Case BriefsSupreme Court

Supreme Court: Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Brief Background

  • The Suit Property originally belonged to one Jessie Jayalakshmi, the maternal aunt of the Appellant/Plaintiff, who, being a spinster, adopted the appellant as her son and the appellant took care of her when she suffered an attack of paralysis.
  • The appellant had two siblings, a brother and a sister.
  • A registered Will under Exhibit P4 was executed by Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by the brother of the Appellant.
  • Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Kantha Lakshmi, the sister of the appellant.
  • The relationship between Kantha Lakshmi and her husband, Respondent No. 1 got strained and they obtained a divorce decree on 26.03.1988.
  • Respondent No. 1, while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.
  • Trial Court found Exhibit D1 to be forged.
  • The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading coupled with an admission of the execution of Exhibit P4, the High Court suspected that there was no logic in the exclusion of the sister of the Appellant and concluded that there was no basis to leave her out of the Will.

Analysis

The Supreme Court noticed that,

  • The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court.
  • The High Court has also committed an error in misconstruing the presence of the sister of the Appellant, Kantha Lakshmi. Her presence in fact adds strength to Exhibit P4 having been executed properly. It is the specific case of the Appellant and his siblings that the deceased, Ms. Jessie Jayalakshmi wanted the property to be given in his favor.

“Their participation coupled with the subsequent conduct would be sufficient enough to uphold Exhibit P4. When there are no suspicious circumstances surrounding the execution of Exhibit P4, there is no need to remove.”

  • The High Court after giving adequate reasoning for disbelieving Exhibit D1 that it is forged and fabricated should have kept in mind the conduct and attitude of the Respondent No.1.

“The factors such as the fabrication and severance of relationship between himself and his wife in pursuance of the decree for divorce, coupled with the status while squatting over the Suit Property being the relevant materials, ought to have weighed in its mind instead of questioning Exhibit P4. Had that been done, perhaps it would have come to conclusion that such an exercise is not warranted at the hands of the. Respondents, who not only accepted Exhibit P4 but it did not even question it; except by contending that it is replaced by Exhibit D1.”

Conclusion

Noticing that both the Courts have given adequate reasoning for not believing Exhibit D1, the Court concluded that

“In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon an exercise which is not required and also not permitted under the law.”

[V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896, decided on 07.10.2021]


*Judgment by: Justice MM Sundresh

Counsel:

For appellant: Advocate Kiran Suri

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation, Ghaziabad (CBI): Shivank Singh, Special Judicial Magistrate (CBI), while acquitting the accused of all the charges gave detailed reasoning for each such offence as alleged by the CBI. The Court after considering the failure to prove the offences based on ‘strong suspicion’ stated that the law was settled on the point, that ‘however strong the suspicion maybe, it cannot take place of proof’, and remarked,

“…with the present evidentiary matrix at hand and the subsisting law, it becomes customarily cardinal to apply germane precepts which has metamorphosed the course of evidentiary value of proof over conjectures”.

In the instant matter it was alleged by the CBI that Prithviraj, accused (A1) prepared a forged letter of the Union of Home Minister with the aide of his uncle Pradeep Kumar Kapil, accused (A2) and Kalpana Sahay, accused (A3) and thereafter used it to get himself transferred from Baghpat to Meerut, UP. It was further stated that out of the 22 witnesses, 7 witnesses had turned hostile. It was submitted by the Prosecution that the spellings in the letter for ‘Government’ and ‘Ministry’ were wrong which rose suspicion to forgery which was later substantiated by the witnesses, according to them. While the defence contended that GEQD report was not clear pertaining to the specimen signatures and no oral testimony of any of the prosecution witness was sufficient to prove that the accused persons were involved in the present case.

The Court after breaking down the ingredients for the offences under IPC and after considering relevant documents, evidences and the testimonies of the witnesses accepted the submission where forgery was alleged. However, on a conjoint reading of the testimonies, concluded that the allegations against the accused could not be proved. The Court stated,

“Though, it is proved that the letter in dispute was not a genuine one but a forged letter but the allegation that the accused Prithviraj had cheated his senior officials by using it cannot be proved. It is also not proved by any of the testimony of prosecution witness or by way of any documentary/ expert evidence that such forged letter was prepared with the aide of accused Pradeep Kumar Kapil and Kalpana Sahay”.

Furthermore was of the opinion that the Prosecution failed to lead evidence as required under Section 417 and 415 IPC. The Court even clarified the offences, the ingredients required under the relevant sections and thus acquitted the three accused under Section 120B read with 417, 468, 471 of IPC.

The Court thus noted, “To avoid verbosity, the precedents set by the Supreme Court should be cohered into, for justice to prevail. With the settled principles of law wherein suspicion cannot take place of proof, irrespective of how well-built it maybe, this court is conscious of this evolved jurisprudence. Therefore, since the CBI has miserably failed to establish the charges, ensuingly mere suspicion cannot stand valid to prove the charges beyond reasonable doubt against all of such accused persons”.[CBI v. Prithviraj, RC 2 (S)/2007/SCU.V/CBI/SCR.II,  decided on 17-09-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda and S. K. Panigrahi, JJ. set aside the impugned conviction order and allowed the appeal.

The facts of the case are such that one Rama Dharua’s (informant) niece Ghulikhai @ Nidra Majhi was missing and on searching the village and inquiring he failed to trace the whereabouts of their niece. The informant then reported the same to the police and an FIR was registered. On one night his son-in-law one Dullabha Majhi confided him that one Dama Pradhani (appellant) of his village had confessed before him that he had committed the murder of the deceased and concealed the dead body. During the course of investigation, the Investigating Officer proceeded to the village and took the appellant into his custody who allegedly confessed to have committed the crime by strangulating the deceased and having concealed the dead body in Gadiajore Nala. Upon arrival at the Gadiajore Nala, the body was immediately recovered. Inquest was conducted. The body of the deceased along with a lungi that was found tied around her neck was sent for post mortem examination. The appellant was also sent for medical examination where a sample of his semen was seized. The appellant was then arrested and forwarded to the court. Based on various witnesses presented before Trial Court the appellant was convicted for commission of offences punishable under Sections 302/201 of Penal Code, 1860 i.e. IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs 2, 000/-and in default further to undergo R.I. for a period of six months under Section 302 of IPC and to undergo R.I. for two years and to pay a fine of Rs 1, 000. Upon further default, to undergo R.I. for three months under Section 201 of the IPC Aggrieved by the said order, present appeal was filed.

Counsel for the appellants Mr B.S. Das, D. Marandi, L.C. Behera and S. Sahoo submitted that there is no eye witness to the occurrence and the case of prosecution is solely based on circumstantial evidence. It was further submitted that although the extra-judicial confession has led to the discovery of the dead body, however, the prosecution has failed to adduce cogent and trustworthy evidence to prove the circumstances beyond a reasonable doubt.

Counsel for the respondents Mr S. K. Zafarulla submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to strangulation by means of lungi. It was further submitted that the witnesses and evidence presented clearly states culpability of the accused.

The Court summarized four circumstances indicating the culpability of the appellant, namely

  1. Extra judicial confession made by the accused
  2. Recovery of dead body of deceased
  3. Evidence and statements of various witnesses
  4. Motive

The Court relied on judgment Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 wherein it was held that

“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

 The Court further relied on judgment Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872 and observed that even if it can be accepted that the statement of the appellant led to the discovery of the body of the deceased and hence might be admissible, it is important to note that only that part of the statement which led to the discovery of the body of the deceased can be admitted. Every other information presented in the statement which are inculpatory and confessional including the confession of allegedly committing the offence, the alleged usage of the lungi to commit said offence, the existence of the love affair have to be completely barred and cannot be relied upon under any circumstances.

The Court observed that In the instant case there are no eye-witness to the occurrence and prosecution case solely rests on the circumstantial evidence. The Court relied on judgment Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh (2006) 10 SCC 172 wherein it was held that:

“26. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.”

The Court held “in the absence of eye-witnesses and the weak chain of circumstantial evidence, the order of conviction and sentence impugned herein are liable to be set aside.”

In view of the above, appeal was allowed.[Dama Pradhani v. State of Orissa, 2021 SCC OnLine Ori 309, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., directed for no coercive action to be taken against a person booked under Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and highlighted the significance of the right to privacy.

Petitioner sought the issuance of a writ of certiorari quashing the impugned FIR under Sections 504, 506 and 120-B IPC and Section 3/5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020.

The victim is the informant’s wife and mother of two children. Allegation against the petitioner was that he used to visit informant’s house and taking due advantage of acquaintance with the informant’s wife, he attempted to persuade her to change her religion so that he may marry her.

Senior Counsel on behalf of the petitioner submitted that as far as the validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 was concerned, same is the subject matter of challenge in Writ (PIL) Nos. 1756 of 2020 and 1757 of 2020, but the present case, is in regard to upholding the right of privacy as a basic fundamental right covered by Part-III of the Constitution.

Further, it was added to the submissions that no material to substantiate the above contentions were raised and were based on mere suspicion.

Decision

Article 25 provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality and health and to the other provisions of Part-III of the Constitution.

Bench observed that no material was placed before the Court which would show that any force or coercive process was being adopted by the petitioner to convert informant’s wife.

Adding to its observation, the Court also expressed that the victim being an adult understands her well being.

She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship.

Referring to the Supreme Court’s decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, the Bench stated that Right to Privacy was upheld in the said decision.

In Joseph Shine v. Union of India, (2019) 3 SCC 39, issue of the right to privacy has been held to depend on the exercise of autonomy and agency by individuals.

Present is a case where all the allegations are prima facie based on suspicion.

In view of the above discussion, the Court stated that the matter requires consideration.

The matter has been listed for consideration on 07-01-2021 and till the next date, no coercive measure shall be taken against the petitioner.[Nadeem v. State of U.P.,  2020 SCC OnLine All 1496, decided on 18-12-2020]


Advocates who appeared before the Court: 

Counsel for Petitioner: Syed Ahmed Faizan, Syed Farman Ahmad Naqvi (Senior Adv.), Zaheer Asghar

Counsel for Respondent: G.A.

Case BriefsForeign Courts

Kenya High Court, Nyahururu: R.P.V. Wendoh, J. passed a judgment directing acquittal of an accused in the absence of sound circumstantial evidence.

A child was found dead in Nyahururu, Kenya. The reason for the death was found to be strangulation leaving a dark swollen mark around the neck of the deceased child. The police was called and the investigating officer noticed that the younger brother of the deceased child also had the same swollen mark on his neck, however, he never bothered to interrogate that child. The deceased used to live with father, brother and father’s second wife as the mother of the deceased had parted from his father and he was under the custody of the father. Police suspected David Wang’ondu Githiru, father of the deceased for the murder but when they tried arresting him, he started to run with an intention of escaping from the scene.

Learned counsel for the prosecution, Mutembei called upon nine witnesses who testified the death of the deceased and the swollen mark present on his neck. One of the witnesses also testified the presence of the same mark on the neck of the younger brother of the deceased. The testimony of the witnesses created a chain of events which somewhat placed accused as the probable murderer.

Learned counsel for the defendant, Kihoro contended before the Court that the circumstantial pieces of evidence brought before the Court were hollow as it did not answer as to who killed the child. He further argued that when the accused reached his home on that evening, the child informed him that he was sick. However, the accused had no money at that time so he started to arrange money. Around 3:00 a.m. the next day, he was taken to the hospital but he had died by that time.

The Court after hearing both the sides observed that the case turns on purely circumstantial evidence. It was opined that for the Court to rule a conviction on such evidence, events leading to the death of deceased must form a chain so closely knit together without any breakage or interruption. But, the present case did not give a very strong circumstantial evidence whose final outcome could be relied upon. The Court thus reiterated the judgment passed in Sawe v. Republic, (2003) KLR 364 in which it was opined that “Suspicion, however strong, cannot provide basis for inferring guilt which must be proved by evidence beyond reasonable doubt.”

Thus, the Court in absence of the proof beyond reasonable doubt acquitted the accused. [Republic v. David Wang’ondu Githuru, 2018 SCC OnLine Ken 1, decided on 24-10-2018]

Case BriefsHigh Courts

Gauhati High Court: Reiterating that mere likelihood of suspicion cannot be a reason to charge someone for an offence, Rumi Kumari Phukan, J. allowed a criminal petition and quashed the FIR registered against the petitioners under Section 120-B, 32 and 307 IPC.

The matter related to a long pending land dispute between the petitioners on one hand and the injured and the informant on the other hand. The injured was shot from the backside while riding his motorcycle. The informant, the wife of the injured, lodged an FIR against the petitioners on suspicion that the attack was committed by them in response to their land dispute.

J.J. Borbhuiya, I., Mohan, R. Ali and K.H. Choudhary, Advocates, representing the petitioners vehemently submitted that the criminal proceeding could not stand and continue on sheer suspicion. Per contra, T. Sarma and H.K. Sarma, Advocates, for the informant asserted that the proceedings should continue till the end. However, D. Das, Additional Public Prosecutor, submitted that the injured himself could not identify the assailants.

 Perusing the record, the High Court noted that the informant tried to project the case only on suspicion and there was no supporting evidence to suggest the complicity of the petitioners. It was observed: “Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convicting evidence collected in course investigation.” Holding that the same was very much lacking in the present case, the Court was of the view that continuance of the criminal proceeding against the petitioners would cause a miscarriage of justice. Thus, the prayer made by the petitioners was allowed and the impugned FIR was quashed. [Anuradha Gogoi v. State of Assam, 2019 SCC OnLine Gau 2296, decided on 14-05-2019]

Case BriefsHigh Courts

Punjab And Haryana High Court: The Bench of Rajiv Sharma and Kuldip Singh, JJ., dismissed the application filed under Section 378(4) CrPC against the Judgment passed by the Additional Sessions Judge acquitting the accused-respondents of the charges framed against them under Section 302 read with Section 34 IPC and Section 25 of the Arms Act on the ground that it was a case of mere suspicion. 

The facts of the case were that the accused was suspected of the murder of his brother whose body was found lying near the railway track. However, the Additional Sessions Judge acquitted the accused. The Court said that in this case, the prosecution relied upon the confession made by both the accused in their disclosure statements. However, the confession made in the disclosure statement is not admissible in evidence. The prosecution also led evidence to prove the enmity between the accused and the deceased and for this purpose, they have examined the brother of the deceased and the father of the deceased. Their cross-examination showed that both of them had heard about the quarrel between the accused and the deceased on the Diwali day. However, the accused proved that he was away to Delhi on the Diwali day. Therefore, their statements regarding quarrel was discarded as hearsay. 

The Court held that this was a case of circumstantial evidence. The entire chain was not complete to point out that the accused were the only persons who could commit the crime. It was merely a suspicion. It is established law that suspicion, however strong, cannot take place of the positive proof and cannot be made the basis of conviction. The prosecution could not prove its case against the accused beyond a reasonable shadow of doubt. The Court thus did not find any illegality in the impugned Judgment. Accordingly, application under Section 378(4) CrPC. for grant of leave to appeal was dismissed. [Abdul Rahman v. State of Haryana, 2019 SCC OnLine P&H 351, decided on 01-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed against the judgment of Revisional Court whereby petitioner’s / complainant’s in-laws were discharged of the offences under  Sections 498-A and 34 IPC.

In 2013, petitioner had filed an FIR against her husband and in-laws alleging harassment. It was alleged that her husband used to come late and beat the petitioner and when she complained to her in-laws, they behaved in the same manner. She was thrown out of the matrimonial house and was threatened not to enter again.

Anuj Kr Ranjan, Advocate for the petitioner submitted that there was sufficient material on record to substantiate framing of charge under Section 498-A. Per contra, Kishan N. Rana, Advocate for in-laws submitted that allegations against them were bald and even the investigation did not ravel any incriminating material.

After perusing the FIR, it was noted by the High Court that “in one breath, the petitioner named all the family members without specific role ascribed to any one of them.”Though instances were mentioned vis-a-vis her mother-in-law and brother of father-in-law, however, no specifics about date, time or place were given. Omnibus allegations were made which according to the Court did not justify framing a charge under Section 498-A as “for a change to be framed, the evidence gathered by the prosecution should not only give rise to suspicion but there should be grave suspicion that the accused have committed the offence.” Consequently, the petition was dismissed. It may be noted that in the present case, a charge was framed against the husband who was facing trial. [Anju v. State (NCT of Delhi), 2019 SCC OnLine Del 6865, dated 04-02-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order denying payment of salary to the aggrieved petitioner whose appointment was disputed.

In the present matter, appointment of the petitioner as a teacher and his counseling by the District Teachers Employment Appellate Authority was under cloud. The Appellate Authority, on consideration of the entire facts, directed employment unit to take steps to ensure counseling of the petitioner. However, petitioner’s claim for payment of his salary was rejected on the ground that legality and validity of his appointment was under dispute. Hence, the instant petition.

The Court observed that as the petitioner was regularly working for respondent and they were taking benefit of his work, therefore he was entitled to his full salary. At the highest, on the basis of Appellate Authority’s observations, respondents might take an appropriate decision; but without taking any such decision against the petitioner, denial of his salary was impermissible. It was noted that there was no finding as to the invalidity of petitioner’s appointment. In view thereof, the petition was allowed directing the respondents to pay arrears of salary to the petitioner for the period that he had actually worked until a further decision as to the validity of his appointment is was reached. [Akhilesh Pandey v. State of Bihar, 2018 SCC OnLine Pat 2160, decided on 03-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI), Mumbai: The whole-time Member of SEBI, Madhabi Puri Buch addressed the issue of whether there was any prima facie suspicion or evidence of financial misrepresentation and misuse of books of accounts by the company in question.

Parsvnath Developers Ltd. (PDL) mentioned themselves as one of the largest real estate development companies in Northern India involved in development and construction of real estate projects. SEBI, on the basis of a letter by Ministry of Corporate Affairs where list of shell companies were provided, viewed these shell companies as potentially involved in misrepresentation and misuse of books of account. PDL was also in that list.

The Board asked for various documents as an evidence of work taken up by the company and saw a possible violation of SEBI (Listing Obligation and Disclosure Requirements) Regulation, 2015. Board noted that PDL had failed to show commencement certificates for any work of contract and sub-contract carried by it which suggested that the revenue of the company has been overstated as no evidence to show completion of work was provided. Company also failed to provide evidence of execution of contracts undertaken by the company or given to other companies.

Therefore, the board was of the view that in the interest of investors, the company’s finances should be independently audited. Under Sections 11, 11(4), 11-A and 11-B read with Section 19 of the Securities and Exchange Board of India Act, 1992, the Board directed the exchange to appoint an independent forensic auditor. Board concluded that the company was on suspicion of misusing the books of accounts and misrepresentation of financials/business of the Company. [Parsvnath Developers Ltd. In Re, 2018 SCC OnLine SEBI 154, order dated 08-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: An appeal against the order of acquittal filed by the State was decided by a Division Bench comprising of Prashant Kumar Mishra and Ram Prasanna Sharma, JJ., wherein acquittal of the respondents as ordered by the Sessions Judge was upheld.

The respondents were accused in a criminal case under Section 302 read with Section 32  IPC for the murder of one Tushkumar and his wife. The prosecution while trying to prove its case submitted that the relation between the respondents and the deceased were strained and they had threatened to kill him; corroborative piece of seizure of deadly weapons from the respondents was an incriminating circumstance against them. However, the trial court acquitted the respondents of the charges above-mentioned. Aggrieved thus, the State filed the instant appeal.

The High Court perused the record and found that there was no eyewitness to the incident; the case of the prosecution was based on circumstantial evidence. And even the chain of circumstances was not unbroken so as to link the respondents with the crime. The statements of prosecution witness at best created suspicion against the respondents. The case of the prosecution was entirely based on suspicion. The Court observed that however strong the suspicion may be, it can not take place of proof. The High Court was of the opinion that the view taken by the trial court was correct and did not warrant interference. The appeal filed by the State was accordingly dismissed. [State of Chhattisgarh v. Nabbu @ Bafataddin, ACQA No. 137 of 2010, order dated 13-02-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Dipak Misra, CJ and AM Khanwilkar, J dismissed Teesta Setalvad’s plea seeking de-freezing of her accounts that have been seized in the matter relating to collection of huge funds as donation to 2 trusts in the name of providing legal assistance to the 2002 Gujarat Riot Victims.

The Court said that since the investigation was still in progress, the suspicion entertained by the investigating agency as to how the appellants appropriated huge funds, which in fact were meant to be disbursed to the unfortunate victims of 2002 riots will have to be explained by the appellants and they can apply for de-freezing of accounts only after completion of the investigation.

The major circumstances that create a strong suspicion against the appellants are:

  • donations received by the two Trusts had never reached the victims i.e. the members of the Gulberg Society.
  • final account did not tally with the accounts and the appellants did not offer credible explanation for the same.
  • appellants provided incorrect information and suppressed material facts i.e. that they have opened new accounts and transferred huge sums of money after knowing that stated bank accounts of the appellants were seized on 21.01.2014 by the investigating agency.

Hence, regarding the power of the investigation officer to seize the accounts of appellants under Section 102 of the Code of Criminal Procedure, 1973, the Court said:

“the Investigating Officer was in possession of materials pointing out circumstances which create suspicion of the commission of an offence, in particular, the one under investigation and he, having exercised powers under Section 102 of the Code, which he could, in law, therefore, could legitimately seize the bank accounts of the appellants after following the procedure prescribed in sub-Section (2) and sub-Section (3) of the same provision.”

The Court, however, said that once the investigation is complete and police report is submitted to the concerned Court, it would be open to the appellants to apply for de-freezing of the bank accounts and persuade the concerned Court that the said bank accounts are no more necessary for the purpose of investigation, as provided in subsection (3) of Section 102 of the Code. It will be open to the concerned Court to consider that request in accordance with law after hearing the investigating agency, including to impose conditions as may be warranted in the fact situation of the case.

The Court also clarified that if at any stage or upon completion of the investigation, the Investigating Officer is satisfied with the explanation offered by the appellants and is of the opinion that continuance of the seizure of the stated bank accounts or any one of them is not necessary, he will be well advised to issue instruction in that behalf. [Teesta Atul Setalvad v. State of Gujarat, 2017 SCC OnLine SC 1490, decided on 15.12.2017]

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsSupreme Court

Supreme Court: Stating that extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC, the Court held that it would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. It was further said that solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.

In the present case, the deceased had committed suicide due to the alleged extra-marital affair of her husband with a girl named Deepa, who later committed suicide not being able to digest the humiliation. The Couet said that the present case had the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark.

Explaining the concept of ‘cruelty’, the Court said that coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide.

The bench of Dipak Misra and Amitava Roy, JJ said that in such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A IPC and the fact that the said cruelty induced the wife to commit suicide. The Court said that the wife was guided by the rumour that aggravated her suspicion which has no boundary but such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC. It was held that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments [K.V. Prakash Babu v. State of Karnataka, 2016 SCC OnLine SC 1363,  decided on 22.11.2016]