Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Thakur J. allowed the appeal and compensated the appellants because of false denial on thepart of respondents regarding compromise deed.

The facts of the case are such that the Bus Stand Hamirpur is adjacent to the house of the appellants  and is separated by brick wall over a retaining wall and on 30.3.2017 at about 8 AM his scooty was parked in his courtyard adjacent to retaining wall whereupon brick wall of Bus Stand was existing and at that time when respondent 2 was parking his bus towards petrol pump of HRTC located at Bus Stand Hamirpur, the bus had hit the wall and with its impact wall collapsed and debris had fallen on scooty of appellant. The incident was informed to the police wherein respondent 2 entered into a compromise and a compromise deed was reduced into writing which was signed by respondent 2 and appellant and also by witnesses and therefore, report with police was not recorded formally. Later, a claim petition for recovery of damages was filed which was dismissed. Aggrieved by the said dismissal order instant appeal was filed for re-evaluation of evidence and witnesses.

Counsels for the respondents have denied the occurrence as well as causing of damage to scooty and compromise in the matter by respondent 2 was also denied.

The Court observed that denial of execution of a document is one thing, whereas, objection with respect to admissibility or mode of proof is another thing. Even where execution of a document has been denied, a party has a right to raise objection with respect to admissibility as well as mode of proof at the time of its production and exhibition.

The Court observed that in the present case, at the time of accepting the documents i.e. compromise no objection with respect to admissibility of these documents and mode of proof was raised. Therefore, these documents are to be considered to have been placed on record in accordance with law and are to be admitted in evidence. However, genuineness, correctness of contents and relevancy thereof may be determined by Court by taking into consideration the contents thereof or other material on record

The Court relied on judgment P.C. Thomas v. P.M. Ismail, AIR 2010 SC 905 and observed that once a document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that mode adopted for proving the documents is irregular, cannot be allowed to be raised at any stage subsequent to marking of document as exhibit.

The Court thus held “all grounds in reference regarding damage probability caused to scooty and compromise arrived at between appellant and respondent No.2 has been established on record. However, evidence to quantify the damage for which appellant is entitled has not been established by leading cogent and reliable evidence.”

In view of the above, appeal was partly allowed.

[Sahil Kumar v. HRTC, 2021 SCC OnLine HP 4568, decided on 13-05-2021]

Arunima Bose, Editorial Assistant has put this report together 

Counsel for appellants: Mr. P.M. Negi,

Counsel for respondents: Mr. Vikas Rajput and Mr. Arun Raj

Case BriefsSupreme Court

Supreme Court: The bench of Navin Sinha and Krishan Murari, JJ has held that there cannot be any rigid standard or yardstick for acceptance or rejection of a dying declaration and whether or not it will be admissible in evidence will depend upon the fact of each case.

The Court was hearing a case dating back to 1991 where a married woman succumbed to 95% burn injuries. The case became complicated as there was no eye-witness account and the prosecution had based it’s case of circumstantial evidence involving the dying declaration of the deceased. The husband and the sister-in-law of the deceased were acquitted as the dying declaration did not inspire confidence.  “It vacillated between blaming the husband and the sister¬in-law, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration.”

Explaining the law relating to admissibility of dying declaration under Section 32 of the Evidence Act, 1872, the Court held that it alone can also form the basis for conviction if it has been made voluntarily and inspires confidence.  However,

“If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore, much shall depend on the facts of a case.”

Applying this principle the Court took note of the following facts at hand:

  • The statement of the deceased was based on hearsay evidence that the deceased was set on fire by her husband. There was no reference to sister-in-law in this statement and neither had she said anything about dowry demand.
  • The next statement of the deceased blamed the sister-in-law. This statement was not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by the record clerk of the hospital cannot establish the correctness of its contents.
  • The third statement of the deceased was recorded by the Assistant Sub­Inspector blaming sister-in-law alone without any allegation against the husband, and on the contrary states that she was brought to the hospital by her husband. “It again does not disclose any dowry demand.”
  • Assistant Sub­Inspector who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. The record clerk of the hospital also made a statement that the Doctor had not signed in his presence and that at times doctors would come and put their signatures in the record room.

In such facts and circumstances, considering that the statements of the deceased have vacillated, the Court noticed that there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. Hence,

“it would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.”

[Naresh Kumar v. Kalawati, CRIMINAL APPEAL NO. 35 OF 2013, decided on 25.03.2021]

*Judgment by Justice Navin Sinha

Know Thy Judge| Justice Navin Sinha

Appearances before the Court by

For appellant: Advocate Rajendra Singhvi

For respondents: Senior Advocate Ramesh Gupta

Case BriefsSupreme Court

Supreme Court: In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

The Court was hearing the reference from the July 26, 2019 order where, after quoting Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength. The Division bench, in the Shafhi Mohammad judgment, had “clarified” that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate.

The 3-judge bench in the present case, holding the Shafhi Mohammad judgment to be incorrect said,

“the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”

Clarification on Anvar P.V. case:

“… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65-B of the Evidence Act.”

The Court also clarified the confusion over the aforementioned sentence in the Anvar P.V. Case and held that the last sentence in Anvar P.V. case which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without the words “under Section 62 of the Evidence Act,…”

It said,

The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).”

Stage of furnishing the certificate to the Court:

The Court also took note of the fact that Section 65B does not speak of the stage at which such certificate must be furnished to the Court, and said that in cases where such certificate could be procured by the person seeking to rely upon an electronic record, such certificate must accompany the electronic record when the same is produced in evidence. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case.

“When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.”

General Directions to Cellular companies and internet service providers:

The bench issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act.

The Court directed that the aforementioned general directions shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

Framing of rules and directions under Section 67C of Informational Technology Act:

The Court directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571  , decided on 14.07.2020]

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

The Court was hearing a matter wherein the deceased had died after the accused stabbed him during a quarrel relating to land dispute. He gave a statement to the Doctor when he was taken to primary care and that statement, in which the victim narrated the occurrence including the names of the assailants, was treated as a dying declaration. The Trial Court had, upon appreciation of the material on record, acquitted all the accused and held that the dying declaration of the victim was unreliable.

Noticing that the Trial Court had given more weightage to the minor variations found in the evidence   of the prosecution witnesses as compared to the information found in the dying declaration, the Court said:

“The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult   for   such   a   victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot­like manner.”

The Court also said that the Trial   Court   was wrong in assuming that   the   Investigation   Officer   in collusion   with   the   doctor   wilfully   fabricated   the   dying declaration. It said:

“It is needless to state that the Investigation Officer and the doctor are independent public servants and are not related either to the accused or the deceased.  It is not open for the Trial Court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.”

[Laltu Ghosh v. State of West Bengal, 2019 SCC OnLine SC 236, decided on 19.02.2019]

Case BriefsSupreme Court

Supreme Court: Writing down a 338-page-long verdict, the 5-judge Constitution Bench of Dipak Misra, CJ and AM Khanwilkar, Dr. DY Chandrachud, Dr. AK Sikri and Ashok Bhushan, JJ held:

“Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called in question.”

CJI, writing for himself and Khanwilkar, J said:

“The Constitution itself being a dynamic, lively and ever-changing document adapts to the paradigm of epochs. That being the situation, it is also for this Court to take a fresh look and mould the existing precepts to suit the new emerging situations.”

He further concluded:

  • Where the fact is contentious, the petitioner can always collect the facts from many a source and produce such facts by way of affidavits, and the Court can render its verdict by way of independent adjudication.
  • The Parliamentary Standing Committee report being in the public domain can invite fair comments and criticism from the citizens as in such a situation, the citizens do not really comment upon any member of the Parliament to invite the hazard of violation of parliamentary privilege.

Chandrachud, J, writing for himself and Sikri, J said:

“As a matter of principle, there is no reason or justification to exclude the report of a Parliamentary Standing Committee from the purview of the judicial process, for purposes such as understanding the historical background of a law, the nature of the problem, the causes of a social evil and the remedies which may provide answers to intractable problems of governance.”

He, however, added that no Member of Parliament or person can be made liable for what is stated in the course of the proceedings before a Parliamentary Committee or for a vote tendered or given.

Bhushan, J, in his detailed judgment explained that the Parliamentary Committee Reports cannot  be  treated  as  conclusive  or binding of what has been concluded in the Report. He said:

“By acceptance of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence   is   the   adjudicatory   function   of   the   Court which may differ from case to case.”

[Kalpana Mehta v. Union of India,  2018 SCC OnLine SC 512, decided on 09.05.2018]

Case BriefsHigh Courts

Chhattisgarh High Court: Order of conviction and sentence passed against the accused-appellants by the trial court under Section 302 of IPC was set aside in a criminal appeal by a Division Bench of Prashant Kumar Mishra and Ram Prasanna Sharma, JJ.

The appellants were accused of murdering the deceased and were tried, convicted and sentenced under Section 302 IPC by the trial court. Learned counsel for the appellants submitted that the case of prosecution was based on the alleged extra-judicial confession made by appellants, but the same was not substantiated by any of the prosecution witnesses.

The High Court, after perusal of the record, found that there was no eyewitness to the incident and the case of prosecution was based on circumstantial evidence. The statement of the witnesses did not support the case of the prosecution. Further, the prosecution tried to establish extra-judicial confession on the basis of statement of PW 10, but her version was not stable right from the beginning of investigation. The Court observed that the extra-judicial confession is admissible if it inspires confidence and is made voluntarily. However, in the instant case, it was held that, the statement regarding extra-judicial confession made by PW 10 could not be acted upon as it was unstable and contradictory. The Court held that on an overall assessment of the evidence adduced by the prosecution, it could not be established that the appellants committed murder of the deceased, and the finding arrived at by the trial court were not sustainable in law. Hence the appeal was allowed and the conviction and sentence awarded by the trial court was set aside. [Dindayal v. State of Chhattisgarh,  2018 SCC OnLine Chh 385, dated 6-4-2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to admissibility of the certificate issued by Gram Panchayat Secretary as a proof of citizenship, the bench of Ranjan Gogoi and RF Nariman, JJ held that the said document can be used to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed after it clears a 2-step verification process. The steps include:

  • authenticity of the certificate itself.
  • the authenticity of the contents thereof.

The Court explained:

“The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate.”

The Court was hearing a batch of appeals against the order of the Gauhati High Court had held the Gram Panchayat certificate, submitted under ‘illustrative list of documents admissible’ as a supporting document, to be invalid in law.

Noticing that the Gram Panchayat Certificate merely acknowledges the shifting of residence of a married woman from one village to another, the Court made it clear that the said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate but will only its holder to establish a link between the holder and the person from whom legacy is claimed.

The Court, however, said:

“If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above.”

Stating that the said document can in no manner be considered a ‘private document’, the Court held that Gram Panchayat Certificate can, however, be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. It was made clear that the certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification. [Rupajan Begum v. Union of India, 2017 SCC OnLine SC 1411, decided on 05.12.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of Dipak Misra and R.F. Nariman, JJ referred the matter relating to referring and relying upon the report of the Parliamentary Standing Committee in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, before a Constitution Bench regard being had to the substantial question of law relating to interpretation of the Constitution involved.

The Court also asked the Constitution Bench to decide as to was as to whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive.

The Court was hearing the petition relating to action taken by the Drugs Controller General of India and the Indian Council of Medical Research (ICMR) pertaining to approval of a vaccine, namely, Human Papilloma Virus (HPV)  for preventing cervical cancer in women and the experimentation of the vaccine was done as an immunization by the Governments of Gujarat and Andhra Pradesh, before bifurcation, and the 81st Report dated 22nd December, 2014 of the Parliamentary Standing Committee was brought into the notice of the Court

The Court was of the prima facie opinion that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. It was opined that the view of a member of the Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by the Parliament inside the Parliament or the Committee is not to be adverted to by the court in a lis. Explaining the nature of the reports, the Court said that the reference to Constituent Assembly debates, reports of the Parliamentary Standing Committee and the speeches made in the Parliament or for that matter, debates held in Parliament are only meant for understanding the Constitution or the legislation, as the case may be. It is quite different than to place reliance upon Parliamentary Standing Committee report as a piece of evidence to establish a fact. [Kalpana Mehta v. Union of India, 2017 SCC OnLine SC 390, decided on 05.04.2017]


Case BriefsSupreme Court

Supreme Court: In the petition seeking setting aside the appointment of K.V. Chaudhary as Central Vigilance Commissioner and T.M. Bhasin as Vigilance Commissioner on the ground that these persons are not of impeccable integrity and also seeking order directing investigation into the incriminating material seized in the raids conducted on the Birla and Sahara Group of Companies in question, the Court said that the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation..

The bench of Arun Mishra and Amitava Roy, JJ said that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, it will not be safe to even initiate investigation. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. If the same is not done, then the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily.

Noticing that the materials placed on record in the present case are random sheets and loose papers and their correctness and authenticity, even for the purpose of income mentioned therein have been found to be un-reliable having no evidentiary value, by the concerned authorities of income tax, the Court said that the complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. [Common Cause v. Union of India, 2017 SCC OnLine SC 41, deiced on 11.01.2017]