M/S. Fortune Infrastructure (Now Known As M/S. Hicon Infrastructure) & Anr vs Trevor D’lima & Ors

N.V. Ramana, J.

[1] These appeals are filed against the impugned orders, dated 08.09.2016 and 03.11.2016, passed by the National Consumer Disputes Redressal

Commission [hereinafter 'NCDRC' for brevity], in Consumer Complaint No. 636 of 2015 and Review Application No. 273 of 2016 in the Consumer

Complaint No. 636 of 2015.

[2] A few facts which are necessary for the disposal of this matter are that the appellants, in the year 2011, launched a residential housing project by

name 'Hicons Onyx', renamed as Fortune Residency, which was a re-development of Mohammadi House. The respondents booked a flat bearing no.

202, 2nd Floor in 'A' wing, admeasuring 828.40 Sq. Ft. with one unit of parking-space. The total consideration for the flat was Rs. 1,93,00,000/-. It is

alleged by the appellants, that due to increase in the cost beyond what was expected, they transferred the project to another company being M/s. Zoy

Shelcon Pvt. Ltd. It is to be noted that the respondents have paid a sale consideration of Rs. 1,87,00,000/-.

[3] In 2015, aggrieved by the fact that appellants were not willing to deliver the flat to them, the respondents approached NCDRC through a consumer

complaint, being CC No. 636 of 2015, with following prayersa.

To hold and declare the Opposite Parties to be guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer

Protection Act, 1986

b. To direct the Opposite Parties 1 to 4 to comply with their statutory obligations and to execute and register the Agreement for Sale with the

complainants in respect of flat No. 202 on the 2nd floor admeasuring 828.40 Sq. Ft. with one car parking in the building known as Hicon Onyx and

since re-named as Fortune residency situated at plot no. F/1116-A, Village Bandra, St. Martins Road Bandra (West), Mumbai 400 050 (Maharashtra).

c. To direct the Opposite Parties no. 1 to 4 to complete the construction of the building known as 'Hicons Onyx' since renamed as 'Fortune residency'

and to hand over to the complainants vacant and peaceful possession of the Flat No. 202 on the 2nd floor admeasuring 828.40 Sq. Ft. with one car

parking in the building known as Hicons Onyx and since renamed as Fortune residency situated at plot no. F/1116-A, Village Bandra, St. Martins road

Bandra (West), Mumbai 400 050 (Maharashtra) on receiving the balance consideration amount of Rs. 6,00,000/-from the complainants

Alternatively

In the event of the Opposite Parties no. 1 to 4 having created third party interests in favour of the Opposite Party no. 5, to direct the Opposite parties

no. 1 to 4 to hand over to the complainants any other flat of the same size quality and specifications with one car parking in the same building 'Hicons

Onyx' since re-named as 'Fortune Residency' or any flat of the same size, quality and specifications with one car parking in the same locality of the

present building Hicons Onyx or Fortune Residency.

x x x x x

x x x x x

f. To direct the Opposite Parties No. 1 to 4 jointly and severally pay to the complainants Rs.5,00,000/- (Rupees Five lakhs only) towards compensation

for the inconvenience and mental agony suffered by the complainants due to the enormous delay in construction of the building, negligence and

deficiency in service of the Opposite Parties No. 1 to 4.

g. To direct the opposite Parties No. 1 to 4 jointly and severally to pay to the complainants the sum of Rs. 1,00,000/- (Rupees One Lakh only) being

the Legal and other incidental expenses incurred by the complainants.

h. For such other and further relief as this Hon'ble Commission may deem fit and proper in the nature and circumstances of the above numbered

complaint.

[4] The NCDRC has allowed the complaint and directed the appellants: 1. To refund the amount of Rs. 1,87,00,000/- which they have received from

the complainants, within six weeks from the day of the impugned judgment; 2. The appellants were further directed to pay a sum of Rs. 3,65,46,000/-

as compensation and Rs. 10,000/- as cost of litigation to the complainants within six weeks from the day of the impugned judgment; 3. The aforesaid

amount was ordered to be paid at 10% per annum from the date of the order till the actual date of payment. It may be noted that even the review

against the aforesaid order was dismissed by the NCDRC vide order dated 03.11.2016.

[5] Having dissatisfied with the impugned orders passed by the NCDRC, appellants approached this Court through these civil appeals.

[6] At the threshold it was brought to our notice that on 08.09.2016, when the matter was argued, on most of the other dates the appellants remained

unrepresented before NCDRC. Further the counsels representing the appellants stated that their counsel appointed for the forum below did not file

necessary pleadings except for a proforma reply. Keeping in view of the above, they argued that this case should be remanded back to the NCDRC

for fresh consideration. However, on careful consideration of facts of this case, we are of the opinion that a remand may not be required at this stage.

To put a quietus to the litigation, the controversy can be adjudicated by this Court.

[7] Learned counsel for the appellants, primarily submitted that the present appellants have transferred the project to a different company thereby they

should be discharged from any liability for not handing over the disputed property to the answering respondents (Complainants). He further argued

that, the present circle rate of the disputed property is pegged at approximately half the price awarded by the NCDRC. Lastly, he urged before this

Court to consider the downward trends shown in the real estate market which mandates a lesser compensation, compared to the one awarded by the

NCDRC.

[8] Per Contra, the learned counsel appearing on behalf of the answering respondents (Complainants) fully supported the reasoning of the NCDRC in

coming to a conclusion that, the appellants herein provided deficient service by delaying the handing over of the flat to the complainants. In all fairness,

learned counsel for answering respondents have admitted that prices as contemplated under the impugned order of NCDRC are not reflective of the

true market rates for similar flats available in the near vicinity of the disputed flats.

[9] It would not be out of context to mention that during the hearing of this case, many attempts were made by both parties to amicably settle the issue

concerning the quantum of compensation which could not fructify. Further we requested Shri. Raju Ramachandran, learned senior advocate, to use his

good office to persuade parties to settle the matter. Such an endeavour also could not impress upon the parties and therefore this court was called

upon to adjudicate the matter.

[10] Having heard learned counsels on either side and perusing the materials available on record, the issue that fall for consideration is whether there

is deficiency of service on the part of the appellants? If so, what is just and reasonable compensation?

[11] It is now well established that the contractual damages are usually awarded to compensate an injured party to a breach of contract for the loss of

his bargain. In the case of Johnson and Anr. V. Agnew, 1979 1 AllER 883, the aforesaid case has clearly held as underThe general principle for the

assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do so, in the same position as if the contract

had been performed.

[12] The aforesaid proposition remains to hold the field and has been applied consistently. This rule is more qualified when it comes to the real estate

sector. If the seller wants to limit their liability for breach of contract under the aforesaid rule, they have to portray that they have performed their

obligation in a prudent manner. It may be noted that the onus is on the seller to show his best efforts and bona fides in discharging the obligation. It

may be noted that even in the absence of fraud, mere unwillingness to carry out the duty could constitute bad faith sufficient for the purchaser to claim

damages.

[13] To decide whether the respondent ought to be awarded compensation because of deficiency of service, it is important to consider the meaning of

deficiency as provided under Section 2(1)(g) of the Consumer Protection Act, 1986.

(g) ""deficiency"" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be

maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or

otherwise in relation to any service;

In light of the above definition, we have to examine whether there is any deficiency in service, which entitles the complainant to

damages/compensation.

[14] In the present case, the appellants did not give any valid reasons as to why they transferred the property to a third party, despite their contractual

obligation to the respondents (complainants). The obligation was on the appellants to show that he was unable to transfer the property to the

respondent.

[15] Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of

the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the

agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been

reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact

that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there

is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there

is deficiency of services, then the question is what compensation the respondents/complainants is entitled to ?

[16] Before we come to the aspect of quantum of compensation, it would be appropriate to look at the settled legal position concerning the same. At

the outset, we may note that even under the Consumer Protection Act, 1986, the damages for commercial contracts need to be determined as per the

Indian Contract Act.

[17] It would be pertinent to note that in common law, claim for damages is the rule and specific performance is an exception, while in civil law front,

specific performance has traditionally been a prime remedy for the breach of contract.(Apparent from the study of French Civil Code (FCC) and

German Civil Code (BGB)).

[18] This Court in Ghaziabad Development Authority v. Balbir Singh, 2004 5 SCC 65, has observed that there is no fixed formula for fixing damages in

the following manner8. However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can

be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e. a recompense for the loss

or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus, the Forum

or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury.

No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not

given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of

loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then

on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both

mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable

cause.

That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases

where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will

necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where

monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is

being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore, the compensation in such

cases would necessarily have to be higher. We clarify that the above are mere examples. They are not exhaustive. The above shows that

compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer.

[19] It must be noted that the law is well settled in this regard. Whenever the builder has refused to perform the contract without valid justification, the

buyer is entitled for compensation as he has been deprived of price escalation of the flat. Every breach of contract gives rise to an action for

damages. Such amount of damages must be proved with reasonable certainty.

[20] Before we assess the damages, another important issue to be delved upon is the reckoning date for the purpose of the assessing the damages.

Whether should it be from the date on which the breach took place or should it be from the date of judgment?

[21] Learned counsel for the appellants, with some vehemence, argued that the rates of the property have considerably slumped due to downfall in the

real-estate market. Such submissions are to be tested as per the established principles of law. As per the settled law, the damages become due on the

date when the breach of contract takes place, and are normally assessed by the reference to the time of breach. The aforesaid rule is based on the

principle that the injured party is presumed to be in knowledge of the breach as soon as it is committed and at that time he can take appropriate

measures of mitigation to control the loss flowing from the breach. The courts may deviate from the aforesaid rule and fix appropriate date in facts

and circumstance of a case if aforesaid presumptions could not be established or it would not be reasonable to follow the rule. It may be noted that

where there is non-delivery of the flat/house, and the developer has refused to provide alternative and equivalent accommodation, and the buyer lacks

means to purchase a substitute from the market, then in such circumstances, damages would not be reasonable to be assessed on the breach date.

[22] We have already noted that the appellants were to perform the contract within a reasonable period of three years from the date of the agreement

i.e., by the last quarter of 2014. Aggrieved by the delay in handing over the possession, the respondents (complainants) approached the NCDRC for

conveyance and in alternative prayed for damages. It is now settled that where a party sustains loss by reason of a breach of contract, the damages

are to be granted so as to place the suffering party in the same position as if the contract had been performed. In light of the above, the damages other

than consequential loss have to be measured at the time of the breach. However, the aforesaid rule is flexible which needs to be assessed in facts and

circumstances of individual case. In this case at hand the respondents tried to execute the agreement and sought for conveyance of the property

through the NCDRC. In these circumstances we may note that, even in the first appeal, offers were being made on behalf of appellants to convey

alternative properties, which were refused as being insufficient. Therefore, in facts and circumstances of this case, the damage need not be

determined from the date of breach of contract.

[23] Even though the appellants raised a factual issue concerning the non-payment of part-consideration, we do not think it is necessary to go into this

aspect, as the NCDRC has given a categorical finding that Rs. 1,87,00,000/- has been paid by the respondents (complainants).

[24] Appellants have produced circle rates of properties in the vicinity of the disputed flats. These rates vary from Rs. 18,655 per Sq. Ft. to Rs.

25,787/- per Sq. Ft. Whereas the respondents have produced executed sale deeds in the nearby vicinity, which was Rs. 65,000 per Sq. ft., Rs. 69,342/-

per Sq. ft., Rs. 75,000/- per Sq. Ft. and Rs. 88,050/- per Sq. Ft. NCDRC has taken the minimum available market price as the reference point for

awarding compensation at the rate of Rs. 65,000/- per Sq. Ft. We are of the opinion that excessive reliance on the aforesaid sale deed may not be

appropriate as the present property is a redevelopment of an earlier property. Our attention has been drawn to the fact that usually the real estate

rates for re-developed properties are on the lower side instead of green-field projects.

[25] In light of the above, we consider that the claim of the respondents (complainants) as granted by the NCDRC seems to surpass the actual-loss

based damages and enter the domain of gain-based remedy. Although we do not recognize any a priopri limitations on such claim, but we do not think

that it would be appropriate to grant such damages in the case at hand. There is no dispute about the fact that damages for the contractual breach is

generally compensatory arising out of the breach. Therefore, the damages awarded should not be excessive and a court/tribunal needs to take a

balanced approach so as to ensure right compensation.

[26] Taking into consideration of factual aspects involved in the matter and on consideration of the submissions of the counsels on either side, we

deem it appropriate, just and reasonable that the market rate be fixed at Rs. 50,000/- per Sq. Ft. (Rupees Fifty Thousand per square feet) as the

reference rate for determination of market price prevailing in the vicinity of the disputed property. Hence, the estimated market price would be

Rs.4,14,20,000/- instead of Rs.5,38,46,000/- as granted by the NCDRC. However, we do not see any reason to interfere in respect of the

compensation granted for the parking space.

[27] Therefore, the appellants are directed as undera. To refund the amount of Rs. 1,87,00,000/- which they have received from the complainants.

b. To pay a sum of Rs. 2,27,20,000/- as compensation to the complainants.

c. To pay a sum of Rs. 20,00,000/- as compensation for one unit of parking lot.

d. The appellants shall also pay Rs. 10,000/- as the cost of litigation to the complainants.

e. The aforesaid amount is required to be paid within six weeks from the day of this order. If the payment in terms of this order is not made within the

time stipulated herein, it shall carry interest of 9 % per annum from the date of this order.

[28] It is to be noted that this Court vide order dated 23.02.2017, while issuing notice, directed the appellants to deposit Rs. 2,50,00,000/- before

NCDRC as a condition precedent for hearing this case. Later it was represented to us that the appellants as on 31.05.2017, had deposited the

aforesaid amount before NCDRC. In view of the above, we allow the respondents (complainants) to withdraw the aforesaid amount with accrued

interest, if any and the same be adjusted to the appellants' liability as indicated above.

[29] In light of the above discussions, we allow the appeals in part to the extent indicated above. There shall be no order as to the costs.

Judgement Text:-

N.V. Ramana, J.

[1] This appeal by special leave arises out of judgment dated 14th March, 2016 passed by the High Court of judicature at Allahabad in Criminal

Appeal No. 2894 of 2014 whereby the High Court, while dismissing the criminal appeal filed by the accused appellant, upheld the conviction and

sentence awarded by the trial Court on 22nd July, 2014 for the offences under Section 302/34 IPC in Sessions Trial No. 105 of 1997.

[2] The facts of the case, as culled out from the prosecution case, are that the complainant Shashi Bhushan Tiwari (PW5) lodged a complaint

(Annexure P-2) on 30-09-1995 with Karchhana Police Station, District Allahabad, which was registered as Crime Case No. 177 of 1995, stating that

his brother Brij Bhushan Tiwari (deceased) went to his in-laws house on 28-09-1995 to see the well being of his children, and to his belief his brother

was killed by his wife and in-laws. The wife of the deceased has also given a complaint to the police. The Station Officer Ram Niwas Pandey (PW7)

held the inquest of the dead body, prepared panchayatnama (Ext. P2) and sent the body for postmortem. Dr. Ashok Kumar Gupta (PW6) conducted

postmortem on 1st October, 1995 and the postmortem report is marked as Ex.P1. The Doctor opined that the cause of death was asphyxia due to

strangulation of throat.

[3] The Investigating Officer (PW 8) Veer Bahadur Singh after making necessary entries in the general diary, visited the spot and prepared site plan

(Ext. P5), recorded statements of witnesses and filed charge sheet (Ext. P6) against the accused. The Chief Judicial Magistrate, First Class,

Allahabad took cognizance of the offence and committed the case to the Sessions Court for trial. Learned Additional Sessions Judge framed charges

under Section 302/34, IPC against the accused Santosh Devi (wife of the deceased) and Dev Kanya Tiwari (mother-in-law of the accused and

appellant herein). They denied to have committed the crime and requested for trial. They took the defence that the deceased had committed suicide by

consuming poisonous tablets and they were falsely implicated in the case by the complainant as he wanted to usurp the whole property. However,

during the pendency of trial, accused Santosh Devi wife of the deceased had passed away.

[4] At the trial, the prosecution in support of its case examined as many as eight witnesses. The trial Court came to the conclusion that the explanation

given by the accused for the death of the deceased was false. Having satisfied that the prosecution could prove the guilt of the accused beyond

reasonable doubt, the trial Court convicted the accused appellant under Section 302/34 IPC and sentenced to suffer life imprisonment and to pay a fine

of Rs.10,000/- failing which to further suffer rigorous imprisonment of six months.

[5] Dissatisfied with the order of conviction and sentence passed by the trial Court, the accused appellant went in appeal before the High Court. By

the judgment impugned herein, the High Court affirmed the order passed by the trial Court and dismissed the appeal of the accused appellant.

Aggrieved by the decision of Courts below, the appellant preferred this appeal before us.

[6] We have heard learned counsel appearing for the appellant as well as the learned senior counsel for the State.

[7] The specific contention of the learned counsel for the appellant is that the order of conviction and sentence awarded by the Courts below suffers

from severe infirmities. Undue importance has been given to the postmortem certificate which indicated that the deceased died of strangulation and a

ligature mark was found on the body. The organs of the deceased were got congested and on the whole body blisters were found and nails turned

bluish, which clearly portray that it was a case of poisoning and as a matter of fact the deceased committed suicide by consuming poison. With a view

to falsely implicate the appellant, the factum of deceased committing suicide by consuming poison has been sidelined and therefore viscera was not

preserved by the Doctors. There was no independent witness to support the case of prosecution.

[8] Learned counsel further submitted that the panchanama report was prepared in the presence of PW5 and there was no mention in the

panchanama of any ligature mark or injuries on the body. There was no objection by PW5 during the preparation of panchanama. Ignoring the crucial

facts of the case, the Courts below went on convicting the accused appellant which is serious error of law and the same should be interfered by this

Court exercising its power under Article 136 of the Constitution.

[9] On the other hand, learned counsel appearing for the State vehemently opposed the arguments advanced on behalf of the appellant and submitted

that there is enough evidence on record to convict the accused and the Courts below have not committed any mistake in considering the medical

evidence. The deceased had died in the house of the accused where he was last seen in the company of the accused and the chain of events have

been completely proved, hence sought dismissal of the appeal.

[10] Having heard learned counsel on either side, we have carefully gone through the material on record. Apparently, there is no eyewitness to the

incident and the case is entirely based upon circumstantial evidence. In such a case, the Court is expected to be more careful while analyzing the

evidence and convicting the accused. In other words, in all probabilities, the chain of circumstances should lead to the irresistible conclusion that the

accused participated in the commission of crime and committed the offence. This Court has long back set the mode of evaluating circumstantial

evidence in Hanumant Govind Nargundkar Vs. State of Madhya Pradesh, 1953 CrLJ 129 in the following terms:

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 for 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.

[11] In the case on hand, a complaint (Annexure P-1) was already lodged by the other accused Santosh Devi (died during the pendency of trial) wife

of deceased Brij Bhushan Tiwari, on 30-09-1995, prior to the complaint lodged by PW5. As per that complaint, on the previous day, after having food

the deceased went out for stroll and came back at about 6 pm with unsteady walking, wobbling and falling. When he was taken to the Doctor Hiralal

(not examined) the deceased informed the Doctor about consuming tablets of sulfas as he does not want to live anymore and requested the Doctor not

to make any attempt to save his life. While they were shifting him to the Allahabad hospital, he had expired on the way. In their depositions, PW1

(Santosh Kumar), PW2 (Lallan) and PW3 (Shiv Lal) also affirmed these facts. Veer Bahadur Singh PW 8, the Investigating Officer also in his cross

examination admitted the fact that Dr. Hiralal in his statement disclosed as the deceased saying to him that he was fed up with his life and therefore

he had taken sulfas tablets. He (PW8) has specifically revealed that at the time of panchanama there was no apparent injury on the dead body. It

would be relevant to extract the wife's complaint, which reads as under:

It is respectfully submitted that the applicant Santosh Devi, wife of Brij Bhushan Tiwari is the resident of Hindupur, P.S. Karchhana. My husband

came to my father's house about 3/4 days back and was living here comfortably. Yesterday, at about 10 am, he after taking food went out for stroll.

When he came back about 6 o'clock to my father's house he was walking unsteadily and was wobbling and falling. So in these circumstances, the

applicant, her mother and other residents of the village somehow managed to bring him to the clinic of Hiralal. There Shri Brij Bhushan Tiwari himself

told the Doctor that I have taken many tablets of sulfas and I don't want to live anymore and don't make any attempt to save my life. Thereafter,

while we were taking him to the Allahabad Hospital, then he expired on the way.

It is therefore the applicant is informing you to take appropriate action.

[12] On the same day i.e. 30-09-1995, PW5 brother of the deceased had also filed a complaint before the Station Officer, Karchhana P.S. as under:

It is humbly submitted that the applicant is resident of village Naree, Police Station Soraunw, District Allahabad. There is the Ram Surat Tiwari's

house in Bela Chauraha, Police Station Karchhana, which is the house of in-laws of applicant's brother late Shri Brij Bhushan Tiwari. The applicant's

brother had gone to the house of his in-laws on 28/09/1995 for the sake of knowing about his children and for seeing them to know about their well-

being. Yesterday on 29/09/1995 at 3 o'clock in the night the information was received in the house of the applicant that some unknown persons of

Bela Chauraha killed the applicant's brother late Shri Brij Bhushan Tiwari.

On getting the information, I have come directly to the police station to lodge the first information report. The applicant believes that the applicant's

brother was killed by his in-laws.

The report is hereby submitted. Necessary action may be taken"".

[13] On the basis of the aforementioned two complaints, the criminal law was set into motion. The trial Court as well as the High Court mainly relied

upon the evidence of the brother of the deceased (PW5) and the opinion of the Doctor (PW 6 Dr. Ashok Kumar Gupta) who conducted postmortem.

According to PW5 when he reached the house of accused at 10 am, they started crying and confessed to him that they had committed the mistake of

strangulating his brother as he was adamant to take his wife back. He further deposed that the accused pleaded him not to lodge police complaint and

even after lodging FIR they requested him to withdraw. As there was no mention of this circumstance in the FIR, the trial Court disbelieved the

version of PW5 as regards to extra judicial confession of accused, yet observed that panchanama was prepared prior to any member of the

deceased's family made a visit to the place of occurrence and none of his family members were present at the time of panchanama. It is important to

note that PW5 in his cross examination admitted that he was present at the time of preparation of panchanama and when the body was sent for

postmortem. As regards to the occurrence, he stated that he had no personal knowledge but only on hearsay basis, he came to know about the

occurrence.

[14] Dr. Ashok Kumar Gupta (PW6) who performed postmortem on the body of the deceased, deposed that he found bloodstained fluid coming out of

mouth and nose of the deceased, while his nails turned into bluish colour and tongue protruded out of mouth caught between teeth. An ante mortem

injury of ligature mark 13½ x ½ was found on mid of neck while contusion present all over the neck situating horizontally. Internally, thyroid bone

was found fractured. In his opinion, the cause of the death was asphyxia resulting from strangulation of throat. In the cross-examination, it was

revealed that due to not getting the symptoms of poison, viscera has not been preserved.

[15] On an analysis, it is clear that PW1 Santosh Kumar, PW2 Lallan, PW3 Shiv Lal have not supported the prosecution case but specifically

supported the version of the accused. It assumes importance that these witnesses were not declared hostile. The evidence of I.O. PW 8 made it clear

that Dr. Hiralal disclosed to him that the deceased pleaded not to save his life as he was fed up with his life and had taken the sulfas tablets. The

panchanama was accordingly prepared, admittedly in the presence of PW5, and there was no apparent injury on the dead body at the time of

panchanama. PW7 Ram Niwas Pandey, who filled the panchanama (Ext. P2) and got the signatures of panch witnesses, also stated that no noticeable

injury was found on the body of the deceased and it was the collective opinion of the panch witnesses that the deceased expired due to eating some

poisonous substance and he also concurred with them.

[16] In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of deceased pointing out that the deceased

committed suicide by consuming poison, generally it is expected that the Doctor will preserve viscera for chemical analysis. On this point, prosecution

has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by Doctor PW 6 that viscera was not preserved as there is

no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as

well as the Investigating Officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.

[17] However, the allegation against the accused levelled by prosecution found support only from PW5 brother of the deceased. Even the evidence of

father of the deceased (PW4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW5 only.

Medical evidence in the form of postmortem report (Ext. P1) though supports the case of prosecution, non-preservation of viscera by the Doctor

remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW5 mentioned about noticing ligature mark on the neck

of the deceased, nor he agitated the cause of death during panchanama. The fact remains that on certain aspects, the trial Court also disbelieved the

version of PW5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the

Courts below gravely erred in not considering the case in accordance with the settled principles of law.

[18] The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration

of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to

the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand

there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body

of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the postmortem report and the

presence of PW5 at the time of panchanama without any objection, non-examination of Dr. Hiralal, the corroborative statements by most of the

prosecution witnesses and that of the I.O. to whom Dr. Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample

evidence to strengthen the case of the accused that the deceased committed suicide. We are therefore constrained to observe that the Courts below

must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the

accused under Section 302 IPC.

[19] In view of the foregoing discussion, the appeal succeeds. The appellant be released from custody forthwith, if not required in any other case.

[20] The appeal stands allowed accordingly. Pending applications, if any, shall also stand disposed of.

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