Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sanjay Dwivedi, J. dismissed a revision petition filed questioning the validity of the order passed by the Sessions Judge whereby the charge had been framed against the applicant by the trial Court under Sections 294, 333, 353, 307, 302 of IPC and under Section 25-1(B)(B) of Arms Act, 1959.

As per the facts of the case, after registration of FIR, the injured got hospitalized and was given treatment in Govt. Hospital in which the Medico-Legal Certificate (MLC) was prepared showing that the complainant/injured had received an incised wound which was opined as simple injury. The injured was later on discharged from hospital on the same day, i.e. 07.08.2021 because the injury sustained by him was neither grievous in nature nor dangerous to life. Case against the applicant was under Sections 294, 333, 353 and 307 of IPC. Later, on 20-08-2021 when the injured died then the offence of 302 was also added.

The Counsel of the applicant submitted that the applicant was granted bail considering the fact that the injury was simple and that the injured died of septicaemia on 20-08-2021. He submitted that offence of 302 of IPC was not made out as it was due to negligence on the part of the doctors as they had not properly treated the injured and medication was not up to the mark. It was further contended that the Trial Court did not appreciate the facts in appropriate manner and observed that the cause of death was related to the injury sustained and caused by the present applicant.

Panel Lawyer appearing for the respondent/State submitted that the cause of death shown by the doctor is septicaemia which admittedly got developed in an injury caused by the present applicant and as such, offence under Section 307 has rightly been converted into Section 302 of IPC.

The Court was of the opinion that at this stage it is very difficult to form an opinion even by the trial Court at the time of framing of charge that the cause of death was not directly related with the injury caused by the applicant. The Court believed that if the charge of Section 302 has been added at the time of framing of charge on the basis of opinion given in the MLC, the same can be altered only after examination of the doctor who had given opinion.

The Court stated that at this stage, trial Court cannot indulge in critical evolution of evidence, that can be done at the time of final appreciation of evidence after conclusion of trial.

The Court while dismissing the appeal held that the Trial Court did nothing wrong because it can very well form an opinion at the time of trial or after conclusion of trial whether offence under Section 302 is made out or not. The Court further noted what was said in Veerla Satyanarayana v. State of Andhra Pradesh, (2009) 16 SCC 316 wherein the Supreme Court has held that if death is caused due to septicaemia, offence under Section 302 of IPC is rightly made out. Thus, the Court was also of the opinion that the order passed by the trial Court does not suffer from any patent or material irregularity and at this stage, it is not proper for this Court to interfere in the same or to form an opinion that the offence under Section 302 is not made out against the applicant.

[Harsh Meena v. State of Madhya Pradesh, 2022 SCC OnLine MP 1971, decided on 17-08-2022]


Advocates who appeared in this case :

Sankalp Kochar, Bhavil Pandey, Advocates, for the Applicant;

Prakash Gupta, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: The Division Bench of Kaushal Jayendra Thaker and Ajai Tyagi, JJ. while deciding an appeal which was filed challenging the judgment and order of convicting accused-appellant under Sections 326 of Penal Code, 1860 (‘IPC') and Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act') observed that to prosecute a person for an offence committed under Section 3(2)(v) of the SC/ST Act, there must be evidence to show that the accused committed the crime knowing that such person/victim is a member of a Scheduled Caste or a Scheduled Tribe.

The FIR came to be lodged against the accused on 29-01-2011 by the father of the injured as the injured was hospitalized.

Counsel for the appellant had submitted that Section 326 of IPC is not made out as injuries are not such which would fall within the purview of Section 326 of IPC. As far as commission of offence under Section 3 (2) (v) of SC/ST Act was concerned, it was submitted that the F.I.R. nowhere states that the injured belonged to a particular community. No documentary evidence to prove the same was there.

The Court considering this a special case discussed the importance of FIR and its content. The Court noted that this FIR was silent on the aspect that the injured belong to a particular community falling in the term ‘Scheduled Castes’ or ‘Scheduled Tribes’ so as to attract the provision of Section 3 (2) (v) of SC/ST Act.

For attracting the provisions of Section 3 (2) (v) of SC/ST Act, there should be corroboration by way of documentary evidence to prove that the injured, on whom the act is committed, belongs to ‘Scheduled Castes’ or ‘Scheduled Tribes’.

The Court relied on the judgment of the Supreme Court in Ram Das v. State of U.P., (2007) 2 SCC 170 where there was rape on woman belonging to Scheduled Caste, it was held that these could be no ground to convict the accused under Section 3 (2) (v) when there was no evidence to support the charge under Section 3 (2) (v) of SC/ST Act. Mere fact that victim happened to be a girl belonging to Scheduled Caste did not attract provisions of SC/ST Act.

The Court observed that in the case at hand no independent witness have been examined who would depose that the accused committed the offence on the ground that injured belonged to a community covered under SC/ST Act. The Court thus believed that this omission proves fatal for the prosecution in such a vital matter where punishment is for life imprisonment.

Judge has not even discussed the evidence and only on the basis of caste, he held that the offence was deemed to be committed. There is no deeming provision under SC/ST Act. The Court consequently set aside the Conviction and sentence under Section 3 (2) (v) of the accused-appellant.

Coming to Section 326 of IPC which deals with voluntary causing grievous hurts by dangerous weapons or means the Court noted that the fact that the injured had sustained burn injuries on the face, show that the injures had sustained grievous injuries therefore, ingredients of Section 326 of IPC are made out.

The Counsel for the petitioner had submitted that the punishment was too harsh in relation to which the Court analysed the theory of punishment prevalent in India. The Court relying on Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287; Deo Narain Mandal v. State of UP, (2004) 7 SCC 257; Ravada Sasikala v. State of A.P., (2017) 4 SCC 546 held that keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

The Court keeping in mind the facts and circumstances of the case stated that it is necessary to impose punishment keeping in view the ‘doctrine of proportionality’. The Court believed that punishment of 10 years imprisonment is too harsh and the fine of Rs.25000/- is also too harsh reducing it to 9 years’ incarceration and fine to Rs.2000/-, reason being, the complainant and the injured would have been adequately compensated by the Government as they have invoked provisions of Section 3 (2) (v) of SC/ST Act.

[Pintu Gupta v. State of U.P., Criminal Appeal No. – 4083 of 2017, decided on 28-07-2022]


Advocates who appeared in this case :

Dharmendra Kumar Singh, Rajesh Yadav, Advocates, Counsel for the Appellant;

Nagendra Srivastava, A.G.A. assisted by Akhilesh Kumar Tripathi, Advocate, Counsel for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road. When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave dash to the Tata Tempo vehicle which was in stationary condition and caused the accident.

Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputed. Further, even his left leg was damaged badly.

Hence, the owner of the vehicle lodged an FIR against the truck driver.

Appellant filed injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly.

Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.

Analysis, Law and Decision


High Court expressed that it is the statutory duty of the tribunal and the Court as well to award “just compensation”.

Further, the Bench added that, the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the tribunal and the Court must be on a large peripheral field.

Additionally, the Court stated that the impact of amputation of leg on the earning capacity of the appellant/claimant needed deep consideration.

Due to amputation of right leg of the appellant, certainly he is unable to discharge his work and job as a Cleaner on the vehicle. It has severe impact on the earning capacity of the appellant/claimant. 

In the case of Jakir Hussein v. Sabir, (2015) 7 SCC 252, it is held by the Supreme Court that though the claimant is suffering from permanent disability of 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability. It is a case of amputation of one leg.

In the present matter, the Tribunal did not consider the severe impact on the income of the claimant due to amputation of the right leg below the thigh and left leg badly damaged.

In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury.

The Court observed that the purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.

Hence, the tribunal had committed an error in accepting the permanent disability of the claimant at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Therefore, the compensation needed to be re-assessed.

High Court concluded that respondents are liable to pay the enhanced amount of compensation jointly and severally with interest @ 7%. [Akshay v. Kailas Vitthalrao Shinde, 2022 SCC OnLine Bom 830, decided on 18-4-2022]


Advocates before the Court:

Mr Sanket S. Kulkarni and Mr Mukeshkumar R. Singh, Advocates for appellant Mr V.P. Savant, Advocate for respondents no.1

Mr Abhijit G. Choudhari, Advocate for respondent no.2

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

High Court stated that,

When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons, it is not case of “contributory” but it is a case of “composite negligence”.

Background

Appellant’s case was that the appellant injured (applicant) was proceeding as a pillion rider along with his brother on motorcycle. The motorcycle was hit by an offending truck which came in high speed and gave dash from behind. Due to the said incident, both the applicant and his brother sustained severe bodily injuries.

An FIR was registered under Sections 279, 337 and 338 of the Penal Code, 1860 against the driver of the offending truck. Due to the accidental injuries, the applicant lost his job as well as his earning capacity, hence he approached the Tribunal for grant of compensation in terms of Section 166 of the Motor Vehicles Act.

What was Tribunal’s decision?

Tribunal quantified compensation of Rs 8,84,520, however, recorded the finding that the accident occurred due to sole negligence of the motorcycle rider, i.e. applicant’s brother. Since there was no negligence on the part of the truck driver, the claim petition was dismissed.

Negligence

It was not in dispute that the appellant was pillion rider and therefore it was a case of composite negligence, in view of that even if there was slightest negligence on the part of truck driver, then the injured can recover compensation from the owner and insurer of the truck. Hence, it was necessary to dwell upon the question of negligence.

“… claim petition is not an adversarial adjudication between litigating parties but a statutory determination of compensation, after due enquiry, in accordance with the statute.” 

Tribunal’s conclusion was drawn solely on the ground that at the time of dash motorcycle was on the wrong side of the road i.e. to its right side.

Analysis and Discussion

In Court’s opinion, the Tribunals discarded spot panchanama which disclosed that the accident took place to the eastern side. Thus, it gave a complete different picture and location of the place of occurrence. The reason for discarding the same was that the rider could not have shown the place since he was admitted to the hospital.

Further, it was stated that there may have been the possibility of Vinod showing the place since there were no documents of him being an indoor patient. Besides that, the panchnama had a reference that there were bloodstains and the existence of the same supported the location of the occurrence.

High Court added that it was not clear as to in which direction the motorcycle was heading, hence the tribunal erred in solely relying said admission by overlooking spot panchanama.

Bench cited the Supreme Court decision in Bimla Devi v. Himachal Road Trans. Corpn., 2009 ACJ 1725 (SC), wherein it was ruled that the strict proof of an accident caused by a particular vehicle in a particular manner was not possible to be done by the claimants. They were merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be invoked in claim petitions.

Further, the Court remarked that,

“Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations which ordinarily by reason of conduct of human affairs would do or obliged to do.” 

Significantly, the Court added that, even if it was assumed that the motorcycle was to the wrong side of the road, still dash was given from behind which clearly demonstrated that the truck driver was very much negligent.

The present matter was a case of composite negligence. The negligence of truck driver may be to any extent, but it would certainly attract liability.

Bench further added that, since the dash was from behind, the doctrine of Res ipsa loquitur would apply against the truck driver.

Merely on stray admission applicant’s entire case dehors to police papers cannot be jettisoned.

The driver and owner have appeared and contested the claim but driver did not step into witness box, which is sufficient to draw adverse inference against them.

Hence, it was quite clear that the truck driver had also contributed in negligence and therefore the finding recorded by the Tribunal on the point of negligence was totally erroneous.

Composite Negligence

“…the accident was result of negligence on the part of both i.e. motorcycle rider and truck driver. Meaning thereby a case of composite negligence.”

In the case of composite negligence, the claimant has no choice to seek compensation from either of the wrongdoer.

Elaborating further, the Bench stated that, since the truck driver contributed in negligence i.e. he was also wrong doer, the applicant can very well claim entire compensation from the driver, owner and insurer of the offending truck.

The compensation assessed by the Tribunal was just and proper. Besides that claimant was entitled to interest @7% per annum, which would be in the tune of the prevailing rate of interest in the banking sector.

Therefore, the appeal was allowed. [Satling Gangadhar Bagal v. Abarao Dnyanoba Sanap, 2022 SCC OnLine Bom 426, decided on 24-2-2022]


Advocates before the Court:

Mr S.S. Dargad, Advocate for the appellant.

Mr A.V. Thombre h/f. Mr S.S. Thombre, Advocate for respondents 1 & 2.

Mr S.V. Kulkarni, Advocate for respondent 3.

Case Briefs

Patiala House Courts: Preeti Parewa, SCJ/CCJ/ARC, NDD, while addressing the alleged case of sexual harassment against the CEO of ScoopWhoop, wherein it sought an interim injunction, Court expressed that,

Expression of a victim’s trauma or experience is his / her fundamental right which can only be curtained it is falls under four broad categories i.e. “libel, slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security or tends to overthrow the State”. 

In the present matter, the plaintiff company submitted that defendant 1 was an employee/consultant in “UNSCRIPTED” with his last contract ending on 30-9-2021. Further, it was stated that defendant 2 was an employee of the company and Chief Executive Officer of “ScoopWhoop Media Private Limited” and its Director and Founding Member.

A sexual harassment complaint was filed by defendant 1 against defendant 2 and his wife, which was sub0judice before the Grievance Committee constituted under the POSH Act.

Adding to the above, it was noted that defendant 1 had published/circulated regarding the allegations of sexual harassment through Instagram posts and YouTube which may damage the reputation of the plaintiff company and hamper the fair enquiry.

Plaintiff company, as an interim relief sought grant of temporary injunction in favour of the plaintiff and against the defendants restraining their associates, agents, representatives, correspondents, officers, employees or any other person, entity, in print or electronics media or on social media or via internet otherwise from writing, speaking, content creation, publishing, republishing, circulating, carrying out any reports or articles or posts or reporting of any kind, directly or indirectly or in any manner pertaining to the allegations against each other and/or any other person/plaintiff’s organization pertaining to pending complaint and allegations by the defendant 1 qua alleged incident on intervening night till pendency of suit.

In view of the present application, a notice was issued to both the defendants.

Challenging the application, defendant 1 submitted that the complaint was filed before the Internal Complaints Committee of ScoopWhoop wherein no action had been taken without any consent of defendant 1, the complaint was transferred to the plaintiff company.

It was also submitted that the plaintiff could not prima facie establish that there was a loss of subscribers or goodwill or reputation of the plaintiff company which was formed 4 months and had hardly been able to generate reputation in its favour. Further, it was added that the balance of convenience did not lie in favour of the plaintiff company which was a separate entity and the sexual harassment complaint had not been made to the said company.

Analysis, Law and Decision

Court firstly mentioned the three main principles that govern the grant/refusal of injunction:

(a) prima facie case;

(b) balance of convenience; and

(c) irreparable injury;

Elaborating further, in light of the background of the present case, Bench found that the plaintiff company was in no way injured with the acts of defendant 1 since the complaint was not filed before the plaintiff company nor was defendant 1 employed with the plaintiff company.

Prima facie the alleged posts/contents/video in question did not mention the name of the plaintiff company nor were obscene/derogatory/ defamatory.

Court did not find that the alleged posts fell under the category of libel, slander, defamation, contempt of court, offends against decency or morality and undermines the security or tends to overthrow the State.

Hence, no relief was granted to the plaintiff company and the application was dismissed. [WhoopScoop (P) Ltd. v. Samdish Bhatia, CS SCJ 100/22, decided on 14-2-2022]

Case BriefsSupreme Court

Supreme Court: In a case relating to murder versus culpable homicide legal controversy, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., held that the Uttaranchal High Court had erred in observing that the case would fall under Fourth exception to Section 300 IPC and had failed to properly appreciate the multiple injuries sustained by the deceased. The Bench expressed,

“…exception Fourth to Section 300 IPC ought not to have been applied by the High Court at all considering the fact that the main second incident had taken place subsequently at 12:00 in the night, much after the first incident of altercation was over in the mehendi ceremony. The impugned judgment and order passed by the High Court is unsustainable both, on facts as well as on law.”

The instant appeal was filed by the State to assail the order of the Uttranchal High Court by which the High Court had held that culpable homicide in the instant case was not murder and consequently converted the sentence from life imprisonment to ten years rigorous imprisonment.

Noticeably, some altercations took place between the deceased Virendra Singh and the accused Sachendra Singh Rawat but due to intervention of the villagers, the matter did not proceed further. Thereafter, at about 12:00 in the night, the accused attacked the deceased by giving him blows by a “Phakadiyat”–a rough piece of wood.  The deceased sustained multiple injuries on the head leading to skull fracture which ultimately caused death of the deceased after a few days.

The trial Court held that the culpable homicide was murder and thereby convicted the accused for the offence punishable under Section 302 IPC and imposed the sentence of life imprisonment. However, in appeal the High Court opined that since it was not a cold blooded murder; rather a sudden fight which ensued in the heat of passion between the two; as a result of a sudden quarrel in the marriage ceremony and that the weapon used was “Phakadiyat” which was a rough piece of wood, therefore it could not be said that there was any intention on the part of the accused to kill the deceased. Accordingly, opining that the case would fall under the Fourth exception to Section 300 IPC making it a case of culpable homicide instead of murder, the High Court converted the sentence from life imprisonment to ten years rigorous imprisonment.

Noticeably, the incident took place in two places. The first incident of altercation between the accused and the deceased was at the place of mehendi ceremony, thereafter at about 12:00 in the night, which could be said to be the actual incident which happened when the accused attacked the deceased by “Phakadiyat” and gave several blows to the deceased. The Bench opined,

“The second incident cannot be said to be a result of sudden fight in the heat of passion upon a sudden quarrel. The accused chased the deceased at about 12:00 in the mid night and even after the deceased reached his house, he was beaten by the accused in front of his house which is witnessed by his wife, PW1.”

Therefore, the Bench held that the High Court had erred in observing that the incident had taken place due to a sudden fight in the heat of passion upon a sudden quarrel in the mehendi ceremony. The main cause of death was injuries sustained by the deceased on his head since the accused used the “Phakadiyat” with such a force that it resulted in skull fracture at the frontal wound on the left side; stitched wounds with 34 stitches with left side of the skull. The Bench remarked,

“…having caused the grievous injuries with such a force, how can the accused get the benefit of fourth exception to Section 300 IPC. The case would certainly fall under Clauses Thirdly and/or Fourthly to Section 300 IPC.”

Applying the law as laid down in Virsa Singh v. State of Punjab, AIR 1958 SC 465, that the question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present, the Bench held that the High Court had committed a grave error in observing that culpable homicide did not amount to murder, by applying exception Fourth to Section 300 IPC.

In the light of the above, the Bench set aside the impugned order and restored the findings of the Trial Court. The accused was held guilty for the offence under Section 302 IPC and was sentenced to undergo life imprisonment.

[State of Uttarakhand v. Sachendra Singh Rawat, 2022 SCC OnLine SC 146, decided on 04-02-2022]


*Judgment by: Justice M.R. Shah


Appearance by:

For the State: Virendra Rawat, Advocate

For the Respondent: Neha Sharma, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and N.R. Borkar, JJ., upheld the decision of the Trial Court in a case of causing grievous injury voluntarily.

An appeal was preferred by the State on being aggrieved by the decision passed by JMFC, thereby acquitting accused’s 1 to 3 for the offences punishable under Sections 326, 504 read with 34 of the Penal Code, 1860 (IPC).

Factual Matrix

Complainant and his family members were cultivating the land known as “Talicha Bambar” of Polgaon. The said land of Mahadev Ramu Takkeka and Shankar Ramu Takkekar was adjacent to his land.

The complainant and his family members were having a way to go to their field for agricultural work from the land of Takkekar. However, said persons were not allowing them to go in their land from the land of Takkekar, and on that ground for the last 4 to 5 years, there was a dispute between the complainant and accused persons.

Though the above-said dispute was settled at village level.

On 15th July, 1998 the accused persons came on the field of the complainant and started abusing him, they said that if the complainant doesn’t run away they will not leave him and at the same time they started beating him and causing injury.

The complainant was taken to the Government hospital and Police Station Officer went there to record the complainant’s statement.

After completion of the investigation, charge-sheet was filed against the accused persons for offences punishable under Sections 326,325, 324, 323, 504 read with 34 of IPC.

Since it was noted that, the accused did not come prepared to assault PW1, as khurpi was something which was used in the agricultural field for removing grass and other accused persons were not holding sickle.

The trial Court after perusal of entire evidence on record and in particular medical evidence reached the conclusion that ingredients of Section 326 of IPC were not attracted rather ingredients of Section 325 gets attracted in the facts of the case, and accordingly convicted the accused of the offences punishable under Section 325, 324, 323 read with 34 of IPC.

PW1 admitted that the main accused had given one blow by sickle on his left arm and also stated that sickle is same as ‘Khurpi’ which was commonly used for removing/cutting grass in the agricultural field.

Further, the PW1 stated that the main accused had given only one blow of sickle and multiple blows.

It is true that the trial Court passed the impugned judgment and order in the year 2000 and this appeal is taken up for hearing in the year 2022.

Therefore, High Court held that, Trial Court’s opinion was plausible, reasonable and in consonance with the evidence.[State of Maharashtra v. Mahadev Ramu Takkekar, 2022 SCC OnLine Bom 274, decided on 9-2-2022]


Advocates before the Court:

Mr. S.S. Hulke, APP for State.

Mr. Manish Mazgaonkar for Respondent 3.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter wherein a person was convicted under Section 307 of Penal Code, 1860, Mukta Gupta, J., explained the law on Section 307 IPC and denied interfering with the conviction due to injuries caused on a vital part of the victim.

Appellant challenged the impugned judgment whereby the appellant was convicted for the offence punishable under Section 307 of the Penal Code, 1860.

As per the prosecution case, the appellant was living with his wife and the mother-in-law at their house when an altercation took place. It was alleged that the appellant came back intoxicated, went to the kitchen, took the axe and hit the mother-in-law and the wife resulting in grievous injury to the mother-in-law and simple injury to the wife.

Further, the prosecution submitted that, in view of the material contradictions in the testimony of the witnesses, the appellant be acquitted of the charge for offence punishable under Section 307 IPC or in the alternative be released on the period already undergone which is more than half the sentence awarded, i.e., 2 years 10 months including remissions.

Learned APP submitted that PW-2 and PW-3 were the injured witnesses and hence their evidence stands on a higher pedestal and cannot eb brushed aside. PW-4 and PW-6 took the two injured victims to the hospital and hence their presence at the spot cannot be doubted.

In view of the serious offence committed by the appellant no case for acquittal or for reduction of sentence was made out.

Statement of Anita, mother of the complainant was recorded under Section 161 CrPC and before Court who supported the version of the complainant in its entirety.

Analysis and Law

It is trite law that for conviction for an offence punishable under Section 307 IPC, it is not necessary that the victim should suffer an injury and, in a case, where the offence is committed with an intention to commit the murder of the victim, Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim.

In the instant case, the appellant used the axe with which he inflicted injury on the victim Anita on the vital part of the body i.e. face. Considering the weapon of offence and the vital part of the body where the injury was inflicted the intention of the appellant to commit murder was evident.

Decision

High Court on noting the nature of weapons used and the injuries inflicted on a vital part of the body and the evidence of the two injured victims found that prosecution proved beyond reasonable doubt that the appellant had committed the offence punishable under Section 307 IPC.

Therefore, no case was made out for interference with the impugned judgment of conviction.

In view of the above appeal was accordingly dismissed. [Gain Chand v. State Govt, of NCT, Delhi, 2022 SCC OnLine Del 91, decided on 12-1-2022]


Advocates before the Court:

For the petitioner: Mr. Samyak Gangwal, Adv. (Proxy) for Mr. Gaurav Gupta, Adv.

For the respondent: Mr Ravi Nayak, APP for State with SI Ravi Kumar, PS Jahangir Puri.

Case BriefsHigh Courts

Calcutta High Court: In a case wherein directors of the Board of society had published defamatory statements against the Vice Chairman of the society and circulated the same in the whole society and pasted it on the elevators to defame him, Bibek Chaudhuri, J., explained the offence of defamation and what are the essentials to prove that harm has been caused to the reputation of a person.


Background


Instant application was filed under Section 482 of the Code of Criminal Procedure for quashing of proceedings under Section 500 of the Penal Code, 1860.


Facts leading to the present matter


An aged widow/apartment owner of society had applied for permission to effecting repairs of her apartment. Secretary of the society allowed the same.

The said repairing work was stopped by passing a resolution alleging that the aged widow/apartment owner might transfer her membership of the society and her apartment.

Later, the legal advisor of the society gave an opinion that the resolution adopted was illegal and in contravention of the applicable statute.

Complainant construed to the resumption of the repair work at the said owner’s apartment and accused 1 to 3/petitioners opposed the same. When accused 2 started shouting at the complainant, he decided to recuse himself from the said meeting.

An alleged defamatory letter was circulated amongst all the members of the society wherein the following was stated:

(i) Complainant threatened Petitioners with dire consequences and also demeaned female members of the society.

(ii) Opposite party caused premature dissolution of the meeting by indecorous behavior in breach of his duties as vice-chairman of the Board of Directors.

(iii) Opposite party was dismissive of the lawful suggestions made by petitioners.

OP through his advocate issued notice to petitioner for ceasing the publication and circulation of the alleged defamatory letter and to issue written apology denying the impugned allegations against him. Even after the said notice, the letter was found to be pasted on the wall of the elevators of the apartments.

In the present application, petitioners submitted that they were innocent and in no way connected with any offence far less offence alleged.


Analysis, Law and Decision


Section 499 IPC


High Court in view of a Supreme Court decision referred by the parties recorded that to constitute an offence of defamation under Section 499 of Penal Code, 1860, there has to be imputation and it must have been made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it has made.

Causing harm to the reputation of a person is the basis on which the offence is founded and the mens rea is a condition precedent to constitute the said offence.

 Section 44 of the Indian Evidence Act


Any harm whatever illegally caused to any person, in body, mind, reputation or property amounts to “injury” within the meaning of Section 44 of the Indian Evidence Act. The harm caused to the reputation of any person is a form of injury.

“…the offence of defamation is the harm caused to the reputation of a person.”

 OP was the Vice-Chairman of the society and petitioners were the directors of the Board of the same society.

Both the parties alleged that they were insulted by each other. OP alleged that publication of the letter containing defamatory statements was caused only to defame him in the estimation of others.

Further, the Bench stated that the following questions of facts are first to be determined by the Trial Court,

“Whether the content of the said letter was defamatory or not, or whether it was it was published by the petitioners or not, or whether it came to the notice of others or not or whether the complainant’s reputation was demeaned in the estimation by others or not…”

Therefore, in view of the above discussion criminal proceeding cannot be quashed invoking the inherent power of this Court contained under Section 482 of the Code. [Alpana Ghosh v. Amitava Ghosh, CRR 278 of 2018, decided on 1-10-2021]


Advocates before the Court:

For the Appellants:

Mr Rajdeep Mazumdar, Adv., Mr Mayukh Mukherjee, Adv.

For the Respondents:

Mr Sandipan Ganguly, Sr. Adv., Mr. Dipanjan Dutta, Adv.,
Mr Rajiv Kumar, Adv.,
Ms Sambrita Chatterjee, Adv.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing an issue with respect to culpable homicide expressed that:

“…crucial to determine whether the accused had intention or knowledge that the injuries inflicted on the victim would cause the death and as a result thereof the accused could be guilty of committing culpable homicide not amounting to murder.”

The instant revision petition was filed under Section 397/401 of Criminal Procedure Code directed against the order passed by the Additional Session Judge, framing charges against the petitioner for offences under Section 308, 385 and 34 of the Penal Code, 1860.

A piece of information was received that a man had been stabbed in front of Okhla Sabzi Mandi.

Further, it was added that the petitioners came to the complainant, Anwar/petitioner 4 was armed with a Danda Imran/petitioner 3 and Sharukh/petitioner 2 were armed with iron rods and Salman was armed with a knife. They demanded money from the complainant.

Further, it was stated that all four petitioners started hitting the complainant, later petitioners’ brother, Nazim rescued him.

The accused left after threatening the complainant of dire consequences.

From the investigation, sufficient evidence for filing charge-sheet against the petitioners under Sections 308, 384 and 24 of Penal Code 1860 was found.

Additional Sessions Judge found that prima facie a case under Section 308 IPC was made out against the accused. The said order has been challenged in the present revision petition.

What is Section 308 of Penal Code, 1860?

Attempt to commit culpable homicide:

 Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

In the decision of Rajiv Sharma v. State, 2015 SCC OnLine Del 12138, it was held that:

“4. To proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances that, if one by that act caused death, he would be guilty of culpable homicide not amounting to murder…”

Case of Scuffle

 It was noted in the view of facts and circumstances of the present case that it was a simple case of scuffle/quarrel between the parties where injuries were inflicted voluntarily and the High Court opined that the assailants could be proceeded for causing hurt under Section 323/324 IPC.

Complainant has submitted that the petitioner used to demand money for conducting business from that place and four of them attacked the victim.

Culpable Homicide

To secure conviction under Section 308 IPC the prosecution must prove that the accused had requisite intention or knowledge to cause culpable homicide.

With regard to determining the intention of whether the accused had intention or knowledge that injuries inflicted by him on the victim would cause death can be determined only at the stage of trial and not at the time of discharge.

Elaborating on the aspect of discharge in a case under Section 308 IPC, Bench referred to the decision of Supreme Court in Sunil Kumar v. N.C.T. of Delhi, (1998) 8 SCC 557.

High Court stated that APP, Meenakshi Chauhan was right in her submissions that the injury alone sustained by the accused at the time of framing charge cannot be the only criterion to discharge a person from an offence under Section 308 IPC. The attempt of that nature may or may not actually result in injury.

What is relevant for framing charges under Section 308 IPC is that an act done by the accused with intention or knowledge that under such circumstance’s death could have been caused or not.

Fact that the injury suffered by the victim is simple might not be a very relevant circumstance at this juncture in view of the circumstances of the Supreme Court decision cited above.

Hence, High Court upheld the decision of the Additional Sessions Judge. [Salman v. State, Crl.,  2021 SCC OnLine Del 1247, decided on 12-03-2021]


Advocates before the Court:

For the Petitioners: Ajayinder Sangwan, Advocate

For the Respondents: Meenakshi Chauhan, APP for the State

Sumer Kumar Sethi, Advocate for respondent 2

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that at least 23 people were killed and over 30 injured after the roof of a shelter at a crematorium collapsed on them in Murad Nagar Municipality, Ghaziabad, Uttar Pradesh on Sunday, 3-01-2021.

The Commission has issued notices to the Chief Secretary and the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within four weeks. The report must contain review of all the crematoriums, burial grounds and other such buildings, which are used by the general public for community activities in the State and maintained by the local administrative authorities. The authorities concerned must ensure proper maintenance of such places to avoid any untoward incidents in future posing danger to human lives.

The Commission has also noted, as reported in the media, that an FIR has been registered and some financial assistance has also been announced by the State government. It has asked the State Government, through its senior officers, about the present status of the investigation of the case as well as the health condition of the injured.

Issuing the notices the Commission has also observed that apparently, the contractor and department concerned have acted in a negligent manner leading to violation of the right to life of the victims. The incident is required to be investigated thoroughly so that the guilty could be adequately punished as per the provisions of the law.

According to the media reports, the rain shelter had been constructed recently by a private contractor engaged by the Muradnagar Municipality. The incident occurred when about 60 people were attending a cremation. Some labourers, who were working at a Rapid Metro site nearby and the local residents came forward to rescue the victims. The police personnel and members of NDRF team also reached the spot and rescued the victims. Twenty-three deaths were confirmed, while many injured were admitted in the hospitals.

As per news report, an FIR u/s 304/337/338/409 and 427 IPC was registered and three persons including the contractor and two civic officials were arrested. The State Government has, reportedly, announced financial assistance of Rs.2 lakhs each to the families of the deceased. Reportedly, some local residents alleged that poor quality material was used in the construction of the structure due to which it was collapsed.


NHRC

[Press Release dt. 05-01-2021]

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) allowed an application for disability pension filed under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was enrolled in Army on 28-02-1994 and was discharged on 29-02-2016 in Low Medical Category on completion of service limits under Rule 13 (3) Item III (i) of the Army Rules, 1954. The Release Medical Board (RMB) assessed his disabilities (i) Obesity (E-66) at 5% for life, (ii) Type II Diabetes Mellitus (E-11) at 20% for life, (iii) Dyslipidemia (E-78.0) at 5% for life and (iv) ACL Tear Complete (RT) OPTD (S-83.5) at 20% for life, composite at 40% for life and opined the disabilities to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected.

The questions before the Tribunal were of two-fold:

(a) Whether the disabilities of the applicant were attributable to or aggravated by Military Service?

(b) Whether the applicant was entitled to the benefit of rounding off the disability pension?

The Tribunal, while relying on Dharamvir Singh v. Union of India, (2013) 7 SCC 316, held that reasoning of RMB for denying disability pension stating that injury (i) to (iii) were lifestyle disease and injury (iv) occurred when the applicant was on leave, was not convincing and did not reflect the complete truth on the matter. Since, injury (i) to (iii) started after the applicant had served 20 years of service the benefit of the doubt should be given to the applicant and second and third disabilities of the applicant should be considered as aggravated by military service. Regarding injury (iv), the Tribunal observed that applicant suffered an injury while going to join on permanent posting, hence, it should be treated to have causal connection with military service and the same should be considered attributable to or aggravated by military service.

On the point of rounding off of disability pension, the Tribunal cited Union of India v. Ram Avtar, 2014 SCC OnLine SC 1761, wherein the Supreme Court held that, “an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension.”

In view of the above, the Tribunal set aside the impugned order holding that benefit of rounding off of disability pension at 40% for life should be rounded off to 50% for life and be extended to the applicant from the date of his discharge. The disabilities of the applicant were held as aggravated by Service and the respondents were directed to comply with the order within a period of four months from the date of receipt of a certified copy of this order. Further, the interest of 9% per annum was awarded for default till actual payment. [Krishna Kumar v. Union of India, O.A. No. 14 of 2019, decided on 09-12-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J., allowed the instant appeal against the impugned order of Commissioner for Workmen’s Compensation, Thiruvananthapuram.

The brief facts of the case are; an application for compensation was filed by mother of the deceased, who was working as a lorry driver. The lorry had a national permit, was driven by the deceased from Thiruvananthapuram to Baroda. The contention of the applicant before the Commissioner was that when the lorry reached Surat on 23-02-1999, the deceased felt severe stomach pain and he was rushed to the hospital for treatment, where he died on the same day. The claim for compensation was made after seven years and a separate delay petition was also filed along with claim petition. The cause pleaded in the delay petition was that the applicant and her husband being illiterate and poor had to depend on intermediaries, who did not give proper advice. Further, her husband was on bed rest due to rheumatic fever and she was with him as bystander looking after his affairs.

The Commissioner, while condoning the delay held that the applicant had a legal claim for compensation and accordingly, impugned order for compensation of Rs 4,11,900 was passed with interest against the appellant, Kerala State Insurance Department.

The appellant-insurer and the employer filed objections to the delay petition as well as claim. It was submitted that according to Section 10 of the Employee’s Compensation Act, 1923(“the Act”) the claim for compensation ought to be filed within two years of the cause of action. The contention of the appellant was that there was no evidence on record establishing the sufficient cause pleaded and the order condoning delay was passed without evidence, thus, such a decision could not be legally sustainable.

The Court observed that, delay petition was not independently considered before entertaining the claim for compensation. In the absence of evidence in support of alleged sufficient cause, the Commissioner was not justified in condoning of delay, that too, without assigning reasons. Further, on the question of cause of death, the court noticed that in the post-mortem report, the final cause of death was shown as poisoning. Hence, considering the evidence on record, it was held that the death was on account of food poisoning and it could not be said to be causally connected with the work in which the deceased was engaged. The Court stated that, unless stomach pain had causal connection or association with the work in which the deceased was employed, it cannot be reckoned to be an accident to fasten liability on the employer for payment of compensation.

It was held that, a grave error was committed by the Commissioner in upholding the claim of the applicant for compensation. The impugned order passed was not legally sustainable, hence, it was ordered to be set aside. [Kerala State Insurance Department v. Radha,  2020 SCC OnLine Ker 7729, decided on 22-12-2020]

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. upheld the judgment of Additional Sessions Judge convicting the appellants for the offences punishable under Section 376(g), 506 and 34 of IPC.

Prosecution Case

On 8-12-2004, appellants came to the house of the victim where she resided with her husband and 2 children. They consumed liquor with her husband. When they were going to bring more liquor, the victim did not allow them. The appellants went away but after some time came back and started knocking the house door while threatening to kill victim’s husband. By this time, her husband felt asleep under influence of liquor. Afraid, the victim ran out of the house from the back door. The appellants caught her and took her to a secluded place where they committed forcible sexual intercourse on her against her will.

Trial Court’s decision and appellant’s challenge

The appellants were charge-sheeted for the above-mentioned offences and after appreciating the evidence, the trial court convicted them under the charges framed. S.S. Rao with C.R. Thakur, Advocates representing the appellants before the High Court challenged trial court’s judgment on various grounds. Much capital was made by the counsels to distrust the victim in absence of any injury on her private part.

Judgment of the High Court

After perusing the entire material available on record, the Court found no infirmity in the trial court’s judgment. All contentions raised on behalf of the appellants were rejected. Referring specifically to the ground of absence of injury, the court expressly observed, ” The marriage of the victim took place prior to 15 years and she is having two grown-up children aged 13 and 10 years. In light of this fact, one cannot expect injuries on vagina even if there is forcible sexual intercourse.”

On re-appreciation of the entire case, the Court dismissed the appeal. The conviction of appellants was upheld and sentence of 10 years imprisonment was confirmed. [Viru v. State of Maharashtra, 2019 SCC OnLine Bom 68, dated 07-01-2019]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of Dinesh Maheshwari CJ and S. Sujatha, J. declined to exercise PIL jurisdiction in petition filed by residents of Kottur Town Panchayath challenging approval for construction of town panchayath building on a land.

Mr N. Shankarayana Bhat, counsel on behalf of the petitioners, placed reliance on the Record of Rights (RTC) and submitted that the subject land was reserved for public purpose and specifically shown as ‘park and overhead water tank’ in revenue records. It was submitted that the order granting approval for construction of new panchayath building in that land was not as per procedure prescribed under Section 306 of the Karnataka Municipalities Act, 1964 and as such unsustainable in law.

Learned counsel Mr M.V. Hiremath, appearing on behalf of respondent, refuted the contentions of petitioner and submitted that the subject land was purchased by respondent for constructing town panchayath office and water tank, and RTC records clearly depicted the land to be for official buildings and water tank.

The Court noted that the subject land was purchased by respondent through a registered sale deed for constructing panchayath building and water tank. However, mistakenly, the RTC extracts reflected purpose of land as ‘park and water tank’. The said mistake was corrected on respondent’s representation and that order remained unchallenged. The said order, having attained finality, petitioner could not seek liberty to maintain a park in the subject land.

It was further held that Section 306 of the Act is applicable only if Deputy Commissioner is of the opinion that execution of any order or resolution of a town municipal council is unlawful, or is likely to cause injury/ annoyance to public, or lead to a breach of peace.

Since the proposal to use subject land for building panchayath office and water tank did not militate against public interest, the petition was dismissed.[K.S. Iswara Goud v. Town Panchayath, Kottur, 2018 SCC OnLine Kar 2705, decided on 10-12-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single judge bench comprising of Birendra Kumar, J. allowed a criminal writ petition for anticipatory bail filed in relation to a police case under the SC/ST Act on the ground that there were infirmities in the prosecution allegations.

The appellant was allegedly involved, along with other ten to fifteen persons, in assaulting a person belonging to SC/ST community. He filed the instant appeal under Section 14(A)(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against trial judge’s refusal of prayer for his anticipatory bail.

The High Court noted that the doctor had found two simple injuries on non-vital parts of the informant’s body, and the medical report was inconsistent with the prosecution allegation of commission of assault by 10-15 persons. Further, in a criminal case filed against one of the co-accused a bench of this court had ordered no coercive step to be taken against the co-accused. The said order was still continuing.

Considering the aforesaid infirmity in the prosecution allegation and having regard to the order continuing in favour of a co-accused, the appellant was granted anticipatory bail on the condition of full cooperation with investigation/trial of the case, failing which the court would be at liberty to cancel his bail bond.[Md. Shafique v. State of Bihar,2018 SCC OnLine Pat 1995, decided on 02-11-2018]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Kuldip Singh, J. dismissed the appeal filed against the order passed by the Civil Judge in execution proceedings.

The appeal was filed by partners of one Dashmesh Artia Cotton Factory which was attached and auctioned as a result of recovery and execution proceedings against one of its partners. Other partners filed an objection to the said auction under Order XXI Rule 90 CPC  which was dismissed by the learned Civil Judge. The appellant challenged the decision of the Civil Judge.

The High Court considered the submissions of the appellant and after referring to various decisions of the Apex Court as well as other High Courts, observed that under Order XXI Rule 90 CPC, the auction can be set aside only on account of fraud or material irregularity which has resulted in substantial injury to the applicant. For this purpose bald allegations are not sufficient, fraud has to be alleged and established. On the facts of the instant case, the Court held that there was no such fraud or material irregularity in the auction sale of the property concerned that would render it liable to be set aside under Order XXI Rule 90. Therefore, the appeals were dismissed. [Bahadur Chand v. Madanlal,  2018 SCC OnLine P&H 636, dated 01-03-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: An appeal filed by the Executive Engineer against the award of compensation passed in favour of Respondent 2, was dismissed by a Single Judge Bench comprising of Sanjeev Kumar, J.

Respondent 2 (an iron smith) was engaged as a labour by Respondent 3 (contractor) who worked with the appellant. A compressor rod was given by the appellant to Respondent 2 to carry out repairs. While working on the compressor rod, Respondent 2 sustained a certain injury which resulted in his arm getting amputated and thereby he suffered permanent disability. He preferred a claim petition before the Commissioner under Workmen Compensation Act, who awarded him a compensation amounting to Rs. 2,97,000 along with interest at 6% per anum. The appellant challenged the award contending inter alia that there was no privity of contract between him and Respondent 2, therefore, liability to compensate him could not be fastened on the appellant.

The High Court, after duly considering the submissions made by the appellant, observed that his contention was fallacious. The Court noted that it was undisputed that Respondent 3, who had engaged Respondent 2 as a labour, worked with the appellant as a contractor. Respondent 2 was engaged to carry out the work of the appellant. Furthermore, the job of repairing the iron rod, that was the direct reason for the injury, was assigned to Respondent 2 by the Junior Engineer of the appellant. The Court categorically stated that the appellant being a principal employer was liable to pay compensation to Respondent 2 on account of permanent disablement suffered by him during and in the course of his employment with the appellant. In such circumstances, the High Court dismissed the appeal holding the appellant liable to compensate Respondent 2 as awarded by the Commissioner. [Executive Engineer, PWD v. Commissioner, Workmen’s Compensation,  2018 SCC OnLine J&K 367, dated 04-06-2018]