Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arvind Singh Chandel and Sanjay K. Agrawal, JJ. dismissed the acquittal appeal being devoid of merits.

The facts of the case are such that marriage between the deceased and the son of the Respondent/accused was solemnised in the month of April, 2018. In November the same year, Mahima Kaushik committed suicide by hanging herself. FIR was registered and charges were framed and the Trial Court acquitted the accused. Assailing this acquittal order, instant appeal was filed.

Counsel for the Appellant/State submits that the Sessions Judge has committed manifest illegality in acquitting the Respondent/accused of the charge under Section 304B IPC as all the ingredients constituting the offence have been duly established by the prosecution and, therefore, the judgment of acquittal deserves to be set aside.

The Court relied on judgment Anjanappa v. State of Karnataka, (2014) 2 SCC 776, it has been held by the Supreme Court as follows:

“9. It is well settled that an order of acquittal is not to be set aside lightly. If the view taken by the trial Court is a reasonably possible view, it is not to be disturbed. If two views are possible and if the view taken by the trial Court is a reasonably possible view, then the appellate Court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse. We have examined the trial Court’s order of acquittal in light of above principles. We are of the considered opinion that the High Court was justified in setting it aside as it is perverse.

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record. Furthermore, from perusal of the evidence, it also appears that the fact regarding demand of dowry itself is suspicious.

The Court thus held “there is no manifest legal error in the judgment of acquittal recorded by the Learned Additional Sessions Judge and we do not consider it a fit case where this Court should re-appreciate the entire evidence on record or it is not a case where the view taken by the Additional Sessions Judge is so arbitrary or bears manifest error requiring interference.”

[State of Chhattisgarh v. Chameli Kaushik, 2022 SCC OnLine Chh 691, decided on 11-04-2022]


Appearances

For Appellant/State: Shri Kapil Maini


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vora, J. allowed an application for pre-arrest bail of the accused in connection with FIR which was filed under offences under Sections 11(1)(d), 11(1)(e), 11(1)(f) and 11(1) (h) of the Prevention of Cruelty to Animals Act, 1960 and Sections 6(a), 4, 3 and 8(2) of Gujarat Animals Preservation Act and Section 114 of IPC as well as Section 119 of the Gujarat Police Act.

Advocate of the appellant submitted that the appellant had been falsely implicated in the alleged offence and custodial interrogation of the applicant was not essential for the purpose of investigation.

The Court heard the respective parties and after considering the facts and circumstances of the case it was noted that the applicant was neither present at the place, nor any recovery being effected at his behest. The only role attributed to the present applicant was to the effect that he was supplier of prohibited animals. The Court further stated that nothing was brought on record to suggest that the applicant had supplied the animals.

The Court was of the view that there was no possibility of his fleeing from justice and there was nothing to be tempered with the evidence. Thus, the Court allowed the pre-arrest bail application on certain conditions. The Court however clarified that it was open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant.

[Asrafkhan Dilavarkhan Lashari v. State of Gujarat, 2022 SCC OnLine Guj 447, decided on 04-04-2022]


Counsels

for the Applicant(s) 1: Mr Jivabhai L Bhammar, Mr BM Mangukiya and Ms Bela A Prajapati

for the Respondent(s) 1: Mr Manan Maheta, APP


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Andhra Pradesh High Court: Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

The facts of the case are such that the respondent/plaintiff filed the suit for recovery of a sum of Rs 1, 71,600/- with future interest and costs. The petitioner/defendant filed written statement contending that the suit promissory note is a forged document and his signatures were forged. At the evidence stage, the petitioner filed an interim application under Section 45 of the Indian Evidence Act, 1872 to send a promissory note to the handwriting expert by receiving specimen writings in the four promissory notes which are annexed to the said application and to receive his specimen signatures in the open Court along with the vakalatnama and written statement for comparison. The respondent/plaintiff filed counter and opposed the said application. After considering the matter, the Trial Court dismissed the said application. Hence, the present Civil Revision Petition was filed.

The Court relied on judgment Bande Siva Shankara Srinivasa Prasad v. Ravi Surya Prakash Babu, 2015 SCC OnLine Hyd 467  wherein it was observed “No time limit could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of each case”.

Thus the view of the Trial Court that he has not taken steps seeking to refer the suit promissory note for expert opinion before commencement of Trial or prior thereto, but, after closure of the evidence on the plaintiff’s side and as such the application is liable to be dismissed is not tenable in law.

The Court further relied on judgment P.Padmanabhaiah v. G.Srinivasa Rao, 2016 SCC OnLine Hyd 517 wherein it was observed “In the well considered view of this Court, the defendants signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard as according to the plaintiff even by the date of the filing of the vakalat the defendant is clear in his mind about his stand in regard to the denial of his signatures on the suit promissory note and the endorsement thereon and as the contention of the plaintiff that the defendant might have designedly disguised his signatures on the Vakalat and the Written Statement cannot be ruled out prima facie.”

 “………There is no point in sending to an expert the documents of doubtful nature and character and add one more piece of unreliable evidence and burden the record by wasting the time and money of the parties. When there are no signatures of comparable and assured standard on the material record before the trial Court, it is unsafe to obtain the signatures of the defendant in open Court and send the said signatures and also his vakalat and written statement to an expert for obtaining his opinion after comparison of the signatures thereon with the disputed signatures on the suit promissory note, as any such opinion obtained from a handwriting expert on such material is not going to be of any help to the trial Court in effectively adjudicating the lis more particularly in the light of the admitted legal position that expert’s opinion evidence as to handwriting or signatures can rarely, if ever, take the place of substantive evidence.”

In light of the above discussion the Court held Civil Revision Petition fails and the same is liable to be dismissed. [Byalla Devadas v. Sivapuram Rama Yogeswara Rao, Civil Revision Petition No. 67 of 2022, decided on 16-03-2022]

Appearance

For petitioner- Mr.Nagaraju Naguru

For respondent- Mr.Turaga Sai Surya


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J., took up a bail application moved by the Applicant accused for offences punishable under Sections 376 (rape), 506 (criminal intimidation) IPC, under Sections 3,4 POCSO Act, under Sections 3(1)(W)(ii), 3(2)(v) SC-ST (Prevention of Atrocities) Act and under Sections 67, 67(A) The Information Technology Act.

As per the prosecution story, the Applicant was known to the Prosecutrix and had committed rape upon her. He took a video of the same and threatened her not to speak of it with anyone. Later on, the Prosecutrix received the said video on her mobile phone. She then brought it to the notice of her mother who took her to the police station to register the crime. The Court, while examining the submissions of the parties, drew its attention to the fact that despite the Prosecutrix producing the video clip before the police, the same was not made a part of the case diary. The Court, vide order dated 22-03-2022, directed the police to provide an explanation for the lapse.

T.I Bahoriband, District Katni tendered her unconditional apology for not making it a part of the case diary sent to the Office of the Advocate General and based on the which it was evident that the T.I of Police Station Sleemnabad, District Katni was prima facie guilty of suppressing the correct facts & not forwarding the relevant copies of the document(s), which were filed before the competent Court.

The Court directed the Deputy Inspector General of Police to conduct an inquiry into the conduct of delinquency on the part of the T.I. Sleemnabad, District Katni, who had forwarded incomplete case diary pertaining to Crime No.424/2021 suppressing the material document(s) so as to facilitate bail of the accused & furnish its report through Principal Registrar (Judicial).

The bail application was dismissed as withdrawn after the counsel for the applicant was informed that a compact disc of obscene video had been recovered from the mobile of the applicant.[Shivkumar Kushwaha v. State of Madhya Pradesh, Misc. Criminal Case No. 5948 of 2022, decided on 24-03-2022]


For applicant: Mr Ram Bihari Gautam

For State: Mr Piyush Jain


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Siddhartha Varma, J., held that it is the bounden duty of the enquiry officer to have seen whether the charges were proved on the basis of the evidence which was led by it.

A station house officer had given information to the Superintendent of Police that the petitioner under influence of alcohol had misbehaved with the private cook Shamshad Ahmad. Thereafter, the petitioner was suspended.

An enquiry report was filed as per which the petitioner was found to be guilty of the charges levied against him and a major punishment of removal was proposed under Rule 4(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Thereafter, the punishment order was passed, and the petitioner was removed from service.

Since the revision filed by the petitioner were dismissed, instant writ petition was filed.

High Court noted that impugned order cannot be sustained in the eyes of the law.

Bench added that, no individual who had seen the incident was summoned as an eyewitness to prove the incident. Also, there was only a medical report that there was a suspicion on account of the fact that there was a smell coming of alcohol from the petitioner while there was no blood report or urine report of the petitioner which actually would have proved that the petitioner had actually consumed liquor/alcohol to an extent that he was in a state of drunkenness.

Hence, the petition was allowed in view of the above. [Sangram Yadav v. State of U.P., 2022 SCC OnLine All 169, decided on 10-3-2022]


Advocates before the Court:

Counsel for Petitioner :- Ishan Deo Giri

Counsel for Respondent :- C.S.C.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

A PIL was filed by the petitioners sustaining serious allegations with respect to mismanagement of respondent 2 Arth Credit Cooperative Society.

The Court observed that in this public interest petition as it stands today, there are no supporting documents or informative evidence, even prima facie sustaining serious allegations made by the petitioners with respect to mismanagement of the respondent 2 Arth Credit Cooperative Society.

The Court further observed that a citizen approaching the Court in a public interest jurisdiction holds a greater duty to make full research and present necessary facts before the Court to cause further investigation.

The Court thus held “we are not inclined to entertain this petition.”[Gajendra Purbia v. Union of India, D.B. Civil Writ Petition (PIL) No. 3069/2022, decided on 02-03-2022]


Appearances:

For Petitioner(s): Mr. Sumit Singhal


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Present application was filed under Section 482 of the Code of Criminal Procedure was filed to quash the impugned order passed by the Additional Sessions Judge arising out of crime registered under Section 307 of the Penal Code, 1860, by which two applications filed by the applicant/accused under Section 311 of the Code have been rejected.

Analysis, Law and Discussion

High Court noted that trial Court by its order dismissed the applications for recalling the witnesses for further cross-examination and rejected the submission urged on behalf of the applicant on the ground that the defence had elaborately cross-examined.

If there is any contradiction or ambiguity in the prosecution evidence. It is a settled position of law that the accused would be entitled to benefit of the doubt.

Trial Court’s order had been assailed on two grounds:

  • After reading the evidence of PW-1 and PW-2 the identity of scribe Suresh Singh was not clear.
  • If the complaint had been written by Suresh Singh, son of Rama Shankar who died about one year before the incident, in that case, the genesis of the prosecution case would be proved false.

Section 311 is manifestly in two parts, the first part of the Section has given discretion to the Court and enables it any stage of an inquiry, trial, or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part of the Section is mandatory and imposes an obligation on the Court, to do one of aforesaid three things if the new evidence appears to it essential to the just decision of the case.

Further, the Court observed that, Section 311 of the Code gave wide power to the Court to summon a material witness or to examine a person present on Court or to recall a witness already examined.

The said Section confers a wide discretion on the court to act as the exigencies of justice require.

The discretion given by the first part is very wide and its very width requires a corresponding caution on the part of the court. But the second part does not allow any discretion; it binds the court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge [Ram Jeet v. State of U.P., AIR 1958 All 439]

In the present matter, Bench observed that, PW-1 is not an eyewitness of the incident, the FIR had been lodged by PW-1 after about 46 hours of the incident on the basis of information received from PW-2.

The application for recalling PW-1 had been filed after about 4 years of recording the statement-in-chief of the PW1 and another application for recalling PW-5 filed after about one year of recording the examination-in-chief of PW-5.

In Court’s opinion, the trial judge gave well-founded reasons for rejecting the applications.

Hence, the impugned order passed by the trial court was affirmed and the present application under Section 311 of the Code was dismissed.[Bheem Singh v. State of U.P., 2022 SCC OnLine All 40, decided on 18-1-2022]


Advocates before the Court:

Counsel for the Applicant: Neeraj Pandey, Om Prakash Singh Sikarwar

Counsel for the OP: G.A.

Case BriefsSupreme Court

Supreme Court: Addressing a case of dismissal of a Bank clerk for breaching the trust of a widowed sister-in-law as well as of the bank, the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that it was hardly a case for interference either on law or on moral grounds. The Court opined,

“The High Court had applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose.”

Backdrop

The dispute in the instant case was with regard to departmental proceedings made by the Indian Overseas Bank against the respondent employee and declaring him guilty on various counts inter alia including breach of duty as a custodian of public money and dishonesty, fraud or manipulation of documents.

The respondent was employed with the appellant-Bank as a clerk cum-cashier. It was on a complaint from the sister-in-law of the respondent, Smt. Meera Srivastava, complainant herein, that the respondent had opened and operated a savings account in the joint name of the respondent and his sister-in-law by forging her signatures, and encashed a demand draft of Rs. 20,000 which was issued to her by Kalyan Nigam Ltd., employer of her deceased husband, who passed away in a road accident, that the departmental proceedings were initiated against the respondent and he was placed under suspension and later on, on charges being proved against him he was dismissed from service.

Award by the Industrial Tribunal

The Industrial Tribunal decided the preliminary issue against the Bank as the Management/Bank had failed to produce original documents and most photocopies of the relevant pages were not readable. It was, thus, concluded that there was violation of the principles of natural justice. However, the Tribunal allowed the Bank to prove the charges against the respondent by adducing evidence. Consequently, the Tribunal opined that the Bank/Management had been successful in establishing all the charges against the respondent. On the issue of quantum of punishment also it was held that the same was commensurate to the charges levelled and proved against the respondent.

Findings of the High Court

However, by the impugned judgment the High Court had held that when the earlier departmental proceedings were found to be violative of the principles of natural justice then no findings vis-a-vis charges 1, 2, 3, 6 & 7 should have been arrived at, based on the plea that the Bank led evidence only in respect of charges 4 & 5. In respect of charges 4 & 5 it was opined that on the request of the respondent the signatures of the complainant should have been got compared with her admitted signatures by an expert and then only a correct conclusion could have been arrived at whether the signatures on the account opening form or the withdrawal form had been forged by the respondent or not and the Tribunal should have refrained from acting like an expert. The High Court held that degree of investigation should have been a standard which is resorted to by a criminal court.

Factual Analysis

Noticeably, while observing the admitted signatures in comparison with the signatures in question from a banker’s eye, the inquiry officer had opined that it could be said that there was absence of similarity. The stand of the complainant was that even the account was opened fraudulently without her ever visiting the bank. Considering that in her cross-examination it was never put to the complainant that she had gone to the Bank to open the account and the account opening form bears her signatures nor was it put to her that she had gone to the Bank to withdraw the amounts of Rs.7,000 and Rs.13,000, the Bench opined,

“We are of the view that the High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert.”

The Bench emphasised that at the threshold that there are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution. Referring to GE Power India Ltd. v. A. Aziz, 2020 SCC Online SC 782, the Bench stated, “if there is no jurisdictional error or violation of natural justice or error of law apparent on the face of the record, there is no occasion for the High Court to get into the merits of the controversy as an appellate court.” That too, on the aspect of an opinion formed in respect of two sets of signatures where the inquiry was held by an officer of the bank who came to an opinion on a bare comparison of the signatures that there was a difference in the same.

Further, the Inquiry Officer had opined while observing the admitted signatures in comparison with the signatures in question, it was not just the ipse dixit of the Inquiry Officer but was based on the deposition of the complainant. She unfortunately lost her husband in an accident. Observing the sorry state of situation, the Bench remarked,

“She unfortunately lost her husband in an accident. The two drafts were received from his employer and those drafts were kept in custody with the respondent, possibly because he was a banker and the elder brother of her deceased husband. Instead of extending the benefits of the same to her, the respondent went on a path of opening an account jointly in his and his sister-in-law’s name, presenting the drafts, and drawing the amounts with appropriation of the same to himself.”

Findings and Conclusion

Referring to a recent judgment in Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636, where it had been observed that the standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt, the Bench opined that the evidence was enough to implicate the respondent and  the High Court had applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose.

With regard to opinion of the High Court that only charges 4 & 5 could really have been gone into by the Industrial Tribunal, which required further evidence of a hand writing expert and that no evidence was led for other charges, the Bench held that view was neither the correct approach nor borne out of the record as, the Bench said,

“Evidence was led. Even earlier, the material in respect of other charges emanates from the record of the bank which shows the conduct of the respondent which are apparent from the manner of framing of the charges themselves and the material led in support thereof. Thus, even the aspect of the other charges could not have been brushed aside in the manner it purports to. “

In the light of above the Bench held that the respondent, a clerk-cum-cashier which was a post of confidence had breached that confidence along with the trust of a widowed sister-in-law, making it hardly a case for interference either on law or on moral grounds. Accordingly, the punishment imposed on the respondent was held to be appropriate as the conduct established of him did not entitle him to continue in service. The impugned judgment was set aside and the challenge to the award of the Industrial Tribunal was repelled.

[Indian Overseas Bank v. Om Prakash Lal Srivastava, 2022 SCC OnLine SC 62, decided on 19-01-2022]


*Judgment by: Justice Sanjay Kishan Kaul


Kamini Sharma, Editorial Assistant has put this report together 


Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while discussing the scope of Section 311 of the Criminal Procedure Code, 1973 with regard to recalling and cross-examining the witness expressed that,

It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

A petition was filed under Section 482 of the Criminal Procedure Code on behalf of the petitioner seeking setting aside the orders of the lower court whereby the opportunity of the petitioner to cross-examine the witness (PW-1) was closed and an application filed under Section 311 CrPC seeking recall of the said witness was dismissed.

Scope of Section 311 CrPC

 Supreme Court considered the scope of Section 311 CrPC in P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56.

Further, in the decision of Natasha Singh v. CBI, (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar v. State of W.B., (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, Rajeswar Parasad Misra v. State of W.B., (1966) 1 SCR 178, Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, Supreme Court held as under:

  1. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

xxx xxx xxx

  1. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

 In the instant case, petitioner had initially sought to cross-examine both the parents of the deceased on one day, however, the prosecution subsequently chose to drop the mother of the deceased from the array of the witnesses.

Petitioner had ample opportunity to cross-examine the witnesses, but he did not utilize the same.

Court cannot lose sight of the fact that a fair trial is the hallmark of criminal procedure. It entails not only the rights of the victims but also the interest of the accused.

High Court while observing the above added that, it is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

Elaborating more on its observations, Court stated that, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice.

Considering the fact that the petitioner had been charged for the offence punishable under Section 304B IPC and the witness was the father of the deceased, High Court deemed it apposite to grant one opportunity to the petitioner to cross-examine the witness, subject to a cost of Rs 5,000 to be deposited with Delhi State Legal Services Authority.

The matter was fixed before the trial court for 25-2-2022 and the investigating officer shall take appropriate steps to summon the witness and the matter shall be listed before the Trial Court on 14-2-2022.

Further, the Bench added that in case the petitioner does not cross-examine the witness on the date fixed and seeks an adjournment, his right to cross-examine shall stand closed.

In view of the above petition was disposed of.[Krishan Kumar v. State (GNCT) of Delhi, 2022 SCC OnLine Del 215, decided on 21-1-2022]


Advocates before the Court:

For the petitioner: Inderpal Kokhar, Advocate

For the respondent: Hirein Sharma, APP for State

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J., allowed the petition and quashed the impugned order dated 17-07-2017.

 The facts of the case are such that husband filed divorce petition under Section 13 of the Hindu Marriage Act, against the wife on the ground of cruelty. During the pendency of aforesaid divorce petition, husband filed an application under Order 18 Rule 17-A read with Section 151 CPC seeking therein permission of the Court to allow him to lead additional evidence, which may be necessary and just for the proper adjudication of the case. It was averred that he is in possession of original recording of the conversation, which is intended to be adduced on record by way of additional evidence would show that father of the wife has openly threatened him as well as his family members. The said application was allowed. Being aggrieved and dissatisfied with the order, petitioner (wife) approached the Court in the instant proceedings, praying therein to set-aside the order.

The Court observed that that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. It was further observed that wife in his examination-in-chief or cross examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels the Court to agree that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna.

The Court observed that basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

The Court held “since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.”[Dr Honey Johar v. Ramnik Singh Johar, 2018 SCC OnLine HP 3295, decided on 21-12-2018]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For the Petitioner: Mr. Anuj Nag, Advocate.

For the Respondent: Mr. R.G.S. Saini, Advocate

Case BriefsHigh Courts

Punjab and Haryana High Court: Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Order of the Family Court

The instant revision petition had been file by the petitioner-wife against the order of the Family Court whereby the husband of the petitioner, respondent herein, had been allowed to prove the Compact Disc pertaining to conversation between him and the wife subject to the condition of its correctness.

A petition was filed by the petitioner’s husband under Section 13 of the Hindu Marriage Act, 1955 for seeking divorce on the ground that his wife had been treating him with cruelty. With an intention to expedite the proceedings, the respondent-husband had moved an application seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones.

The said application was allowed by the Family Court observing that the husband was allowed to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and that strict principles of evidence are not applicable to the proceedings before the Family Court by virtue of Sections 14 and 20 of the Family Court Act.

Are Recordings of Private Conversation between Husband and Wife permissible as Evidence?

The petitioner contended that the evidence sought to be led by the husband was completely beyond pleadings, therefore, absolutely impermissible as the said CD’s were a clear cut infringement and downright invasion of the her privacy thus a violation of Article 21 of the Constitution, as the conversations had been recorded without her knowledge and consent.

The petitioner argued that the Family Court had given a complete go bye to Section 65 of the Evidence Act, 1882 because if recording had been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, could not be accepted as evidence thereof. Moreover, there was non-compliance of Section 65-B of the Act, 1882.

Right to Privacy v/s Recordings of Personal Conversation as Evidence

Admittedly, there was no mention of the conversations recorded by the husband between the years 2010 to 2016 in the said petition. It was thus evident that the husband was well aware of these conversations which could very well have formed part of the pleadings at the very outset, but clearly did not find mention. Furthermore, there was no averment regarding these conversations in the amended petition or even in the affidavit tendered in examination-in-chief. Therefore, the Bench opined that the CD’s in question could not be permitted in evidence.

Opining that acceptance of the CD in question would amount to a clear breach of fundamental right of the petitioner-wife i.e., right to privacy, as had been held the Supreme Court in People’s Union for Civil Liberties v. Union of India, (1997)1 SCC 301. Furthermore, the Bench said,

“It cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptiously by one of the parties.”

In Tripat Deep Singh v. Paviter Kaur, 2018 (3) RCR (Civil) 71, it was held that conversations between husband and wife in daily routine cannot be made the basis of or considered for deciding a petition under Section 13 of the Act. Reference to Section 122 of the Evidence Act, had been succinctly dealt with by the Rajasthan High Court in Vishal Kaushik v. Family Court, 2015 SCC OnLine Raj 445, wherein the Court had heal that,

“The exception to privileged communication between husband and wife carved out in Section 122 of the Indian Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of other situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence.”

Verdict

Keeping in view the factual matrix of the case, the Bench opined that it could not be said the Family Court is not bound by strict rules of evidence and is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife.

Therefore, acceptance of the CD by the Family Court was held to be unjustified and the impugned order was set aside. The application filed by the respondent-husband for submitting the said CD was dismissed and the instant revision petition was allowed. The Family Court was directed to take steps for expeditious disposal of the petition filed under Section 13 of the Act, preferably within six months. [Neha v. Vibhor Garg, CR No. 1616 of 2020, decided on 12-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner-wife: Rajan Bansal, Advocate

For the Respondent-husband: Sumeet Goel, Sr. Advocate with Anubhav Bansal, Advocate

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. dismissed the petition being devoid of merits.

The facts of the case are such that the 1st petitioner is the husband of 2nd respondent. On certain allegations that the petitioners subjected the 2nd respondent to harassment in connection with demand for dowry, FIR was registered in relation to offences punishable under sections 323, 504, 506 and 498-A of IPC and sections 3 and 4 of the Dowry Prohibition Act r/w section 34 of IPC. Investigation was taken up and charge sheet was been filed. This instant petition was filed under Section 482 of CrPC for quashing the charge sheet.

Counsel for the petitioner Mr. Arjun Rego submitted that if the entire charge sheet which is based on statements of witnesses is considered, it can be said that no offence against the petitioners is made out.

The Court observed that though under Section 482 of Cr.P.C. charge sheet can be quashed, the said jurisdiction cannot be invoked for quashing the charge sheet by appreciating the evidence. It is a settled principle that while deciding the petition under Section 482 of Cr.P.C., evidence cannot be appreciated as it lies within the domain of the Trial Court.

The Court held “I do not find any ground to entertain this petition. Accordingly, the petition is dismissed.” [Pradeep Moparthy v. State of Karnataka, Criminal Petition No. 2860 of 2021, decided on 15-12-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For respondent: Mr. Rohith BJ

Case BriefsSupreme Court

Supreme Court: In a case where deceased had sustained a gun-shot injury with a point of entry and exit, the 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and Vikram Nath, JJ has held that the non-recovery of the weapon of offences or the failure to produce a report by a ballistic expert would not discredit the case of the prosecution which has relied on the eyewitness

The Court relied on the following rulings wherein it was held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon and that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon.

Gurucharan Singh v. State of Punjab, (1963) 3 SCR 585

“It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [(1950) SCR 821] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case.

State of Punjab v. Jugraj Singh, (2002) 3 SCC 234

“18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses.”

[Gulab v. State of Uttar Pradesh, 2021 SCC OnLine SC 1211, decided on 09.12.2021]


Counsels

For Appellant: Advocate S Mahendran, nominated by the SCLSC

For State: AAG Diwakar with Advocate Ruchira Goel


*Judgment by: Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., while addressing a matter of a daughter alleging rape by her father expressed the significance of ‘sterling witness’.

Instant appeal was directed against the decision by which the appellant was convicted for offences under Section 376(2)(f) and 506 of the Penal Code, 1860 and under Section 5(n) read with Section 6 of Protection of Children from Sexual Offences Act (POCSO).

Father (accused) of the prosecutrix (PW2). PW 2 informed the Child Welfare Committee that the accused had subjected her to sexual abuse, hence police was directed to record the statement of PW 2, pursuant to which an FIR was registered for offences under Section 376 (1)(ii), 506 of IPC and Section 6 of POCSO Act.

Additional Sessions Judge held that the evidence of the prosecutrix amply proved that the accused had subjected her to rape. Therefore, relying upon the sole testimony of the prosecutrix, Judge held the accused guilty of the above-stated offences.

Analysis, Law and Decision

High Court expressed that the conviction can be based on the sole testimony of the prosecutrix provided the evidence of the prosecutrix is found to be worthy of credence and reliable and is of sterling quality.

In the Supreme Court’s decision of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, it was held that

the “sterling witness” should be of a very high quality and calibre whose version should be unassailable. The Court considering the version of such witness should be in a positing to accept it for its face value without any hesitation. To test the quality of such witness, what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to with stand the cross examination of any length and howsoever strenuous it may be, and under no circumstance should be roomed for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.

 What led to the prosecutrix stating that she was raped by her father?

The evidence of PW2 revealed that she was housed in Bal Sudhar Griha for theft of a laptop. About a month later, the accused brought her home. She had deposed that the accused did not allow her to leave the house and used to beat her. She, therefore, ran away from the house, but the accused brought her back and assaulted her and cut her hair.

One day under the influence of alcohol, the accused touched PW2 inappropriately and when she resisted, he offered her money. Thereafter, he removed her clothes and had forcible sexual intercourse with her. She could not inform earlier about the said incident, since the accused used to threaten her.

High Court observed that this witness had not stated in her statement under 161 of CrPC that the accused had touched various parts of her body and offered her money and tried to have forcible sexual intercourse with her. This was a material omission that casts a doubt on the credibility of this witness.

It was noted that the room in which PW 2 used to sleep several other family members also used to sleep in the said room and accused used to sleep in the vehicle outside for want of sufficient space in the room. Hence, in such circumstances, it is highly improbable that the accused would rape his daughter without any of his family members coming to know about the incident.

The Bench stated that PW2 had admitted that after the accused had brought her back from Bal Sudhar Griha, he prevented her from leaving the house and whenever she did not listen to him, he would beat her and that he had even cut her hair. Her evidence also indicated that she was annoyed with the accused of beating her and putting several restrictions on her.

The Court opined that in the above-stated circumstances, the possibility of PW2 falsely implicating the accused in the rape case could not be ruled out and the evidence of PW. 2 was not reliable and trustworthy.

Bench added that PW 2 did not pass the test of a ‘sterling witness’ and hence no conviction could be based on the uncorroborated testimony of PW 2.

Therefore, the appeal was allowed, and the accused was acquitted of offences under Section 376(2)(f) and 506 of IPC under Section 5(n) read with Section 6 of POCSO Act. [X v. State of Maharashtra, Criminal Appeal No. 1704 of 2019, decided on 1-12-2021]


Advocates before the Court:

Mr. Aniket Vagal for the Appellant.

Mr. S.V. Gavand APP for the Respondent-State.

Mr. S. R. Nargolkar a/w. Arjun Kadam for the Respondent No.2.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of K Priyantha Fernando and Sampath B Abayakoon, JJ., dismissed the appeal against the conviction order of the High Court of Hambanthota and upheld the conviction  for committing the murder of one Hettiarachchige Thilaka and causing grievous hurt on one M.B. Himali Asanka punishable in terms of sections 296 and 316 of the Penal Code respectively.

In the case, the deceased mother had gone to close the gate in front of the house when the appellant had broken the kadulla, come inside their garden and the appellant had hit the deceased on her head with a katty knife and upon succumbed to injuries upon admission to injuries. The appellant said he did not have any intention to kill anyone but swerved the club in his self defence.

The Counsel for the appellant submitted that the words the deceased used mocking at him provoked the appellant. The Counsel for the respondent submitted that the said mocking happened had been at about 6.30 pm and the incident of assault has taken place at about 8.30-9.00pm. Thus, it cannot be a sudden provocation.

The Court referred to the exception 1 to section 294 of the Penal Code which provides;

“Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, cause the death of the person who gave the provocation or causes the death of any other person by mistake or accident” and observed that the assault had taken place at about 8.30-9.00pm. Thus, the appellant cannot rely on sudden provocation.

Further, the Court observed that the medical evidence showed that the cut injury to the top of the head could not have been caused by swerving the katty as testified by the appellant as it had been a hard cut injury caused intentionally on top of the head.[Loku Baduge Dhammika Priyantha Jayasuriya v. Attorney General, Court of Appeal Case No. HCC/0112 of 2019, decided on 17-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


COUNSEL :

For Appellant:  Nihara Randeniya

For Respondent:  R. Bary

Case BriefsSupreme Court

Supreme Court: Despite a slipshod investigation in a case, the 3-judge bench of NV Ramana, Surya Kant and Hima Kohli*, JJ has upheld the conviction of a man guilty of killing his wife within a few months of the marriage on her failing to satisfy the demands of dowry. The deceased Fulwa Devi had gone missing from her matrimonial home and her body was found on the bank of river Barakar after a week.

What does the law state?

For convicting the accused for an offence punishable under Section 304B IPC, the following pre-requisites must be met:

  1. that the death of a woman must have been caused by burns or bodily injury or occured otherwise than under normal circumstance;
  2. that such a death must have occurred within a period of seven years of her marriage;
  3. that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and
  4. that such a cruelty or harassment must have been for or related to any demand for dowry.

Section 304B IPC read in conjunction with Section 113B of the Evidence Act shows that once the prosecution has been able to demonstrate that a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, soon before her death, the Court shall proceed on a presumption that the persons who have subjected her to cruelty or harassment in connection with the demand for dowry, have caused a dowry death within the meaning of Section 304B IPC. The said presumption is, however, rebuttable and can be dispelled on the accused being able to demonstrate through cogent evidence that all the ingredients of Section 304B IPC have not been satisfied.

Facts, circumstances and investigation – Analysed

  • The Investigating Officer recorded the statements of the witnesses, prepared the inquest report of Fulwa Devi, testified about the two places of occurrence namely, the matrimonial home of the deceased at village Karni and the spot at the bank of river Barakar where the dead body was found, but failed to record the statements of any of the residents of the village that comprised of only twenty-five houses including the statement of the neighbours of the accused;
  • He also did not make any concerted effort to trace the dead body of the deceased. It was only on persistent efforts made by the father, brother and brother-in-law of the deceased, that the dead body was ultimately located after almost a week from the date Fulwa Devi had gone missing from her matrimonial home by which time, the body had got decomposed to a large extent.
  • failure to explain the circumstances under which the deceased had vanished from her matrimonial home.
  • failure to establish an illicit relationship between the deceased and her brother–in-law or that she was living with him and not residing at her matrimonial home.
  • The plea raised on behalf of the accused that the body recovered from the banks of Barakar river was unidentifiable, was also found devoid of merits when the father of the deceased testified that he could recognize the dead body as that of Fulwa Devi, from a part of the face that had remained intact and from the clothes that were found on the body.

Two Hypothesis of the crime – Analysed

No eye witness has been produced who could testify as to how the body of the deceased was found on the banks of river Barakar. Hence, the Court observed the following two hypothesis:

  1. the deceased was done away with within the four walls of her matrimonial home, her dead body was smuggled out and dumped into the river.
  2. the deceased was alive when she was taken to the river-side under some pretext and pushed in, leading to her death by drowning.

If the first assumption is taken to be correct, then surely, some villager would have seen the accused persons carrying the dead body to the river where it was finally dumped. However, the prosecution had not produced any villager who was a witness to the body of the deceased being taken out of the matrimonial home and carried to the river. Therefore, this version would have to be discarded in favour of the second one which is that the deceased was alive, when she was accompanied to the river and then she was forcibly pushed in and could not emerge alive from the watery grave. The latter assumption also gains strength from the post mortem report which records that there were no signs of any ante mortem injury on the body. If the deceased was killed in the house, then the body would certainly have revealed some signs of struggle.

Conclusion

Recovery of the body from the banks of the river clearly indicates that Fulwa Devi had died under abnormal circumstances that could only be explained by her husband and in-laws, as she was residing at her matrimonial home when she suddenly disappeared and no plausible explanation was offered for her disappearance.

Hence, despite the shoddy investigation conducted by the prosecution, the Court was of the view that the circumstances set out in Section 304B of the IPC have been established in the light of the abovementioned facts.

“The circumstances put together, unerringly point to his guilt in extinguishing the life of his wife within a few months of the marriage on her failing to satisfy the demands of dowry.”

Hence, the appellant who is presently on bail, was directed to surrender before the Trial Court/Superintendent of Jail within four weeks to undergo the remaining period of his sentence.

The Court however acquitted Fulwa Devi’s mother-in-law as, from the evidence on record only certain omnibus allegations have been made against her with respect to dowry demands, however, the prosecution was not able to indicate any specific allegations, nor point to any specific evidence or testimony against her. She was, hence, directed to be released forthwith, if not required to be detained in any other case.

[Parvati Devi v. State of Bihar, 2021 SCC OnLine SC 1285, decided on 17.12.2021]


*Judgment by: Justice Hima Kohli

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Hrishikesh Roy, JJ has held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.

Background

On 14.03.2009, the police party was escorting four accused from Central Jail, Jaipur to the Court of CJM, Bhiwani by train. When the train reached at Railway Station Nangal Pathani, four young boys entered their compartment and attacked the police party in order to rescue the said accused. The accused, who were in custody, also tried to escape. They even tried to snatch the official carbine. One of the accused fired upon Head Constable, who later succumbed to his injuries.

In the complaint, it was stated that the police overpowered one person, who had thrown chilly powder in their eyes and the remaining three accused succeeded in fleeing. The apprehended accused disclosed his name and identity of other assailants.

To prove the guilt of the accused, prosecution examined as many as 23 witnesses in support of its case. The statements of the accused were also recorded under Section 313 of the Cr.P.C. They had pleaded that they were innocent and had been falsely implicated.

The Additional Sessions Judge by judgment dated 14.01.2010, held all the accused guilty for commission of offences punishable under Sections 224, 225, 332, 353, 302 r/w Section 120-B of the Penal Code. The Punjab and Haryana High Court affirmed the conviction.

Analysis

To prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC.

“A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

On the question of relying on the confessional statement of the co-accused, the Court took note of the ruling in Indra Dalal v. State of Haryana, (2015) 11 SCC 31, wherein it was explained that,

“16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.

17. The word “confession” has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible.”

Considering that in Uppa alias Manjunatha v. State of Karnataka, (2013) 14 SCC 729, it was held that when an accused is held guilty and sentenced to imprisonment, confirmation of sentence by the High Court is justifiable only in the event of giving sound reasons upon analysis of material evidence, the Court noticed that in the case on hand, a perusal of the judgment of the High Court revealed that except referring to depositions, High Court has not considered the evidence at all and confirmed the conviction and sentence as ordered by the Trial Court.

Ruling on facts

On close scrutiny of evidence on record, the Supreme Court held that prosecution failed to prove its case, that the appellant in the present case, had conspired with other accused for the offences for which he was charged.

“Except the alleged confessional statements of the coaccused and in absence of any other corroborative evidence, it is not safe to maintain the conviction and sentence imposed upon the Appellant.”

The Court held that the findings recorded by the Trial Court in convicting the appellant mainly on the ground that he was one of the conspirators for the crime in question, is erroneous and illegal. The High Court also, did not considered the evidence on record in proper perspective and erroneously confirmed the conviction and sentence imposed on the appellant.

The Court, hence, set aside the conviction and ordered the release of the appellant.

[Parveen v. State of Haryana, 2021 SCC OnLine SC 1184, decided on 07.12.2021]


Counsels

For appellant: Advocate Rishi Malhotra

For State: Addl. AG Bansuri Swaraj


*Judgment by: Justice R. Subhash Reddy

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., dismissed a revision petition filed against the order of the lower court refusing to discharge the accused-appellant.

Instant application questions the propriety, correctness and legality of the order by which the Sessions Judge CBI, Greater Mumbai, refused to discharge the applicant from the case registered against him.

Central Bureau of Investigation registered the FIR under Section 120 B read with Sections 420, 465, 467, 468, 471 of the Penal Code, 1860 on the basis of written complaint of D.G Kallatti, Deputy General Manager of Central Bank of India against Ashoka Property Developers and Ashish Communication Systems, its Directors/Guarantors and thirteen other, including two bankers and the applicant-accused 11.

Complainant alleged that the accused entered into a criminal conspiracy in the year 2001 to cheat, the Central Bank of India to the tune of Rs 17 crores by creating false and fabricated documents and further dishonestly suppressing material information, in respect of immovable properties, which were offered as collateral security either by its over-valuation or other for availing credit facilities and misutilising the same.

As per the investigation, the applicant had directed Ravikumar Bhil to open another bank account in the name of M/s Hindustan Enterprises in Indusind Bank. The said amount was used for siphoning the crime proceeds from M/s Aashish Communication Systems to the tune of Rs 80,80,000.

The four facts which were disclosed, were as follows:

(i)that though, crime proceeds were credited in the bank accounts of M/s Ahemdabad Sales Corporation, and M/s Hindustan Enterprises, these accounts were opened and operated by Mr Bhil (applicant’s employee) as per the directions of the applicant.

(ii) statement of Ravikumar Bhil recorded under Sections 169 and 164 of the Criminal Procedure Code would disclose the said fact.

(iii)statement of Ganesh Mokal, Assistant Manager of Kotak Mahindra Bank, confirms that money was transferred to the Account of M/s. Ahmedabad Sales Corporation from the account of M/s. Ashish Communication System, and that amount of Rs1,35,25,000/- was transferred to the account of M/s Flextough Metal in IDBI Bank, which belongs to the co-accused.

(iv) no business transactions were held between M/s Ashish Communication Systems and M/s Ahmedabad Sales Corporation, M/s Hindustan Enterprises.

Question

Whether the above stated were grounds for proceeding against the applicant-accused?

Settled Law:

The judge while considering the question of framing the charges under Section 227 of the Criminal Procedure Code, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not, a prima facie case against the accused has been made out.

Court stated that the statement of witness recorded under Section 164 of the Code, was not substantive evidence and though it can be used only to corroborate or contradict that witness, the fact remained that, applicant was the owner of Ahmedabad Express Newspapers.

It was further added that, undisputedly, Mr Bhil was his employee. If that be so, it was inconceivable that Mr Bhil would open two bank accounts, one in the name of Ahemdabad Sales Corporation and another, Hindustan Enterprises and would receive lacs and crore of rupees, soon after, the accounts were opened.

Therefore, in view of the facts of the present matter, there was no reason to discard and disbelieve the statement of Mr Bhil, which indeed disclosed applicant’s complicity in the crime.

Hence, the revision application was rejected. [Kalpesh Jayram Koshti v. Central Bureau of Investigation, 2021 SCC OnLine Bom 4947, decided on 6-12-2021]


Advocates before the Court:

Mr B.B. Tiwari i/by. BBT Legal, Advocate for the applicant.

Ms Ameeta Kuttikrishnan, Advocate for respondent 1.

Mr A.D. Khamkhedkar, APP for State-respondent 2.

Case BriefsSupreme Court

Supreme Court: In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

A house was being constructed on land stated to be of the victim named Abdul Wahab and others when the accused persons came in a mob towards the house of the victim armed with lathis, spears, daggers, etc. The victim tried to escape by taking shelter in the house of one Shorab Ali but did not succeed as the house was surrounded, walls of the house were broken and a mounted assault made on the victim. Different accused were assigned different roles to the extent of the weapon they wielded. The body of the victim was then carried and disposed of by throwing in the river Brahmaputra.

Charges were framed against the accused under Sections 147/148/324/302/201 read with Section 149 of the IPC and the Sessions Judge convicted all the 32 accused and sentenced them to life imprisonment vide judgment dated 8.5.2015.

The Supreme Court, in the case at hand, was only concerned with the appeal filed by Taijuddin, one of the accused, claiming that his role was only of having pointed out the house where the victim was hiding.

The Court considered the following key factors while deciding the case:

  • The victim’s son, in his testimony, stated “Taijuddin showed that my father Abdul Wahab was inside the house of Sorab.”
  • There were inconsistency in the testimonies of the witnesses – inasmuch as the family members of the deceased never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding.
  • The appellant was present at the place of the incident at the early hours in the morning (around 6:30 AM) because of his house being almost adjacent to where the deceased was hiding.
  • He did not come along with the mob, was not carrying any weapon and did not assault anybody.

The Court noticed that the only evidence of his involvement is that he pointed to the house where the victim was hiding.

“Given that a murderous mob fully armed was hunting for him, the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was, but that by itself cannot rope in the appellant under Section 149 of the IPC.”

In Subal Ghorai v. State of West Bengal, (2013) 4 SCC 607, the Supreme Court had held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Court considered the possibility of often people gathering at the scene of offence out of curiosity but that did not make them share the common object of the assembly. The Court held that,

“The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations.”

Considering the aforementioned law laid down by the Supreme Court and the facts and material before the Court, it was held that the case against the appellant was not proved beyond reasonable doubt. In fact, no case seemed to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. The accused was, hence, entitled to a clean acquittal in the given facts.

[Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154, decided on 01.12.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Delhi High Court: While addressing a matrimonial dispute, Division bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

In cases where there are allegations of cruelty – specially mental cruelty such as Dowry Demand, violent abusive behaviour, starving the spouse of affection, resources and emotional support, there can be no set parameters that the court can follow.

Appellant (husband) filed the present appeal under Section 19 of the Family Courts Act with Section 28 of the Hindu Marriage Act, 1955 challenging the decision whereby the petition filed by the respondent for dissolution of marriage under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 was allowed and the marriage between the parties was dissolved.

Analysis, Law and Decision

High Court noted the appellant’s contention that respondent was not a reliable witness, to which the Court disagreed and stated that the respondent substantiated and supported her claims by way of her evidence affidavit and written submissions, besides being cross-examined before the Family Court.

Court stated that pleading and evidence have to be read as a whole and no single instance can be picked and read in isolation.

Minor aberrations are normal to occur and cannot be a reason to discard the entire testimony of a witness.

Rather by way of her Evidence Affidavit, the Respondent had proved that the Appellant and his family had demanded dowry from her family -both at the time of marriage, and after the marriage and she has even placed on record email chats between herself and the Appellant establishing the same

Appellant could not disprove the above-stated dowry allegation.

Court added that numerous complaints and specific incidents of cruelty – both mental and physical, show the true conduct of the appellant, which cannot be expected in any healthy matrimonial relationship. Therefore, the appellant’s submission with regard to no instance of cruelty been established was rejected.

Bench relied on the decision Laxmi v. Kanhaiya Lal, Mat. App (FC) 5 of 2020.

Matrimonial disputes between a husband and wife cannot be expected to and are incapable of following strict parameters of evidence.

High Court expressed that,

 Matrimonial issues are generally confined to the bedroom and the matrimonial home, away from public eye and gaze. A lot of times these cases do not have any independent or impartial witnesses.

In Court’s opinion, family court correctly employed the standard of proof of preponderance of probabilities.

Family Court discussed and appreciated the evidence before it, and no perversity in the impugned judgment was found.

Bench added that, appellant was found guilty of marital cruelty and the instances could not be said to be ordinary wear and tear of day-to-day life.

The parties cohabited together only for a period of 64 days and have been living separately since 10.07.2011. It has been a decade since the parties have lived together and the entire substratum of marriage has perished.

Therefore, the continuation of marriage between the parties would cause undue harm not only to respondent/wife but also appellant/husband.

Court found complete breakdown of marriage and the marriage was beyond repair.

In view of the above, present appeal was dismissed. [Rahul Kesarwani v. Sunita Bhuyan, 2021 SCC OnLine Del 5141, decided on 1-12-2021]


Advocates before the Court:

For the appellant:

Abhey Narula, Advocate

For the respondent:

Respondent-in person