Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Factual Background

Allegedly, the accused persons formed an unlawful assembly and laid an assault on the appellant and his family members after trespassing into his residential property and started damaging the tin fence. When the appellant tried to restrain the accused persons from causing any further damage, they all started assaulting the appellant by giving fisticuffs. One even hit the appellant with a wooden log. When the wife and the daughter-in-law of the appellant came to rescue him, the accused persons caught hold of them and beat them up. Both the women were then dragged as a result the clothes of the the wife of the appellant got torn thereby outraging her modesty. The wife, due to the injuries suffered by her, had to be shifted to a hospital where she was soon declared dead. The cause of death of the deceased as assigned in the post mortem was “cardio respiratory failure”.

Trial Court and High Court orders

The trial court thought fit to discharge the accused persons of the offence of murder punishable under Section 302 of the IPC and proceeded to frame charge against the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC. The High Court of Jammu and Kashmir also thought fit to affirm the order passed by the trial court discharging the accused persons of the offence of murder.

Supreme Court’s analysis and decision

The Court observed that the trial court discharged the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the postmortem report being the “cardio respiratory failure”, the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased.

Holding that such approach of the trial court is not correct and cannot be countenanced in law, the Court explained that the post mortem report, by itself, does not constitute substantive evidence.

“Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses.”

Explaining why the postmortem report of the doctor is not substantive evidence, the Court observed that it is the previous statement based on doctor’s examination of the dead body and the doctor’s statement in court is alone the substantive evidence.

“The postmortem report can be used only to corroborate his statement under Section 157, or to refresh   his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872.”

Observing that the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination, the Court said that once the expert’s opinion is accepted by the Court, it is not the opinion of the medical officer but of the Court.

Keeping this position of law in mind, the Court held that in the case at hand, the prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the postmortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question.

Further, whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record.

“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.”

Explaining the settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court, the Court said that once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC.

The Court was, hence, of the opinion that in the case at hand it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the chargesheet.

[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913, decided on 26.07.2022]


*Judgment by: Justice JB Pardiwala

Case BriefsHigh Courts

Madras High Court:  G.R. Swaminathan, J., observed that,

What the government does must inspire the confidence of the people. Every time a custodial death occurs, the legitimacy of the State suffers a big dent.

Factual Matrix

Petitioner a permanent resident belonged to a scheduled caste community. His elder brother fell in love with a relative namely, Punitha and in view of the objection raised by her parents, he started residing elsewhere. Punitha’s family complained as if had been abducted.

Since the elder brother and Punitha could not be traced, petitioner and other members of the family were periodically directed to appear for enquiry before the investigating officer. Further, petitioner alleged that all the family members were subjected to physical abuse.

It was further stated that, local police arrived at the petitioner’s house and several times and had beaten up the petitioner, his youngest brother i.e. Ramesh on the next visit. The younger brother of the petitioner was taken in custody and later he did not return home.

Suicide

Ramesh was found hanging, according to the petitioner he was tortured by the local police and he died as a result.

In order to cover up the crime, police made the above-stated incident appear as if he had committed suicide.

A complaint was registered under Section 174(3) of CrPC.

The petition had been filed seeking a direction to the respondents to exhume the body and conduct a second postmortem.

Court had directed for conducting the second postmortem at the burial itself. The entire second postmortem was also directed to be videographed. Hence, the second post-mortem was done accordingly.

The entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings.

Custodial Death

It has been stated that a proper videograph was not taken at all and in view of the same petitioner’s counsel insisted that appropriate directions will have to be issued for the future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.

Bench referred to the Division Bench of this Court in a PIL in WP (MD) No. 78 of 2019, decided on 28-09-2020.

Further, the Court stated that,

“…foundations of any democratic government rest on popular acceptance. Though State primarily functions through its coercive apparatus, its actions must be perceived as proper by the people.”

“A dead person is equally entitled to justice. I would call it posthumous justice.”

Court also observed that, Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure.

To ensure the above stated, Court issued the following directions:

(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) CrPC shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.

(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.

(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called forensic autopsy must be conducted.

(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V. Eswaran v. Government of Tamil Nadu, dated 16-04-2019 in W.P. No. 10694 of 2019 and in W.P.(MD)No. 78 of 2019, dated 28-09-2020.

(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.

vi) The autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed. A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. 

If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous.

While parting with the decision, Court stated that:

All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.

Court allowed the petition with the aforesaid directions. [Santhosh v. District Collector, Madurai District; 2020 SCC OnLine Mad 5541, decided on 02-12-2020]