Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhury, J. allowed an appeal which was filed assailing the judgment and order of conviction passed by the Trial Court for committing offence under Section 324 of the Penal Code, 1860 and consequence sentence of imprisonment for a term of one year with fine.

A written complaint from one Mosiluddin Ahmed was received that his younger brother Serajuddin Ahmed was returning from mosque after observing Namaz. At that time the appellant along with 4 others wrongly restrained him in front of the house of one Jainul and assaulted him on his head with iron rod and Hasua with the intention to kill him. As a result of assault, the brother of the de-facto complainant was seriously injured. It is also stated that the accused persons are habitual offenders. They also assaulted some other people of the village and they were facing trial in G.R. Case No.1069/1991.

On completion of investigation, police submitted charge-sheet against the accused persons. The Trial Court framed charge against five accused persons including the appellant under Sections 341/325/307/34 of the IPC. On the conclusion of trial, the appellant was convicted and sentenced in the manner disclosed above while other accused persons were acquitted from the charge.

Amicus curiae submitted that in a criminal trial the prosecution is duty bound to prove at the foremost the date, time and place of occurrence and the manner of the incident constituting the offence before the Trial Court. If there is any deviation in proving the aforesaid facts, the entire prosecution case becomes suspect. He contended that evidence on record was not sufficient enough against the appellant and he is entitled to be acquitted of the charge.

The Court was of the opinion that in case of discrepancy between ocular and medical evidence, ocular testimony shall prevail because the medical evidence is in the nature of an expert’s opinion. The Court was of the view that appellant was entitled to benefit of doubt and the learned Trial Judge ought to have recorded an order of acquittal in favour of the appellant. The appeal was allowed setting aside the judgment and order of conviction.[Aminul Islam v. State of West Bengal, 2022 SCC OnLine Cal 1272, decided on 06-05-2022]


Amicus Curiae : Mr Dipanjan Dutt

For the State : Mr Ranabir Roy Chowdhury, Ms Sujata Saha


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the case where the Court was posed with the question as to whether the degrees obtained by the respective petitioners in one branch of History can be said to be obtaining a degree in History, the bench of MR Shah* and BV Nagarathna, JJ has held that once the Expert Committee has opined that the degrees obtained by the candidates in one branch of History cannot be said to be obtaining the degree in History as a whole, the Court cannot go against such finding.

“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”

The issue relates to appointment to the post of Postgraduate Trained Teachers (P.G.T.T.) in the State of Jharkhand in different subjects, i.e., Chemistry, Physics, History etc. As per the advertisement, the eligibility criteria for the post of Postgraduate Trained Teachers in the subject History was that a candidate must have obtained a Postgraduate degree with 50% marks in the related subjects (in the subject of History).

In the online applications, it was stated by the candidates that they are having the Postgraduate/Bachelor degree in History and only at the time of verification of the documents, when the respective certificates were produced, the authorities came to know that the candidates have the degrees in one branch of History and not in History as a whole.

The Court noticed that, in the present case, the educational qualifications required had been specifically mentioned in the advertisement. There was no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). Hence, there cannot be any deviation from the educational qualifications mentioned in the advertisement.

The Court observed that once having found that the respective candidates were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was canceled, both the learned Single Judge as well as the Division Bench of the High Court hadrightly refused to interfere with the same.

It is pertinent to note that show-cause notices were issued so that the respective candidates can clarify and satisfy that they are having the requisite qualification of Postgraduate/Bachelor degree in History and after giving them the opportunity, the decision has been taken and that too after obtaining the Expert Committee’s opinion.

Hence, it was held that the candidature/selection of the candidates was rightly cancelled on the ground that they were not having the requisite qualification for the post – Postgraduate/Bachelor degree in History.

[Indresh Kumar Mishra v. State of Jharkhand, 2022 SCC OnLine SC 449, decided on 13.04.2022]


*Judgment by: Justice MR Shah


Counsels

For candidates: Senior Advocate V. Mohana and Advocate Mandavi Pandey

For JSSC: Senior Advocate Sunil Kumar

For State: Advocate Vishnu Sharma

For Impleaders: Senior Advocate Ajit Kumar Sinha

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 BriefsSupreme Court

Supreme Court: In the case relating to examinations conducted in 2017 by the Rajasthan Public Service Commission for filling up the posts of Senior Teachers where the Rajasthan High Court had re-evaluated the answers and had come to conclusion different from that of the Expert Committee, the 3-judge bench of L. Nageswara Rao*, Hemant Gupta and Ajay Rastogi, JJ held that the division bench of the High Court committed an error in recording findings on the correctness of 5 questions by holding the opinion of the experts to be wrong. The Court, however, did not set aside the judgment as it did not want to upset the appointments of 5 out of 21 appellants-therein who have already been appointed.

Background

  • Rajasthan Public Service Commission (RPSC) conducted written examinations on 01.05.2017 and 02.07.2017 in General Knowledge and Social Science respectively for selection of 9,551 Senior Teachers in Social Science, Sanskrit, Hindi, English and Mathematics.
  • RPSC issued the 1st Answer Key on 06.02.2018 and declared the results.
  • On 25.04.2018, a Single Judge of the High Court of Judicature for Rajasthan, Jaipur Bench referred 3 questions in the 1st Answer Key to be reconsidered by an Expert Committee. Shortly thereafter, a Single Judge of the High Court of Judicature for Rajasthan, Jodhpur Bench referred another 8 questions for reconsideration by an Expert Committee on 05.05.2018.
  • An Expert Committee constituted by the RPSC revised the Key Answers for 2 questions in Social Science and 1 question in General Knowledge. The 2nd Answer Key was issued pursuant thereto, and the Merit List was also revised on 17.09.2018.
  • The 2nd Answer Key was released by the RPSC on the basis of the recommendations made by the Expert Committee constituted pursuant to the directions issued by the High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019.
  • The High Court examined the correctness of the disputed questions by itself and came to a conclusion that the answers to 5 questions were wrong. After being informed that the results have been announced and the selection process was completed, the Division Bench of the High Court by its judgment dated 12.03.2019 directed revision of the Select List and give benefit of the revision only to the Appellants before the Court.
  • Supreme Court was called upon to decide whether the revised Select List ought to have been prepared on the basis of the 2nd Answer Key. The Appellants contended that the Wait List also should be prepared on the basis of the 3rd Answer Key and not on the basis of the 2nd Answer Key.

Analysis

The Court noticed that though re-evaluation can be directed if rules permit, the Supreme Court has, through various judgments, deprecated the practice of reevaluation and scrutiny of the questions by the courts which lack expertise in academic matters.

“It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates.”

Hence, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019.

Stating that courts should be very slow in interfering with expert opinion in academic matters, the Court said,

“In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.”

The Court, despite finding the approach of the High Court erroneous, did not set aside the judgment as it did not want to upset the appointments of 5 out of 21 appellants-therein who have already been appointed. It hence, upheld the Select List dated 21.05.2019 and the Wait List dated 22.05.2019 prepared on the basis of the 2nd Answer Key.

Taking note of the statement filed by the RPSC that there are vacancies existing which can be utilized for appointing the Appellants, the Court left it open to the RPSC and the State Government to fill up the existing vacancies from the Wait List in accordance with the merits of the candidates and directed the completion of the selection process within a period of 8 weeks from the date of decision.

[Vikesh Kumar Gupta v. State of Rajasthan, 2020 SCC OnLine SC 993, decided on 07.12.2020]


*Justice L. Nageswara Rao has penned this judgment 

For appellants: Advocates Akhilesh Kumar Pandey, Rakesh Karela and Ranbir Yadav

For State: Senior Advocate Dr. Manish Singhvi

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In the instant appeal, the question before the Court was that whether the appellant can be attributed medical negligence merely because she did not explain to the respondent that at the time of delivery of child, uterus is of size of the child and the tubes get enlarged as well, and go back to their normal size after delivery; and during regress, the tubes are likely to slip thereby exposing chance of further pregnancy. Examining the facts, evidences adduced in the matter and the findings of the Trial Court, Bench of Rekha Mittal, J., held that the lower Courts attributing negligence to the appellant and fastening liability for payment of damages suffer from perversity as the respondent- plaintiff did not adduce any evidence or expert opinion which proves or explains that it not advisable to perform tubectomy along with caesarean section. Therefore it is difficult to sustain the findings of the lower Courts that tubectomy operation failed because of negligence attributable to the doctor. 

As per the facts, during the birth of the respondent-plaintiff’s 4th child, the appellant performed the tubectomy operation. The respondent- plaintiff alleged that she was assured by the appellant that the after tubectomy operation, she will never conceive in future. However, the respondent conceived again. The respondent alleged that had full assurance not been given by the appellant, she would not have undergone tubectomy operation. The respondent claimed that the post- operation pregnancy was due to the professional negligence of the appellant. The respondent further stated that her 5th pregnancy caused a great deal mental agony and mental/bodily pain and sufferings while giving birth to another child. Sumiti Arora appearing for the respondent pointed out the findings of the Trial Court according to which the appellant was found to be negligent because as an expert it was obligatory upon her to advise the respondent-plaintiff to wait for some time more to get the tubectomy operation done. Appearing for the appellant, T.N. Gupta submitted that the respondent did not adduce any evidence to suggest that the appellant was negligent in conducting tubectomy operation simultaneously with delivery of child through caesarean section. It was further argued that there is no medical text/opinion which suggests or supports the theory that tubectomy operation should not have been carried out at the time of delivery or the same was required to be carried out after the delivery.

Perusing the facts of the case, the Court observed the Supreme Court decision in State of Punjab v. Shiv Ram, (2005) 7 SCC 1, wherein the Court, in order to decide the case, referred to certain authoritative texts dealing with percentage of failure of sterilization conducted through different methods. The Court noted that in order to support contentions, the respondent did not refer to any medical text or opinion much less expert opinion of a professional in gynaecology/sterilization that it is not advised to perform tubectomy along with caesarean section. It was further noted that there is no evidence suggesting that sterilization, in the instant case, has failed merely because it was performed at the time of delivery. The Court also took notice of the fact that the respondent had admitted that the operation was conducted properly and there was no negligence on the part of surgeon while performing the operation. Taking a cumulative view of the facts, the Court held that findings of the lower Courts are unsustainable, thereby allowing the instant appeal and set aside the judgment and decrees passed by the lower Courts. [Dr Sushma Chawla v. Jasbir Kaur, 2020 SCC OnLine P&H 1000 , decided on 08-07-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal setting aside the conviction and acquitting the Accused-Appellant from the charge of murder.

The Appellant and the victim (deceased) were husband and wife. Appellant was a serving Brigadier in the Sri Lankan Army, they were sleeping in their room and the victim’s brother (PW 2) was sleeping in another room with the appellant’s son (PW 1). After hearing some unusual noise the PW2 ran to check what had happened on the other hand PW 1 followed the appellant to his room and saw saliva coming out of the mouth of the deceased and blood on her head, she was taken to the hospital where she succumbed to injuries in about 2 hours.

There was no dispute that the shot was fired from the personal weapon of the

Appellant and that the deceased died of that gunshot injury.

The counsels for the appellant Shavindra Fernando PC and Ananda Weerasinghe contended that the deceased had committed suicide by shooting herself and the appellant had tried to grab the weapon while he saw the deceased standing with the gun on her head but he was unsuccessful. After trial, the High Court Judge found the Appellant guilty of the charge and sentenced him to death aggrieved by which the instant appeal was filed. The counsels for the appellant contended that the trial judge had erred in his decision by not considering various important factors like the bullet was fired from a distance of 30 cm away from the head of the deceased and the judgment was based on hearsay evidence and he was denied fair trial. The arguments of both the parties were analyzed again and opinion of expert witnesses was referred to which was unable to prove a case against the appellant and hold him liable for the offence beyond reasonable doubt.

The Court while allowing the appeal set aside the conviction of the appellant and acquitted him on the count of murder explaining that the prosecution had failed to prove the charge beyond reasonable doubt against the Appellant. [Democratic Socialist Republic of Sri Lanka v. Don Chandana Priyantha Rupasinghe, 2019 SCC OnLine SL CA 11, decided on 26-11-2019]

Case BriefsHigh Courts

Delhi High Court: Chander Shekhar, J. refused to interfere with the order of the Juvenile Justice Board whereby it had directed that the two children in conflict with the law in the present cause shall not be treated as adults.

The petitioner was the father of the deceased, Mandeep. An FIR was registered under Sections 363, 302, 201 and 34 IPC in connection with Mandeep’s murder. After going through the material on record including the preliminary assessment reports prepared b experts, the JJ Board passed the order to treat the children in conflict with law as children and were ordered to be tried before the JJ Board as children. The petitioner challenged the order of the JJ Board, but the Additional Sessions Judge upheld the order. Aggrieved thereby, the petitioner filed the present revision petition.

Perusing the record, as well as relevant sections the Juvenile Justice (Care and Protection of Children) Act, 2015, the High Court was of the view that order of the JJ Board did not require interference. Discussing Section 15 and the proviso thereto, the court observed: “There is no doubt that the JJ Board may seek the opinion of an expert regarding the mental and physical capacity of CCL to commit an offence and it is not necessary that if an expert opined that the mental and physical capacity of CCL and his ability to understand the consequence of the offence are positive, then the JJ Board is bound by the expert opinion. It is well within the jurisdiction of the JJ Board to agree or disagree with the preliminary assessment report of the CCL submitted by such a psychologist to the JJ Board.” Having regard to the facts of the present case, it was held that the JJ Board had applied its mind before coming to the conclusion that the two children in conflict shall not be treated as adults. In such view of the matter, the petition was dismissed.[Pradeep Kumar v. State (NCT of Delhi), 2019 SCC OnLine Del 8251, decided on 15-04-2019]

Case BriefsHigh Courts

Allahabad High Court: A Public Interest Litigation was filed before Govind Mathur, CJ and Dr Yogendra Kumar Srivastava, J. related to protection of Turtle Wildlife Sanctuary.

This PIL was filed with a prayer that respondent be directed to consider the scientific studies and reports submitted by petitioner and also the report of Wildlife Institution of India including its comments and to protect the Turtle Wildlife Sanctuary at Varanasi. Further, respondents were prayed to be directed not to shift the TWS upstream and to protect and stop the plying of motorboats, inland waterways vessels and ships and also stop human activities in the protected sanctuary area. Earlier also the same PIL was filed after which the scientific studies and reports submitted by petitioner was perused by the respondent.

High Court observed that an expert body was constituted that made recommendations for denotification of the TWS in view of which Government recommended a proposal which was discussed and it was resolved that the State Government may proceed with the process of notification of the proposed wildlife sanctuary and denotification of the TWS. Thus, Court noted that the proposed decision was based on the expert opinion after following the due procedure under law. Therefore, this petition was dismissed on finding no illegality in the said proposal. [Bharat Jhunjhunwala v. Union of India, 2019 SCC OnLine All 4, order dated 04-01-2019]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Ajay Rastogi, CJ, dismissed a revision petition filed against the order of the trial Judge whereby he refused the application filed by the petitioner-plaintiff for seeking expert opinion to prove medical negligence against the respondent-defendant.

A case was filed by the plaintiff against the defendants (doctors) alleging medical negligence against them. The defendants filed written statements and thereafter, an application was moved by the plaintiff for referring the matter for expert opinion from the doctors of AIIMS or Christian Medical College, Vellore. The trial Judge, without allowing the said application, directed the matter to be listed for cross-examination. The plaintiff filed the instant revision against Order of the trial Judge. The High Court observed that the plaintiff moved the said application on the ground that the experts belonged to the same fraternity as that of the defendant doctors and therefore nobody would come forward against them; thus direction was sought from the Court to summon for expert opinion. The Court held that the plaintiff drew her own impression that no expert would opine on the matter. Her suspicion was without any foundation. The Court held that the defendants, who were professionals, were discharging legal duty to the public and no inference could be perceived by the Court on basis of plaintiff’s mere perception. Accordingly, the instant petition was dismissed. [Prabati Das v. State of Tripura, 2018 SCC OnLine Tri 60, order dated 3-5-2018]

Case BriefsSupreme Court

Supreme Court: Stating the importance of medical evidence, especially in a murder trial, the Bench of P.C. Ghose and R.F. Nariman, JJ said that where the medical evidence is such that it does not give any clear opinion with respect to the injuries inflicted on the body of victim or deceased, as the case may be, the possibilities that the injuries might have been caused by the accused are also ruled out. Such medical evidence is also very important in assessing the testimony of eye-witnesses and in determining whether the testimony of eye-witnesses can be safely accepted.

In the present case, the accused had killed his close relative in a field allegedly over a land dispute, the High Court of Bombay had acquitted the accused as the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. Upholding the decision of the High Court, the Court said that apart from contradictory testimonies of the witnesses, non-examination of the material witness on whose field the crime was committed, unexplained 6 days delay in lodging FIR; no opinion given by doctor in the post-mortem report or his deposition about the cause of death raise substantial doubt in the prosecution story. The Court said that the unfortunate man succumbed to injuries but the substantial doubts, mentioned above, confer a right upon the accused-respondents to be held not guilty.

Emphasising upon the importance of expert opinion, the Court said that expert’s opinion should be demonstrative and should be supported by convincing reasons. Court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great. If the report of an expert is slipshod, inadequate or cryptic and information on similarities or dissimilarities is not available in the report of an expert then his opinion is of no value. Such opinions are often of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of prosecution. [Machindra v. Sajjan Galpha Rankhamb, 2017 SCC OnLine SC 443, decided on 19.04.2017]