the age of 58 years whereas retaining similarly situated teachers working in other departments of Government of India upto the age of 60 Years, is discriminatory and as such violative of Articles 14 and 16 of the Constitution of India.
Prima facie there seems to be force in the argument but in view of the Office Memorandum dated March 10, 1989 issued by the Government of India, Ministry of Personnel, New Delhi, it is not necessary to examine the same.
Shri N. Siva Subramaniam, Joint Secretary, Ministry of Defence has, alongwith an additional affidavit dated March 16, 1989 filed the said Memorandum in this court which is reproduced hereunder: "As the Ministry of Human Resource Development etc.
are aware, the age of superannuation for all Central Government employees, save with the exception of a few categories, has been fixed at 58 years and they are to retire on the last day of the month in which they attain that age.
838 However, there is no uniformity in the age of superannuation of teachers in various schools/institutions in the Central Government.
In the light of the observations of the Fourth Central Pay Commission regarding the age of retirement of Central Government employees, the Government has reviewed the entire question de novo and it has now been decided that the age of retirement on superannuation of all teachers working in Central Government Departments and Organisations including Union Territories may be uniformly fixed at 58 years, whether they are in the Ministry of Education, Ministry of Railways, Ministry of Defence or any other Ministry/Department or in Delhi Administration.
Consequently, in schools/institutions where the age of retirement on superannuation for teachers in presently fixed at 58 years, no change is required to be made and the incumbents as well as future recruits shall retire on attaining the age of 58 years.
However, in regard to schools/institutions where the age of retirement on superannuation for teachers is presently fixed at 60 years/the same shall be lowered to 58 years w.e.f.
1st April, 1989 with the exception that the teachers who had joined such schools/institutions prior to this date, shall continue to enjoy the existing benefit and superannuate on attaining the age of 60 years.
Further, in respect of such schools/institutions, no new appointment, either on regular or ad hoc basis, shall be made between the date of this Office Memorandum and 1.4.1989.
" It is thus obvious that with effect from April 1, 1989 the age of superannuation of all teachers working in Central Government Departments and Organisations including Union Territories has been uniformly fixed at 58 years.
The only argument advanced by Mr. Sharma has, thus, been completely answered by the above quoted Office Memorandum.
The Writ Petition is, therefore, dismissed with no order as to costs.
V.P.R. Petition dismissed.

summary/full:
In the petition filed under Article 32 of the Constitution of India, the petitioners teachers, employed in the schools run by the respondents, controlled by the Defence Department of the Government of India, contended that the action of the respondents in retiring them at the age of 58 years, whereas retaining similarly situated teachers working in other departments upto the age of 60 years was discriminatory and violative of Articles 14 and 16 of the Constitution.
The respondents filed the Office Memorandum dated 10.3.1989 issued by the Ministry of Personnel, wherein it was stated that the age of retirement of the teachers working in all the Departments and Organisations was uniformly fixed at 58 years.
Dismissing the petition, this Court, HELD: With effect from April 1, 1989 the age of superannuation of all teachers working in Central Government Departments and Organisations including Union Territories has been uniformly fixed at 58 years.
[838F]


judgement:
iminal Appeal No. 1 of 1955.
Appeal from the judgment and order dated October 13, 1954, of the former Judicial Commissioner 's Court, Ajmer, in Criminal Reference No. 31 of 1954.
H. J. Umrigar and T. M. Sen, for the appellant.
The respondents did not appear.
December 16.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This appeal was preferred by the State of Ajmer, but after reorganisation the b of States, the State of Rajasthan stands substituted for the former State.
It was filed against the decision of the Judicial Commissioner of Ajmer, who certified the case as fit for appeal to this Court under article 132 of the Constitution.
The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplifiers Control) Act, 1952 (Ajmer 3 of 1953), (hereinafter called the Act) which received the assent of the President on March 9, 1953.
This Act was successfully impugned by the respondents before the learned Judicial Commissioner, who held that it was in excess of the powers conferred on the State Legislature under section 21 of the (49 of 1951) and, therefore, ultra vires the State Legislature.
The respondents (who were absent at the hearing) were prosecuted under section 3 of the Act for breach of the first two conditions of the permit granted to the first respondent, to use sound amplifiers on May 15 and 16, 1954.
These amplifiers, it was alleged against them, were so tuned as to be audible beyond 30 yards (condition No. 1) and were placed at a height of more than 6 feet from the ground (condition No. 2).
The second respondent was at the time of the breach, operating the sound amplifiers for the Sammelan, for which permission was obtained.
On a reference under section 432 of the Code of Criminal Procedure, the Judicial Commissioner of Ajmer held that the pith and substance of the Act fell within 114 906 Entry No. 31 of the Union List and not within Entry No. 6 of the State List, as was claimed by the State.
Under article 246(4) of the Constitution, Parliament had power to make laws for any Part of the territory of India not included in Part A or B of the First Schedule, notwithstanding that such matter was a matter enumerated in the State List.
Section 21 of the , enacted: " (1) Subject to the provisions of this Act, the Legislative Assembly of a State, may undertake laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List, (2) Nothing in subsection ( 1) shall derogate from the power conferred on Parliament by the Constitution to make laws with respect to any matter for a State or any part thereof." Under these provisions, the legislative competence of the State Legislature was confined to the two Lists other than the Union List.
If, therefore, the subjectmatter of the Act falls substantially within an Entry in the Union List, the Act must be declared to be unconstitutional, but it is otherwise, if it falls substantially within the other two lists, since prima facie there is no question of repugnancy to a central statute or of an " occupied field".
The rival Entries considered by the Judicial Commissioner read as follows: Entry No. 31 of Post and Telegraphs; Telephones, wire the Union List.
less,broadcasting and other like forms of communication.
Entry No. 6 of Public health and sanitation; hospita the State List.
ls and dispensaries.
The attention of the learned Judicial Commissioner was apparently not drawn to Entry No. 1 of the State List, which is to the following effect: Entry No. 1 of Public order(but not including the use the State List.
of naval,military or air forces of the Union in aid of civil power.) 907 Shri H. J. Umrigar relied upon the last Entry either alone, or in combination with Entry No. 6 of the State, List, and we are of opinion that he was entitled to do so.
After the dictum of Lord Selborne in Queen vs Burah (1), oft quoted and applied, it must be held as settled that the legislatures in our Country possess plenary powers of legislation.
This is so even after the division of legislative powers, subject to this that the supremacy of the legislatures is confined to the topics mentioned as Entries in the Lists conferring respectively powers on them.
These Entries, it has been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really so.
They occasionally overlap, and are to be regarded as enume ratio simplex of broad categories.
Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival Lists, it is necessary to examine the impugned legislation in its pith and substance, and only if that pith and substance falls substantially within an Entry or Entries conferring legislative power, is the legislation valid, a slight transgression upon a rival List, notwithstanding.
This was laid down by Gwyer, C. J., in Subramanyam Chettiar vs Muthuswamy Goundan (2), in the following words: " It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere.
Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its 'pith and substance ', or its 'true nature and character ', for the purpose of determining whether it is legislation with respect to matters in this list or in that.
" This dictum was expressly approved and applied by the Judicial Committee in Prafulla Kumar Mukherjee (1) (2) , 201.
908 vs
Bank of Commerce, Ltd., Khulna (1), and the same view has been expressed by this Court on more than one occasion.
It is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given.
It becomes, therefore, necessary to examine closely how the Act is constructed and what it provides.
The Act in its preamble expresses the intent as the control of the use ' of sound amplifiers.
The first section deals with the title, the extent, the commencement and the interpretation of the Act.
It does not unfold its pith and substance.
The last two sections provide for penalty for unauthorised use of sound amplifiers and the power of police officers to arrest without ",arrant.
They stand or fall with the constitutionality or otherwise of the second section, which contains the essence of the legislation.
That section prohibits the use in any place, whether public or otherwise, of any sound amplifier except at times and places and subject to such conditions as may be allowed, by order in writing either generally or in any case or class of cases by a police officer not below the rank of an inspector, but it excludes the use in a place other than a public place, of a sound amplifier which is a component part of a wireless apparatus duly licensed under any law for the time being in force.
In the explanation which is added, 'public place ' is defined as a place (including a road, street or way, whether a thoroughfare or not or a landing place) to which the public are granted access or have a right to resort or over which they have a right to pass.
The gist of the prohibition is the use ' of an external sound amplifier not a component part of a wireless apparatus, whether in a public place or otherwise, without the sanction in writing of the designated authority and in disregard of the conditions imposed on the use thereof.
It does not prohibit the use in a place other than a public place of a sound amplifier which is a component part of a wireless apparatus.
(1) (1947) L.R. 74 I.A. 23.
909 There can be little doubt that the growing nuisance of blaring loud speakers powered by amplifiers of great output needed control, and the short question is whether this salutary measure can be said to fall within one or more of the Entries in the State List.
It must be admitted that amplifiers are instruments of broadcasting and even of communication, and in that view of the matter, they fall within Entry 31 of the Union List.
The manufacture, or the licensing of amplifiers or the control of their ownership or possession, including the regulating of the trade in such apparatus is one matter, but the control of the 'use ' of such apparatus though legitimately owned and possessed, to the detriment of tranquillity, health and comfort of others is quite another.
It cannot be said that public health does not demand control of the use of such apparatus by day or by night, or in the vicinity of hospitals or schools, or offices or habited localities.
The power to legislate in relation to public health includes the power to regulate the use of amplifiers as producers of loud noises when the right of such user, by the disregard of the comfort of and obligation to others, emerges as a manifest nuisance to them.
Nor is it any valid argument to say that the pith and substance of the Act falls within Entry 31 of the Union List, because other loud noises, the result of some other instruments, etc., are not equally controlled and prohibited.
The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquillity, and thus falls substantially (if not wholly) within the powers conferred to preserve, regulate and promote them and does not so fall within the Entry in the Union List, even though the amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication.
As Latham, C. J., pointed out in Bank of New South Wales vs The Commonwealth (1): " A power to make laws 'with respect to ' a subjectmatter is a power to make laws which in reality and substance are laws upon the subject matter.
It is not (1) ; , 186.
910 enough that a law should refer to the subject matter or apply to the subject matter: for example, incometax laws apply to clergymen and to hotel keepers as members of the public; but no one would describe an income tax law as being, for that reason, a law with respect to clergymen or hotel keepers.
Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or banking.
" On a view of the Act as a whole, we think that the substance of the legislation is within the powers conferred by Entry No. 6 and conceivably Entry No. 1 of the State List" and it does not purport to encroach upon the field of Entry No. 31, though it incidentally touches upon a matter provided there.
The end and purpose of the legislation furnishes the key to connect it with the State List.
Our attention was not drawn to any enactment under Entry No. 31 of the Union List by which the ownership and possession of amplifiers was burdened with any such regulation or control, and there being thus no question of repugnancy or of an occupied field, we have no hesitation in holding that the Act is fully covered by the first cited Entry and conceivably the other in the State List.
The Judicial Commissioner 's order, with respect, cannot be upheld, and it must be set aside.
We allow the appeal and reverse the decision, and we declare the Act in all its parts to be intra vires the State Legislature.
As the matter is four years old we do not order a retrial and we record that the State does not, as a result of the reversal of the decision under appeal, propose to prosecute the respondents, and that a statement to this effect was made before us at the hearing.
Appeal allowed.

summary/full:
The Ajmer (Sound Amplifiers Control) Act, 1952, was enacted by the Ajmer Legislative Assembly which, by section 21 Of the , was empowered to make laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List.
The respondents were prosecuted under section 3 Of the Act for breach of the conditions of the permit granted for the use of sound amplifiers.
On a reference under section 432 of the Code of Criminal ' Procedure, the judicial Commissioner of Ajmer held that the Act fell within Entry NO. 31 of the Union List and not within Entry No. 6 of the State List as was claimed by the State, and, therefore, was ultra vires the State Legislature.
Held, that the pith and substance of the impugned Act was the control of the use of amplifiers in the interests of health and also tranquillity and thus the Act was substantially within the powers conferred by Entry No. 6 and conceivably Entry No 1 of the State List, and did not fall within Entry No. 31 of the Union List, even though the amplifier, the use of which is regulated and controlled, is an apparatus for broadcasting or communication.
Accordingly, the Act was intra vires the State Legislature.