# SHARAD BIRDHI CHAND SARDA v. STATE OF MAHARASHTRA

- **Citation:** [1985] 1 S.C.R. 88
- **Court:** Supreme Court of India
- **Decided:** 1984-07-17
- **Bench:** S. MURTAZA FAZAL ALl, A. Varadar..Uan, Sabyasachi Mukharjj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sharad-birdhi-chand-sarda-v-state-of-maharashtra-8776
- **Pages:** 111

## Headnote

Comtitution of India, 1950, Article 136-lnterferencc by the Supreme Court
with the concurrent findings of fact of the conrts below, normally not permissibleSpecial 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
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.
Murder by administration of poison-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,
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
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 family has- a cloth
business. In addition, the appellant, a graduate in Chemical Engineering had
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SltARAD B. CHAND v. MAHAkASHTRA
89
started a chemical factory at Bhosari, a suburb of Pune. The third accused is
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
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
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
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 awa

## Text

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88
SHARAD BIRDHI CHAND SARDA
v.
STATE OF MAHARASHTRA
July 17, 1984
[S. MURTAZA FAZAL ALl, A. VARADAR..UAN AND
SABYASACHI MUKHARJJ, JJ.]
Comtitution of India, 1950, Article 136-lnterferencc by the Supreme Court
with the concurrent findings of fact of the conrts below, normally not permissibleSpecial 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
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.
Murder by administration of poison-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,
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
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 family has- a cloth
business. In addition, the appellant, a graduate in Chemical Engineering had
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,
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SltARAD B. CHAND v. MAHAkASHTRA
89
started a chemical factory at Bhosari, a suburb of Pune. The third accused is
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
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
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
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
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
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concurrent findings of the fact of the courts below. in the absence of very
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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
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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
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sti.PREMi! cotiR T 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
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
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
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]
(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
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the statement was secured either by prompting or tutoring, [109E·F1
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(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
.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,
such cases would not make the statement irrelevant. [l09Hj
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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)
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
& 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
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
case the same could be cured or supplied by a false defence or a plea which is
not accepted by a Court [162C-E]
·
3:2. Before a false explanation can be used as additional link, the following 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
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
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 prosecution 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]
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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 accused 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 of Madhya 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) ; Chandrakant 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 distinguished.
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 connected 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 phychology and no one can help it. Not that this is done consciously but even unconscigus\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·
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 evidence 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
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SUPREME COURT REPORTS
[1985) 1 S.C.R.
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
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
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
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)
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]
·"--.
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
of administration of potassium cyanide, [152B]
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SHARAD B. CHAND v. MAHARASHTRA
95
5. The only other reasonable possibility that remains is that as the
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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]
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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 appellant 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
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.
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]
The circumstances which were not put to the appellant in his examination 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
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
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 corollary, 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
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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 tried 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
women was extremely impressionatc and the Jctterts show that a constant conflict 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
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 examination, do not support the view of the High Court being clearly distinguishable ; (vi)
That the High Court has taken a completely wrong view of law in
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}
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
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.)
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 cirC\lms~ances of her death. Those circumstances do not have any proximate
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SHARAD B. CHAND 1', MAHARASHTRA
97
relation to the actual occurence resulting in her death due to potassium cyanide
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 particular 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 par longed piosoning. [t87B1; 190D-F]
1 : 2. The fact that the High court has rejected the case of the prosecution 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 sus vicious 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 condemnations. 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 consequences 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
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
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 evidence being tendered in his court and to know the scope of. the e11amination of
the accused under Section 313 Criminal Procedure Code.[195A·CJ
Per Sabyasachi Mukharji, J. (Concurring)
Though the test 1Jf proximity cannot and should not be two literally construed and be reduced 'practically to a· cut-and-dried formula of universal
application, it must be emphasised that wherever it is extended beyond the immediate, it should be explained and must be done with very great caution and
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
do4bt about the, guilt of the accused [1970-F]
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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.
265 of 1983 with confirmation case No. 3/83.
' Ram Jethmalani, M.S. Ganesh, F.N. Ranka and Ms. Rani
Jethma/ani for the Appellant.
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KG. Bhagat, Add/. Solicitor Gcncrul, M.N Shroff and U.A.
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Jadhavrao for tl1e Respondent.
The following Judgments were delivered
FAZAL ALI, J. This is rather an unfortunate case where a
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
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
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 magnanimous 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
sometimes. On finding things unbearable, she did protest1 and ex
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SHARAD. B. CliA'ND v. MAHARASHTRA (Faza/ Ali, J.)
99
pressed her ' feelings in clearest possible terms, in a fit of utter
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.
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.
As to the cause of death, there appears to be a1very serious divergence 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
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
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
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
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
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SUPREME COURT REPORTS
(1985] 1 S.C.R-_
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judgments we feel that the facts of the case lie within a very narrow
compass.
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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
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
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.
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 notin the apartment at that time but it is alleged by the prosecution
that he returned so6n after and administered potassium cyanide to
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\
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
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
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
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
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.