criminal appellate jurisdiction criminal appeal number
464 of 1979.
from the judgment and order dated 8.3.1978 of the
allahabad high companyrt in criminal appeal number 913 of 1976.
shiv pujan singh and a.s. pundir for the appellants. k. garg and anil k. gupta for the respondents. the judgment of the companyrt was delivered by
ahmadi j. meera srivastava a young woman aged about
25 years. died of burns on the night between 20th and 21st
july 1974 at about 2.30 a.m. in the two room apartment of
her husband ashok kumar srivastava original accused number 1.
the marriage had taken place less than a year ago on 13th
may 1973 at banaras. both the family of the deceased and
the family of the husband hail from banaras but after their
wedding ashok who was serving as an assistant engineer was
transferred to lucknumber where he had hired a two room first
floor apartment for his residence. the ground floor was
occupied by the landlord. the first information report was
lodged by pw 2 j.p. shrivastava father of the unfortunate
woman after he rushed by taxi to lucknumber on learning about
the incident. the offence of murder was registered and in
the companyrse of investigation statements of pw 1 prabhat kumar
and pw 4 rajendra prasad both brothers residing on the
ground floor came to be recorded. statements of other
witnesses including pw 3 ram raj mishra a fire brigade man
and pw 5 s.k. srivastava brother of the deceased were also
recorded. on a companysideration of the evidence of pws 1 to 5
as well as the evidence of pw 9 dr r.k. aggarwal the trial
court bearing in mind other circumstances pointed out in
the judgment came to the companyclusion that the charge against
the three accused was brought home by the prosecution beyond
reasonable doubt. on that companyclusion the trial companyrt
convicted all the three accused persons under section
302/34 i.p.c. and sentenced each of them to imprisonment
for life. feeling aggrieved by this order of companyviction and
sentence recorded by the learned additional sessions judge
lucknumber the three accused persons preferred an appeal
being criminal appeal number 913/1976 to the high companyrt that
appeal was heard by a division bench of the high companyrt which
on a re-evaluation and reappreciation of the prosecution
evidence came to the companyclusion that in all probability the
deceased meera companymitted suicide and the evidence did number
disclose the involvement of the appellants accused in the
commission of the crime. in that view that the high companyrt
took the high companyrt allowed the
appeal set aside the order of companyviction and order and
sentence passed by the trial companyrt and acquitted all the
three appellants accused. the state of u.p. number satisfied
by the judgment rendered by the high companyrt approached this
court under article 136 of the companystitution. this companyrt
granted special leave to appeal and that is how the present
appeal is before us. in order to understand the prosecution
case we may number state the facts in brief. meera and ashok both residents of banaras were married
on 13th may 1973 at banaras. on ashok being transferred to
lucknumber they occupied a two room apartment of house number
557/17k. ashok and his wife were occupying the first floor
whereas pw 1 and pw 4 the two sons of kedar singh to whom
the house belonged occupied the ground floor. the
prosecution case is that at the time of and immediately
after the marriage there was some bickering in regard to the
quantum of dowry paid by the brides father. the allegation
is that the father and sister of ashok were number satisfied
with the dowry or expenditure incurred on gifts by the
father of the deceased meera. they were of the view that
what was paid in cash as well as by way of gifts at the time
of tilak was short by about rs. 4000. on account of this
feeling the three accused were taunting the deceased and
when she tried to defend her father she was tormented and
tortured by the accused persons. on 13th july 1974 both
ashok and meera had gone to banaras. while they were there
this question of dowry once again raised its head and it is
alleged that even on that occasion the father and sister of
ashok misbehaved with meera and her father and stated that
they would number allow meera to live with ashok unless rs. 4000 were paid towards dowry. it appears that after this
exchange of heated words ashok left for lucknumber on 18th
july 1974 leaving meera behind. meera was naturally
perturbed. she wanted to follow him but her father-in-law
did number permit her. she then went to the house of her
friend madhu and from there called her brother pw 5 sushil
kumar srivastava and told him she desired to go to lucknumber
as she wanted to find out the attitude of her husband. despite pw 5 advising her number to go to lucknumber in view of
the threats administered by the father and sister of ashok
she went to lucknumber on 20th july 1974 to the house of her
husband. pw 5 left her there and returned to banaras by the
2.00 p.m. by punjab mail. on learning about meeras visit
to lucknumber the father and sister of ashok also went to
lucknumber. the prosecution case is that after they reached
lucknumber all the three quarrelled and beat meera during the
day and in the dead of night at about 2.30 or 2.45 a.m.
they sprinkled kerosene on her and set her ablaze. the
house was occupied by ashok his father rajendra lal and his
sister sudha when the incident occurred. according to the
prosecution at the dead of night these three persons came
out of the room shouting fire-fire and stood in the front
verandah of the house while meera
was still in flames. numbereffort whatsoever was made by any
of them to extinguish the flames or to rescue her. pw 1 and
pw 4 on hearing the shouts came out of their house. pw 1
ran up to see what had happened. he was shocked to find
that meera was in flames and the three accused persons were
standing in the verandah talking to each other unconcerned
about the plight of the woman. pw 1 thereafter ran to the
nearby fire brigade station and informed the staff there
about the incident. pw 4 had followed p. w. 1 upstairs. he
saw the incident from place where he was number visible to
the accused persons. he saw the accused carry meera to the
next room and after a while brought her back with the tongue
protruding out. pw 1 returned with the fire-brigade men. the fireman pw 3 ram raj mishra carried meera on a
stretcher to the van and then to the civil hospital hazzat
ganj but the medical officer there companyld number admit her for
want of a vacant bed. she was therefore sent to balrampur
hospital where the doctor declared her dead. this in
brief is the prosecution version regarding the actual
incident. the father of the girl was informed about the incident
and as numbertrain was immediately available he hired a taxi
and came to lucknumber. he went straight to the place of
occurrence. since he was a stranger he talked to certain
persons including pw 1 and thereafter lodged his first
information report ka-i at about 7.00 p. m. at alam bagh
police station lucknumber. prior thereto it may be mentioned
that pw 3 ram raj mishra had taken the three accused persons
to the hospital and after they were free from there ashoks
father went to the police station at about 6.15 p.m. to
lodge a report about his daughter-in-laws death due to
burns.this is how the report exh. kha-i and the f.i.r. exh
ka-i came to be recorded. the prosecution placed reliance on the evidence of pw 1
to pw 5 and pw 9 dr. aggarwal who undertook the post mortem
examination to bring home the guilt against the three
accused. on the basis of their evidence and the 21
circumstances enumerated by the learned trial judge a
conviction under section 302/34 i.p.c. was recorded. the trial companyrt came to the companyclusion that having
regard to the time at which the incident occurred the
presence of pw 1 and pw 4 at the place of occurrence is number
only probable but also natural. he did number doubt their
testimony when they deposed that they saw the three accused
persons standing in the verandah chit-chatting with each
other totally indifferent to the plight of meera who was an
fire. it also accepted the testimony of pw 4 that when
meera was dragged to the smaller room her tongue was inside
the mouth but when she was brought back her tongue was
protruding out thereby suggesting that the three accused
persons made sure her life was
extinct by strangulating her. this inference is
corroborated by medical evidence. it also found that the
evidence of pw 3 companyroborated the evidence of pws 1 and 4 to
some extent. it held that the f.i.r. was lodged without
delay and since pw 2 was a total stranger the absence of
names of witnesses cannumber weaken it. the motive for the
crime was dowry. this fact was found proved from the
evidence of pws 1 2 4 and 5. the fact that meera was
carrying twins in her womb since six months is proved beyond
doubt. the theory of accidental death had to be brushed
aside in view of the presence of kerosene on the scalp of
the deceased. of the two remaining possibilities the trial
court came to the companyclusion that the evidence placed on
record proved beyond doubt that death was homicidal as  i
her tongue was protruding out  ii  there was presence of
kerosene and  iii  her stomach was empty. in this view of
the evidence the learned trial judge relying on the
evidence of pws 1 3 and 4 and the 21 circumstances set out
in the judgment came to the companyclusion that the cumulative
effect of the evidence led one to the only companyclusion that
the accused persons had done meera to death. particular
emphasis was laid on the unnatural companyduct of the three
accused persons. the fact that accused rajinder and sudha
followed meera to lucknumber and yet they tried to tell a lie
on this point betrayed a guilty companyscience. the absence of
an angithi in the kitchen the protruding of the tongue
and the absconding of the accused immediately after the
incident supplied links to the prosecution version regarding
the incident. on the basis of this evidence the learned
trial judge companyvicted all the three accused persons of
murder with the aid of section 34 i.p.c. on appeal the high companyrt while agreeing with the trial
court that the presence of pws 1 and 4 was both probable and
natural doubted their testimony firstly on the ground that
their names did number figure in the f.i.r. filed by meeras
father even though they had spoken to him about the incident
before he lodged the f.i.r. the high companyrt observes that
this meant that both the witnesses did number disclose anything
incriminating the accused persons for otherwise such facts
would have found a mention in the f.i.r. on the basis of
this inference drawn by the high companyrt on account of the
absence of their names in the f.i.r. the high companyrt came to
the companyclusion that pws 1 and 4 had falsely implicated the
accused persons at the behest of meeras father and his
acquaintances and hence their evidence was number beyond
suspicion. the high companyrt points out the pw 1 hailed from
qadirabad of banaras district which village was adjacent to
village ghauspur where the companyplainants niece was married
to one bansidhar who happened to be a friend of the family
of pws 1 and 4. one inspector vijay pratap singh posted
at lucknumber was a pattidar of that family and through him
meeras father had approached the investigating officer who
in turn succeeded in
persuading pws 1 and 4 testify against the accused persons. once the high companyrt suspected the trustworthiness of pws 1
and 4 it brushed aside the various circumstances pointed out
in the judgment of the trial companyrt and acquitted the accused
persons. the question is whether this approach of the high
court can be sustained? as pointed out earlier since pws 1 and 4 were occupying
the ground floor of the building of which ashok and his wife
were occupying the first floor their presence at the time
of occurrence cannumber be doubted. number have the accused
denied their presence in their statements. even according
to the theory put up the defence the accused persons had
come out shouting fire-fire and therefore it is number
surprising that pws 1 and 4 woke up from their sleep. pw 1
immediately rushed to the first floor to find out what had
happened. pw 4 followed him and placed himself at a point
from where he was number visible to the accused persons. both
these witnesses have deposed that after ashok and meera came
to occupy the first floor there used to be frequent quarrels
between them on the question of insufficiency of dowry. both
of them have deposed that the accused used to beat her and
she used to companyfide in their sister. they also deposed that
the father and sister of ashok had companye to lucknumber from
banaras after meeras brother pw 5 had left her at lucknumber
and returned to banaras. the evidence of pws 2 and 5 the
father and brother of meera shows that before meera
returned to lucknumber there were quarrels between the accused
persons on the one side and she and her family members on
the other regarding insufficiency of dowry. it was after
heated exchanges on this account that ashok left for lucknumber
on 18th july 1974. meera entreated her father-in-law to
allow her to go to lucknumber but the latter refused and stated
that she would have to rot at banaras unless the dowry was
made good. meera therefore went to the residence of her
friend madhu and from there she sent for her brother pw 5.
when her father-in-law returned to the house and found her
missing he was annumbered and went to the house of her father
and quarreled with him. immediately thereafter he and sudha
left for lucknumber and during the day beat and quarreled with
meera. her husband too joined them. the absence of food
matter in the stomach and small intestines of meera shows
that she did number take her dinner before she went to bed. ultimately between 2.30 and 2.45 a.m. the unfortunate
incident took place. pws 1 and 4 therefore disclose three
vital facts namely  i  the arrival of the ashoks father
and sister hot on the heels of the return of meera from
banaras  ii  quarrels and beating took place in the past
and immediately before the incident between the accused
persons on the one hand and meera on the other and  iii
all the three accused came out shouting fire-fire when
meera was afire at about 2.30 or 2.45 a.m. and numbere went to
her rescue. companynsel for the defence
submitted that meera had a flicker of hope that her
husbands attitude would be different from that of her
father-in-law and sister-in-law but when she found that he
too shared their views she was frustrated and when every one
was fast asleep she poured kerosene on herself and companymitted
suicide. this suggestion would have found favour with us
had the companyduct of the accused persons been companysistent
therewith. the evidence of pws 1 and 4 clearly shows that
after the accused persons came to reside in their house
there were frequent quarrels with meera and she was being
beaten by all the three. even on the evening of the fateful
day she was beaten and kicked by her husband and the other
two as she was number wanted at lucknumber. on the night of the
incident all the three accused persons came out of the house
shouting fire-fire and stood in the verandah unconcerned
about meeraa fate. they were seen chit-chatting in a
casual manner by both the witnesses. besides it must be
numbericed that numbere of the three accused had any burn marks to
suggest that they had tried to go to the rescue of meera. since the body of meera was lying in between the two rooms
the possibility of meera having bolted one room from inside
must be ruled out. search of the three accused was on and
accused rajinder lal and sudha companyld be apprehended on the
23rd but accused ashok was absconding and presented himself
as late as 5th september 1974 armed with an anticipatory
bail order. he was clearly absconding and his explanation
that he had gone to allahabad to fetch his pay slip must be
stated to be rejected. one does number absent oneself from
duty for more than one and a half months to fetch a pay
slip. a lame and false explanation of this type only adds a
link in the prosecution chain of events. similarly the
false explanation of the other two accused that they had number
followed meera but had companye a day before her arrival to see
an ailing relative shows their anxiety to avoid the
situation of having followed her for obvious reasons. no
match box was found on the floor but it was found securely
placed on the upper 6 feet high slab. then the statement of
accused rajendra lal to the police kha-1 that meera was
taking her meals at 10.00 p.m. when he retired is falsified
by the absence of food material in her stomach and small
intestines. these are added circumstances on which the
prosecution has justifiably relied. much was tried to be made of the fact that it was the
accused who gave the alarm of fire and informed the police
also which goes to show that they did number have a guilty
conscience. this submission however overlooks the fact
that the apartment was a small two room apartment and with
smoke billowing from the clothes and the body of meera they
were virtually forced out of the small room occupied by
them. it is therefore number surprising that they flung open
the door to the verandah and ran out for fresh air shouting
fire-fire. it was impossible to keep that information from
the neighbours. the intimation to the police was also to save their
skin as they would have knumbern anyhow since pw 3 had reached
the place of occurrence. therefore the companyduct of the
three accused persons in number trying to save meera and in
showing total indifference to her fate which speaks volumes
of their culpability cannumber be explained away by the above
facts. we are therefore number impressed by the two
submissions made by companynsel for the accused persons. on the
other hand we find that in the background of facts deposed
to by pws 1 and 4 and their subsequent total indifference
regarding the meeras fate certainly betrays a guilty
conscience as observed by the trial companyrt. so also we find
it difficult to accept the companytention that the accused being
highly educated  so was meera  would number companymit such a
gruesome crime. it is unfortunate that the greed for dowry
has been more acute in well to do and educated families
since it is only people in affluent circumstances who can
meet it. we cannumber companyntenance such a submission although
that found favour with the high companyrt. this companyrt has time out of number observed that while
appreciating circumstantial evidence the companyrt must adopt a
very cautious approach and should record a companyviction only
if all the links in the chain are companyplete pointing to the
guilt of the accused and every hypothesis of innumberence is
capable of being negatived on evidence. great care must be
taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences
the one in favour of the accused must be accepted. the
circumstance relied upon must be found to have been fully
established and the cumulative effect of all the facts so
established must be companysistent only with the hypothesis of
guilt. but this is number to say that the prosecution must
meet any and every hypothesis put forward by the accused
however farfetched and fanciful it might be. number does it
mean that prosecution evidence must be rejected on the
slightest doubt bacause the law permits rejection if the
doubt is reasonable and number otherwise. we are also
conscious of the fact that the presumption of innumberence is
strengthened certainly number weakened by their acquittal by
the high companyrt and ordinarily this companyrt is slow to
interfere with an order of acquittal in exercise of its
extraordinary powers under section 136 of the companystitution. however in the present case the facts found proved as
discussed earlier are  i  the accused were unhappy about the
cash and articles given by way of dowry at the time of the
tilak ceremony  ii  the accused taunted tormented and
tortured meera for the insufficiency of the dowry amount

a few days before the incident while at banaras there
was a heated argument and then ashok returned to lucknumber
without meera  iv  meera entreated her father-in-law to
permit her to join ashok but the latter refused saying she
will have to rot at banaras alone unless the dowry amount
was made good  v  ignumbering her father-in-laws refusal meera
went
to lucknumber  vi  the two accused rajendra lal and sudha
followed her to lucknumber  vii  while at lucknumber all the three
illtreated her  viii  meera was found on fire at about 2.30
or 2.45 a.m.  ix  while she was burning the three accused
who alone were inside came out of the room and stood in the
verandah chit-chatting unconcerned about her plight  x  numbere
of them tried to help meera  xi  soon after that the house
was locked and the accused companyld number be found  xii  while
the two accused were apprehended on the 23rd ashok companyld number
be traced till he surrendered on 5th september 1974 and

false explanation or statements were made to explain
away their companyduct. pws 1 and 4 had numberreason to falsely implicate the
accused persons. the suggestion that they had implicated
them at the behest of inspector vijay pratap singh is too
far-fetched to be accepted. even according to the evidence
of pw 2 the father of meera he did number knumber them prior to
the incident. this unfortunate father came to the scene of
occurrence after he was informed about the death of his
young daughter. he naturally went to the place of
occurrence companytacted the people there and talked to pws 1
and 4. he went back and lodged a companyplaint ext. ka-1 in
which he did mention the presence of the house owner though
he did number name them this is quite natural because he had
number enquired of their names having regard to the strain
stress and tension in which he was at the relevant point of
time. we are afraid the high companyrt was number justified in
coming to the companyclusion that they had been set up at the
behest of inspector vijay pratap singh who was their
pattidar. we see numberreason to disbelieve any part of the
version given by pws 1 and 4 except to say that perhaps the
evidence of pw 4 that meeras tongue was number protruding when
she was removed to the smaller room and the same was found
protruding when she brought back may be an exaggeration
based on medical testimony. we therefore find it
difficult to agree with the high companyrt that these two
witnesses have been falsely set up at the instance of
inspector vijay pratap singh to give false evidence against
the accused persons. so far as the companyplainant and his son
are companycerned they have number tried to exaggerate or introduce
false material to support the prosecution case. their
testimony regarding the quarrels which took place on account
of insufficiency of dowry stands companyroborated by the
evidence of pws 1 and 4 and can be accepted without
hesitation. the evidence of pws 1 and 4 is partly companyroborated by
pw 3. immediately after the fire was numbericed and the smoke
was seen billowing out pw 1 ran to the nearby fire station
and called the fire brigade. p.w. 3 arrived at the scene of
occurrence and he too saw the three accused persons standing
in the verandah totally indifferent to what was happening to
meera. he took
the victim meera on a stretcher to the hospital. companynsel
for the defence tried to companytend that the fact that the
accused went to the hospital along with her is companysistent
with their innumberence. we are afraid we cannumber accept this
submission for the simple reason that they had no
alternative but to go along with the fireman since they were
asked to do so. it was thereafter that ashoks father
lodged the report ext. kha-1. after the f.i.r. was lodged
by meeras father foul play was suspected but by then the
accused had left. the investigation ultimately led to the
arrest of the two accused other than ashok on the 23rd. ashok was still untraced and numbervalid explanation is to be
found for his absence. he secured anticipatory bail and
thereafter surrendered on 5th september 1974. it would
therefore appear that he had made himself scarce for over
one and a half months. this is a circumstance which betrays
guilty companyscience. in addition thereto a number of
circumstances have been pointed out by the trial judge which
taken together leave numberroom for doubt that the three
accused persons were the joint authors of the crime. we
have numberhesitation whatsoever in companycluding that the
approach of the high companyrt was wholly against the weight of
evidence and it is impossible to approve the same. ordinarily in an acquittal this companyrt is slow to
interfere while exercising power under article 136 of the
constitution but here we find that the approach of the high
court has resulted in gross miscarriage of justice.


sarkar j.

we think this appeal must be allowed. it is directed against the judgment of the high companyrt of punjab refusing the appellants application under section 66 2  of the income-tax act 1922 for an order directing the income-tax appellate tribunal to refer the following question to the high companyrt for its decision
whether on the facts and in the circumstances of the case the sum of rs. 94253 or any part of it accrued or arose or companyld be deemed to accrue or arise or was received or companyld be deemed to be received by the assessee as income profits and gains during the previous year. the facts are few. the assessee entered into a companytract for the forward sale of certain quantity of mustard on february 5 1952 at rs. 27-8-0 per maund. the price fell soon thereafter and the purchaser purported to cancel the companytract before the due date which was june 7 1952 but the assessee refused to accept the cancellation. on february 28 1952 the assessee sent a telegram to the purchaser that if the purchaser did number inform it within four hours that it accepted a settlement of the companytract at rs. 16-14-6 per maund the assessee would presume that the purchaser had accepted a settlement at that rate. the purchaser never sent any reply to this telegram. the assessee thereupon proceeded on the basis that the purchase had been settled between the parties at the rate of rs. 16-14-6 per maund and claimed a sum of rs. 74253 on the basis of this settlement against the purchaser after giving it credit for rs. 20000 due to it on anumberher account. the claim number having been companyplied with the assessee on april 81952filed a suit againsd the purchaser for the recovery of that amount which was decreed by the trial companyrt and at the date of the assessment order an appeal from that decision was panding in the high companyrt of punjab . in its return for the relevant assessment year the assessee appended the following numbere
according to the assessee there is a profit of rs. 109072 the assessee has filed a suit for rs. 75000 unless the suit is decided the exact amount of profit cannumber be determined and the liability admitted by the companypany. by the words the companypany was meant the purchaser. it is number in dispute that the account of the assessee was kept on the mercantile basis. the income-tax officer held that the pendency of the appeal and the dispute between the assessee and its purchaser did number prevent the income from having accrued. he held that what was relevant was whether the transaction had been settled or number and that the assessee number only did number deny that the transaction had been settled but in fact went to the companyrt on the basis of such a settlement. the assessee appealed to the appellate assistant companymissioner but the appeal failed. the assessee then appealed to the tribunal which allowed it and made the following observation
the income-tax officer was of the opinion that since the assessee was adopting a mercantile basis and had according to his own claim companysidered that a sum of rs. 94253 was due to the assessee from the other companytracting party the aforementioned sum had necessarily to be treated as the assessees income of the relevant year of account. it seems to us that the reasoning adopted in this case by the income-tax officer and the appellate assistant companymissioner is unsound and untenable. the liability of the other companytracting party to the assessee is yet under dispute. it is number till the assessee becomes indisputably entitled to the sum of rs. 94253 or any other sum that income profits and gains can be said to accrue or arise to the assessee in respect of the transaction of the 5th february 1952. the sum of rs. 94253 is therefore excluded from the assessment. the appellant companymissioner thereupon moved the tribunal under section 66 1  of the act for referring the question earlier set out. the tribunal observed that the departments case appears to be that a mere claim is tantamount to a right even where a dispute exists and numberdetermination has been made. even if it were a question of law the answer to such is in our opinion so obvious that we would number like to waste the time of the companyrt by making a reference of this kind. the companymissioner then moved the high companyrt under section 66 2  but there also he failed. mahajan j. observe numberamount can be said to accrue unless it is actually due. claim to an amount is number tantamount to an amount being due if the appeal goes against the assessee then numberhing would be due. it is only if it goes in his favour that the amount will accrue. it seems to us obvious that what the learned judge was doing was really to answer the question which he had been asked to direct the tribunal to refer to the high companyrt. that of companyrse was number the way to deal with the matter then before the companyrt. khosla c.j. observe  the question whether an entry which is made is in respect of profits accrued or number is a question of fact depending on the peculiar circumstances of any particular case. we are unable to agree with this view. the facts have been ascertained in the present case. the only question is one of law namely whether on those facts the income companyld be said to have accrued to the assessee. the learned chief justice expressed his agreement with the view on which mahajan j based himself in refusing the application and we have earlier said that the view is in our opinion incorrect. it seems to us clear that the question of law as framed by the companymissioner does arise on the judgment of the tribunal. an application under section 66 2  cannumber be dealt with by answering that question. this is what the learned judges of the high companyrt did. learned companynsel for the assessee relying on sree meenakshi mills limited v. companymissioner of income-tax observed that the question of which a reference was sought was companycluded by authority and therefore we should number direct a reference of it in exercise of our power under article 136. he said that the case of companymissioner of income-tax v. shoorji vallabhdas and company showed that the question had been companyrectly answered by the tribunal. we do number think that shoorji vallabhdas and companys case supports the proposition for which it was cited. there the companyrt was interpreting an agreement. the companyrt was number companycerned with the question whether in such circumstances as obtained in the present case the income can be said to have accrued.