Settlement deed executed before police under presure can not be used as admitted fact u/s.58 of Evidence Act

It is not the job of the police authorities to get the matter settled in their offices

    As it is undisputed fact that entire case of the plaintiff for advancing money to defendant was based upon Paper No. 13 Ka-1 executed before S.P. City, Aligarh, no other document was filed, nor the case was proved through oral testimony in regard to advancing of money to defendant. The oral testimony of PW-2 and PW-3 only prove the execution of Paper No. 13 Ka-1 before police authorities, apart from that plaintiff failed to disclose in his plaint the dates on which advance to the tune of Rs.14 lacs was made by him and also as to when Rs.2 lacs was returned by defendant. Plaintiff also did not bring on record his income tax return for the relevant years to prove whether he had disclosed the amount in his return.[Para No.27]

    Argument of learned counsel for the appellant cannot be accepted to the extent that Paper No. 13 Ka was proved by oral testimony of PWs and DWs and lower appellate court could not have decreed the suit against plaintiff on the ground that it was got executed under pressure.[Para No.28]

    It is plaintiff's specific case that Paper No. 13 Ka-1 was got executed before S.P. City, Aligarh on 25.05.2009. Plaintiff himself is a practicing lawyer at Aligarh and the two witnesses, Vinod Kumar Gautam (P.W.-2) and Arun Kumar Gautam (P.W.-3) are also practicing advocates in civil court in Aligarh, thus, it is an admitted case that document was executed before the police authorities, and neither of the police officers were examined as plaintiff witnesses to prove the execution of the said document. Burden of proving the document having been executed in the office of S.P. City, Aligarh was upon the plaintiff, as the defendant had categorically stated in his written statement as well as in cross-examination that the said document was got executed under duress and pressure.[Para No.29]

    It is strange to note that police station and office of district police officials are becoming center for mediation/ settlement of civil and commercial disputes. It is not the job of the police authorities to get the matter settled in their offices rather, making genuine efforts to curb and control crime in the district.[Para No.30]

    Once the plaintiff had relied upon the document to have been executed before police authorities, onus was upon him to prove that it was executed under free will, and the officer before whom the same was executed should have been produced as one of the witnesses.[Para No.31]

Absence of proof of motive creates a doubt regarding the mens rea entitling the accused for an acquittal

Mens rea of the accused has much relevance in a case when the benefit under Section 84 IPC has been pleaded by an accused. So when the prosecution in this case failed to prove any motive behind the incident it would also raise a reasonable doubt of mens rea in doing the act. So as per the proposition of law laid down above, it would be a fact which creates a reasonable doubt entitling the accused to get the benefit of the exception.

In other words absence of proof of motive from the side of the prosecution creates a doubt in the mind of the court regarding the mens rea entitling the accused for an acquittal.[Para No.44]

    Though the contention of the learned counsel for the accused that medical evidence adduced from the side of the prosecution would not prove the unsoundness of mind at the time of the commission of the offence even if accepted the attending circumstances brought out during the oral evidence of the witnesses coupled with the medical evidence would create a reasonable suspicion about the soundness of the mind of the accused at the time of commission of the act. That also would enable the accused for benefit of doubt entitling for an acquittal on the ground that the general burden of proof resting on the prosecution is not discharged.[Para No.45]

...............

The proof of demand is an indispensable essentiality to prove the offence under The Prevention of Corruption Act

In the light of the serious discrepancies in the evidence of the prosecution, the accused is entitled for benefit of doubt. The demand of bribe is not established by clinching evidence. Acceptance of bribe suffers from serious doubt. In Sujit Biswas Vs. State of Assam, it was held that Suspicion, however grave it may be, cannot take the place of proof and the prosecution cannot aford to rests its case in the realm "may be" true but has to upgrade it in the domain of "may be", in order to steer clear of any possible surmise or conjuncture. Court must ensure that miscarriage of justice are avoided and if in the facts and circumstances, two views are possible then, the benefit of doubt must be given to the accused. Applying the legal principle as above, the material on record, leave note manner of doubt that the prosecution in the present case, has failed to prove unequivocally the demand of illegal gratification and even its acceptance. In the case of P.Satyanarayna Murthy Vs. District Inspector of Police, State of Andhra Pradesh & Anr. It was held that the proof of demand of illegal gratification is gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of the P.C. Act and in the absence thereof mistakenly the charge therefore, would fail. Mere acceptance of any amount by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to prove home the charge under these sections of the Act.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. In the case of B. Jayaraj v. State of Andhra Pradesh. It was held that the presumption under Section 20 of the P.C. Act can be drawn on proof of acceptance of illegal gratification was received for doing or forbearing to do any oficial act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. In catena of decisions, the Apex Court has held that mere possession of recovery of currency note from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d), 13(2) of the P.C. Act. It has been propounded that in absence of proof of demand of any illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage, cannot be held to be proved. The proof of demand has been held to be an indispensable essentiality to prove the offence. In the present case, the demand as well as acceptance is under shadow of doubt and has not been established beyond reasonable doubt. 31 Considering the discrepancies in the evidence of the prosecution witnesses, I find that the evidence adduced against the accused by prosecution suffers from doubt. In the circumstances, the evidence relating to demand and acceptance cannot be believed. The accused is entitled for benefit of doubt and deserves to be acquitted.[Para No.30]

Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document

In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :

 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: 

     Proviso  (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.[Para No.16]

    As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "[Para No.17]

In cheque dishonor case; failure of complainant to give satisfactory reply about his financial capacity to pay/give the amount; is a probable defence on behalf of the accused

We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-

(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

(v) It is not necessary for the accused to come in the witness box to support his defence.[Para No.23]

 Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when fina>ncial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.[Para No.24]

Mere proof of handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document

Incidentally it was urged by Mr. Majumdar that even if the court proceeds on the assumption that the letter and the cable were received, it is not open to this Court to look into the contents of the letter and the cable because the contents are not proved as the Managing Director of the appellant company who is supposed to have signed the letter and the cable has neither entered the witness box nor filed his affidavit proving the contents thereof. Reliance was placed on Judah v. Isolyne Bose. In that case a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix the contents of the letter could be utilised to prove want of testamentary capacity.

Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue. But in this case Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of the appellant company. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved.[Para No.16]

When an offence is committed in secrecy inside a house, then a corresponding burden will be on the inmates of the house to give a cogent explanation as to how the crime was committed

In the instant case, the appellant does not deny her presence at the scene of crime (the house where deceased and accused lived). Except the appellant and her child, no other persons were present at the scene of crime and she was the inmate of the house where the offence is committed in secrecy inside the house. The initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by prosecution to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparatively lighter in character. In view of Section 106 of Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how crime was committed.[Para No.26]

    As observed herein above, appellant being the only inmate of the house, did not offer any explanation as to how the incident took place. Further she has not explained in her statement recorded under Section 313 of Cr.P.C the circumstances in which deceased had sustained injuries except denying every question by answering 'do not know' or 'false'. It is the duty of the accused to furnish an explanation in her statement recorded under Section 313 Cr.P.C. regarding incriminating material that has been produced against her. Accused has been given freedom to remain silent during the investigation, as well as before the Court, then, the appellant/accused may choose to maintain silence or even deny entire prosecution case. In the present case, as observed above, the appellant in her statement under Section 313 Cr.P.C except saying 'false' and 'do not know', has not explained how the incident took place or who had committed the offence (if known) or the reason for her husband sustaining head injury and lying in a pool of blood. In such circumstances, we will have to draw an adverse inference against the appellant for not furnishing the explanation in her statement recorded under Section 313 of Cr.P.C.[Para no.27]

   Where an accused is alleged to have committed the murder of her husband and the prosecution succeeded in leading the evidence to show that shortly before the commission of crime, they were seen together and the offence had taken place in the house where husband and wife normally resides, then, it is for the accused to explain. For this proposition, we place reliance on the judgment of the Apex Court in TRIMUKH MAROTI KIRKAN V. STATE OF MAHARASHTRA reported in (2006) 10 SCC 681 wherein it came to be held:

If accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution u/s.138 of N.I. Act can fail

With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 (Para. 19):

"... The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ..."

(emphasis supplied)[Para No.13]

    In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.[Para No.14]

Adverse possession; even if not pleaded, can be presumed when Plaintiff claims the original possession of defendant was permissive, but fails to prove it

A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.[Para No.46]

    The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.[Para No.47]

    In our considered opinion, the High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff’s claim to reliefs is to be decided on the strength of the Plaintiff’s case and not the weakness, if any, in the opponent’s case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201.[Para No.48]

    From the pleadings filed by the Appellant-Defendant, it is patently clear that the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.[Para No.49]

    In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.[Para No.50]

Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence

In fact learned Counsel for parties also have mostly relied upon the evidence of the prosecutrix only either to demonstrate that the offences have not been committed or committed. Law on the perspective to be adopted in such case can be found in following two judgments of the Hon. Apex Court. In Narender Kumar Vs. State (NCT of Delhi), AIR 2012 SC 2281 : (2012) CriLJ 3033 : (2012) 3 JCC 1888 : (2012) 5 SCALE 657 : (2012) 7 SCC 171 : (2012) AIRSCW 3391 : (2012) 4 Supreme 59 , Hon. Apex Court points out the settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. However, where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration. Hon. Apex Court states that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Hon. Apex Court in matter before it observes that the facts and circumstances therein made it crystal clear that if the evidence of the prosecutrix was read and considered in totality of the circumstances along with the other evidence on record, in which the offence was alleged to have been committed, her deposition did not inspire confidence. The prosecution had not disclosed the true genesis of the crime. It therefore, found the appellant entitled to the benefit of doubt.[Para No.15]

Bequeath of disproportionate share in Will does not make the Will suspicious or unnatural

Thus, from the tenor of the Will read with the document dated 30 September, 2000, it appears that Pravin had equal love and affection for Ashok and Dipti. However, Pravin was of the opinion that he had spent sufficient sums of money on Dipti to give her a comfortable life and hence he did not think it necessary to leave much of his properties to his daughter. However, it is not that Dipti was totally deprived by Pravin in the Will. As noted, 9% Relief Bonds with face value of Rs.31,00,000/- and Maturity Value of over Rs.48,00,000/- were left for Dipti. It has also come out from the evidence on record that Dipti and her husband are both well established in U.S.A. and between the two of them, they earn over 1 million U.S. dollars per year. This factor is also likely to have played in the mind of the testator in deciding that it was not necessary to leave much for Dipti who was financially more than secure. Just because the bequests in favour of the testator's two children are not equal and may even be disproportionate, the same in my view, per se would not amount to a suspicious circumstance or make the Will unnatural. A Will is generally made when the testator desires to alter the natural course of succession. As observed by the Apex Court in the case of Ramabai Padmakar Patil (Dead) v. Rukminibai Vishnu Vekhande (supra), a Will is executed to alter the natural mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass equally to his natural heirs there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.[Para No.31]

    In S. Sundaresa Pai vs. Sumangala. T. Pai (supra), the Hon'ble Supreme Court observed at Paragraph 7 of the judgment inter alia as follows:

"The uneven distribution of assets amongst children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the will. One son was given bulk of immovable properties; another none; another half share in one immovable property; other half being given to the plaintiff and another daughter and husband were given nothing. It is also not in dispute that some properties were given in gift to the plaintiff by her mother during her lifetime. There was nothing unnatural."[Para No.51]

Party who rely on existence of a custom, must plead and prove the same

It can be concluded from the above discussion that a person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif intended for the office to devolve through a practice of hereditary succession. In the absence of any express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of the trust, and not merely for a few generations, such that the waqif’s intention that the office should be hereditary can be presumed. The burden of proof would be higher with respect to a public waqf, such as the suit waqf in the instant case, than a family trust.[Para No.22]

   We may now consider what the principles governing the establishment of a custom under Muslim law are. It is a settled position of law that a custom in order to be legal and binding must be certain, reasonable and acted upon in practice for a long period with such invariability and continuity that it has become the established governing rule in a community by common consent. It is equally settled that it is incumbent upon the party relying on the custom to plead and prove it.

   In this regard, we may fruitfully refer to the following observations from Fyzee’s Outlines of Muhammedan Law (5th edn., 2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):

“First, the burden lies heavily upon the person who asserts to plead the custom relied upon and prove clearly that he is governed by custom and not by the general law. Secondly, as to the proof of custom, there is in law no presumption in favour of custom and the custom must be ancient, certain and not opposed to public policy.” (emphasis supplied) The leading case with respect to the requirements of proving a custom is the decision of the Privy Council in H.H. Mir Abdul Hussein Khan v. Bibi Sona Dero, AIR 1917 PC 181.

Single incidence of assault is not cruelty u/s.498A; torture must be continuous and persistent

It goes without saying that matrimonial cruelty occurs within the precincts of the matrimonial home of the wife and she hardly shares her ordeals with someone other than her parents and her near relatives. As a result overwhelming evidence may not be available before the court in a case under Section 498A IPC. But that does not absolve the prosecution from the burden of proving the charge by cogent, coherent and persuasive evidence.[Para No.19]

    In the case in hand, the matter was reported to police by the father of the victim after he brought back his daughter from her matrimonial home. It is apparent on the face of the record that the victim lived with her husband in her matrimonial home only for about 6 months after their marriage. Except the omnibus statement of the victim and her parents that the appellant demanded cash from the parents of the victim and tortured her for fulfillment of his demand, no particular incident of any kind of physical or mental torture meted out to the victim or any other instance of abuse in her matrimonial house has been proved against the appellant. In this regard, the Apex Court, while dwelling on similar issue in Manju Ram Kalita vs. State of Assam reported (2009) 13 SCC 330 held as under:

"21. Cruelty" for the purpose of section 498A, IPC is to be established in the context of section 498A, IPC as it may be a different from other statutory provisions. It is to be determined / inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously / persistently or at least in close proximity of time of loading the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of section 498A, IPC. Causing mental torture to the extent that it becomes unbearable may be treated as cruelty."[Para No.26]

    In the case of Prwitish Datta and ors vs. State of Tripura reported in (2014) 1 TLR 848 this High Court held that every case of harassment of the wife either by the husband or his family members cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is willful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama vs. State of Tripura reported in (2013) 2 TLR 134, this High Court observed that

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on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC.In the case of Dhananjoy Shil vs. State of Tripura reported in (2013) 2 TLR 1060 also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.27]

No conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be

There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof.

  In para 14 of its judgment Hon'ble Supreme court in case of Digamber Vaishnav and another vs State of Chandigarh (2019) 4 SCC 522, has held as under:

"14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of prosecution can't be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an addition circumstance if other circumstances unfailingly point to the guilt."

In order to punish a contemnor, it has to be established that disobedience of the order is wilful

The contours for initiating civil contempt action:

   The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to them majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. Ther proceedings are quasi ­criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities.

(Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697, Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530, Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC 705 and National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600.)

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

The burden of proof; of non compliance of order of consumer forum, is not on the accused.

Sec.27 of The Consumer Protection Act - Non compliance of judgment of forum - execution petition - only one respondent/accused appeared - No steps taken against other accused - Forum recorded plea without separating trial - Adjournment sought by accused is rejected - No evidence of either applicant or accused is recorded, Still forum ordered the accused to comply with the judgment on the same day till 4 pm only - Accused failed to comply with - Forum cancelled his bail and taken in custody.

Held:

   The burden of proof; of non compliance of order of consumer forum, can not be on the accused. [Para No.9]

How to prove plea of Private Defence in criminal trial?

Two young men quarrelled suddenly and threw stones at each other. The stone pelted by the deceased missed; while the stone pelted by the appellant accidentally hit the head of the deceased. The deceased being the aggressor, the accused unintentionally assaulted him to defend himself. He threw a single stone. Weight, shape or size of which is not clear from the record. Neither the appellant acted in cruel manner nor had he taken any undue advantage of the situation. He simply ran away from the scene. It does not appear that the appellant had exceeded his Right of private defence. Therefore, he is entitled to acquittal as no action can be considered as offence, if it is done in exercise of right of private defence.[Para.25]

   At the time of the incident, the deceased was 18 year old and the appellant was 22 year old. There is no evidence of any previous enmity between both of them. There is also no evidence of "motive", "preparation", "premeditation" or "intention" of causing death or more harm than necessary for the purpose of defending himself. It was a sudden fight in the heat of passion upon a sudden quarrel and without taking any undue advantage or acting in any cruel or unusual manner, as a natural reflex, the appellant also picked a stone lying there and threw it towards the deceased. His action was a reflex action to save himself from the attack by the deceased. It was not the case of the prosecution itself that the accused targeted any particular body part or more precisely the head of the deceased and evidence also does not show any such intention of the appellant. There is no evidence to show the weight, size or shape of the stone used by the appellant to assess the intention or impact of blow to arrive at a conclusion favourable to the prosecution. There is also no evidence to show that the stone was unusual in size or shape or whether it was sufficient to cause death in the normal course. The injury found on the head of the deceased cannot be said that it was of an unusually severe nature or that it was intended to be so.[Para No.20]

Weakness in the defense cannot be the basis to grant relief to the plaintiffs

Can weakness of defense be a ground to decree a suit?

   The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden can not be shifted on the defendants. [Para No.16]

Principles governing the proof of a Will

As per Section 63 of the Succession Act, inter alia, requires that the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution.

    A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring.

     The propounder has to prove the legality of execution of the Will as also the genuineness thereof by proving the testamentary capacity of the testator as also his signatures and further by proving absence of suspicious circumstances.

    When there are suspicious circumstances regarding the execution of the will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator.[Para No.10.3]

Principles governing the adjudicatory process concerning proof of a Will could be broadly summarized as follows:–

• 1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 
•  2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 
•  3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 
•  4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 
•  5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 
• 6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind. 
•  7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 
•  8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
•  In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.