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]

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]

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]

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]

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]

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]