Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and  (iii) that he suffered damage.

The instant second appeal was filed by the defendants in the suit filed by the plaintiff for malicious prosecution. The plaintiff had questioned the manner in which the local mosque of his area was being administered. The President of the Jamath which managed the mosque was the brother-in-law of Defendant 1, who implicated the plaintiff and his son in a criminal case under Sections 452 and 506(2) IPC. The plaintiff was arrested and detained in custody for more than 24 hours. He was also suspended from service. Subsequently, he was acquitted by the Judicial Magistrate. Following his acquittal, the plaintiff filed the instant suit.

The plaintiff claimed damages of Rs 1.5 lakhs from the defendants. The trial court had dismissed the suit of the plaintiff, but he succeeded before the first Appellate Court which awarded him damages amounting to Rs 1 lakh. Defendants 1 to 6 (all appellants in the instant appeal) were found liable by the first Appellate Court.

While giving relief to Defendants 2 to 6, and dismissing the appeal qua Defendant 1, but at the same time modifying the amount of damages awarded to the plaintiff, the High Court discussed and decided the following points:

1. Suit for malicious prosecution lies against whom?

A suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced.

The High Court said that the question is who was the prosecutor. In the instant case, it was only Defendant 1 who gave the complaint against the plaintiff and his son. The other defendants no doubt supported the prosecution but they merely figured as witnesses. Defendants 2 to 6 could not be said to have prosecuted the plaintiff. If according to the plaintiff, they had committed perjury, the course of action to be taken against them will have to be different.

The Court held that the plaintiff did not have any cause of action against Defendants 2 to 6. The appeal qua them was allowed.

However, according to the Court, Defendant 1 could not take the same plea. Even though criminal case was based on police report, it was anchored on the complaint given by Defendant 1. Having been the de facto complainant and having played a prominent part in the prosecution, Defendant 1 could not be heard to contend that the suit is not maintainable against him. The Court placed reliance on the Privy Council decision in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14.

2. Duty of Civil Court in a suit for malicious prosecution

The case of the prosecution against the plaintiff in the criminal case under Sections 452 and 506(2) IPC ended in acquittal. But, according to the High Court, the Civil Court must undertake an independent enquiry in such cases. It cannot merely borrow the grounds of the acquittal and grant decree in favour of the plaintiff. The burden of proof lies on the plaintiff to show that he was maliciously prosecuted.

3. Shifting of burden of proof

To discharge the burden cast on him, the plaintiff examined himself to depose that the complaint against him was false. According to him, the first defendant was nurturing animosity against the plaintiff for more than one reason.

The High Court said that there is no doubt that the burden of proof lay only on the plaintiff. This burden can never shift. However, the plaintiff cannot be called upon to prove the negative. As regards the non-existence of reasonable and probable cause, the onus will shift to the defendant after the plaintiff asserts in the witness box that the complaint against him was false and after he adduces evidence demonstrating the existence of malice on the part of the defendant.

While on this point, the High Court summarised the principles laid down in Bharat Commerce & Industries Ltd. v. Surendra Nath Shukla, 1965 SCC OnLine Cal 79; and Satdeo Prasad v. Ram Narayan, 1968 SCC OnLine Pat 26.

4. Nature of proof

The High Court observed that a plaintiff in a suit for malicious prosecution need not demonstrate that he was innocent of the charge upon which he was tried. The Privy Council in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14 has categorically held so. The plaintiff need not undergo a second agnipariksha. On the other hand, it is the defendant who must discharge the onus once it is shifted to him.

5. Merits of the case

The High Court held that in the instant case, Defendant 1 had miserably failed to discharge the onus cast on him and the plaintiff had proved all the ingredients of malicious prosecution.

The allegation of Defendant 1 was that he had given an earlier complaint against the plaintiff and to force him to withdraw the same, the plaintiff and his son entered his shop on 1-12-2000 at 9 pm. But the earlier complaint was not marked. Since the occurrence spot is a shop, it would have definitely attracted notice and a complaint would have been lodged before the local police immediately thereafter. But, Defendant 1 approached the District Superintendent of Police only on the next day and the written complaint given by Defendant 1 was sent through post to the Police Station concerned and the FIR itself was registered only on 6-12-2000. Also, in support of the criminal charge, except the testimony of Defendant 1 himself, there was no corroboration forthcoming.

In Court’s opinion, the existence of malice was amply established by the plaintiff. On 2-11-2000 the plaintiff has sent a notice to the President of the mosque, who was none other than the brother-in-law of Defendant 1. It was also admitted that the plaintiff asked for accounts and the relationship between the mosque management and the plaintiff was under strain. In this background, the criminal case was registered and the plaintiff was arrested.

A reading of the evidence adduced on either side showed that there were two issues, one concerning the mosque administration and the other concerning the matrimonial dispute of the plaintiff’s son. It was obvious that the mosque management wanted to teach the plaintiff a hard lesson. There was no cause at all for giving the complaint, let alone reasonable and probable cause. The twin reasons mentioned above culminated into a false complaint.

6. Damages

The plaintiff was arrested and was in detention for more than twenty-four hours. He had to seek bail and furnish sureties. He had to undergo the agony of trial. He was suspended from service. The plaintiff obviously incurred expenditure for engaging counsel and attending the court hearings. As a result of the case, his family was also excommunicated. Thus, the plaintiff established that he suffered damage and injury. His reputation was tarnished and he also suffered loss of liberty. He had clearly made out a case for award of damages.

Considering the facts and circumstances, the High Court quantified the compensation payable to the plaintiff at Rs 50,000. Defendant 1 was directed to pay damages as compensation to the plaintiff with interest at the rate of 6% per annum from the date of plaint till the date of payment. [M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]

Case BriefsHigh Courts

Chhattisgarh High Court: P. Sam Koshy J., dismissed the petition stating that no interference is required at this juncture keeping in mind the settled position of law.

The facts of the case are such that Petitioner was working with the Respondents as Minig Sirdar, Grade-3. An FIR was lodged against the Petitioner and the Central Bureau of Investigation (CBI) registered a criminal case against him for the offence punishable under Sections 120-B, 420, 468, 471 of the Indian Penal Code i.e. IPC as well as under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act i.e PCA and the Petitioner is being prosecuted before the Special Judge, CBI, Dhanbad. Meanwhile, the employer, i.e., the Respondents has initiated a departmental enquiry against the Petitioner which is under challenge in the present Writ Petition.

Counsel for the petitioners submitted that the witnesses in both the cases, i.e., the criminal case as also in the departmental enquiry, would be the same and in the event if the Petitioner is made to disclose his defence before the departmental authorities first, it may have an adverse bearing on the outcome of the criminal case wherein evidence would get adversely affected.

The court relied on judgment S. Sreesanth v. Board of Control for Cricket in India, 2019 (4) SCC 660 and Karnataka Power Transmission Corporation Limited v. C. Nagaraju, 2019 (10) SCC 367 wherein it was held that “Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court.”

 In the case of Shashi Bhusan Prasad v. Inspector General, CISF, 2019 (7) SCC 797 wherein it was held that “19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a Court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of ‘preponderance of probability’. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court.

XXX XXX XXX

  1. The judgment in G.M. Tank case (supra) on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/corelationship based on different sets of facts and evidence which has been independently enquired in the disciplinary proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service.

 Based on facts, observations and authoritative judgments Court held that it would not be proper to exercise its extraordinary power under Article 226 of the Constitution of India to interfere with the disciplinary proceedings initiated against the Petitioner.

In view of the above, petition was dismissed.[Prayag Prasad v. South Eastern Coal Fields Limited, 2020 SCC OnLine Chh 1449, decided on 24-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., reversed the acquittal of the respondent-accused holding him guilty of having committed an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

Facts on record

The complainant had come with a case wherein he stated he had friendly relations with the accused. Since the accused was in need of money to purchase immovable property, therefore he requested the complainant to extend the amount of Rs 15,00,000 and Rs 6,00,00 which was extended by the complainant.

In regard to the above legal enforceable debt or liability, two cheques were issued.

On depositing the above cheques, both were dishonoured for the reason “refer to drawer”.

In light of the above circumstances, the complainant filed two separate complaints and Magistrate on taking into consideration the above said facts, acquitted the accused.

In view of the above, the present appeal has been filed.

Advocate for the complainant relied on the decision of Vijay v. Laxman, 2013 STPL (DC) 679 SC, wherein it was held that:

“The burden of proving the consideration for dishonour of cheque is on the complainant, but the burden of proving that a cheque had not been issued for discharge of a legally enforceable debt or liability is on the accused. If he fails to discharge the said burden he is liable to be convicted.”

In view of the above decision, Complainant’s Counsel submitted that trial judge committed illegality and the decision was in view of the legal position and therefore the appeal deserved to be allowed.

Analysis, Law and Decision

Whether the complainant has discharged the initial burden to prove that he had advanced loan to the accused?

With regard to the amount of Rs 15,00,000, it was held that as regards the said amount, the complainant discharged the initial burden of proof that he has advanced loan to the accused.

In his statement under Section 313 of the CrPC, accused did not state that he was holding such account, on which the cheque was issued by the complainant and he did not specifically state that he had not received the amount through the said account.

Bench stated that the complainant had proved that it was legally enforceable debt or liability, which was to the extent of Rs 15,00,000 as against the accused.

As regards the other disputed cheque i.e. amount of Rs 6,00,000, complainant stated he had given the said amount by cash.

In this case, also it can be said that the complainant has discharged the initial burden of proof that he had advanced amount of Rs 6,00,000 as a loan to the accused.

In the instant case, the accused did not deny his signature on the disputed cheques. Though he came with a defence, as to how those cheques went into the possession of the complainant, but as aforesaid that defence is unbelievable.

Bench stated that even if for the sake of arguments we admit that the disputed cheques were blank cheques; yet, when accused admits his/her signatures on the disputed cheques, then the legal position on this point is also clear that the complainant would get an authority under Section 20 of Negotiable Instruments Act to complete the incomplete cheque.

When now the position stands that the complainant has discharged the initial burden, accused admits his signature on the disputed cheques; then presumption under Section 139 of the Negotiable Instruments Act definitely gets attracted in favour of the complainant.

The complainant was the ‘holder of cheques’ and therefore, was entitled to present the same for encashment. Both the cheques were dishonoured.

Statutory notices issued by the complainant were complied with, and therefore, Court held that the accused is guilty of committing the offence punishable under Section 138 of the Negotiable Instruments Act.

Magistrate did not scan the evidence properly with sound legal principles and therefore, interference of this Court was required.

Bench relied on the Supreme Court’s decision in Govindaraju v. State, (2012) 4 SCC 722, with regard to the powers of the Appellate Court, wherein it was observed that:

“The law is well-settled that an appeal against an order of acquittal is also an appeal under the Code of Criminal Procedure, 1973 and an appellate Court has every power to re-appreciate, review and reconsider the evidence before it, as a whole. It is no doubt true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the trial Court. But that is the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law to re-appreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence, in consonance with the principles of criminal jurisprudence”.

Honest drawers’ interest who issue cheques is safeguarded in the Act itself.

In Dalmia Cement (Bharat) Ltd v. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463, the Supreme Court has explained the scope of offence under Section 138 of the NI Act.

In R. Vijayan v. Baby, (2012) 1 SCC 260, Supreme Court held that while awarding compensation in matters under Section 138 NI Act, interest can be awarded @9% p.a.

Court stated that in view of the above decisions, awarding jail sentence to the respondent/accused may not be in the interest of justice.

Bench also added to its decision that the appellant would also be interested in getting his amount back. Therefore, payment of compensation under Section 357 of the Code of Criminal Procedure to the complainant would be in the interest of justice.

The punishment that can be awarded for an offence under Section 138 of Negotiable Instruments Act is “ imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or both” (stress supplied by me).

Since the complaint was filed in 2013 after the statutory notice. The amount became due to complainant after the date of the notice.

Some amount needs to be given to complainant above the cheque amount towards interest.

Since the rate of interest in banks has gone down nowadays, and therefore, the said rate cannot be equal to the rate granted in R. Vijayan’s case.

After taking into consideration all the above pronouncements it would be in the interest of both the parties to impose fine of Rs 18,00,000 and Rs 8,00,000 in respective cases and to direct the amount of Rs 17,50,000 and Rs 7,50,000 to be paid to complainant as compensation under Section 357(1) of the Code of Criminal Procedure. Deposit time will not be extended. [Kiran Rameshlal Bhandari v. Narayan Purushottam Sarada, 2020 SCC OnLine Bom 3562, decided on 07-12-2020]


Advocates who appeared for the matter:

Shyam C. Arora, Advocate for the appellant
Amol Kakade, Advocate h/f C.D. Fernandes, Advocate for respondent

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has held that for invoking Section 17 of the Limitation Act, 1963, two ingredients i.e. existence of a fraud and discovery of such fraud, have to be pleaded and duly proved and that in case of failure to establish the existence of fraud, there is no occasion for its discovery.


Background of the case


The dispute dating back to 1990 pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. However, according to the plaintiff, reposing complete trust in her step brothers to step-brothers, she had signed on blank papers under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.

After analysing the evidence on record, the trial Court dismissed the suit filed by the plaintiff and this order was upheld by the appellate Court. The High Court, however, reversed the concurrent opinions of two Courts and held that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position.

Challenging the High Court’s decision before the Supreme Court, the defendants argued that interference by the High Court was unwarranted as the same did not involve any substantial question of law. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­-contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers.


Analysis


The Court held that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds were unsubstantiated and untenable. Here are the key factors taken into consideration by the Court:

  • As the record revealed that the disputed documents were registered, the Court, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, was of the opinion that the initial onus was on the plaintiff, who had challenged the stated registered document.
  • As the execution of the 1990 GPA and the sale deeds in the present cases was denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non-execution. However, both the attesting witnesses were not examined.

“The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.”

  • The evidence of plaintiff’s deed writer (PW4) unveiled that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting witnesses.

“… the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous.   In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard  the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at  the  Tehsil  complex,  Dasuya.  Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff.”

  • Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount.

Ruling


Concluding that the plaintiff failed to prove that her signatures on the subject documents are forged, the Court reiterated that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt.

“In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.”

[Rattan Singh v. Nirmal Gill, 2020 SCC OnLine SC 936, decided on 16.11.2020]


*Justice AM Khanwilkar has penned this judgment 

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: This appeal was filed before a Bench of Mahinda Samayawardhena, J., for ejectment of defendants from the land of the plaintiff.  

Facts of the case were that the plaintiff filed this action against defendants for a declaration of title to the land, ejectment of the defendants from the land and for damages. Defendants opposed plaintiff’s action and claimed that the plaintiff was holding property in trust for defendants, thus defendants had acquired prescriptive title to the land. Plaintiff’s action was dismissed by District Judge and passed judgment in favour of defendants to have prescribed to the land. Hence, this appeal was filed. District court had come to a finding that the defendants came into the land with the leave and licence of the plaintiff and from the date on which they came into possession of the land, they have started prescriptive possession against the plaintiff. 

Court of Appeal found the above finding of District Judge to be untenable. Permissive possession, however long it may be, was not prescriptive possession and to claim it, compelling cogent evidence was required. The time when an individual started adverse possession is a sine qua non for claim of prescription. Court noted that when the legal title to the premises is admitted or proved to be in the plaintiff, the burden of proof is on the defendant to show that he is in lawful possession. Since, defendant in the instant case had failed to discharge the onus to prove, the judgment of District Judge was set aside[Mohamed Shariff Mohamed Sanoon v. Mohamed Yoosuf Junaid, Case No. CA/417/1998/F, decided on 18-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This appeal was filed before a 2-Judge Bench comprising of Sujoy Paul and Nandita Dubey, JJ., against the order passed by trial court convicting appellant for the commission of offences under Sections 302 and 201 of Penal Code and sentencing her to life imprisonment.

Facts of the case were such that the deceased was the husband of appellant whose dead body was found inside a trunk in their house. After which trial took place where appellant was convicted and sentenced for the murder of her husband. Trial Court mainly relied on the testimony of deceased daughter and medical evidence on record which showed throttling as the reason for deceased death. The contention raised by Chetan Jaggi, Advocate appearing as amicus curiae for appellant was that there were no eye-witness and the sentence was passed on the basis of circumstantial evidence where the incident was not pre-planned.

High Court after going through the testimony of daughter of deceased, postmortem report viewed that deceased died due to throttling. Court found no explanation by the appellant as to how the dead body got into the trunk in a room only in access of appellant and deceased and once the prosecution has been able to show that at the relevant time, the room was in exclusive possession of the deceased and appellant, the burden of proof lies on the appellant under what circumstances the death of her husband occurred. Appellant failed to discharge this onus to prove. Therefore, the appeal was dismissed and it was found that the trial court had rightly convicted the appellant under Sections 302 and 201 of Penal Code. [Sudama Bai v. State of M.P., 2018 SCC OnLine MP 904, decided on 10-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.S. Shinde and A.S. Gadkari, JJ., allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted for murder under Section 302 IPC.

The appellant and the deceased were living in a live-in-relationship. Both were married to different spouses. The allegation against the appellant was that on the fateful day, he attacked the deceased with a hammer on her head and this resulted in her death. It was alleged by the prosecution that the appellant was fed up by the frequent bickering between him and the deceased as she did not allow him to meet his wife and children. Thus, the appellant attacked the deceased and murdered her. The appellant was tried and convicted by the trial court under Section 302. Aggrieved thereby, the instant appeal was filed.

The High Court, at the outset, noticed that appellant’s conviction was based on circumstantial evidence. It was reiterated that for basing a conviction on circumstantial evidence, it is necessary that all the circumstances must point towards guilt only of the accused and nothing else. Furthermore, the main ground for the conviction was that appellant failed to rebut the presumption under Section 106 Evidence Act exclusively within his knowledge. The Court made reference to Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, wherein it was held that Section 106 is not a substitute for the burden of proof that rests upon the prosecution. It was noted that in the instant case there was no evidence on record even to remotely suggest that the appellant was in fact last seen in the company of the deceased either at the time of noticing the dead body or prior thereto. In absence of such evidence, the Court held that the failure of the appellant to offer any explanation under Section 106 could not be used against him to base his conviction. The Court further held that the case of the prosecution was based on mere presumption the appellant being in the same room with the deceased at the time of her death. In view of the aforesaid appellant’s conviction was set aside, and the appeal was allowed. [Ulhas Sudam Gorhe v. State of Maharashtra,2018 SCC OnLine Bom 3389, decided on 12-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ, upheld the conviction and sentence passed by the trial court under Sections 498-A and 302 while acquitting him from charges under Section 304-B IPC.

The appellant had been convicted by the trial court based on circumstantial evidence, where the prosecution had linked all the circumstances by presenting evidence which pointed towards the guilt of the accused. Based on the testimonies of various witnesses, who were cross-examined by the defense but remained unshaken in their stand, the accused was held guilty under Section 498-A IPC. The High Court upheld the conviction and sentence on this count.

On the question of conviction under Section 302/304-B, the Court found enough circumstantial evidence on record for conviction under Section 302 but not for conviction under Section 304-B. Evidences on record were the murder weapon, the fact that the accused and deceased were home alone at the time of death, the fact that the crime took place in the dead of the night along and the post-mortem reports. Moreover, the appellant had alleged that some unknown trespassers had killed his wife, however, he failed to substantiate his allegations. Section 106 of the Evidence Act puts the onus of proof on the person having special knowledge surrounding the circumstances of an occurrence, and since, on that night, the only person besides the deceased in the house was the accused, he is the master of such knowledge. Therefore, the appellant has failed to discharge the onus put upon him.

Consequently, the conviction and sentence under Sections 302 and 498-A IPC were upheld and conviction under Section 304-B was reversed. The appeal was disposed of with modifications. [Dilip @ Deepak v. State,   2017 SCC OnLine Del 11854, decided on 13.11.2017]

Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal before the High Court, the appellants challenged their conviction by Sessions Judge in murder case of wife of one of the appellants under Sections 302 read with Section 34 IPC. In the present case, the deceased Basanti Bai died in the intervening night in 2006 at their village. During investigation, statements of the witnesses were recorded. The trial court after considering the material available on record by the impugned judgment convicted and sentenced the accused-appellants to imprisonment for life.

After going through the facts of the case, the Court heard the counsel for the appellant who pleaded that firstly, the cause of the death of deceased had yet not been established as the doctor in her post-mortem report had mentioned that she died due to asphyxia that may also be caused due to any general disease and thus, death cannot be called homicidal. Secondly, he told the Court that the witnesses adduced by the prosecution are hearsay witnesses, which is not legally admissible. Thirdly, he pleaded that there had been not even a single witness from the village where the incident took place, thus weakening the stand of the prosecution to a great extent.

The Court considered the fact that all the evidences taken into consideration by the trial court are the evidence of relatives of deceased and whatever had ever been spoken by the deceased during visit of their house had been reproduced by them before the Court thus, failing to be legal as per Section 60 of Evidence Act which states that oral evidence must always be direct to be admissible. To support its observation, the Court cited Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532 in which the Supreme Court had explained reasons as to why hearsay witnesses were not admitted like truth comes in diluted and diminished form this way and the witness in such cases will not have any responsibility on him and so on.

The Court went on to say that as the evidence upon which the inference of trial court is based is admissible, the other aspects of the matter needed to be examined in depth. The Court noticed that none of the 13 witnesses examined belonged to the village where deceased died. The Court observed that in such cases of hearsay evidence, Section 106 of the Evidence Act may be attracted if a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference and its purpose is not to relieve the prosecution to prove the burden of guilt. But in the present case, out of all the witnesses, no one stated that the appellant was inside the house at the time of the incident.

The Bench of Ram Prasanna Sharma, J. on minute scrutiny of the facts and examined witnesses said that that suspicion however grave cannot take the place of proof and that the prosecution just in order to succeed on a criminal charge cannot afford to lodge its case only on the basis of “may be true” but has to essentially elevate it to the grade of “must be true”. [Shankarlal v. State of Chattisgarh, 2017 SCC OnLine Chh 1138, decided on 6-10-2017]