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THE INDIAN LAW INSTITUTE(Deemed University) |
THE
INDIAN LAW INSTITUTE
(Deemed University)
WHAT THE SUPREME COURT
HAS SAID ?
Applicability of Section 34, IPC
On the applicability of Section 34, IPC, the Supreme court in Hemchand Jha v. State of Bihar, Criminal Appeal No. 7 of 2002 said thus:
“The Section does not say “the common intention of all”, nor doe it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.”
[Hemchand Jha v. State of Bihar, Criminal Appeal No. 7 of 2002 decided on June 13, 2008]
Inherent power under Section 482 Cr. P.C.
The Supreme Court in Baijnath Jha v. Sita Ram & Another, Criminal Appeal No. 403 of 2000 reiterated the high Court’s power under Section 482 Cr. P.C. thus:
“All courts,
whether civil or criminal possess, in the absence of any express provision, as
inherent in their constitution, all such powers as are necessary to do the right
and to undo a wrong in the course of administration of justice on the principle
“quando lex aliquid alicui concedit, concedere videtur et id sine quo res
ipsae esse non potest” (when the law gives a person anything it gives him
that without which it cannot exist). While exercising powers under the section,
the court does not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise is justified by the tests
specifically laid down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the administration of which
alone the courts exist.”
(Baijnath Jha v. Sita Ram & Another, Criminal Appeal No. 403 of 2000 decided on June 12, 2008]
Sine qua non of criminal conspiracy
The ingredients of the offence of criminal conspiracy have been reiterated by the Supreme Court in Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, Criminal Appeal No. 744-745 of 2008 thus:
"The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy."
[Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, Criminal Appeal No. 744-745 of 2008 decided on April 28, 2008]
Sanction to prosecute under Section 197 Cr. P.C.
The 41st Report of the Law Commission of India, inter alia observed thus:-
"The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant".
This view has come to be accepted by the Supreme Court in various cases including Anjani Kumar v. State of Bihar and Anr., Criminal Appeal No. 413 of 2000.
[Anjani Kumar v. State of Bihar and Anr., Criminal Appeal No. 413 of 2000 decided on April 24, 2008]
Treating with cruelty does not account to abetment of suicide
In Sohan Raj Sharma v. State of Haryana, Criminal Appeal No. 1464 of 2007, the charge against the appelant was that he because of his sexual perversion abetted the suicide of his wife. The Supreme Court rejected this argument saying thus:-
"The mere fact that the husband treated the deceased wife with cruelty is not enough".
[Sohan Raj Sharma v. State of Haryana, Criminal Appeal No. 1464 of 2007, decided on April 7, 2008]
Adverting to the requirement of the State Government's consent for initiating CBI investigation the Supreme Court in Balakrishnan Reddy v. CBI, Criminal Appeal No. 491 of 2008 ruled as follows:
"Section 6 which speaks of consent of State Government for the excise of powers and jurisdiction of the Speacial Establishment neither refers to 'notification' nor 'order'. It merely requires consent of the State Government for the application of the Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not specify the mode, method or manner for granting consent though in two preceding sections such mode was provided".
[Balakrishnan Reddy v. CBI, Criminal Appeal No. 491 of 2008 decided on March 14, 2008]
By setting aside the order of high court on the ground that the writ petition was belated [10 years gap from cause of action] and founded on fabricated documents, the Supreme Court remitted the matter to the high court for fresh consideration. The Apex Court also cautioned the lower court from placing reliance on orders in a routine manner without appreciating the factual scenario.
[Hindustan Zinc Ltd. v. Bhagwan Singh Bhati & Ors. Civil Appeal No. 7424/2005, decided on March 10, 2008.]
Determination of age of juvenile offender
In Jyoti Prakash Rai @ Jyoti Prakash v. State of Jharkhand, Criminal Appeal No. 440 of 2008, the Supreme Court, in the absence of any other test, relied on medical reports to determine the age of the juvenile delinquent. It has hastened to add that this should not be treated as precedent.
[Jyoti Prakash Rai @ Jyoti Prakash v. State of Jharkhand, Criminal Appeal No. 440 of 2008, decided on March 4, 2008]
Admissibility of statements under Section 32, Evidence Act
In Vinay D. Nagar v. State of Rajasthan, Criminal Appeal No. 210 of 2007 the statement made by the deceased under Section 161 Cr PC indicating the involvement of the appellant in the abduction of a boy has no remote connection or reference to the death of deceased. It was thus held inadmissible under Section 32 of Evidence Act. The court’s observations are noteworthy:
“The statement recorded by the police although could be proved as there would not be any bar under Section 162 Cr PC for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the accused appellant.”
The prosecution case was that it was to avoid the deceased giving evidence against the appellant in the abduction case that he came to be killed.
[Vinay D. Nagar v. State of Rajasthan, Criminal Appeal No. 210 of 2007, decided on March 3, 2008]
Desirability of Speaking Orders
The absence of reasons will render any judicial order not sustainable. Every order must set forth its reasons, however brief it is, indicating an application of mind to the matter before the court. By setting aside the High Court’s non-speaking order refusing to grant leave to prefer an appeal in terms of section 378(1) Cr.P.C., the Apex Court reiterated that failure to give reasons amounts to denial of justice and right to reason is an indispensable part of a sound judicial system.
[State of Rajasthan v. Rohitas & Ors., Cr. Appeal No. 361 of 2008, decided on February 22, 2008]
Quashing of FIR under section 120B and 193 IPC
The Supreme Court in Central Bureau of Investigation v. K.M. Sharan, Criminal Appeal No. 351 of 2008 allowed the appeal from Delhi High Court's decision quashing the FIR under Section 120B and 193 IPC against the respondents. The court surveyed its various decisions and found that the case was not covered under any category mentioned in Bhajanlal's case whcih is a landmark decision under Secion 482 Cr. P.C.
[Central Bureau of Investigation v. K.M. Sharan, Criminal Appeal No. 351 of 2008, decided on February 21, 2008]
Quashment of proceedings under Section 482 Cr PC
In Central Bureau of Investigation v. K.M. Sharan, Criminal Appeal No. 351 of 2008, the Supreme Court set aside the Delhi High Court’s order quashing the proceedings under section 120B and 193 IPC against the respondent.
The Supreme Court ruled that the High Court ought to have critically examined whether the allegations made in the FIR and charge sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused respondent.
A number of decisions under Section 482 Cr PC have been examined by the court though the land mark decision in Bhajanlal’s case (1992) Supp. SCC 335, as pointed out by the court itself in para 34 should have resolved the issue. It is not understood why the court opted for a lengthy discussion when the crucial question which arises for adjudication is whether the case of the respondent falls under any of the categories enumerated in the celebrated case of Bhajanlal.
[Central Bureau of Investigation v. K.M. Sharan, Criminal Appeal No. 351 of 2008, decided on February 21, 2008]
Judgment-meaning
In K.V. Rami Reddi v. Prema, Civil Appeal No. 2551 of 2001 the Supreme Court explained the meaning and content of judgment thus:-
"The declaration by a judge of his intention of what his 'judgment' is going to be, or a declaration of his intention of what final result it is going to embody, is not a judgement until he had crystallised his intentions into a formal shape and pronounced it in open court as the final expression of his mind".
[K.V. Rami Reddi v. Prema, Civil Appeal No. 2551 of 2001 decided on February 20, 2008]
Dying declarations in dowry death cases
In Sher Singh & Anr. v. State of Punjab, Criminal Appeal No. 646 of 2006 the Supreme Court detailed the admissibility of dying declaration thus:
“Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor’s opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.”
[Sher Singh & Anr. v. State of Punjab, Criminal Appeal No. 646 of 2006, decided February 15, 2008]
Requirements of a judgment
In B. Vishwanath v. State of Karnataka, Criminal Appeal No. 306 of 2008 in the Supreme Court has had an occasion to come across with a judgment of the Karnataka High Court in which there was no indication as to whether the appeal was dismissed or allowed. The Supreme Court noted thus:
“It needs no emphasis that the Appellate Court exercising appellate powers has not only to consider various points but objectively and critically analyse the evidence. That has not been done in the present case.”
It was only after the appellant’s getting the appeal listed under the heading “For being spoken to” that the single judge noted that the conviction and sentence was confirmed and appeal dismissed.
The Supreme Court remitted the case to the High Court for fresh consideration.
[B. Vishwanath v. State of Karnataka, Criminal Appeal No. 306 of 2008 decided on February 13, 2008]
Section 360 Cr. PC. and Probation of Offenders do not co-exist in an area
In Ramesh Dass v. Raghu Nath, Criminal Appeal No. 313 of 2008 after comparing the various provisions in the probation of offenders with section 360 Cr. PC. the Supreme court ruled thus:-
Two statutes with such significant differences could not be intended to co-exist at the same area. Such co-existence would lead to anamalous results. The intention to retain the provisions of section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.
[Ramesh Dass v. Raghu Nath, Criminal Appeal No. 313 of 2008, decided on February 14, 2008]
Corpus Delicti
The Supreme Court in Badshah & Ors. v. State of U.P., Cr. Appeal No. 554 of 2005 categorically held that in the event of murder of an abducted person, either by direct or presumptive evidence, an inference of murder can safely be drawn in respect whereof it would not be necessary to prove the corpus delicti.
[Badshah & Ors. v. State of U.P., Cr. Appeal No. 554 of 2005 decided on February 12, 2008]
Exceptions 1 and 4 to 5.300 IPC
In Rakesh v. State of M.P., Cr. Appeal No. 287 of 2008, the Supreme Court compared Exception 1 and Exception 4 thus:-
"While in the case of Exception 1 there deprivation of self control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception as in Exception 1; but the injury done is not the direct consequence of that provocation."
Analysing Exception 4 the court reiterated thus:-
"The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed."
[Rakesh v. State of M.P., Cr. Appeal No. 287 of 2008, decided on February 11, 2008].
Evidence has to be weighed and not counted
The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Indian Evidence Act, 1872. Thus, there is no legal impediment in convicting a person on the sole testimony of a single witness. It is not the number, the quantity, but the quality that is material. The Supreme Court held, test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
[Kunju @ Balachandran v. State of Tamil Nadu, decided on January 16, 2008]
Presumption of marriage is rebuttable
When Section 50 read with Section 114 of the Indian Evidence Act, 1872, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of particular case. The Supreme Court held that where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption is rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place.
[Tulsa & Ors. v. Durghatiya & Ors., decided on January 15, 2008]
Need for reasoned judgments
Setting aside an order stating only 'dismissed', passed by the Himachal Pradesh High Court, in State of Himachal Pradesh v. Paras Ram and Ors. , Criminal Appeal No. 1 of 2008, the Supreme Court reemphasized the need for giving reasons in the judgment thus:
"Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or excise the power of judicial review in adjudging the validity of the decision. Right to reason in an indispensable part of sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable fact of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performace".
[State of Himachal Pradesh v. Paras Ram and Ors. , Criminal Appeal No. 1 of 2008, decided on January 3, 2008.]
Applicability of Section 34 IPCThe Supreme Court has in Sewa Ram and Another v. State of U.P. Criminal Appeal No. 1695 of 2007 reiterated the application of Section 34 IPC thus:
"Under the provision of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application the principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone".
[Sewa Ram and Another v. State of U.P., Criminal Appeal No. 1695 of 2007 decided on December 11, 2007]
Distinction between exceptions 1 and 4 to S-300 IPC - reiterated
In D. Sailu v. State of A.P., Cr. App. No. 1592 of 2007, the Supreme Court reiterated the distinction between exception 1 and 4 to S. 300 as follows:-
"The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self Control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do."
The Court also reminded that where the eyewitness's account is found credible and trustworthy medical opinion pointing to alternative possibilities is not accepted as conclusive.
[D. Sailu v. State of A.P., Cr. App. No. 1592 of 2007, decided on December 18, 2007]
Test formulated for review under O. 47 r. 1
The apex court discussed the question whether the High Court is justified in allowing Review Application under O. XLVII r. 1 of C.P.C.? The court formulated the following tests to find whether a review is permissible: (a) from the discovery of new and important matter or evidence which, after the exercise of due deligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is palpable wrong; (d) any other sufficient reason. While dismissing the appeal the court held that if the judgment or order is vitiated by an apparent error or it is a palpable wrong and if the error is self evident, review is permissible under O. XLVII r.1.
[B. Bagirathi Ammal v. Palani Roman Catholic Mission, Civil Appeal 78-79/2002 decided on December 6, 2007]
Operative part of judgment is to be effective
In Murugan v. State through Inspector of Police, Cr. App. No. 1276 of 2005 the Supreme Court noticed that in the High Court's judgment the period of imprisonment imposed as punishment was mentioned differently in the beginning of the judgment and the operative part of judgment. The court ruled that the period mentioned in the operative part shall be taken to be correct.
[Murugan v. State through Inspector of Police, Cr. App. No. 1276 of 2005 decided on December 4, 2007]
Intention and Recklessness - Distinguished
The Supreme Court in Naresh Giri v. State of M.P. in App. No. 1530/2007 distinguished the mental state required under section 302 IPC from the one required under section 304A IPC. It was a case wherein the driver of a bus, which was hit by a train in an unmanned Railway gate killing two, was charged, among other sections, under Section 302 IPC. He challenged the charge on the basis that he had no intention to cause death. The Court rightly upheld his contention observing thus:
Recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it.
[Naresh Giri v. State of M.P. in App. No. 1530/2007 decided on November 12, 2007]
Obligation to explain the injuries on the accused
The Supreme Court in State of U.P. v. Avtar Singh, Criminal Appeal No. 54 of 2001 explained the law on obligation to explain the injuries on the accused thus:
If the witnesses examined on behalf of the prosecution are believed by the court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not rise.
[State of U.P. v. Avtar Singh, Cr. App. No. 54 of 2001, decided on November 12, 2007]
Intention and
Recklessness – Distinguished
The Supreme Court in Naresh Giri v. State of M.P., in App.No.1530/2007 distinguished the mental state required under section 302 IPC from the one required under section 304A IPC. It was a case wherein the driver of a bus, which was hit by a train in an unmanned Railway gate killing two, was charged, among other sections, under S.302 IPC. He challenged the charge on the basis that he had no intention to cause death. The court rightly upheld his contention observing thus:
Recklessness
covers a whole range of states of mind from failing to give any thought at all
to whether or not there is any risk of those harmful consequences, to
recognizing the existence of the risk and nevertheless deciding to ignore
it.
[Naresh Giri v. State of M.P., decided on 12.11.2007]
Obligation to explain the injuries on the
accused
The Supreme Court in State of U.P. v. Atar Singh,
Criminal Appeal No: 54 of 2001 explained the law on obligation to explain the
injuries on the accused thus:-
If the witnesses examined on behalf of the prosecution are
believed by the Court in proof of guilt of the accused beyond reasonable doubt,
question of obligation of prosecution to explain injuries sustained by the
accused will not arise.
[State of U.P. v. Atar Singh, Criminal Appeal No: 54 of 2001 , decided 12-11-07]
Dying Declaration
In this case there were two dying declarations though one was made before the Magistrate. But the forensic expert opinion which remained unimpeached raised doubt as regards the condition of the deceased to make a voluntary and truthful statement. After examining the case law the court came to the conclusion that “the dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording dying declaration – be it even a magistrate but also all the material available on record and the circumstances including the medical evidence” (Emphasis supplied). And the court refused conviction on the basis of dying declaration.
[Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., Cr. App. No. 1315 of 2005, decided on September 26, 2007]
The court delved into the ingredients constituting an offence under S. 307 and held that there are 2 ingredients necessary to decide culpability under the section and they are:
i) There must be intention of or knowledge relating to the commission of murder
ii) There should be an act towards its commission.
The court reiterated that in order to convict vicariously under section 34, it is not necessary to prove that each and every accused had indulged in some overt act inflicting deadly injuries. It is enough if the material available on record discloses that the overt act of one or more of the accused was or were done in furtherance of common intention.
[Paramjit Singh @ Mithu Singh v. State of Punjab, Cr. App. No. 1474 of 2005, decided on October 31, 2007]
Administration of Criminal
Justice
In this case a criminal revision petition was dismissed by the High Court as inspite of the notice, nobody appeared for the petitioner. The apex court held that a criminal matter cannot be dismissed for default and must be decided on merits. And the same holds true for criminal revision as well.
[Madan Law Kapoor v. Rajiv Thapar & Ors., Cr.
App. No. 1150 of 2007 decided on August 31, 2007]
Sentencing
In the instant case the apex court reversed the judgment of the High Court wherein the court had reduced the punishment of 7 years R.I. for rape of a 10 year old child to two and half years R.I. The court reasoned that the accused was a young boy of 18 years belonging to Vaddara Community and illiterate and hence it was proper to reduce the sentence. The apex court deprecating the practice of taking resort to “special and adequate reasons” – in a casual manner held that “Judicial response to human rights cannot be blunted by legal jugglery”. The apex court restoring the sentence given by the trial court held that the measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused the state and age of the sexually assaulted female and the gravity of the criminal act.
[State of Karnataka v. Raju,
Cr. App. No. 782 of 2001 decided on September 14,
2007]
Judicial
Propriety
The court implored the judiciary to show restraint in summoning senior officials. No doubt they have been vested with the authority to do so but it should be sparingly used in rare and exceptional circumstances. The judiciary must have respect for the executive and the legislature.
[State of Gujarat v. Turabali Gulamhussain Hilani & Ors., Cr. App. No. 1338 of 2007, dated October 4, 2007]
Delay in acquittal by the High Court - A ground for mitigation
The decision of the Supreme Court in State of Rajasthan v. Munshi, Criminal Appeal No. 928 of 2001 indicates that the Supreme Court may mitigate the sentence if the decision of acquittal was reserved after a long time.
The Court observed thus:-
"The learned counsel for the accused has finally pointed out that the incident had occured way back in 1994 and some mitigation therefore in the quantum of sentence was called for especially as the High Court had found that no case had been made out against the accused. We accordingly reduce the sentence awarded by the trial court from 10 years R.I. to 7 years R.I. the other part of the sentence shall remain as it is."
[State of Rajasthan v. Munshi, Criminal Appeal No. 928 of 2001, decided on October 12, 2007]
Extent of protection afforded by Section 438 Cr. PC.
The Supreme Court in Naresh Kumar Yadav v. Ravindra Kumar and Ors., Criminal Appeal No. 1462 of 2007 declared thus:
"As observed in Salauddin's case (AIR 1996 SC 1042) the protection in terms of Section 438 is for a limited duration during which the regular court has to be moved for bail. Obviously, such bail is in terms of Section 439 of the Code, mandating the applicant to be in custody".
[Naresh Kumar Yadav v. Ravindra Kumar and Ors. Criminal Appeal No. 1462 of 2007 decided on October 23, 2007]
Default sentence under the NDPS Act reduced
In Shanti Lal v. State of M.P., Criminal Appeal
no. 1375 of 2007, the Supreme Court ordered that in default of payment of fine
of rupees one lakh under Section 18 of NDPS Act, the convict need undergo
imprisonment for 6 months instead of 3 years as ordered by the trial court and
the High Court.
[Shanti Lal v. State of M.P., Criminal Appeal no. 1375 of 2007, decided on October 8, 2007]
Factors that influence courts to grant bail
In Jaya Simha v. State of Karnataka, Criminal Appeal No. 196/2007, the Supreme Court granted bail to the petitioner who was denied bail by the High Court on several occasions. Among the factors mentioned the following seem to have influenced the court in granting bail:
1. Appellant was in jail for 3 years 9 months.
2. Charge sheet was made only in 2006.
3. 256 witnesses have been cited.
4. It is likely to take a long time for completion of trial.
5. Co-accused has already been granted bail.
(Jaya Simha v. State of Karnataka, Criminal Appeal No. 196/2007, decided on September 21, 2007)
Reversing of acquittal by the High Court
In Jagdish & Another v. State of M.P.,
Criminal Appeal No. 988 of 2006 the Supreme Court reversed the conviction
registered by the High Court on the ground that the High Court was not right in
reversing the acquittal recorded by the trial court on appreciation of evidence.
The court relied on its decision in Kallu @ Masih v. State of M.P.
(2006) 10 SCC 313.
[Jagdish & Another v. State of
M.P., Criminal Appeal No. 988 of 2006 decided on September 18,
2007]
Conviction in dowry death case
In M. Srinivasulu v. State of A.P. Criminal Appeal No. 11 of 2002 the Supreme Court essayed on the interrelationship between Section 304B and Section 498A read with Section 113B Evidence Act thus:
“It is to be noted that Section 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence. Under Section 304B it is ‘dowry death’ that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections.
As regards the appreciation of evidence by the trial court and High Court, the Supreme Court said:
“What the trial court and the High Court appears to have done is to pick up one line from one place and another from another place and conclude that there was demand of dowry. Reading of the letters in the entirety show that there was, in fact, no mention of any demand for dowry.
It may be pertinent to note that both the trial court and the High Court convicted the appellant.
(M. Srinivasulu v. State of A.P. Criminal Appeal No. 11 of 2002 decided on September 10, 2007)
Number of persons killed has no bearing on the sentence
In Des Raj v. State of Punjab, Criminal Appeal No. 648 of 2007 the Supreme Court commuted the death sentence to life imprisonment. The appeallant was convicted of murder of three persons by the High Court. The Supreme Court revised the sentence reasoning thus:
The repeated loading and firing in utter disregard for live, in the circumstances, is not an indication of extream depravity or brutality, but of a drunken rage. The trial court and the High Court and the High Court have persuaded themselves to award the death penalty by considering only the aggrevating circumstances, and to an extent carried away by the fact that three died and four (two directly and two indirectly) were injured. The mitigation circumstances have not been given their due importance. On a careful balancing of the aggravating and the mitigation circumstances, we find that in spite of the gravity of the crime involving triple murder, the aggravating circumstances notice and enumerated by the High Court do not outweigh, much less overwhelmingly, the mitigating circumstances. This is not the rarest of rare case, which invites death penalty.
[Des Raj v. State of Punjab, Criminal Appeal No. 648 of 2007 decided on September 9, 2007]
Conviction and Sentence
In Subhash v. State of Haryana, Criminal Appeal No. 1107 of 2007, the appeallant was convicted and sentenced as follows by the High Court:
(a) Under Section 392 read with Section 397 - 7 years RI
(b) Under Section 302 read with Section 134 IPC - Life Imprisonment and Rs. 10,000/- sentences were to run concurrently.
This was revised by the Supreme Court as follows:
(a) Under Section 392 read with Section 397 - 7 years RI for each offence.
(b) Under Section 304 Part II - 7 years. All sentences were to run concurrent. Since the accused has already served 7 1/2 years RI he was ordered to be released.
It was in evidence that the deceased who tried to get out of the canal was kicked back to it and thus got drowned. Still the Supreme Court altered the conviction from under section 203 to 304 Part II without much discussion leaving an impression that there was not adequate reasoning.
High Court's judgment not proper
The Supreme Court in State of Maharashtra v. Tulshiran Bhanudas Kamble, Criminal Appeal No. 85-87 of 2000 the Supreme Court criticized the High Court judgment thus:
This is a case of great injustice which has been caused by the judgment of High Court which has acquitted the accused of the offence under section 203 of the Indian Penal Code of flimsy grounds. Such a judgment if upheld will shake the confidence of the public in the judiciary.
The Court further reiterated the principles that if follows in interfering with aquittals in appeals (Chandrappa v. State of Karnataka, 2007(3) Scale 90) and reversed the High Court's judgement exercising its jurisdiction under Artice 136 of the Constitution.
[Maharashtra v. Tulshiran Bhanudas Kamble, Criminal Appeal No. 85-87 of 2000 decided on August 21, 2007]
Death due to cardiac arrest - meaning
In State of Haryana v. Jagat Paul, Criminal Appeal No. 981-982 of 2000 the Supreme Court reversed the High Court's alteration of conviction of the accused from under Section 302 to one under Section 325 of the ground that the death was caused due to cardiac arrest. In fact the trial court had correctly identified the causes of death as the injuries inflicted by the accused. It rightly concluded the cardiac arrest is a symptom of death and that it was caused by the injuries. The Supreme Court reversed the High Court ruling and upheld that the trial court's conviction of the accused under Section 302/34 IPC.
[State of Haryana v. Jagat Paul, Criminal Appeal No. 981-982 of 2000 decided on June 20, 2007]
Applicability of Section 34 IPC
In Lala Ram v. State of Rajasthan, Criminal Appeal No. 1116 of 2006 the Supreme Court reiterated that Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused (See also Amit Singh Bhikam Singh Thankur v. State of Maharashtra, 2007 (2) SCC 310.
[Lala Ram v. State of Rajasthan, Criminal Appeal No. 1116 of 2006, decided on June 20, 2007]
In this case, the High Court had quashed the order of the Sessions Judge under S. 319 Cr.P.C. summoning Respondent No. 2 to face trial. The court relied upon statement of 6 witnesses which had been recorded by the investigation officer under S. 161 Cr.P.C. to the effect that the respondent was at a different place from place of commission of crime. Setting aside the order of High Court, the court reiterated that the burden of establishing the plea of alibi lays squarely on the person pleading it. In this case apart from those statements no legal evidence was adduced.
The court reiterated that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge sheeted by the investigating agencies or may have been discharged at an earlier stage.
Balasubramanyan J further held that there is no rationale in fettering the power under S. 319 Cr.P.C., either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It should be used when the occasion envisaged by the section arises.
[Rajendra
Singh v. State of U.P. & Anr., Cr. App. No. 1019 of
2007, decided on August 6,
2007]
The appellant was convicted under
section 302 based on circumstantial evidence. The court upholding the conviction
held that where a case rests squarely on circumstantial evidence, the inference
of guilt can be justified only when all the incriminating facts and
circumstances are found to be incompatible with the innocence of the accused or
the guilt of any person. The circumstances from which an inference as to the
guilt of the accused is drawn have to be proved beyond reasonable doubt and have
to be shown to be closely connected with the principal fact sought to be
inferred from those circumstances.
In this case bail was granted to the
accused by the High Court without assigning reason. The same had been denied by
the Additional Chief Judicial Magistrate, Jaipur and by Additional Sessions
Judge, Jaipur. Deprecating the practice of non-speaking orders the court held
that though detailed examination of the evidence and elaborate documentation of
the merits of the case is to be avoided by the court while passing orders on
bail application, yet a court dealing with the bail application should be
satisfied as to whether there is a prime facie case though exhaustive
exploration of the merits of the case is not necessary. The court cancelled the
bail and remitted the matter to the High Court for fresh consideration of the
bail application.
Circumstantial evidence
[
Speaking orders
[Deepak Singh v. State of Rajasthan
& Anr., Cr. App. No. 1002 of 2007 decided on August 3,
2007]
Inconsistencies in Dying Declarations - Benefit of doubt to be given to accused
The accused in Mehiboobsab Abbasabi Nadaf v. State of Karnataka, Criminal Appeal No. 130 of 2006 was given benefit of doubt because of the inconsistencies in the different dying declarations made by the deceased.
About the acceptability of dying declaration the Court's observation are illustrative. The Court said:
"Conviction can indisputably be based on a dying declaration. But before it can be acted upon, the same must be held to have been rendred voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied."
[Mehiboobsab Abbasabi Nadaf v. State of Karnataka, Criminal Appeal No. 130 of 2006 decided on August 1, 2007]
Further investigation after the final report possible The Supreme Court held that a
further investigation into a complaint after the filing and disposal of final
report in the first instance is possible in view of S. 173(8) Cr. Pc. in
N.P. Jharia v. State of M.P., Cr. Appeal No. 1262 of 2001. [N.P. Jharia v.
State of M.P., Cr. Appeal No. 1262 of 2001 decided on July 30.
2007]
Dying Declaration The court held that dying
declaration is only a piece of untested evidence and must like any other
evidence, satisfy the court that what is stated therein is the unalloyed truth
and that is absolutely safe to act upon it. If after careful scrutiny the court
is satisfied that it is true and free from any effort to induce the deceased to
make a false statement and if it is coherent and consistent, there should be no
legal impediment to make it basis of conviction. The court in this case
convicted the accused for life imprisonment under section 302 on the basis of
dying declaration. [Smt. Shakuntala v.
State of Haryana, Cr. Appeal No. 376 of 2002 decided on July 27,
2007]
Retirement of an employee is no bar for hold
enquiry
In U.P. Cooperative Federation Ltd. & Ors. v. L.P. Rai, it was opioned by the apex court that where the charges leveled against the employer are not of a minor or trivial nature, it will not be proper to foreclose the rights of the employer to hold a fresh enquiry only on the ground that the employee has retired from service. It was clarified that it will be open to the appeallant employer to hold fresh enquiry against the resondent in accordance with rules.
[U.P. Cooperative Federation Ltd. & Ors. v. L.P. Rai, Civil Appeal No. 3218 of 2007, Special Leave Petition (Civil) No. 21963 of 2003, decided on July 24, 2007]
Presumption under Section 113A Evidence Act is prospective in question
The position of Law and Section 113A of Evidence Act is prospecitve in operation taken in Gurbachan Singh v. Satpal Singh, AIR 1990 SC 2009 came to be reitereated in Arvind Kumar v. State of Maharashtra, Criminal Appeal No. 452 of 2001.
[Arvind Kumar v. State of Maharashtra, Criminal Appeal No. 452 of 2001 decided on July 24, 2007]
The onus of proving the source of deposit is on the depositor
An appeal was filed against the order of the assessing officer who treated certain amount, the source of which was not explained to him, as undisclosed income of persons in whose names the deposit appeared. Since the deposit appeared in the names of partners in a firm, the Tribunal, on appeal held that since the claim was made by members of the public, it was not proper to treat the amount as income from undisclosed source of various assesses and it was necessary to link up all these amounts with the books of the firm. The Supreme Court on finding that the firm a fictitious one held that when there is no explanation regarding the source of investment, the onus of proving the source of deposit primarily rests on the persons in whose names the deposit appeared in various banks. By reversing the order of Tribunal the court held that the IT Department was right in making individual assessments in the hands of respondent assesses.
[Commissioner of Income Tax, Salem v. K. Chinnathamban, decided on 24 July, 2007)
Sanction to prosecute
A person was chargesheeted during the period when he was under dismissal from service. Subsequently, he was reinstated. The contention was that since order of dismissal was set aside, he is deemed to be in service during the relevant period. The Court, rejecting it, held that the deeming provision is operative for the purpose for which it has been created and cannot be extended beyond the legitimate field and hence, protection available under Section 19 of Prevention of Corruption Act is not available to the appellant.
[B.S. Goraya v. U.T. of Chandigarh, Criminal Appeal No. 1205 of 1999 decided on July 23, 2007]
Vicarious liability of a director of a company
The Court held that the Director would be vicariously liable under Section 138 of the Negotiable Instruments Act only when he is responsible to the company for the conduct of the business of the company. Such responsibility cannot be inferred from the fact that he negotiated for obtaining financial assistance on behalf of the company. Vicariously liability has to be pleaded and proved. It cannot be a subject of mere inference.
[K. Srikannth Singh v. North East Securities Ltd. & Anr. Criminal Appeal No. 919 of 2007 decided on July 20, 2007]
Legality of circular prohibiting application for probation
This case challenged the legality of a Circular dated 03.08.2005 issued by the I.G. of Prisons prohibiting Probation Board from considering cases of convicts where appeals are pending before the High Court and also directing not to consider the mercy application for grant of release. The Circular was purportedly issued on the basis of the order of a Division bench questioning (i) the irregularity in release on probation and (ii) the decision making process of the Probation Board as in some cases where prayer for bail had been rejected but convicts have been released on probation.
The Court held that the Circular, to the effect tha