Holding

The conviction under s.302 IPC was unsustainable as the prosecution failed to prove the case beyond reasonable doubt, and the appellant was acquitted.

Summary

The appellant Sharad Birdhichand Sarda was convicted of murder under s.302 IPC for allegedly poisoning his wife Manju with potassium cyanide and sentenced to death. The prosecution's case rested entirely on circumstantial evidence, including the deceased's letters, oral statements to relatives, and medical reports, but failed to prove that the accused possessed the poison or administered it. The Supreme Court examined the admissibility of the letters and oral statements under s.32 of the Evidence Act, finding them inadmissible and noting that the post‑mortem report contained unexplained interpolations. Applying the five golden principles from Hanumant's case, the Court held that the prosecution did not satisfy the required chain of evidence and that a reasonable doubt existed, especially given the possibility of suicide. Consequently, the Court set aside the conviction and death sentence, acquitting the appellant and ordering his release.

Issues considered

The prosecution proved the death was caused by potassium cyanide but failed to establish the accused's possession of the poison.
The admissibility of the deceased's letters and oral statements under s.32 of the Evidence Act.
Whether the benefit of doubt principle applies when two mutually exclusive hypotheses are possible.
Whether a false defence can be used as an additional link in circumstantial evidence.
The impact of interpolations in the post‑mortem report on the reliability of medical evidence.
Whether the accused was properly examined under s.313 CrPC before conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 101, s. 102, s. 103, s. 104, s. 3, s. 32, s. 8
Indian Penal Code, 1860s. 120B, s. 201, s. 302

Subjects

circumstantial evidencebenefit of doubtdying declarationpoisoningmurdersuicidesection 32 Evidence Actfalse defencepost‑mortem interpolationIPC 302death penalty

Judgment

88

A SHARAD BIRDHI CHAND SARDA
v.

STATE OF MAHARASHTRA
July 17, 1984
B
[S. MURTAZA FAZAL ALl, A. VARADAR..UAN AND
SABYASACHI MUKHARJJ, JJ.]

c
Comtitution of India, 1950, Article 136-lnterferencc by the Supreme Court
with the concurrent findings offact of the conrts below, normally not permissible-
Special circumstance like errors of law, violation of well established principles of
-
criminaljrtrisprudence etc. would be necessary for interference .

• Evidence-Circumstantial evidence, nature and proof of -conditions
precedent for conviction-Evidence Act Section 3 (Act 1 of 1972).

Evidence-Circumstantial evidence-Onus of proof-Prosecution must prove
D every link of the chain and complete chain-Infirmity or lacuna in the prosecution
cannot be cured by false defence or plea-A person cannot be convicted on pure
moral conviction-False explanation can be used as additional/ink to fortify the
prosecution case, subject to satisfaction of certain conditions.

Doctrine of Proximity, concept of. nature and limits explained-Admissibility
of statements and dying declarations under sections 8, 32 of the Evidence Act.
E
Murder by administration ofpoison-circumstances that should be looked
into before a conviction-Penal Code (Act XLV of 1860) Section 300.

Evidence, appreciation of -Evidence of interested witnesses, especially that
of close relatives of the deceased-Duty of the Court-Evidence Act (Act I of
1872) Section J,
F
Benefit of doubt-When two views are ·possible, one leading to tha guilt of
rhe accused and the other leading to his innocence, the benefit of doubt should
go to the accused entitling his acquittal-Evidence Act (Act I of 1872) Sections 101
-104.

Examination of tire accused under Section 313 of Crt. P.C.-Circumstances
G not put to the accused to explain, cannot be considered for convictio11-Code of
Criminal Procedure, 1973 (Act 11 of 1974) Section 313.

Ule appellant, Rameshwar, Birdhicband Sarda, -Ramvilas Rambagas
Sarda, were accused 1, 2 and 3 respectively in Sessions Case No. 203 of 1982 on
the file of the Additional Se5sions Judge, Pune. The appellant and the second
accused are the sons of one Birdhichand of Pone whose famil y has- a cloth
business. In addition, the appellant, a graduate in Chemical Engineering had
H

•
, SltARAD B. CHAND v. MAHAkASHTRA

started a chemical factory at Bhosari, a suburb of Pune. The third accused is
89
A
uncle of the appellant and· the second accused. The appellant is the husband
of Manjushree alias Manju whil~ the second accused is the husband of
Anuradha (P.W, 35). Birdhichand's family has its residential house at Ravivar
Peth in Pune and owns a flat in a building known as Taksha~heela Apartments
in Mukund Nagar area of Pun e. All the three accused were charged for the
alleged offence of murder by poisoning on the night of 11/12.6,1982 of Manju
the newly married wife of the first accused and the appellant herein under section 8
302 I.P.C. read with sectionJ20B. Accused No. Jwas also charged under section
201 read with Section 120B I.P.C. The whole case vested on the circumstantial
evidence based on certain letters alleged to have been written by the deceased to
some of the witnesses and other statements of the deceased to them and the
• medical report. On an appreciation of the evidence the trial court found all the
three accused guilty as charged, convicted them accordingly and ·sentenced the
appellant to death under s.302 I.P.C. and all the three accused to rigorous c
imprisonment for two years and a fine of Rs. 2,000 each under s.I20B I.P.C.
but did not award any sentence under s.201 read with s.120B.

The appellant and the other two accused file Criminal Appeal No. 265/83
against their conviction and the sentences awarded to them. The State filed a
Criminal Revision application for enhancement of the sentence awarded to
accused 2 and 3. The appeal as well as Criminal Revision application was D
heard along with confirmation case No. 3 of 1983 together by the Division
Bench of the Bombay High Court which allowed the appellants appeal in part
regarding his conviction and sentence under s.l20B I.P.C. but confirmed his
convictio~ and sentence of death awarded under section 302 I.P.C., allowed the
appeal of accused 2 and 3 in full and acquitted them and dismissed the Criminal
Revision Application. Hence the appellant alone has come up before the
E
Supreme Court after obtaining Special Leave.

Allowing the appeal, the Court

HELD: (Per Fazal Ali, J.).
1:1. Normally, the Supreme Court does not interfere with the
concurrent findings of the fact of the courts below. in the absence of very F
special circumstances or gross errors of law committed by the High Court.
But, where the High Court ignores or overlooks the crying circumstance
and proved facts, or violates and misapplies the well established principles
of criminal jurisprudence or decision rendered by this Court on appreciation of
circumstantial evidence and refuses to give benefit of doubt to the accused
despite facts apparent on the face of the record or on its own finding or tries to
glpss over them without giving any reasonable explanation or commits errors of G
law apparent on the face of the record which results in serious and substantial
miscarriage of justice to the accused, .it is the duty of this·eourt to step in and
correct the legally erroneous decision of the High Conrt. [174E-G]

1:2. Suspicion, however, great it may be, cannot take the place of
legal proOf. A moral conviction however, strong or ge~uine cannot amount to
a legal convicition supportable in law. [174H] .

1:3. The well established rule of criminal justice is 'fouler tlle crime
higher the proof'. Jn the instant case, the life and liberty of a subject was at H
90 sti.PREMi! cotiRT REPoiuS [1985j 1 s.C.R.

stake. As the accused was given a capital sentence a very careful cautious and
meticulous approach necessarily had to be m~de by the Court. [175A]

2:1. The Indian law on the question of the nature and scope of dying
declaration has made a distinct departure from the English law where only the
statement which directly relate to the cause of death are admissihle, The second
part of cl.(l) of s.32, viz, "the circumstances of the transaction which resulted
B in his death, in cases in which the cause of that person's death comes into
question" is not to be found in the English Law. [ 107F-G]

2:2. From a review of the various authorities of the Courts a.nd the clear
language of s.32(1) of Evidence Act, the following propositions emerge: [108F]

(l) Section 32 is an exception to the rule of hearsay and makes
c admissible the statement of a person who dies. whether the death is a homicide
or a suicide, provided the statement relates to the cause of death, or relates to
circumsta"'lces leading to the death. In this respect, Indian Evidence Act, in
view of the peculiar conditions of our society and the diverse nature and
character of our people, has thought it necessary to widen the sphere of s.32
to avoid injustice. [l08G-H]

(2) The test of proximity cannot be too literally construed and practically
reduced to a cut-and-dried formula of universal application so as to be confined
in a straitjacket. Distance of time would depend or very with the circumstances
of each case. For instance, where death is a logical clumination of a continuous
drama long in process and is, as it were, a finale of the story, the state1;11.ent
regarding each step directly connected with the end of the drama would be
admissible because the entire statement would have to be read as on organic
E whole and not torn from · the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as being a part of the
transaction of death. It is manifest that all these statements come to light only
after the death of the deceased who speaks from death. For instance, where
the death takes place within a very short time of the marriage or the distance
of time is not spread over more than 3-4 months the statements may be
admissible under s.32. [109B-D]
F
(3) The second part of cl.l of s.32 is yet another exception to the rule
that in criminal Jaw the evidence of a person Who was not being subjected to or
given an opportunity of being cross-examined by the accused, would be valueless
because the place of cross-examination is taken by the solemnity and sancity
of oath for the simple reason that a person on the verge of death is" not
likely to make a false statement unless there is strong evidence to show that
G the statement was secured either by prompting or tutoring, [109E·F1

(4) Section 32 does not speak of homicide alone but includes suicide
also, hence all the circumstance which may be relevant to prove a case of
homicide would be equally relevant to prove a case of suicide. [109-GJ

(5) Where the main evidence consists of statements and letters written
by the deceased which are directly connected with or related to her death and
H
.SHARDA B. CHAND v. MAfiARA.SHTRA 91
which reveal a te1\.tale story, the said "statement would clearly fell within the·
four corners of s.32 and, therefore, admissible. The distance of time alone in, A
such cases would not make the statement irrelevant. [l09Hj

- Hanumant v. State of Madhya Pradesh [1952] S.C.R. 1091 ; Dharambir
Singh v. State of Punjab Criminal Appeal No. 98 of 1958 decided on 4.11.58
=AIR 1958 SC 152 ; Ratan Gond v. The State of Bihar [1959] SCR 1336;
Pakala Narayana Swami v. Emperor :AIR 1939 PC 47; Shiv Kumar & Ors v. The
State of Uttar Pradesh Crl. Appeal No. 55 of 1966 decided on 29.7.66 =(1966) B
Crl. Appeal SC 281 ; and P,:otima Dutta & Anr. v. The State, C.W.N. 713
referred to.

Manolzar La/ & Ors. v. State of Punjab [1981] Cr.L.J, 1373; Onkar
v. State of Madhya Pradesh [1974] Crl. L.J. 1200; Allijan Munshi v. The State
AIR 1960 Born. 290; Chifmava/ayan v. State of Madras [1959] M.L.J. 246;
Rajindera Kumar v. The State AIR 19601'unjab 310 ; and State v. Kanchan Singh G-
& Anr. AIR 1954 All. 153. approved.

Gokul Chandra Chatterjee v. The State, AIR 1950 Cal. 306, overruled.

3:1. It is well settled that the prosecution must stand or fall on its own
legs and it cannot derive any strength from the weakness of the defence. This
D
is trite Jaw. However, Where various links in a chain are in themselves complete,
then a false plea or a false defence may be called into aid only to lend assurance
to the Court. In other words before using the additional link it must be proved
that all the Jinks in the chain are complete and do not suffer from a·ny infirmity.
It is not the law that where there is any infirmity or lacuna in the prosecution
a
case the same could be cured or supplied by false defence or a plea which is
not accepted by a Court [162C-E] ·
.E
3:2. Before a false explanation can be used as additional link, the follow-
ing essential conditions must be satisfied : [165E]

1. Various links in the chain of evidence led by the prosecution have been
satisfactorily proved ;(165F].

2. The said circumstance point to the guilt of the accused with reasonable
F
definiteness and; [165G]

3. The circumstances is in proximity to the time and situation.[16SH]

If these conditions are fulfiled only then a Court can use a false explana·
tioo or a false defence as an additional link to lend as assurance to the Court and
not otherwise. On the facts and circumstances of the present case this does not
G
appear to be such a case. · There is a vital difference between an incomplete
chain of circumstances and a circumstance, which, after the'chain is complete, is
added to it merely to reinforce the conclusion of the court. Where the prosecu-
tion is enable to prow any of the essential principles laid down in Hanumant's
case. the High Court cannot supply the weakness or the lacuna by taking aid
of or recourse to a false defence or a false plea. [166A ; 166D·E]
B
SUPREME COURT REPORTS [1985] I s.c.k.
3:3. Before a case against an accused vesting on circumstantial evidence
can be said to be fully established the following conditions must be fulfilled as
laid down in Hanumat's v. State of M.P. [1953] SCR 1091. [163C]

1. The circumstances from whi~h the conclusion of guilt is to be drawn
should be fully established ; [163DJ

2. The facts so established should be consistent with the hpyothesis of
guilt and the accused, that is to say, they should not be explainable.,.on any other
hypothesis except that the accused is guilty; [163GJ

3. The circumstances should be of a conclusive nature and tendency;
[163G)

4. They should exclude every possible hypothesis except the one to be
proved ; and[163H]

5. There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consisient with the innocence of the accus-
ed and must show that in all human probability the act must have been done
by the accused. [164B]

These five golden principles constitute the panchsheel of the proof of a
case based on circumstantial evidence and in the absence of a corpus deliciti.
[164B]

Har.umant v. The State ofMadhya Pradesh [ 1952] SCR 1091 ; Tufa it (Alias)
Simmi v. State of Uttar Pradesh [1969] 3 SCC 198 ; Ramgopal v. State o/
Maharashtra AIR 1972 SC 656; and Shivaji Sahabrao Babode & Anr. v. State af
Maharashtra [1973] 2 SCC 793 referred to.

3:4. The cardinal principle of criminal jurisprudence is that a case can
be said to be proved only when thete is certain and explicit evidence and no
pure moral conviction. (164F)

The King v. Harry [1952] N.Z.L.R. Ill quoted with approval.

Hanumant v. State of M.P. [1952] S.C.R. !091 ; Dharambir Singh v. The
State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4. I 1.58) ; Chandra-
kant Nyslchand Seth v. The Sta(e of Bombay (Criminal Appeal No.120 of 1957
decided on 19.2.58) Tufail (aias) Simmi v. State of U.P. [1969] 3 S.C.C. 198 ;
Ramgopal v. State of Maharashtra AIR 1972 SC 656; Naseem Ahmed v. Delhi •
Administration [1974] 2 SCR 694/696 Mohan La/ Pangasa v. State of U.P. A.I.R.
1974 SC 1144/46 ; Shankarlal Gyarasila/ ]Dixit v State of Maharashtra (1981] 2
SCR 384/390; and M.C. Agarwal v. State of Maharashtra [1963]2 SCR 405/4!.9
referred to.

Denonandan Mishra v The State of Bihar [1955] 2 SCR 570/582 distin-
guished.

Some of the statements which have a causal connection with the death
of Manju or the circumstances leading to her death are undoubtedly admissible
SHARDA n. CHAND V. MAHARASH'ffiA 93

U:nder section 32 of the Evidence Act but other statem~nts which do not bear
any. proximity with the de~th or if at all very remotely and indirectly con-
nected with the death would not be admissible. [12tH]

3.5 In view of the close relationship and affection any person in the
position of the witness would naturally have a tendency to exaggerate or add
facts which may not have been stated to them at all. This is human phycho-
logy and no one can help it. Not that this is done consciously but even uncons- I
cigus\y the love and affection for the deceased would create a phychological
hatred against the supposed murdrer, the court has to examine the evidence of
interested witne~ses with very great care and caution. Even if the witnesses
were speaking a part of the truth or perhaps the whole of it they would be ,
guided by a spirit of revenge or nemesis agaisnt the accused person and in this
process certain facts which may not or could not have been stated may be
imagined to have been stated unconsciously by the witnesses in order to see
' that the offender is punished. [I22C-D]

3.6. A close and careful scrutiny of the evidence of the witness (PWs 2,
3, 4 and 5) who are close relatives or deceased and conspicuously reveals a
story which is quite different from the one spelt out from the letters (Exhs. 30,
32 and 33). In fact, the letters have a dilfeNnt tale to tell particularly in res· I
pect of certain matters. They are: [138D]

(i} There is absolutely no reference to suicidal pact or the circumstances
leading to the same: (ii) There is no reference even to Ujvala and her
illcit relations with the appellant ; (iii) There is no mention of the fact that
the deceased was not at all willing to go to Pune and that she was s~nt by
force ; (iv} The complaint~ made in the letters arc confined to 'illtreatment,
loneliness, neglect and anger of the husband but no apprehension has b~en
expressed in any of the letters that the deceased expected imminent danger to
her life from her husband ; (v) In fact, in th·e letters she had asked her sister
and friend not to disclose her and plight to her parents but while narrating
the facts to her parents, ~he herself violated the said emotional promise which
appears to be too good to be true and an after thought added to strengthen the
prosecution case ; and (vi) H there is anything inherent in the letters it is that
because of her miserable existence and gross ill-treatment by her husband,
Manju might have herself d~cided to end her life, rather than bother her
parents. Therefore, these witnesses are not totally dependable so as to exclude
the possibility of suicide and to come to an irresistible inference. that it was the
appellant who had murdered the deceased. Though a good . part of the evi-
dence is undoubtedly admissible, its probative value is precious little in view of
the several improbabilities, [138E-H ; 139A-B]

4.1. It is well-settled· that where on the evidence two possibilities are
available or open one which goes in favour of the prosecution and the other
which benefits an accused, the aC,:C\)Se~ is un9oubtedly entitled to the benefit
C?f doubt. p66HJ ·
94 SUPREME COURT REPORTS [1985) 1 S.C.R.

A In the instant case, the evidence clearly shows that two views are
possible-<Jne pointing to the guilt of the accused and the othe/ leading to his
innocence. It may be very likely that the appellant may have administered the
poison (potassium cyanide) to 1\fanju but at the same time a fair possibility
that ~he herself committed suicide c::nnot be safely e.~cluded or eliminated.
Hence, on this ground alone the appellant is entitled to the benefit of doubt
resulting in his acquittal. [168BJ

B 4.2: In the cases of murder by administering poison, the Court must
carefully scan the evidence and. determine the four important· circumstances
which alone can justify the conviction : (i} There is a clear motive for an
accused to administer poison to the deceased ; (ii) that the deceased died
of poison said to haYe been administered ; (iii) that the accused had the
poison in his possession ; and· (iv) that he had an opportunity to administer the
poison to the accused: [l67F·Hl
0 ·
4.3. In the instant case, taking an over all picture on this part of the
prosecution case the position seem.s to be as follows :[!SOD]

1. If the accused wanted to give poison while Manju was wide awake,
she would have put up stiffest possible resistance as any other person in her
D position would have done. Dr. Banerjee in his post-mortem report has not
found any mark of violence or resistance even if she was overpowered by the
appellant she would have shouted and cried and attracted persons from the
neighbouring flats which would have been a great risk having regard to the
· fact that some or the inmates of the house had come only a short-while before
the appellant. [ 150!~-F)
E
2. Another ·possibility which cannot be ruled out is that pottasium
cyanide may have been given to Manju in a glass of water lf she happened to
ask for it. Dut if this was so, she being a chemist herself would have at once
suspected some foul play and once her suspicion would have arisen it would be
very difficult for the appellant to murder her. [150G]
-,_ F
...... ........ ..
·"--. 3; 1he third possibility • is that as Manju had returned pretty late to
the flat and she "went to sleep even before the arrival of the appellant and then
be must have tried forcibly to administer the poison by the process of mc:chanj•
. -. cal suffociation, in which case alone the deceased could not have b:::n in a
posit1on to offer any resistence but this opinion of doctor, has not been accepted
by the High Court, after a very elaborate (consideration and discussion of the
evidence, the circumstances and the medical authorities, found that the opinion
of the doctor that Manju died by mechanical suffocation had not been proved
or at any rate it is not safe to rely on such evidence. [I SOH ; ISIA-C]

4. · The other possibility that may be thought of is that Manju died a
natural death. This also is eliminated in view of the report of the Chemical
Examiner as confirmed by the post mortem that the deceased died as a result
·H of administration of potassium cyanide, [152B]
SHARAD B. CHAND v. MAHARASHTRA 95

5. The only other reasonable possibility that remains is that as the A
deceased was fed up with the maltreatment. by her husband, in a combined
spirit of revenge and hostility after entering the flat she herself wok potas·
sium cyanide and lay limp and lifeless. When the appellant entered the room
he must have thought that as she was sle:ping she need not be disturbed but
when he found that there was no movement in the body after an hour his
suspicion was roused and therefore he called his brother from the adjacent fiat
to send for Dr. Lodha. [152C-D] B

-/ In these circumstances, it cannot be said that a reasonable possibility of
the deceased having committed suicide as alleged by th·! defence cannot be
safely ruled ·out or eliminated. It is clear that the Circumstances of the appel-
lant having been last seen with the deceased and has administered the opinion
has not been proved conclusively so as to rahe an irresistible inference that c
Manju's death was a case of blatant homicide. ~ [152E-F]

Further, in a matter of this magnlturle it would be quite natural for the
members of the appellants family to send for their own family doctor who
was fully conversant with the ailment of every member of the family. ln these
circumstances there was nothing wrong if the appellant and his brother went
to a distance of one and a half kilometer to get. Dr. Lodha. Secondly, Dr. I)
Shrikant Kelkar was a skin specialist whereas Dr. (Mrs,) Anjali Kelkar was a
Paediatrician and the appellant may have genuinely bcleived that as they
belonged to different branches, they were not at all suitable to deal with such a
serious case. The High Court was, therefore, wrong in treating this circum·
stance namely not calling the two Doctors in the flat, as an incriminating
conduct of the appellant. [157B-D]
E
The circumstances which were not put to the appellant in his examina-
tion under S. 313 of the Criminal Procedure Code must be completely excluded
.....,...
\
from considerating because the appellant did not have any chance to explain
them. Apart from the aforesaid comments there is one vital defect in some of
the circumstances relied upon by the High Court namely circumstances Nos.
4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. [160B; l59B·CJ
II'
Fateh Singh Bhagat Singh v. State of Mdhaya Pradesh AIR 1953 'scR
468; Shamu Balu Chagu.J.! v. State of Maharashtra 1976 1 SCC 438 and ;
Harijan Megha lesha v. State of Gujaral AIR 1979 SC 1566 referred to.

6. Viewing the entire evidence, the circumstance of the case and the
interpretation of the decisions of the Supreme Court the legal and G
factual position are (i) that the five golden principles enunciated by
the Supreme Court in Hanumant v. The State of M.P. [1952] SCR
1091 have not been satisfied in the instant case. As a logical corol-
lary, it follows that cannot be held that the act of the accused cannot
be explained on any other hypothesis except the guilt of the appellant nor can
it be said that in all human probability, the accused had commited the murder
of Manju. In other words, the prosecution has not fulfilled the essential require
ments of a criminal case which rests purely on circumstantial evidence ; (ii}
from th~ r~cital in tb~ letters Ex. P30~ Ex-P37 iln~ Ex-P33 il ca~ be safely held
96 SUPREME COURT REPORTS [1985] 1 s.c.R.

that there was a clear possibility and a tendency on the part of the deceased
Manju to commit suicide due to desperation and frustration. She seems to be tri-
ed of her married life, but she still hoped against hope that things might improve.
She solemnly ~elieved that her holy union with her husband bring health and
happiness to her but unfortunately it seems to have ended in a melancholy
marriage which left her so lonely and frustrated so much of emotional disorder
resulting from frustration and pessimism that she was forced to end her life.
There can be no doubt that Manju was not only a sensitive and sentimental
B . women was extremely impressionatc and the Jctterts show that a constant con-
flict between her mind, and body was going on and unfortunately the circums·
tances wl1ich came into existancc hastened her end. People with such a
psychotic philosopy or bent of mind always dream of an ideal and if the said
ideals fails, the failure drives them to end their life, for they feel that no charm
is left in their life ; (iii) The prosecution has miserably failed to prove one of the
most esse~tial ingredknts of a case of death caused by adminstration of poison
c i.e.. possession with the accused (either by direct or circumstantial evidence) and
on this ground alone the prosecution must fails . (iv) That is appreciating the
evidence, the High Court has clearly misdirected itself on many points, and has
thus committed a gross error of law ; (iv) That the High Court has relied upon
decisions of this Court which are either in applicable or which, on closer ex-
amination, do not support the view of the High Court being clearly distinguish-
able ; (vi) That the High Court has taken a completely wrong view of law in
D holding that even though the prosecution may suffer from serious infirmities it
could be reinforced by additional link in the nature of false defence in order to
supply the lacuna and has thus committed a fundamental error or law ; (vii)
That the High Court has not only misappreciated the evidence but has complete
ly overlooked the w·~ll established principles of law and has m(~rely tried to
accept the prosecution case based on tenterhooks and slender tits and bits ; (viii}
Tt is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW 33}
E which shows that poison was fo~cibly administered by the process of mechanical
suffociation ; (ix) There is no manifest defect in the investigation made by the
police which appears to be honest and careful. A proof positive of this fact is
that even though Rameshwar Birdichand and other members of his family who
had practically no role to play had been arraigned as accused but they had to be
a'cquitted by the High Court for lack of legal evidence ; (x) That in view of the
F findings two views are clearly possible in the present case, the question of de·
fence being false does not arise. [172E·H; 173A-H; 174A-D]

Per Varadarajan, J.

(Per contra on facts.)
c l :1. The three letters Exh. P 30, Exh. P 32 ~nd Exh. P 33 and the oral
evidence of PWs. 2, 3, 5, 6, and 20 are inadmissible in evidence under section
32 (1) of the Evidence Act. There is no acceptable evidence on record to show
tnat either the appellant or his parents illtreated the de~ceased Manju and that
the appellant had any illicit intimacy with PW 37 Ujvala. The alleged oral
statement of Manju and what she has stated in her letters Exh. 30, 32 and 33 may
relate to matters perhaps having a very remote bearing on the cause or the cir-
H C\lms~ances of her death. Those circumstances do not have any proximate
SHARAD B. CHAND 1', MAHARASHTRA 97

relation to the actual occurence resulting in her death due to potassium cyanide A
poison, though for instance in the case of prolonged poisoning they may relates
to dates considerably distant from the date of the actual fatal dose. They are
general impressions of Manju indicating fear or suspicion, whether of a parti-
cular individual or otherwise and not directly related to the occasion or her
death. Ii is not the~ case of the prosecution either that the present case is one
of parlonged piosoning. [t87B1; 190D-F]
B
1 : 2. The fact that the High court has rejected the case of the prosecu-
tion based on Dr. Banerjee's report and evidence that it was also a case of
mechanical sulfoctation is "'ot one that could be ,taken into consicter~tion as a .
mitigating Circumstance in judging the conduct of the doctor who had conducted
the autospy in a case of susvicious death. The, condu9t_ of the doctor in m'aking
certain later interpolations in the case of suspicious death in which ~he appellant
has been sentenced to death by the two courts below deserves serious condem-
c
nations. The doctor has tempered with material evidence in the case of alleged
murder may be at the instance of somebody else, ign~:Jring .the probable conse-
quences of his act. In these circumstances Dr..Banerjee PW 33 is person who
should not be entrusted with any serious and respon~ibl.c w~rk such as co.1duc..
ting autopsy in public interest. In this case the appellant would have gone to
gallows on the basis of the evidence of PW 33 as he would have the Court to D
believe it, imd the other evidence, if they had been accepted. [193D-H]

1 : 3. Section 313 Criminal Procedure Code Jays down that in every
inquiry or trial tor the purpose of enabling the accused personally to explain any.
circumstance appearing in the evidence· against him, the cou.rt may at any stage
without previously warning the accused, put such questions to him as the court
considers necessaty and shall, after the witnesses for the prosecution have been E

- examined and before he is called for his defence, question him· generally on the
case. Hence the evidence on the basis on which question Nos. 25, 30, 32 and
115 have been put to the appellant are wholly irrelevant as these questio~~ do
not relate to any circumstance appe~ring in the against the appellant. Th~
learned Additional Sessions Judge was bound to exercise control over the evi-
dence being tendered in his court and to know the scope of. the e11amination of
the accused under Section 313 Criminal Procedure Code.[195A·CJ F

Per Sabyasachi Mukharji, J. (Concurring)

Though the test 1Jf proximity cannot and should not be two literally con-
strued and be reduced 'practically to a· cut-and-dried formula of universal
application, it must be emphasised that wherever it is extended beyond the im-
mediate, it should be explained and must be done with very great caution and G
care. A~ a general proposition it cannot be laid down for all purposes that for.
instance where the death takes place within a short time of marriage and. the.
distance of time is not spread over three or four months, the statement would be
admissible under Section 32 of the evidence Act. This is always not so and
cannot be so. In very exceptional circumstances such statements may be
admissible and that too not for proving the positive f~ct, namely raising some
H
do4bt about the, guilt of the accused [1970-F] ·
A
98 SUPREME COURT RllrORTS f1985] 1 S.C.R. ·-
CRIMINAL ArPI:LLATE JuRISDICTION : Criminal Appeal No. 745
of 1983

From the Judgment and Order dated the 20th, 21st, 22nd, 23rd
September 1983 of the Bombay High Court in Criminal Appeal No.
B
265 of 1983 with confirmation case No. 3/83.

' Ram Jethmalani, M.S. Ganesh, F.N. Ranka and Ms. Rani

G
Jethma/ani for the Appellant.

KG. Bhagat, Add/. Solicitor Gcncrul, M.N Shroff and U.A.
·--
Jadhavrao for tl1e Respondent.

The following Judgments were delivered

FAZAL ALI, J. This is rather an unfortunate case where a
D marriage arranged and brought about throu1~h the intervention of
common friends of the families of the bride and bridegroom though
made a good start but ran into rough weather soon thereafter. The ' .
bride, Manju, entertained high hopes and aspirations and was not
only hoping but was anxiously looking forward to a life full of mirth
E and merriment, mutual love and devotion between the two spouses.
She appears to be an extremely emotional and sensitive girl at
the very behest cherish~d ideal dreams to be achieved after her
marriage, which was solemnised on February 11, 198, between her
and the appellant, Sharad Birdhichand Sarda. Soon after the

F
marriage, Manju left for her new marital home and started residing
with the appellant in Takshila apartments at Pune. Unfortunately,
however, to her utter dismay and disappointment she found that the
.
treatment of her husband and his parents towards her was cruel and
harsh and her cherished dreams seem to have been shatrered to
pieces. Despite this shocking state of affairs she did not give in and
kept hoping against hope and being of a very noble and magn-
G animous nature she was always willing to forgive and forget. As
days passed by, despite her most laud-:tble attitude she found that
• "things were not what they seem" and' to quote her own words "she
was treated in her husbans house as a Ia bourer or as an unpaid
maid-servant". She was made to do all sorts of odd jobs and
despite her protests to her husband nothing seems to have happened.
Even so, Manju had such a soft and gentle frame of mind as never to
complain to her parents-in-law, not even to her husband except
H sometimes. On finding things unbearable, she did protest 1 and ex
SHARAD. B. CliA'ND v. MAHARASHTRA (Faza/ Ali, J.) 99

pressed her ' feelings in clearest possible terms, in a fit of utter
A
desperation and frustration, that he hated her. Not only this, when
she_ narrated her woeful tale to her sister Anju in the letters written
to her (which would be dealt with in a later part of the judgment),
she took the abundant care and caution of requesting Anju not to
reveal her sad plight to her par'ents lest they may get extremely
upset, worried and distressed. B
I
~.Ultimately, things came to such a pass that Manju was utterly
~gusted and disheartend and she thought that a point of no-return
had reached. At last, on the fateful morning of June 12, 19 82, i.e.,
~

nearly four months after her marriage, she was found dead in her
bed. c
As to the cause of death, there appears to be a1very serious diver-
gence between the prosecution version and the defence case. The
positive case of the prosecution was that as the appellant was not at
all i~terested in her and •had illicit intimacy with anoth-er girl, Ujvala,
he practically discarded his wife and when he found things to be D
unb~arable he mu_rdered her between the night of June 11 and 12,
1982, and made a futile attempt to cremate the dead body~
Ultimately, the matter was reported to the police. On the other
hand, the plea of the defence was that while there was a strong
possibility of Manju having been ill-treated and uncared for by her
E
husband or her in-laws, being a highly sensitive and impressionate
woman she committed suicide out of sheer depression and frustra·
-rton arising from an emotional upsurge. This is the dominant
issue which falls for decision by this Court.

'" ' Both the High Court and the trial court rejected the theory of F
suicide and found that Manju was murdered by her husband by
administering her a strong dose of potassium cyanide and relied on
the Medical evidence as also that of the chemical examiner to show
that it was a case of pure and · simple homicide rather than that of
suicide as alleged by the defence. The High Court while confirming
-the judgment of the trial court affirmed the death sentence and G
hence this appeal by special leave.

Before discussing the facts of the case, it may be mentioned
that although the High Court and the trial court have gone into
meticulous and minutest matters pertaining to the circumstances
leading to the alleged murder of Manju, yet after going through the H
100 SUPREME COURT REPORTS (1985] 1 S.C.R-_

A' judgments we feel that the facts of the case lie within a very narrow
compass.

The story of this unfortunate girl starts on 11.2.1982 when her
marriage was solemnised with the appellant preceded by a formal
betrothal ce·remony on 2.8.8!. after the marriage, Manju, for the
first time, went to her parents' house on 22.2.82 for a very short
period and returned to PtlOe on 26.2.82. It is the prosecution c~se
that on 17.3.82 the appellant had called Manju at Pearl Hotel
where he introduced her to Ujvala and told her that she must act~
according to the dictates and orders of Ujvala, if she wanted•to
0 lead a comfortable life with her husband. In other words, the
suggestion was that the appellant made it clt~ar to his wife that
Ujvala was the real mistress of the house and Manju was there only
to obey her orders. After this incident, Manju went to her parents'
house on 2.4.82 and returned to Pune on 12.4.82. This was her
second visit. The third and perhaps the_last visit of Manju to i1er
D
parents' house was on 25.5.82. from where she returned to Pune
on 3.6.82, never to return again. The reason for her return to Pune
was that her father-in-law insisted that she should return to Pune
because the betrothal ceremony of Shobha (sister of the appellant)
was going to be held on 13.6.82.
E
The last step in this unfortunate drama was that Manju,
accompanied by Anuradha (wife of A-2) and her children, returned
to the fiat on 11.6.82 near about I I .00 p.m. He:r husband was not-
in the apartment at that time but it is alleged by the prosecution
that he returned so6n after and administered potassium cyanide to
F
Manju. Thereafter, the appellant went to his brother, Rameshw.ar
who was also living in the same fiat and brought Dr. Lodha (PW 24)
who was living at a distance of 11/2 Kms from Takshila Apartments.
At the suggestion of Dr. Lodha Dr. Gandhi (PW 25) was also called
both and of them found that Manju was dead and her death was an
unnatural one and advised the body to be sent for post-mortem in
order to determine the cause of death. Ultimately, Mohan Asava (PW _
30) was approached on telephone and .was informed [that Manju had\
G
died at 5.30 a.m. Subseqnently, the usual investigation and the post- •
mortem followed which are not very germane for our purpose at
present and would be considered at the appropriate stage.

The plea of the appellant was that Manju was not administered
B potassium cyanide by him but she appears to have committed
Sl'iARAD ll. CHAND 1'. MAHARASHTRA (Fuza/ Ali, J.) 101
-suicide out of sheer frustration. In order to prove his bona fide the
the accused relied on the circumstances that as soon as he came to
•· know about the death of his wif~ he called two Doctors (PWs 24 &
25) and when they declared that Manju had died an unnatural death,
as the cause of death was not known, and therefore the body had to
be sent for post-mortem, he immediately took steps to inform the
police. He flatly denied the allegation of the prosecution that B
there was any attempt on his part to persuade Mohan Asava (PW 30)
to allow the body of the deceased to be cremated.

, We might state that the High Court has mentioned as many as
~7 circumstances in order to prove that the circumstantial evidence
pr'octuced by the prosecution was complete and conclusive, Some of 0
these circumstances overlap, some are irrelevant and some cannot be
taken into considetation because they \vere not put to the appellant
in his statement under s. 313 of the Code of Criminal Procedure in
order to expla~n the effect of the same as we shall presently show.

The law regarding the nature and character of proof of 0
circumstantial evidence has been settled by several authorities of
this Court as also of the High Courts, The locus classicus of the
deCision of this Court is the one rendered in the case of Hanumant v.
The State of Madhya Pradesh (1) where Mahajan, J. clearly expoun~ed
the various concomitants of the proof of a case based purely on
circumstantial evidence, and pointed out thus: E

"The· circumstances should be of a conclusive nature
_ and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved······ it must
b~ such as to_ show that within all human probability the F
•• act must have been done by the accused."

This decision was followed and endorsed by this Court in the
c~.se of Oharam)ir Snigh v. The State of Punjab.(2 ) we shall howevet
discuss Hanumant's case fully in a later pan of our judgment. Com-
G
ing now to the ·question of interpretation of sec. 32(1) of The
Evidence Act, this Court in the case of ·Ratan Gond v. State of
-BiharCJ S.K. Das, J. made the following observations:

(I) [ 1952} SCR 1091.
(2) Criminal Appeal No. 98 of !958 decided on 4.11.58 printed on green
papers in bound volumes.
(3) [1959] SCR 1336.
to2 SUPREME CoUIU REPORTS [198S] l s.C.R. /
·. ___/ / /
"The.only relevant cl<mse of s. 32 which may be said / .
to have any be_!lring is c&..(J) which relates Ito statements _
made by a person as to -the. c·ause of his death or as to any
of the circumstances of the transaction which resulted in his
death. In the case before us, the statements made made by
Aghani do not relate to the cause of her death or to any of
B the circumstances relating to her death; on the contrar·y,
the statements relate to the death of her sister."
' I

In the 'Law of Evidence' by Woodroffe & Ameer Ali
(Vol. 11) the authors have collected all the cases ai one
place and indicated thei(conclusions thus:
c
"To sum up, the test of the relevancy of a statement under
Section 32(1), is not what the final finding in the case is but
whether the final finding in the case. is but whether the
cause of the death of the person making the statement
D comes into question in the case. The expression 'any of the
Circumstances of the . transaction which resulted ·in his
death'; is wider in scope than the e~pression 'the cause of
his death' ; in other words, Clause' (1) of Section 32 refers
to two kinds of statements : (1) statement made by a person .
as to the cause of his death, and (2) the staieJ?ent made by
E a person as to any of the circumstances of the transaction
which resulted in his death.

The words, •'resulted in hls death' do not mean
'caused his death', Thus it is well settled that declarations ·
are admissible only in so far as they point directly to the
fact constituting the res gestae of the homicide ; that is
to say, to the act of killing and to . the circumstances
immediately attendant thereon, like threats and difficulties ./ -
acts, declarations and incidents, which constitute . or ·;»
accompany and explain the fact or transaction in issue.
G
. They ~re admissible for or against either party. as forming
parts of the res gestae."
(P. 952)

It would appear that the solid foundation and the pivotal
pillar on wihch rests the edifice of the prosecution may be indicated
as follows : -
SHARAD B. CHA~D v. MAHARASHTRA (Fazal Ali, J.) 103
A
(l) Written dying declaration by the dcc~.:ased in her
letters, two of which were addressed to her siste~ Anju
and one to her friend Vahini,

(2) The oral statements made by the decease.d to her
father (PW 2), mother (PW 20), Sister (PW 6) and B
her friend (PW 3) and aho to PWs 4 and 5 showing
her state of mind shortly before her death and the
complaints which she made regarding the ill-treat-
ment by her husband,

(3) evidence showing that the appellant was last seen c
---· with the deceased in the room unti.l the matter was
reported to the police.

(4) the unnatural and incriminating conduct of the
appellant,
D
(5) the medical evidence taken alongwith the Report
of the chemical examiner which demonstrably proves
that it was a case of homicide, completely rules out
the theory of suicide as alleged by the appellant.
E
Mr. Jethmalani, learned' counsel for the appellant, has
vehemently argued that there was a very strong possibility of the
deceased having committed suicide due to the circumstances men~
tioned in her own letters. He bas also questioned the legal admis~
sibility of the statements contained. in the written and oral dying
declarations. He has submitted that the so-called dying declarations F
are admissible neither under s. 32 nor under s. 8 of the Evidence
Act. lt was submitted by the appellant that the present. case is

.. not at all covered 'by cl. (1) of s. 32 of the Evidence ;\ct.

The leading decision on this question, which has been endorsed
by this Court, is the case of Pakala Narayana Swami v. Emperorci) G
where Lord Atkin has laid down the following tests :

"It has been suggested that the statement must be
made after the transaction has taken place, that the per-
son making it must be at any rate near death, that the
"circumstances" can only include the acts done when and H

(l) AIR 1939 PC 47.
104 StiPREMll COURT REPORTS [1985]1 S.C.R.
A
where the death was caused. Their Lordships are of
opinion that the natural meaning of the words used does
not convey any of these limitations. The statement may
be made before the cause of death has arisen, or before
the deceased has any reason to anticipate being killed.
The circumstances must be circumstances of the transac-
B
tion : general expressions indicating fear or suspicion
whether of a particular individual or otherwise and not
directly related to the occasion of the death will not be
admissible---Circumstances of the, transaction" is a
phrase no doubt that conveys some limitations. Jt is not
c as broad as the analogous use in "circumstantial evidenc;"
which includes evidence of all relevant facts. It is on the
other hand narrower than"res gestae". Circumstances
must have some proximate relation to the actual occurrence.
- - - - I t will be observed that"the circumstances are of
the transaction which resulted in the death of the decla-
D rant."
Tl1ese principles were followed and fully endorsed by a deci-
sion of this Court in Shiv Kumar & Ors. v. The State of Uttar
Pradesh(1 l where the following observations were made :
"It is clear that if the statement of the deceasod is to
E be admissible under this section it must be a statement
relating to the circumstances of the transaction resulting
in his death. The statement may be made before the
cause of death has arisen, or before the deceased has any
reason to anticipate being kiJled,---A necessary con-
dition of admissibility under the section is that the cir-
F cumstance must have some proximate relation to the actual
occurrence---The phrase "circumstances of the tran-
saction" is a phrase that no doubt conveys some limi-
tations. It is not as broad as the analogous us1~ in
"circumstantial evidence" which includes evidence of all
relevant facts. It is on the other hand narrower than "res
G gestae" (See Paka/a Narayana Swami v. The King
Emperor AIR 1939 PC 47).

The aforesaid principles have been followed by a long catena -
·,
of authorities of almost all the courts which have been noticed in
this case. To mention only a few important ones, in Manoher La/
H
(1) Crl. Appeal No. 55 of 1966 decided on 29· 7- 66 and printed in blue
prints of Supreme Court Judgments.
SHARAD B. CHAND v. MAHARASHTRA (Faza/ Ali, J.) 105

, & Ors. v. The State of Punj:tb(1), the Division Bench of the Pu,njab &
Haryana High Court observed thus :

The torture administer-ed sometimes manifests itself in
various forms. To begin with, it might be mental torture
and then it may assume the form of physical torture. The
A

physical harm done to the victim might be increased from B
stage to stage to have the desired effect. The fatal assault
might be made after a considerable interval of time, but if
the circumstances or' the torture appearing in the writings
of the deceased come into existence after the initiation of
the torture the same would be held to be relevant as laid
down in Section 32(1) of the Evidence Act." c
We fully agree with t4e above observations made by the
learned Judges. In Protima Dutta & Anr. v. The State(2) while
relying on Hanumant's case (supra) the Calcutta High Court bas
clearly pointed out the nature and limits of the doctrine of proxi-
mity and has observed that in some cases where there is a sustained D
cruelty, the proximity may extend even to a period of three years.
In this connection, the High Court observed thus:

"The 'transaction' in this case is systematic ill treat-
ment for years since the marriage of Sumana with incite- E
ment to end her life. Circumstances of the transaction
include evidence of cruelty which produces a state of mind
favourable to suicide. Although that would not by itself
be sufficient unless there was evidence of incitement to end
her life it would be relevant as evidence,
F
This observation taken as a whole would, in my view,
imply that the time factor is not always a criterion in
determining whether the piece of evidence is properly
included within "circumstances of transaction."---"In
that case the allegation was that there was sustained cruelty
G
extending over a period of three years interspersed with
exhortation to the victim to end her life." His Lordship
further observed and held that the evidence of cruelty

r was one continuous chain, several links of which were
touched up by the exhortations to die. "Thus -evidence

(I) 1981 Cr- L.J. 1373.
H
(2) 81 C-W.N. 713.
106 SUPREME COURT REPORTS [1985) 1 S.C.~.
A

B
of cruelty, ill treatment and exhortation to end her life
adduced in the case must be held admissible, together with
the statement of Nilima (who committed suicide) in that
regard which related to the circumstances terminating in
suicide."
,
Similarly, in Onkar v. State of Madhya Pradesh(1) while follo-
wing the decision of the Privy Council in Pakala Narayana Swami's
case (supra), the Madhya Pradesh High Court has explained the
nature of the circumstances contemplated by s. 32 of the Evidence
C Ad thus:

"The circumstances must have some proximate rela-
tion to the actual occurrence and they can only include
the acts done when and where the death was caused.----
Thus a statement merely suggesting motive for a crime
D
cannot be admitted in evidence unless it is so intimately
connected with the transaction itself as to be a. circum-
stance of the transaction. In the instant case evidence
has been led about statements made by the deceased
long before this incident which may suggest motive
E for the crime."

In Al/Uwz Munshi v. State(2 ), the Bombay High Court has
taken a similar view.

In Chinnavalayan v. State of Mad ras(3 ) two eminent Judges
F of the Madras High Court while dealing with the connotation of
the word 'circumstances' observed thus :

"The special circumstance permitted to transgress· the
time factor is, for example, a case of prolonged poisoning,
while the special circumstance permitted to transgress the
G a
distance factor is, for example. case of decoying with
intent to murder. This is because the natural meaning of
the words, according to their Lordships, do not convey
any of the limitations such as (1) that the statement must
be made after the transaction has taken place, (2) that the

(1) (1974] Crl. L.J. 1200.
H (2) AIR 1960 Bom. 290.
(3) [19591 M,L.J. 246•
SllARAD B. CllA'ND v. J.tAUARASilffiA (Faza/ Ali, J.) 107

person malcing it must be at any rate near death, (3) that A
the circumstances can only include acts done when and
where the death was caused. But the circumstances must
be circumstances of the transaction and they must have
some proximate relation to the a_ctual occurrence."

In Gokul Chandra Chatterjee v. The State( 1) the Calcutta High B
Court has somewhat diluted the real concept of proximity and
'r observed thus :

.'In the present case, it cannot be said that statements
in the letters have no relation to the cause of death.
What drove her to kill herself was undoubtedly her c
unhappy state of ~ind, but the statements ·in my view
have not that proximate relation to the actual occurrence
as to make them admissible under s. 32(1), Evidence Act.
They cannot be said to be circumstances of the tran-
saction which resulted in death.'' 0

__ .We, however, do not approve· of the observations made by
the High Court in view of the clear decision of this Court and
that of the privy Council. With due respect, the High Court has
not properly interpreted the tenor and the spirit of the ratio· laid
down by the Privy Council. , We are, therefore, of the opinion E
that this case does not lay down the correct law on the subject.

·· Before closing this chapter we might state that the Indian
law on the question of the nature and scope of dying declaration bas
F
made a distinct departure from the English law where only the
statements which directly relate to the cause of death are admi-
ssible. The second part of cl.(l) of s. 32, viz." the circumstances
of the transaction which resulted in his death, in cases i~ which the
cause of that person's death comes into question" is not be found
in the English law .. This distinction bas been clearly pointed out G
in the case of Rajindera Kumar v. The State( 2) where the following
observations were made : _
"Clause (1) of s. 32 of the Indian Evidence Act pro-
vides that statements, written or verbal, of relevant facts
made by a person who is dead,---are themselves rele-
-~-
(1) AIR 1950 Cal. 306.
(2) AIR 1960 Punjab 310.
. 108 SUPREME COURT REPORTS
ti 985] 1 s.c.i\,
A
vant facts when the statement is made by a person as to
the cause of his death, or as to any of the circumstances of
.. the transaction which resulted in his death, in case, in
. which the cause of that person's death comes into ques-
tion.---lt is well ~ettlcd by now that there is differ-
B ence between the Indian Rule and the English Rule with
regard to the · necessity of the declaration having been
made under expectation of death. · · ·'

In the English Law the declaration should have been
made under the sense of impending death whereas under
c the Indian Law it is not necessary for the admissibility of
a dying declaration that the deceased at the time of '·'
making it should have been under the expectation of
death.

D And in the case of State v. Kanchan Singh & Alzr.(1) it was
observed thus :

"The law in India does not make the admissibility of
a dying declaration dependtlnt upon the person's having
a consciousness of the approach of death. Even if the
E person did not apprehend that he would die, a statement
made by him about the circumstances of his death would
be admissible ur.dcr s.
.i2. Evidence Act.

In these circUmstances, therefore, it is futile to refer to English
cases on the subject.
F
Thus, from a review of the authorities mentioned above and
the .c~car language of s.32(1) of the Evidence Act, the following pro·
pos1t10ns emerge : - · ~. ~
.. ,.
G (I) Section 32 is an exception to the· rule of hearsay
and makes admissible the statement of a person who dies, ·
"'.hether the death is a homicide or a suicide, provided the ·
s~,ttemcnt relates to the cause of death, or exhibits
Circumstances le~ding to death. In this respect,. as indicated
abov:•. the lnd1an Evidenc.e Act, in view of the peculiar
condrtJOns of ou · d · d
r soctety an the d1verse nature an
(2) AI~ 1954 ALL 153.
H

[
--====
SHAR!\.D D. CH:AND v. MAHARASHTRA (Fazal Ali, J.) 109

character of our people, has thought it necessary to widen
the sphere of s.32 to avoid injustice.
'
(2) The test of proximity cannot be too literally con·
strued and practicaHy reduced to a cut-and-dried, formula
of universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the circumst·
.. ances of each case. For instance, where death is a logical
culmination of a continuous drama long in process and is,
as it were, a finale of the story, the statem~nt regarding
each step directly connected with the end of the drama
would be admissible because the entire statement would
have to be read as an organic whole and not torn from the
context.- Sometimes statements relevant to or furnishi n~
an immediate motive may also be admissible as being a
part of the transaction of death. Tt is manifest that all
these statements come to light only after the death of the
deceased who speaks from death. For instance, where the
death takes place within a very short time of the man:jage
or the distance of time is not spread over more than 3-4
months the statement may be admissible under s.32.

(3) The second part of cl.l of s.32 is yet another ex-
ception to the rule that in criminal law the evidence of a
person who was not being subjected to or given an apport·
unity of being cross-examined by the accused, would be
valueless because the place of cross-exmamination is taken
by the solemnity and sanctity of oath for the simple reason
.. that a person on the verge of death is not likely to make a
false statement unless there is strong evidence to show that
the statement was secured either by prompting or tutoring.

(4) It may be important to note that s.32 does not
speak of homicide alone but includes suicide also, hence
all the circumstances which may be relevant to prove a case
of homicide would be equally relevant to prove a case of
suicide.

(5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and which reveal a tell-tale
story, the said statement would clearly fall within the four
~~111ers of s.32 and, therefore~ admissible. The distance of
110 SUPREME COURT REPORTS [1985] 1 S.C.R.

time alone in such cases would not make the statement
irrelevant.

This now brings us to a close consideration of the contents of
the letters (Exhs. 30, 32 and 33) written by Manju to her sister and
friend. We propose to examine the contents of the letters for four
purposes:

1) in order to find out the state of mind and psychological
attitude of Manju,

2) the nature of Manju's attitude towards her husband and
in-laws,

3) the amount of tension and frustration which seems to
be clearly expressed in the letters and

4) to determine Manju's personal traits and psychological
approach to life to determine if she was ever capable
of or prone to committing suicide.

We start with the letter 'dated 8.5.82 (Ex. 30) which was
addressed to her sister Anju and is printed at page 191 of Part I of
the printed Paperbook. The learned counsel for the appellant in
order to make our task easy has supplied the English translation as
also the Roman script of the original letter. On a comparison of
the two versions, we are of the opinion that by and large the English
translation printed in the Paperbook is a true and faithful rendering
of the contents of the original letter. It is not ner.;essary for us to
-
extract the entire letter but we propose to extract only the relevant
portions which seek to explain and illustrate the four purposes
...
mentioned above.

"A 11 read the letter with curiosity, or it may go to any-
body's hand. { do not want to take any risk. So I have
taken up today for writing, the second letter to you."
The Roman scripy runs thus :- (P.l91)

''Khat to sabhi utsukta se padte hain. Kahin kisi ke
hath pad saktahai. Aisi risk leni riahin aai. l>liye maine
tumhc aaj doosra khat likhneko liya." (P.17)

An analysis of the above clearly shows that Manju was a
'
highly
. secretive woman and wanted to .keep her personal matters or
SHARAD B. CHAND v. MAHARASHTRA (Faza/ Ali, J.) 111

secrets to herself except giving a rough idea or a passing glimpse of A
her feelings only to those who were very clos_e to her as friends or
near relations. The extract shows that perhaps in a spell of heavy
emotions she had written a very long letter to her sister whom she
regarded as her best friend but on second thought she tore it off
lest it may fall in anybody's l1ands and she was not prepared to
take such a ris.k. This mentality and noble nature would be of B
great assistance to us in assessing the probative value of the state-
ments made by her to her parents, sister and friend during her last
visit to Becd. The second paragraph, which rs extracted below,
reflects her state of mind and the tension and torture which she was
undergoing :
c
"Now in this letter, when (Out of) the things coming
to my mind which cannot be written, 1 do not understand what
is to be written, The State of mind now is very much the
same. Enough. You understand (me). Tam 11ndergoing a
very d(fjicult test. I am unable to uchieve it. Til! I could
D
control (myse(f), well and good. When ir br:comes impossible,
Some other II'G}' will have to be croll'ed. Let us see what
happens. All right." (P.l91)

She has hinted that she was passing through difficult times but
was trying to control herself as much as she could. She has further E
indicated that if things did not improve then she may have to evolve
some other method. The exact words used in the Roman script runs
thus :

.. "Jab tak sambhal sakti boon theek haf jab assambhab ho
jayega to phir rasta nikalna padega, dckhenge kya kya hota F
hai," (P.l7)

The words "some other way will have to be evolved" clearly
gives a clue to her psychotic state of mind and seem to suggest that

-- the other method to get rid 0f all her troubles was to commit suicide.
It is pertinent to note that in the first two paragraphs of her letter
'
G
extracted above there is no indication nor any hint about the conduct
of her husband.

In the third para of her letter she states her feelings thus :
"I thought much that since the house of my husband's H
parents is at Pune, I would do this and that or the people
\
112 SUPREME COURT REPORTS [1985] 1 s.c.R. ·-
A from the house of my husband's parents are free. However,
I have gradually come to know that in that house, the
worth of a daughter-in-law is no more than that of a
labourer." (P.l9l)

The relevant protion in the Roman script reads thus :
B
"Is ghar mein bahu ki keemat majdoor se jyada nahin
hai." {P.l8) ----..(

At the end of the third paragraph she repeats her sad plight
.
thus:
c "My state here however is like an unclaimed person.
Let it be gone. I do not like to weep (over it). When we
will meet, we will talk all the things."

[n the middle of the 4th paragraph she comes out with an
emotional outburst by indicating that all her hopes had been shattered
D
and because of being neglected by her husband her health was
adversely affected. In the Roman script she used the following
words:

"Sachmuch kya kya sapne rahte hain kuarepanmein,
E magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu
maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha
ki mera pati mujhse bahut pyar kare, magar abhi wo bhi na
pakar dilki halat per kaboo nahin pa sak rahi. Tabiyat par
-
F
uska asar dikh raha hai. "
(P. 19-20) ..
In the latter part of the 8th paragraph while giving vent to
her feelings she states thus:

"Now Manju is moving, it is necessary to tell that she
is alive. You don't tell anybody about this letter. I felt
G . like telling all this to Bhausab. What, however, is the use
of making him sorry. One should test one's fate, whatever
may be the result. I want to tell you all. But I cannot
-
tell."

The words used by her show her affectionate and secretive
natme and the precaution taken by her not to tell any thing to her
father, who is addressed as 'Rhausab'. The Roman script of the
H relevant portion runs thus:
\

SHi\R.AD D. CHAND v. MAHARASliTRA (Fazal Ali, J.) 113

"Dil tu karta tha Bai Bhau Sabab ko sab bataon, A
magar unko dukh dekar kya phaida. Apne apne naseeb
dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch
batana hai magar bata nahin sakti."
(P.22)
These extracts throw a flood of light on the nature, character,
mental attitude, suffe.r;ing and shock of the deceased. One thing B·
which may be conspicuously noticed is that she was prepared to take
all the blame on her rather than incriminate her husband or her in~
laws. The other t:JOrtions of the letter (Ex.30) are not at all germane
for the purpose of this case. S~mmarising the main contents of the
letter, the following conclusions or inferences follow:
..
c
(a) Manju was a highly ·emotional and sensitive woman,

(b) She got the shock of ·h er life when due to ill-treat~
ment by her husband and in-laws she found that all her
dreams had been shattered to pieces after marriage
leaving 11er a dejected, depressed and disappointed a
woman,

(c) she had been constantly ill·treated by her in~laws and
her position in the house was nothing but that of an
unpaid maid-servant or a labourer,
E
(d) she wanted to keep all her worries and troubles to
herself and on no account was she prepared to disclose
them to her parents or even to her sister, lest they also
get depressed and distressed .

• (e) no serious allegation of cruelty had been made against
the husband personally by her and she thought that she
herself should suffer out of sheer frustration.

Now- we shall examine Ex.32 which is a letter dated 8.6.82
F

written by Manju to her sister Anju. This was perhaps her last
letter to Anju and is very i,mportant and relevant for decision of the
G
case. The Jetter begins with the words "I am happy here." In the
second paragraph she expresses her feelings as follows:

"Shobhabai's :'Sadi' programme is fixed on 13th I do
not know why there~~ such a dirty atmosphere in the house ?
{t is felt every moment that something will happen.
H
114 SUPREME COURT REPORTS [1985] 1 S.C. 1,·

A Everybody is in tension. No work has been started in the
house. Let it go. I am out of mind. Still I am used
not to pay need to it. Ala what about your law."
(P.195)

So far as the first part is concerned, the 'dirty atmosphere' about
B
which she speaks is totally unrelated to anything done by the husband
or of any cruel treatment by him; it merely refers to the tension
prevailing in the family as the 'Sadi' (Kohl) was fixed on 13.6.82.
Her anger is not so much towards her husband or herself as for the
manner-in which things were being done. · She complained that no
c work had been started and being the eldest daughter: in law of the
family she felt it her duty to see that all arrangements were complete.
It was conceded by the Additional Solicitor-General that this
portion of the letter does not refer to any ill-treatment by the hus-
band or his parents but relates only to the defective and unsatisfac-
tory arrangements for such an important function. The relevant
0 portion of the 3rd paragraph is also more or less innocuous but in
between the lines it contains a tale of woe, a spirit of desperation
and frustration and a wave of pessimism. the actual vernacular words
are-

"Mera to aane ka kya hota hai dekna hai Buajike
yahan se khat aur aaya to shahid chance mil sakta hai.
Magar meri mangal ke dulhan ke roop mein dekhne ki
bahut ichha hai. Dekhenge. ' '

She was naturally apprehending some thing and was not very
hopeful of going to her father's place. This being her last letter, and
F
that too a short one, it gives ~ clear inkling of the manner of how ~
her"mind was working. She d1d not lay any blame on her husband or . . . . .
anybody else but still she was afraid that something was going to
happen and that she may not be able to go to her father and see the
marriage of her sister-in-law for which preparations were being
G made. In our opinion, these words are extremely prophetic and
seem to indicate that by that time she"had almost made up her mind
•• to end her life instead of carrying on her miserable existence.
As brevity is the soul of wit, she directly hinted that she may not
be able to meet her father or any body naturally because when a life
comes to an end there can be no such question. Exh. 32, though a
short letter, depicts her real feeling and perhaps a tentative decision
which she may have already taken but did not wapt to disclose for
H obvious reasons.
SHARAD B. CHAND V. MAHARASHTRA (Faza/ Ali, J.) 115

Then we come to Exh'33 which is a letter dated 23.4.82 written A
by the deceased to her close friend, Vahini and which shows her
exact feelings, changing, mood and emotions. This is the only letter
where she had made clear complaints against her husband and the
relevant portions may be extracted thus:
B
"Really, Vahini, I remember you very much. Even if
f am little uneasy, I feel that you should have been near
with me.

All persons here are very go~d. Everybody is loving.
Still I feel lonely. One reason is that, in the house c
there are many persons and they are elder to me and such
I do not dare to do any work independently. Every time
some fear is in mind which leads to confusion.

God knows when I can come there ? The point on
D
which we had discussion is as it was. Vahini. I swear you
if you talk to anyone. I am much in pqins. But what else
can ·I do? No other go than that, and the same mistake is
done again and again by me. It is that I go ahead and
talk for ten times, then I become angry if he does not .
speak. Vahini, there is nothing in my hands exc~pt to weep E
profusely. At least till nowI this man has no time to mind
his wife, let it be, but Vahini, what shall I do?" (P. 196)

"Who knows what hardships·· be-fall on me, so long
I am alive. Why the god bas become (unkind) towards
tpt:." (P.197) F

"Since yesterday I have made up my mind not to
speak a word even, till he speaks (to me). Let me see to
what extent I control my feelings.: Vahini, you also pray
to god for me whether a girl like me should be put to such
G
a difficult test. .Vahini, I am so much afraid of him that
the romantic enchantment during first 10-15 days after
marriage has become like a dream."

"I cannot dare to ask him whether his clothes be taken
for wash. At present my status is only that of a maid-,
(lervant without pay as of right. ll
116 SUPREME COURT REPORTS (1985}1 S.C.R.
·A
Why so much indifference towards me on1y? Vahini,
1; feel to weep in your arms. Vahini come to Pune early.

On getting up every morning I feel he will speak
today but every day I am hoping against hope. Vahini,
B what will happen? Now there is no ray of hope.
-
Day before yesterday I became excited and uttered
in rage. "You hate me, was I unable to get food in my
parent's house ?

He was irritated due to word 'hate'. He said. if you
talk more like this, I will be very bad man.

If this goes on, I will not come to sleep. That
means not permitted (to cry) also. How he says to me, are
you tired of me so early ? What shall I say to such a man.
[ D
. Once I feel that he does not count me. On second thought,
I feel he cares me much. But due to moody nature, it will
take tim~ to pacify the same. On the day on which self-
pride is lessened, no other person will be more fortunate than
m_e But till tlrat day it is not certain that l will be alive."
-E (P. 197)

In the second paragraph she starts by giving an indication
that she was feeling uneasy and would have very much liked to have
VahinJ with her. In the third paragraph she clearly states that aU
persons in her father-in-laws' place were very good and loving but due
to a number of persons in the house she did not get a chance to work
independently. The last line "every time some fear is in mind which
leads to confusion" is the star}ing point of the first symptom of her
invisible fe·a r wl1ich she was unable to locate. The fourth paragraph
is rather important which shows that whatever her-feelings may have ,
been she sought an oath from Vahini not to talk to anyone regarding
the matters which she proposed to write in the said letter. She says
that she was much in pains and hints that she weeps profusely and
the reason given by her for this is that she went on committing
m1stakes and talked to her husband many times but his
silence was extremely painful which made her angry. In the last
portion, for the first time, she makes a direct complaint against her
husband to the effect that he had no time to look after her (Manju).
H In the same paragraph she describes her hardships and complains
Sf-tARAD ll. Ct{l\ND v. MAHARASHfRA (Faza/ .4h, J.) Il1
A
why God was unkind to,her. She further expresses her sentiments
that the romantic enchantment which she experienced during the
first few days of her marriage·had completely disappeared and looks
like a lost dream or a "Paradise lost''. Then she describes her
plight as being a maid-servant without pay. She again complains
of indifference towards her. Ultimately, she hopes against hope B
that some day he will speak to her and discuss the problems but
there is no response. Later, she refers to a particular incident and
goes to the extent of telling him that he hates her. This seems to
have irritated the husband who resented this remark very much.
Again in the same breath towards the end of the paragraph, while
she says that her husband . does not care for her yet she at once c
changes her mind and says that he cares for her much but due to
his moody nature itwill take time to pacify him. Her feelings
again take a sudden turn when she says that when her husband's
self-pride is lessened none would b~ more fortunate than her.
The next line is rather important because she hints that till the said
D
.· heyday comes perhaps she might not be alive .

A careful perusal of this letter reveals the following features-

(1) after going to her marital home she felt completely lost
and took even minor things to her heart and on the
slightest provocation she became extremely sentimental E
and sensivtie.

(2) She exhibited mixed feelings of optimism and pessimism
at the same time.

• (3) it can easily be inferred that she did not have any
serious complaint against her husband but she became
sad and morose because she was not getting the proper
attention which she thought she would get.

(4) There is no indication that she expected any danger
F

from her husband nor is there anything to show that G
things had come to such a pass that a catastrophe may
have resulted. There may be certain concealed and
hidden hints which she was not prepared to reveal in
writing : what they were is not clear.

( 5) A close reading and analysis of the letter clearly shows
at least two thin~s- H
118 SUPREME COURT R8PORTS [1985] 1 S.C.R.

A (a) that she felt extremely depressed,

(b) that there was a clear tendency resulting from her
psychotic nature to end her life or commit suicide.

This possibility is spelt out from the various letters which we
B have extracted. Indeed, ifthis was not so how could it be possible
that while not complanning against her husband she gives a hint not
only to Vahini but also to Anju that she might not live. She men-
tions of no such threat having been given t0 her by husband at any
time or anywhere.

c (6) The contents of the letter lead us to the irresistible
conclusion that Manju felt herself lonely and desolate
and was treated as nothing but a chattel or a necessary
evil ever since she entered her marital home.

Thus, from the recitals in the letters we can safely hold that
D there was a clear possibility and a tendency on her part t<J commit
suicide due to desperation ond frustration. She seems to be tired of
her married life, but she still hoped against hope that things might
improve. At any rate, the fact that she ~ay have committed suicide
cannot be safely excluded or eliminated. It may be that her husband
roay have murdered her but when two views are reasonably possible
E the benefit must go to the accused. In order to buttress our opinion,
we would like to cite some passages of an eminent psychiatrist,
Robert J. Kastenbaum where in his book 'Death, Society and
Human Experience' he analyses the causes, the circumstances, the
moods and emotions which • may drive a person to commit suicide .
. The learned author has written that a person who is psychotic in
F
nature and suffers from depression and frustration is more prone to
commit suicide than any other person. In support of our· view, we
extract certain passages from his book :

"The fact is that some people who commit suicide can
G be classified as psychotic or severly disturbed.
(P.242)

If we are concerned with the probability of suicide in
very large populations, then mental and emotional disorder
is a relevant variable to consider.
(P.243)
H
SI-lARAb B. CHAND v. ~fAHAn.ASTRA (Fazai Afi, J.) 119
And it is only through a gross distortion of the actual A
circumstances that one could claim all suicides are enacted
in a spell of madness.
(P.243)

"Seen in these terms, suicide is simply one of the ways
in which a relatively weak member of society loses out in
the junglclike struggle.
(P.243)

The individual does not destroy himself in hope of
thereby achieveing a noble postmortem reputation or a
place among the eternally blessed. Instead he wishes to c
subtract himself from a life whose quality seems a worse
evil than death.
(P.245)

The newly awakened spirit of hope and progress soon
')
became shadowed by a sense of disappointment and
resignation that, it sometimes seemed, only death could
swallow.
(P.245)

Revenge fantasies and their association with suicide
are well known to people who give ear to those in emo- E
tional distress."
(P.251)
"People who attempt suicide for reasons other than
revenge may also act on the assumption that, in a sense,
,' p .
they will survive the death to benefit by its effect.

• XX XX

The victim of suicide may also be the victim of self-
XX

expectations that have not been fulfilled. The sense of
disappointment and frustration may have much in common G
with that experienced by the person who seeks revenge
-- though suicide --However, for some people a critical mo-
ment arrives when the discrepancy is experienced as too
glaring and painful to be tolerated. If something has to go
it may be the person himself, not the perhaps excessively
high standards by which the judgment has been made---
"! a'rren Breed and his colleagues found that a sense of H
120 SUPREME COURT REPORTS [19851 t s.c.R.

A failure is prominent among many people who take their
own lives."

(P.252)

The above observations are fully applicable to the case of
B Manju. She solemnly believed that her holy union with her husband
would bring health and happiness to her but unfortunately it seems
to have ended in a melancholy . marriage whtch in view of the
circumstances detailed above, left her so lonely and created so much
of emotional disorder resulting from frustration and pessimism that
she was forced to end her life. There can be no doubt that Manju
c was not only a sensitive and sentimental woman but was extremely
impressionate and the letters show that a constant conflict between
her mind and body was going on and unfortunately the circumstances
which came into existence hastened her end. People with such a
psychotic philosophy or bent of mind always dream of an ideal and
if the said ideal fails, the failure drives them to end their life, for
D they feel that no charm is left in their life. ·•
Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in
their book 'The Melancholy Marriage' observe that-

E ''Studies of attempte~ suicides cases have also revealed
the high incidence of marital problems which lie behind the_ ~
act. In our own study of 100 consecutive cases (Roberts
and Hooper 1969), we found that most of them could be
understood if the patients interactions with others in their
environment were considered."
F
(P.S) •

Such persons possess a peculiar psychology which instils
extreme love and devotion but when they are faced with disappoint- ..
ment or find their environment so unhealthy of unhappy, they seem to
G loose all the charms of life. The authors while describing these
sentiments observe thus :

"Hopelessness', 'despair', 'lousy, and 'miserable' draw
attention to the relationship of the depressed person to his
environment. The articulate depressed person will often
,. also struggle to put into words the fact that not only does
H there appear to be no way forward and tl1us no point to
SHARAD B. CHAND v. MAtlARASrlTRA (Fazaf Ali, J.7" 121

- life-but that the world actually looks different."
A
(P.7)

Coleridge in 'Ode to Dejection' in his usual ironical manner
has very beautifully explained the sentiments of such persons thus :
8
"I see them all so ex.cellently fair-
I see, not feel, how beautiful they arc ; "

At another place the author (Hinchliffe, Hooper & John) come
to the final conclusion that ruptured personal relationship play a G
major part in the clinical picture and in this connection observed
thus :

"Initially we applied these ideas to study of cases of
attempted suicide (Roberts and Hooper 1969) and although
we did not assume that they were all necessarily depressed, D
we looked for distal and proximal causes for their behaviour
and found that ruptured personal relationships played a
major part in the clinical picture."

(P.50)
E
The observations of the authors aptly and directly apply to

-- the nature, mood and the circumstances of the unfortunate life of
Manju which came to an end within four months of marriage.

We have pointed out these' circumstances because the High F
Court has laid very great stress on the fact that the evidence led by
the prosecution wholly and completely deludes the possibility of
suicides and the death of ManJu was nothing but a dastardly murder.
'
We shall now deal with the next limb of the oral dying declara-

-- tion said to have been made by the deceased to her parents and
friends. Some of the statements which have a causal connection
with the death of Manju or the circumstances leading to her death
are undoubtedly admissible under s.32 of the Evidence Act as held
G

by us but other statements which do not bear any proximity with
the death or if at all very remotely and indirectly connected with
the deatl1 would not be adm,issiblc. Unfortunately, however, the
two kinds of statements are so inextricably mixed up that it would H
122 SUP'REME COURt REPO:kl'S [1985] 1 s.d.R.

A take a great effort in locating the part which is admissible and the
one which is not.

Before discussing the evidence of the witnesses w.e might
mention a few preliminary remarks against the background of which
the oral statements are to be considered. All parsons to whom the
0
oral statements are said to have been made by Manju when she
visited Beed for the last time, are close relatives and friends of the
\

deceased. In view of the close relationship and affection any person
in the position of the witness would naturally have a tendency to
exaggerate or add facts which may not have been stated to them at
all. Not that is done consciously but even unconsciously the love
0
and affection for the deceased would create a psychological hatred
against the supposed murderer and, therefore, the court has to
examine such evidence with very great care and caution. Even if
the witnesses were speaking a part of the truth or perhaps the whole
of it, they would be guided by a spirit of revenge or nemesis against
D the accused person and in this process certain facts which may not
or could not have been stated may be imagined to have been stated
unconsiously by the witnesses in order to see that the offender is
punished. This is human psychology and no one can help it.

This now takes us to a consideration of the evidence of the
E
witnesses concerned which read togcth~r with the letters form a
composite chain of evidence regarding the causes or the circum-
stance relating to the death of the deceased. Accroding to the prosecu-
tion, the last visit of Manju to Beed was on 25.5.82 where she
stayed till 3rd of June 1982 when she was brought back by the
-
F father of the appellant. In other words, the narration of the troubles
and tribulations of Manju was made only during her last visit and
not earlier. These statements are alleged to have been made to
Rameshwar Chitlange (PW 2), Manju's father, Rekha (PW 3), who
was Manju's friend and referred to as 'Vahini' in the letter Ex.33,
Anju (PW 6), Manju's sister to whom letters (Exhs. 30 and 32) were
G written, -and PW-20, Bai, the mother of MaQju. Meena Mahajan
(PW 5) was also examined but ye are not in a position to rely on
the evidence of this witness for two reasons ·(1) she does not figure'
anywhere in any of the letters written by Manju, and (2) nothing
was told to her by Manju directly but she was merely informed
regarding the incidents mentioned by PW -2. This sort- of indirect
evidence is not worthy of any credence.
H
Sltt\RAD B. CHANb v. MAtiARt\SHTRA (Faza/ Ali, J.) 123

We would first deal with the evidence of PW-2, Rameshwar A
Chitlange (Manju's father). We shall give a summary of the
relevant part of his evidence because the other parts relate to how
the marriage was performed and the spouses had gone for
honeymoon which are not germane for our purpose. The witness
states that when Manju came to Beed with her maternal uncle he
found her somewhat uneasy and on making enquiries whether she B
was happy at her husband's house she told him that she was not
very happy with her husband since she noticed that her husband was

-- not very much pleased with her and in fact hated her. These facts
are the result of the usual domestic quarrels between a husband and
a w_ife, hence this statement cannot be said to be so directly or
proximately related to the death of Manju so as to be admissible
under s.32 of the Evidence Act. c
It appears from his evidence that even after hearing the
narration from his daughter he advised her to get herself adjusted to
the situation and to the atmosph ~re of her new marital home. Apart D
from being inadmissible this does not appear to be of any assistance
to the prosecution in proving the case of murder alleged against the
appellant. The witness goes on to state that as the grandfather of·
the accused had died he visited Pune, accompanied by his wife and
Manju. Since this was more or less a formal visit for expressipg his
condolences to the bereaved family, he left Manju at the house of
the accused. The only part of his evidence on which reliance was
placed by the prosecution is that he had noticed Manju very much
disturbed and uneasy and requested Birdichand (father of the
accused) to allow him to take Manju to the house of Dbanraj, which
he did. On reaching the house of Dhanraj, the witness states thaf
Manju completely broke down and started weeping and fell in the
grip of her mother. This state of Manju, which the witness saw
with his own eyes, would undoubtedly be primary evidence of what
he saw and felt though not in any way connected with s. 32 of the
Evidence Act. But from this circumstance alone it cannot be
safely inferred that Manju apprehended any serious danger to her G
life from her husband.

The witness further states that he informed Birdichand about
the grievances made to him by Manju. The appellant, Sharad, was
sent for and he quietly listened to his father but the witness felt that
whatever Birdie hand -may have told to his son that does not appear
to have made any s~rious impact on him (appellant) and he left the u
124 SUPREME COlJRT REPORTS [1985] 1 s.c.~.

A room. This is purely an opinion evidence and therefore not
admissible. Even so, the accused perhaps did not think it necessary
to enter into arguments with his father-in-law in the presence of his
father and that is why he may have kept quiet. From this no
inference can be drawn that he was in any ·way inimically disposed
towards Manju or was animat~d by a desire to take her life.
B
The witness further stated that he found that Manju was
weeping every now and then during the night at Dhanraj's place.

c
Later, in the morning the witness took Manju back to her in-laws
house but his grievance was that Sharad did not care to meet or
talk to them. These are however small circumstances which are
incidents of any married life and from this no adverse inference ~an
---
be drawn against the appellant.

Another complaint made m the statement was that when
he made a voluntary offer to solve the difficulties of Sharad,
D
the appellant curtly told him ·that he did not want to get his
..
difficulties solved by other persons and at this attitude of Sharad
the witness was naturally very much disappointed. This conduct
ofthc accused also is not of such an importance as to lead to
any adverse inferenc~. Some persJns who have a k.ten sense of
E pride and self-respect do not like anyone else not even their father
or father-in-law to interfere in their personal matters. Perhaps this
may be the reason for the somewhat cool and curt attitude of Sharad

F
but that proves nothing. In fact, experience shows that where
elders try to inter meddle in the affairs of a husband and his wife,
this creates a serious obstruction in the relations of the married
couple. Nothing therefore, turns upon this statement of PW 2.
--
Again, the witness repeats that when Manju came down to see
him off he noticed her weeping all the time. To cut a long story
short, the witness came back to Beed and sent his. son Pradeep to
G bring Manju from Pune to Beed. On reaching there he was informed
that Manju and Sharad had gone on a holiday trip to Mysore,
Triupati, etc. After the return of Pradeep to Beed, Dhanraj
informed the witness that Sharad and Manju had returned to Pune
and therefore, he sent his son, Deepak to Pune to bring back Manju.
--
When Manju arrived at Beed, the witness found her totally dis-
turbed and frightened. This statement would be admissible as
primary evidence. What probative value should be attached to this
H small matter is a different issue.
- SHA~AD D. CHAND v. MAHARASHTRA (Faza[ Afi, J.)

Thereafter; the witness was told the incidents by his wife
125

A
(PW 20) which had been narrated to her by Manju but that is of no
value so far as this witness is concerned as the main evinence would
be that of PW 20. However, in order to save the marriage from a
a total break-down the witness was extremely worried and therefore,
he called one Hira Sarda, a close acquaintence of the family of B
accused, who told him (witness) that he was going to Hyderabad and
after 4th-5th June some solution would be found out At the :>arne
.. t ime, he advised the witnes£ not to make any haste in sending back
. · Manju to Pune.
c
On the :nd of June 1982, Birdichand arrived at Deed a nd re-
. quested the witness to send Manju to Pune because the marriage of
Birdichand's daughter was fixed for 30th June 1982 and the Kohl
(betrothal) ceremony was to be held on the 13th of June so that
Manjl.l-may be present at the ceremony and look after the arrange-
D
ments. The witn es~ says that . after hearing this he apprised
Birdichand tl1at Manju was extremely fright~ ned and that she was
nq~ ready ·to go back ·to her· husband's house nor was he
(witness) willing to s·e nd h er back- so soon. He suggested to
Birdichand that as the marriage:of his nephew was to be celebrated
at Beed on 25th .June, Sharad would come to attend the_ marriage
and at that time he can take Manju with 'him. Birdichand,
however, persuaded the witness to send back Manju and assured
him that no harm of any kind wonld come to her and he also pro-
mised that Manju would b e sent back to Deed, The ~ost impor-
........ tant statement in the evidence of this witness may be extracted
thus .;

"I was having this talk with Birdichand on the first
floor of my house. Manju lteard this- from the staircase,
-. called me. out in the ground portion of the house and told
me that she was not in a position to go to the house oft he
accused. Since she was in a state of fear or extreme fear in

....
.., her mind and"she also t old m e that she w.u not prepared to
go to the house of the accused.
G

** •• **
Therefore, after the meals I sent Manjn with
Birdichand. Birdichand, Manju and Kavita then left Reed
br about 12.30 p.m. by bus on 3rd of -June, 82, At that H
A
I~ S1.JI'ROIE COURT REPORTS [1985} I S.C.ll.,

time Munju was constantly weeping right from inside my
house till the bus left.. She was also in a state of exteme
fear."
(P. 197)
l1
B The witness has s~id many times in his statement that
Mnnju was always weeping and crying and tile final crisis came
when on hearing the talks between him and Birdichand she cul!ed
him from the staircase and told him that she was not prepared to go
to her husband's house as she was in a state of extreme fear. lt is
difficult to believe this part of the evidence of the witness for two
c rca>ons-

(!) When the talks were gonig on between two elders
would Manju be sittmg ncar the staircase to listen their
talks and call her father and give vent to her feelings
0 and her decision not to go back to Punc at any cost.
This conduct appcnrs to be directly opposed not only
to the tenor and ~pi tit of the letters (Exhs. 30, 32 and
33) which we have discussed but also against her
m~ntaJ attitude and noble nature.

E
(2) As indicated by u~ while discussing the letters-could
a woman who was so affectionate and reserved in
Mture and who would not like the contents of her
letters to Anju and Vabini to be disclosed to her
parents l~st they feel worried, disturbed and distressed
-sud<len!y turn turtle, forgetting her sentiments not to
worry them and come out in the open to declare be- I
~~
fore all by weeping and crying that she was in a state
of extreme fear, seem to us to be inherently improba-
ble. Once a lllllture woman develops a particular
nature or habit or a special bent of mind she is not 1
1
G likely_ to forgo her cutire nature-in this case, her
affecho~ and love for her parents and the feeling of
not domg anything which~may cause distress or worry
to them, and start telling her woeful story to ev..ryonc
whom she met.

Manju mu~t have known fully that her husbnnd's sister's
SHARAD B. CHAND V. MAHARASHTRA (Faza/ Ali, J.) 127

betrothal ceremony was to be held on 13th June and if her father· A
in·law was making request after request tO"> take her to Pune to
attend the said ceremony, and had given all sorts of assurances that
no harm would come to her, would she still call her father and
express her state of fear and go on repeating what she bad already
said. This seems to us to be an afterthought or an embellishment
introduced in the evidence of the witness so as to add credence to B
the prosecution story and provide gn imaginary motive for the
murder ofthe deceased. Indeed, if she was bent on resisting all
attempts of her fathcr·in-law to take her to Pune she would not have
gone at all. On the other hand, her subsequent conduct of
ultimately going to Pune and making arrangements for the Kohl
·ceremony belies the story put forward by the witness. It is extre·
c
mely difficult for a person to change a particular bent of mind or a
trait of human nature unless there are substantial and compelling
circumstances to do so. In the instant case, we find no such com-
pelling circumstance even taking the statement of the witness at its
face value. D

To take the other side of the picture, the witness says that
when he reached Pune on 12.6. 82 and visited the place where Manju
had died, he found Sharad sleeping or lying 100 the cot and on
seeing him he immediately started crying vigorously and making a
show of the grief and shock they had received. The exact statement E
of the witnesS may be extracted thus : I

"I could notice that Sharad who was sleeping or lying
on the cot in the said room on seeing me entering the room
immediately started crying vigorously giving jerks to his
body and making show of the grief and the shock he had F
received. Ultimately I asked him as to what had happene.d
to Manju when he told me that since 11th it was the day of
his marriage with Manju, he and Manju were in joyest
mood. According to him they went to bed by about 12
midnight and he had a sexual act with Manju in such a
manner which they never had enjoyed before. Ultimately G
according to him when they completely felt tired and
exhausted both of them fell asleep. According to him by
about 5.30 a.m. when he got up and after visiting the
urinal, when returned to the room he found that Manju had
not got up as usual since according to him, she used to
wake up at the sam~ time he used to watce up and so he H
128 SUPR'GME COURT R'EPORTS [1985] 1 S.C.R.

A went near Manju and called i1er out when he found her
dead."

It is rather strange that while the witness took whatever his
daughter told him at its face value without making any further
enquiry, he immediately jumped to the conclusion that the grief and
B tears in the eyes of his son-in-law were fake and that he was merely
shedding crocodile tears. There is nothing on the record nor in the
evidence to show any circumstance which may have led the witness
to arrive at this conclusion. On the other hand, if the conduct of
""
the appellant, as described by the witness, is seen from a dispas-
sionate angle, it was quite spontaneous and natural because by the
..
G time the witness reached Pune the post-mortem had been done and
the death of Manju had c 0 me to light long before his arrival. There
was no reason for the wiiiless to have presumed at that time that
Sharad must have committed the murder of the deceased. There
were no materials or data before him which could have led him to
this inference. This clearly shows one important fact, viz., t:Jat the
D witness was extremely prejudiced against Sharad and if one sees
anything-even the truth-with a pale glass everything would appear
to him to be pale.

The second part of the statement made by the witness regar-
E ding having sexual intercourse nearabout midnight seems to us to
. '
be inherently improbable. However, educated or advanced one
may be, it is against our precious cultural heritage for a penon to
utter such things in a most frank and rudimentary fashion to his
father-in-law. We are clearly of the opinion that the story of
· having a sexual act, etc., was a pure figment of the imagination of
F
the witness and this, therefore, goes a long way off to detract from
the truth of the testimony
I
of this witness.

Furthermore, at page 175 the witness admits that during the
life time of Manju, Anju and Rekha told him about the receipt of
G the letters from Manju but they never referred to the nature or the
contents of the letters. This is a correct statement because both
Anju and Vahini had been requested by Manju not to disclose to
her parents the state of affairs or~the tortures which she was :;uffer-
ing and perhaps they kept the sanctity of oath given to them 'JY the
deceased. This is an· additional circumstance to show tha1 even
wht'n Manju visited Beed for the last time she might tell some-
thing to her own sister Anju or to Vahini but she would never dare
tJ
SHARAD B. CHAND v. MAHARASHTRA (Faza/ Ali, J.) 129

to disclose all the details and put all the cards on the table before A
her parents-a step which she deliberately desisted from coming into
existence. We can understand the evidence of the witness that
Manju was worried, distressed and depressed. Sometimes out of
natural love and affection parents make a mountain of a mole hill
and this is what seems'to have happened in this case.
B
Great reliance was placed by the Additional Solicitor General,
on behalf of the respondent, on the relevance of the statements of
PWs 2, 3, 6, ·and 20. He attempted to use their statements for twin
purposes-firstly, as primary evidence of what the witnesses saw
with their own eyes and felt the mental agony and the distress thro-
ugh which the deceased was passing. Secondly, he relied on the
c
statements made by the deceased (MauJU) to these witnesses about
the treatment meted out to her by her husband during her stay at
Pune and furnishes a clear motive for the accused to murder her.

As regards the first circumstance, there can be np doubt that 0
the·said evidence of the witnesses would· undoubtedly be admissible
as revealing the state of mind or the deceesed. This would be
primary evidence in·the case and, therefore, there cannot be any
doubt a~out the relevancy of the statement of the witnesses in regard
to this aspect of the matter. As to what probative value we should
attach to such statements would depend on a proper application of E
• the context and evidence of each of the witnesses,

- As regards the second aspect-which is in respect of what
the deceased told the witnesses-it would only be admissible under
s. 32 of the Evidence Act ,as relating to the circumstances that led
•. F
to the death of the deceased. In view of tlie law discussed above
and the propositions and the conclusions we have reached, there
cannot be any doubt that these statements would fall in the second
part of s.32 of the Evidence Act relating directly to the transaction
resulting in the death of Manju, and would be admissible. Before,

..... however, examining this aspect of the question we might at the
outset state that the character, conduct and the temperament of
G
Manju, as disclosed or evinced by the admitted letters (Exhs. 30,32
and 33), whid1 demonstrate that it is most unlikely, if not impossibe,
for Manju to have related in detail the facts which the aforesaid
witnesses deposed. If this conclusion is correct, then no reliance
can be placed on this part of the statement of the aforesaid witnesses.

We now proceed to discuss tlw evidence of PWs 3,4, 5, 6 and H
130 SUPREME COURT REPORTS [1985) I S.C.R.

A ~0 .. As we have -discussed the evidence of PW 2, father of Manju,
It w1ll be more appropriate to discuss now the evidence of PW-20
(Manju's mother) from whom most of the matters spoken to by
PW-2 were derived. Her evidence appears at page 305 of part 1 of the
Paper Book. It is not necessary foe us to go into those ·detail!: which
have already been deposed to by PW-2. The IMSt relev~nt part of her
B evidence is about the visit ofManju to Beed on 2.4.82. She states that
during this visit she found Manju cheerful and happy and she did not
coroplai_n of anything during her stay for 8-10 days. In answer to a
question-whether she enquired from ManJU or had any talk with her
during that period-she stated Manju told her that her husband was
not taking any interest :in her and used to _leave the house early in the
c morning and return late at night on the excuse that he was busy with
his factory work. It may be stated here that the :accused had a chemi-
cal factory where he used to work from morning till late at night.
The witness further deposed that Manju informed her that th1:re was
no charm left for her at the· house of her bus band. These facts
D however run count::~r to her first statement where she stated that
Manju was quite happy and cheerful as expected of a newly married
girl. Even so, whatever Manju had said does not appear to be of
any consequence because she (the witness) herself admits that she
did not take it seriously and told Manju that since she had cmtered
a new family it might take some time for her to acclimatise herself
with the new surroundings. She also warned Manju against attaching
much importance to such matters.

Thereafter she goes on to state that near about the 11th or
12th of April19&2 she (PW 20) alongwith her .husband left for
Pune to offer condolences ~ the death of the grand-father of
F
the appeilant. She then proceeds to state that during their second .•
visit to Pune on the llth or 12th of May 1982 she stayc:d with
her brother, Dhanraj and that while she was there Manju hugged at
her neck and having lost her control, started weeping profusely.
She further states that Manju requested her to take her to Beed
G
as it was not possible for her to stay in her marital house where she
was not only bored but was extremely afraid and scared.

On the next day she (PW 20) met the mother of the appellant
and told her plainly that she found Manju extremely perturbed,
uneasy and scared and that she was experiencing tremendous
pressure and restrictions from her husband. But the mother of
q tpe appellant convinced her;that tl\ere W&$ flQthing to worry about,
SHARAO B. CHAND v. MAHARASHTRA (Fazaf Ali, .1.) 131

and everything will be alright. The witness then narrated the fact A
to her husband and requested him to take Manju with them to Beed.
PW 2 then sought the permission of Birdichand to take Manju to.
Beed but he told him that as some guests were to visit him, he
(PW 2) can send somebody after 4-5 days to take Manju to Beed.
It may be mentioned here that the details about the sufferings and
the mental condition of Manju was not mentioned by this witness B
evt>n to her husband (PW 2) as he he does not say anything ab'out
this matter. Further, her statement is frightfully vague.

As already indicated that the letters (Ex. 30, 32, 33) clearly
0
show that Manju never wanted to worry or bother her parents about
her disturbed condition, it appears to be most unlikely that on the
occasion of the death of her grandfather-in-law she would choose
that opportunity to narrate her tale of woe to her mother. This
appears to us to be a clear embellishment introduced by the
prosecution to give a sentimental colour to the evidence of this D
witness. Ultimately, on May 25, 1982 Deepak brought Manju to
Beed and this time she was accompanied by her cousin, Kavita.
Here again, she states that on her arrival she found Manju extremely
disturbed and under tension of fear and Manju was prepared to
make a clean breast of all her troubles. However, as Kavita was
there and did not give any opportunity to Manju to meet her mother E
alone, she (Kavita) was sent out on some pretext or the other.
Thereafter, Manju told her mother that she was receiving a very
shabby treatment from her husband and while narrating her misera-
ble plight she told her about two important incidents which had
greatly upset her-(1) that she happened to come across a Jove
F
Jetter written by PW 37, Ujwala Kothari to her husband which
showed that the appellant was carrying on illicit relations with
PW 37, (?)that on one occasion the appellant told Manju that he
was tired ot his life and did not want to live any more and, therefore-
wanted to commit suicide. Despite Manju's enquiries as to why he .
wanted to commit suicide, he did not give any reason. She then
. informed her mother when this talk was going on, she (Manju)
herself volunteered to coll,lmit suicide. Thereafter, Sharad put
G
forth a proposal under which both of them were to commit suicide
and they decided to write notes ~bowing that they were committing
suicide. On hearing this plan from Sharad, Manju told him that
she was not inclined to commit suicide as she had not lost all hope
of life and that she had expressed her desire to commit suicide
only because he had said that he would do so. PW 20 would have· H
132 SUPREME COURT REPORTS [1985] 1 S.C.R.
A
us believe that'while in one breath she agreed to the suicide pact yet
the next moment she made a complete volte face. This is hard to
believe having regard to the nature of the temperament of Manju.

B The two statements said have been made by Manju to her
mother appear to be contradictory and irreconciliable and smack
of concoction. According to Manju, Sharad then prepared two
notes one addressed to his father and another to his father-in-law
and asked Manju to do the same but she refused to do anything
of the sort. The witness admitted that she was not told as to what
c had hnppened to the notes written by the appellant.

All this story of a suicidal pact seems to us nothing but a fairy
tale. There is no mention nor even a hint in the letters (Exhs. 30,
32, 33) written by Manju about the aforesaid suicidal pact and the
story narrated by the witness before the trial court, nor was the
D note produced in the court. This appears to us to be a make-be-
lieve story and was introduced to castigate the appellant for his
shabby treatment towards Manju.

Another intrinsic circumstance to show the untruth of this
statement is that although PW 2 was apprised of these facts yet he
never mentioned them to Birdichand particularly when he was
E
insisting ,that Manju should be sent back to Pune for attending the
betrothal ceremony of his daughter Shobha. Indeed, if this fact, which
is of very great importance so far as the lives of both the husband and
the wife are concerned, would have been there, the first thing which
PW 2 would have done is to tell Birdihand that matters had reach-
F ed such a stage as to leave no doubt that her daughter was in an
instant fear of death and it was impossible for him to allow his
daughter to go to Pune where Sharad was bent on forcing her·to
commit suicide or even murder her, more particularly because PW
20 admits in her evidence that as all the things she had learnt from
Manju were serious, she had informed her husband about the same
G who agreed with her.

Apart from this grave incident, the witness deposed to another
equally important n'latter, viz., that on the Shila Septami day, the
appellant rang up his mother to send Manju alongwith Shobha to a
hotel (Pearl Hotel), as has been deposed to by other witnesses)
because he wanted to g~ve a party to his friends. As Shobha was
u not present in the house, Manju's mother-in-law sent her alone, in
SHARAD B. CHAND v. MAHARASHTR.A (Faza[ Ali, J.) 133
a rickshaw to the hotel. On reaching the hotel she did not A
findj any other person · excepl a girl who was introduced
by her husband as Ujavla Kothari. The most critical part
of the incident is that the appellant is alleged to have infor-
med Manju that she should take lessons from Ujvala as to
how she should behave with him and also told her that Ujvala
knew everything about him and he was completely in h~r hands.
'B
Subsequently the appellant went away and Ujvala told her that the
appellant was a short-tempered man and she 3hould talk to him only
if and when he wanted to talk to her. She (Ujvala) also told Manju
that the appellant was completely under her command and she was
getting every bit of information about the incidents happening bet-
ween the husband and the wife. Finally, she was apprised of the
c
fact by Ujvala that she and Sharad were in l<?ve with each other.
Manju is said to have retorted and protested to Ujvala by saying
that she was not prepared to take any l..:ssons from her regarding her
behaviour towards her husband as she (Mauju) was his wedded wife
• · while Ujvala was only a friend. Moaju also told her mother that D
these facts were narrated by her to the appellant and accused
No. 2. As a result of this incident, Manju became a little erratic
which attracted double cruelty towards her by her husband and made
her extremely scared of her life and in view of this development she
requested her mother not to send her back to the house of the
accused.

One point of importance which might be noticed here and
which shows that whatever be the relations with her husband and ,
Ujvala, the picture presented by the witness is not totaJiy correct
because if such a point of no return had already been reached, there
F
was absolutely no question of Birdichand and sending for the appllant
and arranging a trip to Ooty, Mysore and other place nor would have
Manju agreed to go to these places. The witness further stated
that as soon as Manju carne to know that Birdichand had come to
take her away she was shocked and continuously kept saying that
she was extremely afraid of going to her husband's house and that

-- she should not be sent back.

The behavioural attitude of Manju depicted by the witness
G

seems to us to be absolutely contradictory to and not at all in
consonance with her temperament, frame of mind, psychological
approach to things and innate habits. That is why no reference had
been made even directly or indirecly in any of the letters written by H
134 SUPREME COURT REPOlUS (i9SS}1 s.C.R

A Manju, and she had expressly requested both Anju and Vahini not
to disclose anything to her parents lest they may get worried and.
distressed on her account. In other words, Manju was a woman
who despite her troubles and tribulations, sufferings and travails,
anxiety and anguish would never have thought of narrating her
woeful story to her parents and thereby give an unexpected shock
B to them. This feeling is mentioned in the clearest possible terms in
the letters (Exhs. 30, 32, 33) which we have already discussed.
There is no reference at all in any of the letters regarding suicidal
pact or the illicit rela!ionship of her husband with Ujvala.

Another important fact which the High Court has missed is
that even according to the statement of this witness, the appellant
had asked his mother to send Shobha along with Manju to the hotel
/ and at that time he could not have been aware that Shobba would
not be available. Indeed, if he had an evil intention of insulting or
injuring the feelings of Manju by keeping Ujvala there he would
D never have asked his mother to send Shobha also because then the
matter was likely to be made public. This is another inherent
improbability which makes the whole story difficult to believe.

Despite these serious developments both PW 2 and 20 tried to
convince Manju to accept the assurances given by Birdicband
E
th;t no harm would come to her and if anything might happen they
will take proper care. We find if impossible to believe that the
parents who had so much love and affection for their daughter
, would, after knowing the circumstances, still try to take the side _.,..
of Birdichand and persuade !!er daughter to go to Pune. Rameshwar
(PW 2) should have told Birdichand point-blank that he would not
F send Manju in view of the serious incidents that had happend, viz., ...,.
the suicidal pact, the cruel treatment of the appellant towards Manju,
the constant fear of death which Manju was apprehending, the
illicit relationship between the appellant and Ujvala, and the strong
resistance of his daughter who was not prepared to go Pune at any
cost and was weeping and wailing all the time. On the other hand,
G knowingly and deliberately they seem to have thrown their beloved
daughter into a well of death. The fact that Manju's parents tried
to console her and believed the assurance of Birdichand knowing
full well the history of the case shows that any statement made by
Manju to her parents wa~ not of such great consequence as to har-
dcn\their attitude. This is yet another intrinsic circumstance Manju
to which negatives the story of suicidal pact and the invitation to
H
SriARAD B. CliAND v. MAKARASHTRA (Faza! Aii, i.) 135

come to the Pearl Hotel and the manner in which she was insulted A
in the presence of Ujvala. There is no doubt that relations between
the appellant and Manju were extremely strained, may-be due to his
friendship with Ujvala, she may not have felt happy in her marital
home as ,she has clearly expressed in her letters but she did not
disclose anying of such great, consequence which would have shocked
the parent~ and led them to resist her going to Pune at any cost. B
This makes the version given by PWs 2 and 20 unworthy of
credence.

- We now proceed to take up the evidence of PW-6, Anju, the
sister of Manju. The statement of this witness is more or less a
carbon copy of the evidence of PW-20 which has been discussed
above and, therefore, it is not necessary to consider her evidence in
all its details. So far as the first visit is concerned, she fully supports
her mother that Manju was very happy as was expected of a newly
married girl. When Manju came to Beed around 2nd Aprill982
she stayed there for 8-10 days and druring that period the witness D
notic~d that she was somewhat dissatisfied and complained that her
husband used to return late at night. She also complained against
the callous attitude of the other members of her husband's family.
She also introduced the story of Ujvala Kothari and corroborated
what PW 20 had said which we have discussed above. She also
refers to the said suicidal pact an'd then to the fact that Birdichand E
had come to take away Manju to Pune so that she may be able to
attend the betrothal ceremony of Shobha. Then she deposes to an
incident which appears to be wholly improbable. According to her,
on the 3rd of June, 1982, PW 2 invited his two friends, Raju and
Rath, for lunch at which Birdichandiwas also present, and told them
that Manjlt was not prepared to go to Pune as she was afraid to go
there but Birdichand, alongwith his two friends, assured him that
nothing would happen. We do not think that in the. course of
things P-2 would be so ·foolish as to let the secret matters of the
house known to othen• than the parties concerned. Thereafter
the witness proves the letters (Exhs. 30 and 32). G

She stated one important statement to the effect that on some
occasions Manju had a talk with 11er mother in her presence.
Although Manju had requested Anju not to disclose anythihg to her
parents yet everything was made known to them, During cross-
examination the witness was asked-how as it that Manju was narra-
ting these talks when the witness had been asked not to disclose the
H
136 SUPREME COURT REPORTS (1985] 1 S.C.R.

same to her parents, which she explained away by saying that she did
not ask Man,iu why she was disclosing these things to her mother.
-
No satisfactory answer to this question seems to have been given by
her. At another place, the witness states thus :

B
"I did not tell all these informations I received from
Manju to any body. Nor anybody enquired from me till my
statement was recorded by the Police."
..
Her evidence, therefore, taken as a whole is subject to the
same infirmity as that of PW 20 and must suffer the same fate.

PW-3, Rekha (who was addressed as 'Vahini' in Maju's letter
(Ex. 33), states that on the first occasion when Manju came home
-
she was quite happy but during her second visit to Beed in the month
of April, 1982 she did not find her so aud Manju complained that
her husband was avoiding her to have a talk with her on one excuse
D or another. Manju also informed the witness that the appellant had
a girl-friend by name Ujvala and the witness says that she tried to
console Manju by saying that since her husband .was a Chemical
Engineer he may have Jot of friends. While referring to Exh. 33
(letter written to her by Manju) she stated that the only complaint
made in that letter was that her husband was not talking to her
E properly. She then deposed to an incident which happened when on
her way to Bombay wh~n the witness stayed at Pune for some time.
She states that she had a talk with Manju for about half-an-hour
when she narrated the story of the suicidal pact. She also stated that
she was extremely afraid of the situation and almost broke down in
tears and wept.
F
The most important fact which may be noted in her evidence
is a clear pointer to the frame of mind and the psychotic nature of ..
Manju. At page 212 of Part I of the Paperbook while narrating the
relationship of her husbaud with Ujvala she says that the appellant
lost his temper and thereupon she spoke the following words to
G him:
, 'I am not going to spare this, I will not allow this,
his bad relations even though a blot may come to our
familY and I have decided likewise."
-
These significant and pregnant words clearly show that Manju
was so much bored and disgusted with her life that she entertained
a spirit of revenge and told the witness that she was not going to
H
SltARAb B. CHAND v. MAHARASHTRA (Faza/ Ali, J.) 137

tolerate this even though a blot may come to. the family and that A
she had decided likewise. This statement undobtedly contains a
clear hint that she had almost made up her mind to end her life,
come what may and thereby put to trouble her husband and his
family members JS being suspect after her death. This appears to be
a culmination of a feeling which she had expressed in one of her
letters to Anju in the following words: B

"Till I could control (myself), well and good. When
it becomes impossible, some other way will have to be
evolved. Let us see what happens. All right."

Similarly, in her letter (Ex. 33) to this witness she gives a
c
concealed hint "But till that day it is not certain that I will be
alive.''

Thus the feelings of death and despair which she orally
expressed to the witness at Pune seems to have been fulfi1led when
.· on the morning of 12th June 1982 she was found dead .
0

The evidence of PW 4, Hirata! Ramlal Sarda, is not that
important. He merely states that in the last week of May 1982,
PW 2 had called him and told him that Manju was being ill-treated
by her husband and therefore she was not prepared to go to her E
marital home. PW 2 also informed him about the suicidal pact
affair. As the witness was in a hurry to go to Hyderabad he
counselled PW 2 not to take any final decision in a hurry and that
Manju should not be sent to Pune with Birdichand until his
return when a decision may be taken. On return from Hyderabed
he learnt that Birdichand had already taken Manju to Pune and
F

.. therefter he left for Pune. Indeed, if the matter was so grave
and serious that a person like PW 4, who was a relation of the
appellant rather ·than that of PW 2, had advised him not to
make haste and take a final decision but wait until his return yet
PW 2 seems to have spurned his advice and sent Manju to Pune.
This shows that the matter was not really of such great importance
or urgency as to take the drastic step of making a blunt refusal to
Birdihchand about Manju's not going to Pune. This also shows
that the story of suicidal pact and other things I1ad been introduced
in order to give a clour or orientation to the prosecution story.

Another fact to which this witness deposes in the narration by
the appellant abo Jt his having sexual act with his wife. We have H
i38 SUPREME COURT REPORTS (19SSJ i s.c.k.

A already disbelieved .this story as being hopelessly improbable and
against the cultural heritage of our country or of our nature and
habits. This is the only purpose for which this witness was examined
and his evidence does not advance the matter any further.

PW-5, Meena Mahajao, has also been examined to boost up
8 the story narrated by PW 2 and other witnesses. She was not at all
connected with the family of PW 2 but is alleged to be a friend of
Manju and she says that she found Manju completely disheartened
and morose and she started weeping and crying while narrating her
said story. The witness goes on to state that Manju was so much
terrified of the appellant that she was afraid of her life at his bands.
c No witness has gone to the extent of saying that there was any
immediate danger to Manju's life nor did Manju say so to PWs 2, 6
and 20. This witness appears to us to be more loyal than the king.
Even assuming that Manju was a friend of PW 6 but she never wrote
to her any letter indicating anything of the sort. For these reasons
we are not satisfied that this witness is worthy of credence. ·
D
'•
A close and careful scrutiny of the evidence of the aforesaid
witnesses clearly and conspicuously reveals a story which is quite,
different from the one spelt out from the letters (Exhs. 30, 32 and 33).
In fact, the letters have a different tale to tell particularly in respect
of the following matters:-
E
(\) There is asolutely no reference to suicidal pact or the
circumstances leading to the same,
........
(2) there is no reference even to Ujvala and her illicit
relations with the appellant, ·
F
(3) there is no mention of the fact that the deceased was ...
not at all willing to go to Pune and that she was sent
by force,

(4) the complaints made in the letters are confil)ed to ill-
G treatment, loneliness, neglect and anger of the husband
but no apprehension bas been expressed in any of the
letters that the deceased expected imminent danger to
her life from her pusband.

(5) In fact, in the letters she had asked her sister and
fri nd not to disclose her sad plight to her parents but
H
SHAkAD B. CHAND v. MAHARA.Si:lTRA (Paza/ Ali, J.) 139

while narrating the facts to her parents she herself A.
violated the said emotional promise which appears to
us to be too good to be true and an after thought
added to strengthen the prosecution case.

(6) If there is anything inherent in the letters it is
that because of her miserable existence and gross ill- B•
treatment by ·her husband, Manju might have herself
decided to end her life rather than bother her parents.

We are therefore unable to agree with the High Court and
.. the trial court that the witnesses discussed above are totally C•
dependable so as to exclude the possibility of suicide and that the
, only irresistible inference that can be drawn from their evidence is
that it was the appellant who had murdered the deceased.

Putting all these pieces together a general picture of the whole
episode that emerges is that there is a reasonable possibility of
D
Manju having made up her mind to end her life, either due to
frustration or desperation or to take a revenge on her husband for
shattering her dream and ill-treating her day-to-day.

Apart from the spirit of revenge which may have been working
in the mind of Manju, it seems to us that what may have happened is
••
that the sum total and the cumulative effect of the circumstances
may have instiJied in her an aggressive impulse endangered by
frustration of which there is ample evidence both in her letters and
her subsequent conduct. In Encyclopedia of Crime and Justice (Vol.
4) by Sanford H. Kadish the author mentions thus:
B
• )
"Other psychologically oriented theoriesh ave viewed suicide
as a means of handling aggressive impulses engendered by
frustration."

Another inference that follows' from the evidence of the witness
G
discussed is that the constant fact of wailing and weeping is one of
the important symptoms of an intention to commit suicide as men-
tioned by George W. Brown and Tirril Harris in their book "Social
. Origins of Depression" thus:-

"1. Symptom data

Depressed mood- B
I

140 SUPkEME COURT REPOkTS (1985] 1 S.C.R.

A 1. crying
- 2. feeling miserable/looking miserable, unable to smile or
laugh
3. feelings of hopel~ssness about the future
4. suicidal thoughts
5. suicidal attempts

Fears/anxietyfworry
15. psychosomatic accompaniments
16. tenseness/anxiety
C 17. specific worry
18. panic attacks
19. phobias
Thinking
0 20. feelings of self-depreciation/nihilistic delusions
21. delusions or ideas of reference
22. delusions of persecution/jealousy
23. delusions of grandeur
E 24. delusions of control/influence
25. other delusions e. g. hypochondriacal worry
26. auditory hallucinations
27. visual hallucinations."
Most of these symptoms appear to have been proved as exist-
ing in Manju both from her letters (Exhs. 30, 32 and 33) and from
F the evidence discussed.
We might hasten to observe here that in cases of women of a ..
sensitive and sentimental nature it has usually been ob~erved that if
they are tired of their life due to the action of their kith and kin,
they become so desperate that they develop a spirit of revenge and
G
try to destroy those who had made their lives worthless and under
this strong spell of revenge sometimes they can go to the extreme
limit of committing suicide with a feeling that the subject who is the
root cause of their malady is also destroyed. This is what may have
happened in this case. Having fou~d her dreams shattered to pieces
Manju tried first to do her best for a compromise but the constant
H ill-treatment and callous attitude of her husband may have driven
SHARAD n. CHAND V. MAHARASHTRA (Faza/ Ali, J.) 141

her to take revenge by killing herself so that she brings ruination
A
and de~truction to the family which was responsible for bringing
about her death. We might extract what Robert J. Kastenbaum in
his book 'Death, Society, and Human Experience' has to say:

"Revenge fantasies-and their association with suicide are
well known to people who give ear to those in emotional B
distress."
•

--· After a careful consideration and discussion of the evidence we reach
the following conclusions on point No· 1:

1) that soon after the marriage the relations between Manju C
and her husband became extremely strained .and went to
the extent that no point of return had been almost reached,

2) that it has been proved to some extent that the appellant
had some sort of intimacy with Ujvala which embittered
the relationship between Manju and him, D
3) That the story given out by PW 2 and supported by PW
20 that when they reached Pune after the death of Manju
they found appellant's weeping and wailing out of grief as
this was merely a pretex(for shedding of crocodile tears,
cannot be believed, E
4) that the story of suicidal pact and the apegation that
appellant's illicit relations with Ujvala developed to such an
extreme that he was so much infatuated with Ujvala as to
form the bedrock of the motive of the murder of Manju,
has not been clearly proved, F
5) the statement of PW 2 that the appellant had told him
that during the night on 11th June 1982 he had sexual act
with the deceased is too good to be true and is not believa-
ble ~sit is inherently improbable,

\, 6) that despite the evidence of PWs 2, 3, 6 and 20 if has not
been proved to our satisfaction that the matter had assumed
G

such extreme proportions that Manju refused to go to Pune
with her father-in-Jaw (Birdichand) at any cost and yet she
·was driven by use. of compulsion and persuasion to
accompanr him. H
142 SUPRI!ME COURT REPORTS (1985] 1 S.C.R.
A
7) that the combined reading and effect of the letters (Exhs.
30, 32 and 33) and the evidence of PWs 2, 3, 4, 6 and 20
clearly reveal that the signs and symptoms resulting from
the dirty atmosphere and the hostile surroundings in which
Manju was placed is a pointer to the fact that there was a
reasonable possibility of her having committed suicide and
B the prosecution has not been able to exclude or eliminate
this possibility beyond reasonable doubt.

We must hasten to add that we do not suggest that this was
not a case of murder at all but would only go to the extent of hold-
ing that at least the possibility of suicide as alleged by the defence
c may be there and can not be said to be illusory.

8) That a good part of the evidence discussed above, is
· undoubtedly admissible as held by us but its probative
value seems to be precious little in view of the several
improbabilities pointed out by us while discussing the
D evTdence.

We might mention here tha t we had to reappreciate the evi- •
dence of the witnesses and the circumstances taking into account the
psychological aspect of suicide as found in the psychotic nature and
character of Manju because these are important facts which the
E High Court completely overlocked. It seems to us that the High
Court while appreciating the evidence was greatly influenced by the
fact that the evid~nce furnished by the contents of the letters were
not admissible in evidence which, as we have shown, is a wrong view
of law,

F We now come to the second limb- perhaps one of the most
important limbs of the pro~'ecution case viz. , the circumstance that
the appellant was last seen with the deceased before her death.
Apparently, if proved, this appears to be a conclusive evidence
against the appellant but here also the High Court has completely
ignored certain essential details which cast r::onsiderable doubt on
the evidence led by the prosecution on this point. ·
G
The question of the appellant having been last seen with the
deceased may be divided into three different stages:

1) The arrival of Anuradha and her children alongwith
p Manjil at Takshila apartm.eotst followed by the arrival of
SHARAO B. C~A'NO v. MAHARASH1RA (Fazal Ali, J.) 143

the appeJiant and his entry into his bedroom where A
Anuradha was talking to Manju,

2) the calling of PW 29 by A-2 followed by the appellant
and his brother's going out on a scooter to get Dr. Lodha
and thereafter Dr. Gandhi.
B
3) Sending for Mohan Asava (PW 30) and the conversation
.. between the appellant, Birdichand and others as a result of

- ...
which the matter was reported to the police.

Although the aforesaid three stages of this circumstance cannot
c
technically be called to mean that the accused was last seen with the
deceased but the three parts combined with the first circumstance
might constitute a motive for the murder attributed to the appellant.

From a perusal of the judgment of the High Court on these
points, it appears that the High Court has made a computeriseandd D
mathematical approach to the problem in fixing the exact time of the
various events which cannot be correct as would appear from the
• evidence of the witnesses, including Dr· Banerjee (PW 33) .

The evidence of PW 7, the motor rjckshaw driver shows that
on the night of the I 1th of June he had brought the deceased E
alongwith Anuradha and others and dropped them near the

- Takshila apartments nt about 11.00 p.m. The witness was cross-
examined on several points but we shall accept finding of the High
Court on the fact that on the 11th of June 1982 the witness
had dropped the rersons, mentioned above, at about 11.00 p.m. The
F
~) rest of the evidence is not germane for the purpose of this case.
It may, however; be mentioned that one should always give some
room for a difference of a few minutes in the time that a layman-
like PW 7 would say. We cannot assume that when the witness
stated that he had dropped Manju and others at 11.00 p.m., it
was exactly I I .00 p.m.-it would have been I 0-15 minutes this way G
-. or that way. His evidence is only material to show the approximate
time when Manju returned to t~e apartments.

The next witness on this point is PW-28, K.N. Kadu. This
witness corroborates PW-7 and stated he had heard the sound of a
rickshaw near the apartments when the wife of A-2, Manju and 3
¥llildren eptered the avart~e~ts ~n<;l wen~ to t~eir rooms. Ife g
144 SUPREME COURT REPORTS ( 1985] 1 S.C.R.

A further
. says tLna t arter
" about I 5 minutes
· he saw the appellant
c~mtng on a scooter and whil"e he was parking his scooter the
vntness asked him why did he come so late to which he replied
that he was busy in some meeting. This would show that the
appel1ant must have arrived at the apartments near about 11.30 or
11.4;5 p.m. It is very difficult to fix the exact time because the
B witness himself says that he had given the timings approximately.
The High Court was, therefore, not justified in fixing the time of
arrival of Manju and party or the appellant with almost mathe- #

trlatical precision for that would be a most unrealistic approach.
-.
c
The High Court seems to have speculated that Manju must have
died at 12.00 a.m., that is to say, within 15-20 minutes of the
arrival of the appellant. It is, however, impossible for us to deter-
I
mine the exact time as to when Manju died because even
Dr. Banerjee says iP his evidence that the time of death of the
deceased was between 18 to 36 hours which takes us to even
beyond past 12 in the night. At any rate, this much is certain
D that Manju must have died round about to 2.00 a.m. because when Dr.
Lodha arrived at 2.45 a.m. he found her dead and he had also
stated that rigor mortis had started setting in, It is. therefore, •
difficult to fix the exact time as if every witnessjhad a watch which
gave correct and exact time. Such an inference is not at all called
for.
E
The third stage of this matter is -,:that~Uwhile the witness was
sleeping he heared the .sound of the starting of a scooter and got
up from his bed and saw appellant and A-2 going away. Therefore,
he found 7-8 persons coming and going on their scooters. The High
-
F
Court seems to suggest that this must have happened by about
1.30 p.m. Even so, this docs not prove that Manju have died at
midnight. As the witness had been sleeping and was only aroused
·-
by the sound of scooters, it wou1cj be difficult to fix the exact time
when he saw the appellant and A-2 going out on their scooters. His
' e'!idence, therefore, wlls rightly relied!upon by the High Court in
G proving tr,,e facts stated by him.

PW-29, B.K. Kadu, whoJwas serving as a watchman at the
Takshila apartments says that near about the midnight he was called
by Rameshwar, A-2 and on hearing the shouts he went to flat No.
5. He further says that A-2 directed him to~unbolt or unchain the
door but the door was not found closed from inside and hence A-2
JI went out and returned after some time. While the witness was
SHAll.AO B. CHAND v. MAHAMSHTRA (Faza/ Ali, J.) 145
standing at the door A~2 returned and after his return the witness
also came back to his house and went to sleep. Perhaps the wit- A
ness was referring to the incident when A-1 and A-2 had gone on
scooter to fetch Dr. Lodha. During cross-examination the witness
admitted that he did not possess any watch and gave the timings
only approximately. We shall accept his evidence in toto but that
leads us nowhere.
B
This is all the evidence so far as the first stage of the case is
concerned and, in all probability, it does not at all prove that A~l
had murdered the deceased. On the other hand, the circumstances
proved by the three witness are not inconsistent with the defence
plea that soon after entering the room Manju may have committed c
suicide.

Part II of this. circumstance relates to the coming of Dr. Lodha .
and then Dr. Gandhi on the scene of occurrence and we accept
their evidence in toto. Dr, Lodha was a family doctor of the appel-
lant's family and it was quite natural to send for him when the
D
appellant suspected that his wife was dead. Although Dr. Lodha
'·' (PW 24) was a fami1y doctor of the appellant's family yet he did
not try to support the defence case and was frank enough to tell
the aqcused and those who were 'present there that it was not possi-
ble·' for him to ascertain the cause of death which could only be
done by a post-mortem. In other words, he indirectly suggested E
that Manju's death was an unnatural one, and in order to get a
second opinion he advised that Dr. Gandhi (PW 25) may also be
summoned. Accordingly, Dr. Gandhi was called and he endorsed
the opinion of Dr. Lodha. Such a conduct on the part of the
appellant or the persons belonging to his family is wholly inconsistent
wi!h the allegation of the prosecution that the appellant had F
murdered the deceased .

. The. High Court seems to have made one important comment-
in that why Dr_ Lodha and Dr. Gandhi 'were called from some dis-
tance when Dr. Kel~ar, who was a skin specialist and another
Doctor who was a child 'expert, were.,.living in the same building. G
This comment is neither here no! there. It is manifest that
~irdichand was a respectabl_e person of the town and. when he
fovnt~hat his daughter-in~la~ had died he would naturally send
~or,- his_ f<).mily doctor rather. Vwn tl:tose who were not known to
hint.
.,.t l .
H
146 SUPREME COURT REPORTS [1985] 1 S.C.R.
..
A. It appears that PW 30 Mohan Asava was also summoned on
teleph~ne_ and wh~n. he came at the scene of occurence he found
A·2, Birdtchand stttmg on the floor of the room and Bridichand
hugged him out of grief, and told him that Manju had died of
shock and the Doctors were not prepared to give a death certi·
ficate. '
B
In order to understand the evidence of this witness it may be
necessary to detenr..ine the sequence of events so for as PW 30 is
concerned. The witness has stated that while he was sleeping he
was aroused from his sleep by a knock at the door by Ram Vilas
c Sharda (brother of appellant) at about 4.00 or 4.15 a.m. Ram Vilas ..
told him that Manju had died and the doctors were not prepared
to give any death certificate. After having these talks the witness,
alongwith Ram Vilas, proceeded to the apartments and remained
there till 5. 15. a.m. Then he returned to his house, took bath and
at about 6.30 a.m. he receivd a telephone caU from Ram Vilas for
D lodging a report with the police with the request that the time of
death" should be given as 5.30 a·m. Consequently, he reached the
police station near about 7.00 or 7.15 a.m. and lodged a report
stating·: that Manju had died at 5.30 a.m.

This witness appears to be of doubtful antecedents and,
E therefore. his evidence has to be taken with a grain of salt. He
admitted in his statement at p. 387 that some proceedings about
evasion of octroi duty were pending against him. in the Court. He
also admitted that he was convicted and sentenced to 9 months R.I
under the Food Adulteration Act in the year 1973.
-
F Apart from this it appears that most of the statements which
he made in the Court against Birdichand and the other accused,
were not made by him before the police. These statements were put to
-·
him and he denied the same but they have been proved by the
Investigation Officer, PW 40 \'Vhose evidence appears at p. 521 of
Part II of the printed paperbook. These belated statements made
G in the Court may be summarised thus :

While in his statement before the court the witness at p. 386
(para 19) states that the death of Manju was suspicious yet he
made no such statement before the police on being confronted by
the statement of PW 40. Another important point on which his
B statement doe:. not appear to b~ tllle is that the do~i~e~t fa~t
SHARAD B. CHAND v. MAHARASHTRA (Faza/ Ali, J.) 147

mentioned to him by Birdichahd and others was that the doctors
A
were not prepared to issue death certificate but he did not say so
\
before the police. Similarly, he deposed in the court about the
statement made to him by Birdichand that he would lose his pres-
tige and therefore the body should be cremated before 7.00 a.m,
but he advised him not to do so unless he has informed the police
B
otherwise his whole family would be in trouble. Almost the entire
part of his evidence in para 5 at p. 381 appears to be an after-
thought, as PW 40 stated thus :

"I recorded the statement of PW 30 Mohan Asava.
He did not state before me that death of Manju was sus- 0
picious. He did not state before me that Accused No. 3
informed him that the Doctors were not prepared to issue
the death certificate. He did not state before me that the
demand was made of the death certificate from the Doctors
or the Doctors refused to give the same. During his
statement this witness did not make the statements as per
para No. 5 excluding the portions from A to F of his
a
examination-in-chief."

The portions referred to as 'A to F' in para No. 5 of exami-
nation-in-chief of PW 30 may be extracted thus :

- "Birdichand then started telling me that Manju had
died on account of shock and that---he said that she
died of heart attack---under any circumstance he
E

- wanted to cremate .Manju before 7. 0' clock---when
he said that he would spend any amount but wanted to
cremate her before 7.00 a.m."
F
This statement does not appear to be true for the following
reasons .

(a) Birdichand knew full well that PW 30 was a police
contact constable and as he was not prepared to per-
suade the· doctors to give a death certificate, his atti-
tude was hardly friendly as he was insisting that the
matter should be reported to the police.

It is, therefore, difficult to believe that Birdichand
would take such a great risk in layip.g aU his cards on
the table knowing full well that the witness was not iJ
148 SUPRtME CO\ffi.T REPORTS ll~~5] I s.c.R.

A so friendly as he thought and therefore he might
inform the police ; thereby he would be in a way
digging his own grave.

(b) On a parity of reasoning it would have been most
improbable on the part of the appellant, after having
B decided to report the matter to the police, to ask
PW 30 to report the time of death as 5.30 a.m.
knowing full well his attitude when he came to the
apartments.

It is not at all understandable how the witness could hav1:
0 mentioned the time of Manju's death as 5.30 a.m. or, at any rate,
when her death was known to her husband and when he himself
having gone to the apartments near about 4.15 a.m. knew fuU
well that Manju had died .earlier and that Dr. Lodha and Dr.
Gandhi had certified the same and advised Birdichand to report
the matter to the police. In the original Ex-120 (in Marathi!
D
language), it appears that the time of death given by the witness is
'Pahate' which, according to Molesworth's Marathi-English Die··
tionary at p. 497, means 'The period of six ghatikab efore sunrise,
the dawn' i. e., about 2 hours 24 minutes before sunrise (one gha-
tika is equal to 24 minutes). This ··would take us to near about
3 .00 a.m. Either there is some confusion in the tramlation of the
E
word 'Pahate' or in the words '5.30 a.m.', as mentioned in the
original Ex. 120. However, nothing much turns on this except
that according to the witness Manju must have died around 3.00
a.m. which is consistent with the evidence cf Dr. Lodha that when
-
he examined Manju at about 2.30 a.m. he found her dead and rigor
mortis had already started setting in.
F
We are not concerned1 here with the controversy whether
the report was admissible under s. 154 or s. 174 of the Code of
Criminal Procedure but the fact remains that the policd did receive
the information that the death took place at 5.30 a.m. The High
G ' Court seems to have made a capital out of this small incident and
has not made a realistic approach to the problem faced by Birdich-
and and his family. Being a respectable man of the town, Birdi-
chand did not want to act in a hurry lest his reputation may suffer and
tnaturally required some time to reflect and consult his friends before
aking any action. The allegation that A-3 told him to report the
H time of death as 5.30 a. m. is not ~~all vroved but is based 0~ ~h~
SHARAD n. CHAND v. MAHARASHTRA (Faza! Ali, J.) 149

statement of PW 30, before the police. Thus, the approach made A
by the High Court to this aspect of the matter appears to be artificial
and unrealistic as it failed to realise that the question of the time of
death of the deceased as 5.30 a. m could never have been given by
the appellant or any other accused because they knew full well tliat
the two doctors had exemined the whole matter and given the time of
a.
death as being round about 1.30 m. Having known all these facts B
how could anyone ask T>W 30 to give the time of death at the police
station as 5.30 a. m .
•
Thus, it w!ll be difficult for us to rely on the evidence of such
. a witness who had gone to the extent of making wrong statements
and trying to appease both Birdichand and the prosecution, and, c
therefore, his evidence does not inspire any confide~ce.

The ,last part of the case on this point is the evidence of PWs
2 and 4, where the appellant is said to have told them that he had
sexual intercourse with his wife near about 5.00 a.m. on the 12th
June 19&2. Apart from the inherent improbability in the statement D
of the appellant, there is one other circumstance which almost
clinches the issue. It appears that Kalghatgi (PW 20), Inspector-
in-charge of the police station made a query from Dr. Banerjee
which is extracted below :

Whether it can be said definitely or not as to whether E
sexual intercourse might have taken just prior to death?"

The above query was ruade in Ex. 129 and the answer of the

.. Doctor appears in Ex. 187 which)s extracted below :

"From cli~ical examination there was no posttlve
evidence of having any recent sexualj intercourse just prior
to death."

This positive finding of the DoCtor therefore knocks the bottom
F

out of the case made out by the prosecution tion that the appellant
had told PWs 2 and 4 about having sexual intercourse with his wife.
Unfortunately, however, the High Court instead of giving the bene· G
fit of this important circumstance to the accused has given the
benefit to the prosecution which is yet another error in the approach
made by the High Court while assessing the prosecution evidence.
Having regard to the very short margin of time between the arrival
of the·appellant in his bed-room and the death of Manju, it seems
H
150 SUPREMH COURT REPORTS [1985] 1 s.C.R.

A to be well-nigh impossible to believe that he would try to have sexual
. intercourse with her. This circumstance, therefore, falsifies the evi..
dence of PWs 2 and 4 on this point and shows the extent to which
the witnesses could go to implicate the appellant.

Finally, in view of the disturbed nature of the state of mind of
B Birdichand and the catastrophe faced by him and his family, it is
difficult to believe that the grief expressed and the tears shed by the
appellant when PW 2 met him could be characterised as fake. If it
is assumed that the accused did not commit the murder of the •
deceased then the weeping and wailing and expressing his grief to
PW 2 would be quite natural and not fake.
c
There are other minor details which have been considered by
the High Court but they do not appear to us to be very material.

Taking an overall picture on this part of the prosecution case
the position seems to be as follows :
D
(1) if the accused wanted to give poison while Manju was
wide awake. she would have put up stiffest possible
resistance as any other person in her position would
have done. Dr. Banerjee in his post-mortem report
has not found any mark of violenc(or resistance. Even
E if she was overpowered by:the appellant she would have
shouted and cried and attra.cted persons from the
neighbouring flats which would have been a great risk
having regard to the fact that some of the inmates of
the house had come only a short-while before the
appellant.
F
(2) Another possibility which cannot be ruled out is that
potassium cyanide may have been given to M anju in a
glass of water, if she happened to ask for it. But if
this was so, she being a chemist herself would have at
once suspected some foul play and once her suspicion
G would lhave arisen it would be very difficult for the
appellant to murder her.

(3) The third possibility is that as Manju had returned
pretty late to the flat she went to sleep even before the
H arrival of the appellant and then he must have tried to
srtARAD B. CliAND v. 1-iA.HARASHTRA (Fazal Ali, J.) lSi

- forcibly administer the poison by the process of
mechanical suffocation, in which case alone the decea-
A

sed could not have been in a position to offer any
resistance. But this opinion of the Doctor has not
been accepted by the High Court which, after a very
elaborate consideration and discussion of the evidence,
the circumstances and the medical authorities, found B
that the opinion of the Doctor that Manju died by
mechanical suffocation has not been proved or, at any
.. rate, it is not safe to rely on such evidence. In this

-·· connection, we might refer to the finding of fact arrived
at by the High Court on this point :
c
"In view of the above position as is available from the
evidence of Dr. Banerjee and from the observations made
by the medical authorities it will not be possible to say
that the existence of the dark red blood in the right ventricle
exclusively points out the mechanical suffocation particularly D
when such phenomenon is available in cases of poisoning by
potassium cyanide." (PB p. 147-48)

"In view of this answer it will not be possible to say
conclusively that this particular symptom of observation is
exclusively available in case of mechanical suffocation. E

Thus we ha-ve discussed all the seven items on which
Dr. Banerjee has relied for the purpose of giving an opinion
that there was mechanical suffocation. In our view, .there-
fore, those 7 findings would not constitute conclusive date
for the purpose of holding:that there was mechanical suffoca- F
tion. As the 7 findings mentioned above can be available
even in the case of cyanide~poisoning we think that it would
not be safe to rely upon these circumstances for recording
an affirmative finding that there was mechanical suffocation.
As the 7 findings mentioned above can be available even
in the case of cyanide poisoning we think that it would not G
be safe to rely upon these circumstances for recording an
affirmative finding that there was mechanical suffocation."
(P. 150-151)

It is not necessary for us to repeat the circumstances relied
upon by the High Court because the finding of fact speaks for itself.
H
152 SUPREME COURT REPORTS (1985) 1 S.C.R.
This being the position, the possibility of mechanical suffocation is
· A
completely excluded.

(4) The other possibility that may be thought of is that
~anju died a natural death . This also is eliminated in
view of the report of the Chemical Examiner as confir·
8 med by the post-mortem that the deceased had died as
a result of administration of potassium cyanide.
..
(5) The only other reasonable possibility that remains is
that as the deceased was fed up with the maltreatment
by her husband, in a combined spirit of revenge and
G
hostility after entering the fiat she herself took pota-
ssium cyanide and Jay lim!> and lifeless. When the
apbellant entered the room he must have thought that
as she was sleeping she need not be disturbed but when
he found that there was no movement in the body
D after an hour so, his -suspicion was roused and there-
fore he called his brother from adjacent flat to send for
Dr. Lodha.

In these circumstances, it cannot be said that a reasonable
possibility of the deceased having committed suicide, as alleged by
I
the defence, can be safely ruled out or eliminated.

From a review of the circumstances mentioned above, we are
of the opinion that the circumstance of the appellant having been
last seen with the deceased has not been proved conclusively so as
F to raise an irresistible inference that Manju's death was a case of
blatant homicide.

This now brings us to an important chapter of the case on
which great reliance appears to have been placed by Mr. Jethmalani
on behalf of the appellant. Unfortunately, however, the aspect
G relating to interpolations in the post-mortem report has been comple- _._
i
tely glossed over by the High Court which has not attached any
importance to the infirmity appearing in the medical evidence in
support of the said interpolations. Although the learned counsel
for the appellant drew our attention to a number of interpolati.ons
in the post-mortem report as also the report sent to the Chemical
H Examiner, we are impressed only with two infirmities which merit
SHARAD B. CHAND v. MAHARASHTRA (Fazal Ali, J.) 153

serious consideration. To begin with, it has been pointed out that A
in the original post-mortem notes which were sent to Dr. Banerjee
(PW 33) for his opinion, there is a clear interpolation by which the
words 'can be a case of suicidal death' appear to have been scored
out and Dr. Banerjee explained that since he had written the words
'time since death' twice, therefore, the subsequent writing bad been
scored out by him. In other words, the Doctor clearly admitted B
the scoring out of the subsequent portion and we have to examine
whether the explanation given by him is correct. In order to decide
this issue we have examined for ourselves the original post mortem
notes (Ex. 128) where the writing has been admittedly scored out by
Dr. Banerjee. The relevant column against which the scoring has
been done is column. No. 5 which runs thus : C

"5. Substance of accompanying Report from Police
Officer or Magistrate, together with the date of death, if
known. Supposed cause of death, or reason for examina-
tion.''
D
The last line indicates that the Doctor was to note two
things-(1) the date of death, if known, and (2) the suppposed cause
of death. This document appears to have been written by PW 33
on 12.6.82 "at 4.30 p.m. The relevant portion of the words written
by the Doctor are 'time since death' which were -repoated as he
E
states in his statement. After these words some other words have
been admittedly scored out and his (PW 33) explanation was that
since he had written 'time since death' twice, the second line being a
repetition was scored out. A bare look at Ex. 128 does not show that
the explanation given by the Doctor is correct. We have ourselves
examined_ the said words with the help of a magnifying gTass and
F
find that the scored words could not have been .'time since death',
The only word common between the line scored out and the line ]eft
intact is 'death'. To us, the scored out words seem to be 'can be a
case of suicidal death'. Dr Banerjee however stuck to his original
stand which is not supported by his own writing in the document itself.
It seems]to us that at the first flush when he wrote the post-mortem-
G
notes it appeared to him that no abnormality was detected and that
it appears to be a case of suicide rather than that of homicide.
This, therefore, if the strongest p-ossible circumstance to make the
defence highly probable, if not certain. Furthermore, the Doctors's
explanation that the scored words were "time since death", accord-
ing to the said explanation, the scored words ore only three whereas H
1S4 SUPkEME COtJRT REPORTS tl985] 1 s.c.tt..
the portion scored out contains as many as seven words. Hence the
A
explanation of the Doctor is not borne out from the document.

It is true that the Doctor reserved his opinion until th(:
chemical examiner's report but rhat does not answer the question
because in column No. 5 of post·mortem note Dr. Banerjee has
clearly written "can be a case of suicidal death" which indicates
9.
that in the absence of the report of the chemical examiner, he waH
of the opinion that it couid have been a case of suicide. In his
evidence, PW 33 stated that in Exh. 128 in~column No.5 the content!·>
scored out read 'time since death' and and since it was repeated in
the next line, he scored the words in the second line. Despit!:
persistent cross-exmination the Doctor appears to have stuck to his
c stand. It cannot, therefore, be gainsaid that this matter was of vital
importance and we expected the High Court to have given serioutl
attention to this aspect which goes in favour of the accused.

Another interpolation pointed out by the learned counsel is
D regarding position of tongue as mentioned in Exh. 134. In th<.:
original while filling up the said column the Doctor appears to have
scored out something; the filled up entry appears thus-'moutb is
closed with tip (something scored out) seen caught between the
teeth'. But in the carbon copy of the report which was sent to th~~
Chemkal Examiner (Exh. 132) he has added 'caught between the
E
teeth' in ink but in the original there is something else. This i:s
fortified by the fact that the copy of the report actually sent to the
chemical examiner does not contain any interpolation against the
said column where the filled up:entry reads 'Inside mouth'.

F T~e combined effect of these circumstances show that Dr.
Banerjee (PW33) tried to introduce some additional facts regarding
the position of the tongue. Perhaps this may be due to his final
opinion that the deceased died due to mechanical suffocation which
might lead to the tongue being pressed between the teeth. This,
however, throws a cloude of doubt on the correctness or otherwise
G of the actual reports written by him and the one that was sent to
the Chemical Examiner. It is obvious that in the carbon copy which
was retained by the Doctor, the entries must have been made after
the copy was sent to the Chemical Examiner. However, this circums·
tance is not of much consequence because the opinion of the Doctor
that Manju died by forcible administration of potassium cyanide or
H by the process of mechanical suffocation has not been proved.
SllA\lAD B. CtlA:-.ID v. M \H-\R.'\\.HRA (Fum( Ali, J.) 155

This aspect need not detain~us any further because the High Court
has not accepted the case of mechanical suffocation. A

So far as the other findings of Dr. Banerjee are concerned we
fully agree with the same. A number of comments were made on
behalf of the appellant about Dr. Banerjee's integrity and incorrect
reports but subject to what we said, we do not find any substance in
those contentions. B

.. In para 90 of its judgment the High Court bas given a number
of circumstances which according to it, go to prove the prosecution
case showing that the appellant had administered the poison during the
night of 11th June, 1982. These circumstances may be extracted thus :

(1) In the bed-room Manju died of poisoning between
c
11.30 p. m. and 1. a. m. in the night between 11/12tb
June, 1982.

(2) Accused No. 1 was present in that bed room since
before the death of Manju i. e. since about 11.15 p. m.
D
(3) Accused No, ·1 did not return to the fiat at 1.30 a.m or
1.45 a.m. as allege4 .

. (4) The conduct of accused No. 1 in not calJing for the
immediate help of Dr. Shrikant Kelkar and/or Mrs.
Anjali K elkar is inconsistent with his defence that he felt E
suspicious of the health of Manju when he allegedly
returned to the fiat at 1.30 a.m.
\
(5) In different conduct of accused No. 1 when Dr. Lodha
and Dr. Gandhi went to the fiat in Taksbila apartment
Accused No. 1 did not show any an.xiety which on;
F
normally finds when the doctor comes to examine the
patient. Accused No. 1 should have accompanied
the doctors when they examined Manju and should have
expressly or by his behaviour disclosed his feelings
about the well being of his wife. It was also necessary
for him to disclose the alleged fact that he saw Maoju
in a suspicious condition when he returned at about G
1.30 a.m. or so.

(6) An attempt of Birdichand to get the cremation of
Maoju done before 7 a. m. on 12. 6 82 even by spend·
ing any amount for that purpose. This conduct though
I!
156 SUPREME COURT REPORTS [1985j 1 s.c.R.

A of Birdichand shows the conduct of a person to whom
Accused No. 1 had gone and informed as to what had
happened.

(7) Delay and false information to police at the hands of
Mohan Asava. Though the information is given by
B Mohan as per the phone instructions of accused No. 3
it i~ presumed that accused No. 1 must have told
accused No. 3 about the incident and on that basis
accused No. 3 gave instructions to Mohan Asava. .
(8) Accused No. 1 himself does not take any action either·
c personally or through somebody else to give correct
information to police.

(9) Arrangement of the dead body to make show that
Manju died a peaceful and natural death.

(10) Accused No. 1 has a motive to kill Manju as he
D wanted to get rid of her to continue relations with
Ujvala.
(11) Absence of an anklet on left ankle of Manju is
inconsistent with the defence that Manju committed
suicide.

(12). The conduct of the accused in concealing the anklet in
the fold of the Chaddar is a Conduct of a guilty man.
(13) The door of the bedroom was not found bolted from
inside. This would have been normally done by Manju
F if she had committed suicid~.
(14) Potassium cyanide must not have been available to
Manju.
(15) Manju was 4 to 6 weeks pregnant. This is a circums-
tance which would normally dissuade her from commi-
G tting suicide.
(16) Denial of the part of accused No. 1 of admitted or
proved facts.

( 17) Raising a false plea of absence from the bedroom at
H the relevant time. (PP. 152-155)
SHARAD B. CHAND v. MAHA.RASHTRA (Faza[ Ali, J.) 157

. We have already discussed most of the circumstances extracted A
above and given our opinion, and have also fully explained the effect
of circumstances Nos. 1,2,3,4,5 and 6. We might again even at the
risk of repetition say that too much reliance seems to have been
placed by the High Court on circumstance No. 4 as the appellant
did not immediately call for Dr. Shrikant Kelkar (PW 26) and Dr.
(Mrs.) Anjali Kelkar (PW 27). In a matter of this magnitude it
would be quite natural for the members of the appellant's family to
8
send for their own family doctor who was ful1y conversant with the
ailment of every member of the family. In these circumstances
there was nothing wrong if the appellant and his brother went to a
distance of P /2 Km. to get Dr. Lodha. Secondly, Dr. Shrikant
Kelkar was skin specialist whereas Dr. (Mrs) Anjali Kelkar was a G
Paediatrician and the appellant may have genuinely bclievd that as
t.hey belonged to different branches, they were not all suitable to
deal with such a serious case. The High Court was, therefore,
wrong in treating this circumstance as an' incriminating conduct of
the appellant.
0
Circumstance No. 5 is purely conjectural because as soon as
, Dr. Lodha came he examined Manju and advised that Dr. Gandni
be called. We fail to understand~what was the indifferent conduct of
the appellant when he had sent for the two Doctors who examined
the deceased. The· appellant was in the same room or rather in an
adjacent room when the deceased was being examined. From this
no inference can be drawn that the appellant was indifferent to the
state in which Manju was found .

" As regards circumstance · No. 6 we have already explained
this while dealing with the evidence of Mohan Asava, PW 30. F
As regards circumstance No. 7, the High Court has presumed that
there being no dependable evidence that the infromation given to the
police by PW 30 was false and that the appel!ant must have told
A-3 about the incident on the basis of which he gave instructions to
PW 30. This is also far from the truth as has been pointed out by us
while deahng with the evidence of PW 30. G

Circumstance · No. 8 is that PW 30 was asked to report the
matter to the police. When the dead body ~was lying in the fiat
what action could the appellant have taken except reporting the
matter to the police throughlone of his knowp. persons. So far as '
ff
158 SUPREME COURT REPORTS [1985] 1 s.c.R.

circumstances Nos. 9 and)O are concerned, they do not appear to us
A
to be of any consequence because, as shown by us, from a reading of
the letters (Exhs. 30,32 and 33) and the conduct of the appellant,
we do not find any evidence of a clear motive on the part of the
appellant to kill Manju.

B Circumstances Nos. 11 and 12 are also of no assistance to the
prosecution because whether the anklet was in the chaddar or
elsewhere is wbolty insignificant and does not affect the issue in
question at all. Circumstance No. 13 is also speculative because
if the bedroom was not found bolted from inside that would it self
not show that Manju could not have ··committed suicide. Various
persons may react to circumstances in nifferent ways. When Manju
entered her bedroom her husband had not come and since she went
to sleep she may not have bolted the door frrom inside to enable her
husband to enter the room. As regards ~circumstance No. 14, the
High Court has overlooked a very important part of the evidence of
PW 2 who has stated at page 178 of part I of the printed paperbook
thus:

"The plastic factory at Beed is a partnership concern
in which two sons of Dhanraj, my wife and sister-in-law, i.e.,
brother's wife are partners."
E
Dr. Modi's Medical Jurisprudence and Texicology (19th Edn.)
at page 747 shows that 'Cyanide is also used for making basic chemi·
cals for plastics'. Apart from the fact that the High Court in relying ·
on this circumstance has committed a clear error of record, it is an
additional factor to show that cyanide could have been available to
F Manju when she visited Beed for the last time and had stayed there
for more than a week.

Circumstance No. 15-the fact that Manju was 4 to 6 weeks
pregnant would dissuade Manju from committing suicide is also
purely speculative. A pregnancy of 4 to 6 weeks is not very serious
G and can easily be washed out. Moreover, when a person has deci-
ded to end one's life these are matters which do not count at all.
On the other hand, this cirumstance may have prompted her to
commit suicide for a child was born to her, in view of her ill-treat-
ment by her husband and her in-laws, the child may not get proper
upbringing. Any way, we do not want to land ourselves in the field
p: pf S¥rmis~s and conjectures as the High Court has done.
SUARAD D. CHAND v. MAHARASHTRA (Faza/ Ali, J.) 159
A
Circumstance No. 17 is wholly irrelevant because the prosecu-
tion caJH10t derive any strength from a false plea unless it has proved
its case with absolute certainty. Circumstance No.l7 also is not
relevant because there is no question of taking a false plea of absence
from the bedroonJ at the relevant time as there is no clear evidence B
on this.point.
j
• Apart from the aforesaid comments there is one vital defect in

- •·
some of the circumstances mentioned above and relied upon by the
High Court, viz., circumstances Nos. 4,5,6,8 ,9,ll,l2,13,l6, and 17.
As these circumstances were not put to the appellant in his statement
under s.313 of the Criminal Procedure Code they must be completely
c
excluded from consideration because the appellant did not have any
' chance to explain them. This has been consistently held by this
Court as far back as 1953 where in the case of Fateh Singh Bhagat
Singh v. State of Madhya PradeJh(1 ) this Court held that any cir-
0
cumstance in respect of which an accused was not examined under s.
342 of the Criminal procedure code cannot be used against him,
L
Ever since this decision. there is a catena of authorities of this
Court uniformly taking the view that unless the circumstance
appearing against an accused is put to him in his examination under
s.342 of the or s.313 of the Criminal Procedure Code, the same E
cannot be used against him. In Shamu Ba/u Chaugule v. State
of Maharashtra<2> this Court held thus :

- "The fact that the appellant was said to be absconding
not having been put to him under section 342, Criminal
F
Procedure Code, could not be used against him."

To the same effect is another decision of this Court in
Harijan Megha Jeslra v. State of Gujarat (8 ) where the following
observation were made :
G
"ln tfie first place, he stated that on the personal
search of 't he appellant, a chadi was found which was blood
stained and according to the report of the serologist, it
contained human blood. Unfortunately, however, as this
circumstance was not put to the accused in his statement

(I) AlR 1953 SC 468
(2) [1976} 1 s.c.c. 438.
~3) AIR ~979 S~ ~566,
160 SUPREME COURT RDPORTS (1985] 1 S.C.R.

A under section 342, the prosecution cannot be permitted to
rely on this statement in order to convict the appellant.';

It is not necessary for us to multiply authorities on this point
as this question now stands concluded by several decision of this
Court. In this view of the matter, the circumstances which were
B not put to the appellant in his examination under s.313 of the
Criminal Procedure Code have to be completely excluded from con-
sideration.

We might mention here an important argument advanceo.by
....
counsel for the appellant and countered by the Additional Solicitor
c General. It was argued before the High Court that it was high!.\
improbable that if the betrothal ceremony of appellant's sister,
which was as important as the marriage itself, was going to be per..
formed on the 13th of June, would the appellant choose a day before
that for murdering his wife and thereby bring disgrace and destruc-

D
tion not only to his family 'but also to her sister. We have already
.idverted to this aspect of the matter but it is rather interesting to
'
note how the High Court has tried to rebut this inherent improba-
bility, on the ground that in a case of administration of poison the
culprit would just wait for an opportunity to administer the same
and once he gets the opportunity he is not expected to think
rationally but would commit the murder at once. With due respect
E to the Judges of the High Court, we are not able to agree with the
somewhat complex line of reasoning which is not supported by the
evidence on record. There is clear evidence, led by the prosecution
that except for a week or few days of intervals, Manju always used
-
to live with her husband and she had herself complained that he
used to come late at night. Hence, as both were living alone in 1h~
F same room for the last four months there could be no dearth of any
opportunity on the part of the appe1lant to administer poison if he
real1y wanted to do so. We are unable to follow the logic of the
High Court's reasoning that once the appellant got an opportunity
he must have clung to it. The evidence further shows that both
Manju and appellant had gone for a honeymoon outside Pune and
G even at that time he could have murdered her and allowed the <:ase
to pass for a natural death. However, these are matters of con-
jectures.

The Additional Solicitor·General realising the hollowness of
the High Court's argument put it in a different way. He submitted
H that as the deceased was 4-6 weeks pregnant the appellant tealiseJ
SHARAO D. CHAND v. MAIIARASIITRA (Fazaf Ali, J.) 161

that unless the deceased was murdered at the behest it would'be-
come very difficult for him to murder her, even if he had got an
A
opportunity, if a child was born and then he would have to maintain
the child also which would have affected his illicit connections with
Ujvala; This appears to be an attractive argument but on close

.
•
scrutiny it is untenable. If it was only.....a question of Manju's
.
4-6 weeks pregnant before her death, the appellant could just as
being
B
well .have waited just for another fortnight till the marriage of his
sister was over which was fixed for 30th June, 1982 and then either
have the pregnancy . terminated or killed her. Moreover, it would
appear from the evidence of PW 2 (P.l76) that in his community the
Kohl ceremony is not merely a formal betrothal but a very important
ceremony in :which all the near relations are called and invited to c
attend the function and a~ dinner is hosted. We might extract what
PW·2 says about this: · ·

."At the time ofKohlcelebrationofManju, on 2.8-.1981,
my relatives i.e. my 'sister from .outside had attended this D
: function and many people were invited for this function.
A dinner was also hosted by ~e. In that function the
father of the bridegroom is required to spend for the dinner
while the presentations made to the bride are required to
be given or doned at the expenses of the side of bridegroom
This programme is not attended by the bridegroom."
, · . · . .· (P.t76) -

As Birdichand and others were made · co-accused in the case E
they were unable to give evidence on this point but it is " the admit-·
ted case of both the parties that the accused belonged to the same
community as PW 2. In these circumstances, it is difficult to accept
the argument that the appellant would commit the muider of his
wife just on the eve of Kohl ceremony, which he could have done
' the same long before. that ceremony or after the marriage as there
was no hurry nor any such impedimen"t which would deny him any"
G
opportunity of murderiny his wife.

: We now come to the natu-:e and character of the circ'umstan-
... tial evidence. The law on the subject is well settled for the last 6-7
decades and there have been so many decisions on this point that
the principles laid down by courts have become more or iess..
fl~iomatic.
H
i62 SUPREMB COURT REPORTS [1985] 1 s.c.Jt.
A
The High Court has referred to some decisions of this Court
and tried to apply the ratio of those cases to the present cas~ wbicb
as we shall show, are clearly distinguishable. The High Court wa~
. greatly impressed by the view taken by some courts, including this
Court, that a false defence or a false plea taken by an accused would
B be an additional link in the various chain of circumstantial evidence
and seems to suggest that since the appellant had taken a false plea that
would be conclusive, taken along with other circumstances, to prove
the case. We might, however, mention at the outset that this ~s not
what thi!! Court has said. We shall elaborate this aspect of the
matter a little later.
c
It is well settled that the prosecution must stand or fall on irs
own legs and it cannot derive any strength from the weakness of the
defence. This is trite law and .no deci~ion has tak:n a contrary
view. What some cases have held IS only thts: where vanous links in a
chain are in themselves complete, than a false plea or a false defence
D may be called into aid only to lend assurance to the Court. In other
words before using the additional link it must be proved that aU
the li~ks in the chain are complete and do not suffer from any
infirmity. It is not the law that where is any ·infirmity ~r Ja~una in
the prosecution case, the same could be cured or supplied by a
false defence or a plea which is not accepted by a Court.
E
Before discussing the cases relied upon by the High Court we
would like to cite a few decisions on the nature, character and
essential proof required in a criminal case which rests on circum·
stantial evidence alone. The most fundamental and basic decision
of this Court is Hanumant v. The State of Madhya Pradesh.(l)Jhia
F case bas been uniformly followed and applied by this Court in a
large number of later decisions uptodate, for instance, the case~1 of
Tufail (Alias) Simmi v. State of Uttar Pradesh(2 ) and Ramgopal v.
State of Maharashtra<.•). It may be useful to extract what Mabajan,
J. bas laid down in Hanumant's case (supra):
G
"It is well to remember that in cases where the evid-
ence is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in the

(1) [19S2) SCR 1091.
(2) [19691 3 sec 198.
(3) AIR tm SC 656.
SHARAD B. CHAND v. MAHARASHTRA (.Faza[ ali, J.) 163

first instance be fully established and all the facts so
A
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstnces
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 B
reasonable ground far a conclusion consistent with the inno·
ccnce of the accused and it must be such as to show that
within all human probability the act must have been done
by the accused."

A close analysis of this decision would show that the following c
conditions must be fulfilled before a case against an accused can be
said to be fully established :

(1) the circumstances from which the conclusion of guilt is
It to be drawn should be fl.111Y established.
D
It may be noted here that this Court indicated that the
circumstances concerned 'must o~ should' and not 'may be' establis-
hed. There is not only a grammatical but a legal distinction bet-
ween 'may be proved' and 'must be or should be proved' as was
held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of
Maharashtral1) where the following observations were made: E

"Certainly, it is a primary principle, that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between 'may be' and

• 'must be' is long and divides vague conjectures from sure
conclusions."

(2) The facts so established should be-consistent only with
the hypothesis of the guilt of the accused, that is to
F

say. they should not be explainable on any other
h)'pOthesis except that the accused is guilty,
G
(3) the circumstances should be of a conclusive nature and
tendency,

(4) they should exclude every possible hypothesis except
the one to be proved , and

(1) [1973) 2 sec 793. H
'

164 SUPREME COURT REPOR'IS (1985] 1 S.C.R. .'
(5) there must be a chain of evidence so complete as not
to leave l!ny reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.

B These five golden principles, if we may say so, constitute the
panchc;heel of the proof of a case based on circumstantial evidence.

It may be interesting to note that as regards the mode of proof
in a criminal case depending on circumstantial evidence, in the
absence of a corpus deliciti, the statement of Jaw as to proof of the
D same was laid down by Grcsson, J. (and concurred by 3 more
Judges) in
The King v. Horry,( 1) thus :

"Before he can be convicted, the fact of death should
be proved by such circumstances as render the commission
of the crime morally :certain and leave no ground for
c reasonable doubt : the circumstantial evidence should be
so cogent and compelling as to convince a jury that up·
on no rational hypothesis other than murder can the facts
be accounted for."

Lord Goddard slightly modifie(the expression ,morally certain
E
by 'such circumstances as render the commission of the crime
certain'.
\
This indicates the cardinal principle~of ·crimmal jurisprudence
that a case can be said to be proved only when there is certain and
F explicit evidence and no person can be convicted on pure moral •
conviction. Horry's case (supra) was approved by this Court in
Anant Chintaman Lagu v. The State of Bombay(2 ) Lagu's case as also
the principles enunciated by this Court in Hanumant's case (supra)
have been uniformly and consistently followed in all later decisions
of this Court without any single exception. To quote a few <::ases-
G Tufail's case (supra), Ramgopals case (supra), Chandrakant Nyalchand
S;th v. The State of Bombay (Criminal Appeal No. 120 of 1957
decided on 1~.2.58), Dharambir Singh v. The State of Punjab
(Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are
a number of other cases where altough Hanumant's case has not

H (t) [1952} N.Z.L.R. 111.
(2) {1960)2 SCR~460.
SHARAD B. CHAND v. lliAHA!tASifiRA (Faza/ Aii, J.) 165
A
been expressly noticed but the same principles have been expounded
and reiterated, as in Naseem Ahn;ed v. Delhi Administration(1). Mohan
La/ Pangasa v. State of U.P.,(2) Shankarlal Gyarasilal Dixit v. State
of Maharashtra(3 ) and M.C. Agarwal v. State of Maharashtra(4 )-a
five-Judge Bench decision.
B
It may be necessary here to notice a very forceful argument
submitted by the Additional Solicitor-General relying on a decision
of this Court in Deo11andan Mishra v. The State of Bihar(6), to supple-
ment this argument that if the defence case is false it would consti-
tute an additional link so as to fortify the prosecution case. With
due respect to the learned Additional Solicitor General we are C
unable to agree with the interpretation given by him of the aforesaid
case, the relevant portion of which may be extracted thus :

"But in a case like this where the various links as
started above have been satisfactorily made out a~d the
circumstanc.es point to the appellant as the probable assai- D
lant, with reasonable definiteness and in proximity to the
deceased as regards time and situation --such absence of
explanation of false expla nation would itself be an addi-
tional link which completes the chain."

It will be seen that this Court while taking into account the E
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete ·the chain but these
observations must be·read in the light of what this Court said

- earlier, viz., before a false explanation can be used as additional link,
the following essential conditions must be satisfied :
F
(l) vadous Jinks in the chain of evidence led by the prose-
cution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the accused
with reasonable definiteness, and
G
\

(3) the circumstance is in proximity to the time and situa-
tion.

(1) A .I.R. 1974 S .C. 1144/1146.
(2) [1981] 2 S.C.R. 384/WO.
(3) [1963] 2 S.C.R . 405/419.
(4) [195512 S.C.R. 570/582. 8
(5) [1974] 2 S.C.R. 694/696.
166 SUPREME COURT REPORtS [198)J 1 s·c.R.

lf these conditions are fulfilled only then a court can use a
\.....
_

A \
false explanation or a false defence as an additional link to lend an
assurance to the court and not otherwise. On the facts and circum~
stances of the present case, this does not appear to be such a case.
This aspect of the matter was examined in Shankarlal's case (supra)
where this Court observed thus :
B "Besides, falsity of defence cannot take the place of
proof of facts which the prosecution has to establish in
order to succeed. A false plea can at best be considered
as an additional circumstance, if other circumstances point
unfailingly to the guilt of the accused."
c This Court, therefore, has in no way departed from the five
conditions laid down in Hanumant's case (supra). Ullfortunately,
however, the High ...Court also ~seems to have misconstrued this
decision and used the so-called false defence put up by the appellant
as one of the additional circumstances connected with the chain.
There is a vital difference between an incomplete chain of cir-
D
cumstances and a circumstance which, after the chain is complete,
is added to it merely to reinforce the conclusion of the court.
Where the prosecution is unable to prove any of the essential ..
principles laid down· in Hanumant's case, the High Court
cannot supply the weakness or the lacuna by taking aid of or
E. recourse to a false defence or a false plea. We are. therefore,
unable to accept the argument of the Additional Solicitor-General.

Moreover, in M.G. Agarwal's case (supra) this Court while
reiterating the principles enunciated in Hanumant's case observed
thus:
-
F "If the circumstances proved in the cas~ are consistent
either with the innocence of the accused or with his guilt,
then the accused is entitled to the benefit of doubt."
•
G In Shankarlal's (supra) this Court reiterated the same view
thus:
"Legal principles are not magic incantations and their
importance lies more in their application to a given set of
-
facts than in their recital in the judgment''.

We then pass on to another important point which seems to
have been completely missed by the High Court. It is well settled
H that where on twthe evidenceossibiliteso pare available or open
SHAl~AO B. CHANO v. MAl-iARASHrRA (Fazai A.iz',.J.) 161
I
one which goes in favour of the prosecution and the other which A
bt~nefits ao accused, the accused is undoubtedly entitled to the
b(1nefit of.doubt. In Kali Ram v. State of Himachal Pradesh,{ 1) this
Court made the following observations :

"Another golden thread which runs through the web
of the administration of justice in criminal cases is that if B
two views are possible on the evidence adduced in the case
one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance
in cases where in the guilt of the accused is sought to be
established by cirucmstantial evidence."
e
We now come to the mode and manner of proof of cases of
mui'der by administration of poison. In Ramgopal's case (supra)
this Court held thus :
D
"Three questions arise in such cases, namely (firstly),
did the deceased die of the poison in question? (secondly),
had the accused the poison in his possession ? and
(thirdly), 'bad the accused an apportunity to administer the
poison in question to the deceased ? It is only when the
E
motive is there and these facts are all proved that the court
may be able to draw the inference, that the poison was
administered by the accused to the deceased resulting in
his death."

so· far as this matter is concerned, in such cases the court must p

• carefully' scan the evidence and determine the four important cir-
cumstances which alone can justify a conviction :
( 1~ there is a clear motive for an accused to administer
poison to the deceased,
G
- (2) that the deceased died of poison said to have been
administered,
(3) that·the accused had the· poison in his possession,
(~) that he had an opportunity to administer the poison to
the deceased.

H
u> U!mi 1 sec soa.
168 SUPREME COURT REPORTS [1985] 1 S.C.R.

A In the instant case, while two ingred ,e11ts have been proved
but two have not. In the first place, it has no doubt been' proved
that Manju died of potassium cyanide and secondly, it has also been
proved that there was an opportunity to administer the' poison~' -It
has, however, not been proved by any evidence that the appellant
had the poison in his possession. On the other hand, as indicated
8 above, there is clear evidence of PW 2 that potassium cyanide could
have been available to Manju from the plastic factory of her mother,
but there is no evidence to show that the accused could have pro-
cured potassium cyanide from any available source. We might
here extract a most unintelligible and extra-ordinary finding of the
High Court-
c
"It is true that there is no direct evidence on these
two points, bec~use the prosecution is not able ·to lead
evidence that the accused had secured potassium ·cyanide
poison from a particular source. Similarly· th~re is no
D . direct evi~ence to prove that he had administered poison
to Manju. However, it is not necessary to prove each and
every fact by a direct evidence. Circumstantial .evidence
can be a basis for proving this fact."
(P.160)

Tht:: comment by the High Court appears to be frightfully
vague and absolutely unintelligible. · While holding iri the clearest
possible terms that there is no evidence in this case to show that
the appellant was in possession or poison, the ;High Court observes
that this fact may be proved either by direct or indire-ct. (~lrcum~tan
tial) evidence. But it fails to indicate the nature of the circumstantial

F
or indirect evidence to show that the appellant was in possession of
poison. If the court seems to suggest that merely because ·the
appeltant had the opportunity to administer poison and the. same
•
was found in the body bf the deceased, it should be presumed that
the appellant was in possession of poison, than it has committed a
serious and gross error of law and has blatantly violated the
principles laid down by this Court. The High Court has not indicat-
G ed as to what was the basis for coming to a finding that the accused
could have procured the cyanide. On the other hand, in view of
the decision in Ramgopal's case (supra) failure to prove possession
of the cyanide poison with the accused by itself would result in
failure of the prosecution to prove its case. We are constrained to
observe that t~e High Court has completely misread and misconstru-
H
SHARAD B. CHAND v. MAHARA.SHTRA (Fazal Ali, J.) 169
ed the decision in Ramgopal's case. Even prior to Ramgopol's case A
there are two decisions of this Court which have taken the same
view. In Chandrakant Nyalchand Seth's case (Criminal Appeal No.
120 ofl957 decided on 19.2.58) this Court observed thus:

"Before a person can be convicted of murder by poison-
ing, it is necessary to prove that the death of-the deceased B
was caused by poison, that the poison in question was in
possession of the accused and that poison was administered
by the accused to the deceased. There is no direct evidence
in this case that the accused was in possession of Potassium
Cyanide or that he administered the same to the deceased."
c
The facts of the case cited above were very much similar to
the present appeal. Here also, the Court found that circumstances
afforded a greater motive to the deceased to commit suicide than for
the accused to commit murder. This view was reiterated in
Dharambir Singh's case (Criminal Appeal No. 98 of 1958 decided
on 4.11.1958) where the court observed as follows : D

"Therefore, along with the motive, the prosecution has
also to establish that the deceased died of a particular
poison said to have been administered, that the accused
was in possession of that poison and that he had the opport-
E
unity to administer the same to the deceased : (see Mt.
Gujrani and a11other v. Emperore) . It is only when the
motive is there and these facts are all proved that the court
may be able to draw the inference, in a case of circumstan-
tial evidence, that the poison was administered by the
accused to the deceased resulting in his death. F

We feel that it was not right for the High Court to say,
when this link in the chain had failed, that it could not be
very difficult for anybody to procure potassium cyanide and
therefore the absence of proof of possession of potassium
cyanide by the accused was practically of no effect. On G
the facts as found by the High Court it must be held that
the second of the three facts which have to be proved, in
case of poisoning based on circumstantial evidence has not
been proved, namely that the accused was in possession of
the poison that had been found in the body----Can it
H
(1) AIR [1933} All. 394.
116 SUPREME COURt REPORTS [1985] l S.C.R.
b~ said in these circumstances when the proof of a very
vttal fact namely, that the accused was in possession of
of
potassium cyanide, has failed that the chain circumstan-
tial evidence, is so far complete as not to leave any reason-
able ground for a conclusion consistent with the inncoence
B
of the accused and that the evidence which remians after
the rejection of this fact is such as to show that within all
human probability the act must have been done by the
accused."

Cl We are, therefore, clearly of the opinion that the facts of the
present appeal are covered by the ratio of the aforesaid decisions.
At any rate, taking the worst view of the matter on the evidence in
this case two possibilities are clearly open-

(1) that it may be a case of suicide, or
0
(2) that it may be a case of murder
"L
and both are equally probable, hence the prosecution case stands
disproved.

E We now proceed to deal with some of the judgments of this
Court on which great reliance has been placed by the High Court.
In the first place, the High Court relied on the case of Pershadi v.
State of Uttar Pradesh(1 ). This case appears to be clearly distinguishw
able because no point of law was involved therein and on the facts
proved and the very extraordinary conduct of the accused, the court
F held that the circumstantial evidence was consistent only with the
guilt of the accused and inconsistent with any other ratioMl
exaplantion. Indeed, if this would have been our finding in this
particular case, there could be no question that the conviction of the
accused would have been upheld.

G The next on which the High Court placed great reliance is case
Lagu's case (supra). This case also does not appear to be of any
assistance to the prosecution. In the first place, the case was decided
on the peculiar filets of that case. Secondly • even though the
corpus deliciti was not held to be proved yet the medical evidence
and the conduct of the accused unerringly pointed to the inescapable
conclusion that the death of the deceased was as a result of admini-
stration of poison and that the accused was the person who admini·
H
(1} AIR. [1957] SC 211.
SliARAD a. CHAND v. MAHARASH.TRA (Faza/ Ali, J.) 111
stered the same. This. however, is not the case here. On the other
A
hand, we have held that the conduct of the appellant has not been
proved to be inconsistent with his guilt and on this ground alone
the present case can be easily distinguished. If at all it is an authority
it is on the point that this Court is not required to enter into an
elaborate examination of the evidence unless there are very special
circumstances to justify the same. At this Court in that case was B
clearly of the view that the High Court had fully considered the facts
'- and a multitude of circumstances-against the accused remained unex·
plained, the presumption of innocence was destroyed and the High
Court was therefore right in affirming the conviction. Of course,
Sarkar, J. gave a dissenting judgment. From a detailed scrutiny of
the decision cited above (Lagu's Case) we find that there is nothing c
in common between the peculiar facts of that case and the present
one. Hence, this authority is also of no assistance to the prosecu·
tion.

Reliance was then placed on the case of Ram Dass v. State of
Maharashtra(1) but we are unable to see how this decision helps the
prosecution. The High Court relied on the fact that as the
accused had taken the deceased immediately to the Civil Hospital
in order to stop the poison from spreading, this particular fact was
eloquent enough to speak for the innocence of the accused. A
carefull perusal of that decision shows that this Court did not
accept the prosecution case despite circumstances appearing in
that case which are almo~t similar to those found in the present
·one. Moreover, here also the accused had immediately sent for
their family Doctor after they had detected that Manju was dead;_
The reason for a little delay in lodging the FIR has already been
explained by us while dealing with the facts. In the decision cited
•F
above, it was clearly held that the case against the accuse& was
not proved conclusively and unerringly and that two reasonable
views were possible, the relevant portion of which may be extracted
thus:
G
"On a consideration of the evidence and the circums-
tances referred to above, we are satisfied that this is a case
in which the circumstantial evidence did not prove the case
against the accused conclusively and unerringly, and at any
rate two reasonable views were possible."

(I) AIR [1977[ SC 1164.
171 StfPREMfl COURt REPORTS [l985j 1 s.c.a.
A We have already found in the instant case that taking the
prosecution at the highest the utmost that can be said is that two
views-one in fav.our of the accused and the other against him-were
possible. Ram Dass's case also therefore supports the appellant
rather than the prosecution.
8
The last case relied upon by the High Court is Shankarlal's
case (supra) but we are unable to see how this case helps the pro-.
secution. The observations on which the High Court has relied
upon appears to h;tve been torn from the context. On the other
hand, this decision fully supports the case of the appellant that
c falsity of defence cannot take the place of proof of facts which the
prosecution has to establish in order to succeed. This decision has
already been dealt with by us while considering the merits of the
present case and it is not necessary to repeat the same.

These are the only important cases of this Court on which the
D High Court seeks to rely and which, on a close examination, do
not appear to be either relevant or helpful to the prosecution case
in any way. On the other hand, some of the observations made~
in these cases support the accused rather than the prosecution.

E This now brings us to the fag end of our judgment. After ' a
detailed discussion of the evidenCe, the circumstances of the case
. . . ._ and interpretation of the decisions of this Court the legal and fa.c-
tual position may be summarised thus ;

(1) That the five golden principles enunciated by this
F Court in Hanumant's decision (supra) have not been
• satisfied in the instant case. As a logical corollary,
it follows that it cannot be held that the act of the
accused cannot be explained on any other hypothesis
except the guilt of the appellant nor can it be said
G that in all human probability, the accused had commi·
tted the murder of Manju. In other words, the pro·
secution has n~t fulfilled the essential requirements of
a criminal case which rests purely on circumstantial
evidence.

(2) That, at any rate, the evidence clearly shows that two
views are possible-one pointing to the guilt of the
If accused and the other leading to his innocence. It
SHARAD B. CHA'ND v. MAHARASH1RA (Faza/ Ali, J.) 173
may be very likely that the appellant may have adminis- A
tered the poison (potassium cyanide) to Manju but at
the same time a fair possibility that she herself
\
commited suicide cannot be safely excluded or elimi·
nated. Hence, on this ground alone the appellant is
entitled to the benefit of doubt resulting m his
B
acquittal.

(3) The prosecution has miserably failed to prove one
of the most essential ingredients of a case of death
caused by administration of poison, i.e., possession of
poison with the accused (eiher by direct of circums- c
tantial evidence) and on this ground alone the prose-
cution must fail.

(4) That in appreciating the evidence, the High Court
has clearly misdirected itself on many points, as
pointed out by us, and has thus committed a gross D
error of law:

(5) That the High Court has relied upon decisions of this
Court which are either inapplic3ble or which, on ,
closer examination, do not support the view of the
High Court being clearly distinguishable. E

(6) That the High Court has taken a completely wrong
view of law in holding that even though the prose-
cution may suffer from serious infirmities it could be
reinforced by additional link in the nature of false F
defence in order to supply the lacuna and has thus
committed a fundamental error of law. -

(7) That the High Court has not only misappreciated the
evidence but has completely overlooked the well
G
established principles of law and in view of our finding
it is absolutely clear that the High Court has· merely
tried to accept the prosecution case based on tenter·
hook(and slender tits and bits.

(8) We entirely agree with the High Court that it is
wholly unsafe to rely on that part of the evidence of
Dr. Banerjee (PW 33) which shows that poison was H
174 SUPREME COURT REPOll.TS [1985] 1 s.c.R.

A forcibly administered by the process of mechanical
suffocation.

(9) We also agree with the High Court that there is no
manifest defect in the investigation made by the police
which appears to be honest and careful. A proof
B positive of this fact is that even though Rameshwar
Birdichand and other members of his family who had
practically no role to play had been arrayed as accu~
sed but they had to be aquitted by the High Court for
lack of legal evidence.

c (10) That in view of our finding that two views are clearly
possible in the present case, the question of defence
being false dose not arise and the argument of the
High Court that the defence is false does not survive.

D This was a fit case in which the High Court should have
given at least the benefit of doubt to the appellant.

Normally, this Court does not interfere with the concurrent
findings of fact of the courts below, in the absence of very special
circumstances or gross errors of law committed by the High Court.
E But where the High Court ignores-or overlocks the crying circums·
tances and proved facts, violates and misapplies the well established
principles of criminal jurisprudence or decisions rendered by this
Court on appreciation of circumstantial evidence and refuses to
give benefit of doubt to the accused despite facts apparent on the
F
face of the record or on its own findings or tries to gloss over them
without giving any reasonable explanation or commits errors of ...
law apparent on the face of the record which results in serious and
substantial miscarriage of justice to the accused, it is the duty of
this Court to step in and correct the legally erroneous decision of
the High Court.
G
We can fully understand that though the case superficially
viewed bears an ugly look so as to prima facie shock the con-
science of any Court yet suspicion, however great it may be, can-
not take the place of legal proof. A moral conviction however
strong or genuine cannot amount to a legal conviction supportable
in law. '
SHARAD B. CHAND ,v MAHARASHTRt\ (Varadarajan, J.) 175
- It must be recalled that the well established rule of criminal
.justice is that 'fouler the crime higher the proof'. In the instant A
case, the life and liberty of a subject was at stake. As the accused
was given a capital sentence, a very careful, cautious and meti-
culous approach was necessary to be made.

Manju (from the evidence on tbe record) appears to be not
"bnly a highly sensitive woman who expected whole-hearted love B
'•,•

and affection from her husband but having been throughly dis-
appointed o~1t of sheer disgust, frustration and depression she may
have chosen to end her life-at least this possibility is clearly gleaned
from her letters and mental attitude. She may have been fully
justified in entertaining an expectation that after marriage her
husband would look after her with affection and regard. This is
clearly spelt out in the letters where she hinted that her husband c
was ~o busy that he found no time for her. A hard fact of life,
wl1ich cannot be denied, is that some people in view of their occu-
. "' pation or. profession fined very little time to devote to their family.
Speaking in a light vein, lawyers, professors, Doctors and perhaps 0

- Judg~s fall within this category and to them Manju's case should be
an eye-opener.

For the reasons given above we hold that the prorecution has
failed to prove its case against appellant beyond reasonable doubt.
·.

We, therefore, allow the appeal, set aside the judgments of the
,courts below and acquit the appellant, Sharad Bridichand Sarda, of
·the charges framed against him and direct him to be released and
set at liberty forthwith.

F
VARADARAJAN, J. This appeal by special leave is directed
against the judgment of a Division Bench of the Bombay High Court
in Criminal Appeal No. 265 of 1983 and Confirmation Case No. 3 of
1983, dismissing the appeal and confirming the sentence of death
.awarded to the first accused Sharad Birdhichand Sarda (hereinafter
referred to as the 'appellant') by the Additional Sessions Judge, G
Pune in Sessions Case No. 203 of J982. The appellant, R ameshwar
Birdhichand Sarda and Ramvilas Rambagas Sarda were accused l, 2
and 3 respectively in the Sessions Cas(t.

The. appellant and the second accused are the sons of one
~ir~hichand of Puoe whose famil~ has a cloth business. ln addition
... .
176 SUPREME COURT REPORTS f[1985] ls.c·R.

the appellant who is said to be a graduate in Chemical Engineerin1~
A bad started a chemical factory at Bhosari, a suburb of Pune. The
third accused is uncle of the appellant and the second accused. Th•:~
appellant is the husband of Manjushree alias Manju while the second
accused is the husband of Anuradha (P.W.35). Birdhichand's family
has its residential house at Ravivar Peth in Pune and owns a flat in
B a building known as Takshasheela Apartments in Mulmnd Naga:r
area of Pune.

Manju, the alleged victim in this case, was the eldest amongst the •
five children of Rameshwar (P.W.2) and Parwati (P.W.20). Anju
(P.W.6) is the second daughter of P.W.2 who is a Commercial Tu ••
c and Income Tax Consultant since 1960. P.W.2 is living in his own
house situate in Subash Road in Beed city since 1973, prior to which
be was living··· in a rented house in Karimpura Peth in that city.
Meena (P.W.S) is a school and college mate and friend of Manju
who passed the B.Sc. examination in Chemistry in the First Class
in 1980 while P.W.S who had passed the lOth standard examination
D together with M anju was still studying in college. Rekha (P. W.J)
whom Manju used to call as Vahini is another friend of Manju.
She is living with her husband Dr. Dilip Dalvi in a portion of
P.W.2's house in Subash Road, Pune as his tenant. P.W.20's elder
brother Dhanraj Rathi (P.W.22) is a resident of Pune where he is
doing business in the sale of plastic bags for the manufttcture of
E which he has a plastic factory called Deepak Plastics at Beed. It
is a partnership concern of P.W.20 and some others including
p .W .22's third son Shrigopal. Deepak is!one of the two sons of
P. Ws. 2 and 20.

After Manju passed her B.Sc. degree examination in 1980 her
F marriage with the appellant was settled by a formal betrothal cere-
mony which took place in June 1981. The marriage of the appellant
an1 Manju was performed at the expense of P.W.2 at Beed on
, 11.2.1982. fhe appellant and Manju left for Pune on 12.2.19~2
after the marriage. Subsequently, P.W .2 sent his elder son Deepak for ,.
fetching Manju from lhe appellant'~ house at Pune and they accorct-
G ingly came back to Beed on 22.2.1982. The appellant went to Beed
four or five days later and took Manju back to Pune on the next day
after pleading his inability to stay in P.W,2's house for some more
days. This was Manju's first visit to her parents' house after her
marriage with the appellant. She is said to have been v_~ry happy
during that visit. Thereafter Manju can;te to her parents' house
Jl alongwit)l h~r ma~ernaJ uncle Dhapra) Rathi (P.W.22) on or about
SHARAD D. CHAND V. MAHARASIITRA ( Varadarajan, J.) 177

2.4.1982. It is the case of the prosecution that during tl1at visit A
Manju was uneasy . and had generally complained against the
appellant to P.Ws.3 and 6. P.W.2 planned to keep Manju in his
house for about three weeks on that occasion. But news of the
death of the appellant's grand father was received in P.W.2's house
in Beed and, therefore, P.Ws. 2 and 20 and Manju went to Pune
for condolences on 11.4.1982. After meeting the appellant's father 8
·and others at Pune, P.Ws. 2 and 20 returned to Beed leaving Manju
in the appellant's house in Pune. That was the second visit of Manju
•
to her parents' housl! after marriage with the appellant. P.Ws.2
and 20 came to Pune again on or about 13.5.1982. After staying
for some time as usual in the house of P.W. 22, P.Ws. 2 and 20
visited the house of Birdbichand on that occasion. It is the case
c
of the prosecution that P.Ws. 2 and 20 found Manju distrubed and
-4
un·easy and that they, therefore, took her to the house of P.W. 22
' with the permission of Birdhichand. It is also the case of the
prosecution that on reaching P.W. 22's house Manju completely
broke down and started weeping in the arms of P.W.20. P.Ws. 2 and D
20 returned to Beed from Pune and sent their second son Pardeep
four or five days later to fetch Manju. who had, however, by then
gone with the appellant to Tirupati in Andhra Pradesh. After learn·
ing that the appellant and Manju _had returned to Pune, P.W.2 sent
his son Deepak to fetch Manju to Beed. Accordingly Deepak
brought Manju to Beed accompanied by the third accused's daughter E
Kavita on 25.5.1982. This was Manju's third and last visit to her
~arents' house after her marriage with the appellant. It is the case of
-.. the prosecution that Manju was totally disturbed ·and frightened during
that visit and that she complained to her mother P.W.20 against the
appellant and she in turn conveyed to P.W.20 what she heard from
Manju. Birdhichand went to Beed on 2.6.1982 without any prior F
intimation for taking Manju to Pune on the ground that Maniu's
presence in his family house at pune was necessary for the betrothal
ceremony of his daughter Shobha fixed for 13.6.1982 as well as for
her marriage fiixed for 30.6.1982. It is the case of the prosecution
that when Manju came to know that her fathetfin-law Birdbichand
had come for taking her to Pune she was wept and expressed her G
unwillingness to go to Pune and that, however, on the assurance of
Birdhichand that he would see to it that nothing happened to the
life of Manju, P .W.2 permitted Manju to go to Pune alongwith
Birdhichand and she accordingly went to Pune on 3.6.1982 along·
with Kavita and Birdhichaod. H
178 SUPREME COURT REPORTS [1985) ] S.C.R.
•
The family of Birdhichand and his sons including the appel-
lant is joint. As stated earlier they have their family's residential
house at Ravivar Peth, Pune besides the flat which they owned in the
Takshasheela Apartments situate at some distance from their family
house. Their flat has two bed-rooms besides a hall and other
portions. Birdhichand 's two married sons, the appellant and the
second accused used to go to the family's flat in the Takshasheela
B Apartments for sle~ping during the nights. The appellant and Manju
used to sleep in one of the two bed-rooms while the second accused
and his wife At!uradha (P.W.35) and their children used to sleep in •
the other bed-room.
Manju had written am0ngst others, three letters, Ex.33
dated 25.4.1982 to her friend vahini (P. w.3) and Ex. p. 30 dated
c 8.2.1982 and p. 32 dated 8.6.1982 to her younger sister Anju
(P.W.6). In Ex. 33 Manju has stated inter alic. that she was
feeling lonely though all persons in pu11e were very good and
everybody was loving and that one reason is that there are
many elderly persons in the house and, therefore, she does not
dare to do any work independently and the fear which is in her
D
mind every time leads to confusion. She has also stated ill
that letter thou~h a11 persone in Pune were very good that
she becomes angry if he (appellant) does not speak to
her when she goes and talks to him even ten times and that till
now this man (appellant) had no time to mind his wife. She has
E stated in that letter that she dare not ask him (appeJiant) whether
his clothes be taken for washing and that at present her status is
only that of a·n unpaid maid-servant. She has finally stated in
that letter that on the day on wh!ch self-pride in the appellant is
reduced no other person will be more fortunate than her but it is
...
not certain whether she wilt be alive until that date. In Ex. 30
F she has stated r'nter alia that she was undergoing a very difficult
test and was unable. to achieve her object, that it would be well
and good only if she controls herself and that some other way will
have to be evolved when'that becomes impossible. In Ex. 32 she
has stated that though she was happy at Pune she does not know
why there is such a dirty atmosphere in the house and it is felt
G
every moment that something will happen. She has also stated
in that letter. that no work had been started in the house though
Shobha•s 'sari' function is fixed for 13.6.1982 and, therefore, she -
is out of her mind.
The case of the prosecution as regards the alleged occurr-
ence during the night of 11/12.6.1982 is thus: on 11-6-1982 at
B about 10.30 p.m. Manju a~companied by Anur~dha, (P.W: 35) ~n4
SHARAD B. CHAND v. MAliARASHTRA ( Varadarajan, J.) 179
A
three children of the latter came to the Taksheela Apartments by
an auto-rickshaw. The night-watchman of the Takshasheela Apart-
ments, kerba (P.W. 28) has deposed about this fact. Syed
Mohideen, (P.W. 7) an auto.rickshaw driver residing in the bor-
der of Ganesh Peth and Ravivar Peth in Pune claims to have taken
two ladies, three children and a baby by his auto-rickshaw at B
about 11 p.m. on that day to Mukund Nagar. He has identified
the photo of Manju published in a newspaper two or three days
later as that of one of the two ladies who travelled by his auto·
rickshaw as aforesaid. The second accused had already gone to
the flat in the Takshasheela Apartments. The appellant reached
·C
the flat about 15 minute~ l~ter by a scooter, whom the nightwatch-
man (P.W. 28) remarked that he was coming rather late he told
P.W. 28 that it was because he had a meeting. After the appellant
reached the flat he and Manju retired to their bed-room while the
second accused and P.W. 35 retired to their's. Thereafter the
•• appellant came out of his bed-room at about 2 a.m. on 12.6.1982 D
and went to the second accused and both of them went out of
that flat by scooters soon afterwards. The appellant proceeded to
Ravivar Peth and called his father while the second accused went
to call Dr. Uttam chand Lodha, (P.W. 24) who lives about.one and
a half kilo metres awav from thf' Takshasl1eela Apartments with-
out seeking the help of Dr. Anjali KelkarJP.W. 26) and her hus- E
band Dr. Shrikant Kelkar (P.W. 27) who lived close by in the same
Takshasheela Apartments. P.W. 24 reached the appellant's flat at
about 2.30 a.m. and found Manju dead, with ri!!or 'motis having
already set in and no external mark showing tile cause of death.
He, however, opined that it mav be a case of unnatural death and
F
suggested that the police may be informed. When Birdhichand who
had arrived at the flat by then advised that some other doctor may be
called as he was not satisfied with the opinion of P.W- 24, P.W. 24
suggested that Dr. Anil Gandhi, P.W 25 may be catted if so
desired. Thereafter, P.W. 24 and the third concerned who had
come with Birdhichand went to call P.W. 25 who Jives about 7 kilo G
metres away from the Takshasheela Apartments. On their way
they contl'lcted P.W. 25 over the phone and took him to the
appellant's flat where he, examined Manju at about 4 a.m. and
pronounced that she was dead. He opined that she might have
died three or four hours earlier and stated that there was no exter-
nal evidence showing the cause of death. He too suggested that
the polic~ should {)e informed to avoid any trouble. B
180 SUPREME COURT REPORTS [1985] J S.C.R.

A The third accused went to Mohan Asava, (P.W. 30) at about
4.30 a.m. on 12.6.1982 and called him to the appellant's flat after
informing him that Manju was dead. P.W. 30, who accompanied
the third accused, saw the body of Manju in the flat and left the
place after suggesting that the police should be informed. The
third accused contacted P.W. 30 over the phone at about 6.30 a.m.
8
and asked him to go and inform the police that Manju had died at
5.30 a.m. P.W. 30 accordingly went to Maharishi Nagar Police
Station at about 7 or 7.15 a.m. and informed the Head Constable,
(P.W. 31) who thereupon made the entry Ex. 120 to the effect that
Manju was found to be dead when the appellant tried to wake her
0 up at 5.30 a.m- on 12.6.1982. P.W. 31 proceeded to the 'appel- ·•
lant's flat at about 8 a.m. after informing the Inspector of Police,
P .W. 40 telephonically about the suspicious death of Manju.

On receipt of information from P.W. 22 by a lightning tele-
phone call at about 6 a.m. on 12.6.1982 that Manju was cxtermely
D serious P.W. 2 went from Beed to Pune alongwith his wife P.W. 20
and his son Pradeep and Hira1a1Sarda (P.W. 4) by jeep at about
1 P.m. on 12.6.1982. and learnt that Manju was dead. Thereafter
P.W.2 went alongwith Hiralal Sarda to the Sasson Hospital where
Manju's body had been sent by the police for autopsy.

E Dr. Kalikrishnan Banerji, P.W. 33 who conducted autopsy
on the body of Manju did not find any external or internal injury.
He preserved the viscera, small intestines etc. of Manju and reser-
ved his opinion about the cause of her death. On receipt of the
the Chemical Examiner's report Ex. 130 to the effect that Manju's
vis~era contained potassium cyanide poison P.W. 33 finally opined that
F Manju had died due to potassium cyanide poisoning and simultaneous
mechanical suffocation. After completing the investigation P. W.40
filed the charge-sheet against the appellant and the other two accused
on 13.9.1982.

The Additional Sessions Jt1dge, Pune · tried the appellant for
G offence under Sec. 302 IPC of murder of Manju by administering -
potassium cyanide poison or ·by suffocating her or by both, aU the
three accused for the, offence under Sec. 120 B IPC of conspiring
to destroy the evidence Qf the murder of Manju by giving a false
report rto ..the police ~about [the time of h~r death and the third
accused for the offence under Sec. 109 read with Sec. 201 IPC and
Sec. 201 IPC for intsigating P.W .30 to give false information to the
r.w.
poJice and giving false information to 22 re¥ardin~ th~ ~~rder
H ofManju.
SHARAD B. CHAND v. MAHL\.RAS!ffRA ( Vara:/aojan, J.) 181

The appellant and the other two accused denied the charges
framed against them. The appellant denied that he had anything to
do with Ujvala (P.W. 37) with whom is alleged to have been in love
at the relevant time. He admitted that Manju and P.W. 35 accom-
panied by some children went to their flat in the Takshashcela
Apartments at about 10.30 p.m. on 11.6.1982 but denied that they
travelled by any auto-rickshaw and stated that they went there by their B
family's car driven by the second accused. He denied that he went
to the flat about 15 minutes later and stated that he returned to the
fiat only at 1.30 or 1.45 a.m. on 12.6 1982 after attending"a meeting
... - in the Rajasthan Youth Club. He stated that after changing his
clothes he looked at Mapju and found something abnormal and
became suspicious and then went to the second accused and that c
there after r he went to call his father and uncle while the second
accused went to call Dr. Lodha, P.W. 24.

The Trial Court found all the three accused guilty as charged
and convicted them accordingly and sentenced the appellant to ')
death under s.302 IPC and all the three accused to rigorous imprison-
ment for two years and a fine of Rs. 2,000 each under s.I20 B IPC
but did not award any sentence under s.201 read with s.120B

The appellant and the other two accused filed appeals against
• their conviction and the sentences awarded to them. The State filed
a criminal revision application for enhancement of the sentence
awarded to accused 2 and 3. These appeals, confirmation case and
criminal revision application were heard together by the Division
Bench of the Bombay High Court, which in a lengthy judgment.
(195 pages of our paper book) allowed the appellant's appeal in part
regarding his conviction and sentence under s. 120 _ B IPC but
confirmed his conviction and sentence of death awarded under
s 302 IPC and allowed the appeal of accused 2 aild 3 in full and
acquitted them and dismissed the criminal revision application.
Hence, the appellant alone has come up before this Court on -
special leave against his conviction and the sentence of death.
G
I had the benefit of reading the judgment of my learned brother
Fazal Ali, J. I agree with his final conclusion that the appeal should
succeed. The learned Judges of the High Court have relied upon
17 circumstances for confirming the conviction and sentence of
death awarded to the appellant. My learned brother Fazal Ali, J.
has rightly rejected every one of those circumstances as not
conclusively pointing to the guilt of the appellant. including the H
182 SUl~REMB COURT REPORTS [19851 i s.c.l\.

circumstnace that the appellant was last seen with Manju before
A
her death on the ground that the case of the prosecution based on
evidence of Dr. Banerji (P.W. 33) that there was any mechanical
sutrocation of Manju has been disbelived by the High Court
itself and that some entries in the carbon copy Ex. I 34 of
P.W. 33's report sent to the Chemical Examiner had been
B scored and interpolated after his report Ex. 132 to the Chemical
Examiner bad left his hands, that the original entry in the post-
mortem certificate Ex. 134 contained the words 'can be a case of
suicidal death' and that the explanation of P.W.33. that he wrote
_...,.
the words 'time of death' twice and not the words 'can be a case of
suicidal death' and, therefore, he scored oft' one of them is not
c acceptable at all. Doctors P.W.24 and 25 did not find any external
injury on the body or MaDJU which they saw at about 2.30 and 4.30
a.m. on 12.6.1982. Even P.W.33. did not find any external or
internal injury on the body of Manju. ln these circumstances,
unless the prosecution excludes the possibility of Manju having
committeds uicide by consuming potassium cyanide poison, asr ightly
0 pointed out by my learned brother Fazal Ali, J ., (no adverse in-
ference of guilt can be drawn against the appellant from the fact
that he was last seen with Manju, he being no other than her own
husband who is naturally expected to be with her during nights.)
Some of these 17 circumstances cannot, by any stretch of imagina-
tion, be held to point to the guilt of the appellant. Circumstance No.
E 6 is an attempt of the appellant's father Birdhichand to get the body of
Manju cremated before 7 a.m. on 12.6.1982 by expressing such a
desire to P.W.30. Circumstance No.9 is arrangement of the dead
body of Manju to make it appear that she died a peaceful and
natural death. Circumstance No. 11 is absence of an anklet of
Manju from her ll'lg. Circumstance No. 12 is the conduct of the
appellant in allegedly concealing the anklet in the fold of the
F
chaddar. Circumstance No. 15 is the fact that acccording to the
medical evidence Manju was pregnant by four to six weeks and it
would normally dissuade her from committing suicide. With
respect to the learned judges of the High Court, in my view, by no
stretch of imagination, can any of these circumstances be considered
to point to nothing but the guilt of the appellant in a case resting
G
purely on.cicumstantial evidence.

However, since I am unable to persuade myself to agree with
my learned brother Fazal Ali, J. on four points, I am writing this
separate but concurring judgment, giving my view on those points,
H namely, (1) ill-treatment of Manju by the appellant. (2) intimacy of
sH:ARAD D. criAND v. MAHAkASI-ITRA ( Varadarajan, 1.) 183

the appellant with Ujvala (P.W.37), (3) admissibility of Manju's A
letters Exs. 30,32 and 33 and the oral evidence of P.Ws. 2,3,5,6
and 20 about the alieged complaints made by Manju against the
appellant under s. 32 (I) of the Evidence Act and (4) conduct of
Dr. Banerji (P.W.33) who 1had conducted autopsy on the body of
Manju. '
B
My learned brother Fazal Ali, J. has observed as follows at
pages 3 and 96 of his judgment :

"On the other hand the plea of the defence was that
while there was a strong poss~bility .of Manju having been
ill-treated and uncared for by her husband and her in-laws, G
being a highly sensitive and impressionate woman, she
committed suicide out of sheer depression and frustration
arising from an emotional upsurge. " (P-3)

"On the other hand this- ci ~cumstance may have pro-
mpted her to commit suicide, for if a child was born to D
her, in view of her ill-treatment by her husband and her in-
r;;"ws the child may not get proper upbringing".
(P.96)
I do not recollect any admission by Mr. Ram Jethmalani, learn-
ed counsel for the appellant in the course of his arguments about E
any cruelty or ilHreatment to Manju oo t~e part of the appellant
or his parents. The evidence of P.W.3 is that during Manju's
second visit to Beed after her marriage with the appellant she found
Manju not quite happy and very much afraid of the appellant. The
evidence of P.W.5 is that during Manju's second visit to Beed,
Manju complained to her about the appellant returning home late
F
in the night and avioding to have a talk with her and that Manju
told her that she was afraid ofthe appellant and apprehended danger
to her life at his hands. The further evidence of the P.W.S 1s that
during her third visit to Beed she inferred from Manju's face a spell
of fear. Th-e evidence of P.W.6 is that during Manju's second visit
to Beed, Manju tolcl her that the appellant used to leave the house G
early in the morning and return late at night under the pretext of
work in his factory and that he was even reluctant to talk with her.
P.W.6 has stated that during Manju's third visit to Beed she was
extemely uneasy. disturbed and under a spell of fear, that Manju
told her the appellant did not relish even her question as to
why he was not prepared t o have a simple talk with her, and that H
184 SUl'REME COURT REPORTS [1985] 1 S.C.R.
.....
I ~
during her third visit to Beed, Manju expressed her unwillingness
to go to Pune when Birdhichand went to Beed on 2.6.1982 for taking
her to Pune. To the same effect is the evidence of P,Ws. 2 and 20
about how Manju looked in spirit and what she stated during her
last two visits. My learned brother Fazal Al!, J. has rightly rejected
the oral evidence of P. Ws. 2, 3, 5, 6 and 20. He has ex!racted the
relevant portions of the letters Exs. 30, 32 and 33 in his judgment
and has observed at page 23 that one-thing which may be o.on-
B
spicuously noticed in Ex. 30 is that M~nj.u w.as prepared to take all
the blame on hereself rather th~ mcnmmatmg her husband or his
parents : at page 24 that it was conced~d by the learned Additional
Solicitor General tha_t the ~elevant protlon ofEx.32 does not refer to
1 ill-treatment ot ManJU by the appellant or his parents ; and at
anY .1 . ~ df
page 30 that it can be easJ Y m erre rom Ex. 33 that Manju did not
c have any serious complamt agamst the appellant except that she was
not getting proper attention which she deserved from him. These
three letters do not establish that Manju made any complaint of
any ill-treatment ~y the ap~ellant or .his patents. In my view, these
three letters and the aforesaid oral ev1dcncc of P.Ws. 2, 3, 5, 6 and
D 20are inadmissible in evidence under s. 32(1) of the Evidence Act for
reasons to be given elsewhere in my judgment. Thus tht:re is no accep-
table evidence on record to show that either the appellant or his
parents ill-treatedManju. The High Court also has not found any such
ill-treatment in its judgment. On the other hand, what has been found
by the High Court in para 104 of its judgment is that the appellant
E treated Manju contemptuously. Even while setting out the case of
the prosecution the High Court has stated in para 7 of its judgment
that it is alleged that the appellant started giving contemptuous
treatment to Manju and in para 20 that the appellant has denied in
his statement recorded under s.3l3 Cr.P,C. that Manju was being
treated contemptuously. No question has been put to the appellant
F
t
·n the course of his examination under s.313. Cr.P.C. about any ill-
treatment of 1\lanju by the appellant or h1s parents. My learned
brother Fazal Ali, J. bas referred in pages 97 and 98 of his judgment
to this Court's decisions in Fateh Singh Bhagat Singh v. State of
Madhya Pradesh,(1 ) Slzamu Babu Chaugale v. State of Maharashtr,J(2)
G d Hari'}'an Megha Jeshav. State ofGujarat(8 ) and has observed at
an .
age 98 of his judgment that ctrcumstance not put to the appellant
~ his examination under s. 313 Cr.PC. have to be completely exclud-
~ from consideration in view of those decisions. Therefore, since
(I) AIR 1953 SC 468.
<2J [J976l1 sec 438.
(3) AIR 1979 SC 1566.
,
'

SltAllAD B. CI-lAND 11. MAHAllASHTRA ( Varadarajan, J.) 185

no question has been put to the appellant in this regard in the course
A
of his examination under s.313 Cr.P.C .. even if there is any evidence
about any ill-treatment of. Manju by the appellant or his parents it
has to be complelty excluded from consideration. I felt it necessary
to say this in my judgment since I think that in fairness to the
appellant it has to be done.
B
My learned brother Fazal Ali, J. has set out the case of the
prosecution in so far as it connects P,W. 37 with the appellant at
page 3 of his judgment where he has stated that the positive
case of the prosecution is that the appellant was not at all interested
in Manju and had illicit intimacy with P.W .37. On this.point there
is the eviaence of P.Ws. 3, 5 and 6. The evidence of P.W.3 is that
c
during her second visit to Beed, Manju informed her that the appel-
lant had a girl-friend by name Ujwala Kothari and that he introduc-
ed her (Ujvala Kothari) to her and told her that she should learn
from Ujvala Kothari about how she should . behave with him. The
, evidence of P. W.S. is that during her second visit to Beed, Manju 0
told her that the appellant had an affair with a girl by name Ujvala
Kothari and that she had seen Ujvala's latter addreassed to the
appellant and an incomplete letter of the appellant addressed to
that girl. No such letters have been produced in evidence. The
evidence of P.W.6 is that during her second visit to Beed, Manju
told her that the appellant had an affair wsth a girial by name E
Ujvala Kothari and also introduced that girl to her in the Pearl
Hotel saying that she has complete command over him and that
she (Manju) should take lessons from her {Ujvala Kothari) about
how she should behave with him. There is no other evidence
regarding this alleged illicit intimacy between the appellant and
F
P.W.37. This alleged illicit intimacy is totally denied not only by
the appe1lant but also by P,W.37. The alleged incident in the
Pearl Hotel, according to the case of the prosecution,~took place on
17.3.1982. But there is no reference whatever to any such incident
in any of the subsequent three letters of Manju, Exs. 30, 32 and 33,
dated 25.4.1982, 8.5.1982 and 8.6.1982 respectively. My learned
brother Fazal Ali, J. has rightly rejected the oral evidence not only
of P.Ws. 3, 5 and 6 but also of P.Ws.2 'and 20 as untrustworthy at
page 65 of his judgment. However, at page 68 he has stated that G
it has been proved to some extent that the appellan(had some sort,
of intimacy with Ujvala Kothari and it had embittered the relation-
ship between the appellant and Manju. In my view,'"as already
stated, the oral evidence of P.\)'s. 2, 3, 5, 6 and 20 about what
Manju is alleged to have told them against the appellant and or his
186 SUPREME COURT REPORTS (1985] 1 S.C.R.

family, and even her letters Exs. 30, 32 and 33 are inadmissible in
.:vidence under s.32(1) of the Evidence Act. Thus, there is absolutely
no reliable or admissible evidence on record to show that the
appellant had any intimacy with Ujwala (P.W.37). I am, therefore,
unable to share the view of my learned brother Fazal Ali, J. that
the prosecution has proved to some extent that the appellant had
B some sort of intimacy with P. W.37 and it had embittered the relation·
ship between the appellant and Manju. I think that I am bound to
say this in fairness to not only the appellant but also P.W.37 who,
on the date of her examination in the Court, was a 19 years old
student and has stated in her evidence that she had known the
appellant only as the President of the Rajasthan Youth Club in the
c year 1979 when she was a member of that Club for about 5 or 6
months ln that year.
My learned brother Fazal Ali, J. has referred to the oral
evidence of P .Ws. 2, 3, 5, 6 and 20 about Manju's alleged complaint
against the appellant and or his parents and also to the contents of
D Manju's letters, Exs. 30, 32 and 33. I have mentioned' above the
gist of that oral evidence and those three letters. My learned
brother bas held the said oral evidence and those three latters to be.
admissible under s.32(l) of the Evidence Act while rejecting the oral
evidence to those five witnesse> as untrustworthy at pages 64 and 65
E ofhis judgment, mainly on the ground that the oral evidence is
quite inconsistent with the spirit and contents of those letters. He
appears of have relied upon those three letters for two purposes,
namely, rejecting the oral evidence of those five witnesses as
untrustworthy and supporting the defence verison that it may be a
case of suicidal death. In my opinion the oral evidence of_ those
F five witnesses about what Manju is alleged to have told them against
the appellant and or his parents and the three letters, are inadmissible
under s. 32(1) of the Evidence Act, which reads thus :

"32. Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found, or
G who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay
or expense whicb, under the circumstances of the case,
'appears to the Court unreasonable, are themselves relevant
facts in the following cases :-

(l) When the statement is made by a person as to the
cause of his death, or as to any of the circumstances
SHARAD B. CHAND v. MAHARASHfRA ( Varadarajan, J.) 187
of the transaction which resulated in his death, in cases
in which the cause of that person's death comes into A
question".

The alleged oral statements of Manju to P,Ws. /., 3, 5, 6 and
20 are said to have been made during her second and third visits to
Beed in the end of February 1982 and end of May 1982 respectively B
before her death during the night of 11/12.6.1982. She had written
~he Jetters Exs. 33, 30 and 32 on 25.4.1982, 8.5.1982 and 8.6.1982
' .
as stated earlier. The oral evidence of these witnesses and these
three letters are not as to the cause of Manju's death or as to any
.. of the circumstance3 of the transaction which resulted in her death
during that night, The position of law relating to the admissibility
c
of evidence under s. 32(1) is well settled. It is, therefore, not
necessary to refer in detail to the decisions of this Court or of the
Privy Council or our High Courts. It would suffice to extract what
the learned authors Woodroffe and Amir Ali have stated in their
, Law of Evidence, fourteenth edition and Ratanlal and Dhirajtai in D
their Law of "Evidence (1982) reprint). Those propositions are based
mostly on decisions of courts for which reference has been given at
the end. They are these :

Woodroffe & Amir Ali's Law of Evidence, fourtheenth edition.
Page-937 E

, 'Hearsay is excluded because it is considered not
sufficiently trustworthy. It is rejected because it lacks the
sanction of the test applied to admissible evidence, namely,
the oath and cross-examination. But where there are special
circumstances which give a guarantee of trustworthiness to E
the testimony, it is admitted even though it comes from a
second-hand source".
Page-941
"What is relevant and admissible under caluse (1) of
this section (Section-32) is the statements actually made by
the deceased as to the cause of his death or of the circumst- G
ances ofthe transaction which resulted in his death"
'
Page-945-946
"A statement must be as to the cause of the declarant's
death or as to any of the circumstances of the transaction
which resulted in his death i.e. the cause and circumstances
of the death and not previous or subsequent transaction,
188 SUP~EME COURT REPORTS [1985] 1 s.c.tt.
such independent transactions being excluded as not falling
A within the principle of necessary on which such evidence is
received. When a person is not proved to have died as a
result of injuries received in the incident in question, his
statement cannot be said to be a statement as to the cause
of his death or as to any of the circumstances which result-
ed in his death. (AIR 1964 SC 900). Where there is no-
8 thing to show that the injury to which a Jstatement in the
dying declaration relates was the cause of the injured
person's death or that the circumstances under which it was
received resulted in his death, the statement is not admis-
sible under this clause". (AIR 25 Bombay 45).
•
Page-947
0
"Circumstances of the transaction resulting in his
death ; This clause refers to two kinds of statements : (i)
when the statement is made by a person as to the cause
of his death or (ii) when the statement is made by a person

D
as to any of the circumstances Zof the transaction which '
resulted in his death. The words 'resulted in his death' do
not mean 'caused his death'. The expre"ssion 'any of the
circumstances of the transaction which resulted in his death'
is wider in scope than the expression 'the cause of his death.
The declarant need not a-ctually have been apprehending
death." (AIR 1964 M.P. 30).
Page-941

"The expression 'circumstances of the transaction'
occurring in s.32, clause (1) has been a source of perplexity
to Courts faced with the question as to what matters are
admissible within the meaning of the expression. The
...
F
decision of their Lordships of the Privy Council in Pakala
Narayanaswami v. Emperor (LR 66 lA 66) sets the limits of
the matters that could legitimately be brought within the
purview of that expression. Lord Atkin, who delivered the
judgment of the Board, has, however, made it abundantly
G clear that, except in special circumstances no ~circumstance
could be a circumstance of the transaction if it is not con-
fined to either the time actually occupied by the transaction
resulting in death or the sense in which the actual transac-
tion resulting in death took place. The special circumstance
permitted to transgress the time factor is, for example, a
u case of prolong~d poisoning, while the sp~cial circumsta nee
SHARAD B. CHAND V. MAHARASHTRA ( Varadarajan, J.) 189
permitted to transgress the~distance factor is, for example, a
case of decoying with intent to murder. But the circum- A
stances must be circumstances of the transaction and they
must have some proximate relation to the actual occur-
rence." '
Page-948
•
"Circumstances of the transaction' is a phrase no B
doubt that conveys some limitations. It is not as broad .as
the analogous use in 'circum<;tantial evidence' which
includes the evidence of all relevant factors. It is on the
other hand narrower than 'res gestae'. Circumstances must
have some proximate relation to the actual occurrence,
though, as for instance, in the case of prolonged poisoning
they may be related to dates at a considerable distance c
from the date of actual fatal dose".
Page-948

"The Supreme Court in the case of Shiv Kumer v. State
of U.P. (1966 Criminal Appeal R. (SC) 281) has made
similar observations that the circumstances must have some
D
proximate, relation to the actual occurrence. and that
general expressions indicating fear or suspicion, whether of
a particular individual or otherwise and not directly to the
occasion of death will not be admissible".
Page-949 E

"The clause does not permit the reception in evidence
of all such statemr.nt of a dead person as may relate to
matters having a bearing howsoever remote on the cause
or the circumstances of his death. It is confined to only F
such statements as relate to matters so clo~ely connected
with the events which resulted in his death that may be
said to relate to circumstances of the transaction which
resulted in his death. (LR 66 lA 66). 'Circumstances of
the transaction which resulted in his death' means only
such facts or series or facts which have a direct or organic G
relation to death. Hence statement made by the deceased
long before the incident of murder is not admissible".
(1974 CLJ (MP) 12p0).
11
J..,aw of Evidence b? Ratanlaf & Dhirajlal (/982 Reprint!
190 SUPREME COURT REPORTS [1985] 1 S.C.R·

A Page 94
"Circumstances of the transaction ; General expres-
sions indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the
occasion of the death are not admissible" (LR 66 IA 66)
(18 Part 234).
B
Page 95
"Circumstances must have some proximate relation to
the actual occurrence and must be of the transaction
which resulted in the death of the declarant. The condition
of the admissibility of the evidence is that the cause of the
..
c declarant's death come~; into question. It is not necessary
that the statement must be made after the transaction has
taken place or that the person making it must be near
death or that· the 'circumstance' can only include the a~ts
done when and where the death was caused. --Dying
declarations are admissible under this clause".
D
The alleged oral statements of Manju and what she has stated
in her letters, Exs 30, 32 and 33 may relate to matters perhaps hav-
ing a very remote bearing on the cause or the circumstances of her
death. Those circumstances do not have any proximate relation to
the actual occurrence resulting in her death due to potassium cyanide
E poison, thou!!h, as for instance in the case of prolonged poisoning they
may relate to dates considerably distant from the date of the actual
fatal dose. They are general impressions of Manju indicating fear or
suspicion. whether of a particular individual or otherwise and not
directly related to the occassion of her death. It is not the case of the
prosecution that the present case is one of prolonged poisoning. ·r
F Since it is stated by th~ learned authors woodroffe and Amir Ali in
their tratise at page 947 that the decision of their Lord~hips of the
Privy Council in Pakala Naroyanaswami v. Emperor (1) sets the limit
of the matters 1hat co]IId legitimately be brought within the purview
of the expression 'circumstances of the transaction and that decision
is referred to in several other decisions of our courts, it would be
G necessary to extract the relevant passage in this judgment. The
learned Lords have observed at pages 75 and 76 thus:
"A variety of questions has been mooted in the Indian
courts as to the effect of this section~ It has been suggested
that the statement must be made after the transaction h::~~

:Q (1LL.R. 66 I .A. 6~
SHARAD B. CHAND v. MAHARASHTRA (Varadaraj[Jn~ J.) 191

taken place, that the person making it must be at any rate A
near death, that the "circumstances" can only include the
acts done when and where· the death was cal.Jfi .d. Their
Lordships are of opinion that the natural meanin ( of the
words used does not convey any of these limitations. The
statement may be made before the cause of death has
arisen, or before the deceased has any reason to anticipate B
being killed. The circumstances must be circumstances of
the transaction: general expression indicating fear of
suspicion whether of a particular individual or otherwise
and not directly related to the occiaslon of the death will
not be admis·sible. But statements made by the deceased
that he was proceeding to the spot where he was in fact
c
killed, or as to his reasons for so proceeding, or that he was
going to meet a particular person, or that he had been
invited by such person to meet him would each of them be
circumstances of the transaction, and would be so whether
the person was unknown, or wa': not the person accused. D
Such a statement might indeed be exculapatory of the
.. person accused. ''Circumstances of the transaction" is a
phrase no doubt that conveys some limit~tions. It is not as
·broad as the analogous use in "circumstantial evidence"
which inculdes evidence of all relevant facts. It is on the
other hand narrower than "res gestae." Circumst<Jnces most E

- have some proximate relation to the actual occurrence:
though, as for instance in a case of prolonged poisoning,
they may be related to dates at a considerabk distance from
the date of the actual fatal dose." ·

1 am, therefore of the opinion that the oral evidence of these F
witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to
have told them against the appellant and or his parents and what she
has stated in her letters, Exs. 30 32 and 33, are inadmis.sible in
evidence under s. 32(1) of the Evidence Act and cannot be looked
into for any purpose. At this stage. it may be stated that Mr. Ram
G
Jethmalani, learned counsel for the appellant submitted that the said
. oral evidence of those five witnesses is inadmissible under s. 32(1)
though at first he sought to rely upon t~1e letters, Exs. 30, ~2 and 33
which seem to lend support to the defence theory that it may be a
case of suicide, he ultimately conceded that what applies to the
relative oral evidence ofP.Ws. 2, 3, 5, 6 and 20 would equally apply to
~he letters 1 Exs. 30, 3~ and 3~ and that the~ too would be inadmissible
192 SUPRI!MH COURT RESPORTS [1985] 1 s.c.R.

in evidence. The Additional So1icitor General who had strongly
A
relied upon the said oral evidence of these five witnesses and the
letters, Exs. 30, 32 and 33 at first proceeded in the end of his
arguments o·n the basis that they are inadmissible in evidence. In
these circumstances, I am firmly of the opinion that the oral
evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to
have told them against the appellant and or his parents as well as the
B letters, Exs. 32, 32 and 33 are inadmissible in evidence under s. 32(1)
of the Evidence Act.

About Dr. Banerji (P.W. 33) who conducted autopsy on the
body of Manju what my learnd brother Fazal Ali, J. has said in his ...
c judgment is this:

"In column 5 of post mortem notes Dr. Banerjee has clearly
written 'can be a case of suicidal death' which indicates
that in the absence of the report of the Chemical Examiner
he was of the opinion that it could have been a case of
0 suicide. In his evidence P.W.33 has stated that in Ex. 128
in column No. 5 the contents scored out read 'time since
the death' and since it was repeated in the next line he
..
scored out the words in the second line. Despite persistent
cross-examination the Doctor appears to have stuck to his
stand. It cannot, therefore, be gainsaid that this matter was
E
of vital importance and expected the High Court to have
given serious attention to this aspect which goes in favour
of the accused .... In the original while filling up the said
column the Docter appears to have scored out something.
-
The filled up entry appears thus:-'mouth is closed with tip
(something scored out) seen caught between the teeth. But
in the carbon copy of the report which was sent to the
Chemical Examiner (Ex. 132 he has written 'caught between
the teeth' in ink; but in the original there is something else.
This is fortified by the fact that the copy of the report
actually sent to the Chemical Examiner does not contain
any interpolation against the 1 said column where the filled
G up entry reads 'inside mouth'.... These circumstances
show that Dr. Banerjee (P.W.33) tried to introduce some
additional facts regarding the position of the tongue • ..
This, however, throws a cloud of doubt on the correctness
or otherwise of the actual report5 written by him and the
one that was sent to the Chemical Examiner. It is obvious
B that in the carbon copy which wa~ retained by the Doctor
SHARAD B. CHAND v. MAHARASHrRA ( Varadarajan, J.) 193
A
the entries must have been made after the copy was sent to
the Chemical Examiner". ·

I entirely agree with these findings of my learned brother Fazal
Ali, J. But I am unable to share his view that these "circumstances B
are not of much consequence the opinion of the Doctor was that
Manju died by forcible administration of potassium cyanide or by the
process of mechanical suffocation and that this aspect need not detain

-· the Court any further because the High Court has not accepcd the
case of mechanical suffocation" and that though a number of
comments were made on behalf of the appellant about Dr. Banerji's c
integrity and incorrect report he does not find any substance in those
contentions subjeci to what he has stated about him.

The fact that the High Court has rejected the case of the
·.; prosecution based on Dr. Banerji's report and evidence that it was D
also a case of mechanical suffocation is not one that could be taken
into conside'ration as a mitigating circumstance in judging the
conduct of the Doctor who had conducted the autopsy in a case of
suspicious death. The fact that he had reserved his opinion about
the cause of death and had then noted in his report that the
tongue was inside the mouth but has interpolated the words 'mouth
is closed with tip (something scored out) seen caught between the E
teeth' and 'caught b~tween the teeth' only after receipt of the
Chemical Examiner's. report to support the view that it was also a
case of mechnial sucffocation, is .not a mitigating circumstance
in favour of P: W. 33 The Docto: !1ad scored out the words 'can
be a case of suicidal death' and has pe ·~i~ted in his reply that he
had scored out only the words 'time since the death' which he F
claims to have written twice, which explanation has been rightly
rejected by my learned brother Fazal AIL J. The conduct of the
Doctor in making these later inter potations and alterations in the
records of the post mortem examination in the case of suspicious
death in which the appellant has been sentenced to death by the two
courts below, deserves serious condemnation. The Doctor h·as G
tampered with material evidence in the case of alleged murder, may
be at the instance of somebody else, ignoring the probable conse-
quences of his act. In these circumstances, I ·am of the opinion
that Dr. Banerji (P'W.33) is a person who should not be entrusted
with any serious and responsible ~work such as rconducting autopsy
in the public interest. In this case the appellant would have gone to
gallows on the basis of the evidence ofP.W.33 as he would have the H
194 SUPREME COURT REPORTS [1985] 1 S.C.R.

A court to believe it, and theo ther evidence, if they had been accepted,
but they have been rightly discarded by my learned brother Fazal
Ali, J. as unworthy of acceptance against the appellant.

I agree with my learned brother Fazal Ali, J. that the High
Court has clearly misdirected itself on many points in appreciating
B the evidence and has thus committed a gross error of law.

I feel that something has to be stat~d in the judgment in this
case aBout the way the Investigating Officer and the learned Addi-
tional Sessions Judge, Pune who had tried the case had gone about
their business. Charge No. 3 is against the third accused for instiga-
0 ting Mohan Asava (P. W. 30) to give false information to the police
regarding the offence of murder namely, that the appellant found
Manju dead when he tried to wake her up at 5.30 a.m. on 12.6.1982.
It is the case of the prosecution itself that P.W.30 informed the police
accordingly at 7 or 7.15 a.m. on that day after receipt of telephonic
D instructions from the third accused at 6.30 a.m. though he had
himself seen the dead body of Manju earlier in the appeiJant's fiat
where he was taken by the third accused who had gone to his flat
at about 4 or 4.15 a.m. and informed him that Manju was dead, and
he (P.W. 30) left the appellant's flat a little l:!ter at about 5 or 5.15
a. m. after telling Dr. Lodha (P.W. 34) that he was going to report
E to the police. Thus, it would appear that ·the case of the prosecu-
tion itself is that P.W. 30 is the principal offender as regards giving
false information to the police about the death o.f Manju. Yet the
Investigating Officer had not filed any charge-sheet against P.W. 30
but has conveniently treated h:m as a prosecution witness. The Addi- --
tional Sessions Judge, Pune appears to have exercised no control
F over the evidence that was.tendered in this case and to have been
oblivious of the scope of the examination of the accused under. s.
313 Cr. P.C. This is reflected by some of the questions put to the
appellant. Question No. 24 relates to P.W. 20 not maintaining
good health and falling ill now and then. Question No. 25 relates
to P.W. 22 being a patient of high blood pressure and having
suffered a stroke of paralysis 7 years earlier. Question· No. 30
G
relates to a reception held at Pune on 13.2.T982 in connection with
the appellant's marriage with Manju. Question No. 32 relates to
P.W. 6 asking the appellant's father Birdhichand for permission to
take Manju to Beed with her when the party from P.W.2's side
started from Pune for Beed on 14.2.1982. Question No. 115 relates
to P.W.30 indulging in criminal acts of rowdyism, tax evasion etc;
andt being known as a c:ontact·~an 9fthe police. S. 313 Cr. P. C~
"
SHAnA'D B. CHAN'D v. MAHA'RASHT'RA (Varadarajan~ J.) 195

lays down that in every inquiry or trial for the purpose of enabling
A
the accused personally to explain any circumstance appearing in the
evidence against him the Court may at any stage, without previously
warning the accused, put such questions to him as the court considers
necessary and shall, after the witnesses for the prosecution have been
examined and before he is called for his defence, question him
generally on the case. It is clear that the evidence on the basis of B
which the above questions have been put to the appellant is wholly
.
-' irrelevant and that those questions do not relate to any circumstance
appearing in the evidence against the appellant. The learned
Additional Sessions Judge was bound to exercise control over the
evidence .~eing tendered in his court and to know the scope of the
examination ofthe accused under s. 313 Cr. P. C. 0

In the end, as I said earlier, I agree with my learned brother
Fazal Ali, J. that the appeal bas to be allowed. Accordingly I allow
the appeal and set aside the conviction and sentence awarded to the
appellant and direct him to be set at liberty forthwith.
D
SABYASACHI MuKHARJI, J. I have the advantage of having read
the judgments orepared by my learned brothers Fazal Ali, J. and
Varadarajan, J. I agree with the order proposed that the appeal
should be allowed and the judgments of the courts below should be
set aside and the appellant Sharad Birdhichand Sarda be acquitted
E
ofthe charges framed against him and he should ber eleased forth~
with. I do so with some hesitation and good deal of anxiety, be~
cause tbat would be interfering with the concurrent findings by two
courts below on a pure appreciation of facts. The facts and circumst~
ances have been exhaustively and v"ery minutely detailed in the
F
judgment of my learned Brother Fazal Ali, J. Those have also been
set out to certain extent by my Brother Varadarajan, J. It will
· therefore serve no useful purpose to repeat these here. It is
necessary, however, for me to make the following obsetvations.

It is a case of circumstantial evidence. It is also undisputed G
that the deceased died of potassium cyanide on the night of lith
and 12th June. 13th June was the date fixed for the betrothal of
the sister of the accused. There is no evidence that the accused was
in any way hostile or inamicable towards his sister. The deceased
had a very sensitive mind and occasionally had suffered from mental
depression partly due to the fact of adjusting in a new family and
partly due to her peculiar mental make up but mainly perhaps due
to the family set up of the accused husba_nd. There is no direct H
196 SUPREME COUR_T REPOR1'S [1985] 1 S.C. ll.

evidence of administering poison. There is no evidence either way
A that either the deceased or the accused had in her or his possession
any potassium cyanide. In these circumstances my learned brothers,
in view of the entire evidence and the letters and other circumst·
ances, have come to the conclusion that the guilt of the accused has
not proved beyond all reasonable doubt.
B
As I have mentioned before, I have read the two judgments by
my two learned brothers and on some points namely, four points
mentioned in the judgment prepared by my Brother Varadarajan. J .,
h,e has expressed views different from those expressed by Fazal Ali,
-
J. and these are: -
(1) ill·treatment of Manju by the appellant ;

(2) intimacy of the appellant with Ujwala (P.W.37);

(3) admissibility of Manju's letters Exs. 30, 32 and 33 and
the oral evidence of P .Ws. 2, 3, 5, 6 and 20 about the
D alleged complaints ·made by Manju against the appel-
lant under s.32(1) of the Evidence Act; and

(4) conduct of Dr. Banerji (P.W.33) who had conducted
autopsy on the body of Manju.
E
On. the three points, namely ill-treatment of Manju by the
appellant, intimacy of the appellant with Ujwala (P.W.37) and the
conduct of Dr. Banerji (P.W.33) who had conducted autopsy on
the body of Manju, I would prefer the views expressed by my
learned brother Fazal Ali, J. On the question of admissibility of
F Manju's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws.
2, 3, 5, 6 and 20 about the~alleged ;complaints made by Manju
against the accused under section 32(1) of the Evidence Act, my
learned brotl1er Fazal Ali, J. has observed about section 32(1) as
follows : -

"The test of proximity cannot be too 1iterally construed
G
and practically reduced to a cut-end-dried formula of
universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the circum-
stances of each case. For instance, where death is a logical
culmination of a continuous drama long in process and is,
as it were, a finale of the story, the statement regarding
B each step directly conne~teg witb t~~ en~ of the dram~
si.JAMD D. CriAND v. MAHA'RASHTRA (S.Mukharji, J.) 197

--· would be admissible because the entire statement would A
have to be read as an organic ~whole and not torn from
the context. Sometimes statements relevant to or furnish·
ing an immediate motive may also be admissible as being
a part of the transaction of death. It is manifest that all
these statements come to light only after the death of the
deceased who speaks from death. For instance, where the B
death takes place within a very short time of the marriage or
the distance of time is not spread over more than 3-4 months
the statement may be admissible under s.32." (Emphasis by
me).
-~.
c
I would, however, like to state here that this approach should
be taken with great deal of caution and care and though I respect-
fully agree with Fazal AU, J. that the test of proximity cannot and
should not be too literally construed and be reduced practically to
a cut·and-dried formula of universal application but it must be em- D
phasised that whenever it is extended beyond the immediate, it
should be the exception and must be done with very great caution
and care. As a general proposition, it cannot be laid down for all
purposes that for instance where a death takes place within a short
time of marriage and the distance of time is not spread over three or
four months, the statement would be admissible under section 32
E
of the Evidence Act. This is always not so and cannot be so. In ·
very exceptional circumstances like the circumstances in the present

- case such statements my be admissible and that too not for proving
the positive fact but as an indication of a negative fact, namely
raising some doubt about the guilt of the accused as in this case.
F

For the purpose of expressing my respectful concurrence with
the views of Justice Fazal Ali, it is not necessary for me to agree
and I do not do so with all the detailed inferences that my learned
brother has chosen to draw in respect of the several matters from
the exhibits in this case. I am also with respect not prepared to G
draw all the inferences that my learned brother has chosen to draw
in the paragraph beginning with the expression "the careful perusal
of this letter revealed the following features". This my learned
brother was speaking in respect of Ex. 33. I however, respectfully
agree with my learned brother when he says that a close analysis and
ading of the letter namely Ex. 33 clearly indicates : H
198 SUPREME COURT REPORTS [1985] 1 s.c.R:
A (a) that the deceased was extremely depressed.

(b) that there was a clear tendency resulting from her
psychotic nature to end her life or commit suicide.

Similarly I have some hesitation about the English rendering
B of Ex. 32 which is letter dated 8th June, 198t which has been set
out by my learned brother and which has been set out in his
judgment which contains the expression "I do not know why there
is· such a dirty atmosphere in the house?" As the original letter was
read out in Court and we had the advantage of that, I am inclined to

c
take the view that the correct and the more expressive expression
would be "! do not know why there is such a foul atmosphere
---
in the house ?" Read in that light and in the context of other
factors, this letter causes some anxiety. It the deceased was sensing
foul atmosphere, why was it'? But .this again is only a doubt. It
does not prove the guilt of the accused.

D
In view of the fact that this is a case of circumstantial evidence
and further in view of the fact that two views are possible on the
evidence on record, one pointing to the guilt of the accused and the
other his innocence, the accused is entitled to have the benefit of ..
one which is favourable to him. In that view of the matter I agree
E with my learned brothers that the guilt of the accused has not been
proved beyond all reasonable doubt.

In the premises as indicated before, I agree with the order
proposed.

F

S.R. 4ppeal allowed.