Criminal Law – Murder – Conviction based on circumstantial evidence – Dying Declaration – Acquittal – Accused convicted by Trial Court for murder of deceased by setting her ablaze after alleged quarrel arising out of illicit relationship – Prosecution case resting mainly on dying declaration and medical evidence – On appeal, High Court finds that there were no eyewitnesses and neighbours (PWs.1 to 3) did not support prosecution case regarding presence of accused at scene – Last seen theory not established – Motive of illicit relationship not proved by cogent evidence – Held: Chain of circumstantial evidence not complete and incapable of excluding other hypotheses – Conviction unsustainable [Paras 10–14, 29–32].

Evidence Act – Section 32 – Dying Declaration – Reliability and admissibility – Dying declaration recorded by Assistant Sub-Inspector in hospital allegedly in presence of doctor – Doctor failed to certify mental and physical fitness of deceased in a satisfactory manner – No mention of vital parameters such as blood pressure, pulse rate or treatment administered – Duty doctor and case-sheets not produced – Deceased had suffered 80–85% burn injuries including face and lips – Mother and sister of deceased stated that deceased was not in a position to speak when they visited hospital – Held: Dying declaration not proved to be wholly reliable, voluntary and truthful – Cannot be sole basis for conviction [Paras 15–27].

Witness Testimony – Hostile witnesses – Neighbours as chance witnesses – PWs.2 and 3, neighbours of deceased, stated that they only heard cries and saw deceased with burn injuries – Categorically denied seeing accused at spot or running away from house – Prosecution version of last seen circumstance disbelieved – Evidence held insufficient to connect accused with crime [Paras 13–14].

Motive – Proof – Illicit relationship – Alleged motive based on illicit relationship between accused and deceased and objections by parents of accused – Neither parents of accused examined nor independent evidence led to establish motive – Held: Motive not proved and cannot by itself sustain conviction in absence of other reliable circumstances [Para 12].

Appeal – Criminal Appeal against conviction – Interference by High Court – Trial Court relied heavily on doubtful dying declaration and ignored material contradictions and omissions in prosecution evidence – Failure to scrutinize circumstantial evidence in strict legal standard – Held: Judgment of conviction and sentence liable to be set aside – Accused entitled to benefit of doubt [Paras 28–32].

Decision:

Appeal allowed – Judgment of conviction dated 27.08.2018 and sentence dated 31.08.2018 set aside – Accused acquitted of offence under Section 302 IPC – Accused to be released forthwith if not required in any other case – Order regarding disposal of properties maintained.

Tenancy – Eviction – Damage to Premises – Permanent Structure – Lease Permitting “Some Changes” – Scope of Clause – Respondent-tenant made material alterations including demolition of internal walls and creation of new entry without landlady’s permission – Held: Clause 5 of lease permitting “some changes” for hospital use cannot be interpreted as blanket permission for structural changes – Removal of internal walls and making new entry amounts to damage and erection of permanent structure within meaning of Sections 13(1)(a) and 13(1)(b) of Bombay Rent Act – Appeal Court’s interpretation of Clause 5 found to be perverse – Eviction decree restored on these grounds [Paras 13–24].

Eviction – Change of User – Lease Clause Allowing Conversion from Residential to Hospital Use – No Violation – Clause 5 of lease expressly permitted tenant to use residential portion as hospital – Held: Change of user not made out as per Section 13(1)(k) – Concurrent finding of both courts upheld [Paras 12, 21–22].

Eviction – Bonafide Requirement – Availability of Alternative Premises to Landlady – No Greater Hardship Shown – Landlady had already obtained possession of multiple tenanted premises – Concurrent finding that requirement not bonafide upheld – No interference under Section 115 CPC warranted [Para 11].

Eviction – Nuisance – Allegations of Medical Waste and Misconduct Not Substantiated – Landlady failed to produce independent evidence or witnesses – Allegations were uncorroborated and denied – Concurrent finding of no nuisance upheld [Para 12].

Scope of Revision under Section 115 CPC – Interference Limited to Jurisdictional Errors and Perversity – Appeal Court's findings on permanent structure and damage found perverse and based on misreading of lease clause – Justified interference under Section 115 CPC – Findings on other grounds not interfered with [Paras 10, 18–20].

Decision: Civil Revision Application partly allowed – Appellate Court judgment dated 22/09/2006 set aside to the extent of reversal on grounds under Sections 13(1)(a) and 13(1)(b) – Trial Court’s eviction decree restored on those grounds – Respondent directed to vacate suit premises within 6 weeks, subject to affidavit of undertaking [Paras 24–28].

Income-tax – Nil Withholding Certificate – Section 197 – Rule 28AA – Rejection of application – Mechanical approach by Assessing Officer – Assessing Officer rejected application solely on ground that determination of income at Section 197 stage is premature and tax must be deducted to protect revenue – Held: Such reasoning contrary to statutory mandate of Rule 28AA which requires consideration of estimated income, tax liability of previous four years, existing liabilities and advance tax – Non-consideration of mandatory parameters vitiates decision-making process [Paras 20–26, 30–32].

Double Taxation Avoidance Agreement – India–UK DTAA – Fees for Technical Services – Managerial services – “Make available” test – Petitioner providing routine managerial and administrative support services to Indian subsidiary on cost-to-cost basis – ITAT in petitioner’s own case for AYs 2020-21 and 2021-22 held such services not taxable as FTS under Article 13 – Held: Until set aside, Tribunal’s findings are binding on Revenue authorities [Paras 23, 26–28].

Judicial Discipline – Binding nature of appellate orders – Filing of appeal – Effect – Revenue contended that appeals against ITAT orders were pending – Held: Mere filing of appeal does not render appellate order inoperative – Authorities bound to follow decisions of higher appellate forums as per Kamlakshi Finance Corporation principle [Paras 26–28].

Administrative Law – Speaking order – Section 197 proceedings – Scope – Assessing Officer must record application of mind to statutory factors under Rule 28AA – Order stating that assessment is not possible and deduction is required to safeguard revenue does not meet statutory requirements – Non-application of mind renders order arbitrary and unsustainable [Paras 21–22, 30–32].

Remand – Section 197 application – Although impugned order and certificate quashed for failure to follow Rule 28AA – Matter remanded to Assessing Officer for fresh consideration in accordance with law – Direction to decide afresh within four weeks and without being influenced by pendency of appeals unless ITAT orders are set aside or varied [Paras 33–35].

Decision: Impugned order dated 09.06.2025 and certificate dated 30.07.2025 quashed – Matter remanded to Assessing Officer for fresh adjudication under Rule 28AA – Writ petition disposed of.

Service Law - Departmental Enquiry – Police Personnel – Allegation of Corruption – Reliance on Electronic Evidence – CD Not Proved – Non-Examination of Complainant – Violation of Natural Justice – Enquiry Vitiated – Departmental proceedings founded solely on alleged video CD purportedly showing acceptance of bribe – CD neither exhibited nor proved during enquiry – Complainant who allegedly recorded video not examined – Respondent not supplied CD nor given opportunity to rebut contents – Findings based on unproved and derivative material – Held: Enquiry suffers from foundational defects and violates principles of natural justice [Paras 36–40, 42].

Disciplinary Proceedings vis-à-vis Criminal Acquittal – Effect of Acquittal Based on Inadmissibility of Evidence – Criminal case and departmental enquiry founded on same CD – Criminal court held electronic record inadmissible for want of original device, Section 65-B certificate and authenticity – Acquittal affirmed by High Court – Though departmental proceedings not barred per se after acquittal, where acquittal is based on unreliability of foundational material, disciplinary authority must assess existence of independent evidence – No substantive material remaining once CD excluded – Charge unsustainable [Paras 41–42].

Delhi Police (Punishment & Appeal) Rules, 1980 – Rule 16(iii) – Scope and Limitations – Rule permits reliance on prior statements where witness cannot be procured without undue delay – Cannot be invoked to dispense with proof of primary incriminating material – Rule does not cure defect where very basis of charge is unproved – Reliance on Rule 16(iii) misplaced [Paras 39–40].

Standard of Proof in Departmental Enquiry – Preponderance of Probabilities – Limits – Though standard of proof is lower than criminal trial, material relied upon must still be legally admissible and put to delinquent officer – Findings cannot rest on material neither proved nor supplied – Suspicion, however strong, cannot substitute evidence even in departmental proceedings [Paras 37–38, 42].

Parity – Co-Delinquents – Relevance – Other officials allegedly involved in same incident either exonerated or granted relief by Tribunal – Allegations and evidence common – Selective sustainment of punishment against respondent without distinguishing material unjustified – Parity relevant though not determinative [Para 43].

Judicial Review – Disciplinary Matters – Scope under Article 226 – Tribunal confined itself to examining existence of legally sustainable evidence and fairness of process – No re-appreciation of evidence as appellate authority – Interference justified where findings based on no evidence – High Court declined to interfere with Tribunal’s order [Paras 35, 45–46].

Decision: Writ petition dismissed – Order of CAT dated 02.08.2016 upheld – Departmental proceedings and penalties quashed – No order as to costs.

POCSO Act – Aggravated Penetrative Sexual Assault – Proof – Conviction under Section 6 of POCSO Act requires proof of penetrative sexual assault of aggravated nature – Prosecution failed to produce medical examination report of the victim though examination was allegedly conducted – No forensic or medical evidence corroborating penetration – Held: Essential ingredients of Section 6 not proved beyond reasonable doubt [Paras 11–13, 21–23].

Criminal Trial – Best Evidence – Adverse Inference – Non-production of medical examination report of the victim, despite victim being taken to hospital immediately after incident – Investigating Officer offered no explanation – Held: Adverse inference drawn against prosecution under Section 114(g) of Evidence Act [Paras 12–13, 22].

Delay and Lapses in Investigation – FIR though registered on date of incident was not promptly forwarded to Court – Statement of victim under Section 164 Cr.P.C. recorded after substantial delay – Investigating Officer who registered FIR not examined – Held: Lapses create doubt regarding prosecution version [Paras 10, 13].

Evidence of Victim and Mother – Sexual Assault – Testimony of victim and her mother established removal of undergarments and sexual touching – Evidence insufficient to establish rape or penetrative assault but sufficient to prove sexual assault – Held: Offence under Section 8 of POCSO Act made out [Paras 14–23].

Statutory Presumption – Sections 29 & 30 POCSO Act – Accused failed to rebut presumption with respect to offence of sexual assault – Explanation given to medical officer that he removed undergarment insufficient to displace presumption under Sections 29 and 30 for Section 8 offence [Para 24].

Sentencing – POCSO Act – Modification – Incident occurred in 2015 – Trial Court imposed 20 years’ imprisonment under Section 6 POCSO Act – Held: Conviction under Section 6 unsustainable; conviction modified to Section 8 POCSO Act – Sentence reduced to maximum of five years considering nature of offence and period already undergone [Paras 5, 23–24].

Criminal Intimidation – Section 506 IPC – Evidence sufficient to establish threat extended to victim – Conviction and sentence under Section 506 IPC upheld [Para 25(ii), (vi)].

Set-off – Section 428 Cr.P.C. – Accused already undergone incarceration exceeding maximum sentence under Section 8 POCSO Act – Entitled to set-off – Direction issued for immediate release if not required in any other case [Para 25(viii)–(ix)].

Decision: Appeal partly allowed – Conviction under Sections 376 IPC and Section 6 POCSO Act set aside – Conviction modified to Section 8 POCSO Act with sentence of five years’ simple imprisonment and fine – Conviction under Section 506 IPC confirmed – Sentences to run concurrently – Accused directed to be released.

Prevention of Corruption Act, 1988 – Appeal against Acquittal – Scope of Interference under Section 378 Cr.P.C. – Principles reiterated – Presumption of innocence strengthened by acquittal – Appellate court can interfere only when trial court’s view is perverse or based on misreading of evidence – If two views are possible, appellate court cannot substitute its own view [Paras 7, 8, 9].

Illegal Gratification – Demand and Acceptance – Essential Ingredients – Mere recovery of tainted money and positive phenolphthalein test not sufficient – Prosecution must prove demand and acceptance beyond reasonable doubt – Presumption under Section 20 PC Act arises only after proof of foundational facts [Paras 15, 16].

Official Favour – Pendency of Work – Failure to Prove – Evidence showed that mutation entries were already made prior to trap – No clear proof that any official work was pending with the accused on the date of complaint or trap – Delay attributable to non-compliance by complainant – Held: Pendency of official work not established [Paras 14, 15].

Trap Proceedings – Reliability of Evidence – Voice Recorder Evidence – Non-compliance with legal requirements – Specimen voice of accused not taken nor subjected to voice spectrographic analysis – Recorded conversation not reliable in evidence – Cannot be used to prove demand [Para 16(3)].

Confessional Statement – Inadmissibility – Explanation obtained from accused after trap and arrest – Statement inculpatory in nature – Hit by Sections 25 and 26 of the Evidence Act – Cannot be relied upon by prosecution [Para 16(4)].

Witness Testimony – Credibility – Contradictions and Inconsistencies – Evidence of complainant and related witnesses inconsistent regarding dates, demand, and pendency of work – Absence of independent corroboration – Trial court justified in disbelieving prosecution witnesses [Paras 15, 16].

Decision – State Appeal Dismissed – Judgment of acquittal dated 31.05.2014 upheld – No perversity or illegality found in trial court’s appreciation of evidence – Accused entitled to benefit of doubt [Paras 9, 10].

Service Law – Pension – No Liability Certificate – Retired Headmaster sought issuance of No Liability Certificate and release of pensionary benefits – School authority withheld certificate alleging defalcation and incomplete accounts during service period – Criminal proceedings pending under Sections 409 and 465 IPC – Held: Non-issuance of No Liability Certificate justified in facts of case [Paras 23–26, 33].

Pension as Property – Article 300A – Not an Absolute Right – Though pension is a constitutionally protected property right, it is not automatic or unconditional – Subject to statutory scheme governing service and retirement benefits – DCRB Scheme, 1981 governs entitlement [Paras 12, 28–31].

DCRB Scheme, 1981 – Scope after Retirement – Scheme 19 – Full pension not a matter of course – Pension can be reduced or withheld where service not thoroughly satisfactory or where charge of corruption/misconduct is proved or reasonably presumed – Scheme applicable even to pensioners – Argument that scheme ceases to apply after retirement rejected [Paras 28–31].

Misconduct and Defalcation – Audit Report – Evidentiary Value – Auditor appointed by Directorate of School Education found defalcation exceeding ₹5.47 lakhs including unaccounted sports grant – Strong presumption of financial misconduct arises – Justifies withholding of final pension and gratuity pending outcome of proceedings [Paras 26, 30–31, 33].

Disciplinary Proceedings – Institution before Retirement – Effect – Though no formal disciplinary proceedings were initiated before superannuation, repeated complaints were made to higher authorities during service tenure – Subsequent criminal proceedings and audit revelations distinguish case from precedents where no action whatsoever was taken [Paras 32–33].

Criminal Proceedings – Pendency – Effect on Pension – Where criminal case relating to misconduct during service is pending, employee may be entitled only to provisional pension – Final pension and gratuity can be withheld till conclusion of proceedings [Paras 25, 34].

Provisional Pension – Entitlement – Scheme 19(5) – Pension sanctioning authority empowered to grant provisional pension pending conclusion of disciplinary/judicial proceedings – Gratuity not payable during such period – Matter directed to be considered by Principal Secretary, School Education Department [Paras 34–36].

Precedents on Withholding Pension – Distinguishability – Judgments relied on by petitioner concerned cases of arbitrary withholding without enquiry or proceedings – Present case involves audit findings, criminal prosecution and strong presumption of misconduct – Held: Said precedents not applicable [Paras 32].

Decision – Writ Petition Disposed of – Prayer for No Liability Certificate and immediate pension rejected – Matter referred to Principal Secretary, School Education Department to consider grant of provisional pension under DCRB Scheme, 1981 by reasoned order within eight weeks – Opportunity of hearing to be afforded [Paras 35–37].

Service Law – Seniority – Foresters – Rehabilitation Assistance Scheme – Petitioners originally appointed as Village Forest Workers (VFWs) and later redesignated and merged into Forester cadre w.e.f. 10.02.2009 under 2009 Amendment Rules – Private opposite parties appointed as Foresters under Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 and sent for Foresters’ training from 16.06.2008 – Seniority lists prepared by counting training period of RA appointees – Held: Appointment under RA Rules precedes training and is not contingent upon completion of training – Date of joining training constitutes entry into service [Paras 9.6–9.17, 10].

Rehabilitation Assistance – Nature of appointment – RA Rules are a welfare and compassionate measure intended to provide immediate succour to family of deceased Government servant – Appointment under RA Rules is an exception to normal recruitment – Such appointees hold substantive posts subject to training and probation – Held: Training is not sine qua non for appointment as Forester under RA Rules [Paras 9.1–9.9].

Seniority – Rule 13 of RA Rules – Interpretation – Rule 13 mandates that persons appointed under RA Rules shall be placed below persons recruited and appointed in the same year – Private opposite parties treated as appointed in 2008 on joining training – Petitioners merged into cadre only in 2009 – Held: Petitioners cannot claim seniority over RA appointees of earlier year [Paras 8.1–8.2, 10.17].

Training Period – Whether counts for seniority – Evidence showed RA appointees were relieved from divisions, joined training school, and were paid salary and allowances during training – Appointment already made before training – No rule excluding training period from service – Held: Training period rightly counted for seniority [Paras 7.3, 9.14–9.17].

Executive Instructions – Supersession – Effect – Government Letter dated 13.04.2017 fixing seniority from date of joining training later superseded, but subsequently reaffirmed by Letter dated 27.05.2019 in conformity with Rule 13 of RA Rules – Actions taken bona fide on basis of extant instructions and promotions already granted – Held: No ground to unsettle settled seniority [Paras 10.1–10.14].

Delay and laches – Challenge to seniority list – Seniority list dated 08.11.2016 not challenged within reasonable time – Belated challenge after publication of revised list impermissible – Settled seniority should not be reopened after lapse of time – Held: Petitioners disentitled to relief on ground of delay [Paras 10.3–10.8, 12.2].

Judicial Review – Limits – Court will not interfere with fixation of seniority unless contrary to statutory rules or vitiated by arbitrariness – Seniority fixed in consonance with RA Rules having overriding effect under Rule 15 – Held: No illegality or arbitrariness established [Paras 10.16–10.18, 12].

Decision: Writ Petition dismissed – Fixation of seniority of Foresters appointed under Rehabilitation Assistance Scheme upheld – Seniority lists dated 08.11.2016 and 24.06.2017 sustained – No order as to costs – Pending applications disposed of.

Service Law – Family Pension – Claim by Second Wife – Hindu Marriage Act, 1955 – Monogamy as Mandatory Norm – Marriage contracted during subsistence of first marriage void ab initio – Second wife not entitled to family pension [Paras 1, 3.1].

Hindu Law – Bigamy – Void Marriage – Sections 11 and 17, Hindu Marriage Act – Second marriage during lifetime of first spouse illegal and punishable – Such void marriage does not create marital status for pensionary or service benefits [Paras 3.1, 3.5].

Pension Rules – Interpretation – Expression “wife / wives” – Cannot be construed to permit polygamy – Pension rules cannot override or defeat statutory mandate of Hindu Marriage Act and IPC – Widow status presupposes valid marriage [Para 3.3].

Family Pension – Sine Qua Non – Valid Marriage – To qualify as ‘widow’ under pension rules, existence of legally valid marriage essential – Void marriage confers no enforceable rights – Grant of pension to second wife would amount to placing premium on illegality [Paras 3.3, 3.4].

Void Marriage – Effect of Subsequent Events – Death of First Wife – Void marriage does not become valid by subsequent demise of first spouse – Maxim “ex nihilo nihil fit” applies – What is void ab initio remains void [Para 3.5].

Precedents – Applicability – Smt. Sriramabai v. Record Officer – Distinguished – Case relating to presumption of marriage after prolonged cohabitation post death of first wife – Not applicable where marriage itself was contracted during subsistence of first marriage [Para 3.4].

Judicial Discipline – Case Law – Precedent applies only to facts decided – Reliance placed on Quinn v. Letham – Case is authority only for what it decides and not for logical extensions [Para 3.4].

Family Pension – Second Wife – Settled Position of Law – Issue no longer res integra – Supreme Court in Raj Kumari v. Krishna held second wife not entitled to family pension – Karnataka High Court reiterated that recognising such claims encourages illegality [Para 3.5].

Decision – Writ Appeal Dismissed – Order of Single Judge Affirmed – Rejection of claim for family pension upheld – Appeal found devoid of merits [Final Para].