Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
Equivalent citations: 1984 AIR 1622, 1985 SCR (1) 88
Bench: Fazalali, S Murtaza
PETITIONER:
SHARAD BIRDHI CHAND SARDA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT17/07/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1984 AIR 1622 1985 SCR (1) 88
1984 SCC (4) 116 1984 SCALE (2)445
CITATOR INFO :
D 1988 SC1101 (22)
F 1990 SC 79 (21)
R 1991 SC 917 (37,42,50)
R 1991 SC1842 (6)
ACT:
Constitution of India, 1950, Article 136-Interference by the Supreme Court with the concurrent findings of
fact of the courts below, normally not permissible-Special circumstance like errors of law, violation of well
established principles of criminal jurisprudence 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).
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 link 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 3.
Benefit of doubt-When two views are possible, one leading to the guilt of the 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 the accused under Section 313 of Crl. P.C.-Circumstances not put to the accused to explain,
cannot be considered for conviction-Code of Criminal Procedure, 1973 (Act II of 1974) Section 313.
HEADNOTE:
The appellant, Rameshwar, Birdhichand Sarda, Ramvilas Rambagas Sarda, were accused 1, 2 and 3
respectively in Sessions Case No. 203 of 1982 on the file of the Additional Sessions Judge, Pune. The
appellant and the second accused are the sons of one Birdhichand of Pune whose family has a cloth business.
In addition, the appellant, a graduate in Chemical Engineering had
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 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 a building known as Takshasheela Apartments in Mukund Nagar area of Pune. 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 section
120B. Accused No, 3 was 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.120B 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.120B I.P.C. but confirmed his
conviction 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
^
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 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 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. [174E-G] 1:2. Suspicion, however, great it may be, cannot take
the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction
supportable in law. [174H]
1:3. The well established rule of criminal justice is 'fouler the crime higher the proof'. In the instant case, the
life and liberty of a subject was at
stake. As the accused was given a capital sentence a very careful cautious and meticulous approach
necessarily had to be made 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 admissible. The
second part of cl.(1) 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 and the clear language of s.32(1) of Evidence Act,
the following propositions emerge: [108F]
(1) 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
circumstances 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. [108G-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 statement 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.1 of s.32 is yet another exception to the rule
that in criminal law 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 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
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Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
tutoring. [109E-F]
(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-G] (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 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.
[109H]
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 Protima Dutta & Anr. v. The
State, C.W.N. 713 referred to.
Manohar Lal & 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 Bom. 290; Chinnavalayan v. State of Madras [1959] M.L.J.
246; Rajindera Kumar v. The State AIR 1960 Punjab 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 law. 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 links in the chain are complete and
do not suffer from any 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; [165E]
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.[165H]
If these conditions are fulfilled only then a Court can use a false explanation 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 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 recourse to a
false defence or a false plea. [166A; 166D-E] 92
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]
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Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say,
they should not be explainable on any other hypothesis except that the accused is guilty; [163G]
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
consistent 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] Hanumant v. The State of Madhya Pradesh [1952] SCR 1091;
Tufail (Alias) Simmi v. State of Uttar Pradesh [1969] 3 SCC 198; Ramgopal v. State of Maharashtra AIR
1972 SC 656; and Shivaji Sahabrao Babode & Anr. v. State of 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 there is
certain and explicit evidence and no pure moral conviction. [164F]
The King v. Horry [1952] N.Z.L.R. III quoted with approval.
Hanumant v. State of M.P. [1952] S.C.R. 1091; Dharambir Singh v. The State of Punjab (Criminal Appeal
No. 98 of 1958 decided on 4.11.58); Chandrakant Nyslchand Seth v. The State of Bombay (Criminal Appeal
No. 120 of 1957 decided on 19.2.58) Tufail (alias) 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 Lal Pangasa v. State of U.P. A.I.R. 1974 SC 1144/46; Shankarlal Gyarasilal Dixit v State of
Maharashtra [1981] 2 SCR 384/390; and M.C. Agarwal v. State of Maharashtra [1963] 2 SCR 405/419
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
under section 32 of the Evidence Act but other statements which do not bear any proximity with the death or
if at all very remotely and indirectly connected with the death would not be admissible. [121H]
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 unconsciously the love and
affection for the deceased would create a phychological hatred against the supposed murderer, the court has to
examine the evidence of interested witnesses 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 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.
[122C-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 different tale to tell particularly in respect of certain matters.
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Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 sent by force; (iv) The complaints made in the
letters are confined to ill-treatment, loneliness, neglect and anger of the husband but no apprehension has been
expressed in any of the letters that the deceased expected imminent danger to her life from her husband; (v) In
fact, in the 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, she 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) If 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 decided 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 accused is undoubtedly entitled to the
benefit of doubt. [166H]
In the instant case, the evidence clearly shows that two views are possible-one pointing to the guilt of the
accused and the other leading to his innocence. It may be very likely that the appellant may have administered
the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed
suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the
benefit of doubt resulting in his acquittal. [168B]
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: (1) There is a clear motive for an
accused to administer poison to the deceased; (ii) that the deceased died of poison said to have 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. [167F-H]
4.3. In the instant case, taking an over all picture on this part of the prosecution case the position seems to be
as follows: [150D]
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 postmortem 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 of the inmates of the house had come only a short- while before the
appellant. [150E-F]
2. Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju 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 would have arisen it would be very difficult for the appellant
to murder her. [150G]
3. The 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 he must have tried forcibly to administer the poison by the process of
mechanical suffociation, in which case alone the deceased could not have been in a position to offer any
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
resistance 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. [150H; 151A-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 postmortem that the deceased died as a
result of administration of potassium cyanide. [152B] 95
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 hostility after entering the flat she herself took potassium
cyanide and lay limp and lifeless. When the appellant 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 after an hour
his suspicion was roused and therefore he called his brother from the adjacent flat to send for Dr. Lodha.
[152C-D]
In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed
suicide as alleged by the 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 raise an irresistible inference that Manju's death was a case of blatant homicide.
[152E-F]
Further, in a matter of this magnitude 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. In
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 believed 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 circumstance 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; 159B-C]
Fateh Singh Bhagat Singh v. State of Madhaya Pradesh AIR 1953 SCR 468 ; Shamu Balu Chagule v. State of
Maharashtra 1976 1 SCC 438 and; Harijan Meha Jesha v. State of Gujarat 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
committed the murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of
a criminal case which rests purely on circumstantial evidence; (ii) From the recital in the letters Ex. P30,
Ex-P32 and Ex-P33 it can be safely held 96
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 believed that her holy union with her husband bring health and happiness
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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
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 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 essential ingredients of a case of death caused by administration 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 completely overlooked the well
established principles of law and has merely tried to accept the prosecution case based on tenterhooks and
slender tits and bits; (viii) It is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW 33)
which shows that poison was forcibly 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 acquitted 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 defence being false does not arise. [172E-H; 173A-H; 174A-D] Per Varadarajan, J.
(Per contra on facts.)
1:1. The three letters Exh. P 30, Exh. P 32 and 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 that either the appellant or his parents ill-treated the desceased 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
circumstances of her death. Those circumstances do not have any proximate 97
relation to the actual occurrence 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. It is not the case of the prosecution either that
the present case is one of porlonged poisoning. [187B; 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
suffocation is not one that could be taken into consideration as a mitigating circumstance in judging the
conduct of the doctor who had conducted the autopsy in a case of suspicious death. The conduct of the doctor
in making certain later interpolations in the case of suspicious death in which the 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, ignoring the probable
consequences of his act. In these circumstances Dr. Banerjee PW 33 is person who should not be entrusted
with any serious and responsible work such as conducting 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,
and the other evidence, if they had been accepted. [193D-H]
1: 3. Section 313 Criminal Procedure Code lays down that in every inquiry or trial for the purpose of enabling
the accused personally to explain any circumstance appearing in the evidence against him, the court may at
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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. 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 questions do not relate to any circumstance
appearing in the against the appellant. The learned Additional Sessions Judge was bound to exercise control
over the evidence being tendered in his court and to know the scope of the examination of the accused under
Section 313 Criminal Procedure Code [195A-C] Per Sabyasachi Mukharji, J. (Concurring)
Though the test of 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. As 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 fact, namely raising
some doubt about the guilt of the accused [197D-F]
98
JUDGMENT:
CRIMINAL APPELLATE 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 Jethmalani for the Appellant.
K.G. Bhagat, Addl. Solicitor General, M.N. Shroff and U.A. Jadhavrao for the Respondent.
The following Judgments were delivered
FAZAL ALI, J. This is rather an unfortunate case where a marriage arranged and brought about through 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
cherished ideal dreams to be achieved after her marriage, which was solemnised on February 11, 1982
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 shattered 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 laudable attitude she
found that "things were not what they seem" and to quote her own words "she was treated in her husbands
house as a labourer 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 protest, and ex
99
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 parents lest they may get extremely upset, worried and distressed.
Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and she thought that
a point of no-return had reached. At last, on the fateful morning of June 12,1982, 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 a very 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 interested in her
and had illicit intimacy with another girl, Ujvala, he practically discarded his wife and when he found things
to be unbearable he murdered 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 frustration 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
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 ceremony 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 Pune on 26.2.82. It is the prosecution case
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 clear 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 her 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 flat on 11.6.82 near about 11.00 p.m. Her husband was not in the apartment at that time but it
is alleged by the prosecution that he returned soon after and administered potassium cyanide to Manju.
Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat 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 postmortem 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
5.30 a.m. Subsequently, the usual investigation and the postmortem 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
101
suicide out of sheer frustration. In order to prove his bona fide the accused relied on the circumstances that as
soon as he came to know about the death of his wife 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 postmortem, 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 17 circumstances in order to prove that the
circumstantial evidence produced by the prosecution was complete and conclusive, Some of 13 these
circumstances overlap, some are irrelevant and some cannot be taken into consideration because they were not
put to the appellant in his statement under s. 313 of the Code of Criminal Procedure in order to explain the
effect of the Code of Criminal Procedure in order to explain 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 where Mahajan, J. clearly expounded the
various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus:
"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 be such as to show that within all human
probability the act must have been done by the accused."
This decision was followed and endorsed by this Court in the case of Dharambir Singh v. The State of Punjab.
We shall however discuss Hanumant's case fully in a later part of our judgment. Coming 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 Bihar S.K.
Das, J. made the following observations:
102
"The only relevant clause of s. 32 which may be said to have any bearing is cl.(1) which relates to statements
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 the case before us, the statements made by Aghani do not relate to the cause of her
death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of
her sister." In the 'Law of Evidence' by Woodroffe & Ameer Ali (Vol. II) the authors have collected all the
cases at one place and indicated their conclusions thus: "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 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
expression '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 statement made by a person as to any
of the circumstances of the transaction which resulted in his death.
The words, 'resulted in his 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.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
They are 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 which rests the edifice of the prosecution
may be indicated as follows:
103
(1) Written dying declaration by the deceased in her letters, two of which were addressed to her sister Anju
and one her friend Vahini,
(2) The oral statements made by the deceased to her father (PW 2), mother (PW 20), Sister (PW 6) and her
friend (PW 3) and also to PWs 4 and 5 showing her state of mind shortly before her death and the complaints
which she made regarding the ill- treatment by her husband,
(3) evidence showing that the appellant was last seen with the deceased in the room until the matter was
reported to the police.
(4) the unnatural and incriminating conduct of the appellant,
(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.
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 mentioned in her own letters.
He has also questioned the legal admissibility of the statements contained in the written and oral dying
declarations. He has submitted that the so-called dying declarations are admissible neither under s. 32 nor
under s.8 of the Evidence Act it was submitted by the appellant that the present case is not at all covered by
cl.(1) of s. 32 of the Evidence Acts.
The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana
Swami v. Emperor 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 person
making it must be at any rate near death, that the "circumstances" can only include the acts done when and
104
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
transaction: 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. It is not as broad as the analogous use in
"circumstantial evidence" 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. ----------It will be
observed that "the circumstances are of the transaction which resulted in the death of the declarant."
These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar & Ors v. The
State of Uttar Pradesh where the following observations were made: "It is clear that if the statement of the
deceased is to be admissible under this section it must be a statement relating to the circumstances of the
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 killed,---------A necessary condition of admissibility under the
section is that the circumstance must have some proximate relation to the actual occurrence------- ---- The
phrase "circumstances of the transaction" is a phrase that no doubt conveys some limitations. It is not as broad
as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the
other hand narrower than "res gestae" (See Pakala 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 once, in Manoher Lal
& ors. v. The State of Punjab, the Division Bench of the Punjab & Haryana High Court observed thus: The
torture administered 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 physical harm done to the victim might be increased
from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of
time, but if the circumstances of 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." We fully agree with the above observations made by the learned Judges. In Protima Dutta &
Anr. v. The State while relying on Hanumant's case (supra) the Calcutta High Court has clearly pointed out
the nature and limits of the doctrine of proximity and has observed that in some cases where there is a
sustained 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 treatment for years since the marriage of Sumana with
incitement 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.
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 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 was one continuous chain, several links of which were touched up by the exhortations to
die. "Thus evidence 106
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 while following 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 Act thus:
"The circumstances must have some proximate relation 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
cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a
circumstance 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 for the crime." In Allijan Munshi v. State, the
Bombay High Court has taken a similar view.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
In Chinnavalayan v. State of Mad ras two eminent Judges 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 distance factor is, for example, a 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 that
the statement must be made after the transaction has taken place, that the
107
person making it must be at any rate near death, that 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 actual occurrence." In Gokul Chandra Chatterjee v. The State the Calcutta
High Court has somewhat diluted the real concept of proximity and 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 unhappy state of mind, 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 transaction which resulted in death."
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 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 has made a distinct departure from the English law where only the statements which directly relate
to the cause of death are admissible. The second part of cl.(1) of 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 be
found in the English law. This distinction has been clearly pointed out in the case of Rajindera Kumar v. The
State where the following observations were made:
"Clause (1) of s. 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts
made by a person who is dead,--------are themselves rele
108
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 question.---------- It is well settled by now that there is difference 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
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.
And in the case of State v. Kanchan Singh & Anr. it was observed thus:
"The law in India does not make the admissibility of a dying declaration dependent upon the person's having a
consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement
made by him about the circumstances of his death would be admissible under s. 32. Evidence Act. In these
circumstances, therefore, it is futile to refer to English cases on the subject.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
Thus, from a review of the authorities mentioned above and the clear language of s.32(1) of the Evidence Act,
the following propositions emerge:
(1) 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 exhibits
circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the
peculiar conditions of our society and the diverse nature and
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 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 vary with the
circumstances 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 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 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 statement
may be admissible under s.32.
(3) The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law 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 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 corners of s.32 and, therefore, admissible. The distance of
110
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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 necessary 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. "All read the letter with curiosity, or it may go to anybody's hand. I 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.191)
"Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin aai. Isliye maine
tumhe 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
111
secrets to herself except giving a rough idea or a passing glimpse of her feelings only to those who were very
close 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 hands and she was not prepared to take such a risk. This mentality and noble
nature would be of great assistance to us in assessing the probative value of the statements made by her to her
parents, sister and friend during her last visit to Beed. The second paragraph, which is extracted below,
reflects her state of mind and the tension and torture which she was undergoing: "Now in this letter, when
(Out of) the things coming to my mind which cannot be written, I do not understand what is to be written, The
State of mind now is very much the same. Enough. You understand (me). I am undergoing a very difficult
test. I am unable to achieve it. 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."
(P.191)
She has hinted that hinted that she was passing through difficult times but was trying to control herself as
much as she could. She has further 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 hoon theek hai jab
assambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota hai,"
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 of all her troubles was to commit suicide. It is pertinent to
note that in the first two paragraphs of her letter 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
parents is at Pune, I would do this and that or the people
112
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 laborer."
(P.191)
The relevant portion in the Roman script reads thus: "Is ghar mein bahu ki keemat majdoor se jyada nahin
hai."
Indian Kanoon - http://indiankanoon.org/doc/1505859/
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
(P. 18)
At the end or the third paragraph she repeats her sad plight thus:
"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." In the middle of the 4th paragraph she comes out with an emotional
outburst by indicating that all her hopes had been shattered 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, 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 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
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 nature and the precaution taken by her not to tell
any thing to her father, who is addressed as 'Bhausab'. The Roman script of the relevant portion runs thus: 113
"Dil tu karta tha Bai Bhau Sahab ko sab bataon, 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, suffering and shock of the
deceased. One thing which may be conspicuously noticed is that she was prepared to take all the blame on her
rather than incriminate her husband or her inlaws. The other portions of the letter (Ex.30) are not at all
germane for the purpose of this case. Summarising the main contents of the letter, the following conclusions
or inferences follow: (a) Manju was a highly emotional and sensitive woman, (b) She got the shock of her life
when due to ill- treatment by her husband and in-laws she found that all her dreams had been shattered to
pieces after marriage leaving her a dejected, depressed and disappointed 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,
(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 written by Manju to her sister Anju. This was
perhaps her last letter to Anju and is very important and relevant for decision of the case. The letter 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 is such a dirty atmosphere in the
house ? It is felt every moment that something will happen.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 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 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 husband or his parents but relates only to the defective and unsatisfactory arrangements for such an
important function. The relevant 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 that too a short one, it gives a clear inkling of the manner of how her mind was working.
She did 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 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 want to
disclose for obvious reasons.
Then we come to Exh.33 which is a letter dated 23.4.82 written 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:
"Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should have been near
with me.
All persons here are very good. Everybody is loving. Still I feel lonely. One reason is that, in the house 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 which we had discussion is as it was. Vahini. I swear you if
you talk to anyone. I am much in pains. 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 except to weep profusely. At least till now 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 has become (unkind) towards
me." (P. 197)
"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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 servant without pay as of right.
116
Why so much indifference towards me only ? Vahini, I, 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, 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. 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 time to pacify the same. On the day on which self-pride is
lessened, no other person will be more fortunate than me But till that day it is not certain that I will be alive."
(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 Vahini with her. In the third paragraph she clearly states that all 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
starting point of the first symptom of her invisible fear which 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 mistakes 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). In the same paragraph she describes her hardships and
complains
117
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 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 changes her mind and says that he cares for her much but due to his moody nature it will 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 be more fortunate than her. The next line is rather important because she hints that till
the said 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 and sensitive.
(2) She exhibited mixed feelings of optimism and pessimism at the same time.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
(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 from her husband nor is there anything to show that
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 things118
(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 have extracted. Indeed, if this was not so how
could it be possible that while not complaining against her husband she gives a hint not only to Vahini but
also to Anju that she might not live. She mentions of no such threat having been given to her by husband at
any time or anywhere. (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 there was a clear possibility and a tendency on her
part to commit suicide due to desperation and 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 may have committed suicide
cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two
views are reasonably possible 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 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 be
classified as psychotic or severely 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)
119
And it is only through a gross distortion of the actual 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 jungle like struggle.
(P.243)
The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place
among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse
evil than death.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
(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
emotional distress."
(P.251)
"People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense,
they will survive the death to benefit by its effect.
xx xx xx
The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of
disappointment and frustration may have much in common with that experienced by the person who seeks
revenge though suicide-However, for some people a critical moment 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-Warren Breed and his
colleagues found that a sense of
failure is prominent among many people who take their own lives."
(P.252)
The above observations are fully applicable to the case of 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 which 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 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 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- "Studies of attempted 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." (P.5)
Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced
with disappointment or find their environment so unhealthy of unhappy, they seem to 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 there appear to be no
way forward and thus no point to
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
121
life-but that the world actually looks different." (P.7)
Coleridge in `Ode to Dejection' in his usual ironical manner has very beautifully explained the sentiments of
such persons thus :
"I see them all so excellently fair-
I see, not feel, how beautiful they are ;" At another place the author (Hinchliffe, Hooper & John) come to the
final conclusion that ruptured personal relationship play a 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, 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)
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 Court has laid very great stress on the fact that the
evidence led by the prosecution wholly and completely excludes 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 declaration 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 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 death would not be admissible. Unfortunately, however, the two kinds of statements are so
inextricably mixed up that it would
122
take a great effort in locating the part which is admissible and the one which is not.
Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the
background of which the oral statements are to be considered. All persons to whom the 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 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 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. This is human psychology and no one can help it.
This now takes us to a consideration of the evidence of the witnesses concerned which read together with the
letters form a composite chain of evidence regarding the causes or the circumstance relating to the death of the
deceased. According to the prosecution, the last visit of Manju to Beed was on 25.5.82 where she stayed till
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
3rd of June 1982 when she was brought back by the 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 written, and PW-20, Bai, the mother of Manju. Meena Mahajan (PW 5) was also examined but
we 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.
123
We would first deal with the evidence of PW-2, Rameshwar 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 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 wife, 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. 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 atmosphere of her new marital home. Apart 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 expressing 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 Dhanraj, which
he did. On reaching the house of Dhanraj, the witness states that 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 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 Birdichand may have told to his son that does not appear to have made any
serious impact on him (appellant) and he left the
124
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 animated by a desire to take her life.
The witness further stated that he found that Manju was weeping every now and then during the night at
Dhanraj's place. 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 can be drawn against the appellant.
Another complaint made in the statement was that when he made a voluntary offer to solve the difficulties of
Sharad, 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 of the accused also is
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
not of such an importance as to lead to any adverse inference. Some persons who have a keen sense of 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 but that proves
nothing. In fact, experience shows that where elders try to intermeddle 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 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 disturbed and frightened. This statement would be admissible as primary
evidence. What probative value should be attached to this small matter is a different issue.
Thereafter, the witness was told the incidents by his wife (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 evidence 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 acquaintance of the family of accused, who told him (witness) that
he was going to Hyderabad and after 4th-5th June some solution would be found out. At the same time, he
advised the witness not to make any haste in sending back Manju to Pune.
On the 2nd June 1982, Birdichand arrived at Beed and requested 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 Manju may be present at the ceremony and look after the arrangements.
The witness says that after hearing this he apprised Birdichand that Manju was extremely frightened and that
she was not ready to go back to her husband's house nor was he (witness) willing to send her 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 would come to her and
he also promised that Manju would be sent back to Beed, The most important 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 heard 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
of the accused. Since she was in a state of fear or extreme fear in her mind and she also told me that she was
not prepared to go to the house of the accused.
** ** **
Therefore, after the meals I sent Manju with Birdichand. Birdichand, Manju and Kavita then left Beed by
about 12.30 p.m. by bus on 3rd of June, 82. At that 126
time Manju was constantly weeping right from inside my house till the bus left. She was also in a state of
extreme fear."
(P. 197)
The witness has said many times in his statement that Manju was always weeping and crying and the final
crisis came when on hearing the talks between him and Birdichand she called him from the staircase and told
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
him that she was not prepared to go to her husband's house as she was in a state of extreme fear. It is difficult
to believe this part of the evidence of the witness for two reasons- (1) When the talks were going on between
two elders would Manju be sitting near the staircase to listen their talks and call her father and give vent to her
feelings and her decision not to go back to Pune at any cost. This conduct appears to be directly opposed not
only to the tenor and spirit of the letters (Exhs. 30, 32 and 33) which we have discussed but also against her
mental attitude and noble nature.
(2) As indicated by us while discussing the letters- could a woman who was so affectionate and reserved in
nature and who would not like the contents of her letters to Anju and Vahini to be disclosed to her parents lest
they feel worried, disturbed and distressed-suddenly turn turtle, forgetting her sentiments not to worry them
and come out in the open to declare before all by weeping and crying that she was in a state of extreme fear,
seem to us to be inherently improbable. Once a mature woman develops a particular nature or habit or a
special bent of mind she is not likely to forgo her entire nature-in this case, her affection and love for her
parents and the feeling of not doing anything which may cause distress or worry to them, and start telling her
woeful story to everyone whom she met.
Manju must have known fully that her husband's sister's 127
betrothal ceremony was to be held on 13th June and if her father-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 had 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 the prosecution story and provide an imaginary motive for the murder of the deceased.
Indeed, if she was bent on resisting all attempts of her father-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 extremely 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 compelling circumstance even taking the
statement of the witness at its face value.
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 on 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 of
the witness may be extracted thus :
"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 received. Ultimately I asked him as to what had happened 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 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 same
time he used to wake up and so he
went near Manju and called her 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 tears in the eyes of his sonin-
law were fake and that he was merely shedding crocodile tears. There is nothing on the record nor in the
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 dispassionate angle, it was
quite spontaneous and natural because by the time the witness reached Pune the postmortem had been done
and the death of Manju had come to light long before his arrival. There was no reason for the witness 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., that
the 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 regarding having sexual intercourse near about midnight
seems to us to be inherently improbable. However, educated or advanced one may be, it is against our
precious cultural heritage for a person 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 the witness and this, therefore, goes a long way off to detract from the truth of the
testimony 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 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 suffering and perhaps they kept the sanctity of oath
given to them by the deceased. This is an additional circumstance to show that even when Manju visited Beed
for the last time she might tell something to her own sister Anju or to Vahini but she would never dare 129
to disclose all the details and put all the cards on the table before 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.
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
through which the deceased was passing. Secondly, he relied on the statements made by the deceased (Manju)
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 no doubt that the said evidence of the witnesses would
undoubtedly be admissible as revealing the state of mind of the deceased. This would be primary evidence in
the case and, therefore, there cannot be any doubt about 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 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 to the death of the
deceased. In view of the 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 Manju, as disclosed or evinced by the admitted letters (Exhs. 30,32 and 33), which
demonstrate that it is most unlikely, if not impossible, 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.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
We now proceed to discuss the evidence of PWs 3,4, 5, 6 and
130
20. As we have discussed the evidence of PW 2, father of Manju, it will 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 I of the Paper Book. It is not necessary for us to go into those details
which have already been deposed to by PW-2. The most relevant part of her evidence is about the visit of
Manju to Beed on 2.4.82. She states that during this visit she found Manju cheerful and happy and she did not
complain 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 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 chemical factory where he
used to work from morning till late at night. The witness further deposed that Manju informed her that there
was no charm left for her at the house of her husband. These facts however run counter 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 entered 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 April 1982 she (PW 20) alongwith her
husband left for Pune to offer condolences on the death of the grand-father of the appellant. She then proceeds
to state that during their second visit to Pune on the 11th or 12th of May 1982 she stayed 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 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 the appellant convinced her that there was nothing to worry about,
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and everything will be alright. The witness then narrated the fact 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 even to her husband (PW 2) as he does not say anything about this matter.
Further, her statement is frightfully vague. As already indicated that the letters (Ex. 30, 32, 33) clearly 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 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 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
miserable plight she told her about two important incidents which had greatly upset her-(1) that she happened
to come across a love letter written by PW 37, Ujwala Kothari to her husband which showed that the appellant
was carrying on illicit relations with PW 37, (2) that on one occasion the appellant told Manju that he was
tired of his life and did not want to live any more and, therefore-wanted to commit suicide. Despite Manju's
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 commit suicide. Thereafter, Sharad put forth a
proposal under which both of them were to commit suicide and they decided to write notes showing 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
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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.
The two statements said have been made by Manju to her mother appear to be contradictory and irreconcilable
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 had happened 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 note produced in the court. This appears to us to be a make-believe
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 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 reached 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 who agreed with her.
Apart from this grave incident, the witness deposed to another equally important matter, 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 give a party to his friends. As Shoba was not
present in the house, Manju's mother-in-law sent her alone, in
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a rickshaw to the hotel. On reaching the hotel she did not find any other person except 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 informed 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 her hands.
Subsequently the appellant went away and Ujvala told her that the appellant was a short-tempered man and
she should 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 between the husband and the wife. Finally, she was apprised of the fact by Ujvala that she and
Sharad were in love with each other. Manju is said to have retorted and protested to Ujvala by saying that she
was not prepared to take any lessons from her regarding her behaviour towards her husband as she (Manju)
was his wedded wife while Ujvala was only a friend. Manju also told her mother that 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 totally correct because if such a point of no
return had already been reached, there was absolutely no question of Birdichand and sending for the appellant
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 came 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 behavioral attitude of Manju depicted by the witness 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 indirectly in
any of the letters written by 134
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 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 relationship 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 Shobha 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 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 Birdichand that 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 her daughter to go to
Pune. Rameshwar (PW 2) should have told Birdichand point-blank that he would not send Manju in view of
the serious incidents that had happened, 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, 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 was not of such great consequence as to harden their attitude. This is yet another
intrinsic circumstance Manju to which negatives the story of suicidal pact and the invitation to 135
come to the Pearl Hotel and the manner in which she was insulted 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 anything of such great consequence which would have shocked the parents and led them to resist
her going to Pune at any cost. 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 April 1982 she stayed there for 8-10 days and during that period the witness noticed that she was
somewhat dissatisfied and complained that her husband used to return late at night. She also complained
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 and then to the fact that Birdichand 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 Birdichandi was also present, and told them that Manju 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 others than the parties concerned. Thereafter the witness proves the letters (Exhs. 30 and 32). She
stated one important statement to the effect that on some occasions Manju had a talk with her mother in her
presence. Although Manju had requested Anju not to disclose anything to her parents yet everything was
made known to them, During cross-examination the witness was asked-how as it that Manju was narrating
these talks when the witness had been asked not to disclose the
136
same to her parents, which she explained away by saying that she did not ask Manju 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 :
"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 and Manju complained that her husband was avoiding her to have a talk with her on one
excuse 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 lot 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 properly. She then deposed to an
incident which happened when on her way to Bombay when 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.
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
husband with Ujvala she says that the appellant lost his temper and thereupon she spoke the following words
to 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
137
tolerate this even though a blot may come to the family and that she had decided likewise. This statement
undoubtedly 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 as 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:
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
"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
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
fulfilled when on the morning of 12th June 1982 she was found dead.
The evidence of PW 4, Hiralal 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 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 thereafter 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
had been introduced in order to give a colour or orientation to the prosecution story.
Another fact to which this witness deposes in the narration by the appellant about his having sexual act with
his wife. We have
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 Mahajan, has also been examined to boost up 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 hands. 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.
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:
(1) There is absolutely 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,
(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 confined to ill-treatment, loneliness, neglect and anger of the
husband but no apprehension has been expressed in any of the letters that the deceased expected imminent
danger to her life from her husband. (5) In fact, in the letters she had asked her sister and friend not to disclose
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
her sad plight to her parents but
139
while narrating the facts to her parents she herself 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-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 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 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 instilled 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 : "Other psychologically oriented theories ave viewed suicide as a means of handling
aggressive impulses engendered by frustration."
Another inference that follows from the evidence of the witness discussed is that the constant fact of wailing
and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W.
Brown and Tirril Harris in their book "Social Origins of Depression" thus:- "1. Symptom data
Depressed mood
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1. Crying
2. feeling miserable/looking miserable, unable to smile or laugh
3. feelings of hopelessness about the future
4. suicidal thoughts
5. suicidal attempts
Fears/anxiety/worry
15. psychosomatic accompaniments
16. tenseness/anxiety
17. specific worry
18. panic attacks
Indian Kanoon - http://indiankanoon.org/doc/1505859/
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
19. phobias
Thinking
20. feelings of self-depreciation/nihilistic delusions
21. delusions or ideas of reference
22. delusions of persecution/jealousy
23. delusions of grandeur
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 existing in Manju both from her letters (Exhs. 30, 32
and 33) and from the evidence discussed.
We might hasten to observe here that in cases of women of a sensitive and sentimental nature it has usually
been observed 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 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 found her dreams shattered to pieces Manju tried first to do her best for a
compromise but the constant ill-treatment and callous attitude of her husband may have driven
her to take revenge by killing herself so that she brings ruination and destruction 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 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 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, 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 pretext for shedding of crocodile tears, cannot be believed,
4) that the story of suicidal pact and the allegation 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,
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 believable as it 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 such
extreme proportions that Manju refused to go to Pune with her father-in-law (Birdichand) at any cost and yet
she was driven by use of compulsion and persuasion to accompany him,
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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 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 holding that at least the possibility of suicide as alleged by the defence may be there and cannot 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
evidence.
We might mention here that we had to reappreciate the evidence 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 High Court completely overlocked. It seems to us that the High
Court while appreciating the evidence was greatly influenced by the fact that the evidence furnished by the
contents of the letters were not admissible in evidence which, as we have shown, is a wrong view of law,
We now come to the second limb- perhaps one of the most important limbs of the prosecution 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 considerable doubt on the evidence led by the prosecution on this point.
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 Manju at Takshila apartments, followed by the arrival
of
143
the appellant and his entry into his bedroom where 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.
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 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
computerise and 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) .
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
The evidence of PW 7, the motor rickshaw driver shows that on the night of the 11th of June he had brought
the deceased alongwith Anuradha and others and dropped them near the Takshila apartments at 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 persons, mentioned above, at about 11.00 p.m.
The 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 11.00 p.m.--it would have been 10-15 minutes this way or that way. His evidence is only material
to show the approximate time when Manju returned to the 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 children entered the
apartments and went to their rooms. He
144
further says that after about 15 minutes he saw the appellant coming on a scooter and while he was parking his
scooter the witness asked him why did he come so late to which he replied that he was busy in some meeting.
This would show that the appellant must have arrived at the apartments near about 11.30 or 11.45 p.m. It is
very difficult to fix the exact time because the 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 mathematical precision for that would be a most unrealistic approach. 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 determine the exact time as to when Manju
died because even Dr. Banerjee says in 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 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
witness had a watch which gave correct and exact time. Such an inference is not at all called for.
The third stage of this matter is that while 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 Court seems to suggest that this must have happened by about
1.30 p.m. Even so, this does not prove that Manju have died at midnight. As the witness had been sleeping
and was only aroused by the sound of scooters, it would be difficult to fix the exact time when he saw the
appellant and A-2 going out on their scooters. His evidence, therefore, was rightly relied upon by the High
Court in proving the facts stated by him.
PW-29, B.K. Kadu, who was 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 went out and returned after some time. While the witness was
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 witness 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.
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-1 had murdered the deceased. On the other hand, the circumstances proved by the three witness
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
are not inconsistent with the defence plea that soon after entering the room Manju may have committed
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 appellant's family and it
was quite natural to send for him when the appellant suspected that his wife was dead. Although Dr. Lodha
(PW 24) was a family doctor of the appellant's family yet he did not try to support the defence case and was
frank enough to tell the accused and those who were present there that it was not possible for him to ascertain
the cause of death which could only be done by a postmortem. In other words, he indirectly suggested 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 with the
allegation of the prosecution that the appellant had 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 distance when
Dr. Kelkar, who was a skin specialist and another Doctor who was a child expert, were living in the same
building. This comment is neither here nor there. It is manifest that Birdichand was a respectable person of the
town and when he found that his daughter-in-law had died he would naturally send for his family doctor rather
then those who were not known to him.
146
It appears that PW 30 Mohan Asava was also summoned on telephone and when he came at the scene of
occurrence he found A-2, Birdichand sitting 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 certificate.
In order to understand the evidence of this witness it may be necessary to determine 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 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 received a telephone call from Ram Vilas for
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, 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.
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 whose evidence appears at p. 521 of Part
II of the printed paperbook. These belated statements made 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 statement does not appear to be true is that the dominent fact
147
mentioned to him by Birdichahd and others was that the doctors 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 prestige 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 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 afterthought, as PW 40 stated thus:
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
"I recorded the statement of PW 30 Mohan Asava. He did not state before me that death of Manju was
suspicious. 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 examination-in-chief."
The portions referred to as 'A to F' in para No. 5 of examination-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 wanted to cremate Manju before 7.O' clock------when he said
that he would spend any amount but wanted to cremate her before 7.00 a.m."
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
persuade the doctors to give a death certificate, his attitude 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 laying all his cards on the
table knowing full well that the witness was not
148
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
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 have 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 full 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
language), it appears that the time of death given by the witness is 'Pahate' which, according to Molesworth's
Marathi-English Dictionary at p. 497, means 'The period of six ghatika before unrise, the dawn' i. e., about 2
hours 24 minutes before sunrise (one ghatika is equal to 24 minutes). This would take us to near about 3.00
a.m. Either there is some confusion in the translation of the 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 of 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. We are
not concerned 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 Court seems to have made a capital out of this small incident and has not made a
realistic approach to the problem faced by Birdichand and his family. Being a respectable man of the town,
Birdichand did not want to act in a hurry lest his reputation may suffer and naturally required some time to
reflect and consult his friends before taking any action. The allegation that A-3 told him to report the time of
death as 5.30 a.m. is not at all proved but is based on the
149
statement of PW 30, before the police. Thus, the approach made 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
deceased as 5.30 a.m. could never have been given by the appellant or any other accused because they knew
full well that the two doctors had examined the whole matter and given the time of death as being round about
1.30 a.m. Having known all these facts how could anyone ask PW 30 to give the time of death at the police
station as 5.30 a.m.
Thus, it will 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, therefore, his evidence does
not inspire any confidence.
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 1982. Apart from the
inherent improbability in the statement 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 sexual intercourse might have taken just prior to death
?"
The above query was made in Ex. 129 and the answer of the Doctor appears in Ex. 187 which is extracted
below: "From clinical examination there was no positive evidence of having any recent sexual, intercourse
just prior to death."
This positive finding of the Doctor therefore knocks the bottom 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 benefit 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 Eight 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
to be well-nigh impossible to believe that he would try to have sexual intercourse with her. This circumstance,
therefore, falsifies the evidence 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 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.
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: (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 postmortem 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 of the inmates of the house had come only a short-while before the
appellant.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
(2) Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju 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 would have 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
arrival of the appellant and then he must have tried to
151
forcibly administer the poison by the process of mechanical suffocation, in which case alone the deceased
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 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: "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 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.
Thus we have 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, therefore, those 7 findings would not constitute
conclusive date for the purpose of holding 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 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 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.
152
This being the position, the possibility of mechanical suffocation is completely excluded.
(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 postmortem 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 hostility after entering the flat she herself took potassium
cyanide and lay limp and lifeless. When the appellant 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 after an hour
so, his suspicion was roused and therefore 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,
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
as alleged by 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 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 relating to interpolations in the postmortem report has been
completely 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 interpolations in the postmortem report as also the report sent to the
Chemical Examiner, we are impressed only with two infirmities which merit
153
serious consideration. To begin with, it has been pointed out that in the original postmortem 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 had been scored out by him. In other words,
the Doctor clearly admitted 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
postmortem 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:
"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 examination."
The last line indicates that the Doctor was to note two things-(1) the date of death, if known, and (2) the
supposed 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 dealt' which were repeated as he 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 glass and find that the scored words could
not have been `time since death'. The only word common between the line scored out and the line left 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 postmortem 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 possible
circumstance to make the defence highly probable, if not certain. Furthermore, the Doctors's explanation that
the scored words were "time since death", according to the said explanation, the scored words ore only three
whereas
154
the portion scored out contains as many as seven words. Hence the explanation of the Doctor is not borne out
from the document.
It is true that the Doctor reserved his opinion until the chemical examiner's report but that does not answer the
question because in column No.5 of postmortem note Dr. Banerjee has clearly written "can be a case of
suicidal death" which indicates a that in the absence of the report of the chemical examiner, he was of the
opinion that it could have been a case of suicide. In his evidence, PW 33 stated that in Exh. 128 in column No.
5 the contents scored out read `time since death' and since it was repeated in the next line, he scored the words
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 of vital importance and we expected the High Court to have
given serious attention to this aspect which goes in favour of the accused.
Another interpolation pointed out by the learned counsel is regarding position of tongue as mentioned in Exh.
134. In the original while filling up the said column the Doctor 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 (Exh. 132) he has added
`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 said
column where the filled up entry reads `Inside mouth'.
The 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 cloud of doubt on the correctness or otherwise 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
circumstance is not of much consequence because the opinion of the Doctor that Manju died by forcible
administration of potassium cyanide or by the process of mechanical suffocation has not been proved. 155
This aspect need not detain us any further because the High Court has not accepted the case of mechanical
suffocation. 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. In para 90 of its judgment the
High Court has 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 11.30 p.m. and 1.
a.m. in the night between 11/12th 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.
(3) Accused No, 1 did not return to the flat at 1.30 a.m or 1.45 a.m. as alleged.
(4) The conduct of accused No. 1 in not calling for the immediate help of Dr. Shrikant Kelkar and/or Mrs.
Anjali Kelkar is inconsistent with his defence that he felt suspicious of the health of Manju when he allegedly
returned to the flat at 1.30 a.m.
(5) In different conduct of accused No. 1 when Dr. Lodha and Dr. Gandhi went to the flat in Takshila
apartment, Accused No. 1 did not show any anxiety which one 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 Manju in a suspicious condition when he returned at
about 1.30 a.m. Or so.
(6) An attempt of Birdichand to get the cremation of Manju done before 7 a. m. On 12. 6 82 even by spending
any amount for that purpose. This conduct though
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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
Mohan as per the phone instructions of accused No. 3 it is, 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 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 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 if she had committed suicide.
(14) Potassium cyanide must not have been available to Manju.
(15) Manju was 4 to 6 weeks pregnant. This is a circumstance which would normally dissuade her from
committing 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 the relevant time. (PP. 152-155) 157
We have already discussed most of the circumstances extracted 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 send for their
own family doctor who was fully 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 11/2 Km. to get
Dr. Lodha. Secondly, Dr. Shrikant Kelkar was skin specialist whereas Dr. (Mrs) Anjali Kelkar was a
Paediatrician and the appellant may have genuinely believed that as they 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.
Circumstance No. 5 is purely conjectural because as soon as Dr. Lodha came he examined Manju and advised
that Dr. Gandhi 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. As regards circumstance No. 7, the High Court has presumed that there being no dependable
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
evidence that the information given to the police by PW 30 was false and that the appellant 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 dealing with the evidence of PW 30.
Circumstance No. 8 is that PW 30 was asked to report the matter to the police. When the dead body was lying
in the flat what action could the appellant have taken except reporting the matter to the police through one of
his known persons. So far as
circumstances Nos. 9 and 10 are concerned, they do not appear to us 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. Circumstances Nos. 11 and 12
are also of no assistance to the prosecution because whether the anklet was in the chaddar or elsewhere is
wholly 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 different ways. When Manju entered
her bedroom her husband had not come and since she went to sleep she may not have bolted the door from
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." Dr. Modi's Medical Jurisprudence and Texicology (19th Edn.) at page 747
shows that `Cyanide is also used for making basic chemicals 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 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 and can easily be washed
out. Moreover, when a person has decided to end one's life these are matters which do not count at all. On the
other hand, this circumstance may have prompted her to commit suicide for a child was born to her, in view of
her ill-treatment 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 of surmises and conjectures as the High Court has done. 159
Circumstance No. 17 is wholly irrelevant because the prosecution cannot derive any strength from a false plea
unless it has proved its case with absolute certainty. Circumstance No.17 also is not relevant because there is
no question of taking a false plea of absence from the bedroom at the relevant time as there is no clear
evidence on this point.
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. 4,5,6,8,9,11,12,13,16, 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 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 Pradesh(1) this Court held that any circumstance in respect of which an
accused was not examined under s. 342 of the Criminal procedure code cannot be used against him 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 cannot be used against him. In Shamu Balu Chaugule v. State of
Maharashtra(2) this Court held thus:
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
"The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal
Procedure Code, could not be used against him."
To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat (3) where the
following observation were made:
"In the first place, he stated that on the personal search of the 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
160
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 not put to the appellant in his
examination under s.313 of the Criminal Procedure Code have to be completely excluded from consideration.
We might mention here an important argument advance by counsel for the appellant and countered by the
Additional Solicitor General. It was argued before the High Court that it was highly improbable that if the
betrothal ceremony of appellant's sister, which was as important as the marriage itself, was going to be
performed on the 13th of June, would the appellant clouse a day before that for murdering his wife and
thereby bring disgrace and destruction not only to his family but also to her sister. We have already adverted
to this aspect of the matter but it is rather interesting to note how the High Court has tried to rebut this
inherent improbability, 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 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 the same room for the last four months there could be no dearth of any opportunity on the part
of the appellant to administer poison if he really 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 even at that time he
could have murdered her and allowed the case to pass for a natural death. However, these are matters of
conjectures. The Additional Solicitor-General realising the hollowness of the High Court's argument put it in a
different way. He submitted that as the deceased was 4-6 weeks pregnant the appellant realised
161
that unless the deceased was murdered at the behest it would become very difficult for him to murder her,
even if he had got an 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 being 4-6 weeks pregnant before her death, the
appellant could just as 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.176) 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 attend the
function and a dinner is hosted. We might extract what PW 2 says about this:
"At the time of Kohl celebration of Manju, on 2.8.1981 my relatives i.e. my sister from outside had attended
this function and many people were invited for this function. A dinner was also hosted by me. In that function
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 donned at the expenses of the side of bridegroom This programme is not attended by
the bridegroom." (P.176)
As Birdichand and others were made co-accused in the case they were unable to give evidence on this point
but it is the admitted 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 murder 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 impediment which would deny him any opportunity of
murdering his wife.
We now come to the nature and character of the circumstantial 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 less axiomatic. 162
The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the
present case which, as we shall show, are clearly distinguishable. The High Court was 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 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 is not what this Court has said. We shall elaborate
this aspect of the matter a little later
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 law and no decision has taken a contrary view. What some cases
have held is only this: where various links in a chain are in themselves complete than 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 links in the chain are complete and do not suffer from any infirmity. It is not
the law that where 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.
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 circumstantial evidence alone. The
most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case
has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for
instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of
Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra): "It is
well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the
first instance be fully established and all the facts so established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with
the innocence of the accused and it must be such as to show that within all human probability the act must
have been done by the accused."
A close analysis of this decision would show that the following 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 to be drawn should be fully established. It may be noted here that this Court indicated that the
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in
Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"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
say. they should not be explainable on any other hypothesis except that the accused is guilty,
(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
164
(5) there must be a chain of evidence so complete as not to leave any 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.
These five golden principles, if we may say so, constitute the panchsheel 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 law as to proof of the same was laid down by
Gresson, J. (and concurred by 3 more Judges) in The King v. Horry,(l) 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 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 modified the expression, morally certain
by 'such circumstances as render the commission of the crime certain'.
This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when
there is certain and 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 cases Tufail's case
(supra), Ramgopals case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No.
120 of 1957 decided on 19.2.58), Dharmbir 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 although Hanumant's case has not
165
been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v.
Delhi Administration(l). Mohan Lal 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.
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 Deonandan Mishra v. The State of Bihar(5), to supplement this argument
that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
due respect to the learned Additional Solicitor General we are 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 and the circumstances point to the
appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards
time and situation-such absence of explanation of false explanation would itself be an additional link which
completes the chain."
It will be seen that this Court while taking into account the 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: (1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation.
166
If these conditions are fulfilled only then a court can use 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 circumstances 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:
"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."
This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra).
Unfortunately, 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 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 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 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:
"If the circumstances proved in the case are consistent either with the innocence of the accused or with his
guilt, then the accused is entitled to the benefit of doubt."
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 that where on the evidence two possibilities are available or open,
167
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
one which goes in favour of the prosecution and the other which benefits an accused, the accused is
undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) 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
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 circumstantial
evidence."
We now come to the mode and manner of proof of cases of murder by administration of poison. In
Ramgopal's case (supra) this Court held thus:
"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), had the accused an opportunity to
administer the poison in question to the deceased ? It is only when the 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 carefully
scan the evidence and determine the four important circumstances which alone can justify a conviction:
(1) there is a clear motive for an accused to administer poison to the deceased,
(2) that the deceased died of poison said to have been administered,
(3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to
the deceased.
In the instant case, while two ingredients 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 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 procured potassium cyanide from any available source. We
might here extract a most unintelligible and extra-ordinary finding of the High Court- "It is true that there is
no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused
had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence 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)
The comment by the High Court appears to be frightfully vague and absolutely unintelligible. While holding
in 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 indirect (circumstantial)
evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant
was in possession of poison. If the court seems to suggest that merely because the appellant had the
opportunity to administer poison and the same was found in the body of 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 indicated 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 the High
Court has completely misread and misconstru- 169
ed the decision in Ramgopal's case. Even prior to Ramgopol's case there are two decisions of this Court which
have taken the same view. In Chandrakant Nyalchand Seth's case (Criminal Appeal No. 120 of 1957 decided
on 19.2.58) this Court observed thus:
"Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the
deceased 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." 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:
"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
opportunity to administer the same to the deceased: (see Mt. Gujrani and another v. Emperor('). 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 circumstantial evidence, that the poison was administered by the accused to the deceased resulting in
his death.
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 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
be said in these circumstances when the proof of a very vital fact namely, that the accused was in possession
of potassium cyanide, has failed that the chain of circumstantial evidence, is so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of the accused and that the evidence
which remains 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."
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
(2) that it may be a case of murder
and both are equally probable, hence the prosecution case stands disproved.
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(').
This case appears to be clearly distinguishable because no point of law was involved therein and on the facts
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
proved and the very extraordinary conduct of the accused, the court held that the circumstantial evidence was
consistent only with the guilt of the accused and inconsistent with any other rational explanation. 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. 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 facts 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 administration of poison and that the accused was
the person who admini
171
stered the same. This. however, is not the case here. On the other 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 clearly of the view that the High Court had fully considered the facts and a multitude of
circumstances against the accused remained unexplained, 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 in common
between the peculiar facts of that case and the present one. Hence, this authority is also of no assistance to the
prosecution.
Reliance was then placed on the case of Ram Dass v. State of Maharashtra(l) 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 careful perusal of that decision shows that this
Court did not accept the prosecution case despite circumstances appearing in that case which are almost
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 above, it was clearly held that
the case against the accused was not proved conclusively and unerringly and that two reasonable views were
possible, the relevant portion of which may be extracted thus: "On a consideration of the evidence and the
circumstances 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."
172
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 favour of the accused and the other against him-were possible. Ram Dass's case also
therefore supports the appellant rather than the prosecution. 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 prosecution. The observations on
which the High Court has relied upon appears to have been torn from the context. On the other hand, this
decision fully supports the case of the appellant that 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 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.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 factual position may
be summarised thus:
(1) That the five golden principles enunciated by this 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 that in all
human probability, the accused had committed the murder of Manju. In other words, the prosecution has not
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
accused and the other leading to his innocence. It
173
may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at
the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated.
Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his 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 (either by direct of
circumstantial evidence) and on this ground alone the prosecution 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 error of law:
(5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on
closer examination, do not support the view of the High Court being clearly distinguishable. (6) 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 of law.
(7) That the High Court has not only misappreciated the evidence but has completely overlooked the well
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 tenterhooks 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
174
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 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 accused
but they had to be acquitted by the High Court for lack of legal evidence.
(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.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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. But where the High Court
ignores or overlocks the crying circumstances 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 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.
We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie
shock the conscience of any Court yet suspicion, however great it may be, cannot take the place of legal proof.
A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
175
It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof'.
In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a
very careful, cautious and meticulous approach was necessary to be made.
Manju (from the evidence on the record) appears to be not only a highly sensitive woman who expected
whole-hearted love and affection from her husband but having been thoroughly disappointed out 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 a was so busy that he found no time for her. A hard fact of life,
which cannot be denied, is that some people in view of their occupation or profession fined very little time to
devote to their family. Speaking in a light vein, lawyers, professors, Doctors and perhaps Judges fall within
this category and to them Manju's case should be an eye- opener.
For the reasons given above we hold that the prosecution 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.
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, Pune in Sessions Case No. 203 of
1982. The appellant, Rameshwar Birdhichand Sarda and Ramvilas Rambagas Sarda were accused 1, 2 and 3
respectively in the Sessions Case. The appellant and the second accused are the sons of one Birdhichand of
Pune whose family has a cloth business. In addition
176
the appellant who is said to be a graduate in Chemical Engineering had 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 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 a building known as
Takshasheela Apartments in Mukund Nagar area of Pune.
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 Tax 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 he was living in a rented house in Karimpura Peth in that city. Meena (P.W.5) 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.5 who had passed the 10th standard examination together with Manju was still studying in college.
Rekha (P.W.3) 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
manufacture of 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 marriage with the appellant was settled by a
formal betrothal ceremony which took place in June 1981. The marriage of the appellant and Manju was
performed at the expense of P.W.2 at Beed on 11.2.1982. The appellant and Manju left for Pune on 12.2.1982
after the marriage. Subsequently, P.W.2 sent his elder son Deepak for fetching Manju from the appellant's
house at Pune and they accordingly 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 very happy during that visit. Thereafter Manju came to her parents' house alongwith her
maternal uncle Dhanraj Rathi (P.W.22) on or about 177
2.4.1982. It is the case of the prosecution that during that visit 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 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' house 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 Birdhichand on that occasion. It is the case of the prosecution that
P.Ws. 2 and 20 found Manju disturbed and uneasy 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 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 learning 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 daughter Kavita on 25.5.1982. This was Manju's third and last visit to
her parents' 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 intimation for taking Manju to Pune on the ground that Manju'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 fixed for 30.6.1982. It is the case of the prosecution that when Manju came to know that her
father in-law Birdhichand had come for taking her to Pune she was wept and expressed her 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 alongwith Kavita and Birdhichand. 178
The family of Birdhichand and his sons including the appellant 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
other portions. Birdhichand's two married sons, the appellant and the second accused used to go to the family's
flat in the Takshasheela Apartments for sleeping during the nights. The appellant and Manju used to sleep in
one of the two bed-rooms while the second accused and his wife Anuradha (P.W.35) and their children used
to sleep in the other bed-room.
Manju had written amongst others, three letters, Ex.33 dated 25.4.1982 to her friend vahini (P.W.3) and Ex. p.
30 dated 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 alia that she was feeling lonely though all persons in pune 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 mind every time leads to confusion. She has also stated in that
letter though all person 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 stated in that letter that she dare not ask him (appellant) whether his clothes be taken for
washing and that at present her status is only that of an unpaid maid-servant. She has finally stated in that
letter that on the day on which self-pride in the appellant is reduced no other person will be more fortunate
than her but it is not certain whether she will be alive until that date. In Ex. 30 she has stated inter 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 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 occurrence during the night of 11/12.6.1982 is thus: on 116-
1982 at about 10.30 p.m. Manju accompanied by Anuradha, (P.W. 35) and
three children of the latter came to the Taksheela Apartments by an auto-rickshaw. The night-watchman of the
Takshasheela Apartments, kerba (P.W. 28) has deposed about this fact. Syed Mohideen, (P.W. 7) an
auto-rickshaw driver residing in the border of Ganesh Peth and Ravivar Peth in Pune claims to have taken two
ladies, three children and a baby by his auto-rickshaw at 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 the flat about 15 minutes later by a scooter, whom the night
watchman (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
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 away from the Takshasheela Apartments
without seeking the help of Dr. Anjali Kelkar,(P.W. 26) and her husband 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 rigor motis having already set in and no external mark showing the cause of
death. He, however, opined that it may be a case of unnatural death and 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 suggested that Dr. Anil Gandhi, P.W 25 may be called if
so desired. Thereafter, P.W. 24 and the third concerned who had come with Birdhichand went to call P.W. 25
who lives about 7 kilo metres away from the Takshasheela Apartments. On their way they contacted 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
external evidence showing the cause of death. He too suggested that the police should be informed to avoid
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
any trouble.
180
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. 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 a up at 5.30 a.m- on 12.6.1982. P.W. 31
proceeded to the appellant'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 telephone call at about 6 a.m. on 12.6.1982 that Manju
was extremely serious P.W. 2 went from Beed to Pune alongwith his wife P.W. 20 and his son Pradeep and
Hiralal Sarda (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.
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 reserved his opinion about the
cause of her death. On receipt of the Chemical Examiner's report Ex. 130 to the effect that Manju's viscera
contained potassium cyanide poison P.W. 33 finally opined that 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 Judge, Pune tried the appellant for offence under Sec. 302 IPC of murder of Manju
by administering potassium cyanide poison or by suffocating her or by both, all the three accused for the
offence under Sec. 120 B IPC of conspiring to destroy the evidence of the murder of Manju by giving a false
report to the police about the time of her 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 police and giving false
information to P.W. 22 regarding the murder of Manju.
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 accompanied by some children went to their flat in the Takshasheela
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 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 Manju
and found something abnormal and became suspicious and then went to the second accused and that there
after 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 imprisonment for two years and a
fine of Rs. 2,000 each under s.120 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 and 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.
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
182
circumstance that the appellant was last seen with Manju before 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 suffocation of Manju
has been disbelieved by the High Court itself and that some entries in the carbon copy Ex. 134 of P.W. 33's
report sent to the Chemical Examiner had been scored and interpolated after his report Ex. 132 to the
Chemical Examiner had left his hands, that the original entry in the postmortem 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 off one of them is not
acceptable at all. Doctors P.W.24 and 25 did not find any external injury on the body of Manju 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. In these circumstances, unless the prosecution excludes the possibility of Manju having
committed suicide by consuming potassium cyanide poison, as rightly pointed out by my learned brother
Fazal Ali, J., (no adverse inference 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 imagination, be held to point to the quilt of
the appellant. Circumstance No. 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 leg. Circumstance No. 12 is the conduct of the
appellant in allegedly concealing the anklet in the fold of the chaddar. Circumstance No. 15 is the fact that
according 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 purely on circumstantial 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, namely, (1) ill-treatment of Manju by the appellant, (2) intimacy of
183
the appellant with Ujvala (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 alleged complaints made by Manju against the appellant 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.
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 possibility of Manju having been ill-treated and
uncared for by her husband and her in-laws, being a highly sensitive and impressionate woman, she
committed suicide out of sheer depression and frustration arising from an emotional upsurge." (P-3)
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
"On the other hand this circumstance may have prompted her to commit suicide, for if a child was born to her,
in view of her ill-treatment by her husband and her in laws the child may not get proper upbringing". (P.96)
I do not recollect any admission by Mr. Ram Jethmalani, learned counsel for the appellant in the course of his
arguments about any cruelty or ill-treatment to Manju the 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 in the night and avoiding to have a
talk with her and that Manju told her that she was afraid of the appellant and apprehended danger to her life at
his hands. The further evidence of the P.W.5 is that during her third visit to Beed she inferred from Manju's
face a spell of fear. The evidence of P.W.6 is that during Manju's second visit to Beed, Manju told her that the
appellant used to leave the house 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 extremely 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 to have a simple talk with her, and that
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.W s. 2 and 20 about how
Manju looked in spirit and what she stated during her last two visits. My learned brother Fazal Ali, J. has
rightly rejected the oral evidence of P.Ws. 2, 3, 5, 6 and 20. He has extracted 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
conspicuously noticed in Ex. 30 is that Manju was prepared to take all the blame on herself rather than
incriminating her husband or his rents at page 24 that it was conceded by the learned Additional Solicitor
General that the relevant portion of Ex.32 does not refer to any ill treatment of Manju by the appellant or his
parents; and at page 30 that it can be easily inferred from Ex. 33 that Manju did not have any serious
complaint against 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 by the appellant or his
parents. In my view, these three letters and the aforesaid oral evidence of P.Ws. 2, 3 5 6 and 20 are
inadmissible in evidence under s. 32(1) of the Evidence Act for reasons to be given elsewhere in my
judgment. Thus there is no acceptable evidence on record to show that either the appellant or his parents
ill-treat Manju. 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 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.313 Cr.P.C. that Manju was being treated
contemptuously. No question has been put to the appellant in the course of his examination under s.313
Cr.P.C. about any ill treatment of Manju by the appellant or his parents. My learned brother Fazal Ali, J. has
referred in pages 97 and 98 of his judgment to this Court's decisions in Fateh Singh Bhagat Singh v. State of
Madhya Pradesh, Shamu Babu Chaugale v. State of Mahararstra and Harijan Megha Jesha v. State of
Gujarat(3) and has observed at page 98 of his judgment that circumstance not put to the appellant in his
examination under s. 313 Cr.PC. have to be completely excluded from consideration in view of those
decisions. Therefore, since 185
no question has been put to the appellant in this regard in the course 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
completely 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.
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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
appellant was not at all interested in Manju and had illicit intimacy with P.W.37. On this point there is the
evidence of P.Ws. 3, 5 and 6. The evidence of P.W.3 is that during her second visit to Beed, Manju informed
her that the appellant had a girl-friend by name Ujwala Kothari and that he introduced 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.5. is that during her second visit to Beed, Manju told her that the appellant had an affair with
a girl by name Ujvala Kothari and that she had seen Ujvala's latter addressed 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 with
a girl by name 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 P.W.37. This alleged illicit intimacy is totally denied not only by the appellant 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 it has been proved to some
extent that the appellant had some sort of intimacy with Ujvala Kothari and it had embittered the relationship
between the appellant and Manju. In my view, as already stated, 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
family, and even her letters Exs. 30, 32 and 33 are inadmissible in evidence 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 some sort of intimacy with P.W.37 and it
had embittered the relationship 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 year 1979 when she was a member of that Club for about 5 or 6 months in 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 Manju letters, Exs. 30, 32
and
33. I have mentioned above the gist of that oral evidence and those three letters. My learned brother has held
the said oral evidence and those three latters to be. admissible under s.32(1) of the Evidence Act while
rejecting the oral evidence to those five witnesses as untrustworthy at pages 64 and 65 of his 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 version that it may be a case of suicidal
death. In my opinion the oral evidence of those 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
who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of
delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
187
of the transaction which resulted in his death, in cases in which the cause of that person's death comes into
question".
The alleged oral statements of Manju to P,Ws. 2, 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 before her death during
the night of 11/12.6.1982. She had written the letters, 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 circumstances of the transaction which resulted in her death during that night. The
position of law relating to the admissibility 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 Dhirajlal in 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, fourteenth edition. Page- 937
'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 the testimony, it is admitted even
though it comes from a second-hand source".
Page-941
"What is relevant and admissible under clause (1) of this section (Section-32) is the statements actually made
by the deceased as to the cause of his death or of the circumstances of the 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
such independent transactions being excluded as not falling 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 resulted in his death. (AIR 1964 SC 900). Where there is nothing to show that the injury
to which a statement 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 admissible under this
clause". (AIR 25 Bombay 45). Page-947
"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 as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his
death' do not mean 'caused his death'. The expression '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
actually have been apprehending death." (AIR 1964 M.P. 30).
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
Page-947
"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 decision of their Lordships of the Privy Council in Pukala Narayanaswanmi v. Emperor (LR
66 IA 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 clear
that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not
confined to either the time actually occupied by the transaction resulting in death or the sense in which the
actual transaction resulting in death took place. 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 distance factor is, for example, a case of decoying with intent to murder. But the
circumstances must be circumstances of the transaction and they must have some proximate relation to the
actual occurrence."
Page-948
"Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the
analogous use in 'circumstantial 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 from the date of actual fatal dose".
Page-948
"The Supreme Court in the case of Shiv Kumar v. State of U.P. (1966 Criminal Appeal R. (SC) 281) has made
similar observations that the circumstances must have some 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
"The clause does not permit the reception in evidence of all such statement 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 such statements as relate to matters so closely 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 IA 66).
'Circumstances of the transaction which resulted in his death' means only such facts or series or facts which
have a direct or organic relation to death. Hence statement made by the deceased long before the incident of
murder is not admissible". (1974 CLJ (MP) 1200).
Law of Evidence by Ratanlal & Dhirajlal (1982 Reprint) 190
Page 94
"Circumstances of the transaction; General expressions 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).
Page 95
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
"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 declarant's death comes into question. It is not necessary that 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 acts done when and where the death was caused. -Dying declarations are admissible under this
clause".
The alleged oral statements of Manju and what she has stated in her letters, Exs 30, 32 and 33 may relate to
matters perhaps having 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 poison, though, 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 occasion of her
death. It is not the case of the prosecution that the present case is one of prolonged poisoning. Since it is stated
by the learned authors woodroffe and Amir Ali in their tratise at page 947 that the decision of their Lordships
of the Privy Council in Pakala Narayanaswami v. Emperor (1) sets the limit of the matters that could
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 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 has
191
taken place, that the person making it must be at any rate near death, that the "circumstances" can only include
the acts done when and 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 transaction: general expression indicating fear of suspicion whether of a particular
individual or otherwise and not directly related to the occasion of the death will not be admissible. But
statements made by the deceased that he was proceeding to the spot where he was in fact 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 was not the person accused. Such a statement might indeed be exculapatory of the
person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is
not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It
is on the other hand narrower than "re gestae" Circumstances most 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
considerable distance from the date of the actual fatal dose."
I am, therefore of the opinion that the oral evidence of these 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 the has stated in her
letters, Exs. 30 32 and 33, are inadmissible 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 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 the letters, Exs 30, 32 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 of P.Ws.
2, 3, 5, 6 and 20 would equally apply to the letters, Exs. 30, 32 and 33 and that they too would be inadmissible
192
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
in evidence. The Additional Solicitor General who had strongly 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 on 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 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 learned brother Fazal Ali,
J. has said in his judgment is this:
"In column 5 of postmortem 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 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 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 Doctor 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 'said column where the filled 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
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".
I entirely agree with these findings of my learned brother Fazal Ali, J. But I am unable to share his view that
these "circumstances 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 accepted the case of mechanical suffocation" and
that though a number of comments were made on behalf of the appellant about Dr. Banerji's integrity and
incorrect report he does not find any substance in those contentions subject 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 also a case of mechanical suffocation is not one that could be taken into consideration 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 teeth' and 'caught between the teeth' only after receipt of the
Chemical Examiner's report to support the view that it was also a case of mechanial suffocation, is not a
mitigating circumstance in favour of P: W. 33 The Doctor had scored out the words 'can be a case of suicidal
death' and has persisted in his reply that he had scored out only the words 'time since the death' which he
claims to have written twice, which explanation has been rightly rejected by my learned brother Fazal Ali. J.
The conduct of the Doctor in making these later inter polations and alterations in the records of the
postmortem 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 has tampered with material evidence in the
case of alleged murder, may be at the instance of somebody else, ignoring the probable consequences of his
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 conducting autopsy in the public interest. In this case
the appellant would have gone to gallows on the basis of the evidence of P.W.33 as he would have the
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 the evidence and has thus committed a gross error of law.
I feel that something has to be stated in the judgment in this case about the way the Investigating officer and
the learned Additional Sessions Judge, Pune who had tried the case had gone about a their business. Charge
No. 3 is against the third accused for instigating 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 instructions from the third accused at 6.30
a.m. though he had himself seen the dead body of Manju earlier in the appellant's flat 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 later at about 5 or 5.15 a. m. after telling Dr. Lodha (P.W. 34) that
he was going to report to the police. Thus, it would appear that the case of the prosecution itself is that P.W.
30 is the principal offender as regards giving false information to the police about the death of Manju. Yet the
Investigating officer had not filed any charge-sheet against P.W. 30 but has conveniently treated him as a
prosecution witness. The Additional Sessions Judge, Pune appears to have exercised no control 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 relates to a reception held at Pune on 13.2.1982 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, and being known as a
contact-man of the police. S. 313 Cr. P. C. 195
lays down that in every inquiry or trial for the purpose of enabling 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 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 being
tendered in his court and to know the scope of the examination of the accused under s. 313 Cr. P. C. In the
end, as I said earlier, I agree with my learned brother Fazal Ali, J. that the appeal has 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.
SABYASACHI MUKHARJI, J. I have the advantage of having read the judgments prepared 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 of the charges framed against him and he should be released forth with. I do so with some hesitation
and good deal of anxiety, because that would be interfering with the concurrent findings by two courts below
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
on a pure appreciation of facts. The facts and circumstances have been exhaustively and very minutely
detailed in the 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 observations.
It is a case of circumstantial evidence. It is also undisputed that the deceased died of potassium cyanide on the
night of 11th 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 husband. There is no direct
196
evidence of administering poison. There is no evidence either way 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 circumstances, have come to the conclusion that the guilt of the
accused has not proved beyond all reasonable doubt.
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., he 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 alleged complaints made by Manju against
the appellant 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.
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 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 brother Fazal Ali, J. has
observed about section 32(1) as follows:- "The test of proximity cannot be too literally construed 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 circumstances 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 each step directly connected with the end of the drama
197
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 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 statement may be
admissible under s.32." (Emphasis by me). I would, however, like to state here that this approach should be
taken with great deal of caution and care and though I respectfully agree with Fazal Ali, 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 emphasised 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
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
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 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.
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 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:
198
(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 of Ex. 32 which is letter dated 8th June, 1982
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 take the view that the correct and the more
expressive expression would be "I 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. 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 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.
S.R. Appeal allowed.
199
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